Pizzuto v Woollahra Municipal Council

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

APPLICANT Mr J Cole, solicitor SOLICITORS Abbot Tout

RESPONDENT Mr M Connell, solicitor LEGAL REPRESENTATIVES: SOLICITORS Home Wilkinson Lowry

SECOND RESPONDENT Intervenor: Ms M Peatman, solicitor Of: Hunt & Hunt Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10570 of 2005 Marino Pizzuto v Woollahra Municipal Council

1 This judgment is for an appeal under s 97 of The Environmental Planning and Assessment Act ("the Act") against Woollahra Municipal Council's refusal of a development application for the properties known as No. 26-34 Stephen Street, Paddington. The proposed development is for alterations and additions to three semi-detached single-storey brick cottages and the construction of a new in-fill building with basement parking and new built elements at the rear of the site. The resultant proposed development is for two large semi-detached dwellings on the site and the consolidation of the land into two lots. 2 The subject site is comprised of four lots with a total site area of 563.3 sq m and a frontage to Stephen Street of 20 m. This is made up of lot 4 with an area of approximately 245 sq m, lot 5 with an area of 101 sq m, lot 6 approximately 104 sq m and lot 7 about 114 sq m. The site is elevated above the street by a retaining wall of approximately 1.5 m and the street is also gently sloping. 3 Near the rear eastern boundary of the property a cliff rises that has a sandstone retaining wall with approximately a 4 m difference in topography to the elevated adjoining property at the rear known as No. 26A Stephen Street. To the south of the subject site is No. 36, a free standing two-storey brick terrace with metal roof. Further to the south on the opposite side of Glen Street are residential flat buildings. To the north of the site at Nos. 20 to 24 there are single storey workers' cottages of brick and tile, similar to those on the subject site. Opposite the site to the west is the Dillon Street Reserve and the Scottish Hospital, a heritage item, adjoins the reserve to the south. Refer to the aerial photograph at Fig. 1. 4 Currently there are three semi-detached single storey cottages on Nos. 30 to 34 Stephen Street, two of which have been consolidated to create a larger single dwelling house. The northern site has a garage door built to the boundary with a masonry and timber fence to the street that interrupts the rhythm of dwellings in the streetscape as shown in the photographs at Fig. 2. The proposal 5 It is proposed to construct an underground carparking area with the southern dwellings to be provided with three parking spaces with internal stairs, and the northern dwelling is provided with parking for two cars also with internal stair access. The proposal provides ground level living areas for the two dwelling houses and an internal courtyard with in-ground swimming pools with a northern orientation. At the first floor level the plans show bedrooms and bathrooms and a roof terrace towards the middle of the site and a rear two-storey pavilion for each dwelling. From the street the proposal will have the appearance of four cottages, however, in effect, two larger dwelling houses are to be accommodated on the site. Refer to figures 4, 5 and 6. Issues 6 While amended plans resolved some issues the original Statement of Issues identified the following:

1. Whether the proposed development as amended would be unacceptable having regard to Clauses 2(2)(g)(ii)-(iii), Clause 8(5) and Clause 28(2) of the Woollahra Local Environmental Plan 1995 ("the LEP"), in that it would have an adverse impact on the heritage significance of the heritage conservation area in which 26-34 Stephen Street, Paddington, is located.

2. Whether the proposed development is unacceptable having regard to its non-compliance with Parts 5.1.1 and 5.1.5 of the Paddington Development Control Plan ("the DCP"), in that it would adversely impact on the streetscape of Stephen Street and as the front sections of the existing buildings are not restored so that the buildings make a greater contribution to the conservation area. In particular:

5.1.1 Street Frontages - Objectives 02, 03, 04, 07 and Guidelines G1-G4.

5.1.5 Site Coverage, Setbacks and Levels - Objectives 02, 03 and 04 and Guideline G2.

3. Whether the proposed development is unsatisfactory having regard to its non- compliance with Part 5.1.3 of the Paddington DCP, in that the height at the rear, scale of development and rear building alignment contravene the DCP controls. In particular: 5.1.3 Rear Elevations and Yards- Guidelines G 1, G3 and G5. 4. Whether the proposed development is unacceptable having regard to its non- compliance with Part 5.1.4 of the OCP, in regard to roof design and impact on the roofscape of the area. In particular: 5.1.4 Roofs -Guidelines G3, G7 and G11. 5. Whether the proposed development is unacceptable having regard to its non-compliance with Part 5.1.7 of the DCP, in that the scale of the facade elements of the infill terrace does not have regard to the site context and the scale of adjoining buildings, and the height of the roof to "House 2" exceeds the height of the roof ridge to the existing roof of "House 1", and the proposal will impact on solar access to the private open space of the adjoining property No. 36 Stephen Street to the south. In particular: 5.1.7 Building Height, Bulk and Scale -Objectives 03, 04 and 05 and Guidelines G1, G3 and G4. 6. Whether the proposed subdivision is unacceptable in regard to the non-compliance with the objectives of Part 5.1.9 of the DCP, in that the development will result in the loss of the historic subdivision pattern, and there will be an adverse affect on the setting of adjoining buildings and adverse impact on the significant features of the site and it surrounds. In particular: 5.1.9 land subdivision and Site amalgamations -Objectives 01 and 03 and Guidelines G1, G3 and G4. 7. Whether the proposal is unacceptable in regard to Part 5.2.5 of the DCP in that the proposed metal fencing of the infill terrace is inappropriate to its context and whether the documentation submitted is sufficient to carry out adequate assessment in terms of the provisions of the DCP. In particular:

4.2.5 Fences and Gates - Objective 04 and Guideline G4.

8. Whether the proposed development is unacceptable having regard to its non-compliance with Part 5.2.6 of the DCP, in that the proposed parking structures will have an adverse impact on the streetscape and substantial basement excavation for garaging is proposed. In particular: 5.2.6 On-Site Vehicle Parking, Garages, Carports, Driveway Access & Servicing Facilities -Objective 02 and Guidelines G1 and G5.

9 Whether the proposal is unacceptable in terms of Part 5.2.8 of the DCP, in that the proposed metal fence, gate and roofing are inappropriate to the site context. In particular:

10. Whether the proposed development is unacceptable in terms of the design guidelines for single storey buildings set out in Part 5.3.1 of the DCP, in that the single storey form of development is not retained. In particular: 5.3.1 Single Storey Buildings -Objectives 02 and 03 and Guideline G3. 11. Whether the proposed development is unacceptable as infill development in terms of its non-compliance with Part 5.4 of the DCP, in that the proposal does not provide an appropriate response to the character of the conservation area nor achieve a cohesive relationship with the existing contributory buildings in the streetscape. In particular: 5.4 Infill Development -Objectives 01 and 02 and Guidelines G4, G5, G10, G11, G13 and G14.

