Osborne v Woollahra Municipal Council

Arboricultural Issues 6I turn first to the arboricultural issues. Immediately outside the property and slightly to the north of its northern boundary is located a London Plane Tree in the road reserve within the footpath portion of it. This tree is a significant tree in the streetscape and its importance is not to be understated. It makes a major contribution to the ambience of the public space in the area in conjunction with a number of other significant street trees of similar type. 7The Council's contentions in the proceedings included the contention that inadequate information has been provided to ensure that the Council, and in this instance me on appeal, could be satisfied that the impacts on the tree were insignificant and would have no long term impact on the health and vigour of the tree. In that regard the Council relied principally on cl 2(2)(f) of the Woollahra Local Environmental Plan 1994 which relates to landscape protection (although some elements of it are not relevant in that, for example, a London Plane Tree does not constitute native flora - it being an exotic). 8I have the advantage during the course of the proceedings of written and oral evidence from two arborists, Mr Draper on behalf of the applicants and Mr Gray on behalf the Council. I had a series of joint reports from them, the first of them being dated 31 October. That report was based on root mapping undertaken of the London Plane Tree using a technique known as ground penetrating radar. Mr Gray expressed concerns about the accuracy of ground penetrating radar in being able to identify and accurately locate the size and position of roots of trees of any significance. That is a concern that I share from a number of matters that I have dealt with under the Trees (Disputes Between Neighbours) Act 2006. 9As a consequence of Mr Gray's concerns and matters that were discussed during the course of the onsite conciliation conference, there were a series of further investigations undertaken with respect to the tree. This resulted in a number of further joint arboricultural reports which together became a bundle of such reports as exhibit E. These dealt with a series of further investigations of the root system of the tree - including several hand excavation root mapping exercises - leading to a final joint conclusion that there was no potential impact on any major element of the structural root complex of the tree, that being a matter necessitating investigation because in one of the earlier elements of hand excavation a major structural root was discovered. 10However, the final joint arboricultural report dated 4 December noted as follows: Additional root mapping was undertaken on 4 December 2013 using open trenching to follow the extent of one structural root previously located (appendix 2) growing under the existing travertine tiles (50 millimetres deep) and concrete pavement beneath (70 millimetres deep). Additional works excavated the concrete and tile 250 millimetres further south exposing a root stub previously pruned at 200 millimetres from the junction of the root exposed in trench 1 adjacent to a 100 millimetre diameter PVC pipe with the root likely cut to install the pipe. The exact time of the root pruning is unknown but small lateral roots have emanated laterally, the pruning appears to be more than five years old from the extent of decay and regrowth. The impact of the root pruning is considered negligible where no evidence of an adverse response such as crown dieback was present and likely due to the root continuing to grow and the distance of the pruning from the trunk on such a robust tree species. 11Mr Draper observed in this joint report: It is proposed to prune the 200 millimetre root stub back to the root junction which will have a negligible impact on the tree and will remove the remaining structural root section from the envelope of the parking pad which will allow the required depths of excavation to be realised and the tree to be protected with root regeneration expected from nearing the pruning wound as has occurred previously. 12Mr Gray's recorded response to these comments of Mr Draper's are as follows: I agree that this root has already been severed. There would be negligible impact to the tree by the root again being severed again at the location proposed. I believe that the root was most likely severed previously by a plumber installing the adjacent PVC drainage pipe. I believe that little care would have been taken in the process of cutting the root at that time. If the root is cut again it should be undertaken correctly by an arborist. 13As a consequence of that agreement, I am satisfied that the Council's contention number 5 is resolved. There was a final joint expert conclave all in of all six experts involved in the proceedings on 19 December and no further arboricultural issues arose from that.

