Churcher v North Sydney Council

[2025] NSWLEC 1483

Land and Environment Court

New South Wales

Medium Neutral Citation:

Churcher v North Sydney Council [2025] NSWLEC 1483

Hearing dates:

7, 8 and 10 April 2025. Submissions received 17 and 22 April 2025.

Date of orders:

8 July 2025

Decision date:

08 July 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court directs that:

(1) The parties are to confer and agree on a set of conditions that are consistent with the findings of this judgment.

(2) Agreed conditions of consent are to be filed to the Court by 18 July 2025.

(3) Once the agreed conditions are filed and reviewed, I will make final orders in these proceedings.

Catchwords:

DEVELOPMENT APPEAL – amended application lodgement date – alterations and additions – garage – heritage significance - visual bulk – streetscape impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34AA, 39

Roads Act 1993, s 138

Environmental Planning and Assessment Regulation 2021, s 38

North Sydney Local Environmental Plan 2013, cll 4.6, 5.10, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6

State Environmental Policy (Resilience and Hazards) 2021 s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Ione Churcher (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
H Grace (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2024/380212

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal is about the heritage, view loss and environmental impacts that would be caused by a proposed elevated parking structure in Cremorne Point.

2. The Applicant, Ione Churcher (Churcher) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against North Sydney Council’s (Council) actual refusal of development application number 81/22 (DA). The DA seeks development consent for alterations and additions to the existing two storey dwelling house and a three storey garage/studio building with driveway bridge off Kareela Road at 47 Kareela Road, Cremorne Point.

3. The appeal is a class 1 residential appeal. In accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), the proceedings commenced as a conciliation conference. Agreement could not be reached between the parties to resolve the issues, and the conciliation conference was terminated. The hearing commenced immediately. The parties agreed for the evidence from the site viewing and conciliation conference to be considered as evidence in the hearing.

4. For the reasons set out, I find that development consent should be granted to the amended DA except for the parking structure, subject to conditions of consent, to be amended to be consistent with this decision.

Amended Application

5. Churcher sought and was granted leave to amend the DA pursuant to s 39 of the LEC Act (amended DA). The main amendments to the DA are summarised as follows:

1. Increased side setback of the garage structure to 2.5m.

2. Relocation and reconfiguration of the three storey garage, handstand and lift parking structure more centrally in the site and closer to the front of the site.

3. Removal of external stairs on the southern elevation.

4. Amended documentation.

The Amended DA Lodgement Date

6. Relevant to the proceedings was an issue raised in the Town Planners Joint Expert Report (Planning JER) about the clause 4.6 written request, which addressed the current version of the clause 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP). Given the original lodgement date of the DA was prior to 1 November 2023, the issue was if the former or current version of cl 4.6 applied.

7. Council’s Statement of Facts and Contentions, in the Facts section at A4.13 states:

‘On 3 July 2024, Council excised its rights under cl 38 of the Environmental Planning and Assessment Regulations 2021 to amend the lodgement date. The application is taken to be lodged on 3 July 2024. The PAN on the NSW Planning Portal has been updated to reflect this amended lodgement date’

8. Section 38 of the EPA Reg states:

38 Determination of application for amendment of development application

(1) The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37.

(2) If the consent authority approves the amendment, the development application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority—

(a) considers the amendment not to be minor, and

(b) notifies the applicant, through the NSW planning portal, that the later day applies. (emphasis added)

…

(4) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

9. The parties agree that Council exercised its right to amend the lodgement date consistent with s 38 of the EPA Reg.

10. The consequence of which, is that the savings provision that would have applied due to the original lodgement date of the DA in relation to cl 4.6 of the North Sydney Local Environmental, does not apply. The DA lodgement date has changed from 22 March 2022 to 3 July 2024. Accordingly, I accept that the current in-force cl 4.6 applies.

The site and context

11. The site is known as 47 Kareela Road, Cremorne Point, legally described as Lot 10 DP 3900. Located on the eastern side of Kareela Road, the site has a frontage of 15.24m to Kareela Road (west) and to Cremorne Reserve (east). The overall site area of the generally rectangular shaped site is 537.5m².

12. Consistent with many dwellings on the eastern side of Kareela Road, the site has a steep topography away from the street down to Cremorne Reserve, falling approximately 8.6m. To the east of the property and adjoining properties are views of the harbour.

