Turner v North Sydney Council

[2022] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

Turner v North Sydney Council [2022] NSWLEC 1025

Hearing dates:

14 December 2021

Date of orders:

28 January 2022

Decision date:

28 January 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 2021/0208 for alterations and additions at 30 Wilson Street Cammeray is approved subject to the conditions at Annexure A.

(3) The exhibits, other than Exhibits 1, A-G and L, are returned.

Catchwords:

DEVELOPMENT APPLICATION– provision of basement garage and rear additions – effect on heritage significance of heritage conservation area – tree removal and replacement – neighbour impact

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.15, 4.17

Land and Environment Court Act 1979, s 34AA

North Sydney Local Environmental Plan 2013, cl 5.10, Pt 2, Sch 5

Cases Cited:

Golden v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Texts Cited:

Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Ben Turner (First Applicant)
Rebecca Meyer (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Marsdens (Respondent)

File Number(s):

2021/242732

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal is brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 179/2021 (DA) by North Sydney Council (Council). The DA proposes alterations and additions to an existing dwelling on the land at 30 Wilson Street, Cammeray (site). ­­

2. The appeal was initially listed for conciliation on 13 December 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). It became apparent that agreement would not be reached, and conciliation was terminated, and a hearing held forthwith on 14 December 2021, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. There was the opportunity for a site inspection but otherwise the hearing was conducted via the Microsoft Teams platform.

The site and its context

4. The site is legally described as Lot 1 DP 1115323 and is at the northern end of Wilson Street. The site is rectangular in shape and has a total area of 550.1m2. The site is occupied by a single storey dwelling described as a “late Edwardian period house in the Federation style” in the Heritage Impact Statement prepared for the proposal (Ex E p 11). The dwelling is elevated above street level with a half-width verandah.

5. The site is situated within Zone R2 Low Density Residential under North Sydney Local Environmental Plan 2013 (NSLEP). The site also falls within the Plateau Heritage Conservation Area (PHCA) listed in Pt 2 of Sch 5 of NSLEP. The site is located near the north-eastern corner of PHCA. Suffice to say here that the locality is characterised by single storey Federation and Edwardian dwelling houses intermingled with newer developments.

6. It is noteworthy that the site and its immediate environs are relatively elevated, with nearby land falling away steeply to the east and north (I note here the description of the topography of PHCA as “level plateau with escarpments to the north and east” (NSDCP p C4-15)). The carriageway within the Wilson Street road reservation narrows to half width near the site and for the three properties further north, as a response to the this topography, it would seem. Wilson Street is fronted by dwellings on its western side, only, for most of its length, with a vegetated presentation along the road’s eastern edge, otherwise. There is a notable stand of what appears to be native bushland within the road reservation, generally east and north of the site. Beyond this vegetation, there are views to a portion of Middle Harbour from the site and nearby street.

Proposal

7. There are four components to the proposal which I summarise as follows:

• Provision of off-street parking: new driveway and two-car garage to be provided under the existing dwelling (with associated excavation, and removal and replacement of front vegetation and pathway), reconstruction of certain period fabric elements including verandah and extension of verandah to the north.

• Ground level alterations and additions: internal changes to expand the open plan kitchen/dining/living area with sliding doors to the rear yard. The front half of the dwelling would remain generally intact.

• First floor addition: to provide for a new master bedroom and ensuite, study area and storage. The form of the alteration would be contemporary in character, with a cubic form, and flat and skillion roofs.

• Other external works: new/replacement entry path, replacement of front fencing, tiered garden areas along northern side boundary, rear deck and pergola, vegetation and tree removal and new landscaping.

8. The Applicant in its Statement of Facts and Contentions in Reply (Ex A p 2) indicates that there is a need “to replace certain elements of the building that have failed, are at risk, or are beyond the useful life of the building element.”

Planning framework

9. The proposal is permissible with consent in the R2 zone under NSLEP. The zone objectives 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 encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

10. Clause 5.10(4) of NSLEP requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of PHCA.

11. North Sydney Development Control Plan 2013 (NSDCP) applies to the site. I reference the provisions below.

Public submissions

12. Two objecting written submissions were received from neighbours. One was concerned with visual privacy which has been addressed in conditions. Another was concerned with view loss from the rear which was not pressed by Council or supported by evidence. In line with the advice of the parties, the question of view loss does not concern me given the physical circumstances. An oral submission from a neighbour to the south was received during proceedings. It was concerned with the potential impact on view and sunlight amenity due to tree planting to the front garden, which I address below.

