Attard v Ku-ring-gai Council

[2009] NSWLEC 1070

Land and Environment Court

of New South Wales

CITATION:	Attard v Ku-ring-gai Council [2009] NSWLEC 1070
PARTIES:	APPLICANT Alfred Attard RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10578 of 2008
CORAM:	Moore C - Taylor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Local heritage item
CASES CITED:	Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1
DATES OF HEARING:	2 December 2008 and 26 and 27 February 2009
DATE OF JUDGMENT:	10 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr T Robertson SC Mr G Newport, barrister INSTRUCTED BY Law & Planning RESPONDENT Mr C McEwen SC Mr M Staunton, barrister INSTRUCTED BY Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
TAYLOR C

10 March 2009

10578 of 2008 Alfred Attard v Ku-ring-gai Council

JUDGMENT

Introduction

1 COMMISSIONERS: The house, known as Craignairn, is an imposing mansion standing on an allotment of more than 7000 m². The land is located on the corner of Burns Road and Cleveland Street, Wahroonga. Craignairn was built in the early 20th-century as a gentleman's residence and is the most western of a group of three houses, by the same architect, Howard Joseland, having frontages to Burns Road. Craignairn was severely damaged by fire in 1936 and was rebuilt to its original design following this damage.

2 The original curtilage of the house included a significant service area on its southern boundary. However, this service area has, comparatively recently, been subdivided into two residential allotments by the owner prior to the present owner. As a consequence, immediately adjacent to the south of the house, a ~ 1.8 m lapped and capped paling fence is now constructed along a significant portion of the southern boundary – commencing at the eastern boundary and extending some two thirds of the length of the western boundary toward Cleveland Street.

3 There have been a series of development consents given to the past owner and to the present owner authorising a variety of additions and alterations to the house and within the grounds. Some of these consents have commenced and others have not been taken up.

4 As we understood it, Craignairn is the house that has the greatest local heritage significance within Ku-ring-gai Council’s area – a point upon which there is agreement between Mr Vickas, the applicant's heritage and planning consultant, and Mr Logan, the council’s heritage consultant. There is also agreement between them that the excision of the service area along the southern boundary has had an impact on the significance of the “viewing in the round” of the house, particularly from Cleveland Street to the west – although there is disagreement between them as to the extent of this impact. This is a matter to which we will return when considering one of the issues which remained in the case.

5 It is also relevant to note that the driveway leading to the house effectively divides the landscape setting of the house into two distinct components. The western third, between the driveway and Cleveland Street, is predominated by indigenous native canopy trees with open spaces and a limited understorey below. Although there are several exotics, including a substantial Pin Oak together with some Camellia hedging along the drive from its south-western end, these are generally on the fringes of this area. To the east of the driveway, however, there is a much more formal European garden setting (which has had a variety of uses over the years and a variety of planting regimes within it).

6 At the present time, along the eastern boundary, there is a row of substantial trees between this property and the Joseland designed house on the property immediately to the east. Over the years, parts of the lawn that have been used as a grass tennis court and a grassed croquet lawn (and also as a vegetable garden during the Second World War). These areas are, presently, approximately a third of the allotment, and comprise primarily open space fringed with vegetation.

7 Between the driveway and this open area, across the face of the house, a number of features have been added, including an ornamental pond and some plantings associated with it. There are also foundation plantings in beds across the front of the house and along its eastern return toward the kitchen.