Parking Issues 14I now turn to the question of parking. There was a single parking contention proposed in the Statements of Facts and Contentions, which was exhibit 1 in the proceedings. That contention related to the technical requirements of the parking space. Second and third matters relating to the parking space in fact fall correctly within consideration of the heritage issues and I will return to those later in this decision. The particular technical matter raised with respect to the proposed parking space was that it does not satisfy s 5.1 of the Council's Parking Development Control Plan as it does not meet the minimum bay width and length requirements under Australian Standard 2890.1. 15I observe initially that this application, because of its filing with the Council early in 2013, does not attract the additional flexibility provisions with respect to Development Control Plans that are embodied in s 79C(3)(a) of the Environmental Planning and Assessment Act 1979. 16As a consequence, my consideration of the matters contained in the Development Control Plan is to be within the framework provided by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373. 17From what was said in Zhang, by the then Chief Justice at para 375, three propositions emerge. First, although I have a wide ranging discretion, my discretion is not at large and is not unfettered. Second, the provisions of the DCP are to be considered as a fundamental element in or a focal point to my decision making processes, particularly if there are no issues on this topic relating to compliance with the Local Environmental Plan. Finally, that a provision in the DCP directly pertinent to the application is entitled to significant weight but is not in itself determinative. 18On the other hand, I am permitted, after considering the matters that are raised by the Development Control Plan and undertaking a general assessment of the proposal pursuant to s 79C of the Act, to set aside, in the particular circumstances of the case, the provisions of the Development Control Plan if I consider that there are appropriate reasons to do so and I articulate those in my decision. 19There are, despite the technical nature of the contention, in fact four matters relating to parking that require my consideration:

• First is the non-compliance with the matters contained in the Australian Standard;
• Second is that, as a result of that, the size of the parking space that is proposed does not permit the parking of a B85th percentile vehicle, that being the standard against which these matters are measured by the Council;
• Third, that, for some of the vehicles that were potentially able to utilise the space on a physical dimension basis, there was a risk of scraping as they entered the parking space or exited from it; and
• Fourth, although not articulated in the contentions but arising from an observation made by me during the course of the site inspection, the impact, if any, of an unacceptable nature on-street parking. 20During the course of consideration of this matter, I initially had the assistance onsite of Mr Hollyoak giving expert evidence on behalf of the applicant and on one subsequent in court occasion, and from Mr Wise on behalf of the Council. Mr Hollyoak was subsequently replaced by Mr Rudd on behalf of the applicant with Mr Wise continuing to give evidence on behalf of the Council. 21There were a number of areas of non-compliance, technically, with the provisions of the Development Control Plan. These were noted in the Statement of Facts and Contentions as being that the proposed parking space was forward of the building line - contrary to the requirements of the Development Control Plan that it be behind the front building line - and, second, as previously observed, that the dimensions of the space did not comply with the minimum dimensions for a parking space arising from Australian Standard 2890.1. 22I observe, at this time, that in the Parking Development Control Plan cl 1.8, consideration of development applications, provides in 1.8(b) seven dot points that are to be considered by the consent authority and taken into account when assessing an application for a parking space. The sixth and seventh of them are relevant in these proceedings. The first of these is whether the development warrants special consideration because it is proposed for or relates to a heritage item. I observe that the property that is the subject of this appeal is such a heritage item. Second, the characteristics of the streetscape and the site, particularly the subdivision and topography, street design and, with street tree planting, onstreet parking or loading spaces and any existing access arrangements. 23Critically for my consideration of this matter (and my conclusion that the dimensions of the parking space are acceptable) are the concluding two paragraphs of cl 1.8 that make provision for Council or, in this case the Court as the decision maker, to allow a non-compliant space to be agreed to. Those paragraphs read as follows: Council may allow non-compliance with the requirements of this plan in exceptional circumstances. The applicant will be required to demonstrate to the satisfaction of council the exceptional circumstances relating to a particular development application which would warrant noncompliance with requirements of this plan. In its consideration of any non-compliance, council will have regard to the objectives of this plan and the specific nature of the exceptional circumstances as they relate to the parking requirement. 24There are a number of provisions contained in the Development Control Plan of a more specific nature that also inform my consideration of this matter. 