120 Smith Pty Ltd v Campbelltown City Council [2021] NSWLEC 1086

Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing development – local heritage item – identification of a heritage curtilage – form of the development is inconsistent with objectives for low density residential zon e – inadequate site analysis Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: 120 Smith Pty Ltd v Campbelltown City Council [2021] NSWLEC 1086 Hearing dates: 2-5 November 2020 Date of orders: 19 February 2021 Decision date: 19 February 2021 Jurisdiction: Class 1 Before: O’Neill C Decision: The orders of the Court are: (1) The appeal is dismissed . (2) D evelopment Application No. 4457/2018/DA-M for the construction of a multi dwelling housing development, associated site works and alterations and additions to the existing house , at 50 Badgally Road, Claymore, is refused . (3) The exhibits, other than E xhibits 1, A, B and C , are returned. Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing development – local heritage item – identification of a heritage curtilage – form of the development is inconsistent with objectives for low density residential zon e – inadequate site analysis Legislation Cited: Campbelltown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2015 Category: Principal judgment Parties: 120 Smith Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: H Grace (Applicant) M Wright SC (Respondent) Solicitors: Salim Rutherford Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/396347 Publication restriction: No Judgment COMMISSIONER : This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 4457/2018/DA-M (the development application) for the construction of a multi dwelling housing development, associated site works and alterations and additions to the existing house (the proposal) at 50 Badgally Road, Claymore (the site) by Campbelltown City Council (the Council). The appeal was subject to conciliation on 13 August 2020 , in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. On 7 October 2020, the applicant was granted leave by the Court, subject to a cost order pursuant to s 8.15(3) of the EPA Act, to rely on further documentation set out in an Amended Notice of Motion (filed 28 September 2020). At that time, t he applicant abandoned any application to amend the architectural or landscape plans. The applicant maintained this position during the hearing, submitting that an approval could be conditioned to amend the proposal, and relied on the proposal referred to by the parties as the “ HH plans ” , being the architectural plans revision HH contained in Exhibit A ff 1-85 , which are the architectural plans the subject of the Class 1 application filed 17 December 2019 . The hearing commenced onsite with a view of the site and the hearing thereafter was conducted via M icrosoft Teams. At the end of the fourth hearing day, the parties nominated a timetable for the filing of written submissions and conditions of consent and a direction was made to give effect to the agreed timetable . The Council filed the conditions of consent on 4 December 2020 and the applicant filed an alternative version of the conditions of consent on 8 December 2020. Despite the parties agree ing that written submissions would be filed by 3 December 2020, written submissions were not filed, and the parties did not communicate with the Court to advise that there had been a slippage in the timetable . A mention by telephone was listed on 4 December 2020 . In response to the listing, the applicant filed Short Minutes of Order seeking an extension of the timetable until 24 December 2020. The parties were directed to file the combined conditions document by 7 December 2020 and their written submissions by 10 December 2020. The applicant filed written submissions on 8 December 2020 and the Council filed written submissions on 10 December 2020. T he parties , by agreement, dictated the timetable for the filing of written submissions. The timetable represented a generous amount of time , four weeks, to file conditions and written submissions in Class 1 proceedings and then a further extension of one week was granted . The delay in filing written submissions was unjustified. I did hear a summary of each party ’ s position in closing submissions and I am satisfied that the parties were given a reasonable and adequate opportunity to present their case over the four days of the hearing and to provide written submissions following the hearing . It is not enough to pursue outcomes merely by reference to the convenience of the parties to the proceedings, because there are other considerations to be taken into account , including the efficient use of the Court ’ s resources and the facilitation of the just, quick and cheap resolution of the real issues in the proceedings : Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 ; [2009] HCA 27 . Issues The Council ’ s contentions can be summarised as : The proposal is inconsistent with and antipathetic to the Campbelltown Local Environmental Plan 2015 (Amendment No 17) which prohibits the proposed development; The proposal will have a severe and unacceptable impact upon the site ’ s heritage significance, because the proposal has failed to consider the impact of the works on the heritage significance of the site, including impacts on built elements including the house and the barn ; as well as on the entry driveway ; on the remnant garden and trees ; and on views and historic connections. The proposal fails to consider the policies or satisfy recommendations made in the Conservation Management Plan (CMP) as the design was prepared prior to the preparation of the CMP; The proposal diminishes views to the site and adversely impact upon existing significant view corridors to and from the heritage house ; The proposal fails to appropriately consider the value of the historic cultural landscape of the site ; The proposal fails to appropriately