Stokes v Woollahra Municipal Council

Land and Environment Court (NSW)|2020-08-06

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their modification application (DA/154/2019/2) by Woollahra Municipal Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the modification pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As part of the hearing the Applicant sought to amend the Class 1 Application to appeal under s 8.9 of the EPA Act. The leave sought by the Applicant was granted without objection from the Respondent.
The original development consent (DA/154/2019) granted consent for the replacement of the existing double garage with a new double garage, new boundary fence and pedestrian entry. The work s are proposed at 380 Edgecliff Road, Woollahra (Lot 4 in DP 217478). The Respondent's grant of approval included the following condition amending the development application pursuant to s 4.17(1)(g) of the EPA Act: "C.1 Modification of Details of the Development (section 4.17(1)(g) of the Act) The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: a) Deletion of the proposed front fence The proposed front fence must be deleted. Reason: The proposed height of the front fence exceeds 1.5m and is non-compliant with Chapter C2, Clause C2.3.1 Objective O4; and Clause 2.5.7, Objective O1 and Control C3 of the Woollahra DCP 2015. b) Deletion of the proposed side fence The proposed south -eastern side boundary fence must be deleted. Reason: The proposed height of the side boundary fence exceeds 1.8m and is non-compliant with Chapter C2, Clause 2.5.7, Control C4 of the Woollahra DCP 2015. c) Retention of the original front sandstone retaining wall The original front sandstone wall must be retained. Reason: Removal of the front sandstone fence would be contrary to Chapter C2, Clause 2.5.7, Objective O3, O4, Control C10 and C11 of the Woollahra DCP 2015. d) Splayed driveway A 2m x 2.5m splay corner at the driveway exit must be incorporated. Reason: To ensure that adequate sight lines are provided to pedestrians and drivers at the site frontage as required by Clause 3.2.4 of AS2890.1 and Chapter E1.10.6 of the Woollahra DCP 2015. e) Revised Arborists Impact Assessment Report A revised Arborists Impact Assessment Report detailing the retention and protection of Tree 1, Tree 8 and Tree 9 must be submitted to Council for approval. Reason: To ensure the retention and protection of the nominated trees. …" (Exhibit 3)

The Site and locality

The site is located on the south-western side of Edgecliff Road, near the intersection of Trelawney Street, Woollahra.
The site contains an existing residential dwelling house and a rear sited double garage. The dwelling house is 2-3 storeys in height and was constructed in the early 1900's in the free classical bungalow style.
The site enjoys vehicular access to the existing garage by a right-of-way over the existing driveway which forms part of 2A Trelawney Street, Woollahra (SP 1690).

