Murtough v Woollahra Municipal Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 23 February and 3 August 2005

APPLICANT Mr C Murtough, in person LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: In THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10988 of 2004: Christoper George Murtough v Woollahra Municipal Council

JUDGMENT 1 Commissioner Nott: The applicant Mr C Murtough is the owner of a two-storey terrace with an attic room at 30 Dillon Street, Paddington. He applied to the council to carry out various alterations and additions to the terrace, and the council granted development consent by notice of determination dated 18 August 2003. However, there were two conditions of this consent that the applicant was dissatisfied with, conditions 3 and 4, and the applicant has appealed to the Court. 2 The two conditions that the applicant objected to read as follows: 3. The deletion of the front dormer window The front dormer is to be deleted as it is considered that the dormer window does not meet the objectives and guidelines of the Paddington Development Control Plan (Part 5.1.1 and Part 5.2). The drawings accompanying the Construction Certificate Application are to be amended to comply with this condition.

4. The deletion of the two-storey addition The two storey additions to the western side boundary are to be deleted from the drawings due to non-compliance with the objectives and guidelines of the Paddington Development Control Plan (Part 5.1.3). These additions are to be restricted to single storey as shown on Drawing Nos. 01 and 02 and the overall height of the additions are to follow the height of the single storey profile as indicated on the south elevation Drawing No. 08. The drawings accompanying the Construction Certificate Application are to be amended to comply with this condition. 3 This appeal was fixed as an on-site hearing pursuant to s 34B of the Land and Environment Court Act 1979. When I arrived at the site on 23 February 2005 for the hearing, the applicant informed the Court that he was not well and would be seeking an adjournment. However, he agreed that I should inspect the subject site and immediate locality and hear from the council's consultant heritage architect Mr R Moore and from the adjoining neighbours at 38 Dillon Street. The council's assessment officer, Mr W Turner, was also present and gave brief evidence. The adjoining neighbours at No. 38, Mr and Mrs Quist were accompanied by a chartered architect, Mr C Carle. The applicant objected to Mr Carle giving oral evidence, because there had been no written statement from him. However, I considered that there would be no denial of natural justice if Mr Carle gave short oral evidence on the condition that the applicant would have the opportunity to consider what was said by Mr Carle and would be able to bring his own evidence if necessary to answer what was said. As I mentioned earlier, the applicant had already indicated that he did not wish to have a decision made on 23 February 2005 but was seeking an adjournment to bring further evidence and to consider what was put before me from the council. 4 The evidence from Mr Carle was indeed short. He said that he supported the council's case that there should be no dormer created in the roof facing Dillon Street, and he was opposed to the two-storey element of the rear addition where it extended to the side boundary adjoining Mr and Mrs Quist's property at No. 38. Mr Carle was cross-examined by the applicant, who is a barrister. The applicant questioned Mr Carle about other dormer windows elsewhere in Paddington including Glenview Street. Mr Carle was not able to say when these other dormer windows had been installed. The subject building is part of a row of terraces that was built in about 1905, whereas the terraces in Glenview Street had been built before that time. 5 At the callover on 5 November 2004 the Registrar had suggested that there be a Court-appointed heritage expert, but the applicant apparently informed the Registrar that the applicant would have his own expert. However, at the hearing on 23 February 2005 the applicant said that he was not able to obtain evidence from a heritage expert because he had been ill. This was one of the reasons he gave in foreshadowing that he would be applying for an adjournment of the hearing that commenced on 23 February 2005. 6 I heard brief oral evidence from the council's heritage consultant Mr R Moore, who had prepared a written statement that had been served on the applicant at the end of December 2004. The evidence that had been given by Mr Carle did not bring to light any matter that was not already dealt with by Mr Moore. 7 I inspected the subject site and the immediate locality, and took into account photographs of other dormer windows in terraces elsewhere in Paddington. At the request of the applicant and by consent, I adjourned the matter to the Registrar's callover on 21 April 2005 to fix a further hearing date before me. 8 For a reason that is not apparent to me, the callover did not take place on 21 April but on 22 April, when there was no appearance for the applicant, and the Assistant Registrar referred the matter to the Duty Judge, who referred it back to me for further directions and hearing. In fact the matter was listed pursuant to an e-callover before me on 23 May 2005 for case management. One of the reasons that the matter could not proceed was that immediately after the on-site hearing of 23 February 2005, the applicant had requested the production of documents relating to dormers in Paddington and the request had not been met, presumably because of the width of the request. On 23 May 2005 I indicated that for the purpose of the appeal, the applicant's request for documents was too wide; and by consent, I directed that the council produce to the applicant copies of any approvals for front dormer windows in Dillon, Brown, Boundary, Glenview and Neild Streets within 500 m of the subject site. 9 On 23 May 2005 I also expressed certain tentative views about the proposed two-storey rear addition adjoining the side boundary, having regard to the evidence presented by Mrs Quist and her architect at the on-site hearing on 23 February 2005. Having regard to the views that I expressed, the applicant decided to withdraw the appeal relating to condition 4 of the consent, and the parties agreed that there be no order as to costs on that issue. 10 By consent I also directed the applicant to file and serve an expert report on or before 14 July 2005 and the council to file and serve any evidence in reply by 28 July 2005. The appeal was set down for hearing before me on 3 August 2005. 11 There was some uncertainty in the applicant's mind as to the meaning of my direction for the production of copies of any approvals of dormer windows in the specified streets. He was of the opinion that the council should have sent the copies to him. Instead, the council advised the applicant that the council files were available for inspection at the council chambers. The applicant in the end arranged for copies to be made at his expense of the relevant files that were produced. The copies were made on 2 August 2005. 12 The appeal came on for hearing again before me on 3 August 2005. The applicant's evidence included coloured photographs of other dormer windows in the locality, together with copies of some extracts from the council files that he had inspected. The applicant did not present any expert evidence from an architect or heritage consultant. Nevertheless, he relied in his submissions on the additional material that had been obtained from the council together with other evidence that had been presented on the first hearing day. 13 The subject site is zoned Residential 2(a) under the Woollahra Local Environmental Plan 1995. The site is in a conservation area, and cl 28 of the LEP is particularly relevant. The clause requires that before consent is granted to alter or add to a building, the council is to take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area; and the council shall not grant consent unless it has considered a statement of heritage impact or a conservation plan or both as may be required by the council. 14 The relevant development control plan is the Paddington Development Control Plan (DCP). This DCP applies to the Paddington Heritage Conservation Area within which the subject land is located. I have taken particular account of the following provisions of the DCP. 15 Clauses 5.1.1 and 5.1.4 of the DCP provide:

5.1.1 STREET FRONTAGES Objectives 01 To retain the original streetfront elevation… 06 To retain the distinctive characteristic of groups of buildings.

Guidelines and Controls G1 There is to be no alteration or additions made to the original forms, details and materials of street frontages, except for…[the exceptions are not relevant]. 5.1.4 ROOFS Objectives 01 To retain the character of the original roofscape of Paddington. 02 To restore or reconstruct missing roof elements. 03 To encourage the removal of uncharacteristic elements or structures. 04 To promote sympathetic contemporary design that responds to the historic character of the area.

Guidelines and controls G1 The removal of original roofing materials and their details is not permitted unless deteriorated materials are replaced by the same or similar materials and details. G2 Original main roof forms must not be raised or altered. G3 Existing patterns of roof forms within groups of unaltered buildings must be retained. G4 In areas of high visibility, the roofscape must be maintained. 16 Clause 5.2.1 includes the following: 5.2.1 DORMER WINDOWS AND SKYLIGHTS Explanation The roof space of dwellings has sometimes been used as an attic or a habitable room. The usual method of providing light and ventilation was by the insertion of a dormer in the roof plane. A number of houses and cottages within Paddington survive with original dormers to the front and rear roof planes. The shape and design of dormers vary with different architectural styles and building types. More numerous are the houses which exist without the introduction of dormers to the streetfront elevations. While it may be convenient to install streetfront dormers to utilize the roof space, these dormers significantly alter the character of the streetscape. Skylights located in highly visible positions, large skylights and skylights with protruding profiles can detract from Paddington's roofscape. Current pressures for accommodation make the utilisation of the roof space desirable. Where the roof has sufficient slope and height an attic room may be possible with a dormer in the rear slope of the main roof.