respond to site conditions and comply with the maximum cut and fill requirements within a residential zone; The proposal has not demonstrated that the density of dwelling proposed is capable of being serviced by essential services; The mandatory requirements of cl 7(1) of State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55) have not been satisfied; The acoustic assessment report provided in support of the proposal is inadequate and fails to provide sufficient information to enable evaluation of noise control measures and to verify conclusions in the report . The site is adjacent to the Hume Motorway and therefore the acoustic requirements under cl 102 of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) are triggered; The proposal contains insufficient information in relation to the management and disposal of stormwater and in relation to the location, management and treatment of water quality devices; The proposal fails to detail all retaining walls as a result of substantial earth works required to facilitate the proposed density and built form; The proposal fails to demonstrate safe, adequate, accessible and convenient waste management facilities will be provided; The proposal is uncharacteristic of development envisaged within the R2 Low Density Residential zone and would adversely impact upon the existing and future desired streetscape; The proposal does not provide a satisfactory traffic management solution . The proposal fails to consider upgrade works along Badgally Road and fails to demonstrate how the proposal integrates with those new works; The proposal does not provide acceptable amenity for future occupants, including adequate solar access; The proposal is an overdevelopment of the site and the site is unsuitable for the type of development proposed; The proposal represents an undesirable precedent and is not in the public interest having regard to the number and nature of the non-compliances with the planning controls and objectives; and Insufficient information was provided to enable an adequate assessment of the impacts of the proposal. The 1:500 floor plans and elevations are at a scale that is too small to properly assess the relationship between dwellings and the adjacent finished ground levels and plans at a scale of 1:200 are required. The site and its context The site is legally described as Lot 2 in DP 1017017 . The site is on the north-eastern side of Badgally Road, Claymore, between Glenroy Drive and the Hume Motorway. The site is accessed via an existing driveway from Badgally Road, along the north-western boundary of the site. The Hume Motorway (M31) is adjacent to the site and runs approximately parallel to the south-eastern boundary of the site. The site has an area of 2. 343 hectares ( ha ) and is approximately rectangular in shape with a frontage of Badgally Road of 84.735m. The existing house on the site is located on a knoll, and the topography falls to the southern and northern corners of the site. The site is known as “ Hillcrest ” . The site contains a house constructed c . 188 4-88 , a barn and a range of modern out-buildings. The site includes a number of mature trees and dense vegetation. The house and the site contain hoarded items stored in a chaotic manner resulting in significant amounts of clutter, making it difficult to observe and access certain areas of the house and site. The adjoining site to the north-west, at 2 Dobell Road and on the corner of Badgally Road and Glenroy Drive, is known as “ Glenroy House ” and is a public park with a wire fence excluding public access to the heritage listed house on the property. The redevelopment site “ Hillcroft ” is to north of the site. Background and the proposal The development application was lodged on 10 December 2018 . The Council ’ s Local Planning Panel refused the development application on 27 November 2019. The proposal includes the following ( DA-10, Ex A, f 10) : Total of 75 dwellings, including 73 new dwellings in terraced rows, identified as dwellings D.01-D.12 fronting Badgally Road, dwellings C.01-C.17 adjacent to the north-eastern boundary, dwellings A.01-A.28 adjacent to the south-western boundary (separated by Road A), and dwellings B.01-B.16 adjacent to the north-eastern boundary ; Alterations and additions to the existing house (unit C.18) ; R elocation of the existing barn and alterations and additions to form a dwelling (unit B.17) ; Roads A, B, C and D and designated visitor parking; Common open space in the centre of the site and around the existing house and relocated barn. Planning framework The site is zoned R2 Low Density Residentia l pursuant to Campbelltown Local Environmental Plan 2015 (LEP 2015) . The proposal is for multi dwelling housing, which is defined in the dictionary of LEP 2015 as follows: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. At the time the application was lodged, multi dwelling housing was permitted with consent in the R2 zone. Multi dwelling housing became prohibited in the R2 zone under Amendment No. 17 to Campbelltown Local Environmental Plan 2015 (LEP 2015 (Amendment No. 17)), which commenced on 22 November 2019 . LEP 2015 ( Amendment No. 17 ) included a savings and transitional provision for applications made before the commencement of LEP 2015 (Amendment No. 17) but not finally determined, at cl 1.8A(2). The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale. • To minimise overshadowing and ensure a desired level of solar access to all properties. • To facilitate diverse and sustainable means of access and movement. The site is listed as a local heritage item (Sch 5, Pt 1 to LEP 2015 I tem 45 “ Hillcrest ” ). Clause 5.10(4) of LEP 2015 requires the consent authority , or the Court exercising the functions of the consent authority, to consider the effect of the proposal on the heritage significance of the item before granted consent under cl 5.10. The adjoining property at 