Lees v Canada Bay City Council [No. 2]

[2004] NSWLEC 294

Land and Environment Court

of New South Wales

CITATION:	Lees v Canada Bay City Council [No. 2] [2004] NSWLEC 294
PARTIES:	APPLICANTS Andrew Lees and Zena Carusi-Lees RESPONDENT Canada Bay City Council
FILE NUMBER(S):	10808 of 2003
CORAM:	Nott C
KEY ISSUES:	Development Application :- proposed two-lot subdivision in a conservation area - proposed hardstand car space in front of existing house on front lot - means of access - size of lots
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:	Mison v Randwick Municipal Council [1991] 23 NSWLR 723
DATES OF HEARING:	18 November 2003; 8 March 2004; (written submission) 17 March 2004
DATE OF JUDGMENT:	06/18/2004
LEGAL REPRESENTATIVES:	APPLICANTS Mr B Goldsmith, authorised agent RESPONDENT Mrs L Finn, solicitor SOLICITORS Abbott Tout

JUDGMENT:

10808 of 2003

Nott C

24 November 2003

Andrew Lees and Zena Carusi-Lees

Applicant

v

Canada Bay City Council

Respondent

[No. 2]

Reasons for Judgment

Introduction; amended plans of the proposal

1. This appeal is in respect of a development application relating to the property at 27 Tranmere Street, Drummoyne. The hearing commenced on 24 November 2003 and I heard evidence from local residents as well as from experts for both parties. Towards the end of the hearing on that day, the applicants applied for an adjournment to submit amended plans. Brief particulars of the proposed development, together with the reasons I gave for allowing the adjournment, are set out in Lees v Canada Bay City Council [2003] NSWLEC 365.

2. The first element of the previously proposed development was the erection of a carport in front of the existing house. There was an issue as to whether this would be appropriate, having regard to the fact that the house is in a conservation area. Moreover, the original proposal did not have sufficient details concerning the construction of a driveway at a suitable gradient from the carriageway of Tranmere Street across the nature strip and footpath and into the subject property.

3. The amended plans provide details of the driveway and of a proposed uncovered hardstand car space instead of a carport. The other two elements of the proposed development remain the same, namely: the subdivision of the property into two lots; and alterations to and the demolition of certain structures at the rear of the existing house.

4. For the reasons given below, development consent will be granted, subject to conditions.

Planning controls

5. Under the Drummoyne Local Environmental Planning 1986, the subject site is zoned residential 2(b) and is within the Bourketown conservation area.

6. The existing house is not a heritage item, and neither are the adjoining houses to the southeast nor the houses opposite. Nevertheless, these houses (including two houses opposite that each have a car space in front of the house) contribute to the heritage value of the conservation area. St Mark’s Catholic Church and grounds, on the adjoining property to the northeast, is a heritage item under the LEP. However, the church building itself is separated from the subject site by large two-storey school buildings. The large school building immediately adjoining the subject site is of relatively recent construction, dominates the subject site, and does not have heritage value.

7. Clause 18 of the LEP requires development consent for demolition, alteration or erection of a building and for the subdivision of land in a conservation area. Under cl 22A the council (and this Court, on appeal) must consider the impact that the proposed development will have on the heritage significance of the conservation area, and must make an assessment of whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with those of the materials used in existing buildings within the conservation area. See also cl 22C.

8. In a document entitled Drummoyne Heritage and Conservation Controls dated July 2003 (ex 4), a relevant section is Part C—Conservation Areas and Statements of Significance (pp 11-12), dealing with the history, significance and character of the Bourketown conservation area.

9. Part F of the above-mentioned heritage controls is the Comprehensive Development Control Plan (Heritage). It includes provisions relating to streetscape (section 4.2), fences (4.5), and garages and carports (4.6).

10. Part 6—Residential Development of the council’s comprehensive DCP applies to a range of residential development, whether in a conservation area or not. Section 6.2 deals with subdivision and allotment size: the minimum area for a lot is 450 sq m with a minimum frontage to the street of 14 m. Section 6.12 relates to parking and access and provides that garages and carports should be located behind the building line (this does not apply to the amended application). Parking areas and driveways, the location of which is not limited by the DCP, must be carefully designed so as to be safe, accessible and not detract from the appearance of the streetscape.