13. The site is located in the Cremorne Point Heritage Conservation Area (HCA), a locally listed HCA in the NSLEP. There is no direct vehicular or pedestrian access to the dwelling, which is identified as a contributory item in the North Sydney Development Control Plan 2013 (NSDCP).

14. As observed on site, access to the dwelling was through a walkway in front of other properties but below the street. A number of flights of stairs lead to the front door. A number of dwellings have access to off-street car parking structures.

15. A significant Port Jackson fig tree is located at the front of the property within a sloping, rocky part of the road reserve.

Key Issues

16. Council raised the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex 1):

1. Contention 1 – Building height.

2. Contention 2 – Adverse heritage impacts.

3. Contention 3 – Bulk and scale of the garage structure.

4. Contention 4 – Unacceptable view impacts.

5. Contention 5 – Adverse shadowing impacts.

6. Contention 6 – Trees and Landscaping.

7. Contention 7 – Insufficient information.

8. Contention 8 – Public interest.

9. Contention 9 – Matters raised by objectors.

17. Following the amendment of the DA, Council pressed the majority of contentions as applicable to the parking structure. No issues were pressed in relation to the alterations and additions, though Council pressed that the Court should still consider the public submissions.

Expert Evidence

18. Expert evidence about the contended issues was heard from:

Applicant	Council	Joint Expert Report
Town Planning	Larissa Brennan	Patrick Hurley	Ex 3
Heritage	Graham Brooks	Vanessa Holtham	Ex 4
Arboricultural	John Whyte	Melanie Howden	Ex 5

19. All experts gave oral evidence at the hearing.

Heritage impacts

20. Council pressed that the proposed parking structure should be refused due to its unacceptable impacts on the Cremorne Point Heritage Conservation Area. The relevant controls are set out below.

21. Clause 5.10 heritage conservation of the NSLEP states:

5.10   Heritage conservation

Note.

Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives The objectives of this clause are as follows—

(a)  to conserve the environmental heritage of North Sydney,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c)  to conserve archaeological sites,

(d)  to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a)  demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i)  a heritage item,

(ii)  an Aboriginal object,

(iii)  a building, work, relic or tree within a heritage conservation area,

(b)  altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c)  disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d)  disturbing or excavating an Aboriginal place of heritage significance,

(e)  erecting a building on land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f)  subdividing land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

…

(4) Effect of proposed development on heritage significance. The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment. The consent authority may, before granting consent to any development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

22. The site is identified on the HCA mapping, pursuant to Schedule 5 of the NSLEP. There are several heritage items in the vicinity of the site.

23. The Statement of Significance for the HCA is set out below:

(a) Consistent early 20th Century residential area with a mix of Federation and

1920s one and two storey housing mixed with inter-war residential flat buildings

of two to three storeys, all built on large allotments with a strong orientation to

the water.

(b) Unique foreshore reserve that predates the residential subdivision, which

demonstrates the concern for recreation, public access and suburban amenity,

and the importance of headlands in the visual character of Sydney Harbour.

(c) The visual unity derived from its subdivision history that is still apparent.

24. The North Sydney Development Control Plan 2023 (NSDCP), Appendix 1, identifies the site as a contributory item.

25. The following controls in the NSDCP are relevant:

Control 13.6 Heritage Conservations Areas

Contributory items are part of the collective significance of the particular

conservation area in which they are located. They are important for what they

offer to the streetscape or character of the heritage conservation area. As a

result, the focus for contributory items is how the building appears in the public

domain, and especially from the street.

13.6.1 General Objectives

O1 Ensure that new development is designed to retain and complement the character and significance of the conservation area (refer to Part C of this DCP for a description of the significance of the heritage conservation area).

O2 Ensure that contributory items are retained and where practical improved, with a focus to locate new work to the rear or away from publicly visible elevations of building.

O3 Enable neutral items to be improved such that they contribute to the character of the heritage conservation area through the removal of unsympathetic and inappropriate elements, and reinstating missing details where appropriate.

O4 Encourage change that will remove uncharacteristic items or reduce the extent of their intrusion.

…

13.6.2 Form, massing and scale

Objectives

O1 To ensure new development has a compatible and complementary building form and scale to that which characterises the conservation area.

O2 To maintain and enhance streetscape character as identified within the Area Character Statements.

Provisions

P1 Development should reflect the bulk, mass, scale, orientation, curtilage and setbacks of surrounding heritage and contributory items.