2 Dobell Road , Claymore, is listed as a local heritage item (Item 44, “ Glenroy Cottage ” ). The statement of significance for the heritage item Hillcrest is as follows (Ex B, tab G15, f 580): ‘Hillcrest’, constructed c. 1884-88 and a stables constructed c. 1891, has local historic significance for its association with William Fowler and the Woodhouse family, who were both prominent in the Campbelltown area. ‘Hillcrest’ is a modest, representative example of the Victorian Filigree style. Although it has been altered, the principal building form remains readily identifiable as belonging to this type and period. The site has remnants of a 19 th century garden, stables and driveway. Their integrity has been reduced due to their poor conditions and later additions. Clause 102 of the Infrastructure SEPP , which is in the following terms, applies to the proposal because the site is adjacent to the Hume Motorway (M31) . The guidelines referred to under subcl (2) is the Interim Guideline, ‘ Development near Rail Corridors and Busy Roads (Ex 11, f 339) : 102 Impact of road noise or vibration on non-road development (1) This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of RMS) and that the consent authority considers is likely to be adversely affected by road noise or vibration— (a) residential accommodation (2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette. (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded— (a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. The Campbelltown (Sustainable City) Development Control Plan 2015 (DCP 2015) applies to the proposal at Section 1.1.3. The Council submitted that Amendment No. 7 of DCP 2015, adopted by the Council on 9 July 2019, is the relevant version of DCP 2015 for this matter because it was the version that was current at the time that multi dwelling housing was permissible in the R2 zone . Section 3.6.6.1 of DCP 2015 (Amendment No. 7) guided the density and addresse d the requirements for multi dwelling housing in the R2 zone . Although DCP 2015 does not include a savings and transitional provision relating to applications made before the commencement of DCP 2015 (Amendment No. 7) but not yet determined, I accept the Council ’ s submission that Section 3.6.6.1 of DCP 2015 is relevant to my consideration of this appeal, because the number of dwellings proposed on the site by the development application was based on the terms of Section 3.6.6.1 . Section 3.6.6.1 include d the following objectives: “Encourage quality-designed multi dwelling houses that make a positive contribution to the streetscape and amenity of the neighbourhood. Ensure that multi dwelling housing with R2 Low Density Residential are of small scale and bulk. Ensure that multi dwelling housing offer a high standard of amenity for its occupants and maintains the amenity of other residents in the locality. Ensure that internal living areas are of appropriate size and dimensions having regard to the number of potential occupants of a dwelling within a multi dwelling housing development.” The general requirements for multi dwelling housing in the R2 zone, at Section 3.6.1.1 of DCP 2015, include d that a minimum of 10% of dwellings for developments with 10 or more dwellings be adaptable; the number of dwellings permitted within a multi dwelling housing development was not to exceed 2 dwellings for the first 700sqm and 1 dwelling for each 300sqm of land area thereafter, subject to the satisfaction of other requirements within the Plan; and there were minimum site dimensions which are met by the site. Setbacks for multi dwelling housing developments were included at Section 3.6.1.2 of DCP 2015 and are met by the proposal. Part 2, Section 2.2 Site Analysis applies to the proposal because a Site Analysis Plan is to be lodged with the development application for all development involving the construction of a building, at (a). The preamble and objectives for the Site Analysis Plan are as follows: “The site analysis is the foundation of good design and is used as an initial source of information upon which to base the design and configuration of development taking account of all environmental constraints and opportunities, as they relate to the unique features of the site and nearby land. ■ Identify the constraints and opportunities for the development of the site. ■ Provide an understanding of how the development relates to the site. ■ Identify the capability and suitability of the site for development.” Design requirements for the Site Analysis Plan , at (a) of Section 2.2, includ e the following: “The scope of the site analysis will depend on the scale and nature of the development and shall address: i) contours, slope and north point; ii) existing landscaping and vegetation; iii) existing buildings and structures; iv) location of windows and other openings on adjoining buildings; v) roads, access points, parking, and traffic management devices and the like; vi) linkages; open space networks, pedestrian/cycle paths and the like; vii) easements, services, existing infrastructure and utilities; viii) hydraulic features, drainage lines, water features, drainage constraints, and the like; ix) natural hazards (e.g. flooding, bushfire); x) solar orientation, overshadowing, prevailing winds; xi) views and vistas to, from and within the site; xii) a streetscape analysis; xiii) special environmental features such as threatened species habitat, endangered ecological communities and wetlands; xiv) items and relics of and/or aboriginal place of heritage significance; and xv) any identified road widening applying to the subject land.” Expert evidence The applicant relied on the expert evidence of James Phillips (heritage), Scott Barwick (planning), Robert Gizzi (urban design), Matthew Harwood (acoustic), Ross Shepherd (landscaping), Stuart Sutton (arboriculture), Goran Ugrinovski ( civil engineering ) , Meg Kong Siew Hwee (traffic) , Lee