Heritage considerations

11. The subject land is on an allotment of 909.4 sq m with a frontage of 13.41 m. The applicants’ house is a polychrome brick dwelling set on sandstone foundations with a terracotta roof. It has some fine joinery details including multi-sash windows and gable screen. According to the research of the heritage experts, the house was constructed around 1902. The houses to the southeast were apparently erected shortly afterwards. Probably during the 1920s the applicants’ house was restyled to some extent. Changes include Marseilles tiles to the roof, squat columns and balustrade to the veranda, wing walls to the entrance steps, and the brick pier-and-panel front fence. Subsequent alterations include the wrought iron panels to the fence and, possibly, the gates.

12. The council presented evidence from conservation planner Ms S Burke. In her written statement (ex 8), Ms Burke considered the amended application in the light of the provisions of the heritage LEP, the heritage DCP, the Heritage Office’s publication Conservation Areas (1996), and certain principles of the Burra Charter. She concluded:

9.18 I believe that the amended application should not be granted consent because it would have an adverse impact on the Bourketown Conservation Area by compromising the established streetscape, adversely affecting the historic value and heritage significance of the property and the Conservation Area. The loss of the original garden layout, Inter-War gates and fence of 27 Tranmere Street would adversely affect both its setting and the context of neighbouring contributory buildings within the Conservation Area.

9.19 I believe that the proposal would also have an adverse impact on a highly contributory property (27 Tranmere Street) within the Conservation Area due to the intrusion of a car standing in the front garden, and the destruction of the original garden layout and significant demolition of sections of the Inter-War brick fence and its inappropriate painting.

9.20 I note that in refusing the subject application, and guiding previous similar applications for rear access, Council has repeatedly decided that the significance of the Conservation Area would be best conserved by maintaining significant front garden areas and setbacks free of automobiles and their related infrastructure. This should be supported as a viable alternative is available.

9.21 I conclude that the amended application, subject to accurate engineer’s drawings, if approved, would also reduce the potential for the consent authority to refuse similar developments in the conservation area and, in this regard, would create an undesirable precedent. Notwithstanding concerns about the creation of an undesirable precedent, the adverse heritage impacts associated with the amended application alone would warrant refusal of the application.

13. The original application involving the erection of a carport at the front of the subject land was supported by town planner Kim Burrell, who prepared the statement of environmental effects (ex K) but who did not give evidence in respect of the amended proposal. The original development application (comprising the erection of the carport, the demolition of buildings at the rear and alterations and additions to the rear of the house, and the subdivision of the land into two lots) was recommended for approval by the council’s planning officer, but the council only granted consent for the demolition works and for the rear alterations and additions to the house.

14. Chartered architect and heritage consultant Mr G Page was retained by the applicants in respect of the amended proposal involving a hardstand area instead of a carport. Mr Page said that he would not have supported the original carport proposal, but he did recommend the granting of consent for the proposed hardstand area in accordance with certain conditions of consent. In his written report (ex Q), Mr Page concluded that the visible impacts arising from the proposal will be within the range of acceptable intrusion into such an area, and that the overall treatment of the “intervention” works should not give rise to unacceptable adverse heritage impacts. As well, town-planning evidence for the applicants was given by Mr M George. In my opinion, the amended application is clearly an improvement on the original application.

15. Set out below is a photograph from the report of Mr Patch, showing the applicants’ house in the centre, No 25 to the southeast on the left-hand side, and one of the school buildings close to the north-western side boundary of the subject site:

16. The dominance of the immediately adjoining school building in relation to the subject land is more obvious when a person is coming towards the properties from the southeast. This is because of the size of the school building, its somewhat harsh form and the fact that the school building has a smaller setback from the street than the applicants’ house. The dominant relationship is best illustrated in Mr Patch’s image 15 (ex Q).

17. Directly opposite the subject land, there are two houses at 6 and 8 Tranmere Street, each of which has a driveway from the street leading to an uncovered carparking space (seen in images 3 and 4 of ex Q). Even though those houses are also in the conservation area, the driveways do not seem to be out of place; and if there is any adverse impact on the conservation area or on the houses themselves, it is only slight.

