Sheridan v Randwick City Council

Representation: Counsel:
H Grace (Applicant)
M Astil (Respondent)
Solicitors:
Bick and Steele (Applicant)
Randwock City Council (Respondent)

File Number(s): 2024/354735

Publication restriction: No

Judgment

1. This is an appeal by J Sheridan and C Woods (applicants) under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Randwick City Council (Council) of development application No DA/143/2023 (DA) for alterations to an existing dwelling (essentially, towards the front of the property only) and construction of hardstand car parking space, crossover and driveway. The location is 215 Barker Street, Randwick, legally described as Lot 62 in DP 209686 (site).

Site and locality

2. The site is rectangular in shape, with a 6.134m frontage to Barker Street and a total site area of 354.7m2. The site is currently occupied by a single storey semi-detached dwelling which adjoins and forms a constructed pair with the dwelling at No. 213 Barker Street.

3. Surrounding development comprises a mixture of other semi-detached dwellings, residential flat buildings and free-standing dwellings, with varied configurations regarding off-street parking.

Proposal

4. The architectural drawings tendered in the proceedings (Ex B) indicate:

5. Provision of a single parking space within the site (by way of two hardstand wheel strips, with grassed pervious area in between), including required excavation of the existing filled area.

6. Construction of a new driveway crossing and internal driveway to access the new car parking space.

7. Demolition of certain elements in the front portion of the semi-detached dwelling to allow room for the design car parking.

8. A series of “conservation works” (shown in Ex B and/or referenced in a Schedule of Conservation Works marked Ex C) which were claimed by the applicants to be positive elements relating to the presentation of the dwelling within the HCA. These works will be outlined below.

Statutory setting

5. The site, and this northern side of Barker Street in the vicinity generally, falls within Zone R3 Medium Density Residential under the provisions of Randwick Local Environmental Plan 2012 (RLEP 2012). There is no dispute that the proposal is permissible with consent. Across the road, the south side of Barker Street is zoned R2 Low Density Residential.

6. The site, and both sides of Barker Street in these environs fall within “The Spot” Heritage Conservation Area (HCA) under RLEP. In turn, cl 5.10 of RLEP, concerned with heritage conservation, has relevance.

7. Randwick Development Control Plan also applies (RDCP). Later, I turn to particular relevant provisions, as documented in Council’s Bundle of Documents (Ex 1), below.

Proceedings

8. The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an on-site inspection. The parties were not able to come to agreement. In turn, the matter proceeded to a contested hearing, relying on this site inspection.

9. The only expert evidence relied upon by the parties was from two individuals with expertise in heritage conservation: J Phillips (engaged by the applicants) and S Abbasalipour (engaged by Council). The experts’ joint report was admitted into evidence as Ex 4.

Contentions

10. In its Statement of Facts and Contentions (Ex 2), Council nominated a number of contentions which in its view warranted refusal of consent to the DA. The particulars of the contentions can be outlined as follows.

11. The first contention was that the DA should be refused “because the proposal does not comply with the objectives and provisions of cl 5.10 of RLEP” (Ex 2 p 10). I will explain the provisions of cl 5.10 below.

12. The second contention related to non-compliance with R3 zone objectives.

13. The third contention related to RDCP provisions concerning heritage conservation.

14. The fourth contention was that the proposal would not be in the public interest, as it would create an undesirable precedent where “accumulative impact of driveways within this context will reduce the streetscape, value and significance of the heritage” (Ex 2 p 14).

15. During the course of the proceedings, Council agreed all its nominated contentions related to contended adverse heritage conservation effects.

16. I will commence with some further details on the policy considerations. Then move into an evaluation of the evidence and submissions.

Policy outline

Clause 5.10 of RLEP

17. Clause 5.10 of WLEP is concerned with heritage conservation. Subclauses (1), (2) and (4) have some significance having regard to evidence and submissions. Selected provisions are reproduced below:

5.10 Heritage conservation

(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,

…

.

(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)—

…

(iii) a building, work, relic or tree within a heritage conservation area,

…

...

(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).

