Dunn v North Sydney Council

Development Control Plan 1991 No. 52 North Sydney Local Environmental Plan 2001 Development Control Plan 2002 LEGISLATION CITED: State Environmental Planning Policy No. 1 North Sydney Local Environmental Plan 2002 Environmental Planning and Assessment Act 1979

Reilly v North Sydney Council ; CASES CITED: Stockland v Manly CC [2004] NSWLEC 472

DATES OF HEARING: 22/08/2005 EX TEMPORE JUDGMENT DATE : 08/22/2005

APPLICANT Ms T Spiegel, solicitor SOLICITORS Spiegel & Associates Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Ms E Duenow, solicitor SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10510 of 2005 Anthony Thomas Dunn v North Sydney City Council

1 This is a class one appeal No. 10510 of 2005 between Anthony Thomas Dunn and North Sydney Council in regard to the refusal under delegated authority for two carports proposed outside Nos. 44 and 46 Spofforth Street, Cremorne. 2 These are original Federation matching semi-detached houses on separate lots. Lots each have 7.34 m frontage and about 40-45 m deep. The semi's are relatively intact architecturally except for a brick fence circa - 1950's on the front boundary that sits on top of a stone base that itself sits on bedrock that outcrops about 100 mm to 150 mm above the footpath. 3 Numbers 32 to 42 Spofforth Street, the south side neighbour is a 3-5 storey block of flats probably of 1950's to 1960's vintage recently renovated. The front wall of the units is setback across lawns and has trees on the common boundary with No. 44 and a stone-faced side boundary wall adjoining No. 44 within the front setback. 4 On the north side is a pedestrian right of way running from Spofforth Street uphill to a block of flats behind the subject site. The footway is a narrow one perhaps only 1.5 m wide, fenced off both sides with a 1.8 m paling fence and no landscaping for the length of the subject block. 5 Just north of that is a concrete driveway to the rear of Nos. 48 to 50 Spofforth Street also running full length of the allotment. That property appears to be originally another set of semi's matching Nos. 44 to 46. It has been converted into four flats by additions at the rear including a parking area for cars. 6 The subject properties having only 1 m to 1.5 m variable side setback and cannot be vehicle accessed to the rear. 7 North of Nos. 48 to 50 is another set of semi's at Nos. 52 to 54 Spofforth Street. They appear to be similar to the other two sets of semi's except for the front verandah treatments. Numbers 52 to 54 has an asymmetric design with a masonry arch and parapet over the entry stair to No. 52 and a gablet roof over the other. 8 Council had approved under Development Control Plan 1991 for No. 52 a carport in the front setback. It was designed in the Federation style, with a picket front fence on top of the masonry base course. 9 The proposal matched the design of that carport so that the applicant said the proposal would consolidate the appearance of the 3 sets of semi's from the street. 10 There is only one carport at No. 52. Number 54 frontage is landscaped with Federation era vegetation such a Frangipani trees. Number 54 was unlikely to obtain consent for a carport as it had a bus stop in front of it. Nos 48 -50 would not need carports in future as they had a side driveway and parking at the rear. 11 Number 48 - 50 also had a Federation style picket fence with a substantial hedge and some ornamental trees in the front setback. The picket fence of the proposal is said to match that. It is slightly different to the pickets at Nos. 52-54. 12 The proposal is to demolish its own brick front fence probably of 1940's to 1950's vintage and install a picket fence to match the Federation period with individual Federation style gates to each dwelling. In the front setback the areas not occupied by the proposed carports and paths are proposed ornamental shrubs. It would not achieve the extent of landscaping visible from the street that the two semi's have at present. 13 Attending the on-site hearing were for the council: - Ms E Duenow, solicitor of Mallesons Stephen Jaques - Ms L Varley, heritage planner for the council - Mr K Rothe, town planner for the council.