25Clause 2.2 of the plan's provisions requires that parking provision must be consistent with the locality or precinct's desired future character, objectives and desired future character performance criteria for the location of parking. That calls up matters for consideration which will be dealt with in my assessment of the heritage impact on the site. 26Second, 2.2(3) of the Development Control Plan requires that all parking structures are to be provided behind the building line. I also observe that 2.2(4) does postulate the possibility of tandem parking spaces but in that makes it clear that such tandem parking spaces themselves are intended to be behind the building line. 27In this context, I observe that, at 10 Victoria Street, the Council has approved off-street parking with two tandem parking spaces being available in total on that site, only one of which is behind the building line - showing that, in appropriate circumstances, the Council has, at least in the past, permitted some waiver or flexibility of that provision. 28The Development Control Plan sets out in cl 1.4 its aims and objectives. It sets out those objectives and the means for achieving them. I do not propose at this point to read them onto the record but will return to them in the context of the Council's assessment report on the s 82A review of the Council's original refusal of this development application. 29Part 5 of the Development Control Plan sets out parking area standards. The relevant provision in these circumstances is in 5.1 that requires that the minimum bay width and length dimensions shall comply with Australian Standard 2890.1. The parties accept that the proposal does not and cannot comply with that standard. 30Following the refusal of the development application, on 11 February 2013, an application was made pursuant to s 82A of the Environmental Planning and Assessment Act 1979 for a review of that determination. The review was undertaken and resulted in a further refusal. 31A number of matters however are relevant on the question of parking standards arising out of the s 82A review. On p 14 of the assessment report for the review, the assessing officer undertaking the review deals with the aims and objectives of the Parking Development Control Plan. He sets out the four objectives and then details with a response to them. It is appropriate at this time to record each of those objectives from s 1.4 of the DCP and the assessing officer's response. Objective A: To ensure that development generating vehicular traffic makes adequate provision off the public street for car parking and servicing needs of its occupants and users including visitors, employees and deliveries. 32The assessing officer observed that this proposal is seen to be supportive of the subjective and I concur in that assessment. 33The second objective is "To ensure the safe and efficient movement of vehicles within entering and leaving properties." 34The assessing officer observed no objection is raised on the grounds of safe and efficient manoeuvrability of vehicles to and from the site. I observe that, during the course of the site inspection and my consideration of the subsequent plans that have been provided as the proposed final basis in this appeal, I am satisfied that there is no contravention of that objective. 35The third objective is "To minimise the environmental effects, particularly visual impact of parked vehicles on the amenity of the municipality." 36The assessing officer undertaking the review observed that the intent of the objective is for uncovered car parking spaces to be adequately and appropriately screened and landscaped. In this instance, the vehicle will be readily visible within the streetscape and, irrespective of the fact that there is no permanent parking structure, the existence of a vehicle screening the visibility of the front façade of the heritage listed dwelling is undesirable. That gives rise, in my assessment, to consideration of the heritage aspect of the application rather than of any technical compliance matter. 37The final objection of this element of the Development Control Plan's objectives is "To ensure that access points to car parking areas are situated to minimise disruption of vehicle movements on the public road system." 38The assessing officer on the review commented, "No objection is raised on the grounds of any impact upon the existing traffic movement of vehicles within Victoria Avenue." From my observation during the course of the site inspection during the conciliation process, I concur in this aspect of the assessing officer's comments. 39The assessing officer then undertook a number of considerations of factors outlined in s 1.8(b) to which I have earlier adverted of the Parking Development Control Plan. It is only necessary in the context of this appeal to note one element of his comments relating specifically to parking - as opposed to other comments that are either that there is no impact or that the impact is of a heritage nature. These appear on p 15 of the s 82A review report where he notes, dealing with the topic of the availability of public parking near the development, and comments: Parking in the area is close to saturation as a result of a resident parking scheme and pressure imposed by commercial and retail operations in Queen Street. This is justification for offstreet parking but not in the manner proposed. 40I observe, at this point, that the aspects of this that are of importance are that there is a broad justification for offstreet parking for the reasons described by the assessing officer, but as a second comment his observation, that the parking is not appropriate in the manner proposed, is a curious one given that there is no other manner by which parking on this site could be provided. 