18. If the south-western side of Tranmere Street had a row of Federation houses extending not only from No 23 to the subject land but also continuing immediately to the north-west beyond the subject site, with similar setbacks to the applicants’ house and similar fences, the construction of a driveway onto the front of the subject land would probably be unacceptable. However, having regard to the location of the applicants’ house with no other houses immediately to the northwest but instead the large school buildings, and having regard to the context of the applicants’ house that is located directly opposite two other houses with driveways and car spaces in front of the houses, I am inclined to accept the opinion of Mr Patch that the impacts of the amended proposed development would be acceptable in this part of the conservation area.

19. Although it may be dubious whether the existing garden elements and planting originate from the early 19th century, the applicants have adopted Ms Burke’s recommendation to retain the existing layout of the garden, except where it is necessarily altered for the provision of the hardstand area. In particular, the curved pathway from the main pedestrian gate to the front steps of the house will be retained instead of being replaced by the straight path that is shown on drawing 03265\D0.1. Two small conifers either side of the main pedestrian entrance will be retained. The proposed hardstand area will have a finished surface at RL 31.07, which would appear to be on average about 400 mm below the existing garden level on either side of the hardstand area. The low retaining walls around the hardstand area are proposed to be rock-faced sandstone block retaining walls, and that would be appropriate having regard to the sandstone base of the house.

20. Because the subject house is erected on higher ground than the levels of the adjoining footpath and road, and because the construction of the finished surface of the hardstand area will involve some minor excavation, the presence of a parked car on the hardstand area will not unduly detract from the appearance of the dwelling house. It seems that an adult standing on the footpath near the driveway entrance would have a view over the top of the car to the attractive front windows of the house. As viewed from about the main pedestrian entrance or from any other place further to the southeast, a parked car will cause little or no interruption at all to a view of the whole of the front of the house; and the small conifers will partially screen the car.

21. The front fences at 23 to 27 Tranmere Street are all different in materials and design, and are dissimilar to the higher brick fence in front of the adjoining school buildings. There will of course be a change to the front fence at the subject land because of the opening for the proposed driveway. However, in accordance with conditions of consent, the brick piers at the main pedestrian entrance and the whole of the fence and piers to the southeast of this entrance, together with the tradesman’s entrance on the south-eastern side of the property, will be unaffected. On the north-western side of the main pedestrian entrance, substantial parts of the existing fence will be reconstructed on each side of the driveway entrance, which will be centrally located between the north-western corner of the subject land and the north-western pier of the main pedestrian entrance. The brick plinths either side of the driveway entrance will be required to be reconstructed so that the top bull-nose brick course (which has a decorative dentil course underneath) will be no higher than approximately 600 mm above the immediately adjoining pavement of the footpath, in order to allow a clear sightline between a driver of a parked car on the subject site and small children attending the infants’ school who are walking along the footpath. The existing open-style wrought ironwork will be required to be re-erected or metal work of a similar design fabricated and installed above the bull-nose brick course. The sliding, remotely-operated driveway gates are to be of metal having an open-see-through design matching as far as possible the wrought ironwork of the existing pedestrian gates or the ironwork panels of the fence.

22. Although it would be better from a visual point of view to have brick piers each side of the driveway entrance (as suggested by the heritage consultants in their draft conditions submitted to the Court on 17 March 2004), the width of such piers could partially interrupt sightlines between the driver of a vehicle and pedestrians. At the last on-site hearing, this matter was discussed by way of evidence between the traffic experts and it was considered that from a safety point of view it would be better to have metal posts (having a narrower width or diameter of about 100 mm) each side of the driveway entrance and a similar post at the north-western corner of the subject land. At the time, Mr Patch indicated these 100-mm wide posts by red amendments on the plans in evidence. Overall, I am of the opinion that the safety factor overrides the visual factor and that the metal posts are to be preferred. A condition of consent will require that the new metal gates and fence posts should be treated or painted a dark and recessive colour using tones from the interwar era appropriate to the metalwork elements of the existing fence.

