Churcher v North Sydney Council [2025] NSWLEC 1483 | Case summary | Zoe

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Churcher v North Sydney Council [2025] NSWLEC 1483 | Case summary | Zoe

Both heritage experts agree that the proposed alterations and additions, as amended during the proceedings, are consistent with the HCA. The remaining area of dispute is the parking structure.
In relation to the amended DA, Ms Holtham for Council stated that her concerns included a lack of clarity over colours and materials, balustrade / swimming pool fence appearance and the extent of tree removal (architectural plans do not show any tree removal). The concerns pressed or exasperated included the impacts on the character of the conservation area and streetscape, substantial obscuring of the contributory building and the double concrete crossover with hardstand element. Improvements to the design included the relocation of the lift, relocation of the garage tower closer to the street and shortening of the driveway, which have all slightly improved visibility of the dwelling.
Mr Brooks for the Applicant says that the existing dwelling does not contribute as strongly to the HCA as nearby Federation style dwellings. The Interwar style dwelling and period of construction between 1933-1943 are features that are outside of the stated significance of the HCA, identified as Federation housing with Interwar RFBs and early 20th century residential development. However, the proposed development does not challenge the contributory status.
The existing dwelling house is sited well below Kareela Road and only the roofscape can be viewed from the public footpath. The dwelling house is orientated to the water and is highly visible from the public foreshore walk.
Mr Brooks evidence is that Kareela Road, Milson Road and Cremorne Road all have garages and parking spaces accessed from ‘secondary lanes’ (with reference to the established character statement for the HCA). These structures are located within the width of the road reserve.
Mr Brooks says that car ownership and car access to residential lots is a substantial aspect of the heritage character and significance of the HCA, as the area was developed when car ownership was fast emerging.
Approximately 20 contributory items contain directly accessible off-street parking which therefore form a contribution to the history and character of the peninsular. These include:
3, 7, 15, 25, 49 and 53 Kareela Road
16, 20, 52, 82, 88, 138, 148 Milson Road
1, 3, 25, 27, 39, 55 and 59 Cremorne Road (south).
Mr Brooks’ evidence is that the proposed car parking would not adversely affect the significance of the HCA or contributory dwelling. Both the alterations and additions are the garage tower will retain and complement the character and significance of the HCA. There are no uncharacteristic items that need to be removed.
Ms Holtham for Council says that the HCA is underpinned by the housing stock and relationship to the Harbour as described in the Statement of Significance. The NSDCP outlines a specific (though not exhaustive) list of significant elements. Of particular relevance are the significance for ‘topography’ and ‘views’, which reinforce the relationship between the area and the water. Amongst other specific locations, Kareela Road is one of only three streets specifically identified as having significant views.
The characteristic built elements in the HCA are described as one to two storey dwellings with hipped and gable roofs, sited in the middle of the lot, front and rear gardens and retention of slot views above and to the side of the harbour that can be seen from the street.
Ms Holtham’s evidence is that despite the location lower than the street, the subject site contains a front garden that can be seen from Kareela Road. The front garden, Council landscaped road reserve and substantial Port Jackson Fig Tree make a strong and positive contribution to the streetscape.
Ms Holtham’s evidence is that the proposed development will remove views of the gabled roof form, existing landscaped setting and views to the harbour from Kareela Road. This presentation as viewed from the Kareela Road frontage demonstrates the significance of the HCA. The NSDCP identifies that the building’s appearance from the public domain, especially from the street, is a focus for contributory items. The orientation towards Mosman Bay captures private views but is not how the dwelling is viewed and understood by the public, HCA and principal streetscape of Kareela Road. As viewed from Kareela Road, the site and its current siting demonstrates primary views from Kareela Road to the Harbour, a significant element of the HCA.
Despite the topography, the original roof form with 1930’s roof tiles is visible and contributes to the Kareela Road streetscape. The built form and footprint are largely intact, allowing slot views.
The NSDCP details ‘uncharacteristic elements’ for the HCA. The garage does not comply with a number of controls of the NSDCP as it is a covered structure, does not limit paving / concrete, removes views of soft landscaping and impacts on the Port Jackson Fig Tree which forms part of the character of the area.
Ms Holtham’s evidence is that the proposed garage tower will block views of the dwelling, much of its setting and the relationship between the harbourside context from Kareela Road. The structure will extend across a significant portion of the contributory dwelling and reflects an uncharacteristic element that is contrary to the NSDCP. The site has never benefited from a parking structure and a new garage appears to not have been constructed for contributory items in the last 10 years on the eastern side of Kareela Road. The garage structure will be highly visible to and from the contributory item of 49 Kareela Road, where the three storey structure will loom above the neighbouring contributory property. The garage tower is contrary to the objectives and provisions of the NSDCP in relation to the HCA, additional storeys and views of the contributory item through a highly visible new structure.
