Darling v Waverley Council

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10924 of 2003 Moore C 18 December 2003 N M Darling and A W D Darling Applicants

1 . This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act against the refusal by Waverley Council ("the council") on 22 July 2002 of Development Application L066/2003.

2 . The contested works which are the subject of the appeal relate to the construction of a garage, including the creation of an aperture in a roadside retaining wall, at 57 Gardyne Street, Bronte.

3 . The works are adequately described in the statement of evidence of Mr B McDonald as being works for which the applicants seek: to provide secure on site car parking for the family and also to address the present extreme inconvenience of not being able to find parking in reasonable proximity to the house during periods of heavy demand from street parking generated by visitors to the beach, park and cafes in Bronte Road .

4 . Continuing further in his statement of evidence Mr McDonald deals with the proposed construction and methodology in the following terms:

The proposed driveway would be an open cut excavation centred between the existing street trees maintaining safe access along the public footpath at all times through the use of a temporary diversion bridge with brief closures on two occasions for approximately half a day. A reinforced concrete slab, over which the topsoil would be backfilled, would span the driveway, and the grass and footpath would be reinstated. A timber and wire fence would be provided between the garage entry and the footpath similar to fences recently erected in Mirimar Avenue.

The stones taken out of the wall for the opening would be carefully stored, and reused in the curved entrance. New stone facing would line the driveway further into the opening, from the point where the salvaged stone became exhausted.

A concrete upturn beam would be set back over the opening at a point where some 2.100 metres headroom is achieved, and contained between the stone-faced walls of the driveway entry. The beam would be faced in sandstone with a stone coping. This change has been made to further reduce the vertical face of stoneworks spanning the opening. The stonework would have a rough, hewn finish similar to the existing stone of the retaining wall. The panel lift garage door would be set back on the property line.

5 . The site of the proposed works, as noted, is 57 Gardyne Street, Bronte. This is in a section of Gardyne Street at the eastern end running parallel to the line of the hill and to the waterfront. The house is on the western side of the street and on the upper side of that street.

6 . The streetscape setting of this portion of Gardyne Street, essentially from its eastern property boundary to its western property boundary, comprises: - an unmade grass verge which is punctuated by the entrance to Pacific Street; - a lower road; - the first stone retaining wall which is of significant regularity generally of dressed stone and has been repointed and with a timber fence on top of it; - the upper road; - a second retaining wall also constructed of sandstone blocks although less regular in finish and block laying pattern which wall may also have been repointed to some extent; and - the second sandstone wall is surmounted by a grass verge, a footpath and then the property boundaries of the properties along the western side of Gardyne Street.

7 . A formal Statement of Issues was filed by the council. However, it is my assessment that the issues contested by the council amount to two. First, is the impact of the proposed aperture in the upper retaining wall acceptable? and second, would permitting such an aperture be an unacceptable precedent?

8 . In addition there were a number of objectors - two of whom gave evidence on site who raised additional issues which warrant consideration. The objections by Ms Milson on behalf of the Bronte Precinct Committee and Mr Greenup on behalf of the Bronte Historical Society both raised issues of the protection or otherwise of two coastal banksia trees and the possible impact that their loss might have on the avifauna in a wildlife corridor usage in the district and Mr Greenup also raised the possible issue of the interruption to the footpath. With respect to this latter issue, I am satisfied Mr Greenup misunderstood the nature of the application and that there is no long term proposed impact on the footpath and that that matter does not require to be dealt with further.

9 . I also raised the issue of whether owner's consent by the council was required both as the council was the owner of the road corridor and secondly because of the substantial works that are proposed to be carried out in the public domain. I am satisfied, as I indicated to the parties, that I do have the power pursuant to s 39(2) of the Land and Environment Court Act 1979 to grant consent as in the shoes of the council to the application including the owner's consent element. With respect to the issue of owner's consent I note that I consider in this regard that I am bound by the decision of Hemmings J in Piano v Woollahra Municipal Council 71 LGERA 62.

10 . However, were I minded to grant the consent I indicated to the parties that those issues would need to be dealt with by way of conditions. There were a number of unresolved condition issues and I indicated to the parties that if I were minded to grant approval this would be dealt with at a subsequent short hearing where the contested conditions could be considered.

