Land and Environment Court New South Wales Medium Neutral Citation: Giles v Newcastle City Council [2024] NSWLEC 1028 Hearing dates: 24 January 2024 Date of orders: 1 February 2024 Decision date: 01 February 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 2022/01376, for alterations and additions to a dwelling house including a driveway layback and vehicular crossing and associated landscaping, at 145 Dawson Street, Cooks Hill, is refused. (3) The exhibits, other than Exhibit 2, are returned. Catchwords: DEVELOPMENT APPLICATION – hardstand in the front setback and driveway – detrimental impact on the heritage significance of the heritage conservation area Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, ss 34, 34AA Newcastle Local Environmental Plan 2012, cl 5.10, Sch 5, Pt 2 Texts Cited: Newcastle Development Control Plan 2012 Newcastle Development Control Plan 2023 Category: Principal judgment Parties: Carla Giles (First Applicant) Douglas James Giles (Second Applicant) Newcastle City Council (Respondent) Representation: Counsel: P Jayne (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: SWS Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/319651 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. 2022/01376 for alterations and additions to a dwelling house including a driveway layback and vehicular crossing and associated landscaping (the proposal), at 145 Dawson Street, Cooks Hill (the site), by Newcastle City Council (the Council). 2. The appeal was subject to conciliation on 24 January 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) of the LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposal will have an unacceptable impact on the Cooks Hill Heritage Conservation Area (Cooks Hill HCA). The conspicuous presence of car parking in an atypical location, necessitating removal of a front garden and transitional verandah, would be visually intrusive in the historical setting and inconsistent with the streetscape and character of the HCA. Front gardens are a traditional part of historic contributory buildings in the HCA and the provision of parking in the front setback detracts from the historical appearance and setting of the contributory building. The removal of heritage sandstone kerbing would adversely impact on the streetscape continuity. * The small car space proposed would compromise pedestrian access and result in the loss of an on-street car space. The site and its context 1. The site is on the south-eastern side of Dawson Street, on the block bounded by Tooke Street and Parry Street. Centennial Park is on the opposite side of Dawson Street. 2. The site has an area of 295.7m2 with a frontage of 5.81m to Dawson Street. The site contains a small period workers' cottage with contemporary alterations and additions. The cottage is one of a group of five. 3. The locality generally consists of workers' cottages, single-storey Victorian dwellings and two-storey Victorian terrace houses and infill development. The proposal 1. The proposal is to create a hardstand parking area within the front setback which is 5025mm deep. The proposal is to not construct the front verandah floor (for which consent has been granted but is not yet constructed), but to construct a landing outside the front door, so that a car can park directly adjacent to the front façade and under the existing verandah roof. The proposal includes a front fence with a retracting gate for the car. The proposal includes a driveway crossover. Planning framework 1. The site is zoned R3 Medium Density Residential pursuant to Newcastle Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. 2. The site is within the Cooks Hill HCA (Sch 5, Pt 2 to LEP 2012 and Heritage Map – Sheet HER_004G of LEP 2012). The relevant objectives of the heritage conservation clause, cl 5.10(1) of LEP 2012 are as follows: (a) to conserve the environmental heritage of the City of Newcastle, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views 1. The consent authority, or the Court exercising the functions of the consent authority, must, before granting consent under cl 5.10 of LEP 2012, in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area concerned, pursuant to cl 5.10(4) of LEP 2012. 2. Newcastle Development Control Plan 2012 (DCP 2012) applies to the site. Section 6.02 Heritage Conservation Areas applies to land shown as a HCA on the LEP map. The dwelling on the site is identified as a Contributory 1 building (Contributory Buildings Map – Cooks Hill Heritage Conservation Area of DCP 2012), which is defined as follows: "Contributory buildings - are buildings that contribute to the character of the heritage conservation area. They are: (i) Heritage item – buildings that are listed as a heritage item in the Newcastle Local Environmental Plan 2012; or (ii) Contributory 1 – buildings that clearly reflect a Key Period of Significance for the heritage conservation area and are key elements of the heritage conservation area. This ranking is assigned where the main front portion of the building is largely unaltered as viewed from the street. Includes buildings with rear additions which do not affect the main front roof; or (iii) Contributory 2 – buildings that have been altered but are still identifiable as dating from a Key Period of Significance for the heritage conservation area. They retain their overall form from the original date of construction and, even though altered, are contributory to the heritage conservation area character. This ranking is assigned where a building has alterations such as cement rendering to Federation or Inter-war period brickwork or a first floor addition which affects the main front roof form, yet the period and style of the building remains discernible." 