41To the extent that that comment might imply some other scheme was appropriate to be considered, I am satisfied that, having inspected the site, there is simply no other general nature of parking that is capable of being provided offstreet for this site and, for reasons that will arise in my consideration of the heritage matters, there is no specific adjustment to the detail of the proposal (as finalised) that would also permit modification or adjustment to that which is proposed. 42There were a number of reasons advanced by Mr Staunton for the applicants or by the applicants themselves for the need for such a parking space. I note now that, consistent with the decision in Davies v Penrith City Council [2013] NSWLEC 1141, I set aside entirely any idiosyncratic anthropocentric matters that are raised by the applicants with respect to their own personal circumstances. 43However, I do have regard to the desire for the provision of appropriate parking onsite given the difficulty in obtaining onstreet parking in the surrounding immediate vicinity. In this regard, I have evidence from Ms Osborne whose Statement of Evidence - to the extent that it was read - is contained in exhibit K, where at para 1.2 Ms Osborne says: When in 1979 we first moved in parking near our home was not an issue. The nature of Woollahra has changed to a busy shopping and business precinct with a successful hotel, the Centennial, at one end of our street. We are not adverse to change but this all adds up to the great difficulty we have every day and often several times a day to find parking near our home. 44During the course of the conciliation conference I heard submissions from three residents in the vicinity who also described the difficulties that they experience in obtaining on-street parking. One of them, a resident of 10 Victoria Street, described the reasons why he had sought approval from the Council for the tandem parking, one in front of the building line, that he had had approved by the Council. 45I note that, at this time, although those statements in support of Mr and Ms Osborne's application were made during the conciliation process on site, they were subsequently (by agreement) incorporated in the evidence in the proceedings and notes of the thus transmuted submissions to evidence became an exhibit in the proceedings. 46I am therefore satisfied on the basis of the demonstrated conflict between residents and visitors to the area in obtaining parking that there is a broadly appropriate basis pursuant to the exceptional circumstances provisions of cl 1.8 of the Development Control Plan to accept the need, subject to the assessment of all other relevant matters, for the provision of offstreet parking at 12 Victoria Avenue. 47I now turn to the more technical matters relating to the size of the parking space, particularly the question of it being only able to be accessed by vehicles that are of or slightly below a B35 sized vehicle rather than a B85 vehicle. 48Mr Wise, in a joint report with Mr Hollyoak, gave evidence that the Council assesses development proposals for parking spaces based on the B85th percentile vehicles. That is a standard that permits 85% of ordinary vehicles in the Australian motor vehicle fleet to access such a parking space. The minimum envelope for such a parking space is 5.4 metres in length and 3 metres wide. 49It is not possible, as previously observed, for such a space to be provided on the site without significant damage to and intrusion into the envelope of the heritage building itself. Mr Wise in the final analysis (subject to my considering that a parking space of the dimensions that were proposed was one that would function satisfactorily for such vehicles) remained of the view that it was not appropriate under all the circumstances to approve such a small sized space. 50Mr Hollyoak, and subsequently Mr Rudd, gave evidence concerning the number of vehicles and the types of vehicles that would be able to access a parking space of the dimensions provided for in the application. In the joint expert conclave on 19 December, the experts, that is Mr Rudd and Mr Wise, agreed that a large proportion of B35 vehicles could be accommodated in the space (that is of the order of 80 to 90% of the B35 vehicle fleet) and that there were in New South Wales in 2013 some 350,000 vehicle of those dimensions - meaning that 300,000 vehicles plus of the B35 fleet could be accommodated. That final joint expert report also provides satisfactory indication that the technical construction specifications of the proposed parking space are not an issue. 51The proposal report, I note, also proposed that the applicants should relinquish any resident parking permit that they currently hold and Mr Staunton agreed that such a condition should be incorporated in the conditions of consent. The question of whether or not such permits should be issued in the future is a matter for the Council's permit policy and not for my consideration. 52Mr Wise also pressed the question of whether there would be a removal of two of the five onstreet parking spaces or one of four parking spaces, that being a matter to which I will turn shortly. It was Mr Rudd's evidence that of the top 20 vehicles in the New South Wales vehicle fleet, seven of them were B35 vehicles and all were able to access the site. I am satisfied that, given the constraints on the potential for the creation of a parking space and the potential fleet of vehicles capable of accessing it, it is appropriate to permit the non-compliance with the Development Control Plan's requirements for meeting the standard in the Australian Standard dimensions for a parking space because the alternatives are either to refuse onsite parking, which, on a parking basis, I consider to be unreasonable, or to require its intrusion into the living room of the dwelling which would, I think, reasonably be regarded as an environmental and heritage obscenity to contemplate. 