P2 Development should recognise and complement the predominant architectural scale and form of the area.

P3 Do not obstruct existing views in the public domain, including slot views over and between buildings as these provide connection and contribute to the context of the area’s location.

P4 Reinstate characteristic and decorative features to contributory items where alterations and additions are proposed. This could include reinstatement of verandahs and balconies, joinery, chimneys, fences or window detailing.

P5 Achieve a neutral outcome to neutral items or improved outcome to neutral items which were constructed in the core period of development by:

(a) respecting original or characteristic building patterns in terms of bulk, form, scale and height;

(b) minimising changes to original and characteristic features;

(c) removing unsympathetic and uncharacteristic changes and/or;

(d) reinstating characteristic details where there is physical or documentary evidence.

P6 Achieve an improved outcome to uncharacteristic items by removing the uncharacteristic or intrusive element or incorporating changes to improve the contextual design and visual impact of the site.

P7 Respond to characteristic building alignments by not building forward of the established or characteristic front setback.

P8 Repeat any consistent pattern of side and rear setbacks of heritage and contributory items in the vicinity of the site.

P9 New work may adopt a contemporary character, provided the development is not likely to have a detrimental impact on the characteristic built form of the area, particularly in terms of bulk, scale, height, form or materials.

…

13.6.3 Roofs

Objectives

O1 To maintain the characteristic roof profiles and roofing materials within a heritage conservation area.

Provisions

P1 Roof form, pitch and materials are to be compatible with heritage and contributory items in the conservation area, as identified in the relevant character area statement (refer to Part C of the DCP).

13.9 CONTROLS FOR SPECIFIC BUILDING ELEMENTS

These controls apply to development applications for works to heritage items and sites within heritage conservation areas. Part C to this DCP contains the Area Character Statements for each Planning Area and Locality Area in the Local Government Area. These Character Statements for each of the heritage conservation areas identify characteristic elements, built form elements which positively contribute to the character of that area. The statements also identify uncharacteristic elements, which detract from the character and heritage significance of a conservation area. It is important to note that uncharacteristic elements, whilst potentially common within a conservation area, are in fact undesirable, detract from or are simply unsympathetic to the heritage significance of the area. These uncharacteristic elements should be removed wherever possible.

...

13.9.5 Garages and Carports

Many sites in North Sydney are unsuitable for on-site parking. Carports and garages can have a detrimental impact on heritage items and the streetscape of heritage conservation areas. The intention for these controls is to ensure that significant and contributory buildings, with their landscaped settings, remain the dominant element in the streetscape.

Garages, carports and large areas of paving located within the front setback of heritage items and buildings located within heritage conservation areas are generally considered to be uncharacteristic elements.

Objectives

O1 To ensure that vehicular accommodation does not detrimentally impact upon the significance of the heritage item or heritage conservation area.

O2 To ensure that off-street car parking does not dominate the streetscape.

Provisions

P1 Must comply with the provisions contained within s.1.5.4 to Part B of this DCP.

P2 Rooms/studios located above garages or where increased floor to ceiling heights are sought to accommodate vertical car stackers and that garage fronts a laneway will not be supported.

P3 Do not alter or demolish any part of a building for car parking, carports and garages.

P4 Roof form, detailing and materials are to compliment the associated building.

P5 Retain original garages for heritage items and contributory items.

P6 Any off street parking located within the front setback area is to remain uncovered and be constructed using minimal paving and incorporate soft landscaping.

…

Section 6 Area Character Statements – South Cremorne Planning Area

6.4 Cremorne Point Conservation Area

6.4.2 Description

The Cremorne Point Conservation Area is located on a peninsula between Shell Cove and Mosman Bays, and is bounded by Hodgson Street to the north.

The landform slopes southwards from a central ridgeline and down to the bays on each side. The street pattern follows the topography with roads and service lanes following the ridge line with secondary lanes giving access to the lower sites close to the water. Some streets have terraced footpaths set above or below the roads with exposed rock outcrops.

The Cremorne Point Conservation Area is characterised by large, single and two storey, freestanding Federation and Edwardian dwellings, reflecting the area’s main period of development. Some dwelling houses have their primary elevation to the water with garaging and carports to the rear. There are also examples of single storey Inter-war dwelling houses with multi-storey Edwardian and Inter-war residential flat buildings. There is considerable Post-war infill development of single dwelling houses and multi-storey residential flat buildings.