Issues

13. In its closing written submissions filed on 23 December 2021, Council nominated three contentions as remaining:

• Heritage impact

• Excavation, demolition and structural stability

• Public interest.

14. While there was agreement on the part of the landscape and horticulture experts in regard to the issue of tree removal and landscape treatment, I do also give attention to this issue for reasons explained when that topic is considered.

15. The experts providing evidence in the proceedings were:

Expert	Expertise	For
B McDonald	Planning, architecture, heritage	Council
S Hobley	Landscape	Council
P Corbett	Traffic	Council
G Patch	Heritage	Applicant
K Burrell	Planning	Applicant
R Jackson	Arboriculture	Applicant
D Brodie	Traffic	Applicant

Heritage impact

16. Council is concerned about impacts associated with the demolition and alterations to the exterior of a building within a heritage conservation area. The concerns included: (1) proposed garage and (2) proposed rear addition. There was also a concern in regard to the removal of vegetation in a conservation area. I address this issue when addressing the tree removal and landscape treatment issue, later.

Proposed basement garage

17. It is useful to quote (selectively) from Council’s Statement of Facts and Contentions (Ex 1 par 1(d)) to capture the essence of the concern in regard to the proposed basement garage, which I believe to be the major matter in these proceedings:

“(i) The proposed garage within the sub-floor will detract from the aesthetic and historic significance of the dwelling as it appears from the public domain because:

(A) It will be highly visible in what is a largely intact original dwelling.

(B) It necessitates removal of sections of the highly intact front façade and fence, both of which are characteristic of the development in the Plateau Conservation Area.

(C) The proposed driveway will also detract from the landscape setting of the dwelling due to the introduction of significant paved areas within the front setback and the removal of a large portion of the characteristic front garden (approximately 50 per cent).

(D) The required excavation will limit the potential for landscaped and deep soil planting within the front setback.

(E) The existing garages within the streetscape are old additions that predate the Respondent’s heritage controls for the Plateau Conservation Area. The proposed garage within the sub-floor is not consistent with the NSDCP 2013 controls, including those for the Plateau Conservation Area.

…

(vi) Original and significant intact detailing within the dwelling is proposed to be altered. The demolition and reconstruction of the front verandah for the car parking, as well as the replacement of the original front fence, will also remove intact original fabric.

…

(ix) The proposed reconstruction of the front verandah is uncharacteristic of the architectural style of the house and would not be an authentic reconstruction.”

18. On this matter and generally, Council notes Article 1.4 of the Burra Charter which provides in part that “conservation … requires a cautious approach of changing as much as necessary but as little as possible” (RCS par 14). An issue for Council is that it sees the proposal as going beyond what is thought to be necessary “to achieve reasonable contemporary living standards” (RCS par 15). Among other things, it claims the proposal seeks to provide for three parking spaces (assuming one parked in the driveway, I believe) when controls indicate a maximum of two spaces for this form of development. The inference is that a more reasonable approach, with less heritage impacts and risks, would provide one parking space in an underground garage and one unenclosed space in front of the garage (RCS par 36(c)).

Rear addition

19. The rear addition was seen to be uncharacteristic of PHCA given its contemporary form. I will particularise this when I consider the topic.

Policy

20. I have introduced cl 5.10 of NSLEP above. Here, I selectively document some of the more significant policy provisions applying to the proposal under NSDCP.

21. The Statement of Significance in regard to PHCA provides as follows (NSDCP cl 4.5.3):

“The Plateau Conservation Area is significant:

(a) For the unity of its subdivision history and consistency of the housing stock which is evident in the built form of the area.

(b) For its largely intact residential form that illustrates small-scale housing including timber buildings, and which has survived without large scale intrusions.

(c) For its strong landscape quality defined by street trees and front garden plantings that give an overall impression of a landscaped garden suburb.”

22. I note the existing dwelling is not a heritage item but is listed in NSDCP as one of six “contributory items” in Wilson Street (Appendix 1 p 30).

