Stevens v North Sydney Council [2020] NSWLEC 1614

Land and Environment Court New South Wales

Medium Neutral Citation: Stevens v North Sydney Council [2020] NSWLEC 1614 Hearing dates: 26 November 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court Are: (1) The appeal is dismissed. (2) Development Application No. 289/19 for a new double carport over an existing hardstand at 111-113 Milson Road, Cremorne Point, is refused. (3) The exhibits, other than exhibits 1, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION – carport over an existing hardstand in the front setback – heritage conservation area Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 Category: Principal judgment Parties: Rosetta Stevens (Applicant) North Sydney Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent)

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Hall & Wilcox (Respondent) File Number(s): 2020/73040 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 289/19 for the construction of a double carport over an existing hardstand (the proposal) at 111-113 Milson Road, Cremorne Point (the site) by North Sydney Council (the Council). 2. The appeal was subject to conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation commenced with a view of the site and the locality. As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The hearing was held via MS Teams. 3. Leave was granted by the Court at the commencement of the hearing for the applicant to amend the application to rely on amended drawings which reduced the width of the carport from 7.6m to 6m (Ex A). 4. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposal will have an unacceptable adverse impact on the heritage significance and character of the Cremorne Point Conservation Area; * The proposal will have an unacceptable adverse impact on the character of the Milson Road streetscape; * The proposal will result in a site coverage in excess of the maximum site coverage control; * The siting of a double carport within the front setback is an unsatisfactory location for car parking because it minimises the garden setting of the contributory item and fails to provide a safer parking area as compared to car parking off the rear lane. 1. A number of conditions of consent (Ex 5) are opposed by the applicant. The site and its context 1. The site is on the eastern side of Milson Road, north of Sirius Street. The site has a secondary frontage to Cremorne Lane. The site has an area of 650.1sqm and a frontage to Milson Road of 15.24m. The site contains a two storey Federation building, which was semi-detached dwellings and is now a dwelling and an apartment with a private entry. 2. The front setback includes a hardstand and parking for two cars, accessed via a wide crossover and sliding front gates. The site previously had two attached garages in the front setback which have been demolished. 3. The site falls from the rear to the front. The rear setback includes a paved area behind the house and stairs up to a lawn and a swimming pool. The proposal 1. The proposal is a double carport over the existing hardstand. The proposal retains the existing sliding gates, crossover and hardstand paving. The hardstand paving is reduced in area and new landscaping is proposed on either side of the carport. The carport is 6m wide and 5.5m deep. The carport is constructed from timber framing and a metal roof with a shallow fall towards the street. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, 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. 1. The site is within the Cremorne Point Conservation Area (Sch 5 to LEP 2013). The site is identified as contributory to the Cremorne Point Conservation Area at Appendix 1 Table App 1.1 North Sydney Development Control Plan 2013 (DCP 2013). Clause 5.10 of LEP 2013, Heritage conservation, includes the objective of conserving the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, at (1)(b). Clause 5.10(4) of LEP 2013 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the item or area concerned. 2. The properties, 103, 107-109, the site, 115 and 119 Milson Road are individually identified as contributory items to the Cremorne Point Conservation Area. 107 to 117 Milson Road are three pairs of (originally) semi-detached early 20th century dwellings which, with 103 and 119, form a row of contributory items on the eastern side of Milson Road. To the north of the site, 125 and 129 Milson Road are also identified as contributory items. 107 and 115-117 Milson Road each has a garage or a carport. The carport at 107 Milson Road was approved by the Council in 1986 (Ex 6). The pair of attached single garages at 115-117 Milson Road was approved by the Council in 1965 (Ex 6). 3. DCP 2013 applies to the proposal at Part A, section 1.2. The relevant aims of DCP 2013, at section 1.6, are: "(a) Ensure that development positively contributes to the quality of the natural and built environments; … (d) Ensure future development has consideration for the needs of all members of the community; (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;" 1. Section 1.7.2 of DCP 2013 includes the following explanation regarding development controls: "Many of the provisions are performance based, which provides added flexibility in meeting the desired intent of the provision where developments may not necessarily meet specific numerical standards, due to site or environmental constraints." 