Land and Environment Court New South Wales Medium Neutral Citation: Rose Saltman and Michael Wiles v Mosman Council [2016] NSWLEC 1632 Hearing dates: 21 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 8.2016.5.1 for the excavation of the rockface on Council land to construct a basement garage at 3 Holt Avenue, Mosman, is refused. 3. The exhibits, other than exhibits 1, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION: construction of a basement garage requiring removal of part of a natural rock feature on Council land; impact on the heritage significance of the heritage item. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 North Sydney Municipal v P D Mayoh Pty Ltd (1988) 14 NSWLR 724 Shellharbour Municipal Council v Rovili Pty Ltd (1989) 15 NSWLR 104 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411 Estate Project Developments Pty Ltd v Sydney City Council (2005) 141 LGERA 86 Category: Principal judgment Parties: Rose Saltman and Michael Wiles (Applicant) Mosman Council (Respondent) Representation: Counsel: Mr M. Staunton barrister (Applicant) Ms R. McCulloch solicitor (Respondent) Solicitors: Jaku Legal (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/293074 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8.2016.5.1 for the temporary removal of the existing footpath and fencing on Council's road reserve to allow for excavation into a rockface on Council land to construct a basement garage at 3 Holt Avenue, Mosman (the site) by Mosman Council (the Council). 2. The appeal was subject to mandatory conciliation on 21 December 2016, 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 conference, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b) 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) LEC Act. 3. The applicant was granted leave by the Court to rely on an amended proposal on 13 October 2016. Issues 1. The Council's contentions relate to the portion of the development on Council land and can be summarised as: * The proposal is inappropriate because it necessitates excavation of a natural rock feature identified as significant in Council's Rock Face and Retaining Wall Study and Significant Rock Face and Retaining Wall maps, as referenced in the Mosman Residential Development Control Plan 2012. * The natural rock feature located on Council land at the front of the site contributes to the heritage significance of the divided road item, identified as a heritage item. 1. The Council did not press the contention relating to the absence of owner's consent to the lodgement of the development application; following Mr Staunton's submission that it is settled law that the Court has the power pursuant to s 39(2) of the LEC Act to grant owner's consent to a development application for works in a road reserve where the owner of the road is the respondent to the proceedings (Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724, North Sydney Municipal v P D Mayoh Pty Ltd (1988) 14 NSWLR 724, Shellharbour Municipal Council v Rovili Pty Ltd (1989) 15 NSWLR 104, Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411, Estate Project Developments Pty Ltd v Sydney City Council (2005) 141 LGERA 86). 2. The Council did not press the contention regarding the removal of a street tree following Mr Staunton's submission that the applicant is willing to amend the proposal. The site and its context 1. The site is located on the northern side of Holt Avenue between Cowles Road and Bardwell Lane. The site has an area of 460.8sqm, with a street frontage of 12.19m. The site contains a single storey detached dwelling. 2. The site does not have direct street access as there is an exposed rock face situated on Council land between the front boundary and the road and the exposed rock face extends further to the west. The proposal 1. The proposal is to construct a basement single car garage and stair access, partly located in the front setback and partly on Council land. 2. Mr Staunton submits that the applicant is happy to adopt the suggestions made by Council's heritage expert, Mr Staas, during the conciliation conference, to amend the proposal; by locating the garage adjacent the eastern boundary of the site with the stair on the eastern side of the garage, deleting the planter over the garage opening and cladding the garage surround in sandstone with a rockface finish. Planning framework 1. The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the 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 retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings. 1. Schedule 5 of LEP 2012 identifies the following heritage items: Mosman Divided road Holt Avenue Holt Avenue road reserve (between Cowles Road and Spofforth Street) Local I379 Mosman Street trees Holt Avenue Hold Avenue road reserve (adjacent to 1 and 9 Holt Avenue) Local I380 1. The parties agreed that the description in Schedule 5 of LEP 2012 for item 379 should read, "between 1 and 9 Holt Avenue" and the description for item 380 should read, "between Cowles Road and Spofforth Street". I accept the parties' agreement and note that nothing turns on the error, as the "Divided road" is identified as a heritage item. 2. Clause 5.10 of LEP 2012 requires the Court, as the consent authority, to consider the effect of the proposal on the heritage significance of the item and the heritage conservation area, before granting consent, at sub-cl (4). The relevant objective of the heritage conservation clause, at sub-cl (1), is to conserve the environmental heritage of Mosman. 3. Section 6.9 of Mosman Residential Development Control Plan 2012 (DCP 2012) 'Significant rock faces and retaining walls' ("the policy") is as follows: Mosman's natural rock outcrops and sandstone retaining walls are a significant part of the unique character of Mosman. In order to ensure the protection of these features and structures from inappropriate development, Council adopted a policy following the recommendations of the Rock Walls and Retaining Walls Study (2007). Objectives Planning Controls P1. No excavation of rock faces or retaining walls identified as significant in the Rock Faces and Retaining Walls Study and on the Rock Faces and Retaining Wall Map is allowed, except under special circumstances. P2. Special circumstances should be considered when any of the following is met: (a) there are other existing openings into the rock face/wall and additional openings would be consistent with that approach; O1. To have Mosman's significant rock faces and retaining walls protected from inappropriate development. (b) any excavation would not detract from the visual contribution of the rock face/wall in its context; (c) the excavation would not adversely affect the setting of sites that are highly visible from the harbour or public reserves; (d) there is a need for maintenance activities by Council, in order to ensure safety and serviceability. Where works involve demolition followed by reconstruction of stone retaining walls, preference should be given to the use of same or similar/complimentary materials, when economically viable; (e) there are safety needs that involve use of external support methods and include appropriate embellishment of those external support methods in order to retain original features and ameliorate appearance. 1. The heritage inventory sheet for the Holt Avenue Divided Road (http://www.environment.nsw.gov.au/heritageapp/ViewHeritageItemDetails.aspx?ID=2060198 exhibit 3) includes the following: Statement of Significance Mosman's divided roads are integral to the Municipality's visual character and sense of place. Built as a utilitarian response to the steep harbourside topography, they reflect, in their fabric and construction technology, the development of Mosman's suburban structure. The large collection of these features makes Mosman instantly and uniquely recognisable. Description Divided roads in Mosman are of several kinds. First, streets which divide longitudinally so that they have one carriageway higher than the other, separated by a slope, an embankment, a retaining wall, landscaping, a median or a combination of these. A variant is the street which has the carriageways on the same level but with an embankment on one side and a cutting on the other, so that only the footways are different in height. Longitudinally-divided streets are usually formed more-or-less along the contours of the land; they sometimes combine both kinds of level-change in the same street, and the street may be straight or curved, giving further variations of the type. Secondly, there are streets which divide laterally, with an interruption somewhere along the length of the street. The interruption may be a retaining wall, a rockface, steps, a landscaped bank, or a combination of all or some of these. Sometimes the streets on each side of the interruption have different names. Historical Notes The earliest streets of Mosman were formed along the ridges and were thus long and winding. Contrasting with these were the roads bounding the first residential subdivisions; these were straight streets separating historic land holdings from one another. A third type followed the contours of the land between the ridges and the waterfront. As subdivision burgeoned and development intensified, supplementary access roads multiplied, criss-crossing the earlier alignments and making complicated patterns on the landscape. The hilly terrain made it necessary for many streets to have their carriageways at different levels; or produced streets with an embankment on one side and a cutting on the other; or compelled streets to slope steeply; or, surprisingly commonly, prevented the actual formation of streets which had been laid out only on paper. Modes of transport have also been historical factors. A horse and rider could handle terrain impossible for a horse-drawn carriage, while a carriage could negotiate irregular tracks that were impracticable for a motor vehicle. Bigger vehicles like buses and trams required gentler gradient curves which in some areas necessitated substantial cuttings and embankments. An incidental historical observation is that as technology developed, it became possible to build on and service very steep sites facing very difficult roads, making them attractive for subsequent development. All these historical factors have helped to shape Mosman's streets and the consequent character of the place. 1. The Holt Estate Conservation Area, which includes the site, includes the following description and statement of heritage impact in DCP 2012: Description of area and character The area slopes gently in a south easterly direction from Military Road down towards Mosman Bay. The gentle slope, as well as the consolidated ownership of the area allowed for the planned regular grid pattern of the streets. The area comprises houses generally of similar scale and form, most of which would have been erected soon after subdivision in 1902. However, many of the houses in this conservation area have been modified. The modifications are chiefly the painting of face brickwork never intended to be treated this way, the erection of intrusive garages or carports mostly in front of houses, the concealment of the houses by high, opaque front fences, and the building of severe first-floor additions. The character of the area is now greatly dependent upon the efficacy of the street plantings of plane and brush box trees in both roads, which to some degree conceal or ameliorate the effects of alterations and additions. Statement of heritage significance The Holt Estate Conservation Area is a complete early subdivision containing a great many buildings from its original residential development. Its significance has been diminished by modifications which have catered to the requirements of individual owners' amenity at the cost of respecting and retaining heritage values. Expert evidence 1. The applicant relied on the evidence of Mr Paul Rappoport (heritage), Mr Anthony Betros (planning) and Ms Sue Wylie (arboriculture) and the Council relied on the evidence of Mr Robert Staas (heritage), Mr Peter Wells (planning) and Mr Kieren O'Neill (arboriculture). 2. Following the conciliation conference, the contention regarding the retention of a tree on Council land was no longer pressed by the Council as the experts agreed the tree could be successfully retained if the garage is located on the eastern side of the site. Consideration 1. Mr Staas and Mr Rappoport agreed that the description for the heritage item number 379 in LEP 2012, "Divided road", refers to the exposed natural rockface in front of numbers 3 to 7 Holt Avenue and that the exposed natural rockface forms part of the heritage item. I accept their agreement. 2. The heritage experts disagreed on the impact of the proposal on the heritage item; the exposed natural rock face. In Mr Staas' view, the proposal would have an unacceptable detrimental impact on the significance of the heritage item and in Mr Rappoport's view, the opening of a garage in the rockface does not offend the heritage item, as it remains significant and the insertion of a garage is merely a consequence of living in an urban environment. 3. According to Mr Staas, the rock face was exposed as a result of early quarrying in Mosman and this is evident from the markings on the exposed rockface. The quarrymaster's residence is on the opposite side of Holt Avenue to the site and the quarry probably pre-dated Holt Avenue. Mr Staas noted that there are platforms on quarrymaster's residence property. In his view, this association adds significance to the exposed natural rockface, however, a study of quarries within Mosman has not been carried out and this association is not indicated in the heritage listing. 4. There is an existing garage at 1 Holt Avenue which required excavation of the rockface. The parties agreed that the constructed garage at 1 Holt Avenue is not consistent with the development approval granted by the Council. Mr Staunton submits that the applicant relies only on the approved garage at 1 Holt Avenue. 5. Mr Staas said he recommended that the Council's approve the garage at 1 Holt Avenue after a process of negotiation with the owner. He gave this recommendation because the stone outcrop was recessive in front of 1 Holt Avenue, the excavation was in a lower portion of the rockface and there was an electrical substation on the Council land outside 1 Holt Avenue and in front of the rockface; resulting in the exposed natural rockface being less visually prominent in that position. Development consent for 1 Holt Avenue included a bridge over for stairs and the footpath. In Mr Staas' opinion, the rockface in front of 1 Holt Avenue made a lesser contribution to streetscape when compared with the rockface in front of 3 Holt Avenue. According to Mr Staas, when assessing the proposal for 1 Holt Avenue, he did not foresee a future application for further removal of the exposed natural rockface forming the divided road at Holt Avenue, despite being familiar with section 6.9 of DCP 2012 and the fact that the approval of excavation at 1 Holt Street would constitute a 'special circumstance' pursuant to P2(a) of the policy. Had he thought that the excavation of the rockface in front of 1 Holt Avenue would be a precedent for further excavation of the rockface, he would not have recommended approval of the application. 6. In relation to development consent granted for excavation of a heritage listed sandstone wall at 26 Clanalpine Street, Mosman, following a recommendation for approval by Mr Staas as heritage advisor to the Council; Mr Staas said that 26 Clanalpine Street encompassed different circumstances to the proposal because there was an existing opening in the man-made sandstone wall, the wall could be reconstructed following the works as it is possible to reconstruct a man-made wall, the opening was underground and was not visible and the impact on the identified heritage significance of the wall was less than the proposal. 7. In Mr Staas' opinion, the proposal is unacceptable because it requires the destruction of a prominent and important portion of the exposed natural rockface in front of 3 Holt Avenue, detracting from the visual significance and character of the heritage item and the conservation area. According to Mr Staas, an amended proposal consistent with his suggestions made during the conciliation conference would be an improvement on the proposal; however, an amended proposal would still have an unacceptable impact on the heritage significance of the heritage item. 8. According to Mr Betros, granting development consent to the proposal is highly unlikely to create a precedent for 5 and 7 Holt Avenue as the clump of trees in front of these properties precludes excavation of the rockface. In Mr Betros' opinion, the approval at 1 Holt Street constitutes a 'special circumstance' in terms of section 6.9 of DCP 2012, however, it is not an entitlement and a merit assessment of the proposal is required. Submissions 1. Mr Staunton submits the following: * the policy in section 6.9 of DCP 2012 has been consistently applied by the Council; * Mr Wells in his report to Council did not apply the policy in section 6.9 of DCP 2012; * the policy does not distinguish between man-made walls and natural or exposed rockface; * the policy does not distinguish between heritage items and non-heritage items; * the policy contemplates some impact on significant rock faces and retaining walls; * the heritage inventory sheet for the Holt Avenue Divided Road does not identify any part of the exposed natural rockface as being more significance than any other part; and * the approval of a garage at 1 Holt Avenue triggers a special circumstance under section 6.9 P2(a). Findings 1. In the absence of a contrary submission, I accept Mr Staunton's submission that the Council has consistently applied the policy, at section 6.9 of DCP 2012. I accept that the approval of a garage at 1 Holt Street triggers a 'special circumstance' as contemplated by the policy at P2(a). 2. I accept Mr Staas' evidence that the development consent granted for excavation of a heritage listed sandstone wall at 26 Clanalpine Street, Mosman, is distinguished from the proposal (or an amended proposal) on a number of grounds. I accept that it is appropriate, when assessing the impact of a proposal on the identified significance of a heritage item, to differentiate a man-made wall from an exposed natural rockface and to consider the consequences of excavation on both. I accept Mr Staas' evidence that the opportunity of reconstructing part of the constructed wall at Clanalpine Street was influential in forming an opinion as to the acceptability of the proposal. 3. I accept and adopt Mr Staas' evidence that the proposal (or an amended proposal) would require the destruction of a prominent and important portion of the exposed natural rockface in front of 3 Holt Avenue, detracting from the visual significance and character of the heritage item and the conservation area. Additional excavation in front of 3 Holt Avenue would not be consistent with the approach adopted in the development consent granted to 1 Holt Avenue, for the reasons provided by Mr Staas for his recommendation of an approval of that application. In my view, the consent granted at 1 Holt Avenue does not justify a further compromise in removing the significant fabric of the exposed natural rockface in front of 3 Holt Avenue. 4. The exposed natural rockface is an important and prominent feature of the divided road and the proposal (or an amended proposal) would result in an unacceptable, adverse impact on the heritage significance of the Holt Avenue Divided road heritage item and its setting. Orders 1. The orders of the Court are: The appeal is dismissed. Development Application No. 8.2016.5.1 for the excavation into the rock face on Council land to construct a basement garage at 3 Holt Avenue, Mosman, is refused. The exhibits, other than exhibits 1, A and B, 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: 23 December 2016