Helou v Willoughby City Council

[2020] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation:

Helou v Willoughby City Council [2020] NSWLEC 1648

Hearing dates:

5 November 2020; Mention on 11 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the application to:

(a)   Rely upon amended plans marked Exhibit D.

(b)  Undertake works to demolish the existing hardstand car parking space within the front setback of the site and the adjoining northern and southern retaining walls at 8 Dowel Street, Chatswood.

(c)  In place of the retaining walls and car parking space, the adjoining lawn area is to be battered back to align with the return walls of the street-facing gable portion of the front façade and planted in lawn.

(d)   Landscape the front setback in accordance with the plans at Exhibit D.

(2)   The appeal is upheld.

(3)  Development consent is granted to Development Application DA2019/22 for the demolition of an existing hardstand car parking space and adjoining northern and southern retaining walls and the construction of a masonry retaining wall and associated landscaping, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – North Chatswood Heritage Conservation Area – driveway in front setback – orders by consent

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court 1979

Willoughby Local Environmental Plan 2012

Texts Cited:

Australian Standard AS2890

Land and Environment Court, COVID-19 Pandemic Arrangements Policy

Willoughby Development Control Plan 2012

Category:

Principal judgment

Parties:

Karia Helou (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
M Helou (Agent) Applicant
K Gerathy (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Respondent)

File Number(s):

2020/120432

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Willoughby City Council (the Respondent) of an internal review undertaken in accordance with s 8.1 of the EPA Act of Development Application No. DA-2019/22 seeking consent for the removal of an existing concrete driveway slab and construction of a concrete "railway strips" driveway at No 8 Dowel Street, Chatswood (the site), otherwise known as Lot 29 Section 1 in DP 3873 and Lot 1 in DP 942463.

2. It is relevant to record here that the application the subject of the appeal flows from an earlier development application, DA2012/376 (2012 Consent) which was issued by the Respondent on 19 March 2013.

3. The 2012 Consent approved the demolition of an existing dwelling, the construction of the dwelling currently occupying the site, and associated landscape works.

4. Relevantly, the 2012 Consent also approved the removal of the vehicular crossing to Dowel Street in favour of permeable landscaped areas, a paved path and fence along the front boundary (subsequently modified) with associated landscaping in front of new hedge planting to the full length of the front boundary excepting a small break for the paved path.

5. To the rear of the site, the 2012 Consent included a double garage and secondary dwelling on Boronia Lane.

6. While it was not initially the subject of the development application before the Court, it is also relevant to record here that the Applicant has undertaken works that are in contravention of the 2012 Consent that are the subject of a Development Control Order (Exhibit 2, Tab 8).

7. For completeness, I also record here that the 2012 Consent was the subject of a modification application (DA2012/376/A) which included, at Condition 8, a requirement for the front fence to not exceed 700mm in height, and for hedge planting.

8. In the interests of completely and finally determining the matters of controversy between the parties, and avoiding all multiplicity of proceedings concerning any of those matters, leave was granted to the Applicant to amend the application on the basis of the plans marked Exhibit D so as to regularise those unauthorised works in the orders.

9. The parties agree the amendments to these plans address all of the contentions and while the appeal was initially listed for mandatory conciliation on 4 November 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), the parties now seek consent orders from the Court.

10. Accordingly, I terminated the conciliation conference at the commencement of the second day and proceeded forthwith to hearing. The parties consented to discussions and documents relied upon during the conciliation conference being admitted in accordance with s 34(12) of the LEC Act.

11. In the course of the hearing, and due partly to time granted to the Applicant to consider documents served on it by the Respondent, and partly due to difficulties in reliable audio at the Applicant’s end, the proceedings were unfinished at the conclusion of the second day.

12. I directed that closing submissions be in writing, and that as the Applicant was, in effect, self-represented, and as the parties sought orders by consent, the Respondent would provide written submissions in the first instance no later than 7 days after the close of the hearing. The Applicant was directed to provide 7 days after this, with parties granted liberty to restore with 2 days’ notice.

The onsite view

13. The parties were granted an onsite view at the commencement of the proceedings in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

14. I attended the onsite view with the Respondent’s legal representative, Ms Kirston Gerathy, the Respondent’s heritage expert, Mr Greg Patch, and the Applicant’s agent, Mr Mohammed Helou and the Applicant’s heritage expert, Mr Paul Rappoport.