1. The Statements of Heritage Significance and Desired Future Character for the Cooks Hill HCA are as follows: "Cooks Hill Heritage Conservation Area Summary Statement of Heritage Significance Cooks Hill Heritage Conservation Area is culturally significant on a number of levels. As a residential and commercial precinct it is regarded for its special historical character, liveable streetscapes, diverse range of historic residential and commercial buildings and several tree lined streets. The age of the suburb, relative to other suburbs of Newcastle, is apparent in the style and form of buildings and eclectic street layout. It has a significant visual character comprising buildings which represent all of the common architectural styles including mid 19th century workers' houses and terraces, Federation bungalows, Inter-war cottages and post-war residential flat buildings. A critical mass of contributory buildings, traditional streetscapes, significant trees, sandstone kerb and gutters, artefacts, heritage listed hotels, shops and parklands, gives the suburb a strong sense of place and a distinctive historic identity valued by local residents and visitors. Cooks Hill is closely associated with the Australian Agricultural Company as part of the original 2000 acre grant owned by the Company. The Company began to sell off parts of Cooks Hill in the 1850s. However, even before that the Company built huts for its workmen and so the area began its life as a mining village in the midst of the Company's railways and mines. When the first land sales did occur, development was rapid along Lake Macquarie Road (Darby Street) and eventually Blane Street (Hunter Street), becoming an extension of the main laid out streets towards the City Centre. The early houses were single and two storey terraces and miners' cottages, both brick and timber. Retailing and hotel keeping flourished as did the population. The area is significant as it reflects the land uses and activities of the AA Company. Its mines, its railways, and the Colliery railway serving the Merewether district, exercise a strong physical presence over Cooks Hill to this day. Key Period of Significance – circa 1850 to 1940 Desired Future Character Statement The character of the Cooks Hill Heritage Conservation Area is made up of a variety of building styles that date from the late 19th and early decades of the 20th century. The special character of Cooks Hill will be preserved, celebrated and maintained through the retention of contributory buildings, the existing subdivision pattern, and elements of visual interest. Elements that are to be preserved include: ▪ contributory buildings constructed prior to the Second World War ▪ mature trees in gardens and the public domain ▪ the former Burwood Coal and Copper Company rail line and bridge abutments at Laman Street ▪ heritage fences ▪ sandstone kerbing and guttering ▪ Victorian era post box on Corlette Street ▪ pubs and shops on Darby, Union and Bull Streets and ▪ parks, including Centennial Park, Corlette Street, National Park. The eclectic character of Cooks Hill will continue to provide residents with a unique and valued sense of place into the future." 1. Section 6.02.01 of DCP 2012, Alterations and additions in heritage conservation areas, includes the following relevant objective: "Contributory buildings are retained, recycled and adaptively reused, and their positive contribution to the area or streetscape is maintained. Reconstruct original features by removing unsympathetic alterations and additions or using more appropriate decorative treatment." 1. Section 6.02.03 of DCP 2012, Accommodating vehicles in heritage conservation areas, includes the following relevant objectives and controls: "Objectives ... 2. Maintain the relationship of buildings to the street and to their settings. ... Controls ... 2. Additional vehicle crossings in heritage conservation areas are not supported unless the vehicle crossing is to a rear laneway. ... 4. Where access to the rear or side of the site is not available, single garages and carports are permitted where demonstrated that the impact on the streetscape or host building is acceptable. ... 7. Sandstone kerbing is not to be disturbed. 8. Driveways are designed as concrete or brick strips with grass or gravel in between." 1. The Newcastle Development Control Plan 2023 (DCP 2023) commences on 1 March 2024. DCP 2023 includes a savings provision for applications made and not yet determined (Part A, Section A, 11.0). The Council submitted that the provisions under DCP 2023 regarding a car space in the front setback of a cottage identified as a contributory building to a HCA are sufficiently similar to result in the same outcome were the application to be assessed under DCP 2023. Public submissions 1. One resident objector gave evidence at the commencement of the conciliation onsite. His concern is that the proposal will result in the loss of an on-street car space. Expert evidence 1. The Council relied on the expert evidence of Isabelle Rowlatt (Heritage) and William Wang (Traffic and Parking). Ms Rowlatt prepared an expert report (Ex 4) and Mr Wang prepared an expert report (Ex 5). The experts were present for the site view and were not required by the Applicant for questioning during the hearing. 