Land and Environment Court New South Wales Medium Neutral Citation: Graphio AM v The Council of the City of Sydney [2021] NSWLEC 1219 Hearing dates: 15 April 2021 Date of orders: 4 May 2021 Decision date: 04 May 2021 Jurisdiction: Class 1 Before: Morris AC Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application D/2020/629 which sought consent for external alterations to a heritage listed property including a new off-street car parking space in the front yard, removal of one tree, associated landscaping and works to the front fence at 40 Brown Street, Newtown is refused consent. (3) The exhibits, other than exhibits A, B, C and 1 are returned. Catchwords: DEVELOPMENT APPLICATION – heritage item – impact of carparking within listed garden area and streetscape Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34AA Sydney Local Environmental Plan 2012, cll 2.3, 5.10, 6.21 Texts Cited: COVID-19 Pandemic Arrangements Policy Sydney Development Control Plan 2012 Category: Principal judgment Parties: Graphio AM (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) A Simpson (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Sydney City Council (Respondent) File Number(s): 2020/267076 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application D/2020/629. The application sought consent for external alterations to a heritage listed property including a new off-street car parking space in the front yard, removal of one tree, associated landscaping and works to the front fence at 40 Brown Street, Newtown. 2. The applicant has been granted leave to amend the application from that submitted to the Council. The plans before the Court now propose the reduction in the extent of hardstand area proposed, the narrowing of the proposed carparking gate, provision of additional landscaping, use of grass in association with pavement treatment and deletion of a fountain that was proposed. 3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 April 2021. I presided over the conciliation conference. 4. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, the matter was conducted by Microsoft Teams however a site view was undertaken. 5. The parties did not reach agreement in relation to the contentions in the case and the matter proceeded to hearing. The site and locality 1. The site has a legal description of Lot 1 DP 1149459 and is known as 40 Brown Street, Newtown. It is irregular in shape with an area of approximately 489.3m2 and has a primary street frontage to Brown Street to the west of the site with no rear street or lane access. The site is located close to the T-junction of Linthorpe Street with Brown Street. 2. The site contains a two-storey Victorian Filigree style dwelling with front garden and fence. The front setback now contains two trees, one of which, a Murraya paniculata, would be removed to provide for the construction of the proposed car space. 3. The site is an identified heritage item details of which are discussed below. The dwelling and garden are the items identified as significant. The dwelling was constructed around 1890 and occupied two allotments. In 1945 the property was transferred to a funeral director and at some time around 1946 a chapel and mortuary were constructed and use of the site as a funeral parlour commenced. 4. In 2008 the Council granted consent for demolition of the chapel, garage and office building and retention of the villa, Rowallon together with relocation of the common boundary between the original two lots to create lots sizes of 479 m2 (containing Rowallon) and 292m2 (No 40A Brown Street). A subsequent consent granted in 2009 provided for the construction of a dwelling on that lot and allowed for the provision of a hardstand car parking space forward of the building line. Access to that space was on the opposite side of the allotment to where the former vehicle access to the garage had been. 5. The surrounding area is characterised by a mixture of land uses, primarily being residential uses. To the north, is a c1960s four storey residential flat building at 38 Brown Street identified as a detracting building in the Heritage Conservation Area within which these sites and the subject site are located. That building has garages at the lower level with the concrete driveways that service them occupying the majority of the site frontage. 6. To the south, is a two-storey contemporary dwelling at 40A Brown Street. That dwelling has a hardstand parking area within the front setback area and is located on land that originally formed part of the Rowallon property. 7. To the east, on the opposite side of the street, are single storey heritage-listed dwellings. Other than the residential flat building at No 38 and the adjoining dwelling at No 40A, there are no other carparking spaces forward of the varied building line on either side of Brown Street. It is common ground that the setbacks of the majority of the dwellings are inadequate to accommodate a vehicle. Planning controls 1. The site is zoned R1 General Residential pursuant to the provisions of Sydney Local Environmental Plan 2012 (LEP). It is listed as an heritage item under the provisions of the LEP, Number 1966 'House "Rowallon" including interior and front garden'. 