23. NSDCP provides in regard to PHCA (generally within cl 4.5):

• “Characteristic buildings” are identified as:

“Single storey, detached and semi-detached Federation and Edwardian dwelling houses sometimes in groups. Some Victorian cottages.”

• Relevant “characteristic built elements” include:

“Single storey, rear extensions within single storey roof line. Reduced scale to the rear.

Gabled ends for projecting bays to the street, skillion roofs to rear extensions.

No off street parking.”

• “Uncharacteristic elements” are described as:

“Over-scaled additions; dormers to front roof slopes; carports and garages to the street; paved front gardens; high solid fences to the street; rendering and painting of face brick; loss of original detail; aluminium windows; modern infill development.”

24. Further in regard to PHCA I note that of the other Wilson Street contributory items, 34 Wilson Street is the nearest to the site (next door but one to the north). It enjoys a single width garage opening below the verandah. The other contributory buildings in Wilson Street are considerably to the south and either have no garages (4, 6 Wilson Street) or have garages but present different physical scenarios to that proposed (2 Wilson Street has a garage inserted into the rock face at the road level with the dwelling elevated above and 8 Wilson Street has a separate garage with a single door opening set at the street level with the dwelling again elevated above).

25. Other provisions within Pt B13 of NSDCP (relating to Heritage and Conservation) include:

26. At cl 13.9.5 in regard to garages and carports:

“Objectives

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

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

Provisions

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

…

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

27. At cl 13.6.4 in regard to additional storeys and levels:

“Objectives

O1 To ensure that the scale of the streetscape and context of the heritage conservation area are respected.

Provisions

P1 Additional storeys or upper level additions are not supported in heritage conservation areas.

P2 Despite P1, the consent authority may permit an additional storey or upper level addition, but only if the applicant can demonstrate:

(a) that the resultant building will exhibit a similar scale to that in the vicinity of the site, and

(b) that the design respects the heritage characteristics of the area.

(c) that the additional storey does not alter the form or scale of any heritage or contributory items.

P3 Typically, additions should be set back behind the main roof lines and should be located substantially within the existing roof.”

Consideration

28. There seems to be three main points to Mr McDonald’s concerns with the proposed changes:

1. Proposed garage construction would remove important fabric of a contributory building and provide for an inauthentic reconstruction of front verandah (Mr McDonald cites Provision P3 of cl 13.9.5 referenced above, which states that one should not demolish any part of a building for car parking, carports and garages).

2. Loss of significant portion of the front garden and provision of a large paved driveway would bring adverse streetscape effects given contributory status of the site.

3. Rear addition would be viewed from the street. It is inappropriate to remove so much of the rear roof plane and would be more acceptable if the additions were repositioned somewhat to the west.

Authenticity of reconstruction

29. In regard to the first point above, Mr McDonald seems to be professing a general opinion (Joint Expert Report Heritage and Planning Ex 3 par 31), or at least does not seem to have specified further what would be inauthentic in particular, beyond the fact of the proposed new garage opening, and verandah extension to the north. Mr Patch saw no problems on that front, and relied on the specifications as listed in the plans before the Court to, in fact, be delivered. Mr Patch’s view is preferred, I am satisfied that the development, with finishes as proposed in the Schedule of Finishes (Ex D), and with proposed conditions A3, A4 and C10 (nominating a review role for Council’s conservation planner) in regard to fabric and external finishes, would provide for an authentic reconstruction albeit including provision of the new garage opening and verandah extension.

Adverse streetscape effects in PHCA

30. Court participants are well familiar with the provisions of s 4.15(3A) of the EPA Act and the requirement to be flexible in applying development control plan standards, and to allow reasonable alternative solutions that achieve the objects behind those standards. There is something of this in the “guiding statements” at the commencement of Section 13 of NSDCP, concerned as it is with protecting North Sydney’s heritage resources while balancing out ambitions of residents for more contemporary living:

“Heritage conservation does not preclude change. The challenge is to manage pressures for increased development and contemporary living standards in ways that allow the rich tapestry of the historic environment to be retained for present and future generations.

