Barras v North Sydney Council

[2009] NSWLEC 1230

Land and Environment Court

of New South Wales

CITATION:	Barras v North Sydney Council [2009] NSWLEC 1230
PARTIES:	APPLICANT John Barras RESPONDENT North Sydney Council
FILE NUMBER(S):	11294 of 2008
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- driveway crossing and garage impact on heritage significance of conservation area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002
DATES OF HEARING:	6 April 2009
DATE OF JUDGMENT:	10 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor of McKees Legal Solutions RESPONDENT Ms K Gerathy, solicitor of HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

10 July 2009

11294 of 2008 John Barras v North Sydney Council

JUDGMENT


1 This is an appeal against the deemed refusal by North Sydney Council (council) of a Development Application (DA508/08) under the Environmental Planning and Assessment Act 1979 for the construction of a driveway crossing and a single car garage at 8 Lower Spofforth Walk, Cremorne (the site).

2 The key issue between the parties is whether the proposed garage would have an acceptable impact on the heritage significance of the building and the conservation area.

The site and its context
3 The site is located on the western side of Lower Spofforth Walk at the northern entrance to Cremorne Reserve. No dwellings fronting Lower Spofforth Walk have vehicular access. Lower Spofforth Walk is a pedestrian walkway that provides access to Mosman Wharf, Cremorne Point and Cremorne Reserve.

4 The site has an area of 716.67 sqm with a frontage of 15.4m to Lower Spofforth Walk. The site slopes away from Lower Spofforth Walk and from north to south with a sandstone retaining wall along the Lower Spofforth Walk frontage.

5 The site is developed with a two storey Federation house setback about 16m from Lower Spofforth Walk.

6 Adjoining the site to the north is a two/three storey residential flat building (34 Boyle Street). A residential flat building (6 Lower Spofforth Walk) is to the south of the site at a lower level.

7 Surrounding development is predominantly one and two storey houses with a few residential flat buildings.

Planning controls
8 The site is zoned Residential A2 under North Sydney Local Environmental Plan 2001 (LEP 2001). It is within the Cremorne Conservation Area and is identified as a neutral item.

9 Clause 49(1) of LEP 2001 relevantly includes the following conservation area objectives.

(a) to conserve the character of the neighbourhood and heritage significance of the conservation area, as a whole or any part of the conservation area, and
(e) ensure that neutral items are retained, and
(f) encourage the removal of uncharacteristic elements from conservation areas and their replacement with buildings or works that reinforce the character of the neighbourhood and heritage significance of the conservation area, and
(g) discourage development that is similar to uncharacteristic elements.

10 Clause 49(2) provides matters for consideration in determining a development application in a conservation area including:

(a) whether the proposed development will adversely affect the character and heritage significance of the conservation are, as a whole, and the part of the conservation area in the immediate vicinity of the proposed development, and
(b) whether the proposed development will reduce the uncharacteristic elements present in the conservation area.

11 Section 8.8 of North Sydney Development Control Plan 2002 (DCP 2002) 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 elements may be removed;
• uncharacteristic elements which s 8.8 of DCP 2002 states are:

  
  Uncharacteristic elements exhibit characteristics which detract from the character and heritage significance of a conservation area. Some uncharacteristic elements may be demolished without a negative impact on the significance of the conservation area.

  Uncharacteristic elements will not be considered as a precedent for new work when assessing the merit of an application for development in a conservation area. Uncharacteristic elements are identified in Schedule 5 of NSLEP 2001.
  
12 Other uncharacteristic features in s 8.8 of DCP 2002 include:
• extensive paving of front yard
• carports, garages and car spaces in the front yard.
• Overbridges, elevated car stand areas and excavation for driveways and basement car parking
13 Section 7.4(i) of DCP 2002 includes objectives and controls for the location of car parking. It relevantly provides:
On- site car parking does not reduce the garden setting of buildings or have adverse effect on the appearance of the street or building.
(i) Do not locate garages, carports or other structures for the parking of cars on the front boundary or between the boundary and the primary façade 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 on-site parking exists or is possible
• no rear laneway exists to provide vehicle access from the laneway rather 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 parking is constrained by commuter parking and/RTA clearways
• porous materials are used for the car stand area
• landscaped area is maximised on remainder of property
  …..
14 Section 8.8(r)(i) of DCP 2002 repeats this clause for conservation areas and includes the objective that:

Carparking structures have no detrimental impact on the heritage significance of the building and the streetscape.

15 Section 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 houses and street. This relationship is of critical importance when determining the heritage significance of a building or area.

16 Section 8.4 of DCP 2002 includes a character statement for the Cremorne Conservation Area. This included the following statement of Heritage Significance:


Cremorne Conservation Area is of significance:

1. As a consistent late 19th early 20th Century residential area with a mix of Victorian, Federation one and two storey housing, mixed with Inter war residential flat buildings, of two to three storeys, built on medium to large allotments with a strong orientation to the slope and the topography.

2. As a largely intact early 20th Century suburb retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone, sandstone kerbing, natural rock faces, wide streets and compatible plantings, all of which are a response to the topography of the area.

17 The desired future outcome for car accommodation in s 8.4(i) provides:

ii. Garages and carports behind the front building line.


18 Section 8 of DCP 2002 includes a Character Statement for South Cremorne, which includes the site and refers to the function of comfortable and safe pedestrian routes being maintained and enhanced.

Evidence and issues
19 The Court heard evidence on site from residents whose main concern related to the safety of accessing the site, particularly cars reversing from the driveway into Lower Spofforth Walk near its intersection with Lower Boyle Street because of the sight distances. The residents were also concerned about the new vehicle crossing and the safety of pedestrians using the footpath, which is a main pedestrian thoroughfare to Cremorne Reserve. They also considered the garage to be an inappropriate and unnecessary addition to the streetscape.