18. I note Council’s contention that the proposal brings “non-compliance” with the objectives and provisions of cl 5.10. It, of course, needs to be understood that there is no statutory requirement to comply with the objectives at cl 5.10(1). The matters in those particular provisions explain the objectives of cl 5.10 itself. This clause brings heritage into the mix in relation to DA assessment, highlighting the ambition of conserving environmental heritage. Clause 5.10(2) provides that development consent be sought for changes such as that proposed with the DA, and in this case this is what is sought by the applicants. Clause 5.10(4) is the essential operative provision relating to my evaluation of the DA. It brings an important direct requirement for a consent authority to, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of that area. In the matter before me here there is therefore a requirement to: (1) have an appreciation of the heritage significance of The Spot HCA, and then (2) consider the effect of the proposed development on the heritage significance of that HCA.

Zone objectives

19. It was the fourth of the R3 zone objectives which Council raised particularly. It provides as follows:

To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

Randwick Development Control Plan

20. Part B2 Section 2 of RDCP relates to heritage conservation areas. Particular attention was drawn to clauses 2.8 (concerned with verandahs and balconies) and 2.9 (concerned with provision of carspaces and the like).

21. Clause 2.8 of Part B2 of RDCP states:

“Objectives

• To ensure the retention and encourage re-instatement of early verandah and balcony forms

• To ensure that alterations and additions do not detract from or reduce the importance of original verandahs and balconies.

Controls

All development

i) Consider the provision of front verandahs and balconies at a compatible scale where these are a characteristic feature of the heritage conservation area.

Heritage items and contributory buildings

ii) Original front verandahs and balconies must be retained and conserved. Consider opening up verandah enclosures or infills, to reinstate an original open verandah

iii) Infilling or enclosure of front verandahs and balconies is not supported

iv) Additional verandahs must not compete with the importance of the original and should be simple in design and based on existing detail or an understanding of appropriate designs for each period or style.”

22. The objectives and certain relevant provisions of clause 2.9 of RDCP are provided below:

Objectives

• To minimise the visual impact of carparking on heritage streetscapes

• To ensure parking structures and paved areas are visually discreet and do not dominate or compete with original character buildings.

Controls

All development

i) Existing rear lane access or side street access (where available) must be utilised for carparking in preference to front access

ii) Carparking structures are to be located to the side, or preferably to the rear of the building. Garages and carports must not be located forward of the building line

iii) Open hard stand carspaces may be provided forward of the building line, but must be located adjacent to a side boundary, and generally not be greater than single car width

iv) Existing building fabric, including verandahs and balconies, must not be altered to allow for the provision of a carparking structure or an open stand carspace

v) Open hard stand carspaces must not dominate the setting of the building in terms of loss of planting, fencing or retaining walls

vi) Carparking structures are to be unobtrusive and must be of materials, form and details which harmonise with and do not obscure views of the building. They must not be made larger by the provision of a bulky pitched roof

vii) Existing driveways constructed of two separate wheel strips contribute to the character of the streetscape and must be retained where possible

viii) Large areas of concrete should be avoided and alternative materials such as pavers, gravel or permeable paving must be considered

…

23. Part B2 Section 4 then provides the statements for each of the RLEP heritage areas, including The Spot; outlining the HCA’s significance. An outline of the area’s significance in heritage terms is provided in these RDCP provisions, which I have reviewed, including content in relation to ‘aesthetic’, ‘historic’ and ‘social’ significance of The Spot HCA. There is also an outline of historical themes which are represented in this HCA. With respect to the residentially zoned land within The Spot HCA, certain existing ‘character values’ are nominated, including with respect to ‘verandahs’ and ‘carparking’ (a special section of RDCP provides specific controls for the business zoned areas of the HCA). Finally, there are particular “guidelines for change”. A provision with respect to carparking which is of note is as follows:

On site carparking is generally not able to be provided to narrow properties with minimal front setbacks and no rear lane access.

24. Certain provisions of RDCP relate to whether a building or site in a HCA is ‘contributory’ or not. This is significant because of certain differentiation in the applicable controls. Of particular note, is clause 2.8 concerned with verandahs (as outlined at [24]) which indicates that for contributory buildings “Original front verandahs … must be retained and conserved”. The differentiating definitional material is provided at clause 1.8.2 in Part B2:

• Contributory buildings − Contributory buildings provide good evidence of the main development period(s) and make a positive contribution to the character and/or heritage significance of heritage conservation areas. They have a collective significance and their retention is essential if the character of the area is to be maintained.