23. Both heritage experts assisted the Court by submitting a two-page list of conditions of consent relating to the garden, the driveway gates and the reconstructed fence. The traffic-engineering experts also submitted recommended conditions relating to the driveway and fence. In blending these two sets of conditions, I have made some minor amendments, deleted some unnecessary conditions and added several others, in the light of the evidence and my findings. In relation to the front fence and gates, I have highlighted some of the main points of the conditions on a drawing that I set out below:

24. The above drawing is indicative only and I do not intend that it be incorporated in the consent that will be granted. A detailed drawing will be required to be submitted with the application for a construction certificate. A condition of consent requires the detailed drawing to be prepared by a heritage architect in accordance with the parameters of the other conditions of consent and to be approved by the principal certifying authority. Although there may be a discretion as to some of the details of the design given within parameters of the conditions, I am of the opinion that the conditions of consent are sufficiently certain as not to be reasonably open to a challenge on the ground that the development consent is invalid for uncertainty, unlike the case of Mison v Randwick Municipal Council [1991] 23 NSWLR 723. I note also that s 80A (3) and (4) of the Environmental Planning and Assessment Act 1979 enable certain conditions to be imposed relating to ancillary matters or relating to outcomes or objectives to be achieved.

25. There would be various alternative ways of designing the front fence and gates, apart from what is specified in the conditions of consent. The applicants are entitled in accordance with the Act and regulations to apply for a modification of the conditions of consent, and the council now has the right to determine such an application even though the consent was granted by the Court—which should ordinarily be a saving of costs both for the applicant and for the council, compared with the previous situation where the application could only be by way of notice of motion to the Court.

Traffic and parking issues

26. At present, it would be possible for carparking to occur on the subject land, because of the rear access available from South Street. The proposed subdivision will mean that this rear access to the existing house would not be available, and carparking would have to occur on the street unless provision is made for a car space between the front of the house and the front boundary, as discussed earlier. It seems desirable that such a car space should be provided.

27. Although pedestrian safety was not expressly raised by the council in the statement of issues, it was raised by Mr C Hallam. The originally proposed driveway was too close to the common boundary with St Mark’s primary school, and adequate sightlines would not have been available between the driver of a car leaving the subject land and small children walking along the footpath to or from school. The amended proposal, involving moving the driveway further from the common boundary, and the lowering of the existing solid elements of the fence either side of the driveway, will provide a safe arrangement for pedestrians. Because the question of safety was only raised expressly as an issue late in the proceedings, a detailed plan amending Mr Patch’s drawing was not able to be prepared prior to the conclusion of the hearing but, as I mentioned earlier, what is now required has been sufficiently specified in the conditions of consent.

28. During the hearing, the two experienced traffic consultants, Mr C Hallam (retained by the council) and Mr J Coady (retained by the applicants), conferred and the outcome was that the proposal could be made acceptable from a safety point of view. Certainly, it was the opinion of Mr Coady that the amended proposal was a suitable arrangement having regard to the safety of school children. Unlike the originally-proposed driveway for a carport or the first amended driveway location for the hardstand area, the driveway now proposed is not located near the corner of the relatively high front wall of the school, and good sightlines would be provided through the widely-spaced bars of the metalwork elements of the reconstructed portions of the front fence on the subject land.

29. The traffic consultants were also of the opinion that the driveway could be constructed with appropriate gradients. Subsequently, a plan drawn by M.L. dated 8 March 2004 (the “driveway plan”), showing boundary and driveway sections, was approved by both experts and was submitted to the Court with the experts’ joint statement of 9 March 2004. I set out in full the joint statement of Messrs Hallam and Coady dated 9 March 2004:

Joint Statement of Christopher Hallam (CH) and John Coady (JC)

1. Following a site inspection with Commissioner Nott on the morning of 8th March 2004, it was agreed that from a traffic engineering point of view, the proposed driveway should be relocated to the south to provide sightlines at the property boundaries shown on Figure 3.3 of a DRAFT dated 21st June 2002 of a revision of AS2890.1—1993 . The relocated driveway is to be positioned centrally between the brick pier at the southern end of the front fence of the adjacent St Mary’s [sic] Primary School, and the brick pier on the northern side of the pedestrian access for 27 Tranmere Street. The relocated driveway will have a width of 2.5 m, with a clear distance of 2 m from the brick pier at the southern end of the St Mary’s Primary School fence to the northern edge of the driveway, and a clear distance of 2 m from the southern edge of the driveway to the brick pier on the northern side of the pedestrian access of No. 27 Tranmere Street.