15. In the company of those in attendance, I was taken to both sides of Dowel Street with a particular focus on No’s 12, 14 and 17 Dowel Street which Mr Rappoport identifies as driveways of similar scale in the front setback.

16. I was also taken to Boronia Lane, to the rear of the subject site, where those attending agreed that the width of the lane permitted a vehicle to use the lane even where a parked vehicle obstructs the lane, as was the case during the onsite view.

17. While in the lane, I was taken through the double garage to the central landscaped space between the primary dwelling and the secondary dwelling and noted to those attending that a reasonably level path of travel was possible from the primary dwelling, through the double garage, or via a side passage adjacent to the double garage to the rear lane.

The planning framework

18. The site is located within the R2 Low Density Residential zone under the Willoughby Local Environmental Plan 2012 (WLEP) in which the zone objectives are as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To accommodate development that is compatible with the scale and character of the surrounding residential development.

•  To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

•  To retain the heritage values of particular localities and places.

•  To encourage self sufficiency with respect to energy and food supply.

19. The site itself is not a heritage item but is within the North Chatswood Heritage Conservation Area (North Chatswood HCA). As such, the provisions of cl 5.10 of the WLEP apply and are in the following terms:

…

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

(a)  to conserve the environmental heritage of Willoughby,

(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—

…

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

…

(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).

20. The Willoughby Development Control Plan 2012 (WDCP) (Exhibit 1, Tab 2) contains provisions that are relevant, including:

1. The aims, at Section A.3, include to:

“5. Ensure that provision is made for the safe, convenient, and efficient movement and accommodation of vehicles within the City including a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles;

…

9. Preserve and enhance the character and amenity of the residential zones and to ensure that future development within those zones is compatible in scale and character with existing development;

…

15. Ensure that the significance of Heritage Items is identified and retained and to ensure that the special streetscape character of Heritage Conservation Areas is maintained;

16. Ensure that new development respects the context and is sympathetic in terms of form, scale, bulk, fabric, colours and textures and does not mimic or adversely affect the significance of Heritage Items and Heritage Conservation Areas and their settings;”

2. At Section A.8, the WDCP states that, in the event of inconsistency, the provisions of Part H – Controls for Heritage Items and Heritage Conservation Areas take precedence.

3. Section C.4 of the WDCP sets out certain standards and guidelines in respect of transport requirements. Relevantly, car parking requirements for a dwelling with 3 bedrooms or more are set out at Section 4.2 (D) (folio 170) total 2 spaces, and no provision is required for a secondary dwelling.

4. Design guidelines for parking spaces are set out at Section 4.5 of the WDCP, and require, in summary, conformance with the Australian Standard AS2890, and minimum dimensions for car parking spaces that are free of obstruction. Included in the guidance is a requirement, relevantly, that no car spaces be located forward of the building line in the front setback and that a 1m setback be provided, with a 1m splay.

5. Likewise, vehicular crossings, driveway widths and lengths are required to comply with AS2890, according to Section C.4.5 (D) of the WDCP.

6. Section 4.6 provides that, where there is a prevalence of such structures with the front setback, structures for car parking may be permitted.

7. Part D1.2 contains a desired future character statement for the North Chatswood HCA, which provides, relevantly:

“Retain and enhance the qualities and characteristics of the localities by:

Maintaining a consistent front building alignment of landscaped gardens to the street;

Maintaining the existing pattern of low face brick masonry or timber palisade fencing to the street;

Retaining landscape settings by minimising the extent of driveways and paved surfaces at the street frontage;

…

6. Sensitive design and placement of carparking structures to streetscapes comprising residential frontages without garages or carports fronting the street. Ensure the presence and location of new car parking structures does not detract from the uniformity of the original built forms in the street;

…”

8. Section D.1.4 provides guidance on Character Design, Streetscape and View Sharing which is, relevantly:

“10. Provision must be made for landscaping within the front setback to compliment landscape features of the street and to integrate the new development into the street. Large expanses of hard surfaces should be avoided (eg. concrete driveways) and softened by the use of landscaping.

11. Provision should be made for planting of trees and consideration should be given to the nature, age, height and canopy spread in the design process.”