Planning Controls

The modification application is made pursuant to s 4.55(2) of the EPA Act. In order to grant consent to the modification application, at sub cl (a), the Court is required to be satisfied 'that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)', and at sub cl (c) that the modification application has been notified and at sub cl (d) any submissions have been considered.
The Respondent does not contend that the precondition at s 4.55(2) (a) of the EPA Act is not met. I am satisfied that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted. Further, the modification application was notified by the Respondent, no submissions were received. The requirements of s 4.55(2) of the EPA Act are met.
Section 4.55(3) of the EPA Act requires that: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
In determining the modification application, I have taken into consideration the reasons given by the Council for the grant of development consent and the reasons detailed for the imposition of the contested conditions.
The site is zoned R3 Medium Density Residential under Woollahra Local Environmental Plan 2014 ('WLEP 2014'). The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
Clause 5.10 of WLEP 2014 provides the requirements for heritage conservation. Clause 5.10(2)(a)(i) mandates that consent is required for the demolition of a heritage item. Clause 5.10(4) states: 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 consideration is a precondition to the grant of consent.
The Dictionary to WLEP 2014 provides the following relevant definitions: heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5. … heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
The site is identified as a Contributory Item in accordance with Part C2.3.1 of the DCP 2015.
The site forms part of the HCA in accordance with the DCP 2015 and is within the Rosemont Precinct in accordance with Part C2.3.1. The significant characteristics of the precinct are outlined in DCP 2015 as follows: "- A subdivision pattern developed from former estates made up by large, sometimes irregularly shaped, lots that respond to the hilly topography and Edgecliff Road. - Remnant substantial houses orientated towards the harbour views. - Landscape features of the large early estates such as 'Rosemont' in Rosemont Avenue, the terraces and sandstone retaining walls from 'Eynesbury' in Albert Street, the Kauri Pine from the grounds of 'Quiraing' at 2 Trelawney Street and the later subdivision of Quambi and 'Hillside'. - Streetscapes of mature street trees, including the avenue of plane trees on Rosemont Avenue and the figs and plane trees on Edgecliff Road and Ocean Street. Substantial sandstone retaining walls respond to the steep topography. - The combination of substantial Victorian houses within landscaped ground, located beside large Victorian or Federation terraces or semi-detached houses and Inter-War period houses and residential flat buildings. Gardens often contain mature trees such as pines, planes and figs. Front fences and gates are designed in association with, and to complement, the buildings behind. -The variety of its residential architecture, which includes: - detached and semi-detached Victorian houses with external masonry walls of unpainted sandstone or painted stucco, often with decorative painted cement render mouldings. Roofs are steeply pitched and were generally originally clad in slate. Windows are vertically proportioned painted timber double-hung sashes. Porches or verandahs often had cast iron filigree detailing; - detached and semi-detached Federation houses usually in the Queen Anne style. Walls were originally unpainted brickwork. Open verandahs have turned and fretted timber work. Roofs are steeply pitched with tall chimneys and clad with slate or Marseilles pattern terracotta roof tiles. Windows are casements or double hung sashes with multi-paned tops lights; - Inter-War houses in an eclectic variety of styles typical of the period, including Spanish Mission, Mediterranean, Georgian Revival and Old English, usually with painted stucco walls and Roman, Spanish or Marseilles pattern tiles. The houses sometimes combine detailing from a number of these styles; and - Inter-War flat buildings usually in face brick with terracotta tiled roofs. The styles of the flat buildings often demonstrate the influence of the Inter-War domestic styles for detached houses. Skyscraper Gothic styled apartments are also present. - Garages and carports that are generally located within the property at some distance from the front boundary or accessible from a side street. - Substantial Victorian and Federation institutional and public buildings including the former Woollahra Council Chambers [Goethe Institute], Woollahra Public School and Fire Station, All Saints Anglican Church, St Columba Uniting Church, Little Sisters Convent and Wolper Hospital. - Chiswick Gardens, a municipal garden established in 1938."
The objectives of the controls which apply to the Rosemont precinct, at C2.3.1 of DCP 2015 are: "O1 To conserve the curtilages of the former estates and their landscaped garden settings, including outbuildings and fences. O2 To conserve the institutional public buildings and mature street trees. O3 To encourage contemporary infill development to respond appropriately to the Victorian, Federation and Inter-War housing which dominate the precinct. O4 To encourage alterations and additions to existing buildings which retain and enhance the character of the building and the streetscape."
Part C of DCP 2015 incorporates specific requirements for fencing, gates and retaining walls in HCA's at C2.5.7. The objectives of these controls are: "O1 To ensure the removal, and prevent the construction, of non-original, intrusive tall masonry fences on street alignments. O2 To ensure fences, walls and gates contribute positively to the streetscape and improve safety and amenity for residents."
The Respondent's statement of facts and contentions (Exhibit 1) identifies the following relevant controls at C2.5.7 of DCP 2015 that are relevant to the proposed front and side fence: "… C3 The height of the fence is not to exceed 1.5m. C4 The height of a side or rear fence is not to exceed 1.8m. Where there is a difference in level from one side of the boundary to the other, the 1.8m limit is measured from the lower side. Where there is a difference in ground levels at the boundary greater than 1.2m, the height of the fence must not exceed 1.2m measured from the high side. … C10 The configuration, forms, materials, finishes and details of original fences, gates and retaining walls of contributory items are to be retained in place. They are not to be altered except to allow for their maintenance or conservation, even if the building with which they were originally associated has been demolished. C11 The configuration, finishes and details of all original sandstone retaining walls that are located at the street front boundaries are to be retained and conserved."
Part E of DCP 2015 is directed to parking and access. The objectives of this chapter of DCP 2015 are: "O1 To minimise the amount and impact of vehicular traffic generated due to proposed development. O2 To ensure that development generating vehicular traffic makes adequate provision off street for the car parking and servicing needs of its occupants and users, including residents, employees, visitors and deliveries. O3 To ensure the safe and efficient movement of vehicles within, entering and leaving properties. O4 To minimise the environmental effects, particularly visual impact, of parked vehicles on the amenity of the municipality. O5 To ensure that access points to car parking areas are situated to minimise disruption of vehicle movement on the public road system."
DCP 2015 details specific controls for driveways and access points at E1.10.6. The Respondent's statement of facts and contentions (Exhibit 1) identifies the following relevant controls that are relevant: "- Driveway splays shall be provided in accordance with Figure 3.3 in Section 3.2.4 of AS/NZS 2890.1. Exceptions to this may be accepted in the following circumstances: − for dwelling house, dual occupancies and attached dwellings in residential zones in low pedestrian activity locations 15 a fence to a maximum height of 0.9m is permitted in the splay area. − where an object in the adjoining property creates an obstruction to visibility within the splay area. Note: Driveway construction on Council's roads will require the submission of a Section 138 of the Roads Act 1993 application. The form is available on the Council website. A copy of Council's standard drawing for driveways is available with the application. 15 Low pedestrian activity locations are areas away from schools, commercial centres or other locations that generate pedestrian activity."
Mr Rigg submits that the provisions of DCP 2015 have been consistently applied by the Respondent and, consistent with the decision of the Court in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [86] -[88] and [89] - [93] should be given significant weight by the Court in determining the modification application.

Experts

The Court was assisted by town planning experts, Mr Matthew O'Donnell for the Applicant and Mr George Lloyd for the Respondent. Their joint town planning report was tendered as Exhibit D in the proceedings. In addition to their joint report the planning experts were called for cross examination.
The Court was assisted by heritage experts, Ms Ruth Daniell for the Applicant and Mr Zoltan Kovacs for the Respondent. Their joint heritage report was tendered as Exhibit E in the proceedings. In addition to their joint report the planning experts were called for cross examination.
The Court was assisted by arboriculture experts. Individual expert reports were prepared by Mr Andrew Bouchier for the Applicant (Exhibit B) and Mr Andrew Simpson for the Respondent (Exhibit 4). In addition to their reports the experts were called for cross examination.
The Court was assisted by traffic experts, Mr Andari for the Respondent and Mr Hollyoak for the Applicant. Their joint report was tendered as Exhibit C in the proceedings. In addition to their reports the experts were called for cross examination.

Should the requirement to provide a splay in the boundary wall be maintained?

