McCusker v North Sydney Council

Issues

1. At the hearing, the Respondent maintains that the development application warrants refusal by the Court on the following grounds: 1. The proposed development will have a detrimental impact on the heritage significance of the locally listed heritage item, Bovington, an impact that warrants the refusal of the development application; 2. That the requested variation to the minimum subdivision lot size standard for proposed Lot 2 should not be upheld as the Applicant's written request to vary the development standard fails to demonstrate that compliance with the lot size standard is unreasonable or unnecessary, or that there are sufficient environmental planning grounds to justify the variation; 3. That the proposed subdivision is contrary to the character of the Cremorne Conservation Area (CCA) and will detrimentally impact on the heritage significance of the CCA; 4. That the constrained nature of proposed Lot 2 is unlikely to promote the orderly and economic use and development of the land; 5. That the proposed development is contrary to the objectives of the R2 Low Density Residential zone; 6. That the boundaries of the proposed subdivision do not meet the characteristic subdivision pattern of the locality and are contrary to the relevant controls in North Sydney Development Control Plan 2013 (DCP 2013); 7. Any future development of Lot 2 is likely to result in a development which is inconsistent with the desired character of the area, result in poor amenity of the future residents and will have unreasonable amenity impacts to adjoining properties; 8. The proposed development is not in the public interest.

Site and context

1. The site is currently a single allotment with an area of 1035m². It is elevated from Shellcove Road by between 3-4.7 metres, but the site itself is predominately flat.
2. The location of the existing dwelling within the site and the proposed new lot boundaries are demonstrated in the following extract from the proposed plan of subdivision: (Exhibit B)
3. Existing development in the vicinity of the subject site is a mix of residential types and densities, including residential flat buildings, dual occupancies and single detached dwellings. The rear of the site abuts land that is zoned R3 Medium Density under North Sydney Local Environmental Plan 2013 (LEP 2013).

History of the site and locality

1. The history of the CCA is described in DCP 2013 as: "The Cremorne Conservation Area was contained within the Alfred Thrupp grant of 1815, which was subsequently acquired by Daniel Cooper. The Coopers did little to improve the property but commenced leasing land around 1850. From the 1870s, with Military Road constructed and the ferry services available on the Harbour, demand for residential land boomed. This area was promoted as highly desirable and included large blocks of land on which expensive mansions were built. Freehold land was available from the 1890s and such development continued until the early twentieth century. The Neutral Bay Land Company, who employed architects such as Walter Liberty Vernon and William Wardell to prepare house designs, developed an area of Wycombe and Shell Cove Roads north of Harriette Street, which features substantial, architecturally distinguished housing of the 1890s." (Exhibit 1)
2. The statement of significance for the CCA is contained in DCP 2013 at 6.3.3 as follows: "The Cremorne Conservation Area is significant: (a) as a consistent late 19th/early 20th Century residential area with a mix of Victorian, Federation one and two storey housing, mixed with Inter-war residential flat buildings, (b) 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." (Exhibit 1)
3. The Respondent asserts that Bovington was designed by Walter Liberty Vernon (Vernon), an assertion that is rejected by the Applicant.
4. The attribution of Bovington to Vernon is contained in the statement of significance for Bovington in LEP 2013, refer to [28].
5. In 2019 a member of the public nominated Bovington as a potential item of State heritage. The NSW Heritage Office undertook relevant investigations and in the final report, staff concluded that it was not possible to definitively assign Bovington as a work of Vernon: "Heritage NSW has undertaken a close review of all available evidence and advises that while it is probable that Vernon was the architect this cannot be definitely proven. It [Heritage NSW] also notes that avenues for such research have been exhausted and absolute proof is highly unlikely to be found in future.." (Exhibit 4)
6. On the above, and other bases, Heritage NSW determined not to proceed with listing of Bovington as a State heritage item.
7. It is agreed between the parties that Vernon, with several other partners, set up the Neutral Bay Land Company to develop land in Neutral Bay which included the subject site as demonstrated below: (Exhibit 1)
8. The subject site no longer corresponds to the original subdivision due to subsequent subdivision to create additional parcels. The following figure indicates the original subdivision boundary (in red) overlaying the current cadastre (in blue): (Exhibit 1)

Public Submissions

1. The development application, in its original form, was notified to adjoining and adjacent property owners between 1 March and 15 March 2019. Nineteen submissions were received. The Respondent tendered these submissions, as well as submissions received outside the notification period, in the proceedings. I have read and considered the submissions in assessing the proposed development.
2. Concerns raised in the submissions can be summarised as follows:

