Redford v Woollahra Municipal Council

Winten Property Group v North Sydney Council [2001] NSWLEC 46; CASES CITED: Mansie v Willoughby City Council, 10853 of 1995, 14 February 1996.

APPLICANT Mr M. Astill, solicitor SOLICITORS Blake Dawson and Waldron

RESPONDENT Mr M. Connell, solicitor SOLICITORS HSW incorporating Michel Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10204 of 2005 Peter Redford and Domenica Redford v Woollahra Municipal Council

JUDGMENT 1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of Development Application No. 741/2003 for alterations and additions to an existing dwelling at No. 106 Glenmore Road, Paddington (the site).

2 We record that an inspection of the subject site and surrounding area was undertaken on the morning of the hearing in the company of representatives from both parties.

3 The site is located on the northern side of Glenmore Road and has a street frontage of 12.841 m. Its southern boundary adjoins a rear lane with a frontage of 13.41 m. The western side boundary is 28.215 m and the eastern side boundary is 20.295 m, giving a total site area of 322 sq m. A fall of some 3 m occurs from Glenmore Road to the rear lane.

4 The site is currently developed with a part one and part two-storey residence, having a single storey presentation to Glenmore Road and a two-storey presentation to the rear lane. It is an inter-war cottage although extensively altered as a result of recent renovations. The cottage is located between a row of late-Victorian generic Paddington style terrace houses and a remnant mid-Victorian mansion known as Lamamuir.

5 The predominant form of development consists of residential terrace housing although there are some non-residential uses such as an art gallery in the vicinity. One art gallery adjoins the subject site to the west on the street boundary and directly in front of Lamamuir.

6 The proposal provides for alterations and additions to the existing dwelling. This involves the demolition of the existing tile roof and the addition of a first floor extension with a pitched roof occupying most of the footprint of the existing ground floor. New balconies are proposed for the Glenmore Road and rear lane facades. The Glenmore Road balcony is to be located within a parapet that extends beyond the balcony and aligns with the existing front of the building. Part of the paved rear courtyard area outside the existing garage will be covered by a new reinforced concrete roof.

7 The subject site is zoned Residential 2(a) pursuant to Woollahra Local Environmental Plan 1995 (the LEP). Clause 2 provides aims for the plan. Clause 8(5) provides that consent shall not be granted unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the plan and the zone in which it is located.

8 Clause 12 provides a maximum height of 9.5 m for the subject site and cl 12AA provides objectives for the building height controls. There was agreement that the proposed development exceeds the maximum height limit of 9.5 m. In response, the applicant provides an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to show why the development standard is unnecessary or unreasonable in this instance.

9 Clause 27 requires consideration to be given to the likely effect on the heritage significance of a heritage item or heritage conservation area in its setting, although no specific heritage items were identified as being potentially affected by the proposed development.

10 Clause 28 provides requirements for development within heritage conservation areas and is relevant as the subject site is located within the Paddington Conservation Area.

11 The Paddington Development Control Plan (the DCP) also applies and provides detailed controls for development in the area. Section 5.1 provides general policy for existing buildings and infill development and s 5.4 specifically addresses infill development.

12 The council filed a Statement of Issues containing 13 issues including a number of sub-issues. These can be grouped into the following main areas:

1. whether the SEPP 1 objection to the height standard is well founded. 2. whether the design of the proposal is acceptable considering its location in a heritage conservation area. 3. whether the design provides sufficient soft landscaping. 4. whether the proposal creates unacceptable amenity impacts on adjoining properties.

13 Of the other issues, the matters raised by objectors and the public interest are addressed as part of the consideration of the above issues.

14 In considering these issues, Directions were given that no evidence was to be provided, although the relevant council officers were to attend the site view. The Court relied on the documents provided by the parties in their respective bundle of documents. For the council, these included the original assessment report and the s 82A review report, and for the applicant a heritage impact statement.

15 In terms of the height requirement, cl 12 of the LEP provides for a maximum height of 9.5 m. The proposed development has a height of 12.1 m, thereby exceeding the maximum height by 2.6 m. The departure consists mainly of the hipped roof form. The SEPP 1 objection provides the following reasons why the departure from the development standard is unreasonable and unnecessary in this circumstance. These are: + this application is a subsequent submission for council's assessment of a revised design which alters the building footprint, roof shape and cosmetic appearance of the external façade. + the conditions of non-compliance to the above numerical control within the previous application still exists in the design contained in the revised application. + this circumstance causes any proposal which applies for a second storey when viewed from the street frontage on Glenmore Road to be in non-compliance with the height standard towards the rear because of the fall in terrain from front to rear boundaries. The proposed roof ridge is positioned lower than the existing surrounding dwellings which are of greater overall height than that proposed.

16 The appropriate manner of dealing with an SEPP 1 objection is found in the judgment of Lloyd J in Winton Property Group v North Sydney Council [2001] NSWLEC 46 at par 26 where a number of questions are posed. The first question asks, whether the subject planning control is a development standard? In this regard there was no dispute but that the answer to the question was yes.

17 The second question asks, what is the underlying object or purpose of the standard? On this question there was also no dispute as cl 12AA contains specific objectives for the height development standard.

18 The third question asks, whether compliance with the development standard is consistent with the aims of SEPP 1? This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5A(i) and (ii) of the Environmental Planning and Assessment Act.

19 The fourth question asks, whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case? The fifth and final question asks, whether the objection is well founded?

20 Putting aside whether the SEPP 1 objection is properly constructed, and this is not without some doubt, the relevant objectives relate to compatibility with the adjoining residential neighbourhood (Objective (b)), special qualities of the streetscape (Objective (e)), and sunlight access and overshadowing (Objective (d)). Objectives (b) and (e) overlap to some extent the issues relating to the impact on the heritage conservation area because the neighbourhood and streetscape consist largely of Victorian terrace houses and importantly Lamamuir. It is within this context that Objectives (b) and (e) must be considered.

21 The council sees the height as creating a dominant element in the streetscape and appearing as three storeys at the rear. The proposal is not seen as appropriate infill development as it is not recessive in its form, although the more simplified hipped roof form is more appropriate than previously proposed roof forms. As the roof exceeds the height limit of 9.5 m by 2.6 m, it contributes unacceptably to the bulk and scale of the proposal. Importantly, the roof is seen to block views of the adjoining buildings when viewed from most locations on Glenmore Road.

22 Any reliance on the adjoining buildings to support the proposed height should be rejected as the present form provides an appropriate setting for the adjoining significant heritage buildings. For these reasons the council concludes that the SEPP 1 objection is not well founded.

23 The applicant's heritage impact statement comes to a different conclusion. It states that the overall height has been reduced from previous proposals with the adoption of a simpler roof form of lower pitch. The ridgeline and eaves are lower than adjoining buildings. These changes have resulted in a building that is now well scaled within the streetscape and respects the scale and bulk of the adjoining contributory buildings.

24 In balancing the opposing views and with the benefit of a site view, we are persuaded by the council's evidence that the proposed height is inappropriate because of the unacceptable impact on the streetscape and the character of the area. We accept that the height will create a building form that will detract from the setting of Lamamuir and disrupt the relationship with the adjoining terrace buildings.

25 We agree with the council that neither Lamamuir nor the adjoining terraces should be seen as a cue for supporting the height proposed in the application. The status of the existing buildings as a neutral contributor to the streetscape will be lost and it will assume a more dominant and imposing role, inconsistent with the special qualities of the streetscape and the character of the area. In our view the proposal is inconsistent with Objectives (b) and (e).

26 Objective (d) relates to overshadowing and loss of privacy. We are not convinced that the breach of the height development standard contributes to any loss of privacy. However, the additional height creates additional shadowing on the front yards of both adjoining properties. The additional impact is however, not that significant that it would be a reason to make a finding of inconsistency with this objective.

27 In relation to the SEPP 1 objection, we find that strict compliance with the development standard is not unreasonable and unnecessary in this particular case, and that the SEPP 1 objection is not well founded. Consequently the appeal must fail.

28 In addressing the issue of height, the Court was referred to the judgment of Commissioner Brown in Appeal No. 10112 of 2003. This appeal related to the alterations and additions to the same dwelling. In this case the SEPP 1 objection to vary the height standard was found to be acceptable and the SEPP 1 objection well founded. As this was referred to by Mr Astill, the applicant's advocate, it is appropriate that the decision to not support the SEPP 1 objection in this case be explained. In our opinion, the two matters can be clearly distinguished.

29 In the previous case the roof form was different and consisted of a parapet at the upper level. The height exceeded the 9.5 m height limit by 1.3 m rather than 2.6 m. Of some importance was the fact that the parapet roof form satisfied the 9.5 m height level requirement at the Glenmore Road frontage. The departure occurred at the rear of the site and was not overly noticeable from Glenmore Road.

30 It is important that the current appeal be considered on its individual merits rather than relying on comments in a previous judgment, as the previous determination can have no influence on the determination of this appeal (see Mansie v Willoughby City Council, 10853 of 1995, 14 February 1996).

31 In relation to the impact on the heritage conservation area, the council's position is that the proposal is out of character for a number of reasons. The parapet roof form is a neo-classical theme and is contrary to the established character. The additional storey at the rear is also very tall and adds considerable bulk to the building. This added bulk will obscure the view to Lamamuir along Glenmore Road and will have an adverse impact on the aesthetic and historic significance of this building. While there are no identified heritage items in the vicinity of the site, Lamamuir is an important building in the street and makes a significant contribution to the heritage qualities of the area and the Paddington Conservation Area.

32 The additions reduce the setback at the upper level, pushing the building in front of Lamamuir and the adjoining terraces, and further obscuring views of these properties. Generally, the council sees the building as creating a prominent element in the streetscape and diminishing the prominence of Lamamuir and to a less extent the terraces. The proposed building is a non-contributory element in the conservation area and therefore should be treated as such. It should be recessive rather than prominent and intrusive.

33 The applicant's heritage impact statement takes the opposite view. It states that with the proposed set back and simplification of the first floor level and the adoption of a simple hipped roof form, the proposal now responds well to the adjoining buildings and could no longer be seen as over-scaling in the streetscape. The height of the ground floor element is basically a reworking of the existing single storey dwelling and responds to the scale of the single storey shop immediately to the west. Overall, the proposal will respect both the streetscape in Glenmore Road and the Paddington Conservation Area.

34 The design of the proposal and how it responds to its context was the principal issue in the proceedings. The LEP and the Paddington DCP provide a number of specific requirements for the assessment of the development application. Clause 8.5 states that consent shall not be granted unless the court is satisfied that the development is consistent with such objectives of this plan and of the zone. The heritage conservation plan objectives are found at cl 2(g). The relevant plan objective is cl 2(g)(ii) and seeks "to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings, and of heritage conservation areas."

35 The relevant zone objective is Objective 3(a) that seeks to "maintain the amenity and the existing characteristics of areas predominantly characterised by dwelling houses."

36 Clause 28(2) states that consent shall not be granted unless the Court has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. In relation to the significance of the heritage conservation area, cl 2.1 of the DCP contains a detailed description of the area's significance. Clause 2.3 of the DCP sets out the desired future character for the conservation area. In part it seeks to "retain the cohesive character evident in the low scale, high density built form, retain distinctive features and achieve a character that exhibits contemporary design excellence."

37 The DCP contains a number of relevant requirements. Part 5.1.1 addresses street frontage, Pt 5.2.3 addresses rear elevations and yards. Pt 5.1.4 addresses roofs, Pt 5.1.5 addresses site coverage, setbacks and levels, Pt 5.1.6 addresses soft landscaping and Pt 5.1.7 addresses building height, bulk and scale.

38 Without diminishing the individual requirements of each of these parts of the DCP, the general approach is to provide development that has regard to its context and the significance of the Paddington Conservation Area. In this regard we can comfortably conclude that the proposed development does not satisfactorily address this general approach of the DCP.

39 The comments previously made on the height are exacerbated by the unsympathetic design, particularly the parapet along Glenmore Road. It is an unsympathetic element in the streetscape and is clearly noticeable when travelling along Glenmore Road in both directions. In our opinion the building will unnecessarily compete with the more significant buildings on either side, with the effect that their significance will be unacceptably diminished. The effect of the parapet is also to exacerbate the hard rectangular features of the adjoining shop, creating a strong horizontal band of development near the street frontage. This feature is inconsistent with the form of development in the neighbourhood.

40 In our view the proposal is also generally inconsistent with the setting of freestanding dwellings where these dwellings typically sit in a more landscaped setting with a less imposing presence. 41 For these reasons we find that the proposal is inconsistent with the plan Objective at cl 2(g)(ii) and zone Objective 3(a). In accordance with cl 85, consent cannot be granted.

42 For the reasons in the preceding paragraphs it is not necessary to deal with the other issues. However, we make the following comments. We accept that the potential for overlooking exists from the proposed front and rear balconies, and while screens could be placed on the balconies to restrict overlooking, these features could further unacceptably impact on the bulk and scale. Clearly a better option is for the designer of the building to address this issue as an integral part of the design.

43 For these reasons the Orders of the Court are: 1. The appeal is dismissed.

2. Development Application 741/2003 for alterations and additions to an existing dwelling at 106 Glenmore Road, Paddington is refused.

3. The exhibits are returned with the exception of Exhibits 1 and 2.

      G T Brown
      Commissioner of the Court
      ___________________
      Annelise Tuor
      Commissioner of the Court

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