The buildings generally have irregular setbacks from the street with level or terraced gardens and a mix of fencing types. There is extensive use of stone in boundary and retaining walls.

The main roads are well landscaped with nature strips and street plantings. Front gardens are well established, and often have extensive plantings to give an overall impression of a landscaped, garden suburb. The peninsula has a landscaped public reserve to its perimeter that is unusual in the Sydney area.

6.4.3 Statement of Significance

The Cremorne Point Conservation Area is significant for:

(a) Consistent early 20th Century residential area with a mix of Federation and 1920s one and two storey housing mixed with inter-war residential flat buildings of two to three storeys, all built on large allotments with a strong orientation to the water.

(b) Unique foreshore reserve that predates the residential subdivision, which demonstrates the concern for recreation, public access and suburban amenity, and the importance of headlands in the visual character of Sydney Harbour.

(c) The visual unity derived from its subdivision history that is still apparent.

6.4.4 Significant elements

Topography

P1 Low ridgeline along a peninsula between to bays that slopes to the water.

Subdivision

P2 Regular rectangular lots.

Streetscape

P3 Continuity of fences and landscaping. Sandstone kerbing, sandstone and concrete walls, street gardens.

Views

P4 Cremorne Reserve Walk lookouts (many, including 34, 35, 38, 40), Hodgson Avenue lookout (24), Bromley Avenue lookout (25), Bogota Avenue lookout (26), Cremorne Road lookout (27), Sirius Park lookout (28), Kareela Lane lookout (29), Green Street lookout (30), Cremorne Lane lookout (31), St Chads lookout (32), Milson Road lookout upper level (33), Wallenundgal lookout, Milson Road (36), Wharf Road lookout (37), Kareela Lane lookout (29). Views from Rialto Avenue, Kareela Road.

6.4.5 Characteristic buildings

P1 Single and two storey, detached Federation and Edwardian dwelling houses. Edwardian and Inter-war residential flat buildings.

6.4.6 Characteristic built elements

Siting

P1 To the middle of the lot with gardens to the front and rear.

P2 Buildings sited to retain slot views above and to the side to harbour.

P3 Front setback 7 9m; 10-15 m east side of Kareela Rd and west side of Cremorne Rd between Sirius St and Hodgson Ave.

…

Form, massing and scale

P5 Single and two storey detached dwellings. Double elevations to waterfront properties. Reduced scale to the rear on non waterfront properties. Multi-storey residential flat buildings.

Roofs

P6 Hipped and gables roofs pitched between 30 and 45 degrees without dormer windows or openings that can be seen from the street. Brick and rendered chimneys.

…

Car accommodation

P14 Parking provided off rear lanes.

6.4.7 Uncharacteristic elements

P1 Over-scaled additions; dormers and skylights to front roof slopes; roof terraces; carports and garages covering more than 1/3 of the street frontage; high solid fences to the street; rendering and painting of face brick; extensive glazing; glazed balustrades; loss of original detail; modern infill development and residential flat buildings.

Heritage Evidence

26. Both heritage experts agree that the proposed alterations and additions, as amended during the proceedings, are consistent with the HCA. The remaining area of dispute is the parking structure.

27. In relation to the amended DA, Ms Holtham for Council stated that her concerns included a lack of clarity over colours and materials, balustrade / swimming pool fence appearance and the extent of tree removal (architectural plans do not show any tree removal). The concerns pressed or exasperated included the impacts on the character of the conservation area and streetscape, substantial obscuring of the contributory building and the double concrete crossover with hardstand element. Improvements to the design included the relocation of the lift, relocation of the garage tower closer to the street and shortening of the driveway, which have all slightly improved visibility of the dwelling.

28. Mr Brooks for the Applicant says that the existing dwelling does not contribute as strongly to the HCA as nearby Federation style dwellings. The Interwar style dwelling and period of construction between 1933-1943 are features that are outside of the stated significance of the HCA, identified as Federation housing with Interwar RFBs and early 20^th century residential development. However, the proposed development does not challenge the contributory status.

29. The existing dwelling house is sited well below Kareela Road and only the roofscape can be viewed from the public footpath. The dwelling house is orientated to the water and is highly visible from the public foreshore walk.

30. Mr Brooks evidence is that Kareela Road, Milson Road and Cremorne Road all have garages and parking spaces accessed from ‘secondary lanes’ (with reference to the established character statement for the HCA). These structures are located within the width of the road reserve.

