Davis v North Sydney Council

Land and Environment Court (NSW)|2017-07-24|Before: Mr P

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application No. 184/16 for alterations and additions to an existing dwelling house at 2 Wilson Street, Cammeray (the site). The alterations and additions include the excavation of a single entrance to a double garage through a sandstone cliff off Wilson Street with a tunnel to provide access to a lift to the dwelling above. The proposal also includes the construction of a two storey rear addition to the existing dwelling.
The appeal was subject to mandatory conciliation and arbitration on 21 July 2017 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). On 18 August 2017, I heard a Notice of Motion to reopen the hearing to provide additional submissions on the Court's ability to grant consent under s 138 of the Roads Act 1993.
The council maintained that the application should be refused because it would have a detrimental effect on the heritage conservation area where the site is located in relation to the excavated garage and the design of the additions to the rear of the existing dwelling. The council also maintained that the Court could not grant consent under the Roads Act 1993.

The site

The site is Lot 40 Sec. 3 DP 2407 and has a width of 12.19m with a depth of 40.39m providing a total site area of 492.4sqm. The site where the dwelling is situated is relatively flat with the majority of the change in height occurring as a vertical face in the road reserve where there has been cut to provide for the construction of Wilson Street.
Currently located on the site is a single storey brick dwelling house with a terracotta tiled roof. The dwelling has a timber deck at the front of the dwelling that is proposed to be demolished with the proposal. A swimming pool is located within the rear setback at the north western corner of the site. There are several small trees within the rear setback.
The dwelling on the site and adjoining dwellings at 4-6 Wilson Street are located above the road reserve where these dwellings are only accessible via a pedestrian footpath that rises from near the front of 8 Wilson Street. The site and adjoining properties have no vehicular. The sandstone wall that forms the interface between the road below and site is covered with a species of weed.
Surrounding development to the north, east and west of the subject site are predominately one and two storey residential dwelling houses. Directly to the south, and at a considerably lower level than the site, are 6 and 8 Carter Street which are zoned B1 (Neighbourhood Centre).

Relevant zoning controls

The site is zoned R2 (Low Density Residential) under North Sydney Local Environmental Plan 2013 (LEP 2013). The proposed development is permissible with consent in this zone. Clause 2.3(2) requires the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". 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.
The site is not an Item of heritage but is located in the Plateau Conservation Area (PCA). Clause 5.10 addresses Heritage conservation and cl 5.10(4) states: (4) Effect of proposed development on heritage significance 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).
North Sydney Development Control Plan 2013 (DCP 2013) applies and the site is identified as a contributory item within the PCA. The western side of Wilson Street, where the site is located, is within the PCA but not the eastern side of Wilson Street. Clause 4.4 provides further details on the PCA. Clause 4.5.2 provides the following description of the PCA: The Plateau Conservation Area is located on a natural plateau at the northern end of Cammeray. The area is defined by escarpment along Pine Street, Wilson Street, Carter Street and Miller Street. The landform slopes to the southeast and is a small plateau with escarpments to the north and east. The subdivision pattern is a regular grid of rectangular lots with dead end streets at the escarpments. The Plateau Conservation Area is characterised by single storey Federation and Edwardian dwelling houses, reflecting the area's main period of development. The houses range from freestanding dwellings on large lots to small, semi-detached dwellings on narrow lots. There are also examples of Victorian Georgian style, weatherboard cottages. The buildings generally have small setbacks from the street with cottage gardens and a mix of fence types. The Brushbox street trees are characteristic of the area's main period of development, and give a strong regularity to the streetscape. Front gardens are well established, and often have extensive plantings to give an overall impression of a landscaped garden suburb
Clause 4.5.3 identifies the Statement of Significance and states: 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.