9. Section D1.8 sets out requirements for landscaping in the following relevant terms:

“(iv) Use species, which are indigenous/endemic to the area as the predominant vegetation types;

(v) Minimise the amount of hard surfaces (driveways, paved areas etc) to decrease surface runoff;

(vi) Use native trees to reduce maintenance and minimise water utilisation;

…

(x) Reinforce the landscape character and important environmental qualities of the locality;”

10. Part H sets out, relevantly, the controls for Heritage Conservation Areas. In particular, the aim, at (c), is to ensure that the heritage significance, special streetscape and landscape character of Heritage Conservation Areas is maintained.

11. Planning and Design Principles are found at Section H.2.1. The objectives and requirements are in the following relevant terms:

“Objectives

1. To provide an appropriate visual setting for heritage items and buildings within heritage conservation areas, including landscaping, fencing and carparking;

2. To maintain and enhance the existing heritage significance of the streetscape and the vicinity; and

3. To ensure that new development respects the established patterns in the streetscape, including setbacks, siting, landscaped settings, carparking and fencing.

Requirements

…

(ii) Except as allowed by “car parking” and “fences” in Clause H.2.2 below, no new structures should be built forward of the established street building line;

(iii) An adequate curtilage including landscaping, fencing and any significant trees, are to be retained;

(iv) The established landscape character of the locality including height of canopy and density of boundary landscape plantings should be retained in any new development;

…

(vi) New developments must respect the existing significance of the streetscape and the vicinity; and

…”

12. Further provisions in respect of car parking in heritage conservation areas are found at Part H.2.2 (E), provisions relating to Fencing are found at Part H.2.2 (F), and Garden elements, paving and driveways at Part H.2.2 (G).

The evidence

21. The Court was assisted by experts in heritage, planning and engineering who conferred to prepare joint reports as follows:

• Mr Greg Patch, for the Respondent, and Mr Paul Rappoport for the Applicant, prepared a joint heritage report marked Exhibit 4.

• Mr John McKee for the Respondent and Mr Paul Rappoport for the Applicant prepared a joint planning report marked Exhibit 5.

• Mr Joseph Bazergy, for the Respondent, and Mr Jan Rosenhal for the Applicant prepared a joint engineering report in respect of stormwater marked Exhibit 6.

22. Given the limited scope of contentions, only the heritage experts were required to give oral evidence. The hearing of evidence was somewhat delayed as time was required to locate Mr Rappoport, after which he re-joined the Microsoft Teams hearing via his mobile phone.

23. The Respondent submits that the existing hardstand, and the proposed modification to remove a portion of the hardstand for ‘wheel-strips’ is inconsistent with the heritage values of the North Chatswood HCA which predominantly comprises single storey detached housing in Federation or Interwar bungalow styles in a mature landscaped setting with minimal hard surfaces forward of the building line.

24. Further, that a key aspect of the North Chatswood HCA is the subdivision pattern permitting rear lane access to achieve a landscaped setting within the streetscape. Vehicular crossing and hard surface areas with retaining walls within the front setback become dominating features and detracts from the landscaped setting of the North Chatswood HCA and are unacceptable.

25. The Respondent’s concerns also relate to the use of the driveway for parking as the setback measures around 5500mm, being less than the distance required for a car space and the sightlines required by Australian Standard AS2890.1 to the public footpath that runs directly in front of the property.

26. The Applicant’s proposal to conform with the sightlines provision would result in a driveway opening in the order of 7m in width that the Respondent contends offends the heritage values of the North Chatswood HCA when viewed in context with the properties and landscaped verge in Dowel Street, and fails to retain landscaped settings by minimising hard surfaces in front of the building line as set out in Part H, Section 3.11 of the WDCP .

27. The WDCP describes the North Chatswood HCA at Section 3.11 of Part H as follows:

“North Chatswood’s original dwelling stock is predominantly single storey detached housing in Federation or Interwar bungalow styles. However, there are a few two storey Federation mansions, the occasional late Victorian house and some semidetached “bungalows”. Lot sizes vary, although most streets have similar width frontages. Buildings are usually consistently spaced and of similar scale and bulk within each streetscape even where this is composed of varied styles. Mature landscaped gardens are an important quality of this area. The grid pattern subdivision is laid over gentle to moderate slopes. Most streets have well-established street trees, notably brush box and canary island palms, which enhance the high residential amenity of the orderly streetscapes. The “square” formed by Beauchamp Park is a focus in the townscape. The form of original development in streetscapes near Chatswood CBD is generally maintained where rear lanes accommodate separate access to offstreet car parking. Otherwise, on-site parking facilities are usually unobtrusive, since the spacing of houses typically allows side access to rear parking.”