Douglass (contamination), Ashleigh Armstrong (waste management) and Jeremy Hanna-Montgomery (essential services). The Council relied on the expert evidence of Paul Davies (heritage), Melissa Stilloni (planning and essential services ), Peter Smith (urban design), Dr Renzo Tonin (acoustic), Catriona Mackenzie (landscaping) , Cathy Kinsey ( civil engineering and traffic), Lauren Williams (waste management) and Grant Rokobauer (essential services) . The joint reports of the experts were admitted into evidence as Ex 2 (heritage), Ex 3 (planning and urban design), Ex 4 (acoustic), Ex 5 (landscaping and arboriculture), Ex 6 ( civil engineering), Ex 7 (traffic), Ex 8 (contamination), Ex 9 (waste management) and Ex 10 (essential services). The heritage, planning and urban design , acoustic, landscaping and arboriculture, civil engineering and traffic experts gave oral evidence. Submissions The applicant’s submissions The applicant submitted that deferred commencement consent should be granted subject to the a pplicant ’ s proposed conditions filed on 18 November 2020 (the applicant ’ s conditions of consent) and that it is within the Court ’ s power to do so. The applicant submitted that although the proposal (Ex A) is for a total of 75 dwellings , the applicant recognises that aspects of the proposal are not support ed by the applicant ’ s own experts and this can be addressed by granting a partial consent for the development, pursuant to s 4.16(4)(b) of the EPA Act . The applicant submitted that the following parts or aspects of the proposal should be deleted by conditions imposed on the development consent : The deletion of dwellings B - 11 to B - 16 in order to retain the existing barn in its current location, consistent with the applicant ’ s heritage expert ’ s evidence (proposed condition 27(a) of the applicant ’ s conditions of consent) ; A requirement for schedules of conservation works for the existing house and the existing barn; The deletion of dwellings A - 20 to A - 22 in order to retain trees 46 and 47 (proposed condition 27(a) of the applicant ’ s conditions of consent); The deletion of unit D - 12 in order to retain T ree 2 (proposed condition 27(a) of the applicant ’ s conditions of consent); The retention of trees and conditions requiring tree protection zones and hand excavation in the areas around trees to be retained ; Other conditions recommended by the applicant ’ s experts in relation to civil engineering and stormwater . The applicant submitted that the deletion of units as proposed by condition 27(a) of the applicant ’ s conditions of consent requires the deletion of only 13% of the proposed units. The applicant submitted that it is within the Court ’ s power to grant the consent subject to these conditions pursuant to s 22 of the LEC Act and s 4.16(4) of the EPA Act , because the Court would be deleting parts of the application which are , according to the submission, “ severable ” . The applicant further submitted that this is not a request for an ‘ amber light ’ decision : Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [18] , but it is a request for part of the proposal to be granted consent: Rose Bay Marina Pty Limited v Woollahra Municipal Council [ 2009] NSWLEC 134 per Biscoe J at [98]. The Council’s submissions The Council submitted that the development application has been on foot for a long time and the applicant made the strategic decision not to amend the application to rely on an amended scheme that responded to the advice of its own experts prior to the hearing. The proposal before the Court , according to the Council, is not capable of being adequately evaluated under s 4.15 of the EPA Act because the applicant proposes so many changes to the development, including the deletion of 10 of the proposed new 7 3 dwellings . The key failure of the application, according to the Council ’ s submission, is the task of site analysis in order to take into account all of the site ’ s constraints when determining the layout of the proposal. As a consequence, t he proposal is superimposed on the landscape and is unresponsive to the site ’ s constraints . According to the Council, there has been no attempt to analyse the site and its context and establish a proper curtilage to the house and barn. The house is fully enclosed by the modern form of the development without respecting the setting of the house. The investigation of the contribution made by the barn to the heritage significance of the place was fundamental to the site anal ysis and this was not undertaken until after the application was made. The CMP should have been the starting point for the proposal, and it was not provided until after Mr Phillips was engaged by the applicant as an expert. The applicant seeks to retrofit the proposal in response to the constraints that have become apparent following the advice of experts. The Council submitted that determinative weight should be given to the prohibition of multi-dwelling housing on one lot in the R2 Low Density Residential zone under LEP 2015 (Amendment No. 17) , because the amendment to LEP 2015 was imminent and certain at the time the application was lodged. The proposal is contrary to the objectives of the R2 zone, to provide for the housing needs of the community within a low density residential environment , because the proposal seeks to cram as many dwellings as possible onto the site and cannot be described as low density housing. According to the Council ’ s submission, Claymore is a renewal area which is largely being redeveloped with single, unattached dwellings. The Council submitted that the applicant is attempting to address manifest difficulties in its application by asking the Court to condition an approval in a way that in reality requires a complete redesign of the development, most particularly in relation to heritage , where the assessments it must do has a necessary basis for the evaluation