Ryder v Randwick City Council

The site and context

1. The site fronts Darley Road with a frontage and rear boundary of 9.145m. The east and west side boundaries are 40.54m. The total site area is 370.6m2 (Ex A). The site is elevated above Darley Road, separated from the road by a sandstone retaining wall, balustrading, public footpath and landscaped verge. On-street car parking is located at the road level. The sandstone retaining wall is approximately 120m-140m and does not currently contain openings for vehicular access.
2. The site is located within the North Randwick Heritage Conservation Area (HCA). Opposite the site is Queens Park, a State Heritage Item.
3. At the site viewing, the parties took the Court on site and along the section of Darley Road where the sandstone retaining wall was located. The viewing included a walk through Queens Park to observe views of the site and included observations of the character, built form changes and wall structures along Market Street and Ashby Lane.
4. Development in the visual catchment is a mix of low-density residential dwellings and residential flat buildings. The site and block are zoned R3 Medium Density Residential under the Randwick Local Environmental Plan 2012 (RLEP).

Key Issues

1. Council raised the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex 2) that it says warrant refusal of the application:

• Contention 1 - Heritage impacts from the partial demolition of the sandstone wall.
• Contention 2 - Public domain interface and character of the local area.
• Contention 3 - Parking and garage.
• Contention 4 - Height of building exceedance.
• Contention 5 - Visual privacy.
• Contention 6 - Public interest in relation to the partial demolition of the sandstone wall, impacts on heritage, double garage width, incompatibility with character, removal of an accessible car space, breaches to DCP controls and need for a better resolved front verandah design.
• Contention 7 - Insufficient information.

1. In opening, Council confirmed that the contentions in relation to the alterations and additions of the dwelling house had been resolved. The particulars relating to impacts on Queens Park, a State Heritage Item, were not pressed.
2. The remaining contentions can be summarised as one issue, aptly described by the Council as the 'hole in the wall' issue.

Expert evidence

1. Expert evidence for the parking and garage issues was submitted in a joint expert report (Traffic JER) (Ex 1) by Mr Paul Corbett for Ryder & Boman and Mr John Flanigan for Council.
2. Expert evidence for the heritage and planning issues was submitted in a joint expert report (Heritage and Planning JER) (Ex 4) by Mr Anthony Betros (Town Planner) and Mr Philip North (Heritage) for the Ryder & Boman and Ms Ros Read (Town Planner) and Dr Paul O'Donnell (Heritage) for Council.
3. All experts provided oral evidence at the hearing.