53I turn now to the question of scraping, which was raised by Mr Wise. Mr Wise was concerned that the necessary design for entrance to or exit from the parking space would result in some vehicles in the B35 fleet that might otherwise be considered likely to use the space (such as a small Mazda) would not be able to enter the site without scraping as their clearance did not meet the 120 millimetres minimum ground clearance specified in the relevant B35 vehicle template. I accept that vehicles such as the Mazda may not meet that 120 millimetre clearance for the template but fail to satisfy by at most 1 or 2 millimetres and that Mr Rudd's evidence that such vehicles, which might not be non-compliant in a strict sense, will still not scrape when they enter the site. I am therefore satisfied that it is not reasonable to reject the application on that basis. 54I note that, in a joint report that was prepared by Mr Rudd and Mr Wise during the course of the proceedings on 24 December, which became exhibit 7, there was an agreed position that: Some vehicles (approximately 10 to 20%) which comply with the B35 vehicle specification for length and width have a ground clearance of less than the specified 120 millimetres. Of these vehicles Mr Rudd has provided actual vehicle types for some popular vehicles within the B35, e.g. Mazda 2, Nissan Micra and Mercedes A Class. It is agreed that these vehicles can access the proposed parking space. 55I am therefore satisfied that it is reasonable not to insist on strict compliance with the totality of the B35 vehicle template. I am satisfied as a consequence that there is an adequate range of sufficiently popular vehicles within the B35 parking space to make the parking space appropriately utilisable. 56Finally on this topic, I turn to the question of street parking. This was dealt with during the s 82A review on p 16 of the assessing officer's report. After dealing with a number of matters concerning driveways and access points, the officer noted, at (f), the following matter: Footpath crossings will not be permitted where one offstreet parking space will result in the loss of two onstreet parking spaces or the provision of offstreet parking will result in the loss of a significant tree. 57The assessing officer's comments on this topic were as follows: There is presently a length of 25 metres in front of 10, 12 and 14 Victoria Avenue bounded by James Street in the north and the driveway of 10 Victoria Avenue in the south. This equates to four times 5.4 metres onstreet car parking spaces with 3.4 metre length left over. The proposed location of the driveway will result in the segmentation of the kerb into two portions of 9.6 metres and 12.15 metres in length. The combined length of the two portions of kerb equals 21.75 metres or four times 5.4 onstreet parking spaces. As such, whilst the proposal involves the loss of one onstreet car parking space for the provision of one offstreet car space, the driveway could also be accommodated without any reduction in on-street parking. This exhibits poor design and when coupled with the issues of non-compliant offstreet car space and poor streetscape and heritage outcomes, it is not considered to be in the public interest and is unacceptable. 58However, with respect to the implied proposition that the driveway should be moved to provide for better on-street parking - even though there is only, in my assessment, the loss of one on-street parking space - there are compelling reasons why this should not be permitted. 59The first, with respect to the possible movement to the north, is that the arborists were of the agreed position that it was not appropriate to move the location of the proposed driveway to the north because of the potential impact on a significant structural root of the London Plane Tree. 60Second, the heritage experts were of the agreed position that it was not appropriate, for heritage reasons, to move the driveway to the south. Therefore, I am satisfied that despite the assessing officer's reservations set out in s 82A review, the location that is proposed for the driveway is the only rationally possible location for it and that this does not warrant refusal of the application. 61Although Mr Wise raised, late in the proceedings after I had asked a question about it, the issue of whether I could be satisfied that there is no loss of more than one parking space on the street, I am satisfied that on the basis of the information set out in the assessing officer's reports that there will be at least four parking spaces available on the street, and consistent with the discussion that took place onsite about the potential for parking of smaller vehicles, there may be, from time to time, five vehicles parked in the available spaces - there thus being, in fact, the creation of an additional parking space, that being one off-street space in addition to potentially five on-street spaces. 62This is, in my view, entirely consistent with cl 2(2)(d)(iv) of the Woollahra Local Environmental Plan 1995 which is to improve the provision of car parking and reduce conflict between resident and visitor demands for car parking spaces in residential areas. There are therefore no parking based reasons to refuse the application.