• Non-contributory buildings − Non-contributory buildings display qualities which do not add to the character of the heritage conservation area. They are not to be considered as a precedent for new work when assessing the merit of an application. Non-contributory buildings may be demolished and replaced by new development sympathetic to the character of the heritage conservation area (see section 7 Infill Buildings).

25. It was notable that in this instance Ex 2 included a diagram to suggest the site was designated as a contributory building (Ex 2 Figure 6). Ms Abbasalipour agreed with this designation, while acknowledging significant unsympathetic changes, all of which she saw as reversible. Mr Phillips saw the existing building as a neutral building in heritage conservation terms, seeing the changes as reversible but at considerable cost.

26. The status of the Ex 2 Figure 6 mapping, in particular, whether or not it formed part of RDCP, was queried in the proceedings. Documentation tendered in the proceedings suggested this material was part of the Council’s “interactive mapping” rather than formally part of RDCP, and even then, for me at least, it was a little difficult to interpret.

27. For me the note to clause 1.8.2 to Part B2 of RDCP suggested that there was not a firm policy position on whether or not this building was or was not contributory. The note provided as follows:

Applicants will need to assess whether their building is contributory or noncontributory based on the statements of significance contained in this section of the DCP and relevant heritage studies. A suitably qualified heritage specialist may be required. Council’s Heritage Officer can also assist applicants in clarifying whether a building is contributory or noncontributory.

Evidence and consideration

Setting the scene

28. At the centre of this case is the balancing out of what might be thought of as the negative features of the proposal in heritage conservation terms, the positive features of the proposal in respect of the same terms, and then the other effects of the proposal. Most notable here is the provision of a more convenient parking arrangement for the property owners.

29. I will mention here that another possibly prospective effect of the proposal, a matter raised in evidence but not in any direct sense by way of a contention by Council, related to the loss of public on-street parking (as a consequence of the construction of the access driveway). In evidence this was mentioned by Ms Abbasalipour under a Council contention relating to public interest (Ex 4 par 83). I was aware that the public interest contention by Council was particularised as relating to “streetscape, value and significance of the heritage conservation area” (Ex 2 p 14). However, on day one of the hearing, and having read the commentary at Ex 4 par 83, I indicated to the parties that this question of the implications of public parking loss was something that was of interest to me. At the same time, I emphasised my view that it would be unfair on the applicants to do otherwise than to give all reasonable opportunity to address the point, should there be a need, including in regard to potentially putting on further expert evidence on public parking considerations. As it happened, I became satisfied that my interest in this matter needed to go no further. A key point for me was whether this inter-relationship of: (1) provision of private driveways and (2) consequent loss of on-street parking; had become a concern of Council at a more strategic level. In essence, and on the submissions from the parties and the evidence provided at Ex E (a bundle of comparable development consents), I was convinced this was not the case. That is to say the local Council was not seeing this issue as a particular problem at present. The outcome of this exercise, correctly, re-establishes the question of heritage conservation as the central issue in this appeal.

Outline of evidence on adverse heritage conservation effects

30. Something of a synthesis of the negative aspects of the proposal are put by Ms Abbasalipour in Ex 4 (par 10) as follows:

I. the proposal involves the partial demolition of the front façade including the front wall, verandah, fencing, and removal of a street tree, which all collectively contribute to the streetscape and character of The Spot heritage conservation area

II. the proposal substantially alters the setting of the dwelling within its precinct

III. the proposal will adversely affect the views from the street towards the dwelling itself

IV. the proposal will visually dominate the property frontage and streetscape

V. the proposal provides a poor public domain interface

VI. the proposal is not compatible with the existing and desired character values of The Spot HCA

31. In turn, Ms Abbasalipour is concerned that the proposal is at odds with cl 5.10(1)(a) and (b) of RLEP, the statement of significance and “character value table” applying to The Spot HCA under clause 4.17 of RDCP, as well as RDCP's specific prohibition of car spaces of this kind (“clause 2.8 objectives and controls (i) and (ii) and clause 2.9 objectives and controls (ii), (iii), (iv), and (v))”. These provisions are reproduced above at [23]-[24]. According to Ms Abbasalipour approval would “set a poor precedent for future vehicular access proposals that would also undermine Randwick heritage conservation area” (Ex 4 par 10). Mr Phillips acknowledged direct non-compliances with certain RDCP provisions but essentially thought these justifiable given the proposed conservation measures.