31. Mr Brooks says that car ownership and car access to residential lots is a substantial aspect of the heritage character and significance of the HCA, as the area was developed when car ownership was fast emerging.

32. Approximately 20 contributory items contain directly accessible off-street parking which therefore form a contribution to the history and character of the peninsular. These include:

1. 3, 7, 15, 25, 49 and 53 Kareela Road

2. 16, 20, 52, 82, 88, 138, 148 Milson Road

3. 1, 3, 25, 27, 39, 55 and 59 Cremorne Road (south).

33. Mr Brooks’ evidence is that the proposed car parking would not adversely affect the significance of the HCA or contributory dwelling. Both the alterations and additions are the garage tower will retain and complement the character and significance of the HCA. There are no uncharacteristic items that need to be removed.

34. Ms Holtham for Council says that the HCA is underpinned by the housing stock and relationship to the Harbour as described in the Statement of Significance. The NSDCP outlines a specific (though not exhaustive) list of significant elements. Of particular relevance are the significance for ‘topography’ and ‘views’, which reinforce the relationship between the area and the water. Amongst other specific locations, Kareela Road is one of only three streets specifically identified as having significant views.

35. The characteristic built elements in the HCA are described as one to two storey dwellings with hipped and gable roofs, sited in the middle of the lot, front and rear gardens and retention of slot views above and to the side of the harbour that can be seen from the street.

36. Ms Holtham’s evidence is that despite the location lower than the street, the subject site contains a front garden that can be seen from Kareela Road. The front garden, Council landscaped road reserve and substantial Port Jackson Fig Tree make a strong and positive contribution to the streetscape.

37. Ms Holtham’s evidence is that the proposed development will remove views of the gabled roof form, existing landscaped setting and views to the harbour from Kareela Road. This presentation as viewed from the Kareela Road frontage demonstrates the significance of the HCA. The NSDCP identifies that the building’s appearance from the public domain, especially from the street, is a focus for contributory items. The orientation towards Mosman Bay captures private views but is not how the dwelling is viewed and understood by the public, HCA and principal streetscape of Kareela Road. As viewed from Kareela Road, the site and its current siting demonstrates primary views from Kareela Road to the Harbour, a significant element of the HCA.

38. Despite the topography, the original roof form with 1930’s roof tiles is visible and contributes to the Kareela Road streetscape. The built form and footprint are largely intact, allowing slot views.

39. The NSDCP details ‘uncharacteristic elements’ for the HCA. The garage does not comply with a number of controls of the NSDCP as it is a covered structure, does not limit paving / concrete, removes views of soft landscaping and impacts on the Port Jackson Fig Tree which forms part of the character of the area.

40. Ms Holtham’s evidence is that the proposed garage tower will block views of the dwelling, much of its setting and the relationship between the harbourside context from Kareela Road. The structure will extend across a significant portion of the contributory dwelling and reflects an uncharacteristic element that is contrary to the NSDCP. The site has never benefited from a parking structure and a new garage appears to not have been constructed for contributory items in the last 10 years on the eastern side of Kareela Road. The garage structure will be highly visible to and from the contributory item of 49 Kareela Road, where the three storey structure will loom above the neighbouring contributory property. The garage tower is contrary to the objectives and provisions of the NSDCP in relation to the HCA, additional storeys and views of the contributory item through a highly visible new structure.

41. In cross examination, Ms Holtham’s evidence is that despite the lack of a footpath on the eastern side of the road and cars parking along the eastern side of the road, drivers and pedestrians could obtain views of the contributory item and its setting. Ms Holtham agreed that the fencing detail and colours / materials could be dealt with via conditions of consent.

Findings

42. I firstly accept and adopt the evidence of the heritage experts that the alterations and additions to the dwelling will not affect the heritage significance of the dwelling, HCA or heritage items / contributory development in the area for the following reasons:

1. I accept that the dwelling has two frontages and a street address to Kareela Road. The dwelling is orientated to the water and can be appreciated in full from the public reserve walkway. This aspect remains unchanged from the alterations and additions.

2. The main element of the contributory item that is visible from Kareela Road is the roof and the dwelling’s setting. I accept that the alterations and additions are modest and have been designed to minimise their visual presence from views from the public domain.

