Nesbitt v Mosman Municipal Council

[2022] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nesbitt v Mosman Municipal Council [2022] NSWLEC 1038

Hearing dates:

14-15 December 2021

Date of orders:

6 January 2022

Decision date:

06 January 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

1) The applicant is to pay the Council’s costs thrown away as agreed or assessed pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 in regard to the amended plans.

2) The appeal is dismissed.

3) Development Application DA 8.2020.49.1 for the construction of a driveway crossing, hardstand parking space, new front fence with associated landscaping and drainage works at No 56 Spencer Road, Mosman, is refused consent

4) The exhibits, other than exhibits A, B, C and 3 are returned.

Catchwords:

DEVELOPMENT APPLICATION -hardstand parking space – impact on heritage item – design response and impact on streetscape in heritage conservation area

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1997, s 34AA Mosman Local Environmental Plan 2012, cll 1.2, 2.3, 5.10, Sch 5, Pt 1, Pt 2

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Simon Nesbitt (First Applicant)
Erin Nesbitt (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J McKee (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/259099

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application DA 8.2020.49.1 was lodged with Mosman Council on 21 April 2021 seeking consent for the construction of a car parking space, front fence and landscaping works at the front of No 56 Spencer Road, Mosman.

2. The Council refused consent on 18 September 2020 and the applicants are appealing that determination pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The matter was heard pursuant to the provisions of s 34AA of the Land and Environment Court Act 1997 and commenced with an onsite view followed by a conciliation conference. The applicant proffered amended plans during the conference that responded to joint reporting by the experts however the changes made did not lead to an agreement being reached between the parties and the conference was terminated.

4. In accordance with the requirements of s 34AA(2)(b)(i), the matter proceeded to hearing.

The proposal

5. The applicant was granted leave to rely on amended plans at the commencement of the hearing. The main changes made to the plans were:

1. Change in the size of parking space from small to an Australian Standard compliant car space;

2. Reduced front wall height;

3. Widening and relocation of proposed driveway crossing;

4. Carparking space extended to within the porch area of the dwelling house;

5. Amended landscape design.

6. The leave was granted subject to the applicant paying the Council’s costs thrown away pursuant to s 8.15 of the EP&A Act as the changes were not considered minor.

7. The plans before the Court now proposed the construction of a new driveway crossing to service a hardstand parking space with associated retaining walls, construction of new stairway, new front fence and associated landscaping. The parking space would accommodate a car that complies with the Australian Standard for parking and is 2.3m wide and 5.4m long. Due to the short building line in front of the dwelling, part of the parking space would extend into the existing porch area of the dwelling. The existing 1.5m high front picket fence would be replaced with a 1.2m picket fence and sliding gates.

The site and locality

8. The site is legally identified as Lot 3 in DP 508011 and is located on the southern side of Spencer Road, between Spofforth Street and Bardwell Lane. It is rectangular in shape with a frontage of 6.015m to Spencer Road and site area is 232.7m2 and has a fall of 2.5m from the north (front) to the south (rear). The site presently contains one of a pair of semi-detached dwellings. There is currently no parking on the site and the front garden area is lower than the street due to the slope of the land.

9. Surrounding development consists of dwelling houses and semi-detached dwellings. Very few of these dwellings incorporate garages due to the age of the buildings, however a number do have either hardstand parking spaces or carports forward of the building line.

10. Spencer Street contains a number of large, established trees that positively contribute to the streetscape. These trees are listed items of environmental heritage. One of these trees directly adjoins the site within the footpath area adjacent to the site.

Planning controls

11. The site is zoned R2 Low Density Residential pursuant to the provisions of Mosman Local Environmental Plan 2012 (LEP). The aims of the plan are listed in cl 1.2 and those relevant to the application are:

(a)   to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity,

(e)   to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Mosman and Sydney Harbour and to protect significant views to and from the Harbour,

(g)   to protect and conserve the natural, built and Aboriginal cultural heritage of Mosman,

(h)   to protect, conserve and enhance the landform and vegetation, especially foreshores or bushland, in order to maintain the landscape amenity of Mosman,

(i)   to limit potential for additional traffic on the road system and to reduce car dependence through development that supports public transport, cycling and walking,

(j)   to manage change in a way that ensures an ecologically and economically sustainable urban environment in which the needs and aspirations of the community are recognised.