Mr Andari and Mr Hollyoak note the following areas of agreement in their joint report: "a. The driveway currently serves a double garage at the subject property and also serves garages from the adjacent property although these garages have an alternate access available on Trelawney Street. b. Councils primary concerns relates to the lack of a pedestrian sight distance splay as recommended in Section 3.2.4 of AS/NZ2890.1. c. The splay to the right of emerging vehicles [from the property] cannot be provided by the applicant as it is in third party ownership." (Exhibit C)
The diagram in AS/NZ2890.1 to which the traffic experts refer is extracted below:
Further, the traffic experts agree that if a splay was to be provided it would not require the existing sandstone wall to be altered. They agree that a splay would only be required for a fence above the existing sandstone wall, from a height of approx. 900mm.
It is Mr Andari's evidence that the provision of a splay is required to ensure pedestrian safety on the footpath adjacent Edgecliff Road. It is his view that 'A splay will certainly improve sightlines for pedestrians in the left side of the driveway (viewed from [a] motorist exiting out of the right-of-way)' (Exhibit C).
To address visibility on the right side of the driveway Mr Andari recommends the imposition of a condition requiring a mirror to be placed within splay area on the right-hand side as identified in Figure 3.3 of AS/NZ2890.1.
Mr Hollyoak accepts that the works suggested by Mr Andari are 'possible and would provide the pedestrian splay in accordance with the Australian Standard' (Exhibit C). However, Mr Hollyoak also notes that the provision of such splays are not common in the locality and that 'if the existing character of the area is to be retained (i.e. no splay corner is provided), then the existing situation could be made safer with the provision of a mirror' (Exhibit C).
In the Joint report Mr Hollyoak identifies his preferred location for a convex mirror as follows (the subject site being to the right of the photo):
Mr Hollyoak has also examined the crash history for the section of Edgecliff Road in proximity to the site and has extracted a summary of the data in the joint report. He notes that in the data, dating back to 2014, no pedestrian crashes are recorded.
Mr Hollyoak concludes that whilst there are currently intermittent views to the right of a vehicle exiting the driveway (through existing hedges) the view to the left is obscured by the existing brushwood fence. Given the new fence is to be located in the same alignment as the existing brushwood fence, this conclusion would apply also to the proposed development.
The experts were subjected to cross examination. Mr Andari was questioned by Mr Holland about the applicability of the exemptions detailed at E1.10.6 of DCP 2015 (refer paragraph [23]). It was Mr Andari's evidence that he disagreed with the nomination of the subject location as a low pedestrian activity location and maintained his view that the splay was required. His reasoning was that the location experienced foot traffic and was proximate (within a 400m distance) of a local school.
In the alternative Mr Hollyoak argues that, firstly, the requirement for splays indicated in Figure 3.2.4 of AS/NZ2890.1 is a recommendation not a requirement and secondly that in his view the location is correctly identified as a low pedestrian environment and that therefore the exemption at E1.10.6 of DCP 2015 should apply. He disagrees with Mr Andari's evidence and argues that the subject site is more than 500m to the nearest school.
Mr Hollyoak concludes that the provision of the splay is not necessary, and that the installation of a convex mirror, in the location identified by him is sufficient to address any pedestrian risk.

Submissions

In his closing submissions Mr Holland emphasised that the development consent does not seek to increase the intensity of development on the subject site. It remains a single dwelling. As such he argues that the use of the driveway will not be intensified.
Further, Mr Holland argues the Court should give weight to the lack of crash history and the fact that a 90-degree configuration of the driveway with adjacent high walls is typical of the locality. It is Mr Holland's submission that pedestrians who utilise this stretch of Edgecliff Road would be familiar with, and regularly experience, vehicles exiting from driveways with this configuration. He argues that this familiarity would result in pedestrians and drivers being cautious.
Mr Holland concludes that if pedestrian safety is a concern for the Court the inclusion of a convex mirror within the splay on the right hand side of the driveway would, on Mr Hollyoak's evidence, be sufficient to obviate any risk and will have not have a detrimental impact on heritage or the streetscape presentation.
Mr Holland relies on the decision of Robson J in Stokes v Waverley Council (No 2) [2019] NSWLEC 174 at [64] and [70] and the provisions of s 4.17(1)(f) of the EPA Act to submit that the Court can impose a condition of consent requiring the installation of the convex mirror, notwithstanding it is on land contained within a driveway over which the subject site has a shared right of way.
Mr Rigg argues that in considering the modification the Court should consider whether the Applicant has provided an alternative means of meeting the objectives of the control at E1.10.6 of DCP 2015 as required by s 4.15 (3A)(b) of the EPA Act.
Mr Rigg argues that on Mr Andari's evidence the splay is required to ensure pedestrian safety. Further he submits that it is appropriate for the Court to apply the current standards applicable (as outlined in Figure 3.2.4 of AS/NZ2890.1), rather than the historical form of development that was reflective of safety requirements at that time.
Mr Rigg disagrees with Mr Holland's submission that it is appropriate to apply a condition to the consent as part of the modification application to require the provision of a convex mirror. He argues that such a condition is inappropriate as: it is uncertain as it seeks to bind another landowner who is not the Applicant; a convex mirror is ineffective at night; and doesn't address the need for a driver to observe pedestrians in the opposite direction.

Findings

Clause E1.10.6 'Driveways and access points' of DCP 2015 provides that driveways splays are to be provided in accordance with Figure 3.3 in Section 3.2.4 of AS/NZS 2890.1. The clause provides two specific exceptions, they are: "- for dwelling house, dual occupancies and attached dwellings in residential zones in low pedestrian activity locations15 a fence to a maximum height of 0.9m is permitted in the splay area. − where an object in the adjoining property creates an obstruction to visibility within the splay area."
The agreement of the traffic experts that the existing sandstone wall can be retained is consistent with circumstances identified in the first exception at cl E1.10.6 of DCP 2015.
Through the requested deletion of condition C1 (d), the Applicant seeks to vary the control at cl E1.10.6 requiring the provision of the splay and as an alternative seeks to construct a fence to the alignment of the boundary and install a convex mirror in the location nominated by Mr Hollyoak (see paragraph [35]). Applying s 4.15(3A)(b) of the EPA Act, where a development application does not comply with a specific standard in DCP 2015 the Court is to be flexible in the application of the provisions and allow reasonable alternative solutions that achieve the objects of those standards.
I accept the submission of Mr Rigg that the relevant objectives for the purposes of s 4.15(3A)(b) of the EPA Act are the objectivesat E1.1.3 of DCP 2015, namely: "O1 To minimise the amount and impact of vehicular traffic generated due to proposed development. O2 To ensure that development generating vehicular traffic makes adequate provision off street for the car parking and servicing needs of its occupants and users, including residents, employees, visitors and deliveries. O3 To ensure the safe and efficient movement of vehicles within, entering and leaving properties."
In considering the evidence and submissions of the parties I am satisfied it is appropriate to not accept the applicant's alternative solution of the provision of a convex mirror as a reasonable alternative to the provision of a splay. My reasoning is as follows:

In the circumstances the most relevant objective of the control is 03 which seeks to provide both safe and efficient movement of vehicles in entering and leaving properties. The provision of a clear line of sight to any approaching pedestrians by the provision of a splay in the proposed fence furthers both objectives.
Despite the prevalence of existing driveways within the vicinity of the site where historically the provision of a splay to improve sightlines has not been required, I accept the submission of Mr Rigg that it is appropriate for the Court to apply the current standards applicable (as outlined in Figure 3.2.4 of AS/NZ2890.1), rather than the historical form of development that was reflective of safety requires at that time.
I accept the agreement of the experts that the existing sandstone fence can be retained on the boundary alignment and the provision of a splay would only be required to a new fence that exceeds 900mm in height from the driveway.
I am not persuaded that it is appropriate to vary the control at cl E1.10.6 requiring the provision of the splay in the circumstances of the case.

I am satisfied that the applicant's request to delete condition C1 (d) from the consent should not be granted.

Should the requirement to retain Melaleuca quinquenervia be maintained?

The subject site includes a Melaleuca quinquenervia (broad leaf paperbark) in proximity to the existing garage. In the development consent the tree is designated as tree 1. The works authorised by the original development consent included an increase to the width of the garage, in proximity to the broad leaf paperbark.
In the granting approval to the development the Council included a condition (C1 (e)) on the original development consent requiring the retention of the broad leaf paperbark and two other trees. As part of the modification application, the Applicant seeks to remove the requirement to retain the broad leaf paperbark.
A revised arboricultural report, prepared by Andrew Bouchier, was provided with the modification application. In July 2020, the Court provided leave for the Applicant to rely on further documentation in support of the modification application. This information includes:

A tree application for 380 Edgecliff Road, Woollahra.
Sewerage information indicating the approximate position of the main sewer line (managed by Sydney Water) and sewer branch lines to the premises in proximity to the broad leaf paperbark.
Plumbing report in relation to an incident and call out to the property on 17 October 2018.
A diagnostic report of root samples prepared by the Royal Botanic Garden's Plant Clinic dated 29 October 2018.
Plan of proposed replacement planting prepared by Paul Bengay, dated 13 November 2018.
(Exhibit F)

I have read these documents and considered their conclusions in the assessment of the modification application.
The arboricultural report makes the following conclusions about the broad leaf paperbark: "The tree is a mature example of the species that is yet to reach its full growth potential. It was planted in an unsuitable location where it is conflicting with various structures most notably the ongoing interference with a 225mm vitrified clay sewer that serves multiple households as well as the sewer branch lines to the house. The tree will continue to interfere with existing structures as it continues to mature and reach its growth potential. Removal and replenishment is supported for this tree." (Exhibit F)
The arboricultural report assigns a Tree Useful Life Expectancy (TULE) rating of Short (3D). Such a rating applies to 'Trees that require substantial intervention works and are only suitable for retention in the short term'. Further, the arboriculture report summarises the health and structural condition of the tree as follows: 'Mature species, good condition but poor development or habit, has an unbalanced canopy, has a lean towards the house, has minor bark inclusions'. The broadleaf paperbark is given a risk assessment rating of medium on the basis that the tree is proximate to the dwelling and whilst failure potential is not likely to occur it could happen. Finally, a tree retention value of moderate is assigned on the basis that: "- the tree has no known or suspected historical association but does not detract or diminish the value of the item, - the tree is a locally native species however it appears to have been planted, - the subject tree has a medium live crown exceeding 40m²; is a fair representation of the species that exhibits a minor lean and moderate canopy suppression, - the tree is visible from surrounding properties but is not visually prominent as its obscured by other vegetation and built forms. - The tree makes a fair contribution to the visual character and amenity of the area." (Exhibit F)
In his expert report, Mr Bouchier provides the following additional evidence in support of the proposed removal of the broad leaf paperbark: "16. Tree number 1 - The Paperbark is located on the southern boundary adjacent to the driveway and garage. The tree appears to be of good health and vigour but has had a number of growth obstructions since planting that would have affected natural tree and root development. These include a small retaining wall, sealed driveway, paved area and garage building that are all within the Structural Root Zone (SRZ) of the tree. The tree has a reduced TULE (tree useful life expectancy due to the substantial remedial plumbing works that are required to maintain an operating plumbing system. These works are likely to continue and possibly increase in occurrence as the tree is yet to reach its full biological potential. The approved excavation and construction works also cannot be carried out without compromising the stability of the tree as the new garage wall will move closer to the trunk of the tree and within the SRZ. (.55 m closer to the tree) 17. The impacts of both the approved and proposed construction will affect over 17% of the SRZ. This encroachment into the SRZ contravenes the Standard Protection of Trees on Development Sites AS 4970 - 2009 as there is NO allowance for works in the SRZ. Furthermore, there is no scope for the removal of any larger diameter (30mm+) roots within the SRZ to ensure both structural integrity and access to soil moisture and nutrients. 18. The removal of any such roots will also introduce decay into the base of the tree. This will likely impact on structural integrity further in time." (Exhibit B)
In the alternative Andrew Simpson argues that the broad leaf paperbark should be retained. He argues that the tree should be assigned a high retention value as the tree is healthy, with no significant structural defects and provides a contribution to the amenity and canopy cover of the immediate locality (Exhibit 4).
Further, Mr Simpson identifies that an objective of Chapter E.3 (Tree Management) of DCP 2015 is 'To find a balance between maintaining Woollahra's canopy cover and providing for development on private land'.
It is Mr Simpson's evidence that the information provided by the Applicant provides insufficient justification for the removal of the broad leaf paperbark. In particular he argues that: 1. The plumbing report and information provided by the NSW Botanic Gardens alleging damage to sewer pipework is insufficient on three grounds: firstly that roots entering dilapidated pipework is not uncommon, secondly repair and options to reline the pipework has not been explored by the Applicant, and finally DCP 2015 at Chapter E3 states that: 'In general removal of a tree will not be approved for minor damage to infrastructure such as retaining walls and pipes, where the damage can be repaired or the infrastructure restored with the retention of the tree' (Exhibit 4). 2. The development approved under the original development consent 'should be constructed with commonly used tree and soil sensitive techniques' (Exhibit 4). Mr Simpson argues that this may include the utilisation of the existing slab and supporting a small section of the boundary wall on piers or by cantilevering. It is Mr Simpson's evidence that if this approach was taken the tree can be retained.
Mr Holland submits that the Court should prefer the evidence of Mr Bouchier that the approved construction will affect the future viability of the broad leaf paperbark due to impacts to the trees structural root zone. He notes that the Applicant would accept a condition requiring the replacement of the broad leaf paperbark. He submits that the Court should grant the modification sought by the Applicant and allow the broad leaf paperbark to be removed.
Mr Rigg submits that on the evidence of Mr Simpson the removal of the broad leaf paperbark is unnecessary. Further, Mr Rigg argues that the admission in oral evidence that Mr Bouchier has not undertaken any root mapping is relevant as the Applicant has failed to demonstrate that the pier and beam construction with supports placed to avoid existing tree roots is not practicable.
Mr Rigg directs the Court to the decision of Horton C in Agar Developers Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1505 (Agar v Woollahra) as a representative example of how building work can be undertaken in proximity to an existing tree, whilst maintaining and ensuring its health.

