Paterson Bowkett Holdings Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 370

Land and Environment Court of New South Wales

CITATION : Paterson Bowkett Holdings Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 370

APPLICANT Paterson Bowkett Holdings Pty Ltd

PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11318 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Demolition of an existing Victorian terrace and corner shop - erection of a three storey mixed use building containing two commercial units and two residential dwellings - height - bulk - private open space - overshadowing

Woollahra Local Environmental Plan 1995 State Environmental Planning Policy No. 1 LEGISLATION CITED: State Environmental Planning Policy No. 55 - Remediation of Land Edgecliff Commercial Development Control Plan Paddington Development Control Plan

DATES OF HEARING: 09-10/05/2005 EX TEMPORE JUDGMENT DATE : 06/10/2005

APPLICANT Ms S Duggan, barrister instructed by Ms R Spiegel SOLICITORS Spiegel & Associates

LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor with Ms E Whitney SOLICITORS Michell Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

10 June 2005

11318 of 2004 Paterson Bowkett Holdings Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 This was a class one appeal, 11318 of 2004, between Paterson Bowkett Holdings Pty Limited and Woollahra Municipal Council in regard to the deemed refusal of a proposal to demolish existing buildings and erect a three storey mixed use building containing two commercial units and two residential dwellings with Strata subdivision at 500-502 Glenmore Road, Edgecliff. 2 The site is on the corner of Glenmore Road and Reddy Street at their intersection with New South Head Road. The site is within the 3(b) Zone "Business Special" and the site includes two allotments totalling an area of 417.5 sq m with a total frontage of 17.8 m to Glenmore Road. The site includes two buildings facing Glenmore Road and a third building at the rear of No. 502 that faces Artlett Street, a dead end lane that runs off Reddy Street. The site lies within the Paddington Heritage Conservation Area but is not listed as an item under the Woollahra Local Environmental Plan 1995. 3 In the zone 3(b) the mixed use development is permissible with consent. The other statutes involved in the appeal are State Environmental Planning Policy 1, objection to the floor space ratio statute, maximum ratio permitted of 1.5:1. The proposal is 1.86:1. State Environmental Planning Policy 55 - Remediation of Land, with the applicable controls being the Paddington Development Control Plan, 7 July 1999, and the Edgecliff Commercial Development Control Plan of 13 June 1995, and the Off Street Parking and Servicing Development Control Plan. 4 The intersection of Glenmore Road and New South Head Road is within the Edgecliff commercial centre and properties surrounding the site between the eastern suburbs railway viaduct and New South Head Road are commercially zoned. The built form along this portion of Glenmore Road is characterised by one and two storey terrace houses displaying architectural features from the Victorian period. There are also one and two storey stone Georgian terraces as well as more recent buildings. The subject site has a Victorian terrace and a Victorian corner shop fronting Glenmore Road and Reddy Street, with commercial floor space on the combined ground floors and an apartment above. The building at the rear is a 1950s or 1960s two storey garage with a room above. 5 Next to the site on Glenmore Road is another Victorian shopfront currently at the time of the hearing appearing to be under renovation. 6 Next south of that at No. 494 is a fairly recent set of townhouses designed with proportions similar to the Victorian style. There are two rows of terraces, one behind the other, in that development. The back terraces are uphill of the Glenmore Road frontage and wrap behind the Victorian shopfront site to abut the rear of the subject property at Artlett Street. Behind those terraces and on the southwest side of Artlett Street is the eastern suburbs railway viaduct. 7 Across Reddy Street from the site is a Spanish Mission style building containing a motor mechanic and tyre shop. Across Glenmore Road from the site is a two storey heritage item originally Georgian style building now used as a Persian carpet shop known as Cadry's. 8 Because of the up hill position of the terraces at No. 494 there are district views from the rear terraces of that development. The views are towards the north, across New South Head Road, looking at the commercial and highrise apartment buildings on the southern slopes of the hill to Darling Point as it rises up from New South Head Road. 9 The proposal is designed to obtain the same views from the upper storey and deck of the rear apartment. The rear apartment is two storeys above a ground level garage that provides three car spaces and a storage area for the whole site. The garage entry is off Reddy Street. The lower apartment is on the third storey of the part of the building that is on the corner of Glenmore and Reddy Streets. This section of the building is stepped one floor lower than the rear section due to the slope of the hill. 10 The ground and second storey of the lower section of the building are two separate commercial spaces. The ground floor has direct pedestrian access off the public footpath to a paved area and shopfront on Glenmore Road. All the apartments and the commercial spaces have access to the central stair and entry lobby off Reddy Street. 11 The issues are: 1. State Environmental Planning Policy No. 55 – Remediation of Land Deleted. 2. Floor Space Ratio . The proposal does not comply with the prescribed maximum 1:5:1 floor space ratio applicable to this site under clause 11 of the Woollahra Local Environmental Plan 1995 , ("WLEP") having a floor space ratio of 1.86:1. No SEPP 1 objection has been lodged. 3. Demolition of Existing Buildings . The proposed demolition of the existing buildings will be detrimental to the heritage conservation area and is contrary to: * Clause 2(2)(g) of the WLEP regarding heritage conservation and also therefore clause 8(5) of the WLEP. * Objectives under Pt 5.3.2 of the Paddington Development Control Plan ("PDCP"), Multi-Storey Terrace Houses. * Objectives, Guidelines and controls under Pt 5.1.1 of the Paddington Development Control Plan, Street Frontages. * Objectives, Guidelines and controls under Pt 5.1.4 of the Paddington Development Control Plan - Roofs. * Objectives, Guidelines and controls under Pt 5.1.7 of the Paddington Development Control Plan - Height, Bulk and Scale. * Parts 5.2.2, 5.2.3, 5.2.4, 5.2.5 and 5.2.7 of the Paddington Development Control Plan which require the retention of the original building fabric and details.