The hole in the wall issue

1. Council presses the central issue arising from the proposed garage. The proposed garage necessitates a breach of the sandstone retaining wall, including removal of part of the wall, landscape verge, public footpath, balustrade and replacement works. Council presses that the impacts to the heritage significance of the sandstone retaining wall, HCA and the public domain warrant refusal. The relevant controls are set out below.
2. Clause 5.10 'Heritage conservation' of the RLEP applies: 5.10 Heritage conservation Note - Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Randwick, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development - (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.
3. The Randwick Development Control Plan 2023 (RDCP) contains the following key controls, noting that the RDCP is a mix of the 2023 and 2012 DCP: "Part B2 Heritage 1.2 Heritage places in Randwick City This DCP section applies to the following types of heritage sites and places within Randwick City: … • Landscape elements … • Heritage conservation areas 1.12 Development in the vicinity of heritage items and heritage conservation areas All new development adjacent to or in the vicinity of a heritage item or heritage conservation area needs to be considered for its likely effect on heritage significance and setting. … 2.2 Design and character The design of development should ensure a sympathetic blend of old and new. This may be achieved by maintaining consistency with the street's established scale and form, siting and setbacks, and materials and finishes, without being overly imitative. Careful attention should be paid to adjacent development and the existing streetscape. Objectives • To promote high quality design that complements the streetscape character and heritage significance of the heritage item or heritage conservation area • To ensure that new development does not adversely impact on the setting, streetscape or views associated with any heritage item or heritage conservation area … Controls All Development i) Development must demonstrate how it respects the heritage values of the heritage item or the heritage conservation area (as detailed in the statements of significance and key characteristics outlined in this section of the DCP) ii) Common elements and features of the streetscape are to be identified in a streetscape analysis and incorporated into the design (e.g. view corridors, built form, fencing styles, extent of soft landscaping, significant trees and driveway locations) iii) New development should be consistent with important horizontal lines of buildings in the streetscape, in particular ground floor levels and eaves lines, where appropriate … 3 Landscape Elements Explanation Randwick City's physical environment comprises a unique and complex pattern of natural and man-made elements. Some of the most identifiable features are the result of the adaptation of buildings and infrastructure to dramatic coastal topography, and of the powerful influence of the sandstone and the sand on which our City is built. Such elements include sandstone and brick retaining walls, stairs, embankments and road cuttings. A number of significant landscape elements are listed as heritage items in Schedule 5 of the RLEP as having heritage significance. There are also a number of landscape elements located within heritage conservation areas which contribute to the heritage values of these areas. While most landscape elements are located on Council owned land, both public and private works can impact on their heritage value. A number of other landscape elements throughout do not warrant individual heritage listing, but collectively contribute to the built character of Randwick City. Objectives • To ensure that significant individual retaining walls and associated landscape elements are retained and conserved • To ensure that other contributory landscape elements are retained and conserved to the greatest extent possible • To ensure that private works including provision of vehicular access, modifications and repairs do not impact on the heritage value of the landscape elements. • To ensure that infrastructure works do not impact on the heritage value of landscape elements • To ensure that Council repair and maintenance works are carried out in a timely manner using technically sound and appropriate construction methods. Controls (i) Significant sandstone and brick retaining walls must not be removed or replaced, (ii) Significant sandstone and brick retaining walls or natural rock faces must not be modified to accommodate vehicular access, (iii) New surface mounting of infrastructure including water and gas supply pipes, storm water and sewerage pipes, service conduits and other fixings on retaining walls must be minimised, (iv) Maintenance and repairs by Council must use the same materials and techniques as the original construction, and should be carried out by experienced tradespeople, (v) Any reconstruction by Council works are to match the existing retaining wall in terms of block size, texture, bond pattern, alignment of blocks, mortar joint colour and capping detail, (vi) Replacement by Council of associated elements such as handrails should preferably be carried out to match existing materials and details, (vii) Cyclical maintenance programs (including inspections) should be established by Council to ensure that significant and contributory landscape elements are conserved, (viii) New plantings by Council associated with retaining walls and associated landscape elements should be consistent with Council's Street Tree Masterplan and of a type that will not cause physical damage by excessive root growth etc, (ix) Retaining walls and natural rock faces must not be modified by adjacent property owners, including rendering and painting or replacement of handrails, (x) Other landscape elements which are not heritage listed should be individually assessed for their contributory value if threatened. 4.10 North Randwick Heritage Conservation Area (Parts 4.10-4.10.3) Part B7 Transport, Traffic, Parking and Access 3.8 Access to Dwellings Elevated Above Retaining Walls in Public Domain Controls i) Any provision of vehicular access to dwellings must minimise demolition, modification and damage to existing retaining walls within the public domain. ii) Double width driveway and entry to on-site parking involving full or part removal of retaining walls in the public domain must not be provided. iii) Development must not involve any significant change to the existing gradients of public footpaths above the retaining walls, except to facilitate equitable access. iv) The creation of an access driveway must not jeopardise the safety of pedestrians and vehicles. v) Works that require alteration or replacement of landscape elements and structures (such as handrails) adjacent to the public footpaths situated above retaining walls must be compatible with the streetscape character. Part C1 Low Density Residential 6.2 Parking facilities forward of front façade alignment Controls i) Where the provision of parking facilities behind the front façade