Land and Environment Court New South Wales

• Medium Neutral Citation: Mulcahy v North Sydney Council [2014] NSWLEC 1110
• Hearing dates: 4, 24 April, 20 May 2014
• Decision date: 17 June 2014
• Jurisdiction: Class 1
• Before: Pearson C

Decision

Appeal dismissed

• Catchwords: DEVELOPMENT APPLICATION - Garage - Existing hardstand parking space - Heritage Conservation Area
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Environmental Planning and Assessment Regulation 2000; North Sydney Local Environmental Plan 2013
• Cases Cited: Mulcahy v North Sydney Council [2007] NSWLEC 752; Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; Zhang v Canterbury City Council (2001) 115 LGERA 373
• Category: Principal judgment
• Parties: Ana Mulcahy (Applicant); North Sydney Council (Respondent)
• Representation: Ms M-L Taylor, Bartier Perry (Applicant); Ms J Hewitt, HWL Ebsworth Lawyers (Respondent)
• File Number(s): 10070 of 2014

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of a development application for the construction of a garage over an existing open hardstand at 53 Kareela Road Cremorne Point (the site).

2 The site is located within the Cremorne Point heritage conservation area (HCA) under Part 2 of Sch 5 to the North Sydney Local Environmental Plan 2013 (the LEP). The site is on the eastern side of Kareela Road, and slopes steeply down from the street to the foreshore of Mosman Bay. There is a three storey dwelling, identified as a contributory item in the North Sydney Development Control Plan 2013 (the DCP), on the site. At the Kareela Road street frontage there is a two storey building which contains a bedroom on the lower level, the entry area and lift, and a single garage and open hardstand on the upper level. There is a large street tree, with branches overhanging the hardstand space.

3 In 1988 the Council granted consent (DA1069/88) for alterations and additions including a double garage; that consent was not activated. A development application lodged in 1992 (DA1128/92) for additional bedrooms in the roof and a second garage in addition to the existing one, was approved subject to a condition that the second garage and glass roof projection from it be deleted and replaced with an open car space. There have been three subsequent applications relating to the garaging on the site: development application DA246/98 for the erection of a carport and replacement of the garage roof, refused in 1998; development consent D566/02 granted in February 2003 which approved a single garage and open hardstand car space; and development application D661/06 for the installation of a carport over the existing hardstand. Development application D661/06 was refused by the Council, and an appeal from that refusal was dismissed on 31 October 2007: Mulcahy v North Sydney Council [2007] NSWLEC 752. The applicable planning controls at the time of that appeal were those in the North Sydney Local Environmental Plan 2001 and the North Sydney Development Control Plan 2002.

4 The application the subject of these proceedings was lodged on 30 September 2013 and refused on 14 January 2014, and the appeal was lodged on 12 February 2014. The plans for the proposed new garage enclosing the existing hardstand space were for a structure 2.85m high at street level with a flat roof sloping at the rear, constructed of painted brickwork and with a panelift door.

5 The matter was listed for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act) on 4 April 2014. Evidence was provided on site by objectors, and the application was discussed by the parties and their planning and heritage experts. The conciliation was adjourned to allow further consideration, and terminated on 14 April 2014. On 14 April 2014 the applicant filed a notice of motion seeking leave to rely on amended plans.

6 The amended plans provide for the demolition of the existing single garage and replacement with a double garage, 2.96m high at the ridge with a raised lantern in the centre; the southern side wall constructed with opaque glass panels at the base and transparent fixed glass above; the rear wall with opaque panels at the base and louvred glazing above; sectional garage doors with transparent panel inserts; and re-design of the entry.

7 The Council opposed the application to amend the application to rely on the amended plans, submitting that it constitutes a new application. The Council submitted that when a comparison is made between the original application, which was to add an extra garage over the existing hardstand space, and the amended application which involves demolition of the existing garage and construction of a new two car garage, and the different materials proposed, it is in essence a new application. The Council further submitted that even if there is power to grant leave to amend, it should be refused in the exercise of discretion, for two reasons: first, it was not known if there would be a need to amend the Statement of Facts and Contentions, or further joint reporting by the experts, because the Council was in the process of notifying the amendments to objectors, and internal assessment; and secondly, because to do so would be counter to the mandates of the s34AA process. The Council accepted that there was no prejudice to it. The notification period would end on 28 April 2014, and the Council would be ready to proceed with the hearing on 1 May 2014.