2. Clause 5.10(2) of the LEP requires consent for the proposed works with subcl (10) establishing those matters that must be satisfied for consent to be granted. Of relevance are subcll (d) and (e) are relevant and are in the following form: (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 1. Clause 5.10(4) of the LEP requires the consent authority to consider the effect of the proposed development on the heritage significance of the item concerned regardless of whether a heritage management document is prepared. Neither a heritage management document or a heritage conservation management plan was submitted with the application however a statement of heritage impact was lodged. 2. The Statement of Significance for the listing is as follows: "Rowallon has local historic and aesthetic significance. It dates from the key period of development of the Newtown area and the subdivision of the Linthorpe Estate it is a fine example of a Victorian Italianate villa, which is rare within the locality." 1. The recommended management for the building is for its retention and conservation in accordance with an Heritage Impact Statement or Conservation Management Plan with no vertical additions or alterations to the façade of the building other than to reinstate original features. Any additions or alterations should be confined to the rear in areas of lesser significance, should not be visibly prominent and shall be in accordance with the relevant planning controls. 2. The site is also located within the Bucknell Street Heritage Conservation Area – C39 (HCA). The site is identified as a contributing building on the Building Contributions Map for the conservation area under Sydney Development Control Plan 2012 (DCP). Recommended management within the HCA relevant to the application is maintaining building alignments, retaining finishes and details, respecting the building line of significant development, limiting car parking access from the street and not allowing carparking forward of the building line and establishing, maintaining and enhancing street planting to unify the streetscape. 3. Clause 6.21 of the LEP is relevant to the contentions in the case and is in the following form: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters— (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design… 1. The site is within the North Newtown locality under the provisions of the DCP. The principles for that locality require development to respond to and compliment heritage items and contributing buildings within the HCA, including streetscapes and lanes and provide access for vehicles from rear lanes. The DCP at clause 3.9.5 has specific controls that apply to heritage items with the objective of ensuring that development in the vicinity of such items is designed and cited to protect the heritage significance of the item. 2. Relevant provisions require development to minimise the extent of change to significant fabric, elements or spaces and not reduce or obscure the heritage significance of the item. 3. Development within HCAs, as required by clause 3.9.6 of the DCP, is to be compatible with the surrounding built form and urban pattern by addressing the HCA's Statement of Significance and responding sympathetically to views to and from the site and the interface between the public domain and building alignments and property boundaries. Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area. The parties agree the development as proposed is not infill development. 4. Clause 3.11.11 of the DCP applies to vehicle access and footpaths with subclause (3) requiring car parks to be designed so that vehicles do not queue or reverse across pedestrian footpaths. The proposed carparking space would require a reverse movement contrary to this provision. 5. Clause 4.1.9 of the DCP applies to Car parking with the objective of establishing the requirements for the design and location of car parking for dwelling houses. Provision (2) requires car parking spaces and structures to be located behind the main building line and to be subordinate in appearance to the main building. Car access is not permitted across the front boundary for terrace houses or properties in HCAs (subclause (5)). 6. Clause 4.1.7 of the DCP applies to Fences with subclause (3) pertaining to Heritage Items and sites within HCAs. These provisions require the retention or repair of original fences where possible and if not practical, new fencing is to match the original proportions, materials and details of the original fencing. The contentions 1. The Council's remaining contentions following the grant of leave in regard to the plans now before the Court are whether the proposal will adversely impact the heritage item and have an adverse impact on the HCA and whether the proposal represents design excellence. The evidence 1. Expert evidence was heard from: 1. The heritage experts agree that the provision of carparking forward of the front building line is contrary to the provisions of the DCP however as no rear lane access is available, this is the only location where parking can be provided. They also agree a carport or garage within the setback area would have a greater impact on the significance of the heritage item than the proposed parking space and if the Court was mindful to approve the space, a porous surface, such as the grass pavers now proposed would have less of a visual impact and be more appropriate in the front garden than a paved hardstand as originally proposed. They also agree that further details of the size, pattern and colours of the proposed tiles and border should be provided, a matter which could be addressed as a condition of any consent granted. They also agree that the primary issue relevant to contention one is whether the proposed parking space, kerb crossing and fencing impact is satisfactory. They agree that landscaping issues are secondary and, if consent were to be granted, the landscaping as proposed would be satisfactory. 