28. The Statement of Significance in the WDCP describes the North Chatswood HCA in the following terms:

“North Chatswood Heritage Conservation Area is a good example of early North Shore residential development. The housing stock describes the progressive overlays of development taking place over half a century. The essential scale, form and spacing of the original dwellings is predominant, even where original architectural detailing has been lost, though much of this is still intact in fine residential buildings and as a general townscape impression.”

29. During the course of the hearing, the heritage experts conferred to produce an elevation sketch of the front fence that was agreed by the experts, in oral evidence, to be an appropriate response to the North Chatswood HCA, and which forms part of Exhibit D.

30. Mr Rappoport corrected his earlier statement made in the joint report that garages to the rear lane were not the norm and agreed with Ms Gerathy, for the Respondent, that in fact every property on Dowel Street had a garage or garages to Boronia Lane.

31. Mr Rappoport also accepted that his statement made in the Statement of Heritage Impact (Exhibit 1, folio 500) that the existing vehicle cross over to Dowel Street was ‘visually intrusive’ remained an accurate reflection of his opinion today, despite the statement in the joint report that the driveway at Dowel Street was capable of being ‘absorbed’ into the general character of the heritage conservation area.

32. For completeness, I note that Mr Helou sought opinions of the experts as to the comparative impact of an area of hardstand, being that evident today, and a double garage located in the front setback such as that depicted in images of the property at 5 Daisy Street. The experts agreed that the hardstand would impose a lesser impact, but also observed that double garages located in front setbacks were highly unusual.

33. Mr Helou drew my attention, and that of the experts, to the development at 5 Daisy Street, which is located to the south west of Beauchamp Park and within the North Chatswood HCA. However, whether or not a development in an area, for reasons unknown to the parties, the experts, or the Court, enjoys the benefit of a consent in respect of garaging visible from the street frontage is, in my view, irrelevant to these proceedings.

Conclusion and findings

Impact on the heritage significance of the North Chatswood HCA

34. The existing driveway is not setback behind the building line or at the rear of the site as required by Part C.4 of the WDCP, and its dimensions do not accord with AS2890.1 because of the narrowing caused by the sandstone capping to the brick pillars either side, and the obstruction to sightlines caused by the brick and sandstone pillars.

35. The WDCP, at Section C.4.6 states that hardstand areas may be considered in certain circumstances. None of the circumstances set out in the performance criteria are met by this site. The controls at Section C.4.6 also states that car parking spaces should be located at the rear of the site where access is available off a rear laneway; or in front of the building line as a single hardstand/single open sided carports, with a minimum 1m setback from the front boundary for landscaping; and to improve sightlines for pedestrians and exiting vehicles.

36. Rear access is provided, and the site has a double garage with good access from Boronia Lane, and the hardstand in the front setback is not setback 1m as required by the controls.

37. On the basis of the expert heritage evidence, and the onsite view, I note that the works required to the existing driveway to make it safe would result in a wide opening that, because of its insufficient depth, cannot be gated, and for these reasons would, in my view, be a jarring result in Dowel Street.

38. To the extent that the driveway and dwelling at 14 Dowel Street is identified as a precedent, I accept Mr Patch’s assessment of the property as being an aberration in the street that is not consistent with the description of the North Chatswood HCA at Section 3.11 of Part H of the WDCP.

39. I am left with the impression that the combination of the tiled finish to the hardstand that abuts the front of the dwelling, the side retaining walls and lack of landscape in the vicinity of the driveway create a harsh and alien form in the street. It is neither unobtrusive, nor supportive of the mature landscape evident in the description of the North Chatswood HCA.

40. To remediate the uncharacteristic elements would further exacerbate, and not remedy, the disjunction with the North Chatswood HCA. That is, to provide the sightlines required by AS2890 would result in an opening to the street of around 7m, framed by the brick wall fronting Dowel Street that would, presumably, return in towards the dwelling to form a large opening to Dowel Street that would dominate.

41. For these reasons, I conclude that the current form of the driveway adversely impacts the North Chatswood HCA and is inconsistent with the objective of the R2 zone to retain the heritage values of the relevant locality.