12. Whether the proposed development is unacceptable having regard to Clause 18 of the WLEP in that it has not been adequately demonstrated that the amount of excavation required will not cause damage to the adjoining properties and the retained terrace walls.

13. Whether insufficient information has been submitted in regard to the following aspects of the proposed development: parking access and layout; impact on major services; and details of the methods of support, protection of adjoining properties and detailed construction methodology.

14. Whether the proposed development is unacceptable having regard to its on- compliance with Part 5.1.8 of the DCP, in that the openings and balcony proposed at first floor level and the proposed decks will have an adverse impact on the visual and acoustic privacy of the adjoining properties. In particular: 5.1.8 Acoustic and Visual Privacy - Objectives 01 and 02, and Guidelines G5 and G6. 15. Whether the proposed development is unacceptable in respect to the concerns of objectors. 16. Whether the proposed development is in the public interest. Statutory Planning Framework 7 The Woollahra Local Environment Plan 1995 (LEP) contains a number of aims and objectives including: - to promote the management, development conservation and economic use of property within the area of Woollahra; - to conserve the environmental heritage of the area of Woollahra.

8 The objectives of the plan for residential development include: · to encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations through out the area of Woollahra. 9 The objectives of the plan for heritage conservation include: i To identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement. ii To ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance and heritage items and their settings and heritage conservation areas. iii To encourage the restoration or re-construction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas. iv To provide for the detailed control of development associated with or in proximately to heritage items and heritage conservation areas. v To require when considered necessary the consideration of a statement of heritage significance for a conservation plan before consent is granted for development relating to a heritage item or development within a heritage conservation area. 10 The objective in relation to excavation of land includes: i To minimise any impact on the amenity of the neighbourhood. ii To avoid potential damage to neighbouring public and private land and buildings which may result from the proposed excavation works. 11 The subject site is zoned Residential (A) and this zone is characterised by dwelling houses and a diversity of residential allotment sizes. The objectives of the zone are:

a) To maintain the amenity and existing characteristics of areas predominately characterised by dwelling houses. 12 Clause 8(5) states that:

The council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as applied to that development. 13 Clause 9 requires council consent to the subdivision of land but consent is not required for subdivision under the Strata Titles Act nor is it required in the opinion of the council it involves minor re-alignment of boundaries or for consolidation of allotments. 14 Clause 10 states that:

A dwelling house shall not be erected on land unless it has a site area not less than the minimum allotment size indicated on the density map and it is 230 sq m. 15 The maximum overall height is contained in cl 12 that refers to a height map and for the subject site this is 9.5 m. 16 The excavation of land is referred to in cl 18: 1. When considering an application for consent for development involving the excavation of any land, the council shall have regard to how that excavation may temporarily or permanently affect: a. the amenity of the neighbourhood by way of noise, vibration, dust or other similar circumstances related to the excavation process, and b. public safety, and c. vehicle and pedestrian movements, and d. the heritage significance of any heritage item that may be affected by the proposed excavation and its setting; and e. natural landforms and vegetation, and f. natural water runoff patterns. 2. The council may decline to grant such a consent unless it has considered specialist reports, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation. 3. Consent for an excavation may be granted when consent is granted for any other development proposal for the carrying out of which the excavation is necessary. 17 Part 4 of the LEP contains the heritage provisions and cl 27 requires consideration as to the likely effect of the proposed development on the heritage conservation area when determining an application. Clause 28 requires a person in respect of a heritage conservation area not to: a. Demolish or alter a building or work within the area; d. Erect a building on or subdivide land within the area except with the consent of the council. 18 Subclause 2 requires the council shall not to grant consent unless it has taken into consideration the extent to which the carrying out of the proposed development would effect the heritage significance of the heritage conservation area and the council must consider a statement of heritage impact or a conservation plan or both as maybe required by the council. 19 The Paddington Development Control Plan applies to the subject site and this contains a set of guiding principles: * Paddington's sense of place and it's significance results from a multi-layered interrelation of various built forms and spaces and historical and social values. * Conservation of Paddington so as to retain its National heritage significance should be the foremost outcome of all development works. * The significance of a place whether it is a public space or private land needs to be identified, recorded and understood before policy is developed and before designs are prepared. * Paddington is a living place which will continue to undergo change. * Appropriate contemporary design is encourage and is necessary if change is to occur which respects the significant characteristics of Paddington.

20 The DCP has the following key elements: · An emphasis on the development context. · The use of general policy which applies to all development and specific policy which relates to building elements and building types. · The use of performance-based objectives and both specific general performance-based guidelines and controls. · The use of development options for some types of buildings in order to achieve the stated objectives 21 The DCP contains a note on to how to use the plan and states: As Paddington is a living place and will be subject to change over time, council seeks to encourage new development of a high design standard which respects the significance of the area. The statement of contemporary design emphasises the role of modern day design plays in the evolution of Paddington. Issues of contemporary design are relevant to development in the public and private domains. 22 For development in the private domain general policy applies to four key areas of a building and seven key development aspects. These are: - Street frontages - Side elevations to streets and lanes - Rear elevations in yards - Roofs

Key development aspects are: - Site coverage, setbacks and levels - Landscaping and private open space - Building height, bulk and scale - Acoustic and visual privacy - Land subdivision and site amalgamations - Stormwater management - Water conservation 23 The objectives of the DCP include - To provide guidelines and controls which seek to protect the significant character of Paddington and which encourage contemporary design which responds appropriately to that character. - To enhance amenity and heritage values within Paddington.