Impact on the PCA

The council identifies two distinct areas where the proposed development has an unacceptable impact on the PCA, firstly, the double garage that is cut into the sandstone with access from street level on Wilson Street. Two options are suggested for the proposed garage; first excavation to remove all the sandstone at the street frontage, construct the garage, backfill above this garage structure and provide a faux sandstone wall at the street frontage above the entrance to the garage. The second option is to excavate down for the garage and leave the existing sandstone at the street frontage intact except for the entrance. The second area where the council claims there is an unacceptable impact on the PCA is the proposed additions at the rear of the existing dwelling.
Expert evidence on heritage matters was provided by Ms Jennifer Hill for the applicant and Ms Lucinda Varley, for the council. Expert town planning evidence was provided by Mr Kim Burrell, for the applicant and Ms Robyn Pearson for the council. The garage
Ms Varley maintains that the proposed garage would have a detrimental impact upon the significance of the PCA within the view catchment. The proposed garage will result in the removal of an existing sandstone feature that adds character to the streetscape. The driveway entry will be based on a 2.8 m entry and a 1 m excavation on either side for structural components. The garage will be constructed as a suspended slab over the garage and road reserve entry.
Ms Varley notes that excavated garages in sandstone cliffs in the PCA are not characteristic of the area. Parking in the PCA is typically located within the front setback or side setback, usually an open hardstand and typically landscaped. The basement garage, located near the site, at 1 Cairo St differs from the current proposal as it is located on the side frontage not on the primary street frontage. It is not located in the context of many primary facades but away from the core streetscapes and was also approved on a portion of cliff that had been previously modified with a portion of engineered concrete faux stone.
Ms Hill states that the proposed garage is 2.8 x 2 m and is located in a part of the rock that has already been modified by the insertion of brickwork and a sewerage pipe cut into the sandstone. The size of the garage door is insignificant within the context of the stone wall. It is proposed to remove 2 pieces of stone approximately 1sqm and offset this removal with faux stone to the modified section. The impact of the garage door on the stone needs to be understood within the context of the total rock face not just the section related to the property width.
Ms Hill notes that basement garages have been approved for detached dwelling in the North Sydney council conservation areas but the issue is not whether the garage is a basement but what impact the garage has on the PCA within Wilson Street. In her opinion, Wilson Street is characterised by many garages some of which partially obscure contributory components. It is not correct to describe the garage at 2 Wilson Street as in the primary frontage as the cliff is not related to the house. The new garage provides a character consistent with other approved garages inserted into stone walls within the area. Overall, the effect on the stone wall will be negligible.
On the issue of the proposed garage, I agree with the conclusions of Ms Hill for a number of reasons. First, I am satisfied that Ms Varley overstates the heritage value of the vertical sandstone wall where the proposed garage is to be located. I do not accept that the sandstone cut where the garage is to be located could reasonably be described as an "escarpment" associated with the plateau described in cl 4.5.2. The PCA is described as a "a natural plateau" and it must follow that the escarpment must also be "natural" feature rather than a man-made feature such as the vertical cut into the escarpment to accommodate the construction of Wilson Street.
Second, and it is important to accept that the PCA has different characteristics. The plateau part of the PCA forms the significant part of the PCA and is unsurprisingly relatively flat and has a different character to the areas beyond the plateau on or near the escarpment (like the site). The PCA is defined by escarpment along Pine Street, Wilson Street, Carter Street and Miller Street. The character of Wilson Street is clearly different to that of most of Cairo Street or Colin Street because of the different topography. There are a number of garages in Wilson Street located on the street boundary (8,12,16 and 22 Wilson Street) and garages located under dwellings (32 and 34 Wilson Street). I see no reason why the proposed garage could be in conflict with this regular feature in the streetscape along Wilson Street. Ms Varley may be correct in that excavated garages in sandstone cliffs in the PCA are not characteristic but that is not the appropriate test, as suggested by Ms Hill.
Third, and while Ms Varley notes that the basement garage, located near the site, at 1 Cairo St differs from the current proposal as it is located on the side frontage not on the primary street frontage; there is nothing in the PCA (as described in DCP 2012) that suggests that lesser weight should be given to a side street than a primary street in assessing a development against the characteristics of the PCA. The use of the side street for access at 1 Cairo Street is simply utilising the characteristics of that site in the construction of a garage for a dwelling in the same practical way as the proposal does for a garage on the site.
Fourth, I also agree with Ms Hil that the garage will occupy only a small portion of the sandstone wall that it will be largely unnoticeable after construction and will have no impact on the identified characteristics of the PCA.
In considering which of the two options suggested for the excavation of the garage is to be preferred, I agree with the conclusions of both Ms Varley and Ms Hill that the second option is preferable; that option being the excavation that leaves the existing sandstone at the street intact, with the exception of the entrance to the garage.
In accordance with cl 5.10(4), I find that the proposed garage will not have an impact on the heritage significance of the PCA. Dwelling additions
The applicant agreed that the rear dwelling additions originally proposed were not to be pursued and provided two further options. Both options removed the largely rectangular extension with a design more accurately described as a "rooms in the roof" style addition with dormer windows in each side of the additions. The two options provided a minor variation on the same overall theme; with Option A providing an extension of the existing roof by some 1.5m to form a pitched roof which extends in the same configuration for the proposed extension. Option B provides the same height for the rear extension as the existing roof and a flat section for the additions then a matching pitch to the existing dwelling where the dormers are located.
Option A is preferred by Ms Hill as the additional roof area provides better proportions with the proposed dormers whereas Ms Varley prefers Option B, as the additional height is not appropriate, as a matter of principal in heritage matters.
With the benefit of the site inspection and an understanding of the two options I agree with Ms Hill as Option A results in a more appropriate roof form for the PCA, notwithstanding a relatively small increase in the overall height of the dwelling.