14 Attending the on-site hearing for the applicant were: - Ms T Spiegel, solicitor of Spiegel Associates - Mr T Dunn, applicant - Mr D Scobie, heritage architect - Ms D Laidlaw, town planner - Mr P Dunn and Ms K Dunn, residents of No. 46 Spofforth Street. 15 The proposal had been advertised but there were no objections lodged. No other persons from the locality attended the hearing. 16 The properties were in Zone 2(b) Residential under the North Sydney Local Environmental Plan 2001. 17 The carport at No. 52 was approved under Development Control Plan 1991 which permitted carports in the front setbacks where there was no alternative. In the current appeal Development Control Plan 2002 applied. It had a number of provisions seeking to prevent carports in front setbacks. 18 Issues in the appeal are quite extensive as in Exhibit 1: Landscaped area 1. The proposed carports will result in an unacceptable decrease to the available landscaped area and setting of 44 and 46 Spofforth Street. Particulars (a) Clause 14 of the North Sydney Local Environmental Plan 2001 (" NSLEP 2001 ") The proposed development is not consistent with the aims and objectives of the Residential B zone and desired character of the Cremorne Conservation Area in that the proposed development fails to satisfy cl 3(b)(i) of NSLEP 2001 in that it fails to protect and enhance the residential use and amenity of the existing residential neighbourhood. The objectives of the Residential B zone as identified in NSLEP 2001 are as follows: "the particular objectives of this zone are to: (a) Maintain lower scale mixed residential neighbourhoods, and (b) Allow for residential development in a variety of housing forms, including detached dwellings, duplexes, attached dwellings and boarding houses, and (c) Assist in the conservation of heritage, and (d) Minimise the impact of non-residential uses and ensure these are in character with the zone" (emphasis added) Clause 3(b)(i) of NSWLEP 2001 states: "3 Specific aims of this plan The specific aims of this plan are: (b) in relation to residential development, to: (i) Protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and" The development fails to protect and enhance the residential use and amenity of existing residential neighbourhood because the proposal does not assist in the conservation of identified Heritage items (Contributory Items) in the Residential B zone of the North Sydney Council Area. (b) Clause 16 of NSLEP 2001. The proposed development does not meet the residential zone objective contained in clauses 16(c) and (d). Clause 16(c) and (d) of NSLEP 2001 state: "16 Residential zone objectives The specific objectives of the residential zone controls are (c) buildings which are compatible with their immediate context, and" (d) buildings which are compatible with the character that is appropriate for the neighbourhood, and" Clause 20(1) of NSLEP 2001 states: "20 Landscaped area (1) Landscaped area objectives The relevant specific objectives of the landscaped area controls are to: (a) promote the character fo the neighbourhood, and (c) provide a landscaped buffer between adjoining properties, and (d) maximise retention and absorption of surface drainage water on site, and (f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and (g) control site density, and (h) minimise site disturbance. "

These are the specific objectives of the Landscape Area control which the proposal is not considered to comply with due to the provision of carports in front of the dwelling. (a) The proposal does not promote the landscaped character of the neighbourhood (in relation to Landscaped Area Loss) resulting from the provision of carports in front of the dwellings. (c) The proposal would result in a decreased opportunity for the provision of a landscaped buffer between adjoining properties at the front of the dwellings. (d) The proposal will not maximise retention and absorption of water on site due to an increase in the amount of impervious surfaces on site (f) The proposal is not conducive to the planting of substantial vegetation between the front of the dwellings and Spofforth Street (g) Existing site density will be increased by the provision of carports to the site in circumstances where they are already deficient in the minimum amount of landscaped area required by NSLEP 2001. (h) Significant excavation will be required as well as disturbance of heritage features on sites including the front boundary sandstone retaining wall and sandstone walls to the front porch of both dwellings. (d) The proposal does not comply with Clause 20(2) of the NSLEP 2001 in that it proposes to provide a landscaped area of 43% of the total site area for each of 44 and 46 Spofforth Street when 50% is required, as defined by the NSWLEP 2001, in circumstances where the SEPP 1 objection submitted in relation to this non-compliance does not demonstrate that compliance is unreasonable or unnecessary in the circumstances, and is not well founded based on the information provided with the application. 1Site Area - 2 Northern = 329.2 sq m Existing Proposed Control Complies Southern = 333.4 sq m Northern 157.33 sq m (48%) Northern 141.31 sq m (43%) Landscape Area (Cl. 20) (min 50% NO Southern 159.43 sq m (48%) Southern 143.41 sq m (43%)