24 Part 2 of the DCP in understanding the context states: Paddington retains many significant types of buildings that represent all favour of the suburbs historical development. These building types range from modest, small scale workers cottages, to remnant examples of former gentry mansions, boom style middle class terrace houses, apartment blocks and contemporary in fill development all of which are set in a varied network of streets, lanes and pedestrian access ways which reflect the favours of subdivision and development. … Today Paddington has a high level of social esteem and is regarded as one of Sydney's most desirable inner city urban areas. The change in sociology demonstrates phenomenal variations in status and changes in community attitudes to the 19th century suburb. 25 The desired future character of Paddington heritage conservation area is + Retains the unique National heritage significance of Paddington and recognises it as a rare and distinctive urban area. + Reinforces the area as a special residential precinct. + Retains and promotes evidence of the historical development of the area and enables interpretation of that historical development + Retains the cohesive character evident in the low scale, high density built form. + Retains distinctive features such as parapets, chimneys, mixture of roofs, complex of roads, laneways and alleyways, consistency of colours, subdivision patterns and buildings which follow the landform and the distinctive patterns of terrace house groups. + Continues to cater for varied uses and building types within the residential area. + Exhibits contemporary design excellence.

26 In s 2.5 the DCP states: Contemporary design provides the basis for the continuing enrichment of the historic interpretation of Paddington by adding to our understanding of contemporary life as expressed in the built environment. Issues of the contemporary design are relevant to new development of a minor and major nature of both the public and private domains. Paddington is characterised by an extensive stock of 19th Century buildings. Paddington also has a number of significant buildings or building elements and public places representing the changing character of design from the 19th Century to the present. The presence of buildings and building elements representing the various design elements of the 20th Century enriches the character of Paddington and the interpretative aspects of its history. … The use of contemporary design approaches particularly for in filled development … must be able to achieve a completive relationship between new and existing urban fabric. 27 Part 5 relates to the private domain and comments that alterations to the rear of the properties are equally important as they can alter proportion, scale and cohesion in groups of buildings. Due to the topography rear elevations are often within general views. Section 5.1.3 sets out objectives for rear elevation with the: 1. To retain the form and character of traditional rear façade particularly where they exist in unaltered groups. 2. To promote rear alterations and additions of sympathetic design and construction. 3. To enable sympathetic contemporary design and use of contemporary materials in appropriate circumstances. 28 The objectives for street frontages are: * To retain the original street front elevations, yards and fences. * To restore or reconstruct missing elements to street front elevations. * To encourage the removal of uncharacteristic elements or structures. * To promote design that conforms to the existing character of the area. * To reverse inappropriate reconstruction work. * To retain the distinctive characteristic of groups of buildings. * To retain, restore and promote the significance, contribution and relationship of a building within the context of a group of buildings. 29 The guidelines include: * There is to be no alteration or additions made to the original forms, details and materials of street frontages, except for: * Restoration and reconstruction, where this is undertaken with appropriate skills and where the new materials are similar to the original in profile, size and finish; * The reversal of unsympathetic alterations, w here this is based on research not conjecture. The work should reinstate appropriate detail in the manner outlined for restoration work; * The improvement of the streetfront elevation of non-contributory buildings or elements. Applications will require a professional assessment of the building and the streetscape; and * Where sites are of such width to enable development at the sides. In such circumstances, no new structures are to be built forward of the existing building line. 30 The guidelines and controls for rear elevations are: * The height of an alteration and addition to the rear of a single storey building must be below the ridgeline of the main roof of the existing building. * Alterations and additions to a building which comprises one of a group must be designed with regard to the overall balance of the group in terms of height, alignment, form, scale, breezeway pattern and architectural character. * The roof of an extension or the new roof for an existing component must be of a skillion or gable form appropriate to the building type. * Alterations and additions at the rear of buildings: * Must not dominate or otherwise adversely compete with the form, height, proportions and the scale of that part of the building which is to be retained; * Must not reproduce or match a building which in terms of its height, bulk, scale and detailing is inappropriate to the heritage character of the area; * Must retain traditional solid to void ratios on elevations visible from the public domain; * Must not employ large areas of glass on upper levels; * Must be designed to minimise or avoid an adverse impact on neighbouring properties in terms of overlooking, loss of sunlight and ventilation; * Must not extend beyond the established building lines in a group or row of buildings. * Building boundary to boundary on the ground floor level is permissible provided that: * The development does not adversely affect the privacy, ventilation, light and the amenity of the adjoining properties; and * The development does not disrupt an existing, significant pattern of a group of buildings. 31 The objectives for roofs in 5.1.4 are: 1. To retain the character of the original roofscape Paddington. 2. To restore or reconstruct missing roof elements. 3. To encourage the removal of uncharacteristic elements or structures. 4. To promote sympathetic contemporary design in response to the historic character of the area. 32 The guidelines and controls include: - Existing patterns of roof forms within groups of unaltered buildings must be retained. - Roof forms are to reflect appropriate traditional roof forms. - Roof forms are to reflect appropriate traditional roof forms. - Roof materials must be of a traditional type and profile that is appropriate to the architectural style of the building. Traditional materials are encouraged. Contemporary materials may be used where they are similar in appearance and profile to traditional materials. - Roof forms and materials for in fill development shall be of a design and in materials that respond appropriately to relevant aspects of the historic context.

33 The objectives for site coverage setbacks and levels in 5.1.5 are: * To maintain setbacks along the street frontage. * To retain established building alignments, setbacks and levels. * To ensure that new development responds appropriately to established alignments, setbacks and levels. * To ensure that the siting of new development responds appropriately to levels established by relevant historic development in the streetscape. * To retain and protect front yards and their significant fabric. * To encourage the retention or creation of useable open space at the rear of sites. The guidelines include "siting and setbacks of structures and are to continue the immediate established pattern". 34 The objectives for landscaping and private open space: * To promote landscaping that contributes to the character of the conservation area. * To maintain an area at the rear of each site which enables planting at natural ground level and assists on-site drainage. * To ensure that provision is made for accessible and usable private open space at the rear of properties. * To encourage the provision of semi-permeable and permeable areas of open space in rear gardens to assist with on-site drainage. * To ensure that the design and use of private open space areas has regard to environmental impact, impact on the fabric of adjoining properties and impact on the amenity of the occupiers of adjoining properties. * To ensure that trees and other vegetation do not have an adverse impact on the fabric of buildings and works and have no or minimal adverse impact on the amenity of the occupiers of properties. 35 The guidelines for building height, bulk and scale in 5.1.7 includes the objectives: * To retain distinctive height, bulk and scale of particular building types. * To maintain established heights in historically significant streetscapes. * To ensure that the height of new development conforms to the appropriate heights in the street and the historic character of the street. * To minimise the impact of new development on the access of sunlight for private properties and public spaces. 36 The guidelines and controls for infill development states: Should have regards to its context and should conform to the height, bulk and scale of appropriate adjoining buildings … new development and additions must not create any additional overshadowing where solar access is less than two hours between 9am and 3pm at the winter solstice to habitable rooms, private open space. 37 In 5.1.8 the DCP provides for: "The acoustic and visual privacy needs of residents should influence all aspects of design, including the location of new building works, building scale, the placement of windows, the location of main living rooms in the building and the type of materials and constructions techniques." 38 The objectives are: + To ensure an adequate degree of acoustic and visual privacy in building design and. + To minimise the impact of new development on the acoustic and visual privacy of existing development on neighbouring lands.