42. Works now proposed by the parties would remove the driveway, complete the front fence in accordance with the sketch at Exhibit D, and provide the soft landscaping the subject of the 2012 Consent and bordering the existing pathway in the front setback shown on the plan at Exhibit D, in closer accordance with Sections D.1.4 and D1.8 of the WDCP.

43. Once complete, these works would positively contribute to the North Chatswood HCA, and be consistent with the provisions of Part C.4 and Part H.2.2 of the WDCP by relying on parking access from the rear lane.

44. I also note that as the property has the benefit of a double garage fronting Boronia Lane, the site is well served by car parking that is consistent with the desired future character of development in the North Chatswood HCA.

Alternative access for care vehicles

45. Mr Helou seeks safe and reliable access to transport and care for members of his family who have particular needs.

46. While Mr Helou’s preference is to retain parking at the front setback of the property fronting Dowel Street, the parties agree, and I concur, that this access is best facilitated across the level ground that is between the primary dwelling and the rear lane.

47. It is generally agreed that, notwithstanding the presence of rubbish bins, parked cars and the like, vehicular access is possible in the rear lane, including the passing of vehicles if needed. Further, the rear lane appears a preferable location for access by family members to a community van for the following reasons:

1. Review of the relative levels at the front and rear of the property suggest the terrain is more level, with fewer steps to navigate at the rear.

2. Pathways from the primary dwelling to the rear lane may be gained either through the double garage, or via the side passage which is 900mm wide according to the plans the subject of the 2012 Consent (Exhibit 1, Tab 8).

3. The rear lane is less congested, and less subject to traffic than Dowel Street which has a greater volume of traffic, that is two-way, and includes parking on both sides of the street.

4. The width of the double French doors between the central courtyard and the double garage also permits wider access in the future should a wheelchair or similar be required. To the extent that the inclination of the kerb crossing is viewed by Mr Helou as unsafe, I note that ramps and the like are often used to access such vans, and I also note the agreement of the parties that some works may be considered to the rear lane.

48. Access to the rear lane would be improved by minor works being undertaken in the location of the rear gate to the side passage and the Respondent submits a sketch identifying the zone in which such works could focused.

49. Additionally, I note that the Applicant intends to lodge an application for an accessible parking space in the rear lane immediately opposite the subject site, and the Respondent has undertaken to bring the application to the attention of the local traffic committee for consideration.

50. On the basis of the evidence, and in particular the amended plans at Exhibit D I am satisfied that the appeal, as amended, may be upheld.

Written submissions are considered

51. As stated earlier, the Court issued directions to the parties for closing submissions in writing. On 16 November 2020, the Respondent sought an extension of time for filing submissions, which was granted to both parties.

52. The Respondent’s written submissions were filed on 18 November 2020. Relevantly, the Respondent submits (written submissions, pars 62-63) that:

“The Court has before it evidence which would support the granting of development consent to the Amended Application, subject to the conditions proposed in Annexure "B". The proposed amendment removes hard surface areas in the front setback, increases the area of soft landscaping, reduces the height of the masonry front fence in accordance with Part H of the DCP and softens its visual presentation to the streetscape through hedge planting. The Court can also be satisfied that Condition 4(d) will provide a suitable solution for disposing of stormwater.

Exhibit D is also consistent with the streetscape presentation approved by the respondent under the 2012 Consent which was assessed as being consistent with the streetscape presentation and character of the HCA and therefore satisfied cl 5.10(1) of the LEP.”

53. On 25 November 2020, the Applicant sought a further extension to file submissions on 30 November 2020, which was granted.

54. In its written submissions, the Applicant raises matters which it regards as prejudicial, that I choose to summarise as follows:

• Failure by the Court to view a property at Daisy Street,

• Late issue of the single expert report prepared by Mr Bazergy in respect of traffic

• The Applicant’s expert evidence given in extenuating circumstances.

55. Responsive to the Applicant’s submissions, I listed the matter for short submissions to be heard on 11 December 2020.

56. The submissions from the Applicant may be summarised as follows:

1. A review being undertaken by the Applicant in respect of health and safety on the subject site suggests that the width of the side passage accessing Boronia Lane is insufficient and unsafe.

2. The Respondent seeks to now resile from agreement of the parties as to the means of disposing of stormwater in the front setback.