The issues

8 During the course of the site inspection and during the subsequent evidence in court, a number of matters that were of concern to the council were resolved so that they no longer require determination by us. In one instance, however, an issue has been resolved between the applicant and the council – concerning the east/west location of the proposed tennis court – but it remains the subject of an objection from the neighbour to the east, Mr Philips. Mr Phillips suggests that a greater setback from his boundary is required than that in proposed by the council and now accepted by the applicant. As a consequence of these discussions and agreements, the issues that remain for us to determine, in addition to the issue concerning the location of the tennis court outlined above, are as follows:

• Whether the pergola structures proposed to be attached to the teahouse and to be constructed adjacent to the northern boundary of the swimming pool enclosure and across part of the space between the tennis court and the house should be approved or whether the pergola structures should be required to be deleted;
• Whether and where there should be openings required to be created in the double planted row of hedging plants along Burns Road – being in a row of Camellias immediately adjacent to the Burns Road fence at, perhaps, 1 m or so inside the fence and, planted a further 1.5 m or so in parallel to the Camellias, a row of Photinias. The gaps that were advocated by Ms Morris, the council’s landscaping expert, in these plantings are to permit views of the house, for its full height, from a variety of locations as one travels along Burns Road across the front edge of the property;
• Whether a path proposed from a pedestrian entrance at the south-western corner of the property, on Cleveland Street, to the house and generally following the historically recorded path, being a single pathway to the general vicinity of the front door of the house should be required or whether a pathway with two limbs, one ending in the general vicinity of the front door of the house and the other passing along the southern side of the recently constructed triple garage structure is acceptable;
• Whether or not the proposed rearrangement of the downstairs bathroom facilities at the southern side of the triple garage structure should be rearranged with the door access serving these facilities and the stairs to the loft area above the triple garage being moved from the eastern facade of the structure at its south-eastern corner to the southern facade of the structure in its south-eastern corner. This proposal is accompanied by a proposal to put partitioning in the loft area. The council proposes that there should be a covenant prohibiting the installation of a kitchen in this triple garage and loft structure. The council proposes that this covenant should also prohibit the use of this infrastructure as a separate dwelling. The applicant agrees that these restrictions are appropriate but proposes that they should be imposed by conditions of consent rather than by a covenant; and
• Whether the proposed new double garage/workshop at the rear of the house on its eastern side (and proposed to be constructed with a music room in its loft area and connecting to the roof of the existing house) should be approved.

The pergolas

9 We turn, first, to the issue of the pergolas. As originally proposed, the sole landscaping of these features was to have a Camellia planted near the each of the northern corners of the pergolas furthest from the teahouse – that is near the northern uprights to the east and west – but not to have any other vegetation associated with them.

10 Whilst there were other pergola structures on the site in the past, those pergola structures were at locations further to the south than that which is proposed presently and were also erected in a north-south direction rather than the east-west proposal in this application – the pergolas now being proposed as wings to the central teahouse structure.

11 During the course of the hearing, Ms Morris and Mr Moir, the applicant’s landscape expert, as part of their discussions concerning plantings in the vicinity of the eastern veranda, agreed that it would be appropriate to increase the planting space near the pergolas so that an evergreen vine could be grown over each of these open structures. It was their agreed position that, if this was to occur, these structures would be acceptable in their garden context.

12 Although this position was agreed to by the landscape experts, there was disagreement between the heritage experts concerning these structures.

13 The view expressed by Mr Vickas was that, with the planting that was now proposed, the structures were acceptable and would not be able to be viewed, significantly, from public locations outside the property. In his opinion the view from within the property was also acceptable.

14 Mr Logan, however, took the view that these pergola structures would be seen and would, when viewed, appear to provide a wide, inappropriate and unbroken structure when viewed from the north.

15 Although we accept that the pergola structures would likely be able to be seen, their openness and the greenery on the pergola rafters, when coupled with the fact that, as a consequence of the decision we have reached concerning viewing of the property from along Burns Road, means that they are unlikely to be seen and, if seen, but glimpsed, barely, as part of any public vista. When coupled with the tennis court fencing that will also provide a differentiated view, we are of the view that the pergola structures are acceptable.

Viewing along Burns Road

16 We turn, now, to the question of the views of the house along Burns Road. The agreed evidence was that there were three principal viewing points into the property from this frontage. We understand that these three principal viewing corridors were identified, primarily, as being two from the north-eastern corner and one toward but not at the north-western end of this frontage (where the view is through the gates to the property). These were marked on a landscape plan and designated Vistas A, B and C (from east to west).