2. According to Ms Rowlatt, there are isolated examples where parking spaces have been constructed in the front garden of constrained sites that did not historically have provision for parking. However, as a proportion of the overall residential development in the locality, she considers that parking in the front setback of constrained sites is not an established pattern. 3. In her view, the absence of car parking in the front setback of contributory buildings is a significant attribute of the setting of contributory buildings in the HCA, together with front gardens, traditional fences and minimal front setbacks. The introduction of a crossover, driveway and parking space in the front setback of the site will result in an adverse impact on the Cooks Hill HCA by reducing the integrity of the historic streetscape and disrupting the traditional visual relationship between the dwelling, its neighbours and the street. The proposal would also result in the removal of the significant sandstone kerb. 4. According to Ms Rowlatt, the approval of the application will be a precedent for applications for parking in the front setback of neighbouring cottages and the cumulative adverse impacts of further approvals for parking in the front setback on the amenity and character of the streetscape would be significant. 5. In Ms Rowlatt's view, the introduction of a parking space, within the front garden/setback area of a narrow weatherboard cottage that is contributory to the heritage significance of the Cooks Hill HCA, and the presence of a parked vehicle in that space, will detract from the presentation of the contributory building, its setting and relationship with its neighbours and the street. Submissions 1. The Applicant's submissions can be summarised as follows: * The proposed parking space meets the standard for a small car and the Applicants' existing car, which is 4751mm in length, will fit in the space and allow the gate to close. The Applicants want the convenience of charging their electric vehicle at home. * The Cooks Hill HCA is eclectic and a number of properties nearby have on-site parking, structures and high front gates. 84 Bruce Street and 92 Dawson Street both have parking in the front setback approved since the commencement of DCP 2012. * The lack of a verandah floor in the area where the vehicle will park will not be perceptible to passing pedestrians. A 1500mm high fence and gate will disguise the presence of a vehicle in the front setback. * There is no proposal to remove vegetation in the front setback. * The distance of 9m between the proposed crossover and the existing driveway to the north-east will allow for two small cars to park on the street. * The existing kerb and gutter can be adaptively reused by reducing the height of the sandstone kerb, as has been done at 153 Dawson Street. * Approval of the proposal is not a precedent because there are already a number of driveways in the locality and each application is assessed on its own merits. Consideration 1. I accept and concur with Ms Rowlatt's expert heritage evidence. 2. The proposal to park a car in the narrow and small front setback of the existing dwelling would dominate the street front setting of the cottage. The car would occupy the entire length of the front setback, including extending under the front verandah to sit tightly against the front elevation of the cottage. A vehicle in the front setback would not be obscured by a front fence with a gate. 3. The proposal would impact on the contribution made by the existing cottage to the collective heritage significance of the Cooks Hill HCA. The deletion of the approved verandah floor would detract from the character of the cottage, notwithstanding that the materials and finishes of the street elevation of the original cottage have been replaced. The proposal requires the removal of the sandstone kerb and guttering to create a crossover, which would erode the integrity of the sandstone kerb and guttering along Dawson Street. The proposal would detract from the character of the area and the overall appearance of the streetscape. 4. I accept the Council's submission that the proposal would be a planning precedent for future applications for parking in the front setback of narrow allotments with a shallow setback in the Cooks Hill HCA, just as the Applicant has sought to cite nearby examples of approved hardstands in the front setback of properties as comparable examples justifying the proposal. The cumulative impact of additional parking in the front setback of modest cottages in the area would certainly detract from the heritage character of the Cooks Hill HCA. Conclusion 1. Pursuant to cl 5.10(4) of LEP 2012, the proposal would have a detrimental impact on the identified heritage significance of the Cook Hill HCA. 2. The proposal is contrary to the relevant objectives and controls of section 6.02.03 of DCP 2012. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2022/01376, for alterations and additions to a dwelling house including a driveway layback and vehicular crossing and associated landscaping, at 145 Dawson Street, Cooks Hill, is refused. 3. The exhibits, other than Exhibit 2, are returned. Susan O'Neill 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: 01 February 2024