• That proposed Lot 2 is of inadequate size (I note that at this point Lot 2 was proposed to be 334.3m²);
• Any future development of Lot 2 will not be able to be sufficiently setback from the heritage item to preserve Bovington's curtilage and views from the heritage item. The subdivision will adversely interfere with the setting of Bovington and its amenity.
• The proposed subdivision will negatively impact on the heritage significance of Bovington.
• Any future development of Lot 2 will require tree removal, including a mature frangipani tree. This will impact on the outlook from neighbouring properties.
• Lot 2 is smaller than the required minimum lot size in the planning controls and does not meet the low-density character of the neighbourhood. Such a 'tight' development is out of character with the neighbourhood.
• The subdivision will increase demand for on-street parking as there is no onsite parking provided for the additional lot.
• That the North Sydney Council area has lost too many heritage buildings and the heritage listed house (Bovington) should be retained on its current block. Further, the proposed subdivision is inconsistent with the historic subdivision of the area.
• Concern that future development of Lot 2 would cause construction impacts to adjoining properties.
• The proposed subdivision will have negative impacts on the visual and acoustic privacy of neighbouring properties, including Bovington.
• The proposed subdivision will negatively impact the streetscape.
• The approval of the subdivision will exacerbate the proliferation of undersized lots and contribute to a shift in density in the area. The subdivision is inconsistent with objectives of the R2 Low Density Residential zone.
• The presentation of Bovington to the streetscape would be obscured by any new dwelling that follows the subdivision. This will adversely impact views of Bovington in its garden setting when viewed from properties to the rear. The curtilage of the house is an important element of the heritage significance.
• The subdivision will affect the appearance of Bovington as a 'grand home'. The proposed 2m side setback between the existing residential veranda and a new dwelling on Lot 2 is insufficient.
• The Applicant's written request to vary the development standard does not adequately address the objective of cl 4.1 (the minimum lot size standard) or the objectives of the R2 Low Density Residential zone.
• A new pedestrian entry to Lot 2 would require a cut to be made into the cliff face fronting Shellcove Road which would impact on the streetscape.
• The proposed subdivision will interfere with the heritage dwelling, particularly being located on its southern side, given the importance of the veranda and balconies of the dwelling to the design of Bovington.
• The undersized lot will be incapable of accommodating a future dwelling without materially impacting on Bovington, the amenity of adjoining neighbours and the streetscape.
• The small size of proposed Lot 2 is exacerbated by the narrowness of its width and its unusual shape. The result of these constraints is that any future dwelling on the lot will be oriented in such a way that it's living spaces will directly overlook the backyards, rear bedrooms and kitchen areas of neighbouring dwellings. Further, any resident of Bovington, when on the southern verandah, will be faced with the new dwelling rather than the current outlook of mature established trees and the harbour.
• The fragmentation of the gardens of Bovington would impact the heritage dwelling and is at odds with the heritage significance of Vernon's design philosophy of a large home in a grand garden setting.
• The right of footway burdening 61 Wycombe Road has not been addressed in the subdivision application.
• Concern that, despite the dilapidated state of Bovington, the Applicant makes no commitment as part of the development application to undertake any remedial or restorative works. (Exhibit 1)

1. At the commencement of the hearing, the Court was addressed onsite by a nearby resident who raised concern with the proposed development, in particular: its effect on the heritage significance of Bovington; the variation proposed to the minimum lot size standard and that the development was out of character with the locality.

The planning framework

1. Prior to the consideration of the merits of the proposed development, the Court, as consent authority, must determine whether the relevant preconditions to consent are met: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, [16].
2. Pursuant to LEP 2013, the site is zoned R2 Low Density Residential. The objectives of the R2 zone are as follows: • 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.
3. As required by cl 2.3(2) of LEP 2013, I have had regard to the objectives of the R2 Low Density Residential in determining the development application.
4. The site may be subdivided, with development consent (cl 2.6 of LEP 2013).
5. Clause 5.10(4) of LEP 2013 requires the consent authority, or the Court on appeal, to consider the effects of the proposed development on the heritage significance of the heritage item before granting consent. This requirement is reflected in the Respondent's first contention, which argues firstly, that the proposed development will detrimentally impact Bovington, and secondly that the impact is sufficiently detrimental to warrant refusal of the development application.
6. The development application relies on a variation to the minimum lot size standard for Lot 2. As such, pursuant to cl 4.6 of LEP 2013, the Application has submitted a written request in support of the variation. Whether the request is satisfactory encompasses the Respondent's second contention.

What is the heritage significance of Bovington?