39 The objectives for land subdivision guidelines include: + To retain existing subdivision and building patterns. + To retain public lanes and public passageways which service Paddington's pedestrian network. + To ensure that subdivision or amalgamation of sites provides an appropriate response to the relevant historic character of Paddington and the relevant aspects of its historical pattern of development. 40 The guidelines for land subdivision and site amalgamations includes: * A proposed subdivision of an existing allotment to create a new allotment or an amalgamation of a number of allotments must be of a size in area and dimensions which reflects the characteristics of historically relevant allotments adjoining and in the vicinity of the site. * Subdivision or site amalgamation should not compromise the setting of the existing building on the site or the setting of adjoining sites. * Subdivision or site amalgamation should not compromise the significant features of the existing site or adjoining sites, including streetscape, landscape features, trees, fences, outbuildings and gardens. 41 The DCP provides design suggestion for single storey buildings and includes: Pavilion additions should generally be single storey. A two-storey pavilion addition will be considered when it is not visible from the street and when it has negligible impact on the amenity of neighbouring properties in terms of loss of sunlight, and ventilation and when it does not adversely affect the setting of the building or dominate the existing building in terms of bulk, height and scale. 42 In the guidelines for garages and parking the objectives include: * To locate vehicle parking at the rear of properties, off laneways instead of along street frontage. * To ensure that the designs of garages, carports, fences and gates are sympathetic in their massing, form and scale to the relevant aspects of the historic context and setting of the building. 43 Section 5.3.1 provides guidelines for single storey buildings and the objectives include: * To retain single storey buildings. * To conserve the settings of single storey buildings.

44 The guidelines include: · Ground floor additions to the rear of single storey cottages should not compromise the form of the cottage. 45 The objectives for infill development in 5.4 are: * To encourage development on infill sites which reflects contemporary values and employs contemporary design, and through a design idiom, materials and construction technique provides an appropriate response to relevant aspects of the historical context of Paddington. * To discourage infill development on infill sites that does not achieve a cohesive relationship between new and existing urban fabric and which distorts and obscures the cultural; significance of the area. 46 The guidelines include: * Infill development is to respond appropriately to the relevant aspects of the existing overall character of the neighbourhood. It is to be based on a careful and thorough analysis of the neighbourhood. It is not to overwhelm its context. * Infill development must relate in terms of built form, materials and character to the existing urban fabric and to the public domain. * Align rear and side setbacks with existing patterns, where visible from the public domain. * Infill development should respond appropriately to the relevant aspects of existing context in terms of height, dominant ridge line and building envelope. * Infill development design solutions should employ materials, finishes, textures ad colours that respond appropriately to the historic context. Contemporary materials may be used in a co-ordinated manner and where their proportions, detailing and quantities are in keeping with the historic context. * Generally infill development design solutions should: * Use render and masonry; * Avoid large expenses of glass and reflective wall cladding; * Use roof cladding which conforms with contributing neighbouring development; * Avoid solid masonry front boundary walls; * Use colour schemes which reflect and draw references from the locality.

Evidence and submissions 47 For the applicant the following experts gave evidence: + Mr J. Vesico, consultant planner; - Mr G. Patch, heritage consultant; and - Mr V. Squillace, architect for the proposal. 48 On behalf of the respondent council evidence was given to the Court by: * Ms K. Higgins, heritage consultant; * Ms D. Fellows, council planner; and * Mr J. Mant, president of the Paddington Society.

49 On the site inspection the Court also heard from a number of residents who resided in Glen Street and in the vicinity of the subject site and the site inspection included viewing the objectors' properties to understand the relationship with the subject site as well as taking evidence on site. 50 The resident owners of number 36 Stephen Street, Mr John and Ms V. Richardson, architects expressed concern about the impact of the proposal in terms of overlooking and loss of privacy from the second floor and the terrace area of the proposal as well as the impact on the solar access to their property. Concern was also expressed as to the process of the application and the expectation that an applicant would consult neighbours in accordance with the DCP. Non-compliances with provisions of the DCP were also raised and it was stated that there is a reasonable expectation for people who live in Paddington as a conservation area that alterations and additions will comply with and respect the DCP. Inconsistencies and inaccuracies in the plans were also identified, for example the chimneys. The Richardsons stated that their courtyard at the rear of the property will be adversely impacted and that no development should be permitted along the northern boundary that exceeds the height of the existing fence/hedge as any further height will reduce access to sunlight and daylight. 51 Dr Wilson and Ms S. Wilson, architect, the resident owners of No. 26A, also gave evidence in the proceedings. Their concerns also included the lack of consultation in the formulation of the proposal and the anomalies in the plans. Their property is elevated and adjoins the rear boundary of the subject property and they object to the height of the rear addition and the visual impact of the 140m2 factory style flat metal roof proposed at their eye level and the adverse impact of the heat and glare from the roof. They also expressed concern about the structural integrity and the maintenance of the retaining stone wall near their property boundary. 52 Mr John Errey of no.10 Glen Street, in the submissions received in response to advertising, expressed concern about the impact of the proposed development on the privacy into the kitchen and family room and bathroom. He is also concerned about the noise created from the decks and the impact the proposal will have on the their views and the unique heritage backyard environment of Paddington. 53 Mr and Mrs Bubb of 12 Glen Street also made submissions and expressed concern about the proposed excavation and the rear of the dwelling being higher than the front and modern in appearance. They are also concerned about the proposed rear portion presenting as a solid wall to their boundary which is presently an open and green outlook and that this should be no urge to below the height of the fence. The deck and the potential for viewing into the living spaces of the Glen street terraces was also stated as a concern as well as noise issues.