Findings

On balance I prefer and adopt the evidence of Mr Simpson and accept his conclusion that the broad leaf paperbark can be retained with appropriate construction techniques, and that such techniques appropriate to the site are able to be determined through the additional arboricultural report foreshadowed by condition C1 (d) of the existing consent.
I agree with Mr Simpson's evidence, summarised at paragraph [63], and adopt his reasoning and conclusion that the additional the information provided by the Applicant provides insufficient justification for the removal of the broad leaf paperbark.
I am not persuaded by the evidence of Mr Bouchier that the approved excavation and construction works also cannot be carried out without compromising the stability of the tree. The methodology of utilising pier and beam construction, cantilever or a combination of root mapping and hand excavation, suggested by Mr Simpson, are techniques utilised to minimise tree damage, for example: Scully v Hornsby Shire Council [2020] NSWLEC 1347 and Agar v Woollahra.
I am satisfied that the applicant's request to delete condition C1 (e) from the consent should not be granted.

Is the proposed variation to the development controls at C2.5.7 of DCP 2015 for the front fence supportable?

Is the fencing of a height and scale that is consistent with the desired future character of the area?

In granting consent to the modification, the Respondent required the deletion of both the front and side fences, in part due to a lack of compliance with DCP 2015.
Since the imposition of the condition the Applicant has amended their fence design to incorporate the retention of the existing sandstone wall at the front boundary and part of the side boundary. This retention is supported by the experts in the proceedings.
In the joint planning report the experts agree that proposed side fence at a height of 1.8 m is acceptable. On this basis Mr Rigg submits this amendment is not objected to, ie. the deletion of condition C.1 (b), on the basis of the amended plans.
The planning experts, Mr George Lloyd for the Respondent and Mr Matthew O'Donnell for the Applicant, disagree as to the merits of the proposed front fence.
In short Mr Lloyd's evidence is that the proposed front fence design is inappropriate in the context and in the specific circumstances where an existing sandstone fence is required to be retained. His reasoning is as follows: 1. The fence does not promote a high standard of design in either the public or private domain, 2. the proposed masonry fence, sitting atop the existing sandstone fence, does not achieve or reinforce the desired future character, 3. the proposed height of the fence is unsympathetic to the desired future character of the HCA and will not contribute positively to the streetscape, 4. there has been no detail provided by the Applicant that demonstrates how 'such a significant structure will be able to retain the existing sandstone retaining wall/fence beneath it, which appears to be in a dilapidated condition' (Exhibit D). Later in the joint report Mr Lloyd argues that there is a lack of evidence before the Court that demonstrates that the existing sandstone fence can bear the weight of the proposed fence structure, and 5. The front fence remains a variation to the development controls at Part C2.5.7 of DCP 2015 which require the front fence to have a maximum height of 1.5m.
In the joint report Mr Lloyd details an alternative layout for the front fence that would be acceptable to the Council, which was not embraced by the Applicant and, as it is not the modification sought, I have not addressed it in this judgment.
In the alternative, Mr O'Donnell argues that the proposed front fence sought by the modification is acceptable and that the modification should be approved. His reasoning is as follows: 1. The detailed section of the proposed front fence provided by the Applicant demonstrates that the new front fence/wall will match the existing height of the current fence, 2. Such tall front fences are common in the locality, especially in the immediate vicinity of the subject site. In fact, the proposed front fence is of a lesser scale and height than other, similar, fences in Edgecliff Road. 3. The proposed height and scale of the front fence and wall will not alter the existing or future character of the neighbourhood.
Mr O'Donnell agrees that no details have been provided 'demonstrating how such a structure [the wall] will be able to retain the existing sandstone retaining wall beneath it' (Exhibit D). It is Mr O'Donnell's evidence that a condition of consent could be imposed to address this issue. His suggested wording for such a condition is as follows: "Structural Adequacy The applicant is required prior to the issue of a Construction Certificate, to provide a Structural Report to Council that has been prepared by a suitably qualified Structural Engineer to demonstrate the structural adequacy of the existing sandstone wall to accommodate a wall/fence as shown in Fence Detail Plan DA401-Rev A. If the Structural Report provided to the Council demonstrates that some repairs to the sandstone wall are required to achieve structural adequacy, then those repairs are to be undertaken prior to the commencement of works on the wall atop of the sandstone retaining wall. If the Structural Report concludes that the existing sandstone retaining wall will not be capable of structurally supporting a wall atop the sandstone structure, then the Applicant is to relocate the wall/fence to abut the rear of the sandstone wall and be built immediately behind the sandstone wall with appropriate footings recommended by the structural engineer that will not undermine the structural integrity of the existing sandstone wall." (Exhibit D)