3. The heritage significance from the primary viewing and setting of the dwelling from the public reserve walkway is not diminished given the recessive nature of the alterations and additions.

4. The alterations and additions have very little to no impacts on view loss, slot views, loss of amenity or environmental impacts. I deal with the other town planning merit issues and concerns raised by objectors separately from [59] and [62].

43. Moving to the contested issue of the parking structure, which at three storeys, would appear as single storey to the Kareela Road streetscape due to the site’s steep topography. I find that the car parking structure, as finally amended, is inconsistent with the heritage significance of the HCA. Whilst I accept that a parking structure for the site would be consistent with the HCA, given that the HCA controls specifically allow for it in certain situations (P6 of 13.9.5 and P1 of 6.4.7 of the NSDCP), the width of the proposal is an uncharacteristic element and would result in impacts that are contrary to the heritage significance of the HCA.

44. There is no doubt that there are many car parking structures along Kareela Road including properties with similar site characterises including dual frontage to the reserve and car parking towers. One similar structure was under construction at the time of the site viewing. Of the existing parking structures, most have direct access from Kareela Road and a few have an elevated bridge to reach the parking structure. Several of them result in a garage tower built form given the sharp fall in topography of the road reserve. There is a mix of single and double garages, and a single garage with hardstand area.

45. With consideration of the streetscape, I accept Ms Holtham’s evidence that the double width driveway and ultimate width of the parking structure would impact on the heritage values of the HCA for the following reasons.

46. The amended parking structure proposes to occupy approximately 6.57m of the site, comprising the single garage and single hardstand. Due to its elevated nature, the hardstand is required to be surrounded by a vehicle barrier and balustrade, which increases its prominence and visibility to the street. The site has a frontage of 15.24m (Ex A, Tab F). I accept that the parking structure as a whole occupies 43% of the frontage. The NSDCP for the HCA provides guidance that any carport or garage should be less than a third of the site’s frontage (P1, 6.4.7 of NSDCP).

47. Churcher submits that the garage itself is limited to approximately 3.5m or 23% of the frontage and is therefore not an uncharacteristic element identified in the NSDCP. I do not accept this proposition. The elevated hardstand with fencing that is accessed from an equally wide driveway crossover has a similar impact as a garage or carport, albeit comparatively less than a covered structure. When read with the garage, the impact is similar. I accept Ms Holtham’s evidence and Mr Grace’s submissions that the elevated, fenced, hardstand car space and garage will restrict views of the contributory item, views from Kareela Road and slot views to the harbour. The width of all the proposed parking structures exceeds the guidance of one third of a site’s frontage (P1, 6.4.7 of NSDCP), which directly results in these heritage significance impacts.

48. I accept that whilst the views of the contributory item are somewhat limited when viewed from the pedestrian footpath and public domain from Kareela Road due to the site’s topography, this element is inherently part of the heritage significance. I accept that views from Kareela Road, of the contributory dwelling and to the harbour are significant elements of the HCA (control 6.4.4, P4 of NSDCP). The garage and elevated car stand with fencing and double width suspended driveway will block views of the contributory building and the harbour, contrary to the objectives and Part C Section 6 of the NSDCP. The placement of the parking structure and its increased setback of 2.5m does not facilitate enough of a view or slot views to the harbour as sought by the NSDCP, contrary to P2 of 6.4.6 characteristic built elements of the NSDCP.

49. The impacts to heritage significance from the combined parking structures are contrary to objective O1 of 13.9.5 garages and carports and O1 and O2 of 13.6.1, as the width of the parking structures would detrimentally impact on the heritage significance of the HCA.

50. Not every site is capable of providing car parking for its inhabitants. The reasons put forward in the Applicant’s affidavit are completely understandable, particularly given the characteristics of the site and the desire to continue residing in their home. However, a development consent runs with the land and the application needs to be considered on that basis.

51. There are many other parking structures in the street, and I accept that many, but not all, form part of the HCA. These other garages or hardstand areas have been assessed on their merits. Here, though it improved over the course of the hearing, the proposed size and placement of the entire parking structure results in unreasonable impacts on the heritage values and heritage significance specifically stated in the NSDCP for the HCA.

52. The aspect of the amended DA for the parking structure and a 6.57m double elevated driveway blocking views of the contributory item and relationship between Kareela Road should not be granted consent.

53. It is my view that having regard to the evidence, site viewing and streetscape, a single space structure that retains some views of the contributory building is achievable, consistent with the desirable elements of the HCA and streetscape.