12. Clause 2.3 of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are:

• 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 retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

• To ensure that development is of a height and scale that seeks to achieve the desired future character.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

13. The site adjoins an Item of Environmental Heritage, being one of the trees within the “Divided road and street Spencer Road trees”, a local item No 1450 in Sch 5, Pt 1 of the LEP. It is also in the Holt Estate Heritage Conservation Area (HCA) pursuant to Part 2.

14. Clause 5.10 of the LEP applies to Heritage Conservation and contains the following objectives:

(a) to conserve the environmental heritage of Mosman,

(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.

15. Subclause 2 requires development consent for altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) a building, work, relic or tree within a heritage conservation area and erecting a building on land within an HCA.

16. Subclause 4 requires that 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).

17. Mosman Residential Development Control Plan 2012 applies to the site. Relevant aims of the plan are:

“a) protect and conserve the natural and built heritage of Mosman;

b) identify and sensitively manage the desired future character of Mosman and the individual townscape areas of Mosman;

d) protect, conserve and enhance the landform and vegetation, especially foreshores and bushland, in order to maintain the landscape amenity of Mosman;”

18. Section 4.4 Landscaping has objectives that include having the existing canopies and vegetated landscaped character of Mosman protected and enhance and protect existing established trees. A similar objective, to have the amenity of the area preserved through preservation of trees and other vegetation is found in s 4.5 Preservation of trees or vegetation.

19. Part 5 of the DCP is about Site planning and design and it has the relevant objectives of having development of a scale and appearance which is in keeping with the street and desired future townscape area character and having ancillary structures sited and designed to integrate with the built form and not be dominating. Relevant controls are P16 – “provide sufficient area within the front setback which incorporates gardens and space for appropriate trees to balance the built form”. P17 states that “hard surfaces should be minimised within the front setback, and sufficient soft landscaping provided to overcome the pressures within the front setback of car parking and driveways”.

20. Part 5.2 Carport and garage design primarily relates to built structures however, as the proposed hardstand requires extensive changes to the front setback in the form of fill and retaining walls, it is relevant to determination of the application. In particular, the objective of having areas forward of the front building alignment reserved predominantly for vegetation and landscaping and to make a positive contribution to the streetscape.

21. Control P2 establishes a hierarchy for the provision of garages and carports with the first being a garage or carport located at the rear of the site accessed from a rear lane, the second, a garage or carport located at the rear of the site with access from the street frontage or at the side of the dwelling behind the font building alignment and the third a hardstand area (preferably in the form of wheel strips) forward of the front building alignment which is integrated into the landscape character of the front yard.

22. The applicant submits the proposed hardstand is consistent with the third form in the hierarchy of the control.

23. Part 5.2 Fences and walls has objectives of compatibility with the positive elements of the streetscape and having low open style front fencing as a means of reducing the visual impact of solid fencing styles, encourage safety through passive surveillance of streets and private property and allow for public views.

24. Part 5.10 Transport, access and parking provides guidelines for the provision and use of transport, access and parking facilities in Mosman with the objective of minimising the width of crossings, having adequate onsite parking so that development does not generate additional on street parking demand. Relevant controls provide for a maximum 3m wide vehicular crossing which are designed to preserve mature and significant trees and vegetation on the site and in the streetscape.

25. Part 7 of the DCP applies to Townscapes with the site located within the Holt Estate Conservation area, consistent with the LEP. The description of area and character is:

“The area slopes gently in a south easterly direction from Military Road down towards Mosman Bay. The gentle slope, as well as the consolidated ownership of the area allowed for the planned regular grid pattern of the streets.

The area comprises houses generally of similar scale and form, most of which would have been erected soon after subdivision in 1902. However, many of the houses in this conservation area have been modified. The modifications are chiefly the painting of face brickwork never intended to be treated this way, the erection of intrusive garages or carports mostly in front of houses, the concealment of the houses by high, opaque front fences, and the building of severe first-floor additions.