2. There is no agreement between the experts as to whether or not the proposed parking space is acceptable having regard to its impact on the heritage item Rowallon. Mr Poulton notes that Rowallon has a large front garden, with the front verandah of the Villa being set back approximately 10.1 metres from the street boundary of the property. The front garden is part of the heritage listing of the property and an important part of the setting of Rowallon. The main dwelling, original roof form and chimneys, front elevation and formal garden setting with partial steel palisade fence contribute to the overall presentation of Rowallon to the street. He says the front garden is an important part of the traditional character of the item, which should be retained as such and not partly occupied by carparking. The provision of the proposed parking space and associated removal of approximately 1.2 metres of the existing palisade fence, installation of the proposed crossover, vehicle gates and piers will have an adverse impact on the presentation, character and significance of Rowallon. The car parking space forward of the front of the building will be an uncharacteristic and detracting feature of the front garden to the house. Such an adverse impact to a heritage item is contrary to the intent of the objectives of cl 5.10 of the LEP which is to conserve the environmental heritage of the city. 3. Ms Schutz says the proposal would include the retention of the heritage item, would not include any alterations or additions to the existing dwellings and would improve the overall treatment of the site. The proposed car space would be constructed in grass pavers and would be situated in the southern section of the site, set back approximately 5 metres from the dwelling. The design would minimise the visual impact upon the existing setting and ensure that the car space would not detract from the significance of the item. She says the proposed garden pavers would contribute to the garden setting and would be considerably more appropriate than a hardstand. The introduction of a car parking space would not detract from the significance of the item, particularly where clear consideration has been given to their design, siting and materiality and would ensure the retention of significant views to the dwelling from the public domain. The proposal would include the retention and conservation of the existing fence in conjunction with the introduction of additional soft landscaping and the removal of an intrusive mesh fence. These elements contribute to the setting of the item and would respect the significance of that item. 4. Mr Poulton acknowledges that there are several nearby crossovers and car parking spaces or garages in Brown Street such as the 1960s block of flats next door at 38 Brown Street, the 1970s block of flats at 26 to 28 Brown Street and the infill dwelling at 40A Brown Street. The fundamental differences between these examples and the subject property are that they predate the current planning controls and are listed on the DCP building contributions map as either being detracting or neutral, that is, they are not contributing to sites or heritage listed items such as the subject site. 5. He says they do not make a positive contribution to the character of the streetscape and conservation area, rather they detract from the area. Any proposal for this heritage listed site, including car parking, should respect its character and significance and not take its cues from detracting elements of non-contributory sites in the HCA. Car parking within front gardens of properties is not part of the historic character of the conservation area, nor is it intended to be part of the desired future character as indicated in the Newtown North locality statement. The recommended management in the heritage conservation inventory report of the Bucknall Street HCA clearly states "do not allow carparking forward of the front building line". 6. Ms Schutz says that due to the nature of the site and a lack of rear access, the provision of a car space is required forward of the front building line. However, clear consideration has been given to the proposed design, scale and materiality of the space in order to minimise the potential visual impact of the car space on the HCA. This includes the use of grass pavers, the absence of a carport or garage structure, the retention of the existing fence and the removal of the intrusive mesh fence. 