Council will work to protect North Sydney’s heritage by:

…

(f) Striving to achieve an appropriate balance between contemporary expectations, environmental sustainability and protecting the elements that make an item significant or important to a conservation area’s character;

…

(h) Permitting flexible yet sensitive adaptation of heritage affected sites where appropriate. Council responds to guidance from and the planning principles of the NSW Land and Environment Court.”

31. Parking is one of the specific building elements that NSDCP addresses in regard to heritage conservation areas. The relevant objectives are that “vehicular accommodation … not detrimentally impact upon the significance of the heritage item or heritage conservation area” (Objective O1 cl 13.9.5) and that “significant and contributory buildings, with their landscaped settings, remain the dominant element in the streetscape” (opening remarks in cl 13.9.5). I observe provision P1 (“Do not alter or demolish any part of a building for car parking, carports and garages”) sits under such objectives.

32. I am not convinced that the garage opening and driveway provisioning, as now proposed with the amending application (here assuming, reasonably I think, the authentic reconstruction of the front verandah) would bring about any adverse impact on the significance of PHCA. From the site inspection, it is quite clear that there are already numerous on-site parking configurations for properties along the western side of Wilson Street, including in regard to “contributory items”. But when one considers the small grouping of buildings in the site’s vicinity which have some similar built form (some nominated as neutral and others as contributory buildings with respect to PHCA), it is not the driveways or garages that catch the attention, (and not whether the openings are 3m or say 2.5m wide) but the dwellings above.

33. Briefly here, I also note the efforts of the Applicant to extend the landscaped areas and reduce the hardstand at the front, with the amending plans. The result appears to me to be little different from the configuration suggested by Mr McDonald (Ex 3 p 5).

34. The proposed driveway arrangements, garage and verandah addition would be minor, background elements in a visual sense. The existing dwelling, in its Federation-style, would remain as the dominant element in the streetscape.

Rear addition

35. The concern here, in regard to the rear addition is, of course, its effect on the heritage significance of PHCA. The first point is in regard to whether the rear addition would be viewable from the street. CAD representations from the Applicant implied not, but I was more convinced by photographs from Mr McDonald which showed that there was a view between the adjacent buildings to the existing roofline. I believe it likely to be the case that the changes would be visible from Wilson Street.

35. Mr McDonald was concerned about the view from Wilson Street. He noted that (Ex 3 par 22):

“Although a rear addition to a contributory building in a heritage conservation area may be of low visual impact when viewed from the street, alterations and additions should be considered in the round.”

37. I took this to mean that the viewing of the rear addition viewed in addition to, what were perceived, as impacting changes at the street side should be considered together. This approach makes sense. In this instance I have disagreed with Mr McDonald about the heritage conservation implications of the street frontage changes. I do not see the visual impact of the rear addition as other than “low”.

38. Council raised concerns in regard to cl 1.4.8 of NSDCP, which addresses “built form character” more generally and provides (relevantly, and highlighted by me) as follows:

“Objectives

O1 To ensure that the design of new buildings reflects and reinforces, or is complementary to, the existing character of the locality.

…

Provisions

…

P1 Where a building is part of a uniform group of buildings of similar character, locate any additions or alterations to the rear and not visible from the street or any public place. Council may permit alterations and additions to the front of a building, but only where those alterations and additions contribute to, or are sympathetic to the character of those buildings.”

39. Council pressed the point in submissions that the proposed rear additions, visible from the street, made for a direct contravention of NSDCP. When I look at the above-stated objective, and mindful that a number of other buildings in the site environs already have additions visible from Wilson Street, I am more of the opinion that the proposed rear addition is in character with its setting. More particularly, in regard to heritage conservation, the glimpse of the proposed rear addition to this contributory building, in its setting, could not be seen as having any significant impact on the heritage significance of PHCA.

Excavation, demolition and structural stability

40. Council was concerned about the capacity for the proposed works to be carried out and the associated risk to the contributory building and PHCA. A contention was raised that (Ex 1 p 9):

“(the) development application was not accompanied by any geotechnical information or methodology for maintaining the stability of the existing structure of the contributory building during excavation and construction of the proposed double garage. It therefore has not been demonstrated that the proposed excavation and construction works will not threaten the structural stability of the dwelling”.

41. Further information on this matter was seen as necessary particularly given the extent of demolition associated with the construction of the basement garage.