The character of the area is now greatly dependent upon the efficacy of the street plantings of plane and brush box trees in both roads, which to some degree conceal or ameliorate the effects of alterations and additions.”

26. The Statement of heritage significance is:

“The Holt Estate Conservation Area is a complete early subdivision containing a great many buildings from its original residential development. Its significance has been diminished by modifications which have catered to the requirements of individual owners’ amenity at the cost of respecting and retaining heritage values.”

27. Relevant planning controls for the estate call for maintenance of the predominant small scale, low rise building form of the late 19th and early 20th century dwelling houses and semis and their architectural details such as verandahs, decorative timber, leadlight and window hoods. It also calls for avoiding garages and carports forward of the front building line, as this detracts from the character and heritage significance of the conservation area, especially when the ‘style’ of the garage or carport is made to emulate or imitate the style of the house. Low front fences or brick/timber materials are required with the maintenance of generally small front gardens, the leafy character of the area and avoidance of large impervious paved areas, especially in the front garden area.

The contentions

28. The contentions in the case are:

1. The proposed development should be refused as the design response is inappropriate and unacceptable.

2. The proposed development should be refused as the proposal will result in unacceptable impacts on the streetscape and townscape character, surrounding properties, the functionality of the public footpath, and to a street tree which forms part of the street trees which are identified as a heritage item of local significance (I450).

3. The proposed development should be refused as the site is not suitable tor the proposal.

4. There is inadequate information submitted to allow determination of the application with regard to the crossover, front fence and stormwater management.

The evidence

29. One resident of Spencer Road gave evidence during the site view. The concerns raised were that the proposal would dominate the site frontage and not be sympathetic to the appearance and character of the existing dwelling and street, the lack of area available for a garden setting, the potential to impact the street tree and the loss of on street parking.

30. Expert evidence was provided by:

Applicant	Council
Arboriculture	S Sutton	S Wall
Planning/Heritage	P North	P Wells S Polkinghorne
Engineering	B Kenny	E Nesbitt

31. The engineers agreed that the amended plans address the contentions regarding lack of information in relation to stormwater and the driveway crossing. Mr Kenny provided additional plans to clarify the extent of works within the porch area and details of the proposed permeable concrete to be used in construction of the car space (Exhibits K and L).

32. They agreed that the proposal would result in the loss of one on street public parking space to provide the one private parking space on site. These experts were not required for cross examination.

33. The arborists agree the identified street tree (Lophostemon confertus) is considered to be significant in terms of their size, maturity and landscape contribution to the site and/or streetscape, is of mature age class and is in good health and vigour and has been pruned for overhead wires and exhibits an atypical canopy shape.

34. Having considered the amended plans, which relocate the driveway from 1700mm to 2100mm from the centre of the tree, they also agree that root mapping has confirmed that no structural roots will be served within the structural root zone of the tree and that the amended design will have no impact on the long term stability of the tree.

35. The amended plans have included a permeable driveway, that allows for water and gaseous exchange into the tree protection zone and removes the “rainshadow effect” previously of concern to Mr Wall. It also allows for any severed roots to regrow into this location.

36. They consider the amended plans provide sufficient information about the design of the proposed crossover with reference to depths of excavation and treatment of the subgrade, and consideration for roots in this location.

37. Mr Wall says that the proposed works, in particular the cumulative impact of those works, particularly if over-excavation occurred, all have the potential to impact the tree.

38. He says the additional excavation required for formwork may lead to additional root severance from that identified in the reports submitted in support of the application, the replacement of the footpath may lead to more roots being impacted and the compacted fill in the area below the proposed car space is likely to impact any roots that have grown into that area.

39. He says that a significant amount of woody root structure is located within the verge and therefore also likely to be within the required excavation zone for the cross over which would require removal. This would have a detrimental effect on the street tree.

40. Mr Sutton disagrees and says the position of the tree’s roots are identified in the new engineering profile and this shows sufficient buffer space between the roots and the proposed driveway to take into account any variation due to the humped nature of the verge. He says the new design is such that there will be no detrimental effect on the tree and that adequate regard for its health, longevity, vigour and its ability to contribute to the streetscape has been had.