54 Before the adjournment on the first day of the hearing the Court heard from the applicant's engineer and Mr Mant and concurrently heard evidence from the experts. On the first day of the proceedings the Court also met the parties and residents on-site and heard from a number of objectors to the proposal and viewed the subject site from their premises. 55 Mr John Mant, President of the Paddington Society gave evidence to the Court and advised of the society's approach to the philosophy behind the DCP. He stated: The purpose of the DCP is to protect and restore where necessary, the original fabric of Paddington as a Victorian suburb… and the DCP sets out very clearly what additions can and can not be approved. If you look at the diagrams in the DCP you can see that it not just the façade it's the whole building that is required to retain that original fabric, albeit with some additions permitted that fit with that fabric. It's not as I say just about the façade, its not just about the view from the street it is restoring Paddington as a Victorian suburb with some alterations that fit with that to take account of modern living. So the view from other residences is important as well as the view from the street. Commenting on the application in particular the applicants desire to have two large modern houses on the site is not a reason for the destruction of Paddington heritage… Looking at the streetscape the basement carpark is quite out of character with the street it is not something that would have been a part of a Victorian street … The garage door is invalid excrescence, which in doing up the houses should disappear and not be a reason for a very more substantial excrescence namely a full-scale basement carpark. The proposal of putting in the basement level is our view a high-risk strategy, which is inevitability will lead to the total demolition of the whole structure… The whole scheme is a serious over-development of the site, poor design and the over-development means there are a number of amenity issues for the neighbours… In closing the society would like to see the restoration of four single-storey terraces on the site as planned by the DCP, that is what the DCP assumes should happen and economically this is quite a practical solution in our view. 56 Mr Mant suggested that on the vacant lot a replica dwelling to the adjoining cottages should be constructed. Mr Mant said that the purpose of the DCP is to control alterations and additions in keeping with the original fabric. 57 Dr Robert Facioni an engineer gave evidence on the excavation proposed and was also questioned on the chimneys and the retaining wall at the rear. He confirmed that the excavation for the garage basement would be about 3.5 m below natural ground level and when he was questioned as to the risk for adjoining properties he answered that: Contiguous pile walls are used throughout Sydney. We have used them numerous times in sand. There is various versions… they are specifically designed to be installed in sands for situations where you are close to adjoining buildings.

He was further questioned by Mr Connell about not knowing what material is on the adjoining properties to assess the risk? In response he said: I am satisfied with the preliminary geotech advice but I know there is sand there. Anything found from further investigation would be better so if they found high level rock that would be an advantage, so what we have designed here is for the worse case scenario which is sand. 58 Mr Connell asked Dr Facioni about retaining the chimneys and he responded that the chimneys can be retained although this may involve expense and he would have to provide further engineering details including designing a temporary frame to hold up the facades and he confirmed that this would also be supervised. On the question of the retaining wall to the east of the property that adjoins No. 26A Dr Facioni commented that: There are two sections to that wall the southern eastern portion and the eastern retaining wall. Generally the eastern retaining wall… is in a stable condition in it existing state. What we are proposing to do is build a secondary retaining wall about 2 m from it's base that way we can lower our site by about a metre. I see no problem with that. The secondary retaining wall will take any lateral loads from the primary retaining wall and I think I've mentioned in the report any global slip circle failures are prevented by the slab on ground at the actual residential development…The other wall looks like its in poor condition… what I propose is to actually build a new retaining wall in front of that wall and basically render that wall passive and it is no longer required and just leave it in ground and I've given a construction a basic construction technique for building the new retaining wall in front of the existing one. 59 Dr Facioni provided further comments on the amended plans and stated: The new scheme does not create any new structural issues which need to be addressed … it eliminates the excavation below the existing townhouses which will simplify the construction process of the project overall. The existing townhouses will still require the stabilizing frame detailed in the previous report to ensure no cracking during construction and to support the roof while walls are removed … In my opinion there are no obvious or unusual circumstances which will prevent the proposed development from a structural engineering perspective, particularly having regard to cl 18 of the LEP. There is nothing unusual from my inspection of the site, review of the plans and the geotechnical report which would cause any greater concern than any other development of buildings in historical areas. 60 The heritage experts agree that the terrace houses currently standing on the site were built in circa. 1900 on land leased from the then Board of Water Supply and Sewerage. They were initially part of a terrace of eight dwellings, two of which were demolished at an unknown time between 1932 and 1966 due to the structural damage caused by subsidence as they were built over the main Bondi sewer line. At present Nos. 20-24 and Nos. 30-34 are six of the original eight terrace houses. Nos. 30 and 32 have been modified for use as a single dwelling. The experts agree that the removal of the brick work to the palisade fencing is a positive aspect of the proposal and that the removal of security grills to the windows would also be a positive outcome. They also agree that Stephen Street is a streetscape of value in terms of its contribution to the Paddington Conservation Area with most buildings dating from the late 19th and early 20th century. 61 With respect to the subdivision pattern the experts disagree in that Ms Higgins is of the view that the historical terrace house pattern of Nos. 30-34 reflect the traditional terrace house subdivision in Paddington even though the terraces were constructed on a single lot. Mr Patch maintains that the current subdivision occurred post the construction of the terraces and that the historical subdivision is more pertinently associated with ownership. The historical subdivision that relates to the terraces is that of the time of the resumption of the land by the Minister for Public Works in 1882. 62 On the issue of the garage element Ms Higgins maintains that while the existing roller door and high fence at Nos. 26-28 does not make a positive contribution to the streetscape this should not be used as a reason for further incompatible development. Mr Patch maintains that the net effect of the removal of the existing fence and the vehicular entrance and its replacement by the proposed built form will have a beneficial impact on the streetscape. He maintains that a move from the status quo should not open an avenue for compulsion but rather that the aim should be for the benefit to the public realm on balance. Ms Higgins considers that the proposed basement parking garaging element and front wall, are not visually consistent with the adjoining existing front fences/ retaining walls in the streetscape and the conservation area. 63 Ms Higgins is of the view that it is possible to design a contemporary building which has a pitched rather than a flat roof and that a rear addition with a pitched or skillion roof would be more compatible with the character of the area.

Amended Plans 64 On the first day of the hearing following the site inspection the applicant foreshadowed an amendment to amongst other things to re-design the rear flat roof, and set the garage door back from the street boundary and provide refined details of the presentation of the cottages to Stephen Street and provide a sample board of materials finishes and colour. The respondent raised no objection to this course of action and the applicant agreed to pay a sum of $3,000 to the respondent as a consequence of the amended plans. 65 Prior to resuming the hearing the Court allowed the intervenor objectors (the Richardsons and Wilsons) to be joined in the proceedings to bring limited evidence in respect of the Paddington Conservation Area and the amended plans. The Order included the report and expert evidence of Mr Howard Tanner, a consultant architect heritage specialist on behalf of the Richardsons and Wilsons. 66 During the adjournment the resident objectors were provided with the opportunity to comment further on the amended plans and at the time the Court resumed the hearing it again met on-site with the parties and residents to observe the indicative height poles that had been erected.