42. Mr McDonald had examined the scheme prepared by structural engineers D’Ambrosio Consulting (Ex G), noting the extent of subfloor structural work suggested in this scheme. Mr McDonald’s nominated “extensive experience as an architect” suggested to him that work such as this brought risk (“there can be no guarantees that something will not go wrong”) and that the risk could be minimised by providing for a single garage which would reduce the extent of excavation, demolition and reconstruction.

43. I prefer the position argued by Mr Patch and Mr Burrell, and find that it would be unreasonable and unnecessary to require a geotechnical report at this DA evaluation stage. Mr Patch acknowledged the risks involved but provided an explanation of how geotechnical risk would be conventionally addressed on a building site such as this, with physical conditions becoming clearer once works are underway and more detailed requirements being put into effect in response. I note the fact of the submission of initial structural engineering input into the project (Ex G) and don’t see it as reasonable to take the position that further analysis is required before it can be seen that the intended works can be achieved, in some way or another with today’s building technology (ie without adverse impact on the contributory building). The question is one of methodology, and thus can be appropriately dealt with at construction certificate stage.

44. Conditions are proposed including the provision of a geotechnical study, but Condition C4 (‘Structural Adequacy of Existing Building & Demolition/Construction Management Plan’) is most pertinent to Mr Patch’s point that there is a need for a planned approach to works. The condition requires that an appropriate expert certify the structural adequacy of the property and its ability to withstand additional and altered structural loads during all stages of construction, with the Construction Management Plan “to demonstrate how”.

Tree Removal and Landscape Design

45. Contention 3 in Ex 1 related to tree removal and landscape design. An expert report prepared by S Hobley (for Council) and R Jackson (for the Applicant) was tendered as Ex 4. The experts confirm that the site contains only “two plants that fit the description of prescribed tree (under NSDCP)”. Both of these trees would be removed:

• A Jacaranda mimosifolia (Jacaranda) in the rear garden, indicated as 8m in height.

• A Callistemon sp. (Bottlebrush) located in the north-eastern portion of the property (the front garden) indicated as approximately 7m in height, but in poor condition (Ex 4 p 8).

46. Both experts were of the opinion that at least three trees should be replanted in the rear of the site and one in the front of the site, to compensate for tree removal (Ex 4 p 1). There is an area of deep soil in the front garden (south of the re-aligned pathway) which could accommodate a tree. The landscape horticultural experts have agreed on a condition as follows:

“The tree species to be planted in the southern portion of the front (eastern) landscape shall be Angophora hispida (Dwarf Apple). It shall be located at least 1 metre setback from the base of the building foundations and as far to the north of the area as possible and taking into account the need to ensure clearance of overhead electricity lines.”

47. An oral submission was heard from a neighbour to the immediate south of the site. The objector raised a concern in regard to planting in the site’s front setback. The concern was in regard to loss of winter sun to the front verandah and loss of views to Middle Harbour. It was indicated in this objecting submission that the occupants regularly spend time enjoying the view and this winter sun from the front of their property. During the site inspection, there was an opportunity to visit this site and view from its front verandah.

48. During the hearing, and having heard this objecting submission and giving some considerable credit to it, it seemed to me that there was an interplay between the intended landscaping in the front garden, impact on neighbour amenity and heritage conservation, concerning which I could be assisted by further input from the experts. I requested the heritage and planning and landscape-related experts to convene to consider this. I have considered the outcome supplementary expert report (Ex 7) closely.

49. I note Council’s experts reference to cl 5.10 of NSLEP and the following NDCP provisions:

“Section 16 – Tree & Vegetation Management’s

General Objectives

…

02 Maintain the visual, social and environmental amenity of the area through the preservation of trees and other vegetation.

O3 Maintain and increase the totality of trees and vegetation across the North Sydney area by embracing the principles of Urban Forest Management, green (habitat) corridors and Continuous Cover Arboriculture.

Section 13.1.1 Heritage & Conservation (Guiding Statement)

Council will work to protect North Sydney’s heritage by:

…

(h) Striving to achieve an appropriate balance between contemporary expectations, environmental sustainability and protecting the elements that make an item significant or important to a conservation area’s character;

(g) Acknowledging and protecting the setting of heritage items.”