3. The Applicant’s expert, Mr Rappoport was experiencing a medical emergency and gave evidence under duress.

4. Failure to visit the property at 5 Daisy Street prejudiced the Applicant.

5. The Applicant was prejudiced by the serving of documents on the eve of the hearing.

57. In reply, the Respondent submits that:

1. An access review of the property does not affect the outcome of the proceedings as the interface between the subject site and Boronia Lane was a matter raised in conciliation that was outside the scope of the principally contested matters.

2. Stormwater drainage in the front setback arising from the amended plans at Exhibit D is appropriately subject to conditions, and this is all that is proposed now by the Respondent.

3. At no time did the Applicant advise the Court, or seek an adjournment, on the grounds of medical emergency, and Mr Rappoport gave his oral evidence, and addressed questions, without any apparent discomfort or constraint.

4. The property at Daisy Street is located a significant distance from the subject site and was not relevant to the proceedings, with no prejudice resulting.

5. In respect of the late serving of documents, the Respondent identified during proceedings that an error had occurred when attaching reports to an email that had identified 2 reports when only one was, in fact, sent. The Respondent initially withheld the tender of Mr Bazergy’s report (Exhibit 7), and no objection was taken to its eventual tender.

6. In respect of the supplementary bundle of documents (Exhibit 2), its contents are drawn either from documents in the possession or knowledge of the Applicant, or relevant environmental planning instruments.

7. In respect of the Daisy Street property, it is remote from the subject site and of little or no relevance to the subject site.

The Applicant’s submissions are rejected

58. I find the Applicant’s submissions are without grounds, for the following reasons:

1. This decision deals with access to Boronia Lane from the rear of the subject site at [47], noting that the Applicant has alternative pathways to the lane which provide for different modes of travel, including walking, wheelchair or other means. To the extent that the Applicant prefers privacy for a carer in the secondary dwelling, I note that an access door between the garage and the dwelling provides privacy between the house and the garage.

2. In respect of stormwater drainage in the front setback, I consider it reasonable that a general reference to an ‘agricultural drain’ in Exhibit D plans is deserving of further investigation and conditions to ensure that the outcome of the works proposed is not to the disadvantage of the neighbouring property.

3. In respect of the evidence of Mr Rappoport, at no time was the Court advised of a medical emergency, but a ‘medical appointment’. I also record that Mr Rappoport, once located, did not identify any reason that would constrain the giving of his evidence which was conducted by mobile phone, as stated at [22] of this decision.

4. In respect of the Court’s decision not to visit the property at 5 Daisy Street, I consider the property at [33] of this decision. Additionally, I note that the circumstances of this case are not about where provision should be made for carparking. This was resolved in the 2012 Consent with the approval of a double garage accessible from Boronia Lane. Instead, this matter is about the existing driveway cross-over and parking in the front setback that was to be removed, but has not been.

5. In respect of Mr Bazergy’s traffic report at Exhibit 7, I note firstly that the issues contained in the report are not of a highly technical nature and secondly, the Applicant was granted time to consider Mr Bazergy’s report at stated at [11]. Thirdly and finally, I note that Mr Rappoport readily engaged with aspects of Exhibit 7 in the course of his evidence and on behalf of the Applicant. I also accept the Respondent’s submission that the supplementary bundle of documents contains nothing that could be regarded as prejudicial to the Applicant.

59. For the reasons stated above, I consider the matters raised by Mr Helou in his written submissions to have been addressed during the proceedings, and to be relevantly recorded in this decision.

60. I am therefore satisfied that the decision of the Court, by consent of the parties, is to uphold the appeal, subject to amendments agreed to during the proceedings.

Orders

61. The Court orders that:

1. The Applicant is granted leave to amend the application to:

1. Rely upon amended plans marked Exhibit D.

2. Undertake works to demolish the existing hardstand car parking space within the front setback of the site and the adjoining northern and southern retaining walls at 8 Dowel Street, Chatswood.

3. In place of the retaining walls and car parking space, the adjoining lawn area is to be battered back to align with the return walls of the street-facing gable portion of the front façade and planted in lawn.

4. Landscape the front setback in accordance with the plans at Exhibit D.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA2019/22 for the demolition of an existing hardstand car parking space and adjoining northern and southern retaining walls and the construction of a masonry retaining wall and associated landscaping, subject to the conditions set out in Annexure A.

…………………..

T Horton

Commissioner of the Court

Annexure A (164648, pdf)

Ex D (177476, pdf)

**********

Decision last updated: 18 December 2020