41. Mr Wall says the proposed development will require significant woody and feeder roots to be removed to facilitate the build. It was also determined during the route investigation trenching, that important woody and feeder roots are growing in an undulating pattern in an easterly direction along the nature strip. He notes incursions into the Tree Protection Zone (TPZ) and/or Structural Root Zone (SRZ) should be an important consideration for proposed builds, they take a second standing to actual findings through root investigation trenching. The total amount of root matter that would be required to be removed to facilitate the proposed gutter bridge, crossover and pathway works would have an accumulative affect detrimentally impacting the tree’s health. Adding to this is the additional impact to the practical TPZ of the tree through compacted fill for car park area within the property boundary. This will create an area of asphyxiation for possible existing roots in the area. Additionally, if identified roots can be satisfactorily retained, it is also highly likely they will impact the crossover through future growth given their proximity to the construction.

42. Mr Sutton says the proposal will only result in a small number of minor feeder roots being removed and that the removal of these roots will have no detrimental effect on the tree. The overall proposed encroachment is well under the accepted level of encroachment of 10% as per the Australian Standard 4970 (Protection of Trees on Development Sites), even with a 60% reduction in area for a practical TPZ. The permeable driveway further reduces the level of encroachment and allows for the regrowth of any minor feeder roots that will be severed. Only six minor roots would be removed, which may in fact be the same roots identified multiple times. One of these roots could be retained with some protective measures and two of the roots appear to be already dead.

31. Mr Sutton understands that at 1900mm from the centre of the tree, only a single root of 40mm will need to be cut. The photographs provided by Mr Wall suggest that the trench at 2700mm appears to result in the severance of a single root of 40mm in the middle of the trench. The severance of this root would not be expected to have any impact on the stability, health, vigour or longevity of the tree however, due to its position there are options to retain it, such as wrapping it in Ableflex and builders’ plastic or similar.

32. Mr Sutton says the root bundle closer to the gutter appears to have a minimum depth of 130mm which is deeper than the proposed excavation of 80mm and therefore these roots can be retained. The trench at 3600mm appears to result in their severance of up to four minor roots of less than 40mm, two of which already appear to be dead. The severance of these roots which again might be the continuation of the roots identified in the closer trenches is not expected to have any effect on this tree.

33. Mr Sutton says the filling of the proposed car space within the TPZ will allow for more soil volume for the tree’s roots to occupy. The potential for the pedestrian pathway to be constructed out of a permeable surface will also only benefit the tree allowing for further root growth.

34. During the site view, the Court was taken to a tree outside No 29 Spencer Road where consent had been granted by the Council for a driveway crossing. The tree adjacent to that site showed evidence of dieback. Mr Wall says that whilst the recent photos of the tree show improvement in its health, that the tree was detrimentally impacted by the works and that those works resulted in cutting more roots than had been originally contemplated. Mr Sutton said the tree was already in decline according to the report lodged with the application.

35. He says the tree at the site, commonly referred to as a Brush Box, is a very resilient tree that can cope with the sort of impacts proposed in this application and this resilience is why it is often chosen as a street tree.

36. The planning and heritage experts agree that the Brush Box on the nature strip in front of the site is a highly significant tree that forms part of the heritage item (1450) and contributes significantly to the character of the street and the Holt Estate townscape, and its health and longevity is of vital importance to this heritage significance and character.

37. They agree that any design of the proposed crossover and car space that cannot guarantee the ongoing health, vigour and vitality of the Brush Box street tree would fail to satisfy objectives 04 and 05 at Part 4.4 Landscaping of the DCP. They agree that the acceptability of the design in providing this guarantee is subject to aboricultural evidence.

38. Mr North says the proposal should provide a reasonable level of confidence that the tree will survive in reasonable health (as opposed to a 100% guarantee). Should the tree fail and die, it should be replaced with an advanced specimen of good form of the same species and this may be a matter for condition.

39. Ms Polkinghorne says any works that may lead to deterioration of the condition of the tree or potential loss of the tree are unacceptable. She says that a replacement tree, albeit an advance specimen of good form of the same species, will not make the contribution to the streetscape character as the existing tree. Due to the visual age of the existing Brush Box, she understands it to be one of the original/early plantings in the street that make up the group listing and as such, makes a greater contribution to the heritage listing than later and more recent plantings.

