Land and Environment Court New South Wales Medium Neutral Citation: Edwards v North Sydney Council [2011] NSWLEC 1260 Hearing dates: 15 August 2011 Decision date: 16 August 2011 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No. 37/11 for alterations and additions to an existing dwelling at 27 Kareela Road, Cremorne Point is approved subject to the conditions in Annexure "A". 3. The exhibits are to be returned with the exception of exhibit B. Catchwords: DEVELOPMENT APPLICATION - alterations and additions to an existing dwelling - whether garage extension appropriate - streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Council Development Control Plan 2002 Category: Principal judgment Parties: Samantha Jane Edwards (Applicant) North Sydney Council (Respondent) Representation: Counsel Mr C Edwards, agent (Applicant) Ms K Gerathy, solicitor (Respondent) Solicitors HWL Ebsworth Lawyers (Respondent) File Number(s): 10492 of 2011 Judgment 1COMMISSIONER: This is an appeal against the decision of North Sydney Council against conditions imposed on the Development Application 37/11 for alterations and additions to an existing dwelling at 27 Kareela Road, Cremorne Point. The conditions in dispute are: Condition C1 - Garage No approval is granted or implied for the construction of a double garage. The approved plans must be amended to retain the existing garage structure in its current form. Condition C2 - Balustrade No approval is granted or implied for the glazed balustrade along the rear top floor balcony. The existing balustrades are to be retained. 2The appeal was heard as an on-site hearing and the site and surrounding area were inspected at the commencement of the hearing with the parties, and following the inspection, the remainder of the hearing was conducted on the site of the appeal. 3The appeal was conducted as a conciliation conference under s 34AA of the Land and Environment Court Act 1979. As part of the conciliation conference process, the opportunity for an agreement or a reduction in a number of conditions in contention were explored with the parties. This resulted in a revised condition C2, that was acceptable to both parties. 4Condition C1 remained at issue and as no overall agreement was reached the conciliation was terminated pursuant to s 34AA(2)(b). In accordance with s 34AA(2)(b)(i) the hearing was held forthwith and in accordance with s 34AA(2)(b)(ii) on the basis of what occurred at the conciliation conference. Relevant planning controls 5The site is within the Residential G zone (Cremorne Point) under North Sydney Local Environmental Plan 2001 (LEP 2001). Clause 14(1) requires the Court to take into court the aims and objectives of the plan and the cl 14(2) provides that consent must not be granted if the proposal is inconsistent with the specific aims of the plan, the objectives of the zone or the objectives of the control. In this case the relevant aim is cl 2(a), the relevant specific aims are in cl 3(a)(i), 3(b)(i) and 3(e)(i) and (ii) and the relevant zone objectives are (a) and (b). 6Clause 20 provides requirements for landscaped area and there was agreement that the proposal did not satisfy the development standard in this clause. An objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided to show why the strict compliance was unreasonable, unnecessary in the circumstances of this case. 7Part 4 provides heritage provisions. Clause 44 provides heritage conservation objectives and cl 49(1) provides conservation objectives and considerations for development is conservation areas at cl 49(2). Schedule 2 provides definitions and sch 3 provides identified heritage items. The site is located within the Cremorne Point Conservation Area and is identified as a neutral item. 8North Sydney Council Development Control Plan 2002 (the DCP) applies. Section 8.8 provides a structure for analysing the heritage significance and special characteristics of a conservation area. Buildings in conservation areas are divided into three categories: * contributory items which the controls aim to retain their significant form. * neutral items, which should be retained but uncharacteristic items may be removed. * uncharacteristic elements, which s 8.8 of the DCP states are: Uncharacteristic elements exhibit characteristics which would detract from the character and heritage significance of a conservation area. Some uncharacteristic elements may be demolished without a negative impact upon the significance of the conservation area. Uncharacteristic elements will not be considered as a precedent for new work when assessing the merits of an application for development in a conservation area. Uncharacteristic elements are identified in sch 56 LEP 2001. 9Other uncharacteristic elements in s 8.8 of the DCP include: extensive paving of front yard, carports, garages and car spaces in the front yard, over bridges, elevated car stand areas and excavation for driveways and basement car parking. 10Section 7.4(i) of the DCP includes objectives and controls for the location of car parking. It relevantly provides: On site car parking does not reduce the garden setting of the buildings or have adverse effect on the appearance of the street or buildings. (i) Do not locate garage, carports or other structures for the parking of the cars on the front boundary or between the boundary and the primary facade of the front building. (ii) A single car parking space may be located in the front yard of a residential property only if: no other onsite parking exists or is possible no rear laneway exists to provide vehicle access from the laneway rather than from the street no demolition or partial demolition of the property is required to cater for the space the car stand is uncovered on-street car parking is constrained by commuter parking and/RTA clearways porous materials are to be used for the car stand area landscaped areas maximised on the reminder of property 11Section 8.8(r)(i) of the DCP repeats this clause for conservation areas includes the objective that: Car parking structures have no detrimental impact on the heritage significance of the building and the streetscape. 12Section 8.8 also states that: Garages, carports and car spaces can have a dramatic impact on the setting of a heritage item or the streetscape of a conservation area. Streets full of car parking structures remove gardens and obstruct the relationship between the houses and street. This relationship is of a critical importance when determining the heritage significance of a building or area. 13Section 8.4 of the DCP includes a character statement for the Cremorne conservation area. The desired future outcome for car accommodation in s 8.4(i) provides: Garages and carports behind the front building line. The garage - evidence 14The sole remaining issue between the parties was the proposed garage. The plans described the new garage as "alterations and additions to the existing garage". It is described as a "one and half car garage with a single garage door." The proposal is to extend the garage by around 1.2 m along the street frontage to allow two cars to use the structure and extend the depth by 300 mm to provide a standard depth for a vehicle. 