Heritage Issues 63I now turn to the question of heritage impacts. The Council raised three contentions concerning heritage and the application. Although they were pleaded as three separate items, in effect they conflate to the acceptability of having a car parked in front of the existing heritage dwelling and, second, whether it is appropriate to permit piercing of the existing cast iron palisade fencing with a sandstone plinth that is erected along the front portion of the dwelling's boundary. 64The Local Environmental Plan lists in the schedule of heritage items 12 Victoria Avenue, Woollahra as a heritage item with the description being "House, front fencing". 65I interpose, here, that the original discussion that took place during the course of the conciliation conference seemed to me to be premised on the basis that the Council was saying that the house was heritage listed and that, quite separately for consideration of such matters, the fence was heritage listed. I am satisfied that a proper consideration of the listing documents makes it clear that the fence is not a separately listed item. If it were, the potential consequences for this application I consider would likely be different. However, it is clear to me from the heritage listing document that was tendered and became exhibit M, that the listing of the "House, front fencing" should in fact be regarded as a composite or agglomerated listing. 66Exhibit M sets out a number of matters. It is appropriate for the purposes of this decision, before turning to the controls that are applicable, to incorporate the physical description set out in the listing. It is in the following terms: A two storey in terrace in the federation filigree style, rendered masonry parapet with classical detail, stucco motif to central pediment, walls are rendered masonry limed to imitate stonework. A two storey verandah to the front wraps around the northern side. The verandah features cast iron columns, lace balustrade freeze (the roof is bull nosed with corrugated iron cladding exposed underneath). Timber floorboards at first floor level are painted underneath. Modern tiled porch at ground level. There is a creeper growing up the front of the verandah. Windows are generally timber framed, double hung, are full height and have full arched heads. There is an arched stucco label mould to all openings and similar string courser at impost level to both ground and first floor level. The main entrance at ground level has a solid timber door and stained glass top and side lights. A brass plaque beside the door has the name "Huntington". Three steps up to the door have marble treads and decorative tile risers. There is a tiled courtyard to the front with border plantings. A double cast iron palisade fence to the street has a curved rendered masonry base. Cast iron gate posts are stamped with "G Fletcher & Sons, Oxford Street, Waverley. Style: Federation filigree external materials, rendered masonry walls limed to imitate stonework, rendered stucco label moulds and string coursers generally full height timber framed windows will full arched heads. Double point cast iron palisade fence and gate posts to street. Internal materials unseen. 67It is clear to me from that description that, although the palisade fence is an integral part of the heritage elements of that which is located at 12 Victoria Avenue, there is no conceivable way that I could conclude that the iron palisade fence itself is separately listed as a heritage item, and that the import of that which I am asked to consider - that is a piercing of the sandstone plinth and removal of part of the cast iron palisade fence - is a potentially significant interference with or modification of a single heritage item. 68It is in that context that I turn to the relevant elements of the Woollahra Local Environmental Plan. These are contained in cl 2(2)(g) which requires me to consider the relevant heritage matters and to ensure that any new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas. I interpolate that had the fence been a separate item, that element of the Local Environmental Plan might well have created an insuperable obstacle to the application. Had the way the matter was raised during the course of the site inspection prove to be correct, it would be unlikely that the appeal could be upheld. However my consideration of the listing in exhibit M makes it clear that that is not the case. 69I had the advantage during the course of the proceedings to hear from Mr Robert Moore, a heritage expert on behalf of the applicant, and from Ms Parkins, Heritage Officer employed by the Council. Ms Parkins' initial statement of evidence, which was exhibit 4 in the proceedings, succinctly set out her concerns relating to the broad heritage item - set out at paras 3.4 to 3.6 of her report - in the following terms: 3.3 The proposed car space situated in front of the subject building will negatively impact on the setting of the heritage item and compromise its contribution to the character of the streetscape and heritage conservation area. 3.4 The setting of the heritage item is important in an area free from obstructions that allows views of the significant building. Locating a car in front of the subject building will obstruct views to the significant front façade and subsequently detract from the building's contribution to the heritage conservation area. 3.5 In this situation the curtilage of the property is the lot boundary which means that any development within this boundary has the potential to impact on the significance of the heritage item. The proposal to locate a car within this zone is not appropriate and will detract from the significance of the heritage item and its contribution to the conservation area. 3.6 The front fence has been described in the heritage inventory sheets as directly contributing to the significance of the heritage item. The proposal to breach the front fence in order to accommodate a car in front of the significant building is not appropriate, regardless of how sympathetically the alteration is designed. 