The Roads Act approval Can the Court grant consent?

The parties disagreed on whether an approval under s138 of the Roads Act 1993 could or should be consented to. On 18 August 2017, I heard a Notice of Motion to reopen the hearing to provide additional submissions on the Court's ability to grant an approval under s 138 of the Roads Act 1993. The parties were advised that I would consider the Notice of Motion with the other matters raised in the hearing although both parties provided comprehensive oral and written submissions on their respective positions.
Given that the submissions provided valuable direction on how to deal with the question of a consent under the Roads Act 1993, that was not available prior to the Notice of Motion to reopen the hearing, then the Notice of Motion should be allowed.
Mr Tomasetti SC, for the applicant, submits that the authorities establish that it does not matter that an "application" is made under s 138 to enliven the Courts jurisdiction under s 138 and s 139 (Goldberg v Waverley Council [2007] NSWLEC 259 [at 9]. Nothing in s138 requires the Council to consent as land owner to the making of an application under s138 (unlike the Environmental Planning and Assessment Act 1979). Indeed, nothing in the Roads Act 1993 requires an application to be made with respect to s138. What is contemplated is a consent under the Roads Act 1993. Mr Tomasetti submits that this was a point emphasized by Biscoe J. in Goldberg.
In relation to the powers of the Court under s39(2) of the Land and Environment Court Act 1979 and relevantly, in this case, a consent under the Roads Act 1993, Biscoe J in Goldberg states [at 29] In the seminal case of Kent the Court of Appeal held that the Land and Environment Court had power under s 39(2), when upholding an appeal from the refusal of the building application, to vary or abolish a building line fixed by the council pursuant to s 308(1) of the Local Government Act 1919, insofar as the proposed structure infringed it. The Court of Appeal's wide construction of s 39(2) was that it empowered the Court to exercise all functions and discretions open to the council when the application for approval was before it. Reynolds JA said at 336 that "the language of s 39(2) ...is wide and clear and to me it means...that the court could do whatever the council could do to dispose of the appeal". Similarly, Hutley JA at 337 said "What the council could do, [the court] could do". Glass JA said at 337 "The application is such as to trigger the exercise of any relevant power vested in the council or court charged with the responsibility of accepting or rejecting the application absolutely or conditionally".
Mr Tomasetti submits that the power of the Court to exercise the function of a council, as a roads authority, under s 138 of the Roads Act 1993 when disposing of an appeal from a decision of that same council under s 97 of the Environmental Planning and Assessment Act 1979, has been clearly established. Specifically, the question of the exercise of that function where the development in question has involved development on private land together with ancillary works on a public road to provide access to the development on private land (see Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451; Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416; Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27). In each case, it has been held that the function of the council under s 138 was a function open to be exercised by the Court pursuant to s 39(2) of the Court Act when determining a development appeal.
Mr To, for the council, submits that the Court is not in a position to grant a s 138 consent as part of any grant of development consent, as no s 138 application has been made. The development application expressly did not make a s 138 application even though the opportunity existed on the development application form. The applicant did not later make a s 138 application as Exhibit E demonstrates that by letter dated 31 May 2016, the Council noted that its consent as landowner to the development application was required, and subsequently provided such landowner's consent by email dated 30 June 2016.
Clearly, no s 138 application has been made. Condition C14 of the consolidated without-prejudice conditions (originally numbered C16 in Ex 6) contains detailed technical requirements in sub-paragraphs (a)-(q) that must be satisfied before any section 138 consent can be granted. There is no evidence before the Court about these matters.
On this matter, I agree with Mr Tomasetti, in that the authorities make it clear that a "formal" application under the Roads Act 1993 is not required. I am also satisfied that the need for an approval under the Roads Act 1993 was always recognized by the applicant and the council given that it was necessary for the applicant to gain access over the road reserve to the proposed garage. While there were instances where the council argued that no application was made (such as the absence of a tick the box on the development Application form), there were also many instances where the council clearly accepted that approval was required, including the various development application plans, the councils Contention B3 and the expert evidence provided for the hearing.
The authorities also make it clear that no owners consent from the council is required or that the Court, as part of the consideration of the development cannot consider a consent under the Roads Act 1993. What should be the terms of any consent?