11 . During the course of the view, the Court and the parties had the opportunity to inspect the streetscape of the eastern section of Gardyne Street, the portion of Gardyne Street along its west around the corner towards the retaining wall in that street, down onto part of Bronte Road to inspect the beginning portion of a centre dividing wall in Bronte Road and the construction of new premises at what is noted as 439 Bronte Road where a substantial stone wall had been pierced for access to those premises. However, I note that the wall that was pierced in that regard was a boundary wall and I do not consider that that is of particular relevance in these proceedings. However, I also inspected at the request of the parties centre road dividing walls in McPherson Street and in Hewlett Street, Bronte.

12 . I deal with the issue of precedent. In Goldin & Anor. v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 101 at par 28 Lloyd J said: ... 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.

13 . It is my view that, as a consequence of what his Honour said, two questions require to be addressed. First, whether the proposal itself is objectionable and second, whether there is sufficient probability that further applications would result, if it were granted, in an objectionable condition of affairs occurring.

14 . I am satisfied that, in the present circumstances, if the project was objectionable in itself (dealing with all of the issues) it should be refused and, if not, it would be permitted as the likelihood of precedent at or adjacent to the site is somewhat remote given the uncontested evidence that the topography would make it difficult for an identical application to succeed. I make these remarks notwithstanding the knowledge that there are proceedings on foot relating to the premises next door, but they are proceedings about which I have no understanding of the detail and nor have the parties sought to put that information before me.

15 . The second subsidiary issue that was placed in contest by the residents concerned the possible safety or survival of the two banksia trees. In this regard, hearsay evidence was given by Ms Milson about her concerns and the concerns that have been conveyed to her by an arborist who had formerly been employed by the Royal Botanic Gardens Trust as to the difficulty of ensuring survival of those trees because of their shallow rooting nature.

16 . Although this issue was not placed in contest by the council, the applicant tendered a report from an expert arborist, Mr Ian English, who concluded at page 4 of his report:

It is the authors [sic] expert opinion that provided the trees were adequately protected through the duration of construction and the recommendations outline [sic] in this report are adhered to, they will not be adversely affected by the current proposal.

17 . Mr English proposed a number of additional conditions and the applicant's representative indicated that the applicants were prepared to accept those conditions.

18 . I am satisfied on the basis of the evidence of Mr English that any risk to the trees is remote and does not provide a basis for refusal.

19 . The sole potentially determinative impact in these proceedings concerns the alteration proposed to the upper retaining wall.

20 . Effectively, Mr Robson, on behalf of the applicant, submitted to me that: - the description in the Waverley Local Environment Plan ("the LEP") does not specifically apply to the wall; - the change simply constituted an adaptive reuse; and - in light of the heritage evidence brought on behalf of the applicant, on balance, the proposal ought be regarded as acceptable.

21 . Mr Wilson, on behalf of the council, effectively put the propositions that: - the description contained in the LEP does apply to the upper as well as the lower wall; - the proposal for the aperture would destroy the integrity and value of the entire intact section of divided roadway along the eastern portion of Gardyne Street which is the defined heritage item in the LEP; and - as a consequence, the proposal was unacceptable.

22 . Although a number of witness statements were tendered in the proceedings, only the two heritage architects were required to be tested in the witness box. They were Mr Ian Stapleton, a heritage architect consultant who gave evidence on behalf of the council, and Mr Bruce McDonald, a heritage architect consultant who gave evidence on behalf of the applicant.

23 . A number of submissions were made to me by the legal representatives of the parties that I should have some regard to the demeanour of the witnesses and that for various reasons I should prefer the evidence of one over the other. I do not consider that issues of demeanour assisted me in any regard as the principal contest between these witnesses was about interpretation of the instrument.

24 . Mr Wilson suggested to me that I should draw an adverse inference against Mr McDonald arising out of his comments at 4.1 of a heritage impact statement dated 30 January 2003 which was obviously prepared in support of the original application. The inference that I was asked to draw, as I apprehend it, was akin to an adverse inference concerning a prior inconsistent statement pursuant to s 43 of the Evidence Act 1995 . Apart from the fact that I am not bound by this legislation, Mr McDonald gave evidence that he had reconsidered his earlier adoption of the proposition that the upper sandstone wall was encompassed by the definition as a consequence of other information that had been provided to him. I am not prepared to draw any inference adverse to Mr McDonald or, as a consequence, his clients as a result of that.