70There are a number of relevant matters contained elsewhere in the Local Environmental Plan that require my consideration. The first is contained in cl 8 where at 8(4) and (5) I am obliged to have regard to not only the provisions of the development control table and the zone objectives, but to special provisions and heritage provisions in pts 3 and 4 of the plan, and I am to be satisfied that the carrying out of the development is consistent with such objectives of the plan as are set out in the development control table. 71The land, as I have previously observed, is zoned 2A in the Residential A zone. The objectives of the zone are set out on p 6 of the land use table and there are four of them. The relevant one, which is objective (b), is to allow certain nonresidential development of low intensity compatible with the residential character and amenity of the locality, that being the insertion of a parking space into the residential development on the site. 72I am satisfied that, for the reasons I have dealt with earlier of a technical nature, that object of the zone is not breached and that the proposal is consistent with it and for reasons that I do not need to annunciate, the proposal is consistent with objectives (a), (c) and (d), or, at least to the extent that objective (c) is involved, it is not inconsistent as it is that objective is irrelevant. However I have to turn to pt 4, the heritage provisions of the LEP. The relevant matters are contained in cll 26 and 28 of the LEP, both of which require that the Council, or in this case the Court standing in the shoes of the Council, shall not grant consent to the demolition or alteration of a heritage item unless I have taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item or of the heritage conservation area. 73There is an element also specifically arising from the Woollahra Heritage Conservation Area Development Control Plan in 3.2(6) original fences, gates and retaining wall, which has as an objective, the first of its objectives, "To retain and conserve original fences, gates and retaining walls to significant items" and contains as a control, C3, "Breaching an original sandstone or brick wall or fence to incorporate an opening for parking is not permitted," and C1, "That the original forms, finishes, details et cetera are to be retained in place and are not to be altered except to allow for maintenance or conservation." I observe that it is at least arguable that the original sandstone plinth of the present palisade fence does not fall within C3 but it is appropriate to be dealt with on that basis as I am satisfied that the breaching should be permitted. 74I note that control C4 provides that "Aluminium versions of iron palisade fences are not permitted." There are two observations to make. The first is with respect to the use of the words "is not permitted" in control C3 or C4. Although that is an expression that is put in the pejoratively absolute, it is clear from the decision of the Court of Appeal in Zhang, to which I have earlier adverted, that although it is prescriptive and absolute, I am not bound by that proscription. The second observation I make is with respect to "Aluminium versions of iron palisade fences", that the version of the gate that is proposed to be used to create the car parking space is to be, as agreed by Mr Staunton on behalf of the applicants, of steel tubes and that the spearheads at the top are not to be permitted to be aluminium. They are to be of cast iron. 75Mr Moore's design for the fence as it has subsequently evolved, and as I am satisfied, from material that was attached to the final joint experts conclave report of 19 December, is capable of being constructed, is entirely sympathetic to the existing palisade fence. When the gates are closed, except with the absence of the sandstone plinth as a consequence of its breach for the permitting of access of a vehicle, there will be an imperceptible difference between that element and the element of the existing fence that is to be retained. 