alignment is not feasible (due to the absence of rear lane or secondary street access, narrow site width, irregular allotment configuration, or retention of an existing dwelling), parking facilities may be provided within the front setback areas as follows: - An uncovered single car space; or - A single carport having an external width of not more than 3m (excluding eaves); and - Landscaping must be able to be incorporated into the site frontage. ii) Regardless of the site frontage width, the provision of garages or carports within the front setback areas may only be considered where: - There is no alternative, feasible location for accommodating carparking - The site has a significant slope with the dwelling being elevated above the street - The garage or carport will not adversely affect the visual amenity of the street and the surrounding areas - The garage or carport location will not pose an undue risk on the safety of pedestrians - The garage or carport will not require the removal of significant landscape elements that enhance the streetscape, such as rock outcrop or sandstone retaining walls - The garage design compliments the architectural character, design elements and materials and finishes of the primary dwelling eg. roof type / pitch and finishes."
4. With consideration of the amended DA and conditions of consent, the traffic engineers agreed in oral evidence that there were no remaining safety, access, traffic or parking issues.
5. Ms Read, town planning expert for Council, says that the sandstone retaining wall remains intact for its entire length up to 140m. The nearby garage did not involve the removal of any of the sandstone retaining wall. RDCP control 3.8 says that driveways through retaining walls are generally not supported.
6. In response to Part C1 control 6.2, Ms Read agreed that the RDCP provisions in controls 3.8 and 6.2 were similar and that there are no other feasible locations on site to provide parking.
7. Dr O'Donnell, heritage expert for Council, says that the sandstone retaining wall immediately abuts the North Randwick HCA, is visually part of the HCA and should be protected. Dr O'Donnell says that the lack of references to this particular sandstone retaining wall in the 2003 or 2009 GML studies does not reflect a lack of heritage or landscape significance. Instead, the GML studies likely assumed the wall was included in the HCA as it physically abuts the HCA and was included in the report mapping. However, the 2003 GML study did include references to retaining walls above roads along Darley Road to gain views of Centennial Park in this HCA. Further, the sandstone retaining wall likely contains quarry stone from the former Randwick Stone Quarry.
8. Dr O'Donnell says that there are garages either side of the sandstone retaining wall, but no breaches throughout the length of the wall. The loss of any section has implications for the entire visual amenity and character of the sandstone retaining wall. The proposed breach will have a significant impact on the heritage significance of the North Randwick HCA and will set a precedent for others, leading to a gradual loss of the significant sandstone retaining wall.
9. Ms Pearman, counsel for Council, submits that Part B2 control 3 Landscape Elements of the RDCP applies as it expressly contemplates landscape elements not heritage listed in Part B2. Ms Pearman submits that the 2009 GML study details the significance of landscape elements and retaining walls in Randwick and was the foundation document to the RDCP. A heritage listing is not relevant to the significance of this sandstone retaining wall or its collective contribution to the built character. The sandstone retaining wall has not been breached over its 140m length and contributes to the character of the area.
10. Ms Pearman submits that the footpath and balustrading works are significantly higher and more noticeable than the existing footpath. The work will look different and be a new structural element that is out of keeping with this particular area.
11. Mr Betros, town planning expert for Ryder & Boman, says that the proposed garage is the only viable option for off-street parking. The location, opposite Queens Park, provides constrained on-street parking for the residents. There are numerous examples of garages through heritage listed and unlisted retaining walls in the area and Randwick. Mr Betros says that the proposed garage and public domain works would still be lower than the top of the sandstone retaining wall. There is an existing garage at the end of the sandstone retaining wall, followed by a series of detracting 1960's residential flat buildings. The proposed development would not detract from the character of Randwick.
12. In response to Part C1 control 6.2, Mr Betros' evidence is that the RDCP contemplates parking within the front setback which is not part of control 3.8. The proposed garage would substantially benefit the occupants and not result in a net loss of on-street parking. Mr Betros says that the proposal is a reasonable response to the streetscape.
13. Mr North, heritage expert for Ryder & Boman, says that the sandstone retaining wall is not heritage listed, does not form part of the North Randwick HCA and has not been referred to in any of the heritage studies prepared by Council regarding landscape elements. The 2009 GML Study comprehensively assessed 19 landscape elements that were primarily sandstone retaining walls and recommended listing 16. The subject retaining wall was not referred to within this report and presumably would have been assessed for inclusion or exclusion if it was considered an important landscape element.
14. Mr North says that as the sandstone retaining wall is not heritage listed, the heritage consideration is based on its vicinity to Queens Park and the North Randwick HCA, typically considering a proposal's visual impacts. The sandstone retaining wall is not visible from the majority of Queens Park and is obscured by the existing parking arrangement. The proposed works do not involve demolition of any heritage fabric, would be visually discrete and not distract from any significant elements of the HCA. The footpath works are minimal and would provide easier pedestrian access.
15. Mr White, counsel for Ryder & Boman, submits that the controls in Part B2 control 3 Landscape Elements of the RDCP specify that they relate to heritage items identified in the RLEP and do not apply. Alternatively, this sandstone retaining wall is not significant within the context of Randwick City and lacks any references in the RLEP or the North Randwick HCA Statement of Significance (Statement of Significance). The sandstone retaining wall and the proposed garage cannot be seen from a number of vantage points, will be obscured by parked vehicles and has no heritage impacts.
16. Mr White submits that flexibility should be applied to RDCP Part B7 control 3.8 for access to dwellings elevated above retaining walls. The sandstone retaining wall is not significant, the garage will be obscured, and the experts have arrived at a proposal that is compatible with the streetscape character.