2 . A plan [the driveway plan] is attached showing:
(a) A cross section along the centreline of that relocated driveway which retains the Tranmere Street footpath at its existing level and sets the vehicle hardstand at RL = 31.07 m. That plan also shows an alternative driveway design which lowers the proposed vehicle hardstand and the existing footpath by 100 mm.
(b) A long section along the existing footpath in front of the proposed driveway. That long section also shows the existing footpath level lowered by approximately 100 mm across the proposed driveway, and tapered back to the existing footpath level over a distance of 3 m on either side of the driveway.
3. The ability of vehicles to travel across the driveway was tested using:
(i) the ground clearance template for the B99 car (100 mm clearance) included in Appendix D of AS2890.1—1993
(ii) the ground clearance template for both the B99 vehicle (120 mm clearance) and the B85 vehicle (120 mm clearance) contained in the DRAFT dated 21st June 2002 of the revision of AS2890.1—1993 .
The exercise reveals that the following vehicles can satisfactorily negotiate the proposed driveway without scraping:


Driveway design with footpath retained at existing level
Both the B85 and B99 vehicles (120 mm clearance) contained in the DRAFT dated 21st June 2002 of the revision of AS2890.1—1993 .

Alternative driveway design with footpath lowered by l00 mm
The B99 vehicle (100 mm clearance) contained in AS2890.1—1993 and both the B85 and B99 vehicle (120 mm clearance) contained in the DRAFT dated 21st June 2002 of the revision of AS2890.1—1993 .
CH and JC agree that:
(a) Although the driveway design which retains the footpath at the existing level can only be negotiated by the B99 and B85 vehicles (120 mm clearance) without scraping, that driveway design is acceptable, using the Draft Australian Standard templates, which we consider appropriate to use [Court’s emphasis].
(b) The alternative driveway design which lowers the footpath by 100 mm will enable it to be negotiated by more vehicles without scraping and would meet the current requirements of AS2890.1—1993 as expressed in Clause 3.2.4(b) and Figure 3.3. JC does not accept that these criteria are applicable to domestic driveways.
(c) There would be merit in modifying the profile of the standard driveway kerb layback to better match the driveway gradient.

4. CH and JC agree that any fence construction in the 2 m space on either side of the relocated driveway should satisfy the following criteria:
(a) Any fence construction of solid materials which totally obscure views should be limited to a height of 600 mm.
(b) Any part of the fence more than 600 mm above ground level should be of a type that permits the driver of a vehicle departing the property a view of pedestrians on the Tranmere Avenue footpath.

30. The consent that I propose to grant adopts the first design option mentioned in par 3 (a) of the above joint statement. In constructing the driveway, care should be taken to ensure that the driveway is laid out in accordance with the levels mentioned in the driveway plan, and that after reinforcement is put in place and before concrete is laid, the prepared driveway should be inspected and certified as being suitably laid out to achieve a completed driveway with gradients conforming to the driveway plan. Because the laying of the concrete could possibly distort the intended surface levels, it is therefore important that the contractor doing the work should be supervised by a qualified expert who could ensure that the finished surface conforms to the approved gradients.

31. Alternatively, the applicants may apply by way of a modification application to adopt the design mentioned in par 3 (b) of the joint statement. Because the alternative design could involve more disruption to the use of the footpath during the period of construction than the option that the court will approve, it would be desirable that the modification application be accompanied by a specification and timetable as to the manner of carrying out and completing the works. As mentioned earlier, such an application may now be made to and approved by the council.

The proposed subdivision

32. The amended proposal for a two-lot subdivision of the subject land involves the creation of a rear lot having an area of 434.32 sq m and a frontage of 13.41 m to South Street. The other proposed lot, containing the existing house, would have an area of 475.13 sq m.