of the application by the Court . The Council submitted that the applicant is asking the Court to defer to a later stage, matters which the Court is required to consider pursuant to s 4.15 of the EPA Act. The Council submitted that it is accepted that the site can be developed in some form, but the development of the site should be respectful to the setting of the house. The Council submitted that the contentions raised are each individually determinative of the appeal. Consideration LEP 2015 (Amendment No. 17) LEP 2015 (Amendment No. 17) removed ‘ multi-dwelling housing ’ from the land use table in the R2 Low Density Residential zone, prohibiting the proposal. The development application was lodged prior to the commencement of Amendment No. 17 , which took effect on 22 November 2020. Amendment No. 17 included a savings and transitional provision relating to development applications not yet finally determined, at cl 1.8A(2): (2) If a development application has been made before the commencement of Campbelltown Local Environmental Plan 2015 (Amendment No 17) in relation to land to which that Plan applies and the application has not been finally determined before that commencement, the application must be determined as if that Plan had not commenced. Pursuant to s 4.15(1)(a)(ii) of the EPA Act, the consent authority, or the Court exercising the functions of the consent authority, is to consider any proposed instrument that is or has been the subject of public consultation under the EPA Act, if it is of relevance to the development the subject of a development application in determining that development application. The weight to be given to a draft environmental planning instrument will be greater after the instrument has been gazetted, on the basis of its “ certainty and imminence ” ( Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at 199). The only relevant change to LEP 2015 by A mendment No. 17 was to remove multi dwelling housing as a permissible use in the R2 zone (Ex 11, f 164) . The prohibition of the proposal under LEP 2015 (Amendment No. 17) is set aside by s 1.8A(2) of LEP 2015 , because this application was lodged before the LEP 2015 (Amendment No. 17) commenced . Heritage significance Evidence The heritage experts agreed that the spatial layout of the proposal was not informed by the CM P prepared by Weir Phillips and dated October 2020 (Ex B, tab G 15 ). The heritage experts agreed that the proposal was supported by a Heritage Impact Statement prepared by Heritage 21 (Ex B, tab G13) that did not contain adequate historical information, analysis or assessment of significance and , as a result, the proposal does not satisfactorily address the identified heritage values of the heritage item. The heritage experts agreed that the proposal removes the garden and setting of the house and does not include an adequate heritage curtilage for the house , barn and garden setting. According to Mr Phillips, the proposal can be amended to retain the existing barn and delete certain proposed dwellings to retain the heritage significance of the heritage item. According to Mr Davies, the proposal should be based on sound heritage considerations rather than simply removing elements of the proposal. Mr Davies was critical of the u ninte r rupted rows of dwellings across the site . According to Mr Phillips, the terrace rows should be broken up, particularly the long eastern and western rows. In Mr Davies ’ opinion, the use of row housing is not an appropriate development form for the site as it does not respond to the heritage values of the whole site; and breaking up the rows does little to address the incompatibility of the design with the heritage values of the heritage item. In Mr Phillips ’ opinion, th e re is little original heritage landscape to assess, other than the driveway loop and the significant trees. He noted there should be further analysis once the rubbish on the site is removed. In Mr Davies ’ view, the proposal does not respond to the mature and significant trees on the site as a priority and ‘ offset ’ planting is not an appropriate amelioration mechanism for removing mature trees that contribute to the heritage character and setting of the house. According to Mr Davies, the CMP has not informed the proposal and the proposal is not in accordance with the CMP. This results in the proposal having an unacceptable impact on the heritage significance of the heritage item. The heritage experts disagreed on a heritage curtilage for the heritage item . They agreed that the heritage curtilage is defined as ‘ the area of land (including land covered by water) surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance ’ (Ex B, tab G15, f 595). The CMP includes a revised heritage curtilage at Figure 76 (Ex B, tab G15, f 596) (the CMP heritage curtilage). According to Mr Phillips, the CMP heritage curtilage recognises the garden setting for the house , a visual relationship between the barn/stables and the house and recognises the circular driveway in front of the house. The CMP heritage curtilage includes the house , the barn, the driveway loop and extends to part of the north-western boundary. According to Mr Davies, the CMP heritage curtilage is inadequate to retain the heritage values of the place. In his view, the overall garden form is significant as part of the setting of the house and barn and the CMP heritage curtilage does not encompass enough of the garden setting. Mr Davies identified an alternative heritage curtilage (Ex 2, Fig 2, p 18) which includes the house and barn, the driveway from the driveway entry to the driveway loop, all the north-western boundary and the majority of the north-eastern boundary and trees to the south of the driveway. The heritage experts agreed that the full rural setting of the house and barn has been lost, however, in Mr Davies ’ view, the rural setting is still discernible in the large amount of open