17 The first, at the eastern edge, is through an area in which appears now to be substantially obscured by existing vegetation not associated with the present plantings that are the subject of this application. There is nothing, we consider, appropriate for us to order concerning this viewing point to the house.

18 A short distance further to the west is a location, identified as Vista B, where, from the series of historical air photographs in evidence, it would appear likely that, more frequently than not, there was a break in the vegetation at this point – giving an uninterrupted “ground to gable” view of the front of the house.

19 The heritage evidence, including the council’s assessment of the heritage significance of the property (prepared by Mr Logan), reinforces the importance of being able to view Craignairn “in the round”.

20 To maintain a view of the totality of the house, through the hedge from this point, would, we consider, require the removal of the two plants, at the locations identified by Ms Morris, in each of the rows of plantings along Burns Road.

21 We are satisfied that it is appropriate to require that this break be created and maintained by pruning. Doing so would replicate what appears to be the usually available view, over long periods of time (if not continuously), from Burns Road to the front of the house. We accept that this is an important part of an appropriate and desirable heritage viewing from the Burns Road corridor.

22 Two trees, in each of the rows at this point, are to be removed, as proposed by Ms Morris, in order to preserve this viewing line. The conditions should require that, in addition to the agreed pruning to top of fence height of the top of the two rows of hedging plants to preserve the view of the upper levels of the facade of the house, the trees in each row on both sides of the gaps so created in each row are to be kept pruned in order to ensure the retention of this viewing corridor. The conditions are to be amended to reflect this requirement that these gaps be pruned and maintained as a viewing corridor at least 2 m wide.

23 The applicant proposed, through the evidence of Mr Vickas and Mr Moir, that keeping all of the planted hedges and pruning them to fence-top height would ensure that the views of the upper levels of the house would be available to the whole of the Burns Road frontage without the necessity of providing a view through to the house at ground level. We do not consider, for the reasons we have outlined, that this is consistent with the historical more accessible viewing lines that we have discussed.

24 Ms Morris also proposed that there should be a series of further gaps created in the plantings to open up a series of further views into the gardens spaces in the property. These view lines would also enable further views of the whole of the Burns Road facade of Craignairn itself.

25 As we have no evidence of the nature of the understorey, over time, below the canopy trees along the Burns Road, whether or not this provided views to the house is a matter upon which there can only, realistically, be speculation. Consequently, we make no assumption that such views were or were not available.

26 However, as a consequence of the subdivision of the southern service area from the property to create the residential allotments noted earlier, the nature of the use of the garden area to the front and, particularly, to the east, has changed. These areas are now the principal private open space of Craignairn.

27 The view through the gate will be retained as the plants along the driveway (concealing the temporary child protection fence which is to be permitted, for a fixed period of time), will be too low to hinder this view (Vista C). To achieve this, the extant plantings presently there need to be kept pruned to a height of 1.2 m or so. If the conditions do not presently require pruning to a maximum height reflecting this, then they need to be amended to reflect this so as to preserve this view of the front of the house.

28 As noted above, we have no evidence that the historic understorey on the Burns Road frontage would have consistently permitted a more expansive range of views to the house or into the garden as has been advocated by Ms Morris.

29 It is also reasonable to accept that changes in traffic levels in the vicinity, as a result of increasing development, population growth and increasing road usage over the years, has led to an increase in casual traffic across the Burns Road frontage of the property. For these reasons and because of the removal of the southern service area has limited the opportunity for private open space associated with Craignairn, we consider it reasonable to allow for more extensive privacy afforded by the hedging plants [with the exception of the preservation of the two main viewing corridors as described].

The existing freestanding garage structure

30 We turn, now, to consideration of the alterations to the existing, comparatively recently erected, three-car garage structure.