In cross examination, Ms Holtham’s evidence is that despite the lack of a footpath on the eastern side of the road and cars parking along the eastern side of the road, drivers and pedestrians could obtain views of the contributory item and its setting. Ms Holtham agreed that the fencing detail and colours / materials could be dealt with via conditions of consent.

I firstly accept and adopt the evidence of the heritage experts that the alterations and additions to the dwelling will not affect the heritage significance of the dwelling, HCA or heritage items / contributory development in the area for the following reasons:
I accept that the dwelling has two frontages and a street address to Kareela Road. The dwelling is orientated to the water and can be appreciated in full from the public reserve walkway. This aspect remains unchanged from the alterations and additions.
The main element of the contributory item that is visible from Kareela Road is the roof and the dwelling’s setting. I accept that the alterations and additions are modest and have been designed to minimise their visual presence from views from the public domain.
The heritage significance from the primary viewing and setting of the dwelling from the public reserve walkway is not diminished given the recessive nature of the alterations and additions.
The alterations and additions have very little to no impacts on view loss, slot views, loss of amenity or environmental impacts. I deal with the other town planning merit issues and concerns raised by objectors separately from [59] and [62].
Moving to the contested issue of the parking structure, which at three storeys, would appear as single storey to the Kareela Road streetscape due to the site’s steep topography. I find that the car parking structure, as finally amended, is inconsistent with the heritage significance of the HCA. Whilst I accept that a parking structure for the site would be consistent with the HCA, given that the HCA controls specifically allow for it in certain situations (P6 of 13.9.5 and P1 of 6.4.7 of the NSDCP), the width of the proposal is an uncharacteristic element and would result in impacts that are contrary to the heritage significance of the HCA.
There is no doubt that there are many car parking structures along Kareela Road including properties with similar site characterises including dual frontage to the reserve and car parking towers. One similar structure was under construction at the time of the site viewing. Of the existing parking structures, most have direct access from Kareela Road and a few have an elevated bridge to reach the parking structure. Several of them result in a garage tower built form given the sharp fall in topography of the road reserve. There is a mix of single and double garages, and a single garage with hardstand area.
With consideration of the streetscape, I accept Ms Holtham’s evidence that the double width driveway and ultimate width of the parking structure would impact on the heritage values of the HCA for the following reasons.
The amended parking structure proposes to occupy approximately 6.57m of the site, comprising the single garage and single hardstand. Due to its elevated nature, the hardstand is required to be surrounded by a vehicle barrier and balustrade, which increases its prominence and visibility to the street. The site has a frontage of 15.24m (Ex A, Tab F). I accept that the parking structure as a whole occupies 43% of the frontage. The NSDCP for the HCA provides guidance that any carport or garage should be less than a third of the site’s frontage (P1, 6.4.7 of NSDCP).
Churcher submits that the garage itself is limited to approximately 3.5m or 23% of the frontage and is therefore not an uncharacteristic element identified in the NSDCP. I do not accept this proposition. The elevated hardstand with fencing that is accessed from an equally wide driveway crossover has a similar impact as a garage or carport, albeit comparatively less than a covered structure. When read with the garage, the impact is similar. I accept Ms Holtham’s evidence and Mr Grace’s submissions that the elevated, fenced, hardstand car space and garage will restrict views of the contributory item, views from Kareela Road and slot views to the harbour. The width of all the proposed parking structures exceeds the guidance of one third of a site’s frontage (P1, 6.4.7 of NSDCP), which directly results in these heritage significance impacts.
I accept that whilst the views of the contributory item are somewhat limited when viewed from the pedestrian footpath and public domain from Kareela Road due to the site’s topography, this element is inherently part of the heritage significance. I accept that views from Kareela Road, of the contributory dwelling and to the harbour are significant elements of the HCA (control 6.4.4, P4 of NSDCP). The garage and elevated car stand with fencing and double width suspended driveway will block views of the contributory building and the harbour, contrary to the objectives and Part C Section 6 of the NSDCP. The placement of the parking structure and its increased setback of 2.5m does not facilitate enough of a view or slot views to the harbour as sought by the NSDCP, contrary to P2 of 6.4.6 characteristic built elements of the NSDCP.