space around the house and the site. In Mr Davies ’ opinion, the proposal represents an inadequate retention of the setting of the house, barn and garden. According to Mr Phillips, some aspects of the proposal fail to demonstrate an appropriate or well considered understanding of the significance of the heritage item, but, with the removal of 6 townhouses in the north-west corner of the site, restoration of the barn/stables and some breaking up of the eastern row of townhouses, sufficient curtilage is generated to create an adequate setting for the house and barn/stables. According to Mr Davies, there are no aspects of the proposal that demonstrate an understanding of the heritage values of the site. The changes suggested by Mr Phillips, in Mr Davies ’ view, are minor improvements but do not address the fundamental heritage impacts of the proposal. The heritage experts disagreed on whether a measured drawing and identification of a schedule of conservation works for the house and barn/stables are required prior to the grant of consent or can be imposed as a requirement by a deferred condition of consent. According to Mr Phillips, further work is required to determine how the existing house and barn are to be conserved, adapted and extended. According to Mr Davies, there is no certainty about the conservation works for the house and barn and a consent cannot be granted until the required documents are provided. Findings I accept and prefer Mr Davies ’ evidence that the use of row housing is not an appropriate development form for the site as it does not respond to the heritage values of the whole site; and breaking up the rows does little to address the incompatibility of the design with the heritage values of the heritage item . The row housing form of the proposal introduces a medium density character to the place, which overwhelms the rural scale and character of the house and its garden setting. The row housing is imposed onto the site with little or no regard to view corridors, the setting of the house and garden, the location of mature trees or the topography. I accept Mr Phillip s' evidence there is little original heritage landscape to assess, other than the driveway loop and the significant trees . The proposal is not, however, even responsive to th o se extant elements: the retained portion of the existing driveway juts uncomfortably out of a bin storage area adjacent to Road C and there is no relationship between the severed end of the existing driveway and the pedestrian or vehicular access in the vicinity of the existing driveway (DA-17 Ex A, tab A) ; and the applicant proposes to delete dwellings D-20 to D-22 to address the conflict between retaining significant trees and the layout of the terrace row , after the proposal was designed. It is an agreed fact that the CMP has not informed the design of the proposal. I accept Mr Davies ’ evidence that the proposal is not in accordance with the policies of the CMP. It is essential that a proposal for the development of a local heritage item adequately identifies the constraints and opportunities for the development of the site imposed by the identified heritage significance of the item . I do not accept the applicant ’ s submission that the applicant ’ s version of the conditions of consent would address many, if not all, of the issues raised by Mr Davies. The proposal is uncertain because the Council ’ s conditions of consent defer essential considerations that should have informed the proposal : including a direction to retain the principal building form of the house ; a requirement for further analysis of the house and barn to be provided ; a direction for the extent of driveway to be retained ; a direction to retain a view corridor from the dwelling to Campbelltown and so on . The cumulative effect of the requirements in the Council ’ s deferred commencement condition is a comprehensive re-design of the proposal. I accept Mr Davies ’ evidence that there is no certainty about the conservation works for the house and barn and a consent cannot be granted until the required documents are provided . The identification and conservation of the valuable fabric on the site is an essential component of the proposal because the consent authority, or the Court exercising the functions of the consent authority, must be certain that the development of the site will achieve a satisfactory heritage outcome by conserving the heritage significance the heritage item, including associated fabric, setting and views, before granting consent under cl 5.10 of LEP 2015. Landscaping Evidence According to the landscaping experts, the a rbori culture report post-dated the spatial layout of the proposal. The landscaping experts, in their joint report (Ex 5), are in agreement as to how to amend the proposal to address each of the contentions raised in relation to trees and landscap ing in the proceedings, however, the amendments agreed upon by the experts have not been incorporated into an amended proposal. Instead, the applicant submitted that the amendments can be achieved by the imposition of conditions on a consent. The landscaping experts agreed that further information is required to adequately demonstrate the landscaping proposal, because the landscape plans that form part of the application are conceptual only (Ex 5, p 6). The experts agreed that the proposal shows only 8 trees as retained. The experts agreed that there are 13 High Retention Value trees that are unsuitable for retention (Trees 3, 16, 59-63, 68, 82-85 and 87). The landscape experts agreed that Tree 40 could be removed because it has a low retention value. The experts agreed that there are 17 High Retention Value trees that could be retained but would require amendments to the layout of the proposal (Trees 25-27, 41-42, 44-47, 64-66, 69 and 81). The experts agreed that amended plans to demonstrate the changes to the design to ensure the successful