31 The changes comprise three elements. The first is the partitioning of the loft space to permit a variety of uses in it. The applicant accepts that prohibition of the installation of a kitchen in the loft area, necessary to prevent the creation of a second dwelling, is appropriate [although there is an argument about the method by which this prohibition is to be secured]. However, the council accepts that, provided such a prohibition is imposed, in the manner that they propose (by covenant), the internal partitioning is also acceptable. As a consequence, provided such a prohibition is effected, the council does not suggest there is any other basis on which we could refuse partitioning of this space.

32 Downstairs, adjacent to the three car spaces and along the southern end of the structure, a bathroom has been approved in an earlier development approval. Although the approved plans show a bathroom in a particular configuration with a single access to it rather than separate accesses to the toilet and bathing areas, we observed during the course of the site inspection that some of the plumbing appears to have been installed in a fashion consistent with what is sought in this application rather than that which has been approved. We pay no heed to this (and were not asked to do so either by the council or by the applicant). This bathroom has not been constructed.

33 The principal reason for the alterations to the downstairs area is said to be the need to provide separate access for the shower and toilet areas so as to permit simultaneous use of the facilities when this might be appropriate. We accept, as these facilities are apparently designed to serve people who might, for example, be staff of the applicant maintaining the garden, that such a separation is appropriate.

34 It was put for the applicant that creation of separate accesses required the relocation of the toilet to the vicinity of the present doorway and thus required the reorientation of the doorway to the southern facade of the building. We do not accept that this is the case. An examination of the plans shows that a differing form of reorientation of the toilet and shower facilities can be achieved with access to these areas being provided through the area where the cars are parked. There is, in our view, no imperative for the rearrangement to involve the location of the toilet where it is proposed and thus necessitating moving the doorway.

35 We consider that there are three distinct disadvantages in permitting the doorway to be relocated. These are:

• At present, the doorway addresses the internal driveway extension between the house and the secondary access to the house on its south-western side. The utility of this access will be less if the doorway were to be relocated as is proposed. In addition, the visual appearance of connectivity and relationship between the two structures would also be diminished.;
• Locating the doorway on the southern facade will also create an alternative element in the southern facade that is not present. When the garage structure and the servants quarters’ wing, being the western elements of the house, are viewed together from Cleveland Street, as part of the residual elements of the “viewing in the round” referred to by Mr Logan in his assessment of heritage significance of Craignairn, they are seen from Cleveland Street as a pair of unbroken wings on this elevation. This presentation is, generally, a uniform one and we regard this change as a negative for this element of the proposal; and
  
• Finally, the location of the doorway on this facade contributes, to a limited extent, to creating demand for the establishing a path along the southern side of the building to the Cleveland Street pedestrian entrance. It would add an extra, unnecessary element to the current buildings on the lot. As we do not consider that this pathway is appropriate, this also contributes to the undesirability of this change.

36 Mr Robertson SC, counsel for the applicant, also suggested that the reorientation of the doorway would mean that the waste disposal bins servicing the house would not need to be located against the wall next to the entrance leading to the upper part of the structure (as was where they were located during the second site inspection). We observe that, in his oral evidence, in response to a question from Mr McEwen SC, counsel for the council, Mr Vickas said that the applicant had never mentioned the location of the waste disposal bins when discussing with him the relocation of the doorway.

37 If we accept that this was a genuine concern of the applicant, despite the fact that he had not raised it with Mr Vickas, the removal of the need to park one of the three vehicles in the freestanding garage structure, as would be possible if Mr Logan's proposal for a single car space at the rear of the kitchen were to be adopted (or, indeed, had the applicant's proposal for additional garaging been considered acceptable) sufficient space would have been freed within the existing garage structure to accommodate the bins under cover without detracting significantly from the storage space which would have been created for grounds’ maintenance equipment.

38 As there is no demonstrated need for this rearrangement and as there are a number of negatives if it were to be permitted, we do not consider it appropriate to approve the relocation of this doorway.