4. Height, Bulk and Scale of Proposed Development The height, bulk and scale of the proposed new building is inconsistent with the surrounding streetscape and unsympathetic to the heritage conservation area. In this way the development is contrary to: * Clause 2(2)(b)(iii) of the Woollahra Local Environmental Plan 1995 regarding bulk and scale of the development, and also therefore clause 8(5) of the WLEP. * Clause 4.1 under the Edgecliff Commercial Centre Development Control Plan ("ECCDCP") relating to Building Height. * Clauses 6.3, 6.6, 6.8 and 6.9 under the Edgecliff Commercial Centre Development Control Plan relating to Building Design. * Part 5.1.1 of the Paddington Development Control Plan relating to Street Frontages. * Part 5.1.2 of the Paddington Development Control Plan relating to Side elevations to streets and lanes. * Part 5.1.7 of the Development Control Plan relating to building height, bulk and scale. * Part 5.4 of the Development Control Plan relating to infill development.

5. Floor levels of proposed development The floors of the proposed new building are inconsistent with the established levels within the streetscape. In this way the development is contrary to: * Part 5.1.5 under the Paddington Development Control Plan relating to Site Coverage, Setbacks and levels. The proposed floor levels, (ceiling heights) are inconsistent with the traditional ceiling heights of the existing and adjacent conserved buildings that are consistent within the streetscape. * Part 5.4 under the Paddington Development Plan relating to infill development.

6. Roof Form of Proposed Development The roof form of the proposed new building is not characteristic of the heritage conservation area. In this way the development is contrary to: * Part 5.1.4 under the Paddington Development Control Plan relating to roofs.

7. Car Parking Facilities Deleted. 8. Submissions to council Matters raised in written submissions to council which relate to: (i) non-compliance with Part 5.1.1 of the Paddington Development Control Plan , and (ii) objection to the proposed development. 9. Roads and Traffic Authority Deleted. 10. Private Open Space The private open space for units 3 and 4 is inadequate and therefore unacceptable having regard to Part 5.1.6 of the Paddington Development Control Plan.