25 . In Mr Stapleton's statement of evidence there is a summary of the history attached to and forming part of that statement of evidence, I do not understand this to be significantly contested, the relevant paragraph of which reads:

The history of Gardyne Street is reflected in its two section;, the earlier, straight, partly split level portion between Bronte Road and St Thomas Street and the later, split-level section which began to be occupied in 1892, ten years after the street was first illustrated in the subdivision plan of 1882. It is likely that the built-up form of the subject part of Gardyne Street did not exist until c1920-1930. Thus a statement that the street was developed in the early 20th century is substantially true.

26 . Under the LEP, the site is zoned 2A Residential Low Density . The proposal is permissible with development consent pursuant to both the control table for the zone and in consideration of cl 45(1)(a) or (b). Clause 29(2)(b) requires that the application be consistent with the zone objectives. Although there were some submissions made on this point, I am satisfied that the contested issues in these proceedings relate to the question of whether the general objective in the LEP at cl 2(c) is satisfied and whether the application is in compliance with or not sufficiently antithetical to so as to warrant refusal the provisions of clauses 6(a) and (d) of the LEP which deal specifically with heritage protection.

27 . Gardyne Street is, relevantly, a heritage conservation area as defined in Sch 2 of the LEP and it is so marked on the map that was in evidence. The concept of a heritage item is defined in Sch 2 of the LEP and is defined as follows:

Heritage item means a building, work, relic, tree or place (which may or may not be situated on or within land that is a heritage conservation area) described in Schedule 5 and shown on the Heritage map.

28 . An element that is in dispute in these proceedings is the interpretation of the relevant entry in Sch 5 to the LEP. The relevant entry is L42 and reads: Sandstone Retaining Wall, Split-Level Road Design and Street, Trees, Gardyne Street, Bronte.

29 . The issue that was in contest was whether or not that definition encompasses one wall or two. It is settled law, in this tribunal, that when judges interpret decisions made by commissioners they do not apply a fine toothcomb to them in interpretation of the English words. I consider that I should take the same general position to the definition in L42. I contrast, for example, the definition in L43 which does not have a comma between the word, Street and Trees . A strict construction of that would imply something significantly different to those words contained in definition L42 where there is a comma between Street and Trees .

30 . It was Mr Stapleton's evidence that he considered that the middle wall is of more significance than the upper wall, but only to a minor extent, and reference was also made to the character depiction of the wall in Fig. 3 of the residential character study for the relevant precinct at page 82 of Waverley Development Control Plan 2 where there is a somewhat stylised depiction of what appears to be the relevant portion of Gardyne Street.

31 . However, considering the definition and, in order to provide some sense to it, I have concluded that it probably relates only to one wall. However, I am also satisfied that that does not have a major impact on these proceedings as the elements that are contained in L42 effectively imports the whole of the sense of the place of the eastern portion of Gardyne Street as being the matters that are dealt with by the LEP. Whether the upper retaining wall is a sandstone retaining wall within the meaning of the definition or whether it is part of the split level road design and street it seems to me matters not one whit in these proceedings.

32 . It therefore turns to me to consider the impact of the proposed aperture in the wall. Both experts agree, as I apprehend it, that it is appropriate to consider this in the matrix of a number of criteria established by the New South Wales Heritage Council. It sets seven categories of matter to be considered in assessing the significance or otherwise of a heritage item. I note that those categories are broadly consistent although not identical with the definition of heritage significance which appears on Sch 2 of the LEP and reads: Heritage significance means historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance. This is of some importance in consideration of matters pursuant to cl 45.3 of the LEP.

33 . As I understand the position of the seven matters contained in the Heritage Council's criteria, four of them are either not in contest in these proceedings or, if contest could be implied from the evidence (particularly in this regard of Mr Stapleton), it is not contest of any significance.

34 . They are criterion A (which relates to the item being important in the course or pattern of NSW cultural or natural history or the cultural or natural history of the local area); criterion B (that an item has a strong or special association with the life or works of a person or group of persons of importance in NSW cultural or natural history or the cultural or natural history of the local area); criterion E (whether an item has potential to yield information that will contribute to an understanding of NSW cultural or natural history or the cultural and natural history of a local area) and criterion G (an item is important in demonstrating the principal characteristics of a class of a number of matters that are not considered to be relevant in these proceedings).

35 . However, three of the matters are contested. The first relates to whether the item is an item which is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area) . In this regard, I record the precise terms of the evidence of each of the expert witnesses concerning this.

36 . Mr McDonald, in his statement of evidence said:

The design and construction of the split level road section of Gardyne Street cannot be considered to be a significant creative or innovative engineering achievement. In this regard however the item is not exceptional being one of the many locations where stone retaining walls modify the natural slopes in Bronte and elsewhere along the eastern edges of the municipality.