The pathway from the Cleveland Street pedestrian entrance

39 Presently, there is a gateway, to provide a pedestrian entrance, in the south-western corner of the property on Cleveland Street. Historically, from the aerial photographs, a pedestrian pathway has, from time to time, provided access from this gateway to a location in the vicinity of the front door of Craignairn.

40 This application proposes to re-establish this path, generally along the line shown in the aerial photographs but slightly modified to take account of a substantial rhododendron that would otherwise require removal if the precise line of the path were to be followed. This alignment is in a generally north-eastern direction from Cleveland Street. The path shown in the earlier aerial photographs appears to have split, towards the entrance of the house, so that there were two short pathways leading to different parts of the driveway near the front door. However, Ms Morris and Mr Moir now agree that it would not be necessary to reinstate this element of the pathway and that a single pathway ending on the driveway between the freestanding garage structure and the Pin Oak near the front door would be appropriate.

41 In addition to this agreed pathway element, however, the applicant also proposes a southern arm, from approximately the mid-point of the path, going round the southern side of the freestanding garage structure. The effect of this is to turn a single curve path into one shaped like a rounded Y. The council opposes the southern arm of the proposed pathway on the basis that it is not appropriate in an historic context and it would encourage pedestrian traffic around the southern side of the freestanding garage and promote the possibility of the structure being used as a separate dwelling with a pedestrian access to Cleveland Street.

42 The alterations to the appreciation of this side of Craignairn has been significantly altered by the imposition of the freestanding garage structure. Although this structure is architecturally sympathetic with the main house building, it nonetheless constitutes an alteration to the “viewing in the round” of Craignairn. However, we accept that the reinstatement of at least the more northern element of the path and the landscaping proposed in the landscape plan is designed to be consistent with that heritage viewing perspective. We are satisfied that the intrusion of the additional path element, visible as it will be from Cleveland Street, is inappropriate for the setting sought to be re-established for this area of the curtilage of the house.

43 In drawing this conclusion, we do not give any weight to the council’s fears about possible use of the garage structure as a dwelling or fears of some hypothetical future dual occupancy application. The first is to be prohibited by the conditions of consent and the second is not part of this application. We therefore refuse consent for the southern element of the path solely on the basis that it is an inappropriate intrusion into the heritage context of Craignairn.

Covenant v conditions of consent

44 As discussed above, we have reached conclusions contrary to the applicant's proposals about the reconfiguration of the downstairs of the freestanding garage structure, internally, and the relocation of the doorway. As a consequence, we are satisfied that there are no special circumstances (of the nature discussed by Pearlman CJ in Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1) that would warrant the prohibition of the installation of a kitchen in the freestanding garage structure being imposed by covenant rather than the more conventional route of imposition of a condition of development consent. As a consequence, the conditions of consent should contain this prohibition and we decline to order a covenant be required.

The proposed garage/workshop

45 We turn, now, to the most strongly contested matter in the proceedings – whether or not the proposed double garage/workshop at the rear of the kitchen wing of the house should be permitted.

46 We note that, during the course of the evidence given by the planning and heritage experts, consistent with the current approach taken by the Court of exploring all possible alternatives to see whether an acceptable resolution both to the desires of the applicant and the concerns of the council's experts was possible, a range of roof structures and roof forms were explored with the experts during the course of that evidence. No agreement was reached by this process.

47 We also note that, overnight between the two days of this phase of the hearing, the applicant ought and was granted leave, by consent of the council, to amend the plans for the proposed garage/workshop structure by lowering its ridgeline and eliminating the gable end of this structure to the south. The southern facade of the structure was also moved in, a little to the north.