See attached plan. There will be a further 5% decrease of the available landscaped area on each respective site. Each site is already identified as providing only 48% Landscaped Area. This results in a total 7% deficiency in required Landscaped Area for each site. The majority of the lost Landscaped Area is a direct consequence of the introduction of the carports on site. (e) The proposal does not comply with the provisions of the North Sydney Development Control Plan 2002 (" NSDCP 2002 ") - Quality Urban Environment - section 7.4(k)(i) (landscaped area) in that the development fails to meet the minimum required landscaping area as per Clause 20 NSLEP 2001. Car Parking 2. The location of the proposed parking structures is considered unsatisfactory having regard to the provisions of NSDCP 2002 relating to the provision of on site car parking. Particulars (a) Quality Urban Environment - Section 7.4 of NSDCP 2002 (location of car parking) - the proposed development will reduce the garden setting of both 44 and 46 Spofforth Street and will have an adverse affect on the appearance of the building contrary to this provision of NSDCP 2002. Section 7.4(i) Location of car parking of NSDCP 2002 States: "On-site car parking does not reduce the garden setting of buildings or have adverse effect on the appearance of the street or building" The provision of car parking on each site will result in a loss of Landscaped Area and have a detrimental impact on an identified contributory heritage item within a Conservation Area of North Sydney Municipal Area. (b) Quality Urban Environment - Section 7.4(i)(i) of NSDCP 2002 (location of car parking) - the proposed car ports are located between the primary façade buildings on both lots contrary to the provision. Carports located in front of the dwelling reduce the potential for a garden setting of a dwelling visible from the street and the carports are considered in this instance to have a detrimental impact on identified contributory heritage items within a Conservation Area of North Sydney Municipal Area. (c) Quality Urban Environment - Section 7.4(j)(iii) and (iv) of NSDCP 2002 (vehicle access) (i) the provision of vehicular access comprises the streetscape, building form, landscaped area and heritage significant of both properties contrary to section 7.4(j)(iii); (ii) the proposal introduces vehicles access from the street in circumstances where on site parking is not characteristic contrary to section 7.4(j)(iv). (d) Car parking - section 9.1(a) of NSDCP 2002 (residential parking) adopts AS2890.1 for minimum dimension standards which stipulates that standard car parking spaces should be a minimum of 5.4 metres in length. The provision of a light car space is not appropriate in the circumstances. A light car space is not considered appropriate in the circumstance when pedestrian thoroughfare could be interrupted by overly large (Station wagon/4WD) vehicles parked in an undersized vehicular space. (e) Cremorne Conservation Area Character Statement - section 8.4(i) of NSDCP 2002 (car accommodation) in that garages and carports are stipulated in the Cremorne Conservation Area to be located behind the front building line. Refer to answer for 2(b) above. Heritage Conservation 3. The proposed development does not comply with the provisions of clause 49 of NSLEP 2001 or s 8.8 (Heritage Items and Conservation Areas) of the NSDCP 2002 and is therefore considered to have an unsatisfactory impact upon the future character and integrity of the conservation area. Particulars (a) Clause 14 of NSLEP 2001 Clause 14 of NSLEP 2001 states: "14. Consistency with aims of plan, zone objectives and desired character (1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan.

(2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls. The proposal is not consistent with the objectives of the Residential B zone of NSLEP 2001 nor is it in accordance with the objectives of the controls identified in the particulars of the refusal notice. Therefore consent cannot be granted to the development. (b) Clause 2(b) of NSLEP 2001. The proposed development is not appropriate to its context and does not enhance the amenity of the North Sydney community and environment. Clause 2(b) of NSLEP 2001 states: "2. General aims of this plan The general aims of this plan are: (b) Development that is appropriate to its context and enhances the amenity of the North Sydney community and environment, and" (i) The proposed carports and vehicular crossings are not considered acceptable with regard to the provisions of NSLEP 2001, NSDCP 2002 and the character of the Harrison Precinct and Cremorne conservation Area due to the non compliance with the NSLEP 2001 Landscaping controls and non compliances with NSDCP 2002 in relation to car parking, vehicular access and streetscape/heritage issues. The proposal therefore does not result in an enhancement of the North Sydney Community "in general". (c) Clause 3(e)(i) of NSLEP 2001. The proposed development is contrary to the provisions, which requires an identification and encouragement of the conservation of the hearing of North Sydney including heritage conservation areas. (d) Clause 19 of NSLEP 2001. The proposed development fails to satisfy cl 49(1)(a) in that it does not ensure the conservation of the character and heritage significance of conservation areas. (e) Heritage items and Conservation areas - S 8.8(a)(ii) of NSDCP 2002. Provision of the carports would be detrimental to visual curtilage and have an adverse impact to an identified contributory heritage item at 44 and 46 Spofforth Street contrary to s 8.8(a)(ii).

(f) Heritage items & Conservation areas -section 8.8(c)(iv) of NSDCP 2002. The proposed development will result in the removal of sandstone walls contrary to the provision of NSDCP 2002.