33. There are several reasons why a departure from the requirements of the council’s DCP relating to the size and width of lots may be approved in the circumstances of this case. It would be possible to have both lots complying with the minimum the area of 450 sq m. However, having regard to the location of the existing house, the creation of equally sized lots would restrict the space available between the altered rear part of the existing house and its proposed new rear boundary. By increasing the size of the lot containing the existing house, the proposed new lot will still be of an acceptable size. The width of the proposed lots is only 59 cm or 4.2 percent less than the width recommended by the DCP of 14 m. The subject property has the advantage of having two street frontages, which facilitates the subdivision of the land.

34. An important consideration is the general policy of urban consolidation. In some cases, the subdivision pattern in a conservation area has particular significance and should not be disturbed. However in the present case, the property at 23 Tranmere Street has been subdivided; in its former rear yard four townhouses are now standing with access from Therry Street. The property at No 25 next door to the subject land, which has the same area and width as the subject land, has been subdivided and a separate house erected on the rear lot. This rear lot has an area of only 287.7 sq m. It was suggested in the council’s evidence that an alternative to the applicant’s proposed development would be to have a similar arrangement to that at No 25, which is served by a right of way over the new rear lot. Although there is some merit in that suggestion, overall I am of the opinion that the applicants’ proposed subdivision is to be preferred to the somewhat constrained development next door.

35. There were a number of objections to the proposed development involving the hardstand area at the front of the existing house and the subdivision of the subject land, including objections from the owners of 23 Tranmere Street. However, the immediately adjoining neighbour at No 25, Ms B Campbell, wrote a letter to the council expressing no objection to the proposed development. She was of the opinion that the proposed development would be sympathetic to the existing house and its heritage.

36. Mr B Lenthall of 1 Broughton Street (on the corner of South Street) gave evidence of his concern that if the subdivision were approved it would mean that a house could be erected on the rear lot which might interrupt his views towards the Harbour Bridge or the city. The views he was concerned about are enjoyed from a rear deck at the upper storey of his home, and in the company of the parties’ representatives, I viewed the subject property from that deck. Clearly, if a large two-storey home were erected with a high-pitched roof, a loss of views would be likely. However, a modest home appropriately designed should take into account the views enjoyed by neighbours. I note that the levels of the subject land at the rear have been artificially raised. No doubt for any proposed house on the rear lot the fill could be removed and some excavation could take place, to lower the height of the proposed house, as appears to have occurred with the adjoining house at 8 South Street.

Orders

37. Accordingly, the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted for the demolition of structures and for alterations and additions at the rear of the house on the property at 27 Tranmere Street, Drummoyne, for the construction of a driveway and carparking space at the front of the property, and for the subdivision of the property into two lots, subject to the conditions annexure A hereto.

3. Exhibits 8, 11, C, M, and Q are to be retained.

___________
A J Nott
Commissioner of the Court

___________________________

Annexure A

Conditions of Consent

( 27 Tranmere St, Drummoyne)

Approved plans and amendments to them

1. The subdivision shall be carried out in accordance with the Amended Subdivision Plan Layout drawing No. 03265\D.01S dated 22 Dec 03 of Archnex Designs (exhibit C).

2. The driveway to the proposed hardstand area shall be constructed with gradients in accordance with the plan of M.L. 08/03/04 (pt ex 12) with the hardstand area to RL 31.07. (The dotted lines, and levels in brackets, on that plan are to be ignored. If the lowered driveway is to be constructed, it should be the subject of an application to modify this consent.) The width of the driveway at the layback crossing is to be approx. 3.7 m (or such other width as may be approved by the council). As the driveway crosses the nature strip it should become narrower, and as it crosses the footpath and at the entrance to the subject property the width should be 2.5 m. The profile of the standard kerb layback is to be modified to better match the driveway gradient. The north-western side of the driveway is to be 2 m from the north-western corner of the subject land.

3. The front fence adjoining each side of the driveway entrance is to be reconstructed, as specified hereunder to provide better sightlines.