48 Despite these amendments, Mr Logan still objected to the (now) revised garage/workshop structure. Mr Logan proposed, as his acceptable alternative, a single garage structure which would connect to the kitchen of the house (thus satisfying the applicant's desire for an undercover access from a vehicle to the house) but with the ridgeline of this structure being lower than the eaves of the present building. The height of this ridgeline, necessarily, precluded any use of any roof space above. Sketches of this design by Mr Logan were in evidence and gave an understanding of the concept he was suggesting would be acceptable. During the course of the hearing, Mr Robertson received instructions that, if the presently proposed structure were not accepted by us, his client did not wish to be given approval for a structure such as that sketched by Mr Logan.

49 The proposed garage/workshop structure, as amended, would provide the applicant with the following:

• spaces for the parking of two cars (although the applicant indicated that the purpose of the second of these spaces was for the storage of his ride-on lawn mower and other equipment necessary for the maintenance of the property rather than the parking of a second vehicle);
• an associated workbench space for use in the maintenance of the property;
• a direct access from an undercover parked vehicle into the kitchen within the house;
• a larger parking space for his Lexus four-wheel drive so the car doors could be opened more conveniently; and
• creation of a substantial media/cinema room in the roof space above the garage/workshop element of the structure.

50 To achieve this, the proposed design would have a hipped roof that would be cut into the existing roof of the kitchen wing of the present house with the ridgeline of the proposed garage/workshop structure being somewhat lower than the ridgeline of the present kitchen wing. The sketch of the pre-and post amendment design, drawn by Mr Vickas [Exhibit F], appears below with the lower of the lines, in black, being that for which consent has now been sought.

51 During the course of the second on-site view, we inspected the rear of the house and observed a reinforced concrete slab that has been laid immediately outside the kitchen wall and upon which it is proposed to erect the garage/workshop structure. Although there is some contention about whether or not this concrete slab has received development consent, we understand the position to be that, if we were to approve the garage/workshop structure, appropriate approval for the use of this concrete slab could be given (subject to the certification of its structural adequacy).

52 Mr Logan objects to the proposed garage/workshop structure on a number of bases, as we understand it. The first basis is that the structure will alter the heritage perception of the rear of the house when viewed from Cleveland Street. We had the advantage, during the second site inspection, of viewing height poles erected at relevant locations to appropriate heights reflecting the proposal as it stood without the further amendments proposed by the applicant on the morning of the second day of the second phase of the hearing. At the close of this hearing, we were provided with an agreed set of photographs that show the same height poles re-erected at the now relevant locations based on the final form for which development consent is sought by the applicant.

53 After the close of proceedings, we were also provided an agreed marked up air photo showing the location of the height poles and the various viewing locations.

54 Although Mr Vickas had expressed the opinion that his revised design would not be able to be viewed from Cleveland Street, the photographs provided to us to show that this is not the position. Whilst there will be a significant reduction in the amount of the garage/workshop structure able to be viewed from the locations we inspected and there will no longer be a gable roof end visible from Cleveland Street (as this element has been deleted from the design), there will nonetheless be a view from Cleveland Street that will have the effect of seeing structures that would appear to be three wings to Craignairn – these being the present freestanding garage; the former servants quarters’ wing on the western side of the main building; and the proposed new garage/workshop structure.

55 Whilst this view may now be a limited one, we accept Mr Logan's opinion that this will, nonetheless, constitute a significant alteration to the “viewing in the round” of the house from the property boundary. In our assessment, it will also compound the alteration to the “viewing in the round” that is occasioned by the presently erected freestanding garage structure.

56 However, this alteration to the “viewing in the round” of Craignairn is not enough, in itself, to warrant refusal.

57 Further, it was Mr Logan’s evidence that the structure would also constitute a significant interference with the “viewing in the round” of Craignairn from within the house’s own grounds. This will occur when it is viewed from anywhere along the eastern axis of the grounds.

58 Although it was not precisely discussed in the course of the evidence, it is also our view that the appreciation of the heritage item from the dwellings to the south and south-east (which have been constructed on the subdivided-off service area) will also be altered and their appreciation of the heritage structure diminished. However, this is of minor concern and, as it was not subject of any detailed evidence from the heritage experts, we have paid no heed to this in reaching our conclusion about this proposed structure.