11. Overshadowing From the submitted shadow diagrams it appears that the level of overshadowing to adjoining terraces in Glenmore Road will be increased to an unacceptable level contrary to G4 of Pt 5.1.7 of the Paddington Development Control Plan . 12. Woollahra Access DCP This issue was resolved between the parties. 12 Attending the on-site hearing for the respondent were: * Mr M Connell, solicitor, with Ms E Whitney of Michell Sillar, * Ms A Cordwell, resident and objector of unit 7 at 494 Glenmore Road, * Ms M Dixon, assessment officer, Woollahra Council, * Ms K Higgins, heritage officer, Woollahra Council.

13 Attending for the applicant were: * Ms S Duggan, barrister instructed by Ms R Spiegel of Spiegel Associates, and * Ms R Daniels, heritage architect, and * Mr S Dascalu, architect.

14 Mr P Twiney, traffic engineer, was also appointed as a Court-appointed expert but did not need to attend as the issue on parking was resolved, but amended plans and his report was in Exhibit 3C. The parties had agreed that the Court should appoint experts in attendance being Mr G Patch, chartered architect and heritage consultant, and Mr D Brindle, consultant town planner. 15 The parties agreed the two major issues were issue 2, the exceedance of the floor space ratio, and issue 3, the demolition of the existing buildings on the site due to the question of whether or not they made such a contribution to the conservation area that they should be retained and perhaps contained in a fresh, adaptive, reuse design. 16 Floor space exceedance was about 85 sq m in area or the equivalent of the top floor of the rear unit in the proposal. Ms Cordwell had examined the plans of the proposal and said the impact of this floor on her privacy, solar access and to some extent her views were significant. Her terrace house had two courtyards. One at the rear was used as a service yard only due to the noise from the eastern suburbs railway adjacent. The front courtyard was relatively private and had good solar access all morning, including midwinter. It was the only useable private open space for relaxation, said Ms Cordwell, for her and her family. She used it regularly, especially when children were making noise in the house. Due to the outlook from the courtyard being pleasant, it was a favourite to entertain guests also. The extra storey on the proposal would reduce solar access midwinter to less than two hours. 17 The respondent's evidence was that the applicable development control plan did not permit reduction below two hours. The applicant's evidence said some of the courtyard got sun for more than two hours midwinter but it was the south end of the courtyard above table level, so a person's legs would be in shade. Ms Cordwell showed the hearing on site that the south end of the courtyard was the entry gate and walkway to the front door. The courtyard was not large so the table and chairs occupied the middle and some of the northern half of the courtyard. They would get less than two hours of sunlight. 18 The north wall of Ms Cordwell's terrace is set about 1 m from her boundary. The proposal is set right on the boundary with zero setback. Ms Cordwell has ground floor windows in the north wall to her kitchen and family room. She obtained sunlight all day in midwinter to the windows. The floor space ratio exceedance on the third storey, she said, would take sun from the kitchen windows until about 1 pm and from the family room until about 11 am midwinter. On her top floor there were windows to bathroom and a bedroom on the north wall. They would have some shadow from the proposal but most of those windows would still get sun. 19 The applicant's evidence was that the proposal was under the height limit so the floor space ratio exceedance was not of itself responsible for shadowing. A complying development on floor space ratio could still have the third storey at the rear. On view loss and privacy, Ms Cordwell said that the third storey would restrict her view to the northeast from her living room and the eastern private open space. That aspect was towards the trees and buildings around Rushcutters Bay Park and more important, she said, the large tree on the subject site that provided greenery in the foreground to relieve the masonry and roofs of the buildings. She agreed her view to the east would be unaffected. 20 On privacy she said the third storey roof terrace of the rear apartment proposal would enable persons to look back at her bedroom window and her private open space from close quarters. The applicant had a partial roof over the roof terrace that could be extended so that persons on the terrace could not look back to her house. The south wall of the terrace could also be obscured glass to let more light through to Ms Cordwell's private open space, it was said. 21 The respondent's expert's evidence was that the floor space ratio exceedance contributed to undesirable bulk of the building in the streetscape and its lack of fit into the conservation area. 22 The three heritage experts had conferred on the conservation area and the proposed demolition of the existing buildings on the site. The main points of this evidence, apart from being in the Paddington conservation area which is mainly Victorian style, were that the site is within the original Georgian village at the end of Glenmore Road. 23 In early Colonial days, Rushcutters Bay separated Darling Point from Kings Cross. There was no New South Head Road. The access to Darling Point and a distillery in the valley near Trumper Park was via Oxford Street and Glenmore Road. This early village was in the period pre-1840 to 1860. Apparently it evolved to serve the distillery and the large Colonial estate houses that occupied Darling Point and Paddington in those days. 24 The only buildings near the site that had survived since then are the Cadry's carpet sales building that has an Edwardian upper floor addition, and the two storey and one storey stone Georgian terraces opposite the site. There are Victorian terraces between the Georgian terraces and the railway viaduct. On the same side of the street as the proposal there is an empty allotment adjacent to the arch of the viaduct over Glenmore Road, then the more recent terraces at No. 494, then the Victorian shopfront under restoration and then the subject site. 25 Ms Daniels, Ms Higgins and Mr Patch agreed the site had a Victorian style single storey shop and a two storey terrace that probably dated from 1895. 