As identified in the Area Character Statement for the Cremorne Conservation Area the area is characterised by: "As a largely intact early 20th Century suburb retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone, sandstone kerbing, natural rock faces, wide streets and compatible plantings, all of which are a response to the topography of the area." The proposal will result in the removal of existing sandstone features on buildings identified as a Contributory item to the Cremorne Conservation Area. (g) Heritage items & Conservation areas -section 8.8(f)(i) of NSDCP 2002. The proposed development is contrary to this provision of NSDCP 2002 in that the car ports will be built forward of the existing characteristic setbacks. Section 8.8(f)(i) of NSDCP 2002 States: "(f) Buildings respond to characteristic building alignments in the streetscape. (i) New buildings and additions are not built forward of existing characteristic setbacks." This proposal will result in a detrimental impact to the visual amenity of an identified Contributory Heritage Item by the provision of ancillary additions in front of the dwellings. (h) Heritage items & Conservation areas - s 8.8(h)(i) and (ii) of NSDCP 2002. (i) The carports are located in front of the front building façade, which is contrary to the controls for the location of parking structures in the Cremorne Conservation Area contrary to s 8.8(h)(i). (ii) The proposed development does not maintain the massing, form and scale of buildings in the conservation area contrary to section 8.8(h)(ii). (i) Heritage items & Conservation areas - s 8.8(r) (car parking). The provision of car parking on site will have a detrimental impact on the heritage significance of both 44 and 46 Spofforth Street and the streetscape because: (i) car accommodation is being located in the front set back area contrary to section 8.8(r)(i); (ii) the car ports are not being located behind the building line contrary to section 8.8(r)(ii); and (iii) part of both 44 and 46 Spofforth Street is being demolished for the purpose of erecting the proposed car ports contrary to s 8.8(r)(iii). 2(h) & (i) Section 8.8(h)(i) & (ii) of NSDCP 2002 states: "(h) Maintain the massing, form and scale of heritage items and buildings in conservation areas. (i) Locate alterations away from the principal elevations of the building, position them to the side or rear of the dwelling and behind and below the principal ridge line. (ii) Massing, form and scale of elements match those characteristics of the conservation area, represented by contributory items in the vicinity." See answer provided for 3(a) above as to h(i). As for h(ii), the carports are not considered to be of any appropriate size and scale in relation to space they occupy in the front setback and their impact on the visual amenity of the contributory items. Section 8.8(r)(i), (ii) & (iii) of NSDCP 2002 states: (r) Carparking structures have no detrimental impact on the heritage significance of the building and the streetscape. (i) No car accommodation in the front setback area, unless otherwise stated in the character statement. (ii) Locate car spaces, carports and garages behind the building line, and towards the rear or side of buildings. (iii) Do not alter or demolish any part of a building for car parking, carports and garages, except where topography or building design allows for their inclusion, and there are not negative impacts on the streetscape or heritage item. Provision of the carports in the front setback area is specifically contrary to the first two items. The provision of these spaces will also result in sub standard parking spaces in accordance with other provisions of the s 9 Car Parking of NSDCP 2002. The applicant has proposed to further erode the heritage significance of the dwelling to "scrape 85 mm" off the existing sandstone curtilages of the two dwellings to provide 5 m car spaces on site. It is considered that if adequate parking cannot be provided without damaging the fabric of the existing dwelling of the sites, then the sites are not considered suitable for the development proposal. 19 The summary of the issues in my opinion came to five essential matters: 1. The carports caused the landscaped area of the site to have a net reduction of about 10 sq m and it is already below the 50% of the site area that is required. In the proposal the area is 45.3% of the site and the original landscaped area is 45.7%. 2. Due to this State Environmental Planning Policy No. 1 Objection is needed to be determined.