1. LEP 2013 includes the following definition of "heritage significance": heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
2. The existing dwelling on the site is known as Bovington and is locally listed under LEP 2013 as heritage item I0700.
3. The statement of significance on the NSW Heritage Register for Bovington states: "Bovington was designed by the prominent late nineteenth century architect W. L. Vernon soon after his arrival from England, and shows the early use in Australia of features of the later nineteenth century Queen Anne revival style, such as roughcast render and intricate decorative brickwork. It was one of a number of houses which Vernon designed in the Neutral Bay area before he became Government Architect, of which few survive. It is in good and intact condition."
4. In addition, the NSW Heritage Database notes that Bovington is assessed as meeting the threshold for local heritage listing for the following criteria: "SHR Criteria a): Historical Significance - local significance SHR Criteria b): Associative Significance - local significance SHR Criteria c): Aesthetic Significance - local significance … SHR Criteria f): Rarity - This item is assessed as aesthetically rare regionally. SHR Criteria g): Representativeness - This item is assessed as historically representative locally. This item is assessed as socially representative locally." (Exhibit 1)
5. The heritage impact assessment (HIA) prepared by the Applicant adopts an assessment of significance and a statement of significance for Bovington from an earlier report prepared by City Plan Heritage in 2005 (City Plan 2005). Applying the criteria from the NSW Heritage Manual 'Assessing Heritage Significance' guidelines, the City Plan 2005 report concludes Bovington meets five of the criteria for local heritage listing: Criteria A: An item is important in the course, or pattern, of the local area "The association of the subdivision with W L Vernon, a Government Architect, and the development of the leasehold by Vernon is important historically in the area" (Exhibit A) Criteria B: An item has strong or special associations with the life of works of a person, or group of persons, of importance in the local areas cultural or natural history. "Vernon's association with the associated leaseholds and dwellings is important to the history of the area". (Exhibit A) Criteria C: An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area. "'Bovington' is a well executed dwelling of the period exhibiting a restrained Queen Anne style. The dwelling complements other dwellings in the area". (Exhibit A) Criteria F: An item possesses uncommon, rare or endangered aspects of the local areas cultural or natural history. "The dwelling is an example of the late period of the leasehold and development phase of Neutral Bay". (Exhibit A) Criteria G: An item is important in demonstrating the principal characteristics of a class of the local areas: - cultural or natural places; or - cultural or natural environments. "The dwelling is representative of the work of the leasehold company at this time, but is not generally representative of buildings of this quality in Sydney at this time." (Exhibit A)
6. The City Plan 2005 report also includes the following statement of significance, adopted by the Applicant in the HIA. "'Bovington' was designed by the leasehold company established by W L Vernon soon after his arrival from England and shows the early use in Australia of features of the later nineteenth century Queen Anne revival style, such as rough cast render and intricate decorative brickwork. It was one of a number of houses designed in the Neutral Bay area by Vernon's leasehold company, of which few survive intact. Bovington is an intact survivor of the period, however there is no documentary proof that Vernon was the architect of this dwelling, although it exhibits characteristics of buildings developed by the company. The dwelling was not finished to the standards of dwellings definitively attributed to Vernon and was completed at the end of the solvency period of the company." (Exhibit A)
7. In their joint report, the heritage experts agreed that "Bovington is a marine villa and has a strong relationship to its setting above a small escarpment with views to Sydney Harbour" (Exhibit 4).

Is the heritage significance of Bovington impacted by the proposed development?

1. The appropriateness of the subdivision sought by the development application was the subject of heritage and historical evidence in the proceedings. Mr Ron Edgar provided heritage evidence on behalf of the Applicant. Ms Varley provided heritage evidence and Mr Hoskins' historical evidence on behalf of the Respondent.
2. Mr Ron Edgar's evidence can be summarised as follows:

• Given the variability of lot sizes in the locality of the subject site, the proposed subdivision will not alter the character of the CCA.
• The subject site does not align with the extent of the original property boundary of Bovington having been already the subject of subdivision to create additional lots to the north and south (68 & 64 Shellcove Road respectively).
• The proposed subdivision does not involve the removal of any features or landscaping that contribute to the heritage significance of Bovington.
• The development does not propose any physical works or any material change to the setting or the fabric of Bovington and will not have a detrimental impact on its heritage significance. Mr Edgar concludes that the creation of two separate allotments, in title, will not impact on the acknowledgement of the significance of the site.
• The current setting of Bovington is, in the majority, obscured from public view due to trees and vegetation along the northern and eastern escarpments. This same vegetation acts as a barrier to harbour views from within Bovington however, the property maintains an aspect and view corridor from the Dining and Drawing rooms to the harbour. Further, the proposed subdivision: "does not, necessarily, have a negative impact on this aspect as the south-east garden area and trees would be retained within the setting and view catchment of the house should there [be] a need to develop the proposed lot in the future…". (Exhibit 4)
• The concept design proposed for a residential dwelling on Lot 2 considers sightlines from within the bounds of the property, Bovington itself as well as within the CCA. Further, the "levels indicated in the concept demonstrate that a house could be developed [on Lot 2] that would not prevent Bovington facades and [the] verandah from being 'viewed in the round'" (Exhibit B).
• Argues that the concept design demonstrates "it would be possible to design a home on the subdivided lot that would mitigate the impacts of the development of a home on the site...", however notes that any future dwelling would be subject to assessment by Council, the relevant planning controls and would require a Heritage Impact Assessment at that time (Exhibit 4).
• That the alleged attribution of the design of the building to Vernon was held to be unfounded by Heritage NSW in August 2020 as there is no conclusive evidence that Vernon designed it. Further, that the Respondent places too much weight on circumstantial evidence of Vernon's involvement in the design of Bovington.
• Whilst the origin of the design is uncertain, the design objective of the house is understandable. That being to orient the building to a view over Neutral Bay from a vantage point on the escarpment created by Shellcove Road. He observes that these views are enjoyed from the Dining room, the Drawing room and the veranda. He notes that the original access to the property was from Wycombe Road and states that neither the eastern frontage nor the southern 'bellevue' are prominent aspects of the house. Rather he concludes that "in fact the feature of the property was not the view from outside the property but as a piece to be viewed from close up as it was circled on approach" (Exhibit B). (Exhibit 4)

1. Relevantly, in his evidence Mr Edgar notes that "there is an intention to repair and restore the detailing of the house and return it to a habitable state utilising the financial benefits arising from the improvement of the capital value of the property released by the subdivision" (Exhibit 4). In cross-examination, Mr Edgar accepted that the Applicant does not propose any conservation works as part of this application, nor that there is a conservation management plan or any obligation on the Applicant to utilise any benefit arising from the grant of consent to repair or undertake conservation works to Bovington.
2. Further, in his evidence Mr Edgar makes reference to the role of a covenant as a means of protecting the setting and curtilage of Bovington (Exhibit 4). He describes such a covenant as being imposed to protect the setting of the south-east corner garden and the boundary setback to Shellcove Road. He concludes this would protect prominent observation points to the dwelling. Annexed to his statement of evidence is the following sketch nominating the extent of such a covenant (highlighted in blue): (Exhibit B)
3. I note that the bounds of the proposed covenant indicated in the above sketch does not align with the covenant proposed by the Applicant's subdivision plan (the area nominated as 'c' in Lot 2 adjacent Shellcove Road) reproduced at [7].
4. Finally, Mr Edgar contests the Respondent's assertion that Bovington is a 'marine villa' but accepts that it is "a house designed to the aesthetic theme of a villa that is viewed 'in the round' within its own curtilage, the property boundaries" (Exhibit 4).
5. Mr Edgar concludes that in his opinion the proposed subdivision will not have "any material impact on the significance of the house, the interpretation of the form and character of the original subdivision for the Neutral Bay Land Company or any external view of the property" (Exhibit B).
6. In considering Mr Edgar's evidence and his conclusions, I have given weight to the differences identified at [35] and [37] between his view of the application and the actual form of the development application before the Court.
7. In the alternative, Ms Varley's evidence concludes that the proposed subdivision "will detract from the significance of the dwelling [Bovington] in that the entitlement of any current or future owner to develop the site will likely result in a dwelling that will reduce the expanded curtilage to a lot boundary curtilage and will reduce its [Bovington's] setting" (Exhibit 4).
8. Ms Varley's evidence can be summarised as follows:

• That the proposed development is non-compliant with the subdivision standard in LEP 2013 and will provide the opportunity, expectation and entitlement to a future owner to develop the site for residential purposes on an undersized lot.
• That, because the lot is undersized, future development of proposed Lot 2 will be uncharacteristically narrow in form. She notes that proposed Lot 2 is only 7m wide at its narrowest, resulting in a dwelling that is 5.2m wide if it was to comply with the relevant development controls. It is her view that this width is uncharacteristic of the locality.
• Further, she argues that any future dwelling would have a poor relationship with Shellcove Road as it would be setback behind the front façade of Bovington to limit the impact of the new dwelling to Bovington.
• That the future development of Lot 2 would not satisfy the area character statement in Part C of Section 6.3.3 of DCP 2013 because the dwelling would be infill development and it would detract from the intact early 20th century locality.
• The subdivision will result in an area of Bovington's curtilage, that is important to its heritage value, being removed from its title. It is Ms Varley's view broadly that Bovington's heritage significance arises from three factors. Firstly, from it being able to be viewed in the round within the site; secondly, from the connection between the dwelling, the veranda and views to the harbour; and thirdly, from the connection between the house and the garden, in particular the parts of the garden with views to the harbour. It is her evidence that Bovington requires the north-eastern garden area and sufficient area adjacent the northern veranda to maintain these elements in its curtilage and to appreciate Bovington's heritage value. She concludes the proposed subdivision does not achieve this outcome.
• That the removal of Bovington's expanded curtilage by the subdivision will adversely impact the heritage significance of Bovington.
• The result of the subdivision is the severing of views of the Harbour and gardens from the heritage item by the creation of proposed Lot 2. She states: "Views to and from the villa and its garden need to be retained for it to be read in-the-round as the veranda, balconies and fenestration design are important to understanding its design significance as a fine example of marine villa design that relates to a garden setting as opposed to earlier forms of terrace-style housing in Sydney that were attached with no side setbacks. In addition, views from Bovington and its garden to Sydney Harbour need to be retained so that the understanding that it is a marine villa, with access to fresh breezes and sea air can be understood". (Exhibit 4)
• That Bovington's views, its relationship to Sydney Harbour, and its setting in an elevated location above the escarpment on a flat part of the land are important characteristics of its heritage importance. However, they are also important as common characteristics of other heritage listed properties such as "Hestock" and "Leura" which were designed by Vernon.

1. In conclusion, Ms Varley argues that the subdivision will detract from Bovington's nominated significance in the following ways:

• Aesthetic significance: as the primary southern and eastern facades will no longer be viewed from the properties garden;
• Historic significance: the understanding of the building as an example of a marine villa with a relationship to Sydney Harbour will be removed. (Exhibit 4)

1. Further Ms Varley concludes that the proposed development will also detract from the streetscape of Shellcove Road for three primary reasons: firstly, the subdivision proposed is of an uncharacteristic width which will introduce an uncharacteristic narrow dwelling; secondly, due to the proposed widening of the garage with subsequent loss of sandstone escarpment; and finally, due to the removal of the existing landscaped buffer and setbacks to Bovington (Exhibit 4).
2. In relation to any impact arising from the development on the CCA, Ms Varley concludes that: "(t)he proposal will detract from the aesthetic and historic significance of the conservation area in that it will result in [a] detracting impact on the last remaining Marine Villa within the Neutral Bay Land Company estate that has an adequate expanded curtilage to Sydney Harbour and that is largely intact without additions (although requiring maintenance)." (Exhibit 4)
3. In addition to the evidence of Ms Varley, Dr Hoskin's argues that:

• The subdivision will negatively impact the heritage significance of Bovington by adversely impacting the appreciation of the item from within its grounds.
• Further, that both the view from Bovington's ground floor veranda and from the upper storey French doors and balconies to the Harbour and the properties gardens will be impacted by a proposed future dwelling on proposed Lot 2. He argues that the dwellings relationship to these southern views contribute to Bovington's uniqueness as a 'marine villa'. (Exhibit 4)

Submissions

1. The legal representatives of the Applicant and Respondent prepared and filed written submissions in the proceedings. In determining the matters in dispute in the proceedings and re-exercising the function to determine the development application for the proposed development, I have read and considered these submissions. In my view, in these proceedings, it is unnecessary to summarise those submissions in completing these functions or providing adequate reasons for my decision: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115.