Exhibit 6 contains the councils draft conditions of consent. When tendered on the first day of the hearing, Exhibit 6 contained no deferred commencement conditions. The relevant condition for the Roads Act approval was condition C16 that states: Obtain Driveway Crossing Permit under S.138 Roads Act 1993 C I6 Prior to the issue of the Construction Certificate, North Sydney Council must issue the applicant with a driveway crossing and road infrastructure works permit to suit the approved off-street parking facilities. To obtain the permit, an application must be made to Council on a 'Vehicular Access Application' form with payment of the adopted assessment/inspection fees. Council will require civil design construction drawings and certification from the applicant's Civil Engineer to verify design details and enable permit issue. The responsibility for accuracy of the design fully rests with the designing engineer. All responsibility on implementation and supervision of works specified on design plans fully rests on designing engineer or whoever is chosen to be applicant's engineering representative. The civil design drawings shall detail the following infrastructure construction requirements of Council in relation to the consent. The civil design drawings must include the following at a minimum: - a) The proposed vehicular access ways must comply with AS 2890.1 and Council's current Vehicular Access Application Guidelines and Specification (gutter bridges not permitted) to ensure that a B85 vehicle will not scrape/strike the surface of the carriageway, layback, vehicular crossing or parking floor. b) The width of the vehicular layback must be 3.5m (including the wings). c) The vehicular laybacks must be set square to the kerb. d)The crossing (between the layback and the rock face line) must be perpendicular on a single straight grade of no more than 4.5%, falling to the back of the layback. e) The gutter invert levels must match the existing levels and shall not be altered unless agreed to by Council. f) The footpath levels at rock face line must match the existing levels and shall not be altered except on section where driveway crossing is proposed but no more than agreed to by Council. g) Alignment levels at the footpath rock face line must be set as a string line so that it is smooth without showing signs of dipping or rising. h) Footpath must be transitioned on both sides of the vehicular access at least 2 meters or for the length which is necessary to achieve longitudinal change in grade over the footpath of no more than 7% whichever is greater, but always must be for the full size of footpath panel. . i) Footpath alignment levels at the rock face line have an important impact on the proposed levels for new driveway. No work must not start until first confirmation of those alignment levels by Council. Council has the authority to remove any unauthorized works at the cost of the property owner, j) The Certifying Authority must ensure that the footpath rock face levels match council's required levels, k) The 150 mm kerb & gutter, and 600 mm road shoulder wide strip, adjacent to all new layback and gutter works, must be reconstructed, to ensure uniformity in the road reserve. l) All inspection openings, utility services must be adjusted to match the proposed driveway levels and location, m) The design detail has to be provided with vehicular access application and must include sections along centre-line and extremities of the crossing at a scale of 1:25. Sections are to be taken from the centre of the roadway through to the parking area itself and shall include all changes of grade and levels, both existing and proposed, n) A longitudinal section along the gutter line of Wilson Street at a scale of 1:50 showing how it is intended to transition the layback with the existing gutter levels and shall include all changes of grade and levels, both existing and proposed, o) A longitudinal section along the footpath at the rock face alignment at a scale of 1:50 is required and shall include all changes of grade and levels, both existing and proposed, p) The sections must show the calculated clearance to the underside of any overhead structure, q) Pipelines within the footpath area must be hot dipped galvanized rectangular steel hollow section with a minimum wall thickness of 4.0 millimetres and a section height of 100 millimetres. The permit must be granted by Council prior to the issue of any Construction Certificate
On the morning of the second (and last) day of the hearing, Mr To, for the council, sought to tender a deferred commencement condition that required the applicant to enter into a lease for that part of the access to the proposed garage that was within the road reserve; an area of around 15sqm. Mr Tomasetti SC opposed the tender of the condition on a number of reasons, including the late service and the uncertainty of the lease fee. I subsequently allowed the tender of the deferred commencement condition and advised that I would deal with the objections in my judgment on the other matters in dispute.
On the admission of the deferred commencement condition, I agree with Mr Tomasetti. Clause 12 of Sch E of the Court's Practice Note - Residential Class 1 Development Appeals addresses Usual directions and provides the following requirements: 12. Draft conditions of consent (a) The respondent consent authority is to file and serve draft conditions of consent (in both hard copy and electronic form) by 14 days before the conciliation conference and hearing. (b) The applicant for consent is to file and serve its draft conditions in response (in both hard copy and electronic form) by 7 days before the conciliation conference and hearing. (c) Each party's draft conditions of consent are to identify any variance from the standard conditions of consent for residential development, including conditions which have been added, amended or deleted.
The deferred commencement condition does not satisfy the Usual directions and for this reason alone, I will not take the deferred commencement condition into consideration. The deferred commencement condition has clearly taken the applicant by surprise and I accept that they are prejudiced in having to deal with the deferred commencement condition on such short notice.
Apart from the non-compliance with the Usual directions, I also have little trouble in concluding that the consequence of the proposed deferred commencement condition is such that it is a matter of such significance that should have been identified by the council as a separate contention and identified at the first directions hearing (see the comments of Preston CJ in Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147.)