7. In noting the existing adjacent car parking spaces, she says it should be acknowledged that the detailing and materiality of the proposed car parking spaces at the subject site would be more appropriate for the HCA than those situated in proximity. It would, in her opinion respect the significance of their contributing item. The proposed use of the grassed pavers rather than hardstand would minimise the visual impact and would insure the car space would be in keeping with the garden setting of the item which contributes to the HCA. 8. The planners do not agree whether the proposed development demonstrates design excellence as required under cl 6.21 of the LEP. 9. Ms Robinson relies on the number of contributory buildings within the vicinity of the site which contain a garden area within the front building line and are absent the presence of car parking hardstands. She notes the only buildings which contain car parking and or driveway areas forward of the building line are recognised as be detracting buildings and for this reason says the provision of the proposed hardstand area does not exhibit design excellence. She also notes the proposal is contrary to the DCP controls, the site is within 500 metres of three train stations and several bus routes and the continued use of the dwelling as a residence could continue without construction of the car parking space. 10. Mr Haskew says the paving with grass inserts is the best paving solution available and the design and materials of the proposed front fence and gates has been selected to match the existing. The location of the car space occupies a similar position to the former Chapel and therefore minimises impact on the historic garden setting. For those reasons he considers the development is appropriate to the fencing type and the parking space is appropriately located. He says there is a consistency of Victorian era terraces we see in the locality with the most alien a feature to the streetscape in the immediate vicinity of the site being the northern adjoining residential flat building. He says it is critical in his assessment that properties on either side of the site contained vehicular crossings and car parking which is visible to the public domain. Recognising that car parking forward of the building line is contrary to the DCP requirements he says a merit assessment must be undertaken and concludes that these adjoining developments are physical inclusions within the public domain and are therefore anomalous to the homogenous exclusion of parking within the HCA. 11. He says the aspects of the site which make it suitable for the proposed development are that it is adjoined on either side by properties which have off street parking forward of the main building line and/or visible from the site and that the site does not have rear lane access. The development addresses these site attributes by locating the proposed parking space to minimise impact on the historic garden area of the heritage item, by avoiding the use of carport or garage structures and providing grass pavers to mitigate visual impact. Conclusion and findings 1. Having regard to the evidence, I am not satisfied that the development as proposed is appropriate in relation to the heritage significance of the site. The listing recognises both the dwelling house and its garden, and the introduction of the proposed parking area is contrary to this significance. It represents a foreign element and, as observed on the site view, the parking of a vehicle on a hardstand area forward of the building line in Brown Street is highly visible and would detract from the item. The fact that the site contains a heritage item results in far greater weight being placed on the impact of a proposal than if the site was only within an HCA. I accept the evidence of the Council's experts that the proposed development would have an unacceptable impact on the heritage item and the HCA generally. 2. I acknowledge that there were previous structures on the site as listed however these have been demolished and, in the case on No 40A Brown Street, the foreign element of carparking remains. I do not consider this fact to justify further intrusion of the curtilage of the heritage item. The proposed hardstand area would extend further to the north of the site than the previous chapel building further diminishing the extent of garden area available. I do not consider the use of grass pavers is an appropriate alternate to the formal garden that is characteristic of the heritage item. 3. Similarly, the lack of rear lane access is not a reason to allow the proposed car space. There are numerous sites without such access and, whilst most have a lesser building line that the site, apart from the adjacent residential flat buildings and No 40A, there are no parking spaces or hardstand areas within the vicinity of the site. The strong garden treatment of the setback areas is consistent with the character of the HCA and therefore should be maintained. 4. As I am not satisfied that the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, consent should not be granted. Nor am I satisfied the development would deliver the highest standard of urban design, particularly having regard to the Council's planning controls and the desired future character for the Bucknell Street HCA. 5. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application D/2020/629 which sought consent for external alterations to a heritage listed property including a new off-street car parking space in the front yard, removal of one tree, associated landscaping and works to the front fence at 40 Brown Street, Newtown is refused consent. 3. The exhibits, other than exhibits A, B, C and 1 are returned. ……………………. Sue Morris Acting 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. Decision last updated: 04 May 2021