3. This leads to consideration of the relevant objectives referred to in the Issues.

4. If the State Environmental Planning Policy No. 1 Objection is upheld, there is still the question of the Conservation Area objectives to be satisfied. 20 The council's case is that carports in the front setback should not be permitted as Nos. 44 to 46 are contributory items to the Conservation Area as is Nos. 52 to 54. Curiously Nos. 48 to 50 are not contributory items, yet it is part of the three sets of original semi's. More curiously, even though No. 52 had a carport in front of it at the time of being created a contributory item under Local Environmental Plan 2002, the carport did not lower its conservation significance. I was told that was mainly due to the next lower category being called "neutral conservation significance" and that would permit demolition. 21 The last of the five matters at Issue was the depth of the carport, because it only allowed a 5 m long car space that was not 5.5 m required by the council. The council Control Plan referred to Australian Standard 2980 which did have a category for small cars and a car space 5 m long. The carport at No. 52 is that size, and seen on site it had a Ford Territory parked in it which is an 85%-ile car that did not project across the front boundary. 22 An 85%-ile car is 4.9 m long. Therefore I think that all other matters being satisfactory, the length of the car space is not a problem in practical terms. 23 An added complication is that to achieve 5 m length the sandstone base course of the verandahs of the 2 semi's needs to shaved by 85 mm. This takes it back to the face of the brick work of the verandah balustrade. It can be finished or refinished after being shaved as a rock faced finish to match the existing. Council says it is still removal of conservation fabric and must be deterred. 24 Once again the extent of removal of fabric is so small and the result would be so similar to the existing, I am of the opinion all other things being satisfactory it is not sufficient for refusal. 25 Into the remaining issues, one can see they are interrelated. Council experts said the character of the conservation area required retention of unbuilt upon front setbacks, and, the original deficiency in landscaped area is made worse by the carports. 26 I should note there is no issue in regard to the aesthetic design of the carports or the front fences and stone base courses. They are agreed between the parties as being in character with the Federation semi's. Nevertheless, the council experts say any approval of the carports would be to the detriment of the conservation significance of the semi's and the streetscape and therefore the Cremorne Conservation Area. 27 The statement in Development Control Plan 2002 for the conservation area says: The Cremorne Conservation Area is a residential neighbourhood characterised by a mix of small, medium and substantial sized 1890s and Federation era dwellings with Inter-war blocks of two and three storey residential flat buildings. Buildings are mostly set in established and well maintained gardens. The houses are mainly detached and of 1 or 2 storeys. Styles include Federation Queen Anne and Federation, Arts and Crafts. The Inter-war buildings are generally 3 storey walk-up residential flats in red-textured or liver coloured. 28 I note that the apartments on the southern side of the proposal at Nos. 32 to 42 appear to be considerably later than Inter War and the recent renovations give an almost contemporary look. 29 The applicant's experts say the starting point for consideration should be that the subject semi detached houses are contributory items not heritage items. The proposal has retained the items by restoring the semi's under the original council consent, which by the way is conditioned to delete carports from the front setback. 30 The next consideration the applicant says should be the local context of the site. It is agreed between the parties that the relevant context is Spofforth Street between Rangers Road and Florence Street. The west side of Spofforth Street in that area is in North Sydney council area, the east side in Mosman. 31 On the east side and one city block to the north and half a block to the south of the site is a suburban shopping centre dating from the Federation period all built to the street boundary, awnings above the footpath and several buildings being two storeys high. Further south on the Mosman side is a mix of houses and flats, many with high front boundary fences in masonry or other materials. There are also two and three storey blocks of flats. 32 On the North Sydney side of Spofforth Street is a collection of 1950's and 1960's flats and Federation houses some with carports in the front setback, but few with high front fences. Presumably the other carports in the front setbacks were approved under Development Control Plan 1991. 33 The applicant says that there is no consistency in the context of the site such as one might see in a Paddington or Glebe conservation area. The variety of the building designs and heights is reflected in the variety of front yard treatments. 34 The council experts draw attention to the fact that despite the variations in different parts of the street between Rangers Road and Florence Street none have carports in the front setback except No. 52. The applicant's expert says one cannot ignore the Mosman side of the street. 35 Ms Laidlaw made the point that conservation of the semi's is occurring in accord with the objectives of the conservation area, because they are not being demolished, and the management of change in conservation areas allows buildings of value in the conservation area to evolve to meet current day needs. Without that such buildings could fall into disrepair and eventually be lost. 36 Mr Scobie maintains that semi's will be read for what they are in the streetscape and they will continue to contribute to the conservation area. 37 Ms Varley agreed that the presence of the carport to No. 52 did not lower its contributory item status. She could not explain why Nos. 48-50 did not receive contributory status also, except for the fact of its now being four flats. Its streetscape presence is still in fact Federation and well conserved except for the paint colours. 