Objectives 01 To retain original roof forms. 02 To conserve the original roofscape of a building, groups of buildings and streetscapes. 03 To minimise the impact of dormers and skylights on the form, appearance and fabric of roofs. Guidelines and controls G1 Dormer windows must not be added to streetfront and side elevations unless documentary evidence shows that an original dormer or dormers existed in these locations as part of the original design. G2 A dormer may be located within the rear slope of the main roof subject to considerations of the impact on the building's significance and the impact on the group's significance where the building forms part of a group.

17 The above DCP came into effect on 7 July 1999. An earlier planning document that is no longer current was the Policy for the Control of Changes to Facades & Alterations to Buildings in Bondi Junction, Paddington and West Woollahra, originally adopted in February 1984. 18 The subject terrace is on the southern side of Dillon Street and is one of a series of terraces. Dillon Street runs westward from Brown Street in the east past Brown Lane to Boundary Lane in the west. There is a group of terraces on the southern side of Dillon Street at Nos 2-28 between Brown Street and Brown Lane. None of these terraces has a dormer window facing Dillon Street. On the western side of Brown Lane there is another group of terraces at Nos 30-54, and at the western end of Dillon Street adjoining the eastern side of Boundary Lane is a separate pair of terraces at Nos 56-58. In the group of terraces at Nos 30-54 in which the applicant's terrace is located, there is only one dormer window in a roof facing Dillon Street, which is at No. 42. 19 It is unclear on the evidence whether the dormer at No. 42 was ever approved. From my external inspection of that property, it would appear that the dormer has been in place for many years. However, it seems to me from the materials and style of the dormer that it is unlikely to have been originally constructed with the terrace at No. 42. That particular dormer detracts from the appearance of the group of terraces. 20 The general absence of dormer windows for the buildings on the southern side of Dillon Street (apart from the one at No. 42 and the dormers in the detached pair of terraces at Nos 56-58) distinguishes Dillon Street from other nearby streets where dormer windows more commonly exist, such as in Glenview Street. The applicant produced in evidence photographs of dormers in Glenview Street as well as other dormers further from the subject site. 21 Some of the dormers in the locality are quite attractive in design and seem to harmonize with the terraces, but there are also some less well-designed dormers. 22 The council officer Mr W Turner indicated that the DCP that was adopted on 7 July 1999 had been consistently applied. It appears that most, if not all, of the streetfront dormers were constructed prior to that date. 23 Where there were existing dormers in the roof of a building, the council has approved some modifications to the existing dormers, as occurred at the property at 2 Boundary Street. The report dated 30 August 2001 to the council in respect of that property stated that the proposed modifications to the dormer windows would maintain the character of the corner shop. 24 At the terrace on the corner of Macdonald and Brown Streets, there are two dormer windows in the roof facing Brown Street, which appear to be of recent construction. Details of how these dormers came into existence and whether they replaced previous dormers is uncertain on the evidence. 25 If there are isolated examples of departures from the DCP approved after 7 July 1999, I am nevertheless minded to accept the submission of Mr P Rigg, solicitor for the council, that the DCP has been generally consistently applied. Significantly, the council has not approved any streetfront dormer windows in Dillon Street under the current DCP. 26 A rear-facing dormer has previously been approved and constructed in the roof of the applicant's terrace. However, the applicant seeks to have the proposed front, north-facing dormer, so as to have cross-ventilation for the small room that has been created in the roof space. The applicant says (and it is not disputed by the council) that the roof space becomes quite hot in the warmer months. 27 Details of the proposed front-facing dormer as well as of the existing rear-facing dormer are seen in the plans by W & B Consulting Pty Ltd dated 28 February 2003 (exhibit B). 28 In a letter to the council dated 18 June 2003, Mr Murtough said: I have no doubt but that Mr Turner has made a massive contribution to the preservation of Paddington in his many years with the council. There is, however, a real issue of proportionality and reasonableness to be considered here. Several owners in Dillon Street (including one who is a practising architect) want front dormer windows. 29 Also in support of the applicant's development application, Mr M Ledbury of W & B Consulting Pty Ltd said: I am also attaching for your information photos of terraces in the immediate area. Dormer windows are demonstrated in each of these photos… With the exception being the one at 42 Dillon Street (which I take it the council approved) I find the dormer windows to be attractive and a good example of houses of that era. I believe the houses in Dillon Street would have been built as spec homes or what we know as project homes. They were probably built to a price and at that stage there were no attics and therefore no need for dormer windows to catch the breeze, sunlight and views. I therefore urge you to reconsider your position and approve the dormer window. 30 Later, Mr Ledbury submitted to the council a two-page statement of heritage impact, which included the following: The variation to the PDCP to allow a dormer window should be approved because it does not distort or obscure the cultural significance of the existing building. Sunlight and fresh air were part of everyday life in the early 1900's as more people worked outside in the fields or doing other manual work. In our life today we have a greater need for comfortable housing with adequate winter sun and cross ventilation. We also wish to enjoy whatever view we may be able to get. The proposal for a dormer window allows all that.