Council's listing refers to wall in the singular and given the greater prominence and functions of the wall forming the divided road is taken to mean this wall as previously discussed. The stone wall in front of the houses in Gardyne Street despite evidence of some cement mortar repointing that detracts from the original appearance of tight joining does have scenic value and is part of a series of descending terraces on public and private land formed by retaining walls as characteristic of this part of the southern slopes above Bronte beach and park.

While it is an element that altered the landform of this locality creating a different landscape character it is considered to be part of the setting and secondary to the major engineered wall that actually forms the split road level.

37 . In this regard the evidence that was given by Mr Stapleton was: In my view the split level road that is adjacent to the subject property does not exhibit any particular creative or technical achievement beyond that exhibited in early 20th century municipal works .

I note that in that regard the experts are in agreement.

However in my view the length and intactness of the split level roads, the retaining walls and steps and associated vegetation does now have considerable aesthetic heritage value evocative of early 20th century Sydney suburban development.

39 . Further in his statement of evidence, he said:

The proposal will reduce the integrity of the split level road composition and this will be detrimental to its significance. In addition the proposal will introduce a new building element type into the item and streetscape. As discussed above the proposal as shown is incorrect and the street structure will in fact be bigger than that shown. [Given that a number of matters were of minor factual nature in argument concerning the proposal I have not had regard to that because if I otherwise consider it acceptable I am satisfied that they will be able to be resolved.]

In addition as this split level road configuration is entirely intact along the whole of the length of the split level road the proposal will spoil this intactness. Accordingly the aesthetic cultural significance of the place will be greatly affected by this proposal.

Further, should works of this kind be constructed elsewhere along this street the aesthetic quality of the place will be progressively diminished. In my view it will only take about two additional such instances for the aesthetic significance to be extinguished.

40 . The second criterion that is in contention is whether the item possesses uncommon, rare or endangered aspects of NSW cultural or natural history or the cultural and natural history of the local area . I do not need to incorporate the evidence concerning this in its entirety. Essentially, Mr McDonald considered that such walls were common and that there were a number of broadly similar if not identical walls in the Waverley Municipality.

41 . Mr McDonald also did not consider that there was any particular cultural attachment to the wall in the local area. It was with respect to this that, as I apprehend it, the most serious point of philosophic difference emerged between the two expert witnesses.

42 . Mr Stapleton said, with respect to this, that, amongst other things, after a period of study and consideration, the split level street that is adjacent to the subject property is held in substantial community esteem. He continued in more detail further in his statement of evidence to say:

The proposal will spoil the intactness of the split level road configuration and introduce concrete finishes in the environment. In my view it is likely therefore to diminish the esteem in which the community holds the place. Should such a proposal be carried out adjacent, the street will eventually reach a configuration that the authority will withdraw its heritage listing and the demonstrated social significance of the place will be extinguished.

43 . I note, with respect to those two comments, that I have not had regard to (and do not consider it proper to have regard to) an as yet undetermined application relating to the adjacent property.

44 . In cross-examination, Mr Stapleton indicated that the conclusions that he had reached concerning the community cultural significance could not merely arise because of the particularity of the association with an identifiable group in the community as might be the case if for example there were a memorial to a group such as occurs at Mount Kembla where there is a memorial to a number of miners who lost their lives in a significant incident.

45 . It was Mr Stapleton's evidence that the community significance could and should be regarded as being present as a consequence of the community process undertaken to identify and list the items that are contained in Sch 5 to the LEP and that as a consequence of the widespread public consideration, participation and assessment that this added a degree of contemporary social significance and reflected the esteem in which the locations in the schedule were held by the local community.

46 . That proposition is consistent with (and to an extent reinforced by) the objections made on behalf of the Bronte Precinct by Ms Milson - which objection appears in the council's bundle of documents behind tab 8 at folio 45.

47 . In addition, a written submission on behalf of the Bronte Beach Heritage Society was presented by Mr Greenup who also gave oral evidence during the course of the view. Mr Greenup's submission is, for the purposes of these proceedings, largely irrelevant because it deals with either matters relating to a proposal for the present property which is not before the Court or it relates to proposals for an adjacent property which may be before the Court but are not before the Court in these proceedings. However, at the foot of the first page, the submission by Mr Greenup states that the Bronte Beach Heritage Society supports the conclusions and the reasons behind the conclusions of the council's development and building unit in proposing the rejection of the development application at the adjacent property but that that objection related to a breach of the sandstone wall. It was Mr Greenup's oral evidence, taken on site, that such an objection was also maintained to the breach proposed in the present proceedings.