In the joint report Mr Lloyd argues that 'in order to ensure the integrity and future retention of the sandstone wall, a detailed structural assessment of it must be undertaken prior to the Construction Certificate stage which will determine whether the weight of the additional masonry wall can be supported' (Exhibit D).
The heritage experts, Ms Daniell and Mr Kovacs also provided evidence to the Court on the suitability of the proposed height of the front fence, whether the fencing is compatible the desired future character of the locality and whether the development will have a detrimental impact on the environmental heritage objectives of LEP 2014.
Ms Daniell and Mr Kovacs agree that the existing sandstone retaining wall with sandstone capping 'may have a historic association with the curtilage of the original house "Quirang" which was demolished in 1966' (Exhibit E). Further, they agree that in the vicinity of the site, and the HCA, sandstone fences are characteristic in the streetscape.
The heritage experts make the following agreed comments in relation to the condition of the existing sandstone wall and summarising their concerns about the feasibility of the proposed fence: "The site inspection confirmed that the sandstone wall is a rubble stone wall, built from roughly finished sandstone with pitched capping stones and mortar joints of low cement content. The low adhesive ability of the mortar is exacerbated by the presence of very little mortar between the blocks, with large gaps. In the experience of the experts, similar garden walls have shallow or no footings. Such a wall is not designed to carry the additional load represented by the proposed masonry wall and it may fail, leading to collapse. The documents do not explain how this would be prevented. For the experts it is not possible to conceive of a solution that would not require dismantling and reconstructing sections of the wall to provide a sound base in order to generate the required structural safety for the new wall. Article 21.2 of the Burra Charter requires that: "Adaptation should involve minimal change to significant fabric, achieved after considering alternatives". Under Article 3 the Burra Charter also requires a cautious approach of changing as little as possible. The experts agree that the proposal of building on top of the wall is contrary to the requirements of the Burra Charter, because it disregards the simple alternative, which would avoid any damage or disturbance to the sandstone fabric, that is by building the new wall behind the existing wall." (Exhibit E)
The heritage experts also agree that the 1.8m high side boundary fence is otherwise acceptable and that if a splay is to be required, the existing sandstone wall should be retained on its existing boundary alignment.
It is Ms Daniell's evidence that the height of the proposed front fence and its design are acceptable. It is her conclusion that the height of the proposed fence will not unduly block views of the contributory building nor be intrusive in the streetscape. Her reasoning is that the subject property is a free-standing dwelling which, in the locality, are associated with taller fences. Further, tall fences are not uncharacteristic in the locality generally. It is Ms Daniell's assessment that the proposed fence will be in proportion to the retained sandstone fence and the height of the existing dwelling. Ms Daniell is supportive of the modification and articulation of the proposed fence design.
In her evidence Ms Daniell does express a preference for an alternative to the design proposed by the Applicant, namely that the brick fence be constructed adjacent to the rear of the sandstone wall rather than on top of it. This preference is expressed as being responsive to the agreed comments of the experts at paragraph [82].
In the alternative Mr Kovacs argues that the height of the existing and the proposed fencing to the front boundary is visually intrusive in the streetscape. He argues that the proposed masonry wall, varying in height from 2.26 to 2.55m with projecting masonry columns, is excessive and will unreasonably screen views of the contributory building. Mr Kovacs concludes that the variation to the control of 1.5m should only be supported if the proposed fence was set back from the front boundary. In contrast to Ms Daniell, Mr Kovacs argued that whilst high fences are present in the HCA and the locality, they are not desirable elements of the streetscape. On this basis Mr Kovacs does not support the front fence in the form proposed by the modification application.
In his oral evidence Mr Kovacs drew the Court's attention to the detailed section of the fence. He expressed concern that the detail appeared to indicate that the existing sloped coping of the fence would need to be removed for the construction of the new fence. In oral submissions Mr Holland confirmed that the Applicant is not seeking to remove the coping as part of the modification application.
In his submissions Mr Holland seeks for the Court to also give weight to the site-specific characteristics which result in an effective height of the fence at the front yard of a minimum of 1m (Exhibit D). He submits that in these circumstances a fence that was compliant with the development controls at Part C2.5.7 of DCP 2015 would not provide a satisfactory outcome for privacy or security for the Applicant due to the elevated nature of the properties front yard.
In his submissions Mr Rigg emphasises that in seeking a variation to the development controls at Part C2.5.7 of DCP 2015 the Applicant is required to provide an alternative that is consistent with the objectives of the control: s4.15(3A)(b) of the EPA Act. The relevant objectives are reproduced at paragraph [20]. Mr Rigg submits that, on the basis of the evidence the fencing proposed in the modification application does not meet these objectives.