31 The council retained consultant heritage architect Mr R Moore. He was critical of the adequacy of the statement of heritage impact. It seems to me that the heritage impact statement could have analysed in more detail why there should be a departure from the DCP having regard to the general uniformity of the other terrace roofs (save for No. 42) at Nos 2-54 Dillon Street, which do not have dormers. I assume that Mr Ledbury has designed other alterations and additions in the conservation area, but it is not apparent that he has the specialist qualifications of a recognised heritage consultant. 32 In his written statement giving reasons why the proposed dormer should not be approved Mr Moore said: The dormer window proposed for the subject property is not, in my opinion, acceptable in principle or in detail design. This house, and the group of which it is part, were not designed with dormer windows and while the roof spaces can be used with the assistance of a dormer or rooflight window to their rear, where streetscape impact is probably not so marked, the houses should not have a dormer added to their front, or the design of the houses, their membership of a group and street are all distorted and diminished. The ability of the house and of the area to demonstrate its design form is incrementally diminished. The proposed dormer is lumpen and inelegant in appearance, uninformed by the many traditional models which would be available to assist the design of such a window, were it an acceptable proposition. It does not match the rear dormer as asserted, which itself is unattractive and inappropriate for the house.

The group of houses along the south side of Dillon Street in which No. 36 is included, are very close to each other in scale, proportion and typology. They form a group of notable consistency and harmony, emphasised by the elevation of this side of the street upon sandstone rubble base walls, with the eastern part of the street's footpath actually elevated upon the wall top. The elevation of the houses above the street does not mean however that their roofs are not visible - they are clearly appreciable from the street and it is notable that only one pair of houses (Nos 56-58), located at the western end of the street, extensively modified and not part of the terrace groups, has Victorian style dormers front and back. None of the other houses in the street has dormers facing it, although many have rear-facing skylights and some rear dormers. The proposed dormer, if approved, would be extremely obtrusive and encourage other owners to attempt similar additions, with a consequent marked impact on the street's character . 33 The applicant submitted that there was a fundamental flaw in Mr Moore's report, in that Mr Moore did not refer at all to the dormer at No. 42, which is only two properties from the applicant's property. Mr Moore's statement was clearly incorrect where it said that there were no other houses in the street with dormers facing it other than the pair of dwellings at Nos 56-58. The applicant also referred to cll 6 and 7 of Sch 1 of the Court's Expert Practice Direction 2003 and submitted that Mr Moore's report had no probative value because it was incomplete or based on insufficient data. I tend to agree that the probative value of Mr Moore's report is diminished by reason of his not referring at all to the dormer at No. 42. Nevertheless, having regard to the oral evidence at the site, it is apparent that Mr Moore was still opposed to the granting of consent for the proposed dormer. This dormer was seen on my inspection of the locality with the representatives of the parties and with Mr Moore present. I do not agree with Mr Moore's opinion that the proposed dormer would be "extremely obtrusive", although I accept that the dormer is out of keeping with the general uniformity of the streetfront roofs of the group of terraces at Nos 30-54 (apart from No. 42). In the circumstances, I do not place determining weight on Mr Moore's evidence. 34 However, the evidence as a whole does not persuade me that the proposed dormer should be approved. The Paddington Society objected to the proposed dormer, and there was also the evidence against the proposal from Mr W Turner. In the development application assessment report dated 18 August 2003 Mr Turner said:

The subject premises are one of a terraced row (late Victorian) sitting high above street level and provides a positive contribution to the streetscape. The front façade has remained intact and there is no evidence of any original dormer window to the street frontage. Council has had a long standing policy that within a conservation area, any alterations to the street frontage is to be restricted to restoration works only and this is supported by the Paddington DCP. An existing front dormer window to No. 42 Dillon Street is not recorded from council's archives since 1968. The deletion of the front dormer window is recommended and may be conditional to any approval. 35 It appears that the council has generally adhered to the objectives and guidelines of the DCP, and there are no departures from the DCP approved in Dillon Street after 7 July 1999. 36 The applicant submitted that the words "in these locations" in guideline G1 (quoted in par 16 above) referred to the whole of the Paddington Conservation Area; and he submitted that because there were some original dormers facing the street in that area, a streetfront dormer could be erected on his terrace. On the other hand, Mr Rigg submitted that those words referred to the streetfront and side elevations of the actual building on which it was proposed to erect a dormer window; and if the original design of the building did not previously have a dormer window or windows at those locations in the building, then a dormer could not be added again to the building. Alternatively, Mr Rigg suggested that the words "in these locations" should be limited to the group of buildings containing the terrace on which it was proposed to add a dormer window. 37 Admittedly, the wording of guideline G1 could be clearer, but I do not think it means what the applicant contented. Taking into account all the provisions in the DCP relating to street frontages, roofs and dormer windows and skylights, the intent of the DCP appears to be to retain the original roof forms facing the street. 38 Having regard to the considerable number of dormer windows in the broader locality of the subject land within the Paddington Conservation Area and to the fact that a number of these dormer windows are quite attractive in appearance, there may be some justification for expanding the very limited exceptions that permit the construction of dormer windows in accordance with the DCP. Query whether more favourable consideration might be given to proposed streetfront dormers, if for example a number of owners banded together to submit proposals for uniform or consistent dormers on several or more side-by-side terraces and if the dormers were of an appropriate size, style and character. However, the content of a DCP is a policy matter in the sole province of the council. 39 The DCP should be a focal point of consideration, as was held by Spigelman CJ in Zhang v Canterbury City Council [2001] NSWCA 167. For sufficient reason however, a departure may be permitted from the DCP. But in the circumstances of this case, and in the light of the current provisions of the DCP, I am not persuaded that the proposed single dormer would be appropriate. 40 I acknowledge that the applicant has suffered from a number of debilitating illnesses mentioned in the five-page medical report of Dr B T O'Sullivan dated 3 August 2005, and bearing in mind those illnesses the Court has allowed a number of adjournments to enable the applicant to obtain expert heritage or architectural or other evidence in support of his case. The applicant submitted that he was prepared to have any skylight or dormer at the front that the council would approve. However, a dormer or skylight would be contrary to the current objectives and guidelines of the DCP and would be generally out of keeping with the other roof forms in the group of terraces. The single, unattractive dormer at No. 42 should not be relied upon as a precedent. 41 Accordingly, on the present evidence and in the light of the current provisions of the DCP, the conditions of consent that the applicant objected to (par 2 above) will not be deleted. The appeal will be dismissed, which will have the effect of reinstating the council's consent and conditions dated 18 August 2003. 42 The council applied for an order for costs in its favour, and I heard submissions from both parties as to whether, subject to the concurrence of the Chief Judge, I should make such an order. The mere fact that the applicant did not agree to a Court-appointed expert is not a reason by itself to make an order for costs in favour of the council. The Court may, even if a party does not agree, make an order that there be a Court-appointed expert whose costs will be borne by both parties. Although expert heritage evidence may have assisted the applicant's application or resulted in some specific amended application, nevertheless the absence of such expert evidence did not mean that the applicant's case was hopeless. The applicant was able to present arguments in support of his proposal based on the evidence of the existence of other dormers in nearby streets, although in the end I was not persuaded to approve the presently proposed isolated dormer. In my opinion, there should be no order as to costs. 43 The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits, other than exhibits B and 9, may be returned. 3. No order as to costs. ____________ A J Nott Commissioner of the Court rjs

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