54. Acknowledging the lack of remaining contentions regarding the alterations and additions, Council submitted that the Court was able to partially issue a development consent pursuant to s 4.16(4) of the EPA Act. The Applicant did not raise any opposition to this submission.

55. I accept all of the expert’s evidence that there are no issues that would warrant refusal of the alterations and additions component of the amended DA for the reasons set out above and further below. Pursuant to s 4.16(4)(b), development consent should be granted for the amended DA except for the parking structure (being the garage, hardstand space, lift and driveway).

Port Jackson Fig Tree Removal

56. The proposed removal of part of the Port Jackson Fig (or Ficus rubiginosa) and dispute regarding whether the tree was one or two trees does not to be determined, as its removal related to the parking structure. As far as it may assist, I make the following observations from the evidence.

57. Part of the dispute related to the health of part of the tree. I would have accepted that irrespective of if the tree was one or two trees, sufficient evidence was adduced that part of the tree tested for Phytophthora cinnamomic (pathogen), which is a major threat to the health of the tree that will cause the irreversible decline and potential death of the tree. Whilst the pathogen testing was not entirely complete, the testing was accompanied by observations of the suffering part of the tree that Mr Whyte indicated are physical signs of the pathogen. These physical signs had manifested in a noticeable physical decline of part of tree. I would have accepted Mr Whyte’s evidence that the testing and physical symptoms justified part of the tree’s removal, but this would have been subject to the plans and documentation clearly showing the extent of tree removal. The extent of tree removal proposed was not clearly demonstrated by the material before the Court.

58. In understanding Ms Howden’s evidence, it was unclear to me if the information provided during the proceedings was insufficient in her expert opinion, or due to her simultaneous appearances at two concurrent hearings that she had engaged in.

Town Planning

59. As I have found that the parking structure should not be granted development consent, the town planning contentions regarding excessive built form, view loss, solar access (though not pressed) and the height breach do not need to be dealt with.

60. The planning experts agree that there are no issues caused by the proposed alterations and additions. The Town Planning JER stipulates that a strict application of the side setback controls of the NSDCP would require part of the second storey to be setback 2.5m. I accept the planners’ agreement that the proposed 1.5m side setback is adequate as it substantially complies with the side setback control of 1.5m for the first 7m of the development and is limited to a low occupation habitable room (a bedroom) and bathroom ensuite area. The side setback is consistent with the characteristic built elements control P4, 6.4.6 of the NSDCP, which stipulates characteristic side setbacks of 1.5m in the HCA.

61. I accept that the proposed setback meets the objectives of 1.4.6 of the NSDCP, as it is characteristic as identified in the HCA part of the NSDCP, is for a small portion of the dwelling and retains adequate separation between dwellings acknowledging it faces the southern elevation of the adjoining dwelling at 49 Kareela Road. I find that reasonable amenity for the existing dwelling at 49 Kareela Road is preserved, in that the planners’ evidence is that the windows are mostly vertically offset to retain privacy and that reasonable outlook from 49 Kareela Road’s southern elevation is maintained, noting the substantial water views available from other rooms and open space areas of the dwelling. The differences in window placement and topography between the sites provide sufficient amenity for both levels of the proposed development for visual and acoustic amenity.

Concerns raised by residents

62. The proceedings commenced on site, where the Court and parties heard from a number of objectors and one speaker in support. During the public exhibition periods, a number of written submissions were received by Council. These were tendered and have been considered. The objections and submission in support primarily relate to the parking structure. As I am not granting consent to that aspect of the proposed development, there is no need to further consider the concerns raised.

63. One adjoining neighbour also raised concerns about the alterations and additions, though most concerns were directed to the parking structure. The concerns about the alterations and additions are summarised as:

1. Impacts from the proposed breach to the side setback.

1. The site being highly constrained due to the Council reserve cliff, substantial fig tree, public views of Mosman Bay from Kareela Road and views over and between 47 and 49 Kareela Road.

2. The neighbouring site was able to have closer side setback of 1.2m as a result of its construction prior to the current planning controls, with associated reduced building separation.

3. The proposed reduction in building separation from the side setback variation impacts on privacy and outlook from key living areas immediately adjacent to the proposal. Use of these rooms and ventilation would be impacted by the proposal.