8 The applicant submitted that the amendments do not constitute a new application. The main changes are to appearance at street level, so that the gable roof of the existing garage will go and the roof form will be consistent across both garages; there is a slight increase in height; and the addition of a lantern feature in the centre, and the use of glass panels which would be opaque at the bottom. The amendments respond to issues raised by the objectors and to matters raised in the conciliation discussion, lessen the impacts on neighbours, and are a better proposal; and there would be a saving in costs by avoiding another application. The applicant would not be ready for a hearing on 1 May because of the non-availability of her heritage expert and then absence of her solicitor, and the earliest would be the week commencing 19 May 2014. The applicant accepted that the amendments were not minor, and agreed that costs under s97B of the Act would be payable.

9 On 24 April 2014 I granted leave to amend the application, advising the parties that reasons would be provided in the final judgment. Those reasons are as follows. First, I was satisfied that the amended development now depicted in the plans (exhibit A) does not fall outside the power to amend conferred by cl 55 of the Environmental Planning and Assessment Regulation 2000. While the amendments do create a changed development, it remains an application to provide garaging for two vehicles where at present there is garaging for one and an open hardstand, in the same location. In the terms expressed by Jagot J in Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155 at [17], the "essence" of the development remains the same, and the amendments or variations have not converted the application into an original application. Secondly, in considering whether the cl 55 power should be exercised, the factors in favour of allowing the amendment were that the changes appeared to be a response to matters raised by the objectors and the Council's experts in relation to impacts on views in particular; that because the conciliation part of the s34AA process had already occupied the initial two days allocated, a further hearing date would be required in any event; and that the Council had already initiated a process of notification to objectors, which would reduce any delay caused by the amendment. Factors against allowing the amendment were that the Court's expectation in residential development appeals under s 34AA of the Court Act is that applicants are required to ensure that their residential development appeal application, and the residential development proposed in the application, is considered, complete and final, and suitable for assessment at the final hearing; that the Council would be required to undertake further internal assessment following the receipt of submissions in response to the notification; that amendment of the Statement of Facts and Contentions might be required; and that further consideration would be required by the parties' planning and heritage experts. Having considered those factors, I was satisfied that it was appropriate to grant leave: the matter would require allocation of a further hearing date whether or not leave was granted for the amendment; the experts had already discussed some suggested designs, and so any additional conferencing and reporting would be of a relatively confined scope; and the Council had already commenced the process of notification so that the views of the objectors could be taken into account. I granted leave to amend the application, ordered that costs be paid under s 97B of the Act as agreed or assessed, and made directions for further conferencing and reporting by the experts.

Issues

10 The Council contends that the proposed development will have unacceptable adverse impacts on the character and heritage significance of the Cremorne Point Conservation Area, and an unacceptable adverse impact on the heritage significance of the Kareela Road streetscape, contrary to relevant provisions of the LEP and the DCP; that the existing hardstand area and garage covers over 60% of the front boundary and is an uncharacteristic item within the Cremorne Point Conservation Area; that the proposal will result in a double garage which is an uncharacteristic built form that will dominate Kareela Road, contrary to relevant provisions of the LEP and the DCP; and relies on the matters raised by objectors.

Objector evidence

11 The Council's Bundle (exhibit 2) included written submissions made in response to the development application by the owners of 51 Kareela Road (adjoining the site to the south); 32 Kareela Road (on the opposite side of Kareela Road); and 45 Kareela Road. The written submissions raised concerns as to reduction in views from Kareela Road down to Cremorne Reserve and Mosman Bay; closing off of views from the dwelling on the other side of Kareela Road including views to Mosman Rowers available when the street tree loses its leaves; and overshadowing of two outside courtyards at 51 Kareela Road. The owners of 51 and 32 Kareela Road gave evidence at the view (agreed notes are exhibit 7), and the view included the view from the front garden of 32 Kareela Road. On notification of the amended plans, further written submissions were made, maintaining objections to the proposed development based on concerns as to view loss and overshadowing. The owner of 32 Kareela Road gave oral evidence on resumption of the hearing, commenting that the structure would overpower the views and would glow with light passing through.

Expert evidence

12 Planning evidence was provided by Mr Michael Neustein on behalf of the applicant and Mr Robin Tse on behalf of the Council. Mr Neustein and Mr Tse prepared two joint reports, the second report dated May 2014 incorporating responses to the amended plans (exhibit 3), and gave oral evidence. In summary, Mr Tse's evidence was that the proposal is an uncharacteristic built form because of its appearance as a double garage with a wide street frontage; and that while the use of glazed doors and glazing would provide some transparency through the structure, it would still obscure views towards Mosman Bay over the hardstand from the public domain and from residential properties on the western side of Kareela Road. Mr Neustein's evidence was that the area is not one where garages are uncharacteristic; that any potential dominance of the streetscape is mitigated by the large street tree in front of the hardstand area; that the amended proposal with glazed garage form reduces view loss from Kareela Road, and by opening up views where the existing garage stands; that the loss of views from the public domain and from the house immediately opposite is minor and not a sufficient departure from the DCP to warrant refusal.

13 Heritage evidence was provided by Mr James Phillips on behalf of the applicant and Ms Lucinda Varley on behalf of the Council. Mr Phillips and Ms Varley prepared two joint reports (exhibits 4 and 5) and gave oral evidence. The heritage experts agreed that a number of properties that are contributory to the HCA along the street have garages at street level; that the chief presentation of contributory items is in the form of roofscapes seen from street level above and where they have them, their associated garages; that there is a view of the Mosman peninsula from across the existing hardstand and the harbour is visible through the tree foliage from the public footpath; and that the existing garage and hardstand has no heritage significance but sits neutrally within the streetscape. They differed as to whether double garaging is in character with the form of development demonstrated on existing contributory items, and whether the proposal would result in cumulative bulk to the streetscape. Mr Phillips was of the opinion that a garage constructed over the existing hardstand would reinforce the existing slot view to Mosman Bay and the houses on the western shore, and that while the additional structure of a garage would increase bulk it would not increasingly dominate the streetscape. In his opinion the existing hardstand is an uncharacteristic form which has potentially adverse visual impact in the overall streetscape, and the proposal maintains the sense of place and heritage values of the HCA. The amended proposal with glazing would allow Mosman Bay and the distant shore to be viewed through the garage and makes provision for keeping the inside of the garage tidy. Ms Varley's opinion was that the introduction of additional built elements would harden the streetscape and detract from the character of the HCA. The proposed glazed garages would not resolve the issue of increasing the extent of bulk to the street boundary, would increase the visual prominence of built elements in the streetscape and reduce the extent of openness, and while the garages have been designed with some transparency the building volume will still be apparent. The proposed garages would not contribute positively to the heritage significance of the conservation area.

Applicant's evidence

14 The applicant gave evidence at the hearing, stating that there are three reasons for seeking to have a garage on the existing hardstand space: security, as a vehicle parked on the hardstand space has previously been broken into; damage caused to the vehicle by possums in the overhanging liquidamber tree; and to provide for storage of bikes and other sporting items. In her opinion the proposed development is a lightweight structure that allows views, and is not contrary to other properties in the area which have two or three car garages.

Planning controls

15 The site is in the R2 Low Density Residential zone under the LEP and the proposed development is permissible with consent. The objectives of the LEP include in cl 1.2:

(2) The particular aims of this Plan are as follows:

(a) to promote development that is appropriate to its context and enhances the amenity of the North Sydney community and environment,

(b) in relation to the character of North Sydney's neighbourhoods:

(i) to ensure that new development is compatible with the desired future character of an area in terms of bulk, scale and appearance, and

(ii) to maintain a diversity of activities while protecting residential accommodation and local amenity, and

(iii) to ensure that new development on foreshore land does not adversely affect the visual qualities of that foreshore land when viewed from Sydney Harbour and its tributaries,

(c) in relation to residential development:

(i) to ensure that new development does not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing, and

(ii) to maintain and provide for an increase in dwelling stock, where appropriate,

...

(e) in relation to environmental quality:

(i) to maintain and protect natural landscapes, topographic features and existing ground levels, and

(ii) to minimise stormwater run-off and its adverse effects and improve the quality of local waterways,

(f) to identify and protect the natural, archaeological and built heritage of North Sydney and ensure that development does not adversely affect its significance,

...

16 The objectives of the R2 zone are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

· To ensure that a high level of residential amenity is achieved and maintained.

17 The Heritage Conservation provisions in cl 5.10 of the LEP include the following objectives:

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of North Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

...

18 Clause 5.10(4) requires that the effect of the proposed development on the heritage significance of the HCA must be considered.

19 The aims of the DCP are provided in Part A, section 1.6, and include:

The aims of this DCP are to:

(a) Ensure that development positively contributes to the quality of the natural and built environments;

(b) Encourage development that contributes to the quality of the public domain;

...

(e) Ensure development positively responds to the qualities of the site and its context;

(f) Ensure development positively responds to the character of the surrounding area; and

20 Part B of the DCP provides general controls for residential development in Section 1 Residential Development. The objectives for residential development specified in section 1.1.1 are to ensure that residential development:

O4 does not have adverse impacts on residential amenity or environmental quality;

O5 is in context with surrounding development;

O6 contributes to the garden setting and lower scale character of North Sydney's residential neighbourhoods;

...

O8 is consistent with the character that is described in the relevant area character statements;

21 Section 1.3.6 Views includes the following objectives and provisions:

Objectives

O1 To protect and enhance opportunities for vistas and views from streets and other public places.

O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

Provisions

P1 Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed.

P2 Development should be designed to maximise the sharing of views from surrounding properties and public places.

P3 Ensure that existing and proposed dwellings will have an outlook onto trees and sky.

P4 Where a proposal is likely to adversely affect views from either private or public land, Council will give consideration to the Land and Environment Court's Planning Principle for view sharing established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Planning Principle is available to view on the Land and Environment Court's website (www.lawlink.nsw.gov.au/lec).

22 Section 1.5.4 Vehicular Access & Car Parking includes the objectives:

Objectives

O1 To provide adequate on-site car parking for residents.

O2 To ensure adequate access for all vehicles.

O3 To maintain garden settings.

O4 To minimise adverse visual impacts on the appearance of the street or building.

23 The provisions include:

Location

...

P10 Garages, carports or other like parking structures must not be located between the primary street frontage and the primary street façade of the building.

Access

...

P14 Do not compromise streetscape, building form and landscaped area, or heritage significance through the provision of vehicle access.

24 Section 10 of Part B includes parking provision, providing at section 10.2.1 a parking rate of two spaces per dwelling of three or more bedrooms. Section 13 of Part B addresses Heritage & Conservation. The Introduction states:

North Sydney has a rich and diverse heritage. It comprises buildings, structures, places, aboriginal and archaeological sites, lookouts, streetscapes, urban patterns, parks and reserves, all of which contribute to the area's cultural life, sense of place and identity.

North Sydney's heritage is identified through the provisions of the LEP (heritage items and heritage conservation areas) and the DCP (contributory, neutral or uncharacteristic items).

Each heritage item and heritage conservation area has special qualities. These qualities are intrinsic to their value and make them significant.

The need to accommodate more residents and workers within a constrained area is placing increased pressures on the ability to retain and protect the LGA's heritage. This section of the DCP seeks to provide a balance between these conflicting issues.

25 Section 13.6 Heritage Conservation Areas notes that heritage conservation areas (HCAs) are listed in Sch 5 of the LEP, and that the significance of HCAs is "often a function of the subdivision and street pattern, combined with buildings that share common periods of development, historical associations, materials, form and scale." Buildings that are not heritage items are identified as contributory, neutral or uncharacteristic. Those terms are defined:

Contributory items are part of the collective significance of the particular conservation area in which they are located. They are important for what they offer to the streetscape or character of the heritage conservation area. As a result the focus for contributory items is how the building appears in the public domain, and especially from the street.

Council does not support the demolition of contributory items.

Neutral items are not defining, but do not detract from the overall character of a conservation area. They often represent the original era of development and may display the predominant architectural style.

The focus for neutral items is how the building appears in the street and public domain. The intention is to achieve a neutral or improved built outcome by removing previous unsympathetic alterations, or adding features that are characteristic of an area.

Uncharacteristic items are buildings and structures that are intrusive and detract from the character and significance of the heritage conservation area. They are not suitable benchmarks for new developments. Replacement buildings are to achieve a neutral or contributory status.

26 The general objectives at section 13.6.1 are:

O1 Ensure that new development is designed to retain and complement the character and significance of the conservation area (refer to Part C of this DCP for a description of the significance of the heritage conservation area).

O2 Ensure that contributory items are retained and where practical improved, with a focus to locate new work to the rear or away from publicly visible elevations of building.

O3 Enable neutral items to be improved such that they contribute to the character of the heritage conservation area through the removal of unsympathetic and inappropriate elements, and reinstating missing details where appropriate.

O4 Encourage change that will remove uncharacteristic items or reduce the extent of their intrusion.

27 Section 13.6.2 Form, massing and scale includes:

Objectives

O1 To ensure new development has a compatible and complementary building form and scale to that which characterises the conservation area.

O2 To maintain and enhance streetscape character.

Provisions

P1 Development should reflect the bulk, mass, scale, orientation, curtilage and setbacks of surrounding heritage and contributory items.

P2 Development should recognise and complement the predominant architectural scale and form of the area.

P3 Do not obstruct existing views in the public domain, including slot views over and between buildings as these provide connection and contribute to the context of the area's location.

P4 Reinstate characteristic and decorative features to contributory items where possible and reasonable where alterations and additions are proposed. This could include reinstatement of verandahs and balconies, joinery, chimneys, fences or window detailing.

P5 Achieve a neutral or improved outcome to neutral items by:

(a) respecting original or characteristic building patterns in terms of bulk, form, scale and height;

(b) minimising changes to original and characteristic features;

(c) removing unsympathetic and uncharacteristic changes and/or;

(d) reinstating characteristic details where there is physical or documentary evidence.

...

P6 Achieve an improved outcome to uncharacteristic items by removing the uncharacteristic or intrusive element or incorporating changes to improve the contextual design and visual impact of the site.

P7 Respond to characteristic building alignments by not building forward of the established or characteristic front setback.

P8 Repeat any consistent pattern of side and rear setbacks of heritage and contributory items in the vicinity of the site.

P9 New work may adopt a contemporary character, provided the development is not likely to have a detrimental impact on the characteristic built form of the area, particularly in terms of bulk, scale, height, form or materials.

28 Section 13.9 provides controls for specific building elements, including:

13.9.5 Garages and Carports

Many sites in North Sydney are unsuitable for on-site parking. Carports and garages can have a detrimental impact on heritage items and the streetscape of heritage conservation areas. The intention for these controls is to ensure that significant and contributory buildings, with their landscaped settings, remain the dominant element in the streetscape.

Garages, carports and large areas of paving located within the front setback of heritage items and buildings located within heritage conservation areas are generally considered to be uncharacteristic elements.

Notes: All parking structures and spaces must comply with landscaped area and site coverage requirements.

29 Part C of the DCP provides for Area Character Statements applying to each neighbourhood within the local government area (LGA). Section 1.1 notes that the LGA is divided into 9 Planning Areas, subdivided into 61 Locality Areas. The Locality Area provisions outline the desired future outcomes, and contain development controls to ensure that those outcomes can be met (Part C, 1.1.4). The site is within the South Cremorne Planning Area as identified at 1.1.3, and is within the Cremorne Point Conservation Area.

30 At section 6.4.2 of Part C the Cremorne Point Conservation Area is described:

The Cremorne Point Conservation Area is characterised by large, single and two storey, freestanding Federation and Edwardian dwellings, reflecting the area's main period of development. Some dwelling houses have their primary elevation to the water with garaging and carports to the rear. There are also examples of single storey Inter-war dwelling houses with multi-storey Edwardian and Inter-war residential flat buildings. There is considerable Post-war infill development of single dwelling houses and multi-storey residential flat buildings.

The buildings generally have irregular setbacks from the street with level or terraced gardens and a mix of fencing types. There is extensive use of stone in boundary and retaining walls.

31 The Statement of Significance at section 6.4.3 states:

6.4.3 Statement of Significance

The Cremorne Point Conservation Area is significant for:

(a) Consistent early 20th Century residential area with a mix of Federation and 1920s one and two storey housing mixed with inter-war residential flat buildings of two to three storeys, all built on large allotments with a strong orientation to the water.

(b) Unique foreshore reserve that predates the residential subdivision, which demonstrates the concern for recreation, public access and suburban amenity, and the importance of headlands in the visual character of Sydney Harbour.

(c) The visual unity derived from its subdivision history that is still apparent.

32 Significant elements listed in section 6.4.4 include P4 Views, which includes "Views from ...Kareela". Characteristic built elements are identified at 6.4.6, and include P2: "Buildings sited to retain slot views above and to the side of the harbour". Uncharacteristic elements are:

6.4.7 Uncharacteristic elements

P1 Over-scaled additions; dormers and skylights to front roof slopes; roof terraces; carports and garages covering more than 1/3 of the street frontage; high solid fences to the street; rendering and painting of face brick; extensive glazing; glazed balustrades; loss of original detail; modern infill development and residential flat buildings.

33 The relationship between the general controls provided for residential development in Part B of the DCP and the provisions in Part C of the DCP for specific neighbourhoods is explained at Part A, section 1.7.3:

1.7.3 Part C - Area Character Statements

The LGA comprises a number of neighbourhoods which display distinct characteristics. This Part of the DCP identifies the desired future outcomes for each of these neighbourhoods. In addition, this Part of the DCP contains additional provisions which relate to development within these neighbourhoods. The provisions within this Part take precedence over the provisions within Part B of the DCP.

Applicant's submissions

34 The applicant submits that the proposed development is consistent with the objectives in cl 1.2 of the LEP, and meets the Council's concerns to protect and maintain views from the public area; it has no effect on the dwelling except that from some points along the street the roof of the dwelling will not be visible; and there are still slot views to the north and south including across the whole property from 51 Kareela Road. The proposal meets the zone objectives, as it does not compromise the residential amenity which includes the amenity of the residents as well as the neighbours. The heritage outcome is protected by the choice of fabric to protect views. There are still iconic views obtainable from 32 Kareela Road. The applicant submits that the proposal assists in improving a situation that currently exists, including the blocking of views across the existing hardstand which is uncharacteristic, and can better meet the objectives of the DCP controls by the design which allows views through the structure. Garages are not characteristic according to the DCP, however there are garages, and the hardstand is a worse heritage outcome. The Statement of Significance for the Cremorne Point Conservation Area is an important yardstick, and this particular solution is appropriate in the circumstances especially when it is the Council street tree that is causing the problem. The proposal meets the objectives of the DCP parking controls in a more appropriate way.

Council's submissions

35 The Council submits that the primary issue is the impact on the HCA, having regard to the special suite of controls in the DCP. The proposed development would mean loss of views of the roof of the contributory item, breaching the objectives of section 13.6.1, and the double garage would cover more than one third of the street frontage. While views might be retained through the upper part of the garage structure when standing close to the garage, from further away both the structure itself and any vehicle parked inside it would be seen, and it would be an additional structure in the streetscape. The Council accepts that the applicant has concerns for security, however the applicant's concerns are not a relevant planning consideration, nor a reason for the private interest to outweigh the public interest reflected in the controls. The Council has already allowed two car spaces off the street in the setback area, one of which has security. Approval of the proposed garage would affect the streetscape of the contributory item.

Consideration

36 The experts agreed, and the view confirmed, that the streetscape character of Kareela Road differs between the western (higher) side, where dwellings are set above the street level, and where rear lane parking is available, and the eastern (lower) side where dwellings are generally set below street level, and where there are steep sites sloping to Mosman Bay with frontages to Cremorne Reserve and Kareela Road. Some of the properties on the eastern side of Kareela Road have garages on the Kareela Road frontage, including single garages, double garages, carports, and hardstand parking spaces, accessed from the street.

37 Mr Neustein noted that there are about 29 houses on the eastern side of Kareela Road and possibly 18 have garages, eight of which are double garages. Appendix A to the second joint report of the heritage experts (exhibit 4) provides details of car parking facilities for Nos 21-65 Kareela Road, including information as to heritage status and development consents (from 1994). Appendix A confirms that 18 of the properties between 21-65 Kareela Road have garages, five of which are double garages. The adjoining property to the north, a duplex at 55 Kareela Road, which is a contributory item, has a double garage at the street, approved by Council to replace a double carport. To the south, 51 Kareela Road, which is a neutral item, has a double garage with flat roof, with an adjoining single garage for the property to the south at 49 Kareela Road, which is a contributory item.

38 In their consideration of streetscape, Mr Neustein and Mr Tse differed as to how to consider the character of the eastern side of Kareela Road. Mr Tse considered that there are three sections, the southern from 1-27 Kareela Road with buildings on a gentle slope highly visible from the street; the middle section 31-53 Kareela Road with main buildings on lower levels not highly visible from the street, and views to the east over Mosman Bay available between the existing structures and vegetation; and the northern section 55-65 Kareela Road where the properties have frontages to the access road lower than the level of the main carriageway, buildings not highly visible from the street, and views to Mosman Bay available over the roofs of dwellings and buildings. Mr Neustein agreed that there are three character zones on the eastern side, with houses with single and double garages at the northern and southern thirds with a shorter middle third with fewer garages, and in his opinion the subject site is well within the northern third. Mr Neustein's evidence was that the central section ends at 51 Kareela Road, that 51 and 53 are clearly different to the other properties, and that 53 falls into the northern section even though it does not access Kareela Road from a separate access road. Garages are common in the northern and southern thirds, some dating from the late 1920s, and all are characteristic of the emerging trend to car ownership in the inter war period, and in his opinion an additional garage could not be considered to be "uncharacteristic".

39 There are, as observed on the view and identified in Appendix A to exhibit 4, a number of garages at the street frontage along the eastern side of Kareela Road, a factor both of topography and the pattern of development of that part of Cremorne. Based on Appendix A to exhibit 4, the only property on which there is a contributory item that has a double garage is the adjoining duplex at 55 Kareela Road where a double carport was replaced by a double garage under a consent granted by the Council (DA349/06). While it may be that approval of those two garages at 55 Kareela Road was given to provide a single garage for each of the two duplexes on that site, I agree with Mr Phillips that it is not possible to get a sense of the number of dwellings at 55 Kareela Road from the street, and the effect on the streetscape is the same as approval of a double garage for a single dwelling. In my view it is not significant whether Mr Tse's or Mr Neustein's division of Kareela Road into three sections is adopted. Based on the view, there is a distinct difference between the topography and location of dwellings and houses in the lower, southern, part of the eastern side of Kareela Road, and that in the upper or northern part, where garages and dwellings are accessed from a separate access road below the level of Kareela Road. The subject site falls within a middle section where the dwellings are located below street level and where there are views over and between buildings across to Mosman Bay. In the part of Kareela Road in the locality of the subject site, whether that be broadly defined according to Mr Tse's evidence or more narrowly according to Mr Neustein, there are existing garages at the street frontage, including that on the subject site and on the immediately adjoining properties at 51 and 55, and I accept that garages at the street frontage could be regarded as a common element.

40 In considering whether the proposed double garage should be approved, the starting point is the requirement in cl 2.3(2) of the LEP to consider the zone objectives and that in cl 5.10(4) to consider the effect of the proposed development on the heritage significance of the HCA. The provisions of the DCP must be taken into consideration under s79C(1)(a)(iii) of the Act, and considered as a fundamental element or focal point of the decision-making process; and while not determinative, the standards set in the DCP are entitled to significant weight: Zhang v Canterbury City Council (2001) 115 LGERA 373 at [75]. Section 79C(3A) of the Act provides:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

41 The DCP adopts an approach similar to that prescribed in s79C(3A), stating at Part A section 1.7.2 that its format is "intended to encourage flexibility and innovation in development while ensuring the objectives for North Sydney are achieved".

42 It was common ground that the proposed double garage and entry structure cover more than one third of the street frontage, which is 14.7m. Mr Tse estimated that the garage and entry structure would be 8.5m, or cover 58% of the street frontage; Mr Neustein queried whether the entry structure should be included, but accepted that the double garage itself would be in the order of 5.7-5.8m. Based on its coverage, the proposal would be considered to be an "uncharacteristic" element under section 6.4.7 in Part C of the DCP. It is also located within the front setback of the dwelling in a heritage conservation area, and for that reason would also be considered an "uncharacteristic" element under section 13.9.5 of Part B of the DCP, and also contrary to P10 at section 1.5.4 of Part B of the DCP.

43 The objectives for heritage conservation areas include encouraging change "that will remove uncharacteristic items or reduce the extent of their intrusion" (13.6.1, O4). Section 13.6.2 P4 provides for the removal of uncharacteristic or intrusive elements, or incorporating changes to improve design and visual impact (P6).

44 Section 79C(3A)(b) requires flexibility in the application of the standards set in the DCP, having regard to whether the objectives of the standards are achieved. It may be that in the context of the topography and the existing development in the section of Kareela Road where the subject site is located, the addition of a double garage occupying more than one third of the street frontage and located within the front setback could be regarded as not inappropriate. However, for there to be a departure from the standards set by the DCP, the central issue is whether the development as proposed would achieve the objectives identified in the DCP.

45 Section 1.3.6 of Part B of the DCP requires consideration of views from dwellings, and from streets and other public places. Section 13.6.2 P3 in Part B provides that development should not obstruct existing views in the public domain including slot views over and between buildings. Views from Kareela Road are identified at section 6.4.4 in Part C as a significant element in the Cremorne Point Conservation Area.

46 The view from that part of 32 Kareela Road to which access was granted established that while the addition of a garage over the hardstand would reduce the view across to Mosman, there would be a significant view remaining, including a view across the water. In my view, the impact on views from 32 Kareela Road would not be of such significance to be counter to the objective of ensuring equitable access to views from dwellings in section 1.3.6, O2.

47 The position with views from the public domain is different. The view confirmed that the roof of the dwelling at 53 Kareela Road, which is a contributory item, is visible from the street. While I accept the agreed evidence of the heritage experts that the existing hardstand is uncharacteristic, it does allow a view over the roof of 53 Kareela Road. I accept, as was agreed between the experts, that a view of the contributory item at 53 would still be possible a few steps to the south. I accept, as Mr Neustein argued, that there would still be slot views on the northern side of the entry gateway, and that the street tree would provide a filtering effect.

48 The development as now proposed incorporates glazing to allow views through the proposed structure along its southern side and to the rear. That would, however, not permit the full extent of the views across to Mosman Bay presently available over the hardstand. Mr Phillips accepted that at a distance the glass would become opaque and reflective; in his opinion, while it would not be completely transparent, there would be some transparency. Based on that assessment, I agree with Ms Varley that because of reflections on the glass sheeting, if there is an improvement in views it would be marginal, as a person would need to be close to the structure for there to be an improvement in views over the existing garage, and that would be lessened compared to what is available over the existing hardstand.

49 While it would not remove entirely the views now available, the addition of a second garage, even in the form now proposed incorporating substantial glazing, would reduce rather than retain the slot views between and over structures along Kareela Road including garages and dwellings, contrary to P3 of 13.6.2, and P2 of 6.4.6 of the DCP. Those views are identified as a significant element in the Cremorne Point Conservation Area. The proposed development would increase the bulk of the structure at the street frontage, contrary to O4 of section 13.6.1 which seeks to remove uncharacteristic items or reduce the extent of their intrusion.

50 The existing hardstand, together with the garage, provide the two off-street parking spaces considered appropriate at section 10.2.1 of Part B of the DCP. I accept the applicant's evidence that a second garage would provide greater security, more storage space, and protect the second vehicle from damage caused by possums in the street tree. However, the greater amenity that would be provided to the occupants of the subject property is not in my view justified having regard to the objectives expressed in the LEP for the R2 zone of ensuring that development does not compromise the amenity of the surrounding area or natural or cultural heritage, and in cl 5.10(1) that the heritage significance of heritage conservation areas is conserved, and when considered against the detailed provisions of the DCP. The proposed development is not consistent with the objectives of the controls provided in the DCP for residential development generally, or the specific controls applying to the Cremorne Point Conservation Area. The application should be refused.

Orders

51 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application D334/13 for the construction of a garage over an existing open hardstand at 53 Kareela Road Cremorne Point is refused.

3. The exhibits are returned except for exhibits A and 1.

Linda Pearson

Commissioner of the Court

Decision last updated: 17 June 2014