Conditions

The council's conditions of consent were tendered as Exhibit 6. A number of conditions remained in dispute between the parties although agreement was reached on a number during the hearing. At the request of the Court, the council provided a fresh set of conditions that identified only those conditions that remained in dispute. As part of the fresh set of conditions provided by the council after the conclusion of the hearing
Further deferred commencement condition - this condition provided that nine additional matters to be addressed. The applicant opposed all nine additional matters. A number of these matters (1,2,5,6,7 and 8) seek to reagitate matters that were subject to the expert evidence and were shown on the plans before the Court. Other matters (3,4 and 9) are non-controversial and are appropriate as operational conditions of consent. The deferred commencement condition can be deleted subject to the above comments.
Condition A1 - this condition seeks to add to the relevant plans and documentation "Work Method Statement prepared by Crozier Geotechnical Consultants (undated)". The condition should be remain and amended to include the excavation method identified in the judgment.
Condition A3 - this condition seeks to limit demolition to the approved plans. As this is addressed in condition A1, this condition can be deleted.
Condition C3 - this condition relates to the preparation of a dilapidation survey and report. The council seeks to include the words "and no occupation of the development shall occur until damage caused as a result of the carrying out of the development is rectified". The applicant opposes the additional words and I agree that these words can be deleted as they raise potential issues that may not be necessarily relevant, may be disputed and could involve potential private damage claims.
Condition C14 - this condition seeks the applicant to obtain Driveway Crossing/Structural Works Permit under s 138 of the Roads Act 1993. The condition requires the provision of civil design drawings, including structural works in the road reserve, identified in the condition in a) to q). Having previously found that a consent can be granted by the Court under the Roads Act 1993, I am satisfied that these matters are appropriate as conditions of consent under the Roads Act consent.
Condition C19 - this condition requires a BASIX Certificate and should remain.

Directions

The Court makes the following directions: 1. As final orders cannot be made without conditions that the relate to the relevant Work Method Statement for the excavation and the Option A plans, the parties are directed to prepare and file agreed revised conditions of consent within 14 days of the date of these orders. 2. Having found that a consent under the Roads Act 1993 can be made by the Court, the parties are to prepare an agreed consent that contains the requirements in condition C14 of Exhibit 6 within 14 days of the date of these orders. 3. Liberty to apply on 48 hour's notice is granted if there is any dispute over the conditions of development consent or the consent under the Roads Act 1993. 4. Final orders will be made in chambers.

Addendum

Addendum made on 2 January 2018.
In accordance with the terms of directions in paragraph [48] of my judgment of (5 October 2017) the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. Development Application No. 184/16 for alterations and additions to an existing dwelling house at 2 Wilson Street, Cammeray is approved subject to the conditions at Annexure 'A'. 3. The exhibits are returned with the exception of exhibits C, D and 1.

G Brown Commissioner of the Court Annexure A (C)

Amendments 04 January 2018 - Conditions added as Annexure A, as per directions at [48]. 11 January 2018 - Addendum added as per directions at [48], back-dated to date of orders (2 January 2018) 18 January 2018 - Annexure A attached 4 January 2018 replaced with clear, accurate version of the same document. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2018

(1999) 105 LGERA 451

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (5)