retention of the 17 High Retention Value trees identified should be undertaken (Ex 5, p 10). According to Ms Mackenzie, the following additional trees should be retained : Tree 2 ( English O ak ) is a High Retention Tree that could be retained if dwelling D12 is deleted . In oral evidence, Mr Shepherd supported the retention of this tree because it is a cue to the historic character of the site and it has a life span of 400-500 years. Trees 17 (Forest Red Gum) is a High Retention Tree which has an unacceptably high level of encroachment due to a proposed elevated deck and excavation of natural ground level. Tree 21 (Narrow-leaved Ironbark) is a High Retention Value tree that will have unacceptably high levels of encroachment due to a proposed elevated deck over the base of the tree. In Ms Mackenzie ’ s opinion, the proposed decks of two dwellings should be substantially reduced, or raised, and detailing of the deck and excavation is required. In her view, the architectural drawings are not sufficiently clear for her to fully assess the cumulative effect of the proposed works around Tree 21. According to Ms Mackenzie, the cut and fill plan does not show the extent of excavation in the backyards. Mr Shepherd agreed that the retention of trees within decks , including Trees 17, 21, 25 , 26 and 27, would benefit from the creation of tree protection zones, root mapping and a requirement for hand excavation around the roots of the tree s. The landscape experts agreed on the following: Trees 44 (Hoop Pine) and 45 ( Morton Bay Fig) : should be retained as they form part of the cultural plantings on the site as they are associated with the original garden . The pine has a 400 year life span. The footpath sh ould be relocated to avoid the structural root zone of Tree 44 by at least 500mm . The landscape experts agreed that the natural ground levels should be retained in the vicinity of Trees 44 and 45 and no machine excavation should be carried out near the trees. Trees 46 and 47 (Bunya Pines) : up to four dwellings , A 19 to A2 2 , would need to be deleted because the trees drop large cones and the rear courtyard of the dwellings are located under the canopies of these trees. The future occupants of the dwellings with rear courtyards beneath the trees would not tolerate the dropping cones and it is highly likely they would seek to have the trees removed. Trees 64, 65 and 66 (Lemon-scented gums): the retention of these trees requires amended drawings to demonstrate that the detailing of steps and decks remain above ground and no excavation, other than for support posts, is carried out in the vicinity of these trees. Tree 69 (Bunya Pine): should be retained . Tree 75 (Jacaranda) should be retained due to its association with the house. Tree 81 ( English Oak) : the retention of this tree requires the re-design of the retaining walls and relocating pedestrian path alongside the turning head. The experts agreed on a range of strategies to preserve certain trees on the site and agreed that amended drawings are required to reflect their agreed changes to the proposal (Ex 5, pars 33, 35). The experts agreed that a detailed and tree specific Tree Protection Plan should be required (Ex 5, par 36). Findings I accept the agreements of the landscaping experts on trees t hat should be retained. I do not accept the applicant ’ s submission that the outcomes sought by the landscaping experts can be successfully achieved merely by the deletion of a few dwellings where a conflict has been identified between the spatial layout of the proposal and the retention of a tree, and the imposition of conditions on a consent. The High Retention Value trees to be retained should have been identified prior to the layout of the proposal being determined , so that the proposal could adequately respond to the constraint of retaining the identified trees and preserving an adequate tree protection zone. The layout of the proposal might also have taken advantage of the retained trees, by treating them as the focus of a communal landscaped area, or by generating the form of the mass of the development to create an interrelationship between the building and the landscaped open space. Instead, the spatial layout proposal has an accidental relationship with the trees, now identified as worthy of retention, and the experts ’ efforts are therefore focused on how to manipulate decks and courtyards and boundaries and levels in an attempt to ameliorate their impact on the trees, or where that is not possible, to delete an individual dwelling within the terrace row to alleviate the conflict between tree and building. The proposal is unacceptably compromised by the applicant ’ s failure to identify the High Value Trees to be retained on the site, prior to determining the spatial layout of the terrace rows and private open space. Deleting individual dwellings by cond ition may address the immediate conflict, but the overall scheme is left with illogical gaps that do not respond to the site ’ s other opportunities and constraints, such as using gaps in the built form to retain the historic view corridor between the house and Campbelltown town centre , and so the relationship of the development to the site is further eroded. The site analysis informing the proposal is in adequate The proposal has failed to adequately identify and respond to the opportunities and constraints of the site. According to Mr Barwick, the site analysis consists of DA-02 Rev HH, DA-03 Rev HH and DA-58 Rev HH of Ex A, tab A. Mr Barwick agreed in oral evidence that the there is “ not explicitly ” a site analysis plan which satisfied the design requirements for a site analysis plan under Part 2, Section 2.2 of DCP 2015. The plans identified by Mr Barwick as constituting a site analysis include the following information: DA-02: The site, the Hume Highway and the directions of Eaglevale Market Place, Macarthur Square Shopping Centre