67 The joint heritage experts agreed that the relocation of the garage door by way of setting it back further from the street boundary was an improvement because the garage door portal will be less prominent. However, Ms Higgins considered it should be in line with the verandah wall. With respect to the redesign of the rear roofs Mr Patch considers that it is similar to the prevailing rear roof form of existing service wings. However, Ms Higgins considers that the extent is still too large and that it will still be clearly visible from neighbouring properties. 68 The planners agree that the bulk of the proposed new works to the existing cottages are limited to the rear and below the building and that new works to the front have the effect of: * Demolition of the unsightly and intrusive masonry in-fill to the fencing and the replacement with palisade metal fencing consistent with the original features of the building. * Removal of the elevated filled terraces which are to be replaced by 'at grade' landscaping. * Painting and new colour scheme to the front façade and * Re-tiling of the original roof. 69 The planners agree that the basement carpark is not discernable from the street. On the question of excavation the experts agree that subject to proper engineering design and supervision there are no planning objections to the proposed excavation and structural works. They also agree that whilst the rear setbacks are minimal, in an inner city urban context this is not unusual and there is no consistent or de-facto rear building alignment within the area. With respect to the proposed garage and terrace above this should be setback at least 1.2 m from the front boundary to further improve the existing situation. The planners agreed "the amended plans provide for a number of positive improvements including; a reduction in the size of the first floor deck to house 1 with an increase in the setback to the southern boundary together with screens reduction in floor levels ensures that there will be minimal privacy impacts; the rear addition is now designed as a contemporary interpretation of a traditional form of rear addition and minimises the expanse and visual bulk of the roof when viewed from properties above; and the shadow diagrams have been amended and include plan and elevation shadows which indicate that there will be no increased overshadowing into the living areas of no36." . 70 The planners also agree that flexibility and innovative and contemporary architectural expression is advocated in the DCP particularly where it is not visible from the street. However, consideration of visual appearance is also to be considered from adjoining properties. On the issue of privacy they agree that the use of translucent glass screens and planter boxes will ameliorate the privacy impacts to No. 36. 71 Council's development engineer provided comments on the vehicle access and noted that the driveway will require a redesign in accordance with the Australian Standard. Other condition that have been recommended by the technical services include site drainage disposal conditions, on-site detention requirements and geotechnical structural and hydrological conditions and geotechnical monitoring as well as the need for a dilapidation survey for a number of adjoining properties. 72 Mr Howard Tanner prepared a Statement of Evidence and gave oral evidence to the Court on behalf of the intervening objectors in the proceedings. Mr J & Mrs V Richardson of 36 Stephen Street, resident owners of the property to the north and Dr T and Mrs S Wilson of 26A Stephen Street, the resident owners of the property to the east. Mr Tanner states: Number 36 was constructed c. 1884 and is a two storey dwelling with simple verandahs and decorative gables. Number 26A was constructed c.1910 and it has a typical two storey Victorian character in a garden setting on its historic platform, the latter providing an open outlook west towards major trees…the freestanding residences of Nos. 36 and 26A Stephen Street are the dominant buildings in the townscape adjoining 26 and 34 Stephen Street. While the preservation of the single storied scale of the workers' cottages is one heritage consideration, the protection of the amenity and circumstance of these two buildings and their environs is another. … the amenity (sunlight ventilation) of No. 36 Stephen Street is adversely affected by the proposal while the fine garden setting, the verdant outlook to the west, and the general prominence in the townscape of No. 26A will be adversely affected by the proposal…the proposed infill can be shown to not achieve a cohesive relationship between new and existing urban fabric and to distort and obscure the cultural significance of the area. 73 In conclusion Mr Tanner states: In my experience a proposal which has several minor non-compliances, or can be shown to have little or no adverse impact on the public interest or on the neighbouring properties, can endeavour to put forward a merit case to council. However, in my view, this application has far too many non-compliances to be considered in this way. Accordingly it is my view that refusal is the correct outcome. However, should the Court consider approval, I would recommend the following: · To reduce the impact on the setting and outlook of No. 26A. The rear pavilion element be lowered so that no part is higher than the existing ridge of 30-34 Stephen Street … this will ensure that No. 26A's outlook and general historic townscape is maintained. · To reduce the impact on the setting and outlook of No. 36. The rear elements be similarly lower as proposed above: the external stair fronting the southern or common boundary with No. 36 be deleted, the first floor study be deleted. The related access stair be relocated north adjacent to the family room and privacy screens be introduced along the southern edge of the upper deck. These measures will give some weight to ensure privacy and light and air to No. 36. The impact of the proposed development on the adjoining properties must also be looked at in the context of the significance of Paddington as a conservation area and this includes viewing the proposed new building elements from adjoining properties. 74 Mr Tanner considers that the maximum RL of the rear ridges should be 20.6 as this would benefit both neighbours 26A and No. 36. Mr Squillace, considers that 250 mm reduction would address Mr Tanner's concerns. Mr Tanner and Mr Squillace agreed that a 1.6 m screen would resolve privacy concerns to adjoining neighbours except for the area of the study where they agree a 1.6 m sill height would address privacy/overlooking to No. 36. 75 When the hearing was resumed on the amended plans, Mr Connell was asked to identify the principal contested issues and he responded by saying that the broad issues are: the impact of the development, including the basement parking, on the heritage conservation area; and the impact of the additions at the rear on the amenity of adjoining properties.

76 The Paddington Society in response to the amended plans stated as follows:

Notwithstanding the amended plans, the Society remains of the opinion that the application should be refused. Tweaking the original design of the present application cannot make it comply with fundamental controls in the Paddington DCP …. .

The proposal to put a basement level is a higher risk strategy that is most likely to result in the total demolition of the whole structure … basement carparks are not a feature of traditional Paddington Streets and should not be permitted. .. The DCP is not just about facardism and the view from the street. It is about retaining the whole form of the Victorian era buildings including those parts that may only be seen from other residences. The desire to have two large modern houses is not a reason for destruction of Paddington heritage.

