Mothersole v Sydney City Council [2005] NSWLEC 356

Land and Environment Court of New South Wales

CITATION : Mothersole v Sydney City Council [2005] NSWLEC 356

APPLICANT John and Helen Mothersole PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 10084 of 2005

CORAM: Brown C

KEY ISSUES: Development Application :- alterations and additions to an existing terrace building for student accommodation - heritage impact

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000

DATES OF HEARING: 28/06/05

DATE OF JUDGMENT: 11/08/2005

EX TEMPORE JUDGMENT DATE : 06/28/2005

APPLICANT Mr C Gough, solicitor SOLICITORS Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat, barrister SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

8 November 2005

10084 of 2005 John and Helen Mothersole v Sydney City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Sydney City Council (the council) of D/2004/45 for alterations and additions to an existing terrace building for student accommodation at 223B Bridge Road, Glebe (the site).

2 The proceedings were conducted as an On Site Hearing on 28 June 2005 and the judgement reflects the reasons given for the approval of the application on site.

3 The site is Lot 3 in DP for 441521. It is generally rectangular in shape with a frontage to Bridge Road of 8.775 metres, a frontage to York Street of 7.85 metres, a depth of around 50 metres giving a total site area of 429.12 square metres.

4 A two-storey Victorian Picturesque Gothic style villa is located on the site. The villa originally formed a single dwelling with the adjoining dwelling at 223A Bridge Road but was converted into two terraces in 1914. A number of buildings of similar age are located in the immediate area.

5 The proposed development provide for alterations and additions to the existing internal fabric of the building to provide for eight studio apartments, all with en-suites and kitchenettes. Four studio apartments are located on the ground level and an equal number on the first floor. The adaption of the building for the proposed use requires the removal of some walls, the construction of some new walls, the replacement of windows with doors in some locations and the construction of new openings for access to some studio apartments. A lap pool and parking for three vehicles is proposed near the York Road frontage. 6 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (the LEP) as the site was previously under the control of Leichhardt Council. Boarding houses are a permissible use within this zone.

7 The villa forms part of a group of dwellings identified in the LEP Schedule as being of Local Significance. The site is also located within the Glebe Conservation Area. The interior of the building has been identified in the National Trust assessment, dating from the early 1980s as being significant for its relatively intact Edwardian detailing, including Art Nouveau ceiling roses, skirting boards and chimney pieces.

8 Clause 13 of the LEP contains general environmental planning objectives including the general objectives for heritage at cl 13(4). Clause 15 contains objectives for heritage conservation and cl 16 identifies general provisions for the development of a heritage item, use of heritage items, development in the vicinity of heritage items and development within conservation areas.

9 The council filed a Statement of Issues containing four separate issues. Disability access (Issue 2) and non-compliance with the City of Sydney Boarding House Development Control Plan 2004 (Issue 3) were not pressed by the council following the submission of further details by the applicant. 10 The remaining issues can be grouped into the single issue of whether the proposed development unacceptably impacts on the significance of the internal fabric of the building (Issues 1 and 4).

11 In addition to the issues raised by the council, local residents Mrs Wong and Mrs Bloxham raised additional concerns over noise, inadequate parking and potential damage during construction. Mrs Bloxham's property at 225A Bridge Road was inspected during the hearing.

12 On the heritage issue, Mr Stephen Davies provided evidence for the applicant and Mr David Logan provided evidence for the council. In considering this issue, the Court was taken on a comprehensive inspection of the villa and the proposed changes explained in some detail. Mr Davies and Mr Logan explained their particular differences at this time.

13 Mr Davies and Mr Logan accepted that that the impact on the internal fabric of the building was a relevant matter for consideration however they differed on whether the extent of the alterations was a significant enough to warrant the refusal of the development application. 14 Mr Logan raised a number of concerns over the proposed modifications and their cumulative impact although he was particularly concerned at the modifications required for studio apartment 2 and studio apartment 3. In this case, the spatial volume of the room is altered, the original fireplace is bisected by the en-suite making it unrecognisable and the original kitchen is relegated to a passageway. Importantly, the original circulation pattern of the ground floor is interrupted.

15 Mr Davies accepted that the proposed changes would impact on the heritage significance of the interior however he did not accept that the changes were that significant that it should lead to the refusal of the development application.

16 Following the inspection of the interior of the building, the parties sought an adjournment to consider further options.

17 Following the adjournment the applicant proposed amendments to the studio apartments around the original kitchen that sought to address the concerns of Mr Logan by removing the ensuite from this area. This maintained the room the volume, the original fireplace and the original circulation areas. Rather than original kitchen taking the form of a passageway, the amendments propose the room to remain largely in its original form and to be used as a common area for the studio apartments. 18 Mr Logan supported the amendments and stated that they overcome a number of his concerns but not to the point where all his concerns were addressed. He suggested that further amendments should be made to the location of the en-suite for studio apartments 6 and 7.

19 In considering the amendments proposed by the applicant and the further amendments sought by Mr Logan, I am satisfied that the applicants amendments provide an acceptable level of compatibility with the level of significance of the interior of the building, without the further amendments sought by Mr Logan. In my view, the amendments provides sufficiently for the original circulation pattern of the ground floor to be understood.

20 On this basis I find that the proposal, as amended, satisfies the objectives for heritage conservation in cll 13(4) and 15. I also find that the proposal, as amended, is acceptable when considered under cl 16 of the LEP.

21 In relation to the matters raised by Mrs Wong and Mrs Bloxham. I note that the proposal provides three spaces with access of York Street. As the council planning controls do not require the provision of any car parking it would not be reasonable for the Court to require the provision of parking beyond that offered in the application. 22 While the potential for noise impact on Mrs Bloxham's dwelling does exist, it would be inappropriate for the Court to give significant weight to an event that may or may not occur. I note the applicant has offered a condition where an occupier of one of the studio apartments will be contactable and will assume some responsibility for any noise impacts that might occur on the property.

23 Damage during construction can be adequately dealt with by a condition requiring dilapidation report.

24 At the conclusion of the hearing the parties agreed to amend the conditions modified by the judgement. Unfortunately the final conditions were not available until 8 November 2005 and contained an additional condition relating to the imposition of a s 94 contribution. As this was not a matter raised as an issue in proceedings nor was the condition contained within the councils draft conditions tendered at the hearing, the condition should be deleted. The time between the conclusion of the On-Site Hearing on 28 June 2005 and 8 November 2005 was to settle the conditions rather than raise new issues. 25 The Orders of the Court are: 1) The appeal is upheld 2) D/2004/45 for alterations and additions to an existing terrace building for student accommodation at 223B Bridge Road, Glebe is approved subject to conditions in Annexure A. 3) The exhibits are returned.

___________ G T Brown Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.