40. These experts prepared a supplementary joint report (Exhibit 7) in relation to the amended plans.

41. They agree that the reduction in height of the boundary fence is appropriate.

42. Ms Polkinghorne notes that the amended drawings now include a significant physical and visual intrusion into the verandah space in the form of the raised end of the car parking space. The new arrangement creates a non-traditional relationship between the facade of the dwelling, the verandah space and the vehicle with the option of a full size vehicle now a prominent component available in views from the public domain. This changes views of the dwelling, including the loss of the special volume of the verandah space from both the permanent car parking structure as well as the body of the vehicle when parked, and diminishes the contribution the house makes to the surrounding conservation area and streetscape.

43. She says the requirement to insert the raised car parking structure into the verandah space to achieve a compliant space dimension demonstrates that the site is not suitable to support a car space. This is because she says the permanent structure renders the verandah unsuitable as it was intended with a reduced width to approximately half the length of the verandah of approximately 800mm. This distance does not take into account the projecting sill which will further reduce the space. The permanent structure set within the verandah results in the removal of the slate verandah threshold and a significant portion of the verandah tiling. Some form of retaining wall, presumably, required to contain the compacted fill and support at the raised car space, now appears to wrap between the two brick and sandstone verandah post pillars. She is concerned regarding potential damage to the verandah posts, and sandstone pillar capping that may occur or longer-term water damage created by trapped water movement adjacent to those elements.

44. Mr North says the proposal would not have an unacceptable impact upon the conservation area for the following reasons. The vehicle parking area and crossing would be visually discreet and have negligible visual impact upon the streetscape. The hardstand itself would not comprise a structure higher than the footpath level and would comprise largely soft soil, and as such, would have no tangible visual impact at all. The car space would be entirely contained within the property and would not project onto the council verge or across the boundary. The original visible and significant architectural detail of the front elevation of the existing dwelling would not be altered. The existing front fence, which is currently excessively high, would be lowered to be more appropriate height for the conservation area of 1.2 metres, utilising appropriate timber picket detailing which would improve the contribution of the existing front facade to the conservation area, reveal the front garden to public view and be generally more consistent with the low density garden suburb character of the locality.

45. He says the proposed configuration is consistent with the pattern of development already existing in the streetscape which contains a number of similar parking arrangements, many of which are in the front of semi-detached dwellings. Importantly, he says the proposal would have beneficial streetscape impacts in that it would open up views to the dwelling from the street as a car could no longer be parked parallel against the kerb and views would be opened up towards the dwelling from the footpath due to the lowered front fence.

46. Mr North notes the existing dwelling is not a heritage item although acknowledges it is located in the HCA. The descriptor of the conservation area in the DCP is chiefly dependent on the character of the street tree plantings and, the primary contribution of the dwelling to the conservation area is its special relationship to the street, the roof form, the front gable and the timber fretwork under it, as this is all that is currently visible. The base on the supporting verandah columns are not currently visible from the street and, even with the lowered front fence, would have minimal visibility given the proposed landscaping.

47. Mr North says the proposed modifications to the verandah area would not be visible from the street and as they are minor, would not materially alter the contribution of the dwelling to the HCA.

48. Mr Wells says the proposed car space reduces the visual quality and recreational amenity of the front yard and the contribution that it and the dwelling makes to the street. This is the case with and without a car occupying the space. The reason for this is that it interrupts and diminishes the overall visual quality of the front facade of the dwelling by removing the existing landscaped area and the visual depth of the brick pillars which served to provide proportion and enhanced attractiveness to the dwelling. With the car occupying the space, the same issues arise. He says there is an increased importance in protecting the visual quality of dwellings in the HCA and it is not the case that every site has the right to a car space. Some sites are too heavily constrained to allow for a space, and the occupiers need to park on the street. In this case, the reduced yard level and associated positioning of the dwelling, and the need to build this level up to serve engineering requirements, reduces the visual quality and contribution the dwelling makes to the street.