The whole scheme is pooly designed and is a serious over development of the site. Accordingly there are amenity issues for neighbours which result from failures to comply with the DCP. Assessment and Findings 77 I have assessed the proposed development under the provisions of the Woollahra LEP and given "genuine proper and realistic consideration" to Development Control Plan for Paddington. I have also considered all the evidence to the Court including the submissions of the residents and the Paddington Society and the site inspections. 78 The Paddington DCP provides guidelines that recognise the uniqueness of the area and its importance in terms of its National heritage and provides guiding principles including "Paddington's sense of place resulting from a multi-layer inter relation of built forms; Paddington is a living place which will continue to undergo change and appropriate contemporary design is encouraged and if change is to occur it is to respect the significant characteristics of Paddington". 79 Figures 7 and 8 depict schematically the proposed rear additions when viewed from No. 26A and No. 36. With respect to the outlook from No. 26A I am satisfied that lowering the building by some 250 mm such that the maximum RL of the roof at the rear is 20.75 will ameliorate the proposal when viewed from adjoining premises. While this is 150 mm higher than Mr Tanner's recommendation I am satisfied that when viewed from No. 26A and from the streetscape, the proposed roof and built elements will not have an adverse impact on the outlook from No. 26A and the general historic townscape would be maintained. Number 26A has the advantage of being significantly elevated and the verdant outlook to the west and the more distant views will not be impacted. The introduction of a built element in the rear yard of the subject site will represent a change to the occupants of No. 26A but in my assessment I am satisfied this will not have a significant impact on the enjoyment and amenity of No. 26A or the conservation area and it will not 'distort and obscure the cultural significance of the area'. The proposed roof is passive in its design and will not be intrusive when viewed from adjoining properties. 80 The proposed building form at the rear of the subject site will also be visible from No. 36 as seen at Fig. 8, in particular from the first floor of No. 36. However, based on the evidence in my assessment the impacts are not significant and the amenity of No. 36 including access to sun, light and ventilation will not be significantly impacted. Once again the introduction of a built element in the rear yard represents change, however, this element does not result in unreasonable impacts. To further ameliorate any opportunity for overlooking of No. 36 the stairs on the southern boundary to the rear deck should be deleted and the window to the study area is to have a condition imposed of a 1.6 m minimum sill height. However, deletion of the study or moving the western wall in my further assessment is not required given the juxtaposition of the properties and boundary walls. The proposal in my overall assessment is 'an appropriate form of development of a contemporary design at the rear consistent with Paddington as a living place that will continue to undergo change'. 81 While the DCP emphasises the conservation of Paddington as a living urban environment with the built form reflecting changes over time, however, in the opinion of the Paddington Society preservation should be emphasised. The glossary at the rear of the DCP includes the following: conservation "means all the processes of looking after a place so as to retain its cultural significance. It includes maintenance and may according to circumstance include preservation, restoration, reconstruction and adaptation and will be commonly a combination of more than one of these (Burra Charter)"; and preservation "means maintaining the fabric of a place in its existing state and retarding deterioration (Burra Charter)". As can be seen conservation may include preservation but is much broader to accommodate the need to conserve Paddington as a living urban environment. 82 I have given significant weight to the development control plan in my evaluation of the application and indeed I have given 'proper genuine and realistic consideration to the provisions of the DCP in accordance with the principles established in the Court of Appeal judgement of Zhang v City Canterbury [2001] NSWCA 167 wherein Spigelman Chief Justice made the following comments at paragraphs 70 to 77.the In order to "take into consideration" the particular provisions of DCP 23, the commission was under an obligation to consider the fact that the DCP established a standard….and that that standard was designed to serve the objective…of ensuring that... The statute required the commissioner to consider that standard in conducting the evaluation under s79C(1). The statutory power in the section 80 of the act "to determine a development application" by granting or refusing consents does not confer an unfettered discretion. It is subject to the obligation to "take into consideration" the matters identified in s79C(1) . This obligation is of a similar character to that which has been found to be imposed by statutory obligation to "have regard to" identified matters… A development control plan is not an environmental planning instrument (see definition in s4). Accordingly, the requirements in s80(2) that a consent authority "must refuse" an application that would "result in a contravention of" such an instrument does not apply to a development control plan. Furthermore, the proscription by s76B 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 a consent authority's discretion under s79C(2). The consent authority has a wide ranging discretion -one of the matter is required to be taking into account is 'the public interest' -but the discretion is not 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 application of the consent before the council…was entitled to significant weight in the decision-making process but was not, of course determinative. There was a relevant and applicable "standard" which he was obliged to "take into consideration". It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations… 83 The architectural design of the proposal, as shown in figures 4, 5 and 6, has merit as it provides for the rhythm of the cottages in the streetscape to be reinforced by the missing link and provides accommodation and amenity consistent with current standards while not unreasonably impacting on adjoining properties, in particular 26 A. and 36 Stephen Street. Similarly I am satisfied that the proposal when viewed from the row of terraces in Glen Street to the south will not dominate the outlook from these properties and will not create privacy or overlooking concerns having regard to the topography and separation distances. As could be observed on the view the urban fabric of Paddington is such that there is a degree of mutual overlooking and this is not uncharacteristic of the precinct.

84 I agree with Mr Patch that "given the diversity of types and size of buildings that are visible from the rear yards of the dwellings in the vicinity of the site, the proposal will be of a nature that is consistent with this diversity" From the aerial photograph it can be that the roofscape of the area contains elements of flat and gable roofs and the proposed roof will not be out of character with the range of both roof forms and scale . Mr Patch summarises by saying that "the amendments have positive impacts on the proposal and constitute refinements in design to what is an eminently supportable development and is one that will have minimal impacts on what is a relatively diverse part of the Paddington Conservation Area". 85 I am satisfied the proposed development will make a positive contribution to the streetscape and is an appropriate 'infill' development for the site, currently occupied by a garage and fence, as it will provide the missing link in the traditional workers cottages to the north and south. The 'infill' cottage respects and reflects the form, rhythm and proportions of the existing cottages and the garage door element will not be out of character or foreign in this streetscape as can be seen in the third photo at Fig 3.