4. The demolition of structures and the alterations and additions at the rear of the subject house itself are to be carried out in accordance with condition 1 of the council’s consent to DA 765/2002 but the building and other works at the front of the house shown on the plans referred to in that condition are not to be undertaken.

5. Landscaping works around the sides and at the rear of the subject house are to be generally in accordance with drawing 03265\D.01 by Archnex Designs (ex M). However, the works in front of the house shown on that plan are not to be carried out, but are the subject of other conditions of this consent.

6. The hardstand car space within the property is to be 3 m wide (to allow for opening of car doors without hitting the low retaining walls around the car space). The retaining walls are to be rockfaced sandstone block retaining walls. The car space is to have a depth of 6 m from the driveway gates, which are to open by sliding back in a recess behind the reconstructed front fence.

Front Garden

7. The layout of the front garden, the central curved path with raised border beds and the separate tradesman’s entrance with raised border bed are to be conserved in situ.

8. The major landscaping features are to be retained and enhanced by plantings of the Federation-Interwar periods.

9. The small conifers flanking the pedestrian gate are to be retained, or replaced with like specimens on advice of from a tree surgeon. The conifer closest to the hardstand area is to be kept trimmed to maintain reasonable sightlines between pedestrians and the driver of the car exiting from the subject site.

10. Any additional planting and bed-edging materials in relation to the hardstand area should respect and complement the Federation-Interwar character of the existing garden.

Front fence, gates and new driveway opening

11. The three panels of the front fence to the northwest of the main pedestrian gate are to be demolished to facilitate construction of the on-site hardstand car space.

12. The remaining two panels of the fence, the tradesman’s entrance and the main pedestrian entrance, with their capped piers are to be retained and repaired as necessary.

13. These remaining sections of fence and piers are to remain unpainted, colour pointed face brick, with appropriate damp proofing.

14. The proposed driveway as it crosses the front boundary is to be positioned centrally between the north-western corner of the subject land and the north-western side of the brick pier of the main pedestrian entry. The driveway, as it crosses the footpath and at the entry gates, shall have a clear width of 2.5 m. The distance from the north-western corner of the subject land to the north-western edge of the driveway is to be 2 m. A lower brickwork plinth is to be reconstructed each side of the driveway entrance. The top of the bull-nose capping (having the dentil course underneath) is to be a maximum of approximately 600 mm in height above the adjoining footpath.

15. Above the bull nose of the reconstructed brick elements (either side of the proposed driveway), the existing 1950s metalwork panels (or similar fabricated panels) are to be reinstated at a lowered height than the height of the former panels, having regard to the lowered bull-nose brick course.

16. Construction of the new fence sections should maximise the retention and recycling of existing bricks.

17. The new driveway gates should be of an open metalwork design similar to or matching the design of the existing wrought iron panels of the fence or existing gates, although lower in height, allowing easy visibility when open between the driver of a departing vehicle and pedestrians on the footpath.

18. A post approx 100 mm wide is to be constructed immediately adjoining each side of the driveway and at the north-western corner, terminating the reconstructed plinths

19. The main pedestrian gate and tradesman’s gate should match in terms of material, colour, style and height. The gates should be of an open style, allowing easy visibility through the gates to the garden. The driveway gates should match these gates, but lower in height.

20. The new metal gates of the driveway entrance, and the fence posts on either side of the entrance and at the north-western corner of the subject land, should be treated or painted a dark and recessive colour using tones from the interwar era appropriate to the metalwork elements of the existing fence. The colour of new gates and new fence posts should be dark and recessive, using tones from the Interwar era appropriate to the fence.

Other conditions

21. All works referred to in conditions above relating to the front fence and car space are to be designed and supervised by a suitably experienced heritage architect, and plans incorporating the requirements of these conditions of consent are to be submitted with the application for a construction certificate.

22. To avoid disruption to pedestrians going to or coming from the adjoining school, the construction of the driveway outside the subject property is to occur during a school-holiday period and to be completed as soon as possible within the same period.

23. The council’s conditions 3 to 32 attached to the notice of determination dated 22 May 2003 re DA 765/2002 apply to this consent granted by the Court.

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