59 Given the changes that we have concluded are also necessary to preserve the vista of Craignairn from Burns Road, by removing two trees from the inner and outer rows of plantings so that the Vista B viewing corridor is to be kept and maintained as a viewing corridor at least 2 m wide, we are satisfied that it is also likely that there will be, at the very least, a glimpse of this proposed new structure along the sight line created by this aperture in the hedging plantings. Although we cannot be certain of the extent of this view, we consider it likely to be more than a mere glimpse (and probably significantly more substantial a view) after our consideration of what Ms Morris marked on the landscape plan and we have adopted as to be required to be established and be maintained.

60 The applicant’s position on the question of viewing of these alterations, as we understand it, is that the changes, when viewed from either within or without the grounds of Craignairn, produce a viewing impact that is acceptable.

61 Given that we are satisfied that the viewing from Cleveland Street will be greater than that which Mr Vickas originally opined; there is to be created in viewing corridor from Burns Road which corridor will encompass a view of the garage-workshop if it were to be constructed; and the garage/workshop will be highly visible from the eastern portion of the grounds of Craignairn themselves, these conclusions are, prima facie, sufficient to warrant refusal of this element of the application.

62 However, there are two matters which the applicant's says should be put in balance against any adverse impact on the viewing of Craignairn. These are the altered future context for the viewing of Craignairn that will be created by the approved additions and alterations approved by the council for to the Joseland designed Philips’ residence to the east and the benefits that the proposed garage/workshop will provide to the applicant and his family.

63 We turn, first, to address the two reasons that the applicant advances for requiring the space at the ground level. The first is the provision of a car parking space with direct access to the house. We accept that this is a desirable and understandable aspiration for the applicant and his family. We note, however, that this could also be obtained by adopting the design provided by Mr Logan and rejected by the applicant. Further, a larger parking space for his Lexus four-wheel drive can also be provided within Mr Logan's design.

64 The second basis for seeking the garage/workshop space is the necessity to provide undercover parking for the applicant’s ride-on lawnmower and the associated grounds and maintenance equipment required for maintaining the property. During the course of the second site inspection, we inspected the current freestanding three-car garage space and observed that the third of the vehicles owned by the applicant and his family was only just accommodated within the garaging space by being parked in front of the applicant's ride-on lawnmower. If the third of the applicant's vehicles had been an 85th percentile vehicle, it would not have been able to be accommodated, entirely undercover, within this space.

65 However, we observed that, if the applicant were to have constructed the more modest structure at the rear of the house as has been proffered by Mr Logan's design, one of the three car spaces in the presently constructed garage would be available for precisely the purposes identified by the applicant. This would be coupled with an ability to have both additional vehicles parked entirely undercover and provide sufficient undercover space for the ride-on lawnmower and all such tools as might be reasonably necessary for the maintenance of the grounds [and the waste bins discussed at (36) and (37)].

66 As earlier observed, the Phillips’ property to the east is the middle of the three houses designed by Howard Joseland. The council has approved extensive rear additions to this house which include a two-storey addition to approximately the same ridge height as the main front element to the existing structure. We consider it unlikely that these additions to Mr Phillips’ house will be able to be viewed either from Cleveland Street (because of the slope in the land from Cleveland Street to the rear of Craignairn and the distance of over 70 m across the site to the Phillips’ property from Cleveland Street). This distance will, also, be interrupted by two sets of tennis court fencing as a consequence of the approval for a tennis court arising from this application. We do not think it likely, having considered the viewing line through the front gate of Craignairn that these extensions approved to Mr Phillips’ can be seen from that point. This viewing line, if it is available, will also be interrupted by the tennis court fence and the screening vegetation currently along the boundary between Craignairn and Mr Phillips’ property. In addition, further plantings are to take place near the boundary along this sight line.