86 From the photographs at figures 2 and 3 it can be seen that the area contains a variety of dwelling forms from: prominent large residences at numbers 36 and 26A; the row of substantial terraces in Glen Street; to the workers cottage on the subject site and to the north, and these all make a significant contribution to the heritage conservation area. Opposite the site to the north is a modern/contemporary building with a double garage built near the boundary alignment and this is just one of several sites that provide off-street car parking. There are also residential flat buildings in the vicinity as seen on the aerial photograph at Fig. 1 that do not make a positive contribution to the conservation area and indeed are out of character with the area. While these also form part of the context for the assessment of the proposal, at the same time, it is important for future development to be consistent and compatible with the Paddington conservation area so as to retain its National heritage significance". On the basis of the evidence to the Court the proposal as amended in its context warrants approval and is not inconsistent with retaining the conservation area of Paddington.

87 The principles and guidelines as currently set out in the DCP do not mandate or call for buildings to be 'replicated' nor do they call for no change and complete preservation but rather an approach that accommodates contemporary design with the emphasis on conserving Paddington as a living urban environment. In my assessment the proposal is not contrary to a holistic reading of the DCP and is consistent with the overall guiding principles cited above.

88 Departures from, or non-compliances with, the DCP either individually or in combination in my assessment would not warrant refusal of the application. The departures do not adversely impact on the significance of the heritage conservation area, when viewed from both the public and private domain. I am also persuaded by the evidence presented on behalf of the applicant that the proposal will not unreasonably impact on the visual and acoustic privacy and amenity of the surrounding properties with the amendments and conditions proposed. And furthermore the departures from the DCP do not create significant impacts to warrant refusal. 89 The design and provision of the basement carpark in my assessment is not inconsistent with the provisions of the DCP and will not be intrusive in the streetscape nor detract from Paddington as a conservation area. The design of the basement parking means that the off-street parking for five vehicles is unobtrusive and not dominant/ prominent in the streetscape and indeed it will appear as a recessed single garage door. The intent and spirit of the DCP does not prohibit the provision of garages but rather the conservation area should not be adversely impacted by garages and in the context of this streetscape the proposed garaging is not out of character with the existing streetscape with the presence of other off-street parking. Indeed the parking provision for the proposal is discrete and will not impact on the conservation area and this aspect of the proposal would not warrant refusal of the application 90 With respect to the subdivision pattern I am satisfied that the consolidation of the lots will not undermine the conservation area as the built form will present as four cottages to the streetscape. Furthermore, consolidation into two larger lots will not be atypical of the subdivision pattern for this part of Paddington that is clearly distinguished from other parts of Paddington characterised by many rows of Victorian terraces that respond to the topography on separate allotments to provide an urban environment of fine grain. 91 Therefore in all the circumstances of this case, in my assessment based on the evidence, the proposed consolidation will not undermine the general subdivision pattern of this precinct. As can be seen from the aerial photograph figure 1 the size and configuration of the sites in the vicinity have a significant range. And over time there have also been changes in the subdivision for the subject site, for example Nos. 30 to 34 were originally constructed on a single lot and later subdivided and of more recent times two of the cottages have been combined into a single dwelling. The current proposal is for two dwellings and currently there are two dwellings on the site.

92 The presentation of the existing cottages to Stephen Street and the infill development with the cottage of similar proportions to the workers cottages either side, and the garage door setback from the boundary, in my assessment will enhance the streetscape and the rear additions/pavilions will not be visible from the street. Both Mr Tanner and Mr Patch and the planners raised no objection to the streetscape presentation of the in-fill development. Ms Higgins and Mr Patch agreed on a number of works to reinstate and enhance the presentation of the existing cottages in the streetscape. However, evidence for the council of Ms Higgins and the Paddington Society are of the opinion that the garage and basement parking and the subdivision are not consistent with the Paddington heritage conservation area. Ms Higgins agreed that the reconfiguration of the basement parking has the benefit of limiting the excavation to not occur under the existing fabric and while she considered the setback to the garage door reduced its prominence in her opinion it should be setback further. I am satisfied in terms of the DCP that the proposal makes a positive contribution to the heritage conservation area of Paddington in the context of the Stephen Street streetscape and that the setback as now proposed is appropriate.

93 In terms of the Clause 8(5) of the LEP I am satisfied that the proposal is consistent with the objectives of the plan and zone and the heritage provisions in clauses 27 and 28 as cited above. I have also considered the proposal in terms of clause 18 relating to excavation and I am satisfied with the conditions proposed this will not adversely impact on the site or adjoining properties, including the heritage conservation area. Conditions 94 I note the comments of the engineer of technical services in the referral response on the amended plans where he states that: The revised architectural plans issue H dated 15/11/05 show a revised underground car parking layout, including a vehicle turntable to reduce the amount of excavation. The carpark layouts, turntable and bay dimensions are satisfactory Gradients … as the boundary levels are not to be changed then the driveway access will require a redesign. Due to the room internally this should be readily achievable. Conditions covering these matters have been added… 95 Given the critical importance of relative levels for the proposed development and the requirement to reduce the rear ridge level by 250 mm it is appropriate, both for ensuring certainty in the planning process and consistency with plans, that amended plans be prepared to satisfy a 'deferred commencement' condition. The gradients of the driveway, access, and footpath crossing are also to be shown in long section to be submitted for the approval of council's technical services engineer as part of the deferred commencement condition. The amended plans are to show: the lowering of the rear addition by 250 mm such that the ridge is at RL 20.75; the deletion of the stairs to the upper terrace on the southern boundary; and the sill height of the study to house1 to be a minimum of 1.6m above finished floor level.

96 The other conditions in Annexure 'A' are as generally agreed between the parties. Orders 97 Accordingly on the basis of my assessment above, the formal orders of the Court are: 1. The appeal in respect of the property known as 26-34 Stephen Street, Paddington, is upheld.

2. The development application submitted to Woollahra Municipal Council, and as amended, is determined by the granting of consent subject to the 'deferred commencement' and other conditions contained in Annexure "A".

3. The exhibits with the exception of 1, 2, 19 and M are returned to the parties.

              J S Murrell
              Commissioner of the Court
              Ljr/rjs
      Figures:
              Fig. 1 Aerial photo
      Fig. 2 20-34 Stephen Street
      Fig. 3 5 - 7, 13 and 36 Stephen Street
      Fig. 4 Site and roof plan of proposal
      Fig. 5 Street elevation and rear elevation
      Fig. 6 North and south elevations
      Fig. 7 Outline of proposal from No. 26A
      Fig. 8 Outline from No. 36

24/04/2006 - Typographic corrections and reference to figures - Paragraph(s) 5, 53, 85, 92

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