76I am satisfied from the inspection that was undertaken during the course of the conciliation process that if that aperture is permitted and a B35 vehicle is parked in front of the dwelling, there will be an element of opening up of the view of the dwelling on an oblique basis when pedestrian transiting north to south or south to north as a consequence of the removal of the hedging from behind the fence, and that the presence of the vehicle will not significantly detract from the appreciation of the heritage item itself. If the vehicle is absent and the gates are closed then there will, in fact, be a greater ability to appreciate the heritage values of the heritage item. 77It is appropriate, at this point, to turn to the recommended management strategies that are contained as part of the heritage listing: The heritage report required prior to any proposals for new work if the facades of the building have remained relatively intact. There should be no proposals allowed to alter the external envelope or materials. All proposals for new work should continue to consider the retention of all original or early fabric and detail in both externally and internally. There should be no painting of stonework or materials which did not originally have a paint finish. Window and door opening should not be enlarged or filled in and the form and massing of the building should not be compromised by alteration to the roofline. 78The management strategy makes no observation about the fence and to the extent that I should import any consideration of the fence it is essentially that the visual appearance of the fence should not be altered significantly in any discernable fashion by any works that might be proposed to it. I am satisfied that that is the outcome that will follow from the sympathetic design that Mr Moore has produced and which the exhibit demonstrates is capable of being developed. As I indicated on 24 December, it is a matter of very fine balance but a balance that falls in favour of just permitting the approval of the application. 79Therefore, for the purpose of cll 26 and 28 of the Local Environmental Plan, the item itself being a heritage item and being located in the West Woollahra Heritage Conservation Area, I have considered the extent to which the carrying out of the proposed development would affect the heritage significance of the item itself or of the conservation area, and I am satisfied that that is negligible and acceptable. 80I observe, also, that the standard that I am obliged to address in this matter is the standard of acceptability and not design perfection. 81I do, however, observe that I am satisfied that the standard of design that has finally evolved from the work that Mr Moore - who I should interpose is of no relation to me - is of a very high standard and had it not been of that nature would not have resulted in an approval for the proposal.

The Public Interest 82The final matter that is contended by the Council is that the proposal is not in the public interest. Ordinarily, in development appeals, such a pleading is of an omnibus nature and merely wraps up all those matters that are otherwise specifically pleaded in nearly any elements that precede it. In this instance however, one of the joint reports by Ms Parkins and Mr Moore deals with it in a more specific fashion that requires my attention. Ms Parkins says, and I quote: There is no public benefit in a proposed car space on private property. As discussed in this report and the statement of evidence, the proposal will detract from the significance of the heritage item and its contribution to the conservation area which are in the public interest to retain. 83Mr Moore's response to that deals with heritage matters and not with the consequence of the proposition by Ms Parkins that there is no public benefit in the proposed car space on private property. 84To the extent that, that statement requires any assessment by (and response from) me, I am satisfied that the provision of a residential parking space to a private property, in an area where there is significant external nonresidents demand pressure on the provision of parking spaces, demonstrates an element of public interest - in that it is in the interests of residents to permit them to park in or at the vicinity of their residential properties. This, I acknowledge, is what might be regarded as a sufficiently minor public benefit to almost fall into the category of a de minimis item. However, I am satisfied that, to the extent that the public interest is pleaded separately, there is a trifling (almost inconsequential but nonetheless existent) element of public interest in the provision of it -contrary to Ms Parkins' assertion. 85Indeed, overall, I am satisfied that, on very fine balance, the approval of the proposed parking space is entirely consistent with and supportive of the objective contained in cl 2(2)(d)(iv) of the Woollahra Local Environmental Plan 1995 to improve the provision of car parking and reduce conflict between resident visitor demands for car parking spaces in residential areas.

Orders 86As a consequence all of the foregoing, the orders of the Court are as follows: (1)The appeal is upheld. (2)Development Application 11/2013 for a new car space, new footpath crossing and new front grate is determined by the granting of development consent subject to the conditions in Annexure A; and (3)The exhibits, other than Exhibit P, A, B, 1 and 6, are returned. Tim Moore Senior Commissioner NOTE: The conditions annexed to the orders are not reproduced but have been provided to the parties and recorded on the Court's electronic database and on the Court's file.

Amendments 06 March 2014 - 'Osbourne' changed to 'Osborne' throughout 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: 06 March 2014