Findings

1. I can appreciate the need and desire for an off-street car parking space for a young family in this location. However, an applicant's need or the impetus for a development application is not a relevant consideration (see: Davies v Penrith City Council [2013] NSWLEC 1141 at [118]-[121]).
2. Firstly, I accept the agreed evidence of the traffic engineers that there are no remaining safety or off-street car parking impact concerns. The amended design through conditions allows for a single car garage with adequate site lines and retention of the accessible car space.

Heritage

1. I accept that Part B2 control 3 landscape elements of the RDCP applies as submitted by Ms Pearman. Part B2 applies to 'heritage sites and places within Randwick City'. B2 refers to controls relating to development in the vicinity of heritage places as well as the explanation in control 3 that separates 'significant landscape elements' listed in the RLEP from '…there are also a number of landscape elements located within heritage conservation areas which contribute to the heritage values of these areas...'. The explanation to control 3 details that 'other' landscape elements that do not warrant heritage listing contribute to the built character of Randwick. I therefore accept that Part B2 also applies to non-heritage listed landscape elements.
2. However, I also accept Mr White's submissions that 'significant landscape elements' refer to listings in the RLEP as stated in the explanation to control 3 as well as the end of control 1.2 which states that significant landscape elements are listed in the RLEP. By extension, I accept that the controls relating to significant sandstone retaining walls are references to RLEP listed walls. The vast majority of the controls in control 3 relate to either significant walls or maintenance/repairs by Council to utilise the same materials and techniques. Therefore, the only relevant control is 3(x), which states that modifications of retaining walls requires an assessment of unlisted landscape elements for contributory value. I have considered this alongside the consideration of cl 5.10 of the RLEP.
3. It was ultimately agreed between the experts that whilst the site is located within the North Randwick HCA, the sandstone retaining wall is not described as being part of the HCA and is not a heritage item.
4. Relied on by Dr O'Donnell, the 2003 GML study lists retaining walls above roadways to obtain views of Centennial Park along Darley Road as one of the key heritage values of the proposed extension to the North Randwick HCA.
5. However, whilst the extension to the North Randwick HCA area occurred, there is no reference to the sandstone retaining wall in the Statement of Significance. Of the listed key values in the Statement of Significance, the heritage experts did not identify any inconsistencies between the values and the proposed development.
6. I accept Mr White's submissions that the starting point in considering the impacts on the heritage significance of the North Randwick HCA is the Statement of Significance. I place significant weight on the heritage significance values detailed in the Statement of Significance and accept Mr North's evidence that the sandstone retaining wall is not part of the HCA and does not have heritage significance because it does not contain any of the expressed character values of the HCA. The Statement of Significance details built form, materials, details, fences and landscaping elements, none of which relate to sandstone retaining walls or the former quarry sandstone. The only reference to the former quarry site is in relation to the residential flat buildings now occupying that site. I therefore accept there is no heritage significance to the sandstone retaining wall.
7. In relation to potential impacts to the heritage significance of the North Randwick HCA and Queens Park from the proposed development, I prefer Mr North's evidence that there are very little impacts on the heritage values of the HCA. There is no demolition or impacts on any heritage fabric and the garage works do not obstruct views of the HCA.
8. In considering the evidence against the requirements of cl 5.10 of the RLEP and Part B2 of the RDCP, I find that the sandstone retaining wall does not demonstrate heritage significance and that there would be negligible impacts on the heritage significance of the North Randwick HCA and Queens Park.