49. He says the limited width of the allotment is a constraint of the site and one that exacerbates visual impacts through the street whenever works are proposed, particularly works within the front building alignment. For this reason, he says the site is not suitable for the proposal. He says the reduction in fence height to 1.2 metres is a welcome design response in the street as it opens the front yard visually to casual observers passing by and achieves compliance with the DCP.

Conclusion and findings

62. At the conclusion of the hearing, the issues remaining were the need to consider the effect of the proposed development on the heritage significance of the Brush Box tree and the effect of the proposed development on the heritage significance of the HCA. All engineering issues had been resolved through the submission of the amended plans.

63. In relation to the tree, I am not satisfied that the development will not lead to adverse impacts on the adjacent tree which forms part of Heritage Item No 1450 included in Sch 5 Pt 1 of the LEP. That is because, whilst I accept that the conditions proposed may address short term construction measures, I accept the evidence of Mr Wall, that the longer term cumulative impacts of the works are likely to lead to a decline in the health, vigour and longevity of the tree. In particular, the placement of compacted fill to a depth of around 700mm adjacent to the front property boundary and within the practical TPZ of the tree is likely to lead to asphyxiation of roots within that area. The focus of the root mapping was within the grassed verge and Mr Sutton stated the extent of investigation beyond the footpath was restricted to a distance of only 200mm. Whilst I accept the structural stability is not immediately threatened by the works, I am not satisfied that the works will not contribute to the decline in health and vigour of the tree, thereby prejudicing its longevity.

64. The tree forms an integral part of the Heritage Item and contributes to the streetscape of the HCA and for that reason, it is important to ensure that its longevity is not prejudiced by the development.

65. In relation to the impact of the proposed development on the heritage significance of the HCA, I do not consider the extent of works proposed that intrude into the porch area and the change in the appearance of the setback area that would reduce the presentation of the dwelling are appropriate. I do consider the reduction in height of the front fence would be beneficial to the streetscape however, this benefit is lost through the need to carryout construction within the front façade of the dwelling and its porch. I do not consider the proposed landscaping would compensate for these impacts.

66. In this regard, I prefer the evidence of Ms Polkinghorne and Mr Wells and agree that the need to insert the raised car parking structure into the verandah space to achieve a compliant parking space demonstrates that the site is not suitable for the proposed development. This structure will render the verandah unusable and results in the loss of the slate threshold, and a significant portion of the verandah tiling.

67. I do accept that the provision of a hardstand parking space with landscaping is envisaged by the objectives and controls in the DCP, those controls apply to the whole of the Mosman local government area and greater weight must be given to the impacts of a proposed development when that development is located within a HCA.

68. There are a number of parking spaces within the front building line along Spencer Street as well as a range of carports. Many of these are considered to adversely affect the HCA and this fact is highlighted in the Statement of heritage significance which states the modifications have diminished the character at the expense of individual owner’s amenity at the cost of respecting and retaining heritage values. This factor does not justify approval of a proposal that will potentially impact the tree or result in inappropriate changes to the façade and front garden of the dwelling house. This proposal would be the first development that necessitates the modification of the façade of a dwelling to accommodate the parking space. I consider that this is inappropriate and would adversely impact the heritage significance of the HCA.

69. The narrow width of the site further reduces the ability to mitigate these adverse impacts and, other than the reduced fence height, I do not find the application to have any positive benefits to the HCA.

70. These findings lead me to conclude that the proposed development is inconsistent with the objectives of the R2 zone, in particular, it does not maintain the general dominance of landscape over built form nor ensure that development is of a height and scale that seeks to achieve the desired future character of the HCA.

71. It does not minimise the adverse effects of bulk and scale of buildings and the site is not of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

72. For these reasons, consent should not be granted.

73. The Orders of the Court are:

1. The applicant is to pay the Council’s costs thrown away as agreed or assessed pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 in regard to the amended plans.

2. The appeal is dismissed.

3. Development Application DA 8.2020.49.1 for the construction of a driveway crossing, hardstand parking space, new front fence with associated landscaping and drainage works at No 56 Spencer Road, Mosman, is refused consent.

4. The exhibits, other than exhibits A, B, C and 3 are returned.

…………………………..

Sue Morris

Acting Commissioner of the Court

**********

Decision last updated: 24 January 2022