Findings

After considering the evidence and submissions of the parties for the following reasons I am satisfied that the proposed height and scale of the front fence and wall is appropriate and compatible with the desired future character of the area in the specific circumstances of the case.
In considering what constitutes the desired future character of an area it is relevant to consider at least the zoning of the land, the zone objectives, the range of permissible uses, the development standards, and in this case the designation of heritage significance of the area under LEP 2014: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (Woollahra v SJD) at [52]. These provisions do not exhaustively define and fix the desired future character, it is also relevant to look at existing built and natural elements in the locality as well as approved developments: Woollahra v SJD at [54] and [63].
The subject site is zoned R3 Medium Density residential with a range of uses permissible with consent, including residential flat buildings, centre based childcare facilities, office premises and public administration buildings. The objectives of the zone include the provision of housing within a medium density environment (emphasis added). The maximum building height for the subject site under LEP 2014 is 19.5m. In my view these elements are indicative of a future character that is an urban form of an increasing density, moderated by the areas heritage values.
I accept the evidence of Mr O'Donnell and Ms Daniell that tall front fences are common in the locality, especially in the immediate vicinity of the subject site. I accept their evidence that the proposed front fence is of a lesser scale and height than other, similar, fences in Edgecliff Road.
In assessing compatibility of development with desired future character it is permissible to have regard to the relevant provisions of DCP 2015: Woollahra v SJD at [50].
The subject site is located within a HCA. At Part C of DCP 2015 the Council has drafted specific requirements for fencing, gates and retaining walls in HCA's at C2.5.7. It is accepted by the parties that the modification application seeks a variation to these controls by varying the height from the standard of 1.5m to a variable height of between 2.25m - 2.5m when measured from the Edgecliff Road side of the fence.
In considering the variation sought it is relevant to consider if the variation achieves the objective of the standard: s 4.15(3A)(b) of the EPA Act. The relevant objectives of these standard are: "O1 To ensure the removal, and prevent the construction, of non-original, intrusive tall masonry fences on street alignments. O2 To ensure fences, walls and gates contribute positively to the streetscape and improve safety and amenity for residents"
I accept the evidence of Ms Daniell that the proposed fence would be in proportion to the retained sandstone fence and the height of the existing dwelling and that the fence has appropriate modification and articulation. In the context of the subject site and the development standards I am satisfied that the fence will not be intrusive in the streetscape.
By reference to the survey that forms part of the Class 1 Application the relative level (RL) of the natural surface area of the properties front yard varies between RL 60.800 and RL 61.150. The height of the proposed fence is RL 62.150, providing a minimum internal height of 1m and a maximum internal height of 1.35m. I accept the submission of Mr Holland that these are site specific characteristics that are relevant to an assessment of the merits of the variation.
I am satisfied that the modification sought by the Applicant to delete condition C1 (d) should be allowed.
As detailed at paragraph [75(4)] and [78] a number of the experts expressed concern in relation to the potential impact of the proposed works on the existing sandstone fence.
The Applicant's primary position, as put by Mr Holland, is that the following condition drafted by Mr O'Donnell, is valid and can be imposed on the modification application pursuant to s 4.17(1)(a) and s 4.17(1)(g) of the EPA Act. "The applicant is required prior to the issue of a Construction Certificate, to provide a Structural Report to Council that has been prepared by a suitably qualified Structural Engineer to demonstrate the structural adequacy of the existing sandstone wall to accommodate a wall/fence as shown in Fence Detail Plan DA401-Rev A. If the Structural Report provided to the Council demonstrates that some repairs to the sandstone wall are required to achieve structural adequacy, then those repairs are to be undertaken prior to the commencement of works on the wall atop of the sandstone retaining wall. If the Structural Report concludes that the existing sandstone retaining wall will not be capable of structurally supporting a wall atop the sandstone structure, then the Applicant is to relocate the wall/fence to abut the rear of the sandstone wall and be built immediately behind the sandstone wall with appropriate footings recommended by the structural engineer that will not undermine the structural integrity of the existing sandstone wall." (Exhibit D)
In the alternative Mr Rigg raises concern that the condition is unclear and uncertain on the basis that the outcome of the engineering report sought by the condition is unknown.
I note Mr Lloyd raises no concern or objection to the suggested condition in the joint report of the planning experts and as detailed at paragraph [79] accepts that such an assessment can occur prior to Construction Certificate.
I accept the evidence of Mr O'Donnell and the submissions of Mr Holland that the imposition of the proposed condition is consistent with s 4.17(1)(a) and (g) of the EPA Act. Further, I am satisfied that the imposition of the condition is not unreasonable in the circumstances of the proposed development. Finally, I am satisfied that the concerns of Mr Rigg in relation to uncertainty may be addressed by the addition of the following condition, in addition to the condition detailed at paragraph [101]: "Nothing in this consent provides approval for the demolition, dismantling or reconstruction of the existing sandstone retaining wall fronting Edgecliff Road and the properties side boundaries."
In my view the imposition of such a condition addresses the Respondent's concerns about the potential for detrimental impact to the fabric of the sandstone wall are not realised. Further, I am satisfied that the condition at paragraph [101] , as framed does not result in the inappropriate deferral of determination of a matter: Mison v Randwick City Council [1991] NSWLR 734.

Does the modification application have a detrimental impact on the contributory item or the HCA?

As required by cl 5.10(4) of LEP 2014 the Court, prior to granting consent to development in a HCA, the consent authority must consider the effect of the proposed development on the heritage significance of the item or area concerned.
Consistent with my findings I am satisfied that the proposed works the subject of the modification application will not have a detrimental impact on the HCA sufficient to warrant refusal.