Elevated dwellings above retaining walls

1. Moving to Part B7, control 3.8 of the RDCP, I find that the proposed development breaches controls 3.8(i), (iii) and (v) and the proposed flexibility should not be applied for the following reasons. I will also deal with Part C1 control 6.2, which has some similarities.
2. I firstly accept that the proposed off-street car parking arrangement is the only feasible option for the site as rear or side access is not available. The RDCP also contemplates that not all sites can provide off-street car parking (Part B2 control 2.9 and B7 control 3.3 (i).
3. Part C1 control 6.2 (ii) provides that garages in the front setback may be considered where will not adversely affect the visual amenity of the street and will not require the removal of significant landscape elements such as sandstone retaining walls. I have previously made findings about significant landscape elements being a reference to RLEP locally listed items or areas. My findings about the impacts to the visual amenity of the street are further below.
4. Part B7 control 3.8 regulates off-street parking for dwellings elevated above retaining walls in the public domain. The control applies across the local government area and is not confined to heritage items or HCAs. The explanation of control 3.8 sets out why off-street parking to certain sites is generally not supported, including streetscape impacts to the public domain.
5. In this instance, the consideration of likely heritage significance impacts is different to impacts or compatibility with the streetscape. There is no requirement in control 3.8 for the retaining walls to be significant.
6. The Heritage and Planning JER demonstrates a number of examples of garages constructed through sandstone walls for dwelling houses. None of these are located within this part of Darley Road. This sandstone wall is unbroken for its entire length, being somewhere between 120m-140m. The heritage experts agreed in oral evidence that the sandstone retaining wall contributes to the character of a place, with differing views on the degree of contribution.
7. The experts agree that the garage works including the balustrading and footpath will be readily visible, with differences on the acceptability. I accept from the evidence and site viewing that this would be limited to views at street level near the site.
8. I accept the anecdotal views that the availability of on-street car parking spaces would be highly sought after to access Queens Park and the access issues from parking along the sandstone retaining walls.
9. However, in this location, the requirement to provide car parking and inability to provide alternate car parking elsewhere on site is outweighed by the intended outcome of Part B7 control 3.8 to not facilitate vehicular access for private parking through public domain retaining walls.
10. The proposed garage will be a new element in an intact sandstone retaining wall. No other dwelling elevated above this sandstone retaining wall has off-street car parking, which forms part of the streetscape character. The break in the sandstone retaining wall and increased height to this part of the elevated public footpath would be readily perceived and contrast with the existing streetscape. In my view, whether the existing sandstone retaining wall requires maintenance and repairs has little consequence. The extent of the proposed changes is beyond alterations from maintenance works.
11. I accept the evidence of Ms Read and Dr O'Donnell that the garage, footpath and balustrade works would impact on the streetscape character. As submitted by Ms Pearman, the works would be noticeably visually different.
12. The architectural plans (proposed northern streetscape elevation) shows that the footpath would be raised higher in a location that is at a lower part of the sandstone retaining wall, requiring a new set of stairs (approximately four risers). The current open style two bar horizontal balustrade will be removed and replaced with closely spaced vertical balustrading. I acknowledge this is partly driven by compliance with current safety standards. Finally, the unbroken sandstone retaining wall will be partially demolished across a large portion of the site's frontage and indented with a visually noticeable, large setback opening.
13. The sought after flexibility is more akin to a dispensation of the provisions of Part B7 control 3.8. The visual impacts to the sandstone retaining wall, removal of materials and raised public domain footpath at the lower end of the sandstone retaining wall and different style of public domain balustrading would be distinctly different in character. The extent of works at this location does not minimise the demolition or modification of this retaining wall in the public domain. In my view, significant changes to the existing gradient of the footpath are proposed, given the need to introduce stairs as a result of trying to achieve the necessary garage head height clearance.
14. There are no stated objectives for control 3.8, though there are overall objectives for Part B7, one of which refers in part to enhancing the streetscape character. I find that the proposed garage has not been designed to enhance the streetscape character of this location as the design is distinctly different in character in its elements. The proposal would be contrary to the intent of control 3.8 as expressed in the explanation. The streetscape character and visual integrity of the sandstone retaining wall would be detrimentally impacted for the purpose of off-street parking. The evidence does not show that a reasonable alternate solution has been proposed to achieve the objectives of control 3.8 (i), (iii) and (v).
15. Accordingly, the proposed garage and associated public domain works is contrary to Part B7 control 3.8 and warrants refusal of the amended DA.

Conclusion

1. The key issue pressed about the proposed garage and public domain works were in relation to heritage significance and the impacts on the unbroken retaining wall and public domain.
2. I find that the heritage significance issues raised are inconsistent with the stated character values within the North Randwick HCA Statement of Significance and do not warrant refusal.
3. The RDCP generally does not support partial demolition of public domain retaining walls for vehicular access. The amended DA seeks flexibility to Part B7 control 3.8. I find that the proposed design demolishes a significant proportion of the retaining wall across the site's frontage resulting in an indented garage opening, significantly alters the existing gradient to raise the footpath and proposes balustrade elements that are not consistent with the streetscape character. The proposed development is contrary to the objectives and intent of the controls and has not proposed a reasonable alternate design in an area where there are no breaks in the sandstone retaining wall.
4. I therefore conclude that this issue warrants refusal of the amended DA.

Orders

1. The Court orders: 1. The appeal is dismissed. 2. Development application No. 418/2023 for the alterations and additions to the existing dwelling including a first-floor addition, new basement garage and works on public land at 241 Darley Road Randwick is determined by refusal of consent. 3. The exhibits are returned except for A, B and 2. S Porter Commissioner of the Court

Amendments 28 November 2024 - Pursuant to the slip rule (r 36.17 of the Uniform Civil Procedure Rules 2005), the DA number has been corrected in the orders and in paragraph [1]. 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: 28 November 2024