20 Council did not raise traffic safety as an issue. The report to council of 16 February 2009 included the following comments of the Development Engineer:

There are adequate driver sight lines for a vehicle to reverse out of the site. Additionally there is adequate time for a vehicle to reverse out of the site without affecting on street traffic in a low traffic volume street.


21 In the absence of alternate expert evidence I accept the position of council’s engineer.

22 The Court heard expert heritage evidence from Mr R Staas, for the applicant and Ms L Trueman, for council. Mr N Juradowitch, for the applicant and Ms A Johnson, for the council provided planning evidence. The opinions of these experts are summarised in their joint statement.

23 Mr Staas and Ms Trueman agreed that although the site is listed as a neutral item, the house provides a positive contribution to the conservation area. They also agreed that car access to the site could be achieved without affecting the significance of the conservation area, particularly through an open hardstand area at or near ground level. The key issue between the experts was the location of the garage in the front setback area and its elevation above ground level.

24 Mr Staas and Mr Juradowitch considered that hardstands, carports and garages are characteristic of the conservation area and that there are a number in close vicinity to the site. Mr Juradowitch considered the particular circumstances of this site and concluded that the proposal was acceptable because:
• the garage it setback 5m from the street frontage which is nearly the required front setback,
• the single storey garage is located beside a residential flat building which reduces its prominence,
• the garage can be viewed only from limited points in the street, and
• the garage occupies only a small part of the frontage (4m out of a 15.4m frontage) and therefore maintains the garden setting of the house.
  

25 Mr Staas and Mr Juradowitch considered the proposal would have an acceptable impact on the conservation area. They referred to other garages as examples of garages approved forward of the building line in the conservation area.

26 Ms Trueman and Ms Johnson held the contrary view that while a number of garages and carports can be seen in the immediate vicinity of the site in Spofforth Street they were approved prior to the current controls or are within Mosman local government area (LGA). In their o[pinion garages and carports are not characteristic of the conservation area. DCP 2002 recognises that “garages, carports and car spaces have a dramatic impact” and are identified as uncharacteristic features which can be removed and are not what is sought by the planning controls as being the desired future character of the area.

27 Ms Trueman stated that most of the garages in the conservation area where approved prior to the current controls. Of the examples referred to by Mr Staas and Mr Juradowitch, two new garages were approved which were below the level of the house and therefore did not block views of the house from the street (13 Claude Street and 70 Shellcove Road). The others were examples of an existing garage being enlarged from a single to a double garage or properties with two street frontages where the garage is accessed of the rear street.

28 Ms Trueman was particularly concerned that the elevated position of the garage and driveway above ground level and the pitched roof increase the height and bulk and impact on the streetscape and are uncharacteristic.

29 All the experts agreed that an open uncovered car space would have less impact on the streetscape than the proposal.

Findings

30 DCP 2002 clearly does not support the provision of garages or carports forward of front building lines. They are defined as uncharacteristic elements, which detract from the character and heritage significance of the conservation area. Further, DCP 2002 states that examples of uncharacteristic elements are not to be used as a precedent for the approval of new work within the conservation area. Mr Staas and Mr Juradowitch rely on the presence of other garages and carports in Spofforth Street and within the conservation area as being characteristic of the area and thereby providing justification for the proposal.

31 I do not accept this position. The site is a transition between the constructed road character north of Lower Spofforth Walk and the predestrianised treed character within Lower Spofforth Walk. While there are examples of garages in Spofforth Street, this is not the character in the vicinity of the site.

32 On the North Sydney Council side of Spofforth Street there are only two garages in the block between Boyle Street and Florence Street and these were approved prior to the current controls. Garages on the other side of the street in this block are within Mosman LGA. Due to the slope of the street the visual catchment of the site is predominantly Lower Spofforth Walk rather than Spofforth Street.

33 There are examples of garages in the conservation area but they are not characteristic. There are some houses with two street frontages where garages are characteristic (eg Iredale Avenue which also fronts Hodgson Avenue) but they are certainly not characteristic of the area as a whole. The examples of recent approvals do not suggest that council has abandoned its controls or justify further approvals other than if the objectives in DCP 2002 are met.

34 Sections 7.4 and 8.8 of DCP 2002 provide criteria where car spaces may be in the front yard of a property. I accept Mr McKee’s submission, for the applicant, that these criteria are not cumulative and that the proposal satisfies a number of the criteria. However, the application of the criteria may justify the provision of a hardstand area not a garage or a carport. While Mr Staas and Mr Juradowitch considered the garage was acceptable they agreed that a hardstand would have less impact.

35 I recognise the particular circumstances of the site, which mitigate the impact of the garage including its setback, proximity to a residential flat building and limited viewing points. However, I do not accept that these are sufficient to reduce the impacts of the proposal and meet the objectives of the controls in DCP 2002. Sections 7.4 and 8.8 clearly do not support the provision of garages in front of dwellings in the conservation area. In this case the dwelling makes a positive contribution to the conservation area and the garage is elevated above ground level on a sloping site that adjoins a pedestrian thoroughfare. Its impact is therefore unacceptable.

36 The experts agreed in principle that a hard stand could be acceptable. There was a difference of opinion as to whether this should be in the proposed location or at a lower level on the site closer to natural ground. It is therefore not appropriate, as suggested by Mr Mckee, to approve the application subject to the deletion of the garage. Rather an alternate proposal for a hardstand could be considered on its merits.

Orders
37 The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application (DA508/08) to construct a driveway crossing and a single car garage at 8 Lower Spofforth Walk, Cremorne is refused.

3. The exhibits may be returned.

___________________
Annelise Tuor
Commissioner of the Court