26 Ms Daniels said that they were not a good representative example and were "orphan" buildings from the main part of Paddington. With buildings of various ages in the New South Head Road and Glenmore Road area up to the railway viaduct, the site was not in an area that represented the homogenous part of the Paddington Conservation Area, she said. The importance of this part of Glenmore Road was the 1840 to 1860 original village period of which the subject site was not representative. 27 Ms Higgins and Mr Patch took the opinion that the Paddington Conservation Area deliberately included Glenmore Road up to New South Head Road and Reddy Street. The site was at the very entrance to the conservation area and quite prominent in New South Head Road streetscape. The Georgian Edwardian building of the Cadry's carpet showroom opposite was also very prominent and the two acted as gateposts. Ms Higgins and Mr Patch did not accept Ms Daniels' opinion that the gateway was really at the viaduct. 28 Mr Patch said there was sufficient corroborative building stock, within these two buildings and the stone Georgian terraces leading down the street to the row of Victorian terraces before the viaduct, to give that part of Glenmore Road strong reference to the main part of the conservation area beyond. Removal of the existing buildings on the site would destroy a prominent Victorian element that is something of a harbinger of the Victorian character of Paddington. Whilst not of sufficient heritage value to be classified as a heritage item in its own right, the terrace house and its shop are highly contributory at this introductory point to the conservation area. 29 Mr Patch and Ms Higgins said the proposed new building of modern influence and design, three storeys high on the Glenmore Road corner and stepping up the slope of Reddy Street, is not of a character that would be consistent with that of the conservation area. 30 Ms Daniels said the council had approved a redevelopment of the Victorian shop front at 498 Glenmore Road next door to the site for a three storey contemporary building. The proposal on this site would create unity with that design in the streetscape, she said. 31 The long Reddy Street facade of the proposal stepped up the hill in three elements to respect the fine grain of small allotments in the area. In those three elements was the Glenmore Road corner element with the two floors of commercial and the apartment above, then the recess of the entry courtyard, being the second element, and the rear element of the garage with the two storey apartment above. 32 The windows on the Reddy Street facade were punctuated into the masonry with vertical proportions reminiscent of traditional buildings. The base course was stone finish as a reference to the Georgian stone buildings opposite. A new tree was to be planted in the new entry courtyard to soften the architectural form and further break up the scale of the Reddy Street facade. 33 Ms Daniels maintained that for the existing buildings to be worth keeping they needed to retain a suitable setting and context. The existing buildings on the subject site had lost their Victorian and Georgian setting and were now orphans from the Paddington Conservation Area. She saw the site as infill development and the proposal complied with the Heritage Council of New South Wales guidelines for infill development. 34 Mr Patch saw the proposal, if approved, as effectively moving the gateway to Paddington along to the railway viaduct, when that could not have been the intent of bringing the conservation area boundary right up to the corner of Glenmore Road and Reddy Street. The conservation area was not just Victorian, it had some semblances of the pre-Colonial bushland around the Trumper Park area, it had older, large estate houses from the pre-1840 period, it had Georgian cottages and Victorian as well as later buildings. This entry point to the conservation area represented that rich chronology and removing the existing Victorian building from the site would remove the element that was the first major clue to the dominance of the Victorian era in the conservation area. 35 The strong forms of the two storey terrace house with its companion single storey shop was still clearly seen, with the stepped parapets and chimney providing an unmistakeable character, added to by the fine detail of the pikestaff fence and gate to the terrace house, and the cast iron filigree balustrade and frieze to the first floor balcony. 36 The existing buildings were structurally sound, and Mr Patch had the opinion as an architect and heritage expert that it could be incorporated into an adaptive reuse with sensitively designed new buildings on the rear half of the site. In that way a development could comply with the intention of the applicable statutes in the Paddington Development Control Plan so that it conserved and enhanced the unique National Heritage significance of Paddington rather than detract from it as would the proposal if it was built. 37 In support of this position his report referred to cl 2(2)(g) of the Local Environmental Plan: (ii) to ensure new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of the Conservation area, and