50. It was argued that planting of a “small tree” in the front garden to replace the proposed removal of the Callistemon would reasonably address these two objectives relating to heritage and conservation (Ex 7 p 2).

51. Council’s expert evidence does not specify the physical features of the proposed Dwarf Apple species. But I note that the Applicant’s experts do suggest sources which indicate the tree to grow to 6-7m tall and as having a “dense and wide crown” (Ex 7 p 2 and 3). The Applicant’s experts suggest there is potential for a Dwarf Apple to bring about some overshadowing and or view loss impacts, even in the location specified. I do have some concern in regard to the potential for the proposed Dwarf Apple to impact upon the enjoyment of the front verandah of the adjoining property to the south.

52. Council’s interest in increasing the totality of trees across the local government area is noted and commended as a strategy. However, the particulars at hand bring me to the conclusion that it is not appropriate to plant a non-deciduous tree like the proposed Dwarf Apple in this southern deep soil area of the front setback. My reasons follow.

53. Council policy acknowledges certain factors that are relevant to this case. Section 16 of NDCP includes the following provisions as cited by the arboricultural experts in Ex 4:

“P3 Council, in determining an application for development consent or a Tree Management Permit under SEPP (Vegetation in Non-Rural Areas) 2017, must have regard to:

(a) the health or condition of the tree or trees, whether the tree is dead or dangerous, proximity to existing or proposed structures, interference with utility services, interference the amenity of any person or property;

(b) necessity for action in order to construct improvements to the property the subject of the application to achieve reasonable development;

…

(d) the number of trees in the surrounding area and the effect on the amenity of that area;”

54. The existence of a high quality stand of what appears to be native bushland immediately across the road is significant, having regard to provision P3(d). The experts advise that the existing Callistemon is in “poor condition”. This is relevant to provision P3(a).

55. While a wide examination of this topic has not been made, I am also not convinced that the provision of a native canopy tree in the front garden fits necessarily with the characteristic elements of PHCA. The descriptive material in NSDCP refers moreso to “street trees and front garden plantings” (PHCA Statement of Significance, NSDCP cl 4.5.3), and this fits my general impression of the site setting.

56. Three canopy trees are proposed in the rear to replace the existing Jacaranda. In turn it seems to me that the proposal is providing for a significant increase to the tree canopy already (ie without providing for the front setback tree).

57. The landscape plans, prepared by Melissa Wilson Landscape Architects, propose an Acer palmatum ‘Senkaki’ (Japanese Maple) along with various other front garden plantings (as itemised in the Landscape Plans at Ex C). The Japanese Maple seems to meet what I see as reasonable criteria to ensure no adverse impact on the neighbour to the south (smaller scale, open crown and deciduous) mindful of provision P3(d), while also responding to Council’s wider ambitions to maintain and increase the totality of trees and vegetation in the area. Conditions have been amended to suit.

Public interest and precedent

58. Council raised public interest and precedent concerns referencing Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (‘Golding’), where Lloyd J gave guidance in relation to the question of precedent, and where it may properly be taken into consideration. Justice Lloyd found, inter alia, as follows at [28]:

“As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

59. In this instance for the reason outlined above, I disagree with the Council proposition that the development is “objectionable in itself”, and thus do not see the issue of precedent as warranting consideration.

Conditions

60. Draft conditions were filed by the parties (without prejudice on Council’s part). The key point of disagreement related to the details of the bonding of a safety barrier within the road reservation. Council provided some costing information and the Applicant disputed certain particulars, having regard to the specification agreed by the traffic experts in their joint report (Ex 5 par 13 and Annexure D). There does seem to be some excess in the Council’s estimate with its assumed length of 16m, having regard to Ex 5 Annexure D, and I have had regard to s 4.17(6)(c) of the EPA Act in regard to the period for remedying defects in any such public work. Rather than extend Court costs through further submissions or expert input, I have concluded on the basis of the information before me that the bond be a figure of $65,000.

Conclusion

61. The proposal warrants conditional approval based on the above consideration.

Orders

62. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/0208 for alterations and additions at 30 Wilson Street Cammeray is approved subject to the conditions at Annexure A.

3. The exhibits, other than Exhibits 1, A-G and L, are returned.

Peter Walsh

Commissioner of the Court

Annexure A (858457, pdf)

**********

Decision last updated: 28 January 2022