and train station, Campbelltown CBD, and Campbelltown train station. DA-03: quadrant indicating views from the site and location of road noise sources. DA-58: identification of a rectangle “ heritage curtilage ” , view to heritage item from Glenroy Drive, views between the house and Glenroy House , two arrows described as relationship to landscaping. This drawing includes an overlay of the layout of the proposal, including dwellings and roads. These three architectural drawings do not, together, satisfy the design requirements for a site analysis under Part 2, Section 2.2 of DCP 2015, because they do not adequately identify the constraints and opportunities for the development of the site, or identify the capability and suitability of the site for the development. DA-58 is not a site analysis plan because it includes the layout of the proposal but does not include an explanation as to how the layout has responded to the constraints of the site. The purpose of the site analysis plan is to identify the constraints and opportunities of the site prior to the spatial layout and design of the proposal. Site analysis is an important part of the design process. Identifying and describing the opportunities and constraints of a site for its future development are essential to formulating a site specific design response that exploits the opportunities and responds to and , where appropriate, ameliorates any constraints. A site analysis should carefully examine the natural and built features relating to the site. Opportunities and constraints are mostly tangible: topography, orientation, watercourses and/or drainage, site access, the form and location of surrounding development, an ecological constraint or a natural feature such as a rock outcrop , location of trees and landscape features to be retained, location of services and local facilities ; and perceived through the senses: noise, odour, contamination, the direction of prevailing wind s and views; but may also be somewhat philosophical : identifying an adequate setting for a building or garden identified as being of heritage significance , interpreting a feature , or identifying a hierarchy or order in an urban context requiring a decorous response. Opportunities and constraints may be different according to the proposed use and intensity of use for the site. A site analysis must be at an appropriate scale to identify the opportunities and constraints in sufficient detail. A competent site analysis plan will be unique, because it identifies and describe the individual conditions of the site and the opportunities for the development of the site. Development proposals need to articulate and demonstrate how the design concept responds to the site ’ s conditions and its relationshi p to its context . I am not satisfied that the proposal, even as amended as proposed by conditions, has adequately identified the constrain t s and opportunities of the site, or the capability and suitability of the site for the proposed development, as required by the objectives for Part 2, Section 2.2 of DCP 2015. Modifying the proposal by deleting individual dwellings in response to each conflict identified , after the spatial layout of the site had been completed , is not best practice and has result ed in a propos al that does not adequately respond to the site ’ s identified constraints . The proposal , and the deletion of dwellings A-20 to A - 22 and B-11 to B-16 , results in an accidental and awkward relationship between the curtilage dedicated to the garden setting of the house and barn , that does not respect the heritage values of the heritage item . The proposal ’ s heritage curtilage (DA-17 and DA-58 of Ex A, tab A) is different to the heritage curtilage identified by Mr Phillips (Ex 2, Fig 1, p 18). The heritage curtilage identified by Mr Phillips includes the house, the turning circle of the driveway, the barn, part of the remnant garden setting of the house and the curtilage extends to the north-western boundary. The proposal ’ s heritage curtilage includes the house, only part of the turning circle of the driveway, excludes the barn and extends to the north-western boundary. Despite identifying the heritage curtilage on the plans, t he layout of the proposal significantly encroaches into the area identified by the proposal as the heritage curtilage. The layout of the proposal also encroaches into the heritage curtilage identified by Mr Phillips. The encroachment of the proposal into the proposal ’ s heritage curtilage includes the removal of the barn, the imposition of a large roadway , turning circle, parking and bin storage onto the site and part of the dwelling C-17. The encroachment of these built elements into the rectangle identified as the proposal ’ s heritage curtilage impinges on the setting of the house. D welling C-17 makes no attempt to respond in its form to its location adjacent to the existing house, because it is essentially no different to any other new dwelling and is much larger in scale to the original house. The orientation of dwelling C-17 is entirely dictated by the orientation of the north-western boundary at the rear boundary and has no relationship to the existing house . There is very little in the spatial layout of the proposal that responds to the site ’ s existing layout or the proposal ’ s identified heritage curtilage; the proposal ’ s heritage curtilage is merely a rectangle imposed as an overlay. The proposal is significantly compromised by its failure to identify and meaningfully respond to the opportunities and constraints of the site and this failure is fundamental and cannot be redeemed by amending the proposal by condition s . The proposal does not achieve a low density residential environment The density of the proposal has been determined by applying the formula at Section 3.6.6.1 for general requirement for multi dwelling housing in the R2 zone in DCP 201 5 . The formