Heritage Preservation Decision: Development Approved with Modifications

The Court approved a development application for alterations and additions to a heritage-listed property in Woollahra, NSW, after considering modifications to address concerns about heritage preservation and compliance with environmental planning policies. The application was initially refused by the Woollahra Municipal Council due to concerns over the impact on the heritage significance of the conservation area and non-compliance with the floor space ratio control.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] and [NAME] v Woollahra Municipal Council [2006] NSWLEC 760

APPLICANT [NAME] and [NAME] PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10680 of 2006

CORAM: [NAME] C

Development Application :- Alterations and additions, impact on heritage significance of the conservation area KEY ISSUES: SEPP 1 objection to floor space ratio standard excavation overshadowing

LEGISLATION CITED: State Environmental Planning Policy No 1 Woollahra Local Environmental Plan 1995

DATES OF HEARING: 1611/2006

EX TEMPORE JUDGMENT DATE : 11/17/2006

APPLICANT J Ayling, SC SOLICITORS [COMPANY] LEGAL REPRESENTATIVES: RESPONDENT [NAME], solicitor SOLICITORS [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME] C

17 November 2006

10680 of 2006 [NAME] and [NAME] v Woollahra Municipal Council

JUDGMENT

1 Commissioner: This is an appeal against the refusal by Woollahra Council (the council) of a development application (358/2006) for alterations and additions to convert an existing building into three dwellings with parking for six cars and strata subdivision at [ADDRESS], Woollahra (the site). Background 2 The site, its context, the history of the application and the planning controls are set out in the Statement of Basic Facts.

3 Briefly the site is located on the south-east corner of [ADDRESS] and Ocean Streets. It is rectangular in shape with an area of 997.4 sq m. The site is developed with a two storey detached house that was previously used as the Belgian Consulate. The house was originally a Victorian villa built circa 1886-87, known as Dunsinane, which underwent significant alterations in 1934 and had an addition to the rear in 1938.

4 The site adjoins a two storey building which is used as the Serbian Consulate ([ADDRESS]) and a two storey Victorian villa ([ADDRESS]). The surrounding area includes large Victorian villas and later infill development of different styles. Planning Framework 5 The site is zoned Residential 2B under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposal is permissible with consent.

6 The site is within the Woollahra Heritage Conservation Area Rosemont Precinct under LEP 1995. It is identified as a contributory item under sch 5 of the Woollahra Heritage Conservation Area Development Control Plan 2003 (DCP 2003) and is described as an inter-war house in this schedule. The provisions of DCP 2003 relating to significant items are applicable to contributory items. In summary the objective of these controls is to retain the heritage significance of the conservation area by retaining the principal building form of a significant buildings. The key issue in the appeal was whether this objective was achieved. The Issues and evidence

Impact on conservation area 7 The [NAME]; [NAME], the architect for the proposal and the expert for the applicant, and [NAME] for the council, agreed that despite the building's identification as an inter-war house, its heritage value as an inter-war building is relatively low, its main significance being the remnant Victorian villa.

8 The [NAME] agreed that:

full reconstruction of the Victorian building is not desirable as there is insufficient surviving fabric and no photographic evidence to show the original built form. 9 The key area of disagreement between the [NAME] was whether the changes to the [ADDRESS] elevation and setting had an acceptable impact on the existing building, the adjoining heritage item and the conservation area.

10 [NAME]'s principal concerns can be summarised as:

The proposed extension (dining room and bedroom 2 for townhouse 1), would diminish the prominence of the Victorian bay window due to the size, solid appearance and projection forward of the bay window. 11 [NAME] also considered the changes to the original Victorian roof form to be unacceptable.

12 [NAME], the Court-appointed planning expert, held a similar opinion about the addition. He stated:

The element of concern to me is the dining room and bedroom 2 for townhouse 1. These solid elements encroach within the setback to [ADDRESS]. In my opinion the [ADDRESS] elevation of the building requires articulation; the existing façade presents as a large undistinguished flat plane, with the bay window being the only element that provides relief.

The proposal incorporates a wrap-around verandah that extends along the northern half of the [ADDRESS] façade. Whilst this element increases the bulk of the building when viewed from [ADDRESS], it also provides visual relief by providing areas of shade and detail to the façade.

The dining room/bedroom two is located within the wrap around verandah. It is a solid element within what is otherwise an open verandah. It protrudes forward of the existing building façade into the street setback area. It is on a similar alignment to the open verandah at [ADDRESS].

In my opinion, following the analysis of the streetscapes in [ADDRESS] and [ADDRESS] above, the intrusion of this solid element into the [ADDRESS] setback is undesirable. Consideration should be given to removing this element or re-locating it in a sympathetic way to [ADDRESS] frontage. 13 [NAME] also considered the addition would impact on the adjoining heritage item, [ADDRESS], by restricting views of this property. She held the opinion that the changes to the [ADDRESS] frontage, particularly the changed levels of the front yard and the introduction of a driveway and garages, would impact on the setting of both [ADDRESS] and [ADDRESS].

14 [NAME] considered that the impact of these changes to the front garden and provision of parking were largely mitigated by the proposed planting, detailing and automatic closing gate, which would limit their visibility from the public domain.

15 [NAME] did not consider the bay window to be a prominent feature of the development or that the proposed addition would be the dominant element in the façade. In his opinion:

The proposed additions in [ADDRESS] in the application are a significant improvement over the existing character of the building created by the changes made in the 1920s. While these are forward of the existing building line they act to screen the unsightly form of the enclosed verandah areas which presently contain bathrooms and are uncharacteristic. There is not a fixed building line in [ADDRESS], the adjoining house being forward of the subject building while other houses have significantly larger setbacks. 16 [NAME] stated that the roof form over the remaining Victorian villa was being retained. The change of the roof over that part of the building, which had been significantly altered, was in his opinion acceptable.

17 [NAME] considered the changes to the setting and impact on [ADDRESS] to be acceptable.

18 During the hearing [NAME] produced amendments which sought to address the concerns of [NAME] and [NAME] in relation to the additions to the [ADDRESS] elevation. Both these [NAME] considered the amendments to be an improvement over what had previously been proposed but still expressed concerns. Findings 19 Despite the description of the building in DCP 2003 as an inter-war house, the [NAME] agree that the remnants of the Victorian villa are the principal building form which should be retained.

20 The Victorian villa was largely altered in the 1930s and the section which remains somewhat intact is the southern section of the [ADDRESS] frontage, including the bay window. The remainder of the [ADDRESS] frontage has been significantly altered and the [NAME] agree is a distracting element from the remaining building.

21 The proposal retains and conserves the southern section and seeks to design additions which, as [NAME] stated, have a "character that blends with the Victorian style rather than the inter-war style."

22 Generally I accept [NAME]' evidence that this has been achieved, however, I do not agree that the remnant Victorian villa with its bay window has little prominence. I accept [NAME] and [NAME]'s concerns about the proposed [ADDRESS] extension in the proposal initially before the Court (Exhibit A).

23 The amendments made during the hearing (Exhibit J) largely address these concerns and are acceptable. The principal building form and the prominence of the bay window of the original Victorian villa will be maintained. The proposal will alter unsympathetic additions to that part of the Victorian villa which has been significantly changed and will be done in a manner which is compatible with buildings of this period.

24 The changes to the roof form also occur where the original Victorian building has been altered and are acceptable.

25 The changes to the front garden are largely necessitated by the provision of garages. While I consider that it would be preferable that the original sloping grass setting be retained, I recognise that this change results from the future use of the proposal and that the provision of parking for this form of development is reasonable provided it has an acceptable impact. The driveway, garage and terracing have been designed to minimise their impact and with the landscaping proposed will not be dominant features when viewed from the public domain.

26 The proposal, as amended, therefore meets the requirements of LEP 1995 and DCP 2003 in that it will retain the heritage significance of the conservation area. Floor space ratio 27 The other issue in the appeal was the proposal's non-compliance with the floor space ratio (FSR) control in cl 11 of LEP 1995 which permits a maximum floor space ratio of 0.75:1 and the proposal has a FSR of 0.78:1. This equates to 38 sq m above the standard, which will be been further reduced by the amendments made during the hearing. Part of the floor space included in the calculation is the storage areas in the basement area. The floor space above ground complies with the control. The applicant has submitted an objection under State Environmental Planning Policy No. 1 (SEPP1). The FSR excedence does not add to the bulk of the building or have any material amenity impacts. I therefore accept that the objectives of the standard are met and that the SEPP 1 objection is well founded. Excavation 28 [NAME] raised concerns about the proximity of the garage excavation to the boundary of [ADDRESS]. DCP 2003 requires a 1.5 m setback for excavation. I find this non-compliance to be acceptable as the excavation along the boundary extends only approximately 5.5 m and it adjoins the driveway of [ADDRESS] which is also excavated to a similar level. There is sufficient deep soil above the roof of the garage to provide landscaping and the engineering [NAME] evidence is that it is technically feasible. Overshadowing 29 The only other issue is the overshadowing to [ADDRESS]. The proposal results in a small increase in overshadowing to the private open space of this house and to the living areas which adjoin this area. The applicant has agreed to a condition requiring the removal of the parapet which will further reduce the overshadowing to a degree that it will not result in a material impact and I therefore find it to be acceptable despite not strictly complying with the requirements of DCP 2003.

30 The other issues in the appeal were resolved by the submission of further information or conditions and were not pressed by council. Orders 31 For the above reasons the application is acceptable and the orders of the Court are:

1. The appeal is upheld. 2. Development application (358/2006) for alterations and additions to convert an existing building into three dwellings with parking for 6 cars and strata subdivision at [ADDRESS], Woollahra, is approved subject to the conditions in Annexure "A". 3. The exhibits, except Exhibits 1, 11, D, G, H, J and K, may be returned.

___________________ [NAME] Commissioner of the Court Rjs/ljr

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