1. The relevant objective for setbacks, at Part B, section 1.4.6, is "to reinforce the characteristic pattern of setbacks and building orientation within the street". 2. The objective for form, massing and scale, at section 1.4.7, is "to ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings". Provision 6 requires ancillary buildings (eg garages, carports, garden shed, etc) are a much smaller scale than the residential building. 3. The relevant objectives for vehicular access and car parking, at section 1.5.4, is to provide adequate on-site car parking for residents and to minimise adverse visual impacts on the appearance of the street or building. Parking areas must be designed to enable cars to enter and leave the site in a forward direction, at P6; garages, carports or other like parking structures must not be located between the primary street frontage and the primary street façade of the building, at P10; and a single car parking space may be located in the front setback only if the parking space is uncovered, at P11. 4. The provisions for heritage conservation areas are at Part B, section 13.6 of DCP 2013. Contributory items are described as follows: "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." 1. The relevant general objectives for heritage conservation areas, 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." 1. The objectives for form, massing and scale, at section 13.6.2, are: "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 as identified within the Area Character Statements." 1. Section 13.9.5, Garages and carports, states that "carports and garages can have a detrimental impact on heritage items and the streetscape of heritage conservation areas". The relevant objective is "to ensure that vehicular accommodation does not detrimentally impact upon the significance of the heritage item or heritage conservation area". P6 requires "any off street parking located within the front setback area to remain uncovered". 2. The area character statement for the Cremorne Point Conservation Area is at Part C section 6.4 of DCP 2013. The statement of significance, at section 6.4.3, is: "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." 1. Significant elements, at section 6.4.4, for streetscape are "continuity of fences and landscaping. Sandstone kerbing, sandstone and concrete walls, street gardens." 2. Uncharacteristic elements, at section 6.4.7, include "carports and garages covering more than 1/3 of the street frontage". Expert evidence 1. The applicant relied on the expert evidence of Paul Davies (heritage) and Kerry Gordon (planning). The Council relied on the expert evidence of Robyn Pearson (planning) and Lucinda Varley (heritage). The experts prepared joint reports which were admitted into evidence as Ex 2 (planning) and Ex 3 (heritage). The heritage experts gave evidence during the site view. The experts were not required to give oral evidence. 2. The heritage experts disagreed on the impact of the proposal on the heritage significance of the Cremorne Point Conservation Area. 3. According to Mr Davies, the proposal does not physically affect any element of significance and is fully reversible. He noted that the structure is quite ephemeral. In Mr Davies' view, the carport has been designed to minimise its visibility from the street as an appropriate response to the HCA and the house and there will be no confusion about the existing house being a contributory item. In Mr Davies' view, there is no alternative on the site for garaging. Mr Davies noted that carports are characteristic within the Cremorne Point Conservation Area because they exist in sufficient numbers to be clearly observable element within the streetscape. 4. The Cremorne Point Heritage Conservation Area is varied, inconsistent, mixed and does not have a cohesive character as is often found in heritage conservation areas, in Mr Davies' view. He noted that the character of the immediate area of the site is extremely mixed with numerous street front garages, car spaces, ramps, driveways and elements. 5. According to Ms Varley, the proposal will create a visual obstacle between the public domain and the primary façade of the house identified as a contributory item, because the carport will obscure the lower portion of the house. Any contemporary structure in front of the contributory item detracts from the setting of the item and dilutes the heritage character of the streetscape. She noted that the single carport in the front setback of 107 Milson Road was approved in 1986, before DCP 2013 commenced. In Ms Varley's view, the proposal would detract from the visual appreciation of the front façade of the house, negatively impact on the streetscape and adversely impact the significance of the Cremorne Point Conservation Area. In Ms Varley's view, the "1/3 rule" is relevant for properties without rear lane access, as a compromise.