15There was agreement that the proposed additions did not create any amenity impacts on adjoining properties, did not provide any loss of street parking and attracted no objections when it was advertised. The applicant agreed to further modifications to the garage that provided for amended roof design (from the skillion roof to a flat roof and parapet) and the use of two separate doors instead of the proposed single door. 16Mr James Groundwater, a town planner, and Ms Lisa Trueman, architect and heritage expert, provided evidence for the council. Ms Melanie Bayl-Smith, an architect and Ms Stephanie Hall, a town planner, provided evidence for the applicant although Ms Hall did not attend the hearing. 17The approach by the council experts was that the proposed double garage contravenes s 7.4(i) and s 8.8(r) of the DCP in that only a single uncovered car parking space is permitted within the front setback. Section 8.8 provides a list of features considered to be uncharacteristic elements and the DCP actively seeks the removal of the uncharacteristic elements from conservation areas, wherever possible. Carports, garages and car spaces in the front setback and continuous garages are identified as uncharacteristic elements. While Kareela Road contains existing garages, carports and parking spaces, Mr Groundwater and Ms Trueman state the council planning controls have been amended to ensure that these uncharacteristic elements are no longer permitted. Mr Groundwater states that the additional area of the proposed garage further reduces the landscaped area in the site and as such the SEPP 1 objection is not well founded. 18Ms Bayl-Smith states that in terms of s 8.8(f), the proposed garage is consistent with the siting of the garages along the entire streetscape of Kareela Road. The established siting of garages on this side of the street is the front property boundary. This is determined largely by the prevailing topography on both sides of the street and the pattern of development of the properties along Kareela Road. 19Ms Bayl-Smith notes that parking within the front setback is allowable when there is no alternate arrangements available for parking on the site. In this case, the topography makes parking in the front setback the only reasonable option. While the proposal widens the garage at the street frontage, the combination of the form, articulated materials and consistent height plane contributes to an improvement in the visual impact of the structure. The existing garage stands as a single coloured rendered masonry box element, with a deep parapet contributing to the visual monotony of the street. The garage - findings 20In considering the remaining issue between the parties, the Court is required to consider a myriad of planning controls that relate to what is a relatively minor extension to an existing garage. If considered against the matters identified earlier in the judgment (see pars 5 to 14), I am satisfied the proposed alterations and additions to the garage are acceptable for a number of reasons; 21First, and while the garage is described as an "uncharacteristic element" in the conservation area in the DCP, the additions to the garage are minor at best, and do not change to any meaningful degree, the presentation of the garage in the streetscape. I note that the council staff did not seek its removal notwithstanding its designation as an uncharacteristic element. 22Second, the provision of car parking in the front setback is contemplated by the DCP and given the topography of the site and the extent of garaging in the street setback area along Kareela Road, I have little trouble in concluding that it is acceptable in this context. 23Third, and with the benefit of an inspection of the properties along Kareela Road, I am not convinced that the proposed change to the garage will have an impact on the streetscape. There are multiple examples of garages on the property boundary, some new and some old, but garaging is a significant component of the streetscape in this area. There are attached single garages and while they belong to separate dwellings they nonetheless present as a double garage in the streetscape. 24Fourth, and having assessed the SEPP 1 objection, I am satisfied that it is well-founded. There was agreement that the 60% landscaped area development standard was not met by the existing dwelling at 50.37% and that the additional area of the garage reduced this to 45.94%. However, I note that Mr Groundwater's assessment of the SEPP 1 objection in the report to the council compares the proposal to the objectives in cl 20(1) of the LEP 2001 where he focuses on the character (objective (a)) and site density (objective (d)). Having found that the proposal is acceptable in terms of character and density, I accept that the strict compliance with the development standard is unreasonable and unnecessary in this case and that the SEPP 1 objection is well - founded. 25Fifth, I agree with the applicant that the flat roof and parapet roof design and the provision of two separate doors is desirable when considered in the context of the streetscape and should be included as new conditions. 26Sixth, some weight must also be given to the existence of the existing garage. I presume that approval was granted some time in the past and that it complied with the council's planning controls at the time as there was no evidence to the contrary. Without the existence of the garage, I would have accepted the council's evidence that the double garage would be inappropriate based on LEP 2001 and the DCP. 27Seventh, I am satisfied that the proposed development satisfies the requirements in cl 14 of LEP 2001 and there is no barrier to the approval of the application based on the identified requirements in the DCP. 28Overall, I have little trouble in concluding that the proposal will be largely unnoticeable in the streetscape, except to those with knowledge of the proposed development. Orders 29The orders of the Court are 1. The appeal is upheld. 2. Development Application No. 37/11 for alterations and additions to an existing dwelling at 27 Kareela Road, Cremorne Point is approved subject to the conditions in Annexure "A". 3. The exhibits are to be returned with the exception of exhibit B. G T Brown 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: 07 September 2011