4. The ground floor window of the proposal is directly adjacent to the private ground floor balcony and main window to the family room, resulting in associated visual and acoustic privacy impacts.

5. The proximity of the alterations and additions will reduce the amount of natural light to the main living areas.

6. The shape of the alterations and additions is contrary to the values of the HCA and contributory items.

64. The Court had the benefit of understanding the written and oral objections from 49 Kareela Road and affected rooms and open space areas.

65. For the reasons I set out at [60]-[61] and below, the concerns raised do not warrant refusal of the alterations and additions:

1. Control 6.4.6 of the NSDCP specifically states that side setbacks of 1.5m are characteristic built elements of the HCA, which is proposed.

2. The variation of the side setback only applies to the part of the structure over 7m. 1.4.6 of the NSDCP allows a side setback of 1.5m up to 7m and 2.5m beyond. These offending elements above 7m primarily relate to the roof form. Therefore, the privacy implications from the part of the building varying the side setback control are low.

3. In terms of outlook, there will be impacts to the perceived bulk of the development from the identified rooms and areas, which are main living areas or open spaces where the objector’s evidence stated that the family spends a considerable amount of time. In balancing the competing interests of neighbours, the reduced outlook that is created by a highly compliant built form is reasonable. It is acknowledged that most properties, including this property, have access to other private open space areas that obtain water views, albeit with less privacy. The affected rooms and areas all face side boundaries and are orientated south, where amenity is often diminished. Privacy and outlook is also difficult to maintain across side boundaries. The reduction in natural light is not an unreasonable consequence from a highly compliant proposal to south facing rooms.

4. In terms of privacy, due to the changes in topography and offsetting of the windows, the first floor bedroom does not propose any unreasonable privacy impacts. Regarding the ground floor, I accept that there is sufficient building separation between the two dwellings that visual and acoustic privacy would not be impacted any more than reasonably anticipated in a residential zone.

66. The concerns raised, whilst understandable, do not warrant refusal of the amended DA.

Roads Act 1993

67. As the parking structure will not form part of the consent, this aspect does not need to be dealt with. I would comment that, whilst it is agreed that the Court has power to issue the s 138 approval, the application lacked structural details for the suspended driveway over Council’s reserve. I therefore would have declined to issue a s 138 approval and would have imposed conditions of consent to obtain the approval from Council.

Disputed conditions of consent

68. There were several disputed conditions of consent between the parties, however these all related to the parking structure. As the conditions of consent included conditions relating to the parking structure, an amended set of agreed conditions needs to be provided to remove any conditions relating to that structure in order to reflect the findings of this judgment.

Jurisdiction

69. There were no issues raised regarding any preconditions to granting consent. I rely on the Council’s assessment report (Ex 8, Tab 25) and the documentation forming part of the Class 1 appeal that the relevant preconditions of the NSLEP consent have been met in relation to the NSLEP including:

1. The site has a history of residential use and there is no evidence to suggest any contamination on site. I am satisfied that s 4.6 of State Environmental Policy (Resilience and Hazards) 2021 is met.

2. For the reasons previously articulated, the alterations and additions are modest in nature and do not detract from the heritage or foreshore qualities of the area. Further, adequate stormwater management has been provided to adequately manage the impacts of the proposed works. I accept that the provisions within Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 have been met.

3. The amended DA was accompanied by a valid BASIX Certificate (Certificate A414351_05) that satisfies State Environmental Planning Policy (Sustainable Buildings) 2022.

4. The proposed development relates to works for a dwelling house, which is permissible in the R2 Low Density Residential zone. All of the relevant development standards are complied with, subject to deletion of the parking structure element. I have had regard to the objectives of the zone and the proposal causes no offence to the objectives. I have previously considered the impacts of the proposal on heritage significance as required by cl 5.10. I am satisfied that the provisions of the NSLEP have been met.

Conclusion and directions

70. For the reasons set out in this judgment, the amended DA should be granted a partial development consent for the proposed alterations and additions excluding the parking structure (and works associated with and beneath the parking structure) pursuant to s 4.16(4) of the EPA Act.

71. The Court directs that:

1. The parties are to confer and agree on a set of conditions that are consistent with the findings of this judgment.

2. Agreed conditions of consent are to be filed to the Court by 18 July 2025.

3. Once the agreed conditions are filed and reviewed, I will make final orders in these proceedings.

S Porter

Commissioner of the Court

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Decision last updated: 08 July 2025