(iii) to encourage the restoration or reconstruction of buildings that contribute to the character of the conservation area, and

(v) to provide detailed controls of development associated with the conservation area. 38 In the Paddington Development Control Plan he referred to various controls that seek to produce new development and restoration of older buildings to enhance the character of the conservation area. He did not believe the proposed new building would achieve that sympathy. In summary, its rectangular forms and flat roof are contrary to the character of the conservation area. The important role of the existing buildings contributing to the gateway of the conservation area would be lost. 39 Ms Higgins reinforced this opinion, saying, "The proposed new building will introduce a relatively large scale element into the area and one which will be highly visible. The proposed building will be higher than the adjacent buildings in Glenmore Road and in terms of scale will not achieve a cohesive relationship with the existing urban fabric. The proposed development would have an adverse impact on the conservation area. The existing development at 494 Glenmore Road should not be used as a reason for future development as it was approved prior to the adoption of the Paddington Development Control Plan ." 40 The Paddington Society reflected these opinions in its objections, saying, "These cottages and terraces should not be demolished under any circumstances. They stand at the gateway to Paddington and are an important part of our architectural heritage. We refer you to Pt 5 of the Development Control Plan, page 49, which opens:

In suburbs such as Paddington with an established and valuable historic character, new buildings and changes to existing buildings should be designed with respect to architectural character and the context within the conservation area. Retention of original fabric and detail is important." 41 The hearing went on a view of the site and environs to look at the streetscape and conservation issues. The site is prominent in New South Head Road, due in part to its contrast in scale compared to the much larger commercial and residential buildings of Edgecliff to the southeast of the Glenmore Road intersection, and the larger and later architectural scale of those to the northwest of Reddy Street. 42 Coming from the city, the eye is drawn to Glenmore Road as the splayed angle of it to New South Head Road allows one to look along its length as far as the railway viaduct. The subject property and its Victorian buildings do have a relationship to those terraces on the opposite side of the street between the Georgian terraces and the viaduct. The curve in the street enables them to be seen together. The recent terrace houses at No. 494 are designed with Victorian proportions and actually assist in this impression. 43 The Cadry's Persian carpet building is noticeably old compared to the other buildings on New South Head Road and stands along with the subject site as the gateposts at the entrance to Paddington. The way the site is oriented coming from the city, the profile of the parapets and chimneys of the buildings on the site are quite striking and balance the additional height of the Georgian Edwardian Persian carpet building. Coming from the city, the vista along Glenmore Road to the viaduct forms a fitting visual arrival sequence to the conservation area. 44 Coming from Edgecliff, the Georgian Edwardian building is seen first and once again its visually apparent age attracts attention. As one comes closer, the visual gap of the intersection becomes obvious and draws the eye. As one passes, the result is that the buildings on the subject site come into view in a full frontal position with its obviously Victorian character. The change of scale and architectural style along New South Head Road accentuates this gateway effect. 45 My opinion is that Ms Daniels took these differences in the context of New South Head Road to say the existing buildings did not fit and were orphaned from the conservation area, and therefore a new, larger, contemporary structure was quite acceptable. She also drew attention to the council's approval of a modern building on No. 498 Glenmore Road, saying the proposal will harmonise with that as infill development. The State Environmental Planning Policy No. 1 objection that seeks to obtain the exceedance of the permitted maximum floor space ratio makes the same comparison. I recollect it was Mr Patch who said well doesn't that make the existing buildings more important? There must have been a purpose in bringing the conservation area along Glenmore Road to Reddy Street and New South Head Road. 46 Ms Daniels would appear to be correct that the overall importance of Paddington in the National Estate and as a conservation area has arisen out of its homogenous rows of Victorian terraces applied to hilly geography producing a unique character. Part of that character is contrast and surprise in an urban design sense, also recognised in the Development Control Plan. In Paddington it is brought about by the blank and often dramatic side elevations and chimneys of terraces in juxtaposition to the ornate, softer facades of filigree cast iron and recessed veranda and balconies, all given additional drama due to the stepping of buildings on the sloping topography and the irregular street pattern. 47 These qualities are evident even in the photographs that Ms Daniels tendered to demonstrate homogeneity. Any passer-by that sees the existing buildings on the subject site can appreciate those same qualities and associate them with the Paddington conservation area. To remove the buildings would delete that association. 48 The new building approved by council in DA1041/2003 on No. 498 beside the site is a contemporary design, but it is only two storeys and its front portal is 2½ m below the existing parapet on the terrace house on the subject site, and is set back 2 m behind the street boundary adjoining the existing terrace on the subject site. Further back, the building does become three storeys. The roof parapet of No. 498 is set back 3½ m from the street behind the existing terrace alignment and the parapet is 1 m lower than the existing terrace parapet. Although one might say the new building at No. 498 is not in the Victorian style nor very sympathetic to that style, it is visually subservient to the existing buildings on the subject site as it would be to the proposed new building. 49 Ms Daniels said the subject site should be treated as an infill development. The Paddington Development Control Plan allows for that and has an objective that it discourages infill that does not achieve a cohesive relationship between new and existing urban fabric, and which distorts and obscures the cultural significance of the area. I have formed the opinion it is the latter objective that the proposed new building conflicts with. It would in its current design on the gateway site obscure the cultural significance of the Paddington Conservation Area. The existing buildings being effectively one gatepost at the entry to Paddington are made more important due to the newer buildings around it. 50 On the south side of Glenmore Road it provides a partnership with the Georgian Edwardian building on the opposite corner and the Georgian terraces and the Victorian terraces further down that side of the street to create the gateway and give the observer the harbinger of what lies beyond. 51 In regard to the State Environmental Planning Policy No. 1 objection to the floor space ratio, the solar impact on Ms Cordwell's unit that puts it below the minimum requirement of the applicable solar access control shows the increased floor space and resultant bulk does have an adverse impact contrary to objectives (a) and (c) of cl 11A of the Woollahra Local Environmental Plan 1995. 52 In this appeal issues 2, 3, 4, 5, 6 and 11 are determinative. 53 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 1A, 2B, 3C, A, B, C, E, G, and 1, 2 and 9. ______________ K G Hoffman Commissioner of the Court rjs

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