48 . I am, therefore, satisfied that it is appropriate to have regard to that evidence and those objections as reflecting some part of a community esteem in which the landscape of that portion of Gardyne Street is held by that local community.

49 . As a consequence of consideration of all of those elements I am satisfied, on balance, that the evidence of Mr Stapleton with respect to the impact on the integrity of the intact section of Gardyne Street is unacceptable and that the proposal of the applicant does not constitute adaptive reuse. However I do not consider that that determination reaches the end of the matter although in the ordinary course of events it would do so.

50 . In this case there are what, prima facie, are competing claims for public and private benefits. The private benefits are set out in the statement of evidence of Mr Hallam, under 3.1, as establishing the reasons why the applicants seek the consent in these proceedings:

Mr and Mrs Darling have proposed the onsite two car garage for the following reasons: 1. During periods of heavy parking demands such as weekends and public holidays it is currently difficult to find on street parking near their dwelling. With the restricted width of Gardyne Street at their property they are unable to double park to unload groceries and children without blocking the street. This is a particularly difficult problem on summer weekends when parking from Bronte beach overflows into all adjacent streets. I am informed that Mr and Mrs Darling have to regularly park a long distance away on weekends. 2. Even if they are able to park on street close to their dwelling there is a safety concern about loading and unloading children from the driver's side of the car adjacent to parking traffic. The Darling family includes young children so this is a major concern to them.

3. An onsite garage would provide security for their vehicles, it would also allow a more convenient transfer of groceries and goods. Loading and unloading of the cars for travel with luggage, sporting equipment etc would be facilitated. 51 . Discussing the issue of parking in the vicinity, Mr Wilson invited me to consider the parking regime that applies in the vicinity. Essentially, it is a residential parking permit system where there are restrictions on visitors to the area parking for periods longer than as an hour during certain periods of the day, but preference given to residents who are permitted, by that preference, to park without limit. Different spans of the day operate at different times of the year depending on whether it is summer or not.

52 . With respect to general parking issues there is agreement between Mr Hallam and Mr McLaren, the traffic experts on behalf of the parties, quoting from points 6 and 7 of the joint expert report: 6. The on street parking lost will be along the frontage of 57 Gardyne Street leaving one on street parking space. The existing parking restrictions along this section of Gardyne Street give priority to parking for residents with one hour time limits applying to those without parking permits on weekends and public holidays. 7. In the context that there will be no net loss of parking and a potential gain of one space and taking into account the priority given to residents for on street parking in Gardyne Street the experts agree that the car parking implications of the proposal are satisfactory.

53 . I also note that the evidence in Mr Hallam's statement, although hearsay, concerning the intentions of the applicants, was not contested.

54 . I do not consider that it is strictly a contest between the public interest in the retention of the wall and the private interests of the Darling family. It is at least an element of the provisions of cl 2(c) of the LEP that the consent authority should have regard to the amenity and safety of the built environment within the council's area.

55 . I have turned to consider whether or not the issue of safety for the Darling family and their young children might, founded upon cl 2(c) of the LEP, provide them with sufficient support to overcome the otherwise insurmountable public interest in the retention of the heritage item. I have, with a degree of regret, come to the conclusion that it is not appropriate to do so. I have considerable sympathy with them concerning the difficulties that they have in access to their property, but I am satisfied that on balance it is not sufficient to trigger me to set aside the broader public interest.

56 . However, I would ask that the legal representatives of the council specifically draw my concerns in this regard to the council to see whether it would be possible, as the circumstances appearing to me to be quite isolated, for a greater and more restrictive to visitors preference for parking along that portion of Gardyne Street to be provided not merely to the Darling family but to those other neighbours who are potentially affected by the public interest of keeping the wall intact.

57 . Although my remarks in this regard are entirely obiter and indeed may be verging on the inappropriate I would indicate that a failure of the council at least to consider that proposition might alter the question of the balance of the public interest should such an issue come to the Court for determination in the future.

58 . The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development application L066/2003 for construction of a garage at 57 Gardyne Street, Bronte, being Lot A in deposited plan 320705 is refused. 3. The exhibits other than Exhibit B are returned.

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