Findings

1. Following a review of the evidence of the experts, summarised in the preceding, and the heritage impact assessments prepared by the Applicant, I am satisfied the proposed subdivision will have a detrimental impact on the heritage significance of Bovington: cl 5.10(4) of LEP 2013.
2. Giving consideration to the nominated criteria against which Bovington has been assessed as having local heritage significance, I am satisfied that the subdivision will detrimentally impact the item's aesthetic significance [SHR criteria (c)] and its rarity [SHR criteria (f)]. Further, following evaluation of the likely impacts arising from the development proposed (subdivision), I am satisfied that the detrimental impact is sufficient to warrant the refusal of the development application: s 4.15(1)(b) of the EPA Act. My reasoning follows.
3. In considering the heritage evidence of Ms Varley and Mr Edgar, I accept and prefer the evidence of Ms Varley as summarised at [42]-[44]. In particular, I accept her evidence that the proposed subdivision will have a detrimental impact on the heritage item by severing its curtilage from its title, by the location of the proposed lot boundary within metre of the edge of the external fabric of Bovington and by impacting the relationship of Bovington with its garden setting and Harbour views.
4. As noted at [40], in my view, Mr Edgar's evidence and conclusions are influenced by two mitigation measures that do not form part of the Applicant's final development application: the intent to direct some funds realised from the subdivision to repair and conservation of Bovington; and the extent of the covenant proposed by the subdivision plan. These two factors affect the weight I have given to his evidence and conclusions.
5. Further, with the benefit of an inspection of the site I am not persuaded that Lot 2 will provide an allotment where a future development could be sited that would not detrimentally impact the setting or curtilage of Bovington. I accept Ms Varley's evidence, summarised at [42]-[44], in this regard. Bovington is a dwelling that, as identified in the City Plan 2005 report, is characterised by a restrained Queen Anne style with a timber-framed wrap around veranda at the ground floor, a base course of dressed stone, face brick and an upper floor of rough cast render with exposed brick dressings. The upper level incorporates bay windows and balconies to the south and east. Much of the dwelling is intact, allthough in a dilapidated state. (Exhibit A) These characteristics and the scale of the dwelling emphasise that an appropriate curtilage is one which allows the appreciation of its aesthetic significance. The proposed one metre separation between Bovington and the proposed lot boundary is, in my opinion, insufficient to allow an understanding of the item's aesthetic significance as it provides insufficient distance to achieve an angle of view to the primary facades.
6. I note that in his evidence Mr Edgar also accepts that the aesthetic theme of Bovington is of a villa to be viewed 'in the round' within its own curtilage (Exhibit 4).
7. In their evidence the heritage experts utilise the term 'curtilage' and make reference to guidelines prepared by Heritage NSW titled: 'Heritage Curtilages'. Included in this document is the following definition of the term "curtilage": "In these guidelines the term 'heritage curtilage' means the area of land (including land covered by water) surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance". (Exhibit 4)
8. Further, article 8 of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 (the Burra Charter) states: "Conservation requires the retention of an appropriate setting. This includes retention of the visual and sensory setting, as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate."
9. In my view, the appropriate setting or curtilage for Bovington is the current lot boundary of the subject site as this allows an appreciation of the aesthetic significance of Bovington, from within its garden setting. The result of the proposed subdivision is the severing of this connection, which, in my view, is a detrimental impact on the significance of Bovington.
10. I am not persuaded that the delineation of the proposed lot boundary for Lot 2, 1m from the edge of Bovington's veranda will maintain an appropriate setting for the item for the following reasons:

• The creation of a new lot will create an entitlement for a future owner to develop that lot for a use that is permissible in the R2 Low Density Residential zone.
• Proposed Lot 2 has a width of approximately 8m at its narrowest, as measured from Exhibit B. Given this, to achieve a useable building width, the likely setback of a new structure to the northern boundary would be some two metres. This conclusion is reinformed by the indicative plans which demonstrate a separation between the boundary and an indicate dwelling of 1.9m (Exhibit B). This would result in a setback of around 3m to the edge of the heritage item. The insertion of built form into the curtilage of Bovington at such a limited setback is, in my view, a detrimental impact to its aesthetic significance and the ability to view the item in the round. As demonstrated by the indicative plans, built form in this location is a likely future impact that arises from the grant of consent to the subdivision.

1. I accept Ms Varley's and Dr Hoskin's evidence that the subdivision, if consent is granted, will also affect the rarity significance of Bovington in that it is one of a group of dwellings within the Neutral Bay Land Company Estate. Further, I accept that the rarity significance arises from the maintenance of Bovington's garden setting, the views the Harbour achieved from the house and within the allotment of the item itself. Both of these attributes are detrimentally impacted by the proposed subdivision.
2. I note that clause 13.7 of DCP 2013 provides that changes to property boundaries will not be permitted where it will result in the reduction of a curtilage to a heritage item where it results in an adverse impact to the items' significance. Whilst s 4.15(3A)(b) of the EPA Act provides that a consent authority should be flexible in the application of such standards, in this case the objective of clause 13.7 of DCP 2013 to 'ensure the significance of heritage items are not reduced through reduced curtilages' is not met and a variation to the control is not warranted.
3. I accept that the grant of consent to subdivision would likely generate positive impacts. These broadly include the provision for increased density and capacity for further housing within the locality and arguably a higher economic use of the subject site. However, balanced against the detrimental impacts arising from the subdivision, identified in the preceding, I am satisfied that those detrimental impacts are sufficient to warrant the refusal of the development application: s 4.15(1)(b) of the EPA Act.

Should the requested variation to the minimum lot size standard be upheld?