Conclusion

As a result of the preceding findings the consent is to be modified as follows (strikeout sections to be deleted): C.1 Modification of Details of the Development (section 4.17(1)(g) of the Act) The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: a) Deletion of the proposed front fence The proposed front fence must be deleted. Reason: The proposed height of the front fence exceeds 1.5m and is non-compliant with Chapter C2, Clause C2.3.1 Objective O4; and Clause 2.5.7, Objective O1 and Control C3 of the Woollahra DCP 2015. b) Deletion of the proposed side fence The proposed south -eastern side boundary fence must be deleted. Reason: The proposed height of the side boundary fence exceeds 1.8m and is non-compliant with Chapter C2, Clause 2.5.7, Control C4 of the Woollahra DCP 2015. c) Retention of the original front sandstone retaining wall The original front sandstone wall must be retained. Reason: Removal of the front sandstone fence would be contrary to Chapter C2, Clause 2.5.7, Objective O3, O4, Control C10 and C11 of the Woollahra DCP 2015. d) Splayed driveway A 2m x 2.5m splay corner at the driveway exit must be incorporated, with the exception of the retained sandstone wall. Reason: To ensure that adequate sight lines are provided to pedestrians and drivers at the site frontage as required by Clause 3.2.4 of AS2890.1 and Chapter E1.10.6 of the Woollahra DCP 2015. e) Revised Arborists Impact Assessment Report A revised Arborists Impact Assessment Report detailing the retention and protection of Tree 1, Tree 8 and Tree 9 must be submitted to Council for approval. Tree 1: Melaleuca quinquenervia is to be retained. (remainder of existing condition is retained) C.1A: Structural Report - Sandstone Wall The applicant is required prior to the issue of a Construction Certificate, to provide a Structural Report to Council that has been prepared by a suitably qualified Structural Engineer to demonstrate the structural adequacy of the existing sandstone wall to accommodate a wall/fence as shown in Fence Detail Plan DA401-Rev A. If the Structural Report provided to the Council demonstrates that some repairs to the sandstone wall are required to achieve structural adequacy, then those repairs are to be undertaken prior to the commencement of works on the wall atop of the sandstone retaining wall. If the Structural Report concludes that the existing sandstone retaining wall will not be capable of structurally supporting a wall atop the sandstone structure, then the Applicant is to relocate the wall/fence to abut the rear of the sandstone wall and be built immediately behind the sandstone wall with appropriate footings recommended by the structural engineer that will not undermine the structural integrity of the existing sandstone wall. C.1AA: Sandstone Wall Nothing in this consent provides approval for the demolition, dismantling or reconstruction of the existing sandstone retaining wall fronting Edgecliff Road and the properties side boundaries.
Consequential amendments are also required to the conditions to refer to the plans for which consent is sought in the modification application.

Orders:

The orders of the Court are: 1. By consent the Applicant is granted leave to amend its Class 1 Application of 5 December 2019 to refer to section 8.9 of the Environmental Planning and Assessment Act 1979, 2. The appeal is upheld, 3. Development consent DA/154/2019 dated 25 November 2019 for the replacement of the existing double garage with a new double garage, new boundary fence and pedestrian entry at 380 Edgecliff Road, Woollahra (Lot 4 in DP 217478) is modified as follows, and is subject to the consolidated modified conditions at Annexure A: Condition A3 Approved Plans and Supporting documents Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with both the architectural plans and supporting documents listed below as submitted by the Applicant unless modified by any following condition: Reference Title Author Date Drawing No. S4.55-100 Revision E Site Plan De Moyer Architecture 10 September 2019 Drawing No. S4.55-200 Revision E Proposed Ground Floor Plan De Moyer Architecture 10 September 2019 Drawing No. S4.55-300 Revision E North- East and North- West Elevations De Moyer Architecture 10 September 2019 Drawing No. S4.55-301 Revision E South- East and South- West Elevations De Moyer Architecture 10 September 2019 Drawing No. S4.55-401 Revision A Proposed Fence Details De Moyer Architecture 25 June 2020 Drawing No. S4.55-500 Revision E External Finishes Schedule De Moyer Architecture 10 September 2019

Condition C.1 Modification of Details of the Development (Section 4.17(1)(g) of the Act). The approved plans and the Construction Certificate plans and specifications required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: c) Retention of the original front sandstone retaining wall The original front sandstone wall must be retained. Reason: Removal of the front sandstone fence would be contrary to Chapter C2, Clause 2.5.7, Objective O3, O4, Control C10 and C11 of the Woollahra DCP 2015. d) Splayed driveway A 2m x 2.5m splay corner at the driveway exit must be incorporated, with the exception of the retained sandstone wall. Reason: To ensure that adequate sight lines are provided to pedestrians and drivers at the site frontage as required by Clause 3.2.4 of AS2890.1 and Chapter E1.10.6 of the Woollahra DCP 2015. e) Revised Arborist's Impact Assessment Report A revised Arborist's Impact Assessment Report detailing the retention and protection of Tree 1, 8 and Tree 9 must be submitted to Council for approval. Tree 1 Melaleuca quinquenervia is to be retained. (remainder of existing condition is retained) C.1A: Structural Report - Sandstone Wall The applicant is required prior to the issue of a Construction Certificate, to provide a Structural Report to Council that has been prepared by a suitably qualified Structural Engineer to demonstrate the structural adequacy of the existing sandstone wall to accommodate a wall/fence as shown in Fence Detail Plan DA401-Rev A. If the Structural Report provided to the Council demonstrates that some repairs to the sandstone wall are required to achieve structural adequacy, then those repairs are to be undertaken prior to the commencement of works on the wall atop of the sandstone retaining wall. If the Structural Report concludes that the existing sandstone retaining wall will not be capable of structurally supporting a wall atop the sandstone structure, then the Applicant is to relocate the wall/fence to abut the rear of the sandstone wall and be built immediately behind the sandstone wall with appropriate footings recommended by the structural engineer that will not undermine the structural integrity of the existing sandstone wall. C.1AA: Sandstone Wall Nothing in this consent provides approval for the demolition, dismantling or reconstruction of the existing sandstone retaining wall fronting Edgecliff Road and the properties side boundaries. 1. The exhibits are returned with the exception of A, 1 and 3.

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: 18 September 2020

(2004) 136 LGERA 254

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (6)