38 Comments have been made by both experts to the Department of Planning publication of the early 1990's called "Getting the details right". Parties looked closely at the existing buildings and the plans and came to a number of additional conditions to ensure the already acceptable aesthetics of the carports and their match to the dwellings would be even better. 39 Mr Scobie noted the carports had a gable end roof towards the street to match up with the semi's roofs and a hipped roof to the rear. Number 52 also had this treatment so the dwellings could be more clearly seen from the street across the hipped rear section of the carport roof. It is noted the semi's being on the high side of the street, they would be largely elevated above the carports, and so the carports would remain clearly subservient and separate to the semi's. Being of ornate Federation style but open below the roof, and without a door or gate to the street as is the No. 52 carport, the structure would be light in visual weight and able to be seen through to the vegetation and the building beyond. This could be confirmed by looking at the carport at No. 52. 40 The council put that Appeal 0072 of 2002 Reilly v North Sydney Council would encourage support for the refusal of the carports in the front setback. The applicant replied that in that case alternate access was available at the rear so the situation was clearly distinguishable from the subject appeal. 41 Mr Scobie said he endorsed the policy of no carports in the front setback where there was no alternative access or where the consistency of streetscape and a conservation area demanded it. But in this situation being on the boundary of municipal areas and with such great variety of building forms and front yard treatments, the proposal was not such that it should be refused. 42 Ms Laidlaw observed the old Federation shopping centre opposite had no off-street parking so on-street parking was in demand. The street in front of the proposal currently had two on-street car spaces available. In the proposal, it had two on-site and one on-street car space so there is a net gain of one car space in the area. The existing semi detached dwellings had no on-site spaces and occupants of the semi's are obliged to park in the street. This takes parking spaces away from shoppers. The proposal provides one additional space for shoppers. 43 In regard to the State Environmental Planning Policy No. 1 objection Ms Laidlaw said the objectives of the landscaping requirement are met because in reference to cl 20(1) of the Local Environmental Plan: 44 She commented on subcl (a). The retention of the semi's and their restoration and the aesthetics of the proposal does preserve the character of the conservation area. 45 With regard to subcl (b), the landscaped area although slightly reduced by the proposal needs to be seen in the context of the renovation of the semi's involving proposed landscaping of the rear yard with removal of old out-buildings to provide more usable private open space. 46 In regard to subcl (c) although at the street front the carports are on the side boundaries and do not have landscaped area. One of the adjacent properties also does not have landscaping on the side boundaries at the street due to the right of way pathway. This is part of the variety and character in the locality. The proposal will have landscaping in the centre front of the development, and for the rear two-thirds of the side boundaries of the allotments, and at the rear, there is significant landscaping proposed. The agreed good aesthetics of the carport design frames and enhances the recognition of the Federation semi's and this in itself could be seen as advantageous for the streetscape, Ms Laidlaw said. The street front vegetation of No. 48 and No.'s 32-42 adds to the framing of No.'s 44-46. 47 With regard to subcl (d), the side setback areas of the property do have soft landscaping as well as paths and the rear yard is all deep soil area. The floors of the carports is proposed in porous paving and therefore the proposal achieves nearly all of the required water absorption capacity. 48 With regard to subcl (e), there is no issue of obstruction of underground water flow. 49 In regard to subcl (f), none of the nearby small allotments such as the subject allotments have 15 m high trees in their setbacks, and it would not be desirable from a safety point of view. The rear yards have space for those size of trees. 50 In response to subcl (g), Ms Laidlaw said the site density in terms of building footprint is only slightly changed from the original prior to the approval of the renovations of the semi's. 51 In reply to subcl (h), site disturbance is also minimised by the excavation needed for the carports. 52 Mr Rohe agreed the excavation of itself is not sufficient for refusal. 53 The respondent put that Stockland v Manly CC [2004] NSWLEC 472 required that development control plan provisions be given determinative weight especially on their consistency of application. In this case the council brought no strong evidence of consistency given the number of carports in front setbacks that I saw, and informed the parties about, in coming to the site through the conservation area. 54 Examples of consistency that were brought by the respondent were distinguishable from the subject case. I believe there is flexibility to grant consent under the DCP. 55 Overall, I agreed with Ms Laidlaw's submissions on the State Environmental Planning Policy No. 1 objection that the proposal is not antipathetic to the objectives of the landscape requirement and the objection can be upheld. 56 Therefore the orders of the Court are:
   1. The appeal is upheld. 2. That consent is granted for two carports in the front setbacks of Nos 44-46 Spofforth Street, Cremorne with landscaping and fencing as shown in Drawings Nos. 01 to 06 inclusive dated April 2005 by Nicholas Dunn & Associates and landscape plan 307-L1B sheet A1 by Impact Planners, as annotated in red in Exhibit A of this appeal and, all as amended by, and built in accordance with conditions in Annexure A hereto. 3. The exhibits are returned to the parties, except Exhibits A, 1 and 9. 4. No orders as to costs.

                  K G Hoffman
                  Commissioner of the Court
                  Rjs/ljr

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