Outline of evidence on positive heritage effects

32. The positive aspects of the proposal come from the starting point that, according to Mr Phillips at least, much in the way of the more prominent features of the building façade, as viewed from the public domain, have already been altered, and in a way that works against the dwelling’s capacity to make a positive contribution to the heritage significance of the HCA (a “condition assessment” is provided at p 6 of Ex C (Schedule of Conservation Works). As indicated, Mr Phillips opines that, at present, there is no significant positive contribution to The Spot HCA from the building. There is then the long list of actions in the “Schedule of Conservation Works” (Ex C) (which do seem to me to be professionally conceived and exacting), and otherwise in the architectural drawings (Ex B), which would be a prerequisite in any consent conditions. I accept the applicants outline of these works as follows (Applicants’ written outline of submissions dated 12 March 2025 p 1-2, footnotes and formatting excluded):

The removal of the contemporary aluminium window frame in the street-facing facade of the dwelling on Site and its replacement with a timber casement and highlight window that replicates the window, including the arched window head brickwork and decorative masonry sill, in the street-facing facade of the neighbouring property, 213 Barker Street.

The removal of the contemporary door and aluminium security door at the entry of the dwelling on Site and their replacement with "a heritage timber door and highlight replicating that of 213 Barker Street.

The removal of the elevated (and damaged) concrete slab at the front of the dwelling on site.

The removal of the existing entry stairs and their replacement with entry stairs in their original location to match the adjoining property, 211 Barker Street.

The removal of the paint from the street-facing façade and tuck-pointing the face bricks to replicate the dwelling's original appearance and match the neighbouring property at 213 Barker Street.

The reinstatement of the original decorative timber frieze.

The repair of tile verge at the eastern end of the roof, the top of the timber column at the eastern end of the porch, and front fence (to the extent required), which was a later addition.

The Applicants also propose to retain and repair the heritage timber columns, the heritage timber lining boards, and the tessellated tiles, door threshold and the edging stone at the entrance to the dwelling.

33. The architectural drawings also indicate that a gable end would be reinstated to “mirror that at 213 Barker Street Randwick” (Ex B Drawing 23003-2 Rev B).

Balancing the evidence and policy considerations

34. The test under cl 5.10(4) is clear enough, that of considering the effect of the proposed development on the heritage significance of The Spot HCA. The applicants are correct that the “effect” is that of the whole of the development. The most significant points of negative effect potential would relate to the direct changes to the front façade (removal of some of the front wall of the building to a certain height to allow for the parking space) and removal of part of the front verandah for the same reason. The presence of the carspace itself (and car) in the front setback and associated fencing removal would also be thought of as unsympathetic in heritage conservation terms.

35. There is then the direct provisions of RDCP. Related to certain controls at clause 2.8 of Part B2 (see [24]) there is a need for me to make a finding on whether the existing building is contributory. I refer to the definitions from RDCP and provided at [27]. Suffice to say here that in its original form, the site's building would certainly have been regarded as contributory to the HCA. However, it is clear from the evidence that quite significant unsympathetic changes to the building have occurred since then, which question its contribution today. The test to achieve the status of a contributory building include that the building both "provide good evidence of the main development period" and "make a positive contribution to the character and/or heritage significance" of The Spot HCA. I am not convinced that the building currently achieves the second of these requirements, at least. Having regard to the stated significance of The Spot HCA, and giving weight to the range of unsympathetic alterations or general damage which has occurred to fabric (essentially as described in the “condition assessment” at Ex C (p 6)), and also mindful of the collective significance of contributory buildings, I do not find that the building on the site makes a positive contribution to either the character or heritage significance of The Spot HCA. While there are other areas of non-conformity with RDCP, this finding means that the contributory building control at clause 2.8 of Part B2 of RDCP would not apply.