67 These conclusions are supported by Mr Logan who was of the same opinion. Further, the additions to Mr Phillips’ property have been designed so that they are not able to be visible from the street and the visibility from Craignairn and its curtilage will also be limited as a consequence of the tennis court fencing and the existing and proposed boundary vegetation. As a consequence, we do not consider that the applicant can draw any comfort for the proposed garage/workshop structure in these proceedings from the council's approval of Mr Phillips’ alterations and additions.

68 In reaching a conclusion on this element of the application, we have weighed up the impacts on a heritage item and the viewing of it both from public locations and locations within its own curtilage and assessed them against the reasons why the applicant has said a structure of the nature proposed is required. In doing so, we note that there has been no evidence as to why the additional utilisable roof space within the structure is required by the applicant.

69 As a consequence, we are not satisfied that the proposed structure at the rear of the dwelling is necessary to meet identified desires of the applicant. We are satisfied, that the negative impact on the viewing of Craignairn “in the round”, in an historical context, such as is presently able to be enjoyed (and, in the future would be enjoyed), are sufficiently substantial to warrant refusal of this element of the application. For the reasons we have outlined, the nature of the additions to the Joseland house to the east do not provide any assistance to the applicant with this proposed garage/workshop structure. We are also satisfied that the impacts on the viewing of Craignairn “in the round” are not displaced by the reasons advanced by the applicant for the construction of the facility as he presently proposes them.

Location of the tennis court

70 Mr Phillips, the objector to the east, submitted to us that, despite the agreement between the parties that the revised location of the tennis court was acceptable, the tennis court should be moved further toward the centre of the space between the house and the boundary with his property.

71 We do not accept this submission for two reasons. The first is that moving the location of the tennis court (now accepted by the council as being appropriately offset from both the eastern side and southern rear boundaries) by any modest distance toward the house will not cure any acoustic impact on his property. The sounds of play on the tennis court will be regulated appropriately by the conditions of consent. Mr Phillips is to be provided with protection from any night noise from the tennis court by a condition of consent prohibiting it from being illuminated. We consider that this is a satisfactory acoustic privacy condition to be imposed and that no further restriction by movement of the tennis court should be required.

72 In addition, any movement of the tennis court further toward the centre of this open space will, necessarily, require either a shortening or reorientation of the principal axis of the proposed swimming pool to be constructed by the applicant. We have no evidence that would suggest reorientation of the swimming pool would be acceptable in a garden and heritage context as it would require significant rearrangement of other elements which have been discussed by the experts. For there to be any movement of any significance in the location of the tennis court without reorientation of the swimming pool, there would need to be significant reduction in the utility of the pool. We consider that this would be an unacceptable impact on its amenity for the applicant and his family.

The necessary outcome of the proceedings

73 It is obvious from the resolution of a number of the issues during the course of the second site inspection and as a consequence of a number of the determinations which we have made in this decision, that the applicant will, as a result, be given a development consent as a result of these proceedings. The development consent will be in substantially more restricted terms than those sought in the application and will require the preparation and settling of amended plans, including an amended landscape plan, to give effect to this decision. There will also be a need for revised and settled conditions of consent to reflect those matters which have been agreed on and which arise out of this decision.

The proposed orders

74 As a consequence of all the foregoing, we foreshadow that the orders of the Court will be, when such revised and settled plans and revised and settled in conditions of consent have been filed (with the revised conditions of consent being filed electronically as well as in hard copy), that:

1. The appeal will be upheld;
2. Development Application 0409/08 for additions and alterations (including a new tennis court and swimming pool but not including the proposed alterations to the ground floor of the freestanding garage or the erection of an attached garage/workshop) to Craignairn, 37 Burns Road, Wahroonga will be granted development consent subject to conditions of consent which will be annexed to the orders; and
3. The exhibits, other than Exhibits 13 and 15, will be returned.

Tim Moore Dr Mark Taylor
Commissioner of the Court Commissioner of the Court