1. A precondition to consent is also detailed in the Respondent's second contention: the satisfaction of the minimum lot size control, at cl 4.1(3) of LEP 2013. The minimum lot size provision is as follows: (1) The objectives of this clause are as follows - (a) to ensure that subdivision and associated development promotes the desired future character of the neighbourhood through consistent lot size, shape, orientation and housing density, (b) to maintain a mix of dwelling sizes and affordable accommodation, (c) to prevent fragmentation of land, which would prevent the achievement of the extent of development and nature of uses envisioned for particular locations, (d) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties, (e) to ensure that lot sizes allow buildings to be sited to protect natural or cultural features, including heritage items, and retain special features, such as trees and views. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause does not apply in relation to the subdivision of any land - (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 1989. (4A) For the purpose of calculating the size of a lot, the area of any access handle, access way or right of carriageway is excluded.
2. The minimum lot size for the subject site pursuant to the Lot Size Map is 450m². The lot sizes proposed under the development application are: Lot 1, containing Bovington: 630m² Lot 2, vacant: 405m² (Exhibit B)
3. The Applicant seeks a variation to the minimum lot size standard pursuant to cl 4.6 of LEP 2013 for Lot 2.
4. Clause 4.6 of LEP 2013 is a facultative provision. Clause 4.6(2) of LEP 2013 permits the grant of consent for development even though it breaches a development standard imposed by an environmental planning instrument, in this case LEP 2013, subject to the satisfaction of cl 4.6(3). Clause 4.6 states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

The variation request

1. Because the proposed development does not meet the minimum lot size standard, the application relies on a written request to vary the standard pursuant to cl 4.6 of LEP 2013. Such a request was prepared by Planning Ingenuity Pty Ltd, dated 18 March 2021 (the written request).
2. As detailed in Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [14], two opinions of satisfaction are required: The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).
3. The first state of satisfaction is that the Applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). The matters at subcl (3) are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters: cl 4.6(4)(a)(i) of LEP 2013.
4. The second state of satisfaction is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out: cl 4.6(4)(a)(ii) of LEP 2013.
5. Failure to meet any of these tests is sufficient to deprive the Court of the power to grant consent to the development application.

Is compliance with the standard unreasonable or unnecessary?

1. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe').
2. Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
3. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
4. The written request relies on Wehbe test 1, namely that objectives of the standard are achieved notwithstanding non‐compliance with the standard. The relevant objectives are extracted at [21].
5. In determining whether the objectives of the standard are achieved notwithstanding the non-compliance, and therefore compliance with the lot size standard is unreasonable or unnecessary, I am satisfied that "consistency" means: 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
6. Relevant to these proceedings, objective (e) of the Lot Size standard seeks "to ensure that lot sizes allow buildings to be sited to protect natural or cultural features, including heritage items, and retain special features, such as trees and views".
7. The written request argues this objective is met by the proposed development as follows: "Proposed Lot 1 provides a large allotment size (630m²) to enable the heritage dwelling to continue to be sited on a generous allotment with appropriate curtilage and retain adjoining landscaping. An indicative dwelling plan has been prepared (see Annexure 1) which demonstrates how Proposed Lot 2 could be developed in the future to accommodate a dwelling which complies with landscape, site coverage and setback requirements. The indicative plans shown vehicle access and parking provided at the front of the site (as is currently provided for the existing dwelling on Proposed Lot 2 [sic]) and private open space at the rear consistent with the character and lot layout of the adjoining and surrounding development. The setbacks permit the retention of large trees in the front and rear setbacks. In regards to the protection of heritage items, the applicant's heritage expert Ron Edgar, has prepared an Expert Witness Statement which reviews and responds to the Statement of Facts and Contentions (SOFAC). The Expert Statement assesses the proposed subdivision and its relationship with Bovington and contains the following relevant statement: 'The proposed subdivision would not have any material impact on the significance of the house, the interpretation of the form and character of the original subdivision for the Neutral Bay Land Company or to any external views of the property. Any future development that may occur on the subdivided lot would be management by agreement to limitations of placement, size, character and scale established through mediation or by the Court. A concept sketch was submitted with the application to demonstrate one potential development type and to invite a discussion that would lead to consensus.' Accordingly, it is considered that the size of Proposed Lot 2 will allow for future development which can provide for: (i) a suitably sized dwelling house, (ii) outdoor recreation and service space, (iii) vehicular access to and from the lot, (iv) retention of large trees and provision of new landscaping. (v) retention of views, and (v) parking …" (Exhibit B)
8. I note that in making an assessment of whether compliance with the lot size development standard is unreasonable or unnecessary, I have considered the arguments put in the written request in its totality.

Findings

1. A plain reading of objective (e) of the lot size standard is that it seeks to ensure that lot sizes are sufficient that a building can be sited in a manner that, in this case, protects the natural or cultural features of the heritage item. My reasoning and findings that the proposed development will have a detrimental impact on the heritage significance of Bovington and, in particular, will adversely impact the item's curtilage are relevant to the consideration of whether the objectives of the lot size standard are achieved notwithstanding the subdivision being non‐compliant with the minimum lot size set by LEP 2013. The findings and determinations contained in [48]-[57] with respect to the impact on the item's heritage significance are adopted, applied, and made, absent repetition.
2. I am not persuaded by the argument of the written request that the indicative plans demonstrate that a future building on Lot 2 can be sited in a manner 'to protect' the heritage item, in this case Bovington. At [56] I found that, due to the narrowness of the proposed lot, the siting of a future development is likely to be located within approximately 3 metres of the veranda of Bovington. I accept Ms Varley's evidence that the effect of the subdivision is to truncate the curtilage of the item and detrimentally impact its heritage significance.
3. For these reasons I am not satisfied that the written request adequately demonstrates that compliance with the lot size development standard is unreasonable or unnecessary in the circumstances of the case by establishing that the objectives of the control are achieved notwithstanding the lot size variation for Lot 2.
4. I find I cannot be satisfied that the written request adequately demonstrates the matters in cl 4.6(3)(a) of LEP 2013.

Are there sufficient environmental planning grounds to justify the variation?

1. In Initial Action at [24], Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environmental planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justification is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
2. The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the lot size development standard. Those grounds can be summarised as follows: 1. An absence of any material impacts arising from the non-compliance on the amenity of the conservation area, its character, the adjoining residents or the future residents of the proposed lot. 2. That proposed Lot 2 is capable of being developed for a dwelling in a manner that is compliant with the relevant development controls and is capable of mitigating any adverse impacts to adjoining neighbours or to the heritage item. 3. That any future dwelling on Lot 2 will be of a size that is proportionate to the lot size. 4. That the locality has no consistent pattern or size of subdivision and consistency of lot size is not a dominant characteristic of the locality or the CCA. 5. The proposed lot size is compatible with the mix of existing lot sizes within the surrounding area and does not introduce a lot size that cannot be found elsewhere. The written request includes an analysis of the lot sizes in proximity of the subject site and the CCA and concludes 'there is an existence of, and expectation for, smaller lots within the surrounding area' (Exhibit B). 6. That the subdivision is intentionally designed to allocate greater area to the Lot 1 to ensure that Bovington 'continues to sit within a generous allotment with appropriate boundary setbacks' (Exhibit B). 7. That, in total, the two lots exceed the minimum area required and that '(t)he proposal merely seeks to divide the available land in the most appropriate manner so as to respond positively to the existing dwelling and heritage aspects' (Exhibit B). 8. Despite the non-compliance, the objectives of the minimum lot size standard and LEP 2013 are met by the proposed development.
3. As noted at [81], the environmental planning grounds advanced in the written request must be sufficient in two ways. Following a review of the written request, I am not satisfied that there are sufficient environmental planning grounds to justify the contravention of the lot size standard sought by the proposed development as firstly they are not adequately directed to the variation and secondly, they are not sufficient.
4. Following a review of the written request, I find many of the grounds advanced in the written request promote the benefits that will be realised by the development (the subdivision) as a whole or from its future development as a potential dwelling. This finding infects grounds (1), (2), (3), (4), (5) and (8) summarised at [82]. In my view, the grounds proffered do not arise from the variation itself as opposed to arising as a result of the subdivision. For example, the written request argues that given the formulation of the planning controls, for example the floor space ratio standard, the resulting development (in the indicative plans a dwelling) on Lot 2 will be proportionate to the lot size. This conclusion, or benefit, does not arise from the variation or as a result of it. In fact, it would equally apply to a compliant lot.
5. Secondly, if the grounds advanced at [82] are accepted to be environmental planning grounds, I find they are not sufficient. I am not satisfied that the grounds advanced are either quantitatively and/or qualitatively sufficient. For example, Ground (6) argues that the subdivision allocates sufficient land area to Bovington to allow it to maintain a generous setting. Upholding this as an environmental planning ground sufficient to justify the variation is contrary to my findings at [48]-[57]. The same reasoning applies to Ground (7).
6. When looked at collectively, I find I cannot be satisfied that the environmental planning grounds advanced in the written request are sufficient grounds to justify the contravention of the development standard to allow me to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].

Conclusion

1. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied as required by cl 4.6(4) of LEP 2013 and consequently there is no power to grant consent to the development application and the application must fail.
2. Further, for the reasons stated the conclusion of my assessment of the application against s 4.15 of the EPA Act is that the application warrants refusal due to its detrimental impact on the item's heritage significance.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No DA 37/2019 for subdivision of Lot 1 DP 79142 at 66 Shellcove Road, Neutral Bay is refused. 3. The exhibits are returned with the exception of Exhibits A and B.

---

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: 11 June 2021