Mulcahy v North Sydney Council

APPLICANT Mrs M.L. Taylor, solicitor of Bartier Perry LEGAL REPRESENTATIVES:

RESPONDENT Ms K. Gerathy, solicitor of Home Wilkinson Lowry, Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an appeal against the refusal by North Sydney Council (council) of a Development Application (DA661-06) under the Environmental Planning and Assessment Act 1979 for the construction of a carport over an existing hard stand at 53 Kareela Road, Cremorne Point (the site). The site and its context 2 The site is located on the eastern side of Kareela Road. The house and other houses on this side of the street are set down below the street level and front Cremorne Point Reserve. A garage, entry area and lift and hard stand for parking were approved in February 2003 (DA566-02) and are constructed at street level.

3 There are a number of other garages and carports along the eastern side of Kareela Road. Extensive views over the houses to the water and the opposite side of the bay are available from the road between the spaces between the garages and carports.

4 The character of the western side of Kareela Road is different with the houses being on the high side of the street. The Proposal 5 The current application seeks to construct a carport over the existing hard stand used for parking and accessed off Kareela Road. The hardstand was approved under DA566/02, which originally sought approval for a double garage but was subsequently amended in response to council concerns. Council has previously refused earlier applications for garages on the site.

Planning controls 6 The site is zoned Residential G under North Sydney Local Environmental Plan 2001 (LEP 2001). It is within the Cremorne Point Conservation Area and is identified as a contributory item in Schedule 4 of LEP 2001.

7 Clause 49(1) of LEP 2001 relevantly includes the following conservation area objectives. (e) ensure that neutral items are retained, and (f) encourage the removal of uncharacteristic elements from conservation areas and their replacement with buildings or works that reinforce the character of the neighbourhood and heritage significance of the conservation area, and (g) discourage development that is similar to uncharacteristic elements. 8 Clause 49(2) provides matters for consideration in determining a development application in a conservation area including:

(b) whether the proposed development will reduce the uncharacteristic elements present in the conservation area. 9 Section 8.8 of North Sydney Development Control Plan 2002 (DCP 2002) provides a structure for analysing the heritage significance and special characteristics of a conservation area. Buildings in conservation areas are divided into three categories: - contributory items which the controls aim to retain their significant form; - neutral items which should be retained but uncharacteristic elements may be removed; - uncharacteristic elements which are defined in DCP 2002 as:

Uncharacteristic elements exhibit characteristics which detract from the character and heritage significance of a conservation area. Some uncharacteristic elements may be demolished without a negative impact on the significance of the conservation area.

Uncharacteristic elements will not be considered as a precedent for new work when assessing the merit of an application for development in a conservation area. Uncharacteristic elements are identified in Schedule 5 of NSLEP 2001. 10 Other uncharacteristic features include: - horizontal rather than vertical building form, - continuous garaging along street or laneway frontage, - carports, garages and car spaces in the front yard. 11 Section 7.4 of DCP 2002 controls the location of car parking. It relevantly provides:

(i) Do not locate garages, carports or other structures for the parking of cars on the front boundary or between the boundary and the primary façade of the front building

(ii) a single car parking space may be located in the front yard of a residential property only if: o no other on-site parking exists or is possible…. o The car stand is uncovered…. 12 Section 8.8 (r) repeats this clause for conservation areas. It also states that:

Garages, carports and car spaces can have a dramatic impact on the setting of a heritage item or the streetscape of a conservation area. Streets full of car parking structures remove gardens and obstruct the relationship between houses and street. This relationship is of critical importance when determining the heritage significance of a building or area. 13 Section 8.4 of DCP 2002 deals with views and provides in relation to views from public places:

a Building forms and setbacks that permit the continuation of views from public roads and open spaces….

iii design and locate garages and walls to avoid blocking public views and dominating the road. Evidence and issues 14 The hearing was conducted on site and the Court heard expert evidence from Mr M Neustein, architect and planner and Mr S Davies, heritage consultant for the applicant. For the council, Mr A Mullin, planner and Ms L Varley, heritage planner, provided evidence. The opinions of these experts are summarised in their joint statement.

15 The court also heard evidence from Professor Stewart of 51 Kareela Road. His main concern related to the increase in overshadowing and bulk of the proposal. Further, he considered that the current proposal was inconsistent with the previous approval, which had been the end result of a process of negotiation and compromise on his part.

16 Council did not raise overshadowing as an issue and considered that the proposal met the requirements of DCP 2002. 17 The key difference between the parties is that Mrs Taylor, for the applicant, submits that carports and garages are characteristic of the street and that there are a number in close vicinity to the site. The proposal is therefore consistent with this character and is designed in a manner to minimise any adverse impact on the street or adjoining properties. In particular, as the carport is open, there will be negligible impact on views. 18 Mrs Taylor further submits that the proposal is required to prevent leaves from the council tree dropping on the applicant's vehicle and to provide shade. The proposal better achieves the objectives for the zone and for residential development by improving the amenity for the occupants of the dwelling. While the applicant accepted one garage and a hardstand stand for parking in the previous development consent, this no longer meets their needs.

19 Ms Gerathy, for the council, submits that while there are carports and garages in the street the aim and provisions of LEP 2001 and DCP 2002 is not to emulate this character. On the contrary, DCP 2002 recognises that "garages, carports and car spaces have a dramatic impact" and are identified as uncharacteristic features which can be removed and are not what is sought by the planning controls as being the desired future character of the area.

20 Ms Gerathy further submits that DCP 2002 recognises the need for car parking but limits this to one space per dwelling if in front of the building. The proposal already has a garage and hard stand area and a further structure is not justified or consistent with the planning controls, particularly as it will impact on the views from the street. Ms Gerathy also referred to a survey undertaken by Ms Varley which indicated that all contributory items in the vicinity of the site had none or a maximum of one garage/car park structure. This, in her submission, supports the argument that a greater number is excessive.

Findings 21 I accept Ms Gerathy's submission. To adopt the submissions of Mrs Taylor would not give adequate weight to DCP 2002. The character of the eastern side of Kareela Road, which contributes to the significance of the conservation area, is the views it provides over the bay to the other side and over the roofs of houses. These views are slot views between structures that exist along the street. Garages and carports impact on these views and on the character of the street. Council controls seek to limit garaging to single elements that minimise walls of garages and maintain the views from the street.

22 Mr Neustein and Mr Davies' opinion is that the carport is minimal being only a roof and two supporting columns that have a negligible impact on views and built form along the street. However, the additional elements need to be considered in relation to the existing garage, entry and lift area and the hard stand. These combined elements already impose a physical presence on the streetscape. The garage and the entry already block views and the hard stand area provides no landscaping or soft relief to the street. These structures already occupy a considerable part of the frontage of the site. The additional structure will increase the built form and add an uncharacteristic feature, which is not justified under the planning controls.

23 The view loss and additional structure in isolation would not be significant, particularly if this were to be the only parking provided on site, however in combination with the existing structures, the cumulative impact is unacceptable considering the requirements of DCP 2002 in relation to garaging and that there is already parking provided on site. For these reasons the application must fail.

Orders 24 The Orders of the Court are: 1. The appeal is dismissed.

2. Development Application (DA661/06) to construct a carport over the existing open hard stand at 53 Kareela Road, Cremorne is refused.

              Annelise Tuor
              Commissioner of the Court

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.