36. Key points to note with respect to RDCP include:

37. The objectives to “ensure the retention and encourage re-instatement of early verandah .. forms” and to “ensure that alterations and additions do not detract from or reduce the importance of original verandahs” [24].

38. The objectives relating to carparking which seek to “minimise visual impact of carparking on heritage streetscapes” and “ensure parking structures and paved areas are visually discreet and do not dominate or compete with original character buildings’, along with direct controls that open hard stand carspaces forward of the building line be provided along the side boundary and that existing building fabric not be altered for such a parking space [25].

39. The “guideline for change” provision in clause 4.17.4 that “on site carparking is generally not able to be provided to narrow properties with minimal front setbacks and no rear lane access” [26].

40. However, s 4.15(3A)(b) of the EPA Act requires the Court to be RDCP provisions to be flexible in applying such provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

41. Having regard to these points and the policy provisions and contextual setting generally, the evidence suggests to me that the proposed development (as a whole) warrants the grant of consent. There are three points, the first two of which are the more significant.

42. First is the weight which should be given to the suite of positive heritage conservation-related works involved in the application, and referenced above. Mindful of the relevant RDCP objectives these works aim to reinstate heritage conservation fabric and bring a positive visual perception in heritage terms from the public domain. In my view the conservation-related works significantly offset the otherwise visual effects of the provision of the car parking space, and consequential associated works to the building façade and verandah (and front fencing). It is reasonable to expect that the proposed conservation works will be a feature of the building, notwithstanding the carparking space. That is to say, I am not convinced that the parking space in the frontage area will unreasonably “dominate the setting of the building” in this particular instance. Under RDCP there is a need to "respect and reinforce" the character of the HCA (Part B2 Section 4 Ex 1 p 262), the intended conservation works appropriately respond to this control in my view. This first point also assists me with the contention concerning the fourth R3 zone objective. While it is by no means a statutory pre-requisite, it seems to me that with the extent of conservation works proposed, the proposal is giving recognition to “the desirable elements of the existing streetscape”.

43. Second is the fact of the existence of similar parking configurations both in the immediate locality (ie just to the east at 221 and 223 Barker Street and others quite directly across the road within the R2 zone) and elsewhere in The Spot HCA (noting the content of Ex E). I do note here Council’s submissions that some of the Council approvals came about after recommendations of refusal by Council officers. These included the most immediate and relevant 221 and 223 Barker Street (Ex E Tab 12) along with at least two other sites (Ex E Tabs 9 and 17). Most notable to me is 221 and 223 Barker Street. However, even this submission from Council does not help me greatly as (1) it would of course be unreasonable to discount elected Councils determinations, of themselves; and (2) it is a contextually significant fact that the development at 221 and 223 Barker Street exists now. I further note the applicants’ submissions that a point of difference with the subject proposal, when compared to 221 and 223 Barker Street, is the extent of unsympathetic changes which have occurred to the building on this appeal site, and would be addressed with the proposal. These first two points mean that on balance, and giving consideration to the effect of the proposal on the heritage significance of The Spot HCA, there is no unreasonable adverse public interest effect in the grant of consent, as a whole, in this instance.

44. The third point relates to the positive outcome for the applicants. That is, in the provision of more convenient parking. I have indicated earlier that, in this instance, there is no substantive evidence to suggest there is an unreasonable public disbenefit in regard to the driveway construction and on-street parking consequences.

Conclusion

42. This project presents as a positive private outcome for the applicants (ie through provision of more convenient parking). In my opinion, and in the particular contextual circumstances applying here, any adverse heritage conservation effects have been adequately addressed by the quality of the heritage conservation measures which have become part of the application seen as a whole. Heritage conservation effects were the central issue in these proceedings. In this instance I find the proposal satisfactory in that regard. The proposal warrants the grant of conditional consent.

Orders

43. The Court orders:

44. The appeal is upheld.

45. Development Consent is granted to DA/143/2023 for alterations to the front façade of an existing semi-detached dwelling and construction of hardstand car parking space, crossover and driveway at Lot 62 in DP 209686, at No. 215 Barker Street, Randwick, subject to the conditions contained in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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