The impacts to heritage significance from the combined parking structures are contrary to objective O1 of 13.9.5 garages and carports and O1 and O2 of 13.6.1, as the width of the parking structures would detrimentally impact on the heritage significance of the HCA.
Not every site is capable of providing car parking for its inhabitants. The reasons put forward in the Applicant’s affidavit are completely understandable, particularly given the characteristics of the site and the desire to continue residing in their home. However, a development consent runs with the land and the application needs to be considered on that basis.
There are many other parking structures in the street, and I accept that many, but not all, form part of the HCA. These other garages or hardstand areas have been assessed on their merits. Here, though it improved over the course of the hearing, the proposed size and placement of the entire parking structure results in unreasonable impacts on the heritage values and heritage significance specifically stated in the NSDCP for the HCA.
The aspect of the amended DA for the parking structure and a 6.57m double elevated driveway blocking views of the contributory item and relationship between Kareela Road should not be granted consent.
It is my view that having regard to the evidence, site viewing and streetscape, a single space structure that retains some views of the contributory building is achievable, consistent with the desirable elements of the HCA and streetscape.
Acknowledging the lack of remaining contentions regarding the alterations and additions, Council submitted that the Court was able to partially issue a development consent pursuant to s 4.16(4) of the EPA Act. The Applicant did not raise any opposition to this submission.
I accept all of the expert’s evidence that there are no issues that would warrant refusal of the alterations and additions component of the amended DA for the reasons set out above and further below. Pursuant to s 4.16(4)(b), development consent should be granted for the amended DA except for the parking structure (being the garage, hardstand space, lift and driveway).

The proceedings commenced on site, where the Court and parties heard from a number of objectors and one speaker in support. During the public exhibition periods, a number of written submissions were received by Council. These were tendered and have been considered. The objections and submission in support primarily relate to the parking structure. As I am not granting consent to that aspect of the proposed development, there is no need to further consider the concerns raised.
One adjoining neighbour also raised concerns about the alterations and additions, though most concerns were directed to the parking structure. The concerns about the alterations and additions are summarised as:
Impacts from the proposed breach to the side setback.
The site being highly constrained due to the Council reserve cliff, substantial fig tree, public views of Mosman Bay from Kareela Road and views over and between 47 and 49 Kareela Road.
The neighbouring site was able to have closer side setback of 1.2m as a result of its construction prior to the current planning controls, with associated reduced building separation.
The proposed reduction in building separation from the side setback variation impacts on privacy and outlook from key living areas immediately adjacent to the proposal. Use of these rooms and ventilation would be impacted by the proposal.
The ground floor window of the proposal is directly adjacent to the private ground floor balcony and main window to the family room, resulting in associated visual and acoustic privacy impacts.
The proximity of the alterations and additions will reduce the amount of natural light to the main living areas.
The shape of the alterations and additions is contrary to the values of the HCA and contributory items.
The Court had the benefit of understanding the written and oral objections from 49 Kareela Road and affected rooms and open space areas.
For the reasons I set out at [60]-[61] and below, the concerns raised do not warrant refusal of the alterations and additions:
Control 6.4.6 of the NSDCP specifically states that side setbacks of 1.5m are characteristic built elements of the HCA, which is proposed.
The variation of the side setback only applies to the part of the structure over 7m. 1.4.6 of the NSDCP allows a side setback of 1.5m up to 7m and 2.5m beyond. These offending elements above 7m primarily relate to the roof form. Therefore, the privacy implications from the part of the building varying the side setback control are low.
In terms of outlook, there will be impacts to the perceived bulk of the development from the identified rooms and areas, which are main living areas or open spaces where the objector’s evidence stated that the family spends a considerable amount of time. In balancing the competing interests of neighbours, the reduced outlook that is created by a highly compliant built form is reasonable. It is acknowledged that most properties, including this property, have access to other private open space areas that obtain water views, albeit with less privacy. The affected rooms and areas all face side boundaries and are orientated south, where amenity is often diminished. Privacy and outlook is also difficult to maintain across side boundaries. The reduction in natural light is not an unreasonable consequence from a highly compliant proposal to south facing rooms.
In terms of privacy, due to the changes in topography and offsetting of the windows, the first floor bedroom does not propose any unreasonable privacy impacts. Regarding the ground floor, I accept that there is sufficient building separation between the two dwellings that visual and acoustic privacy would not be impacted any more than reasonably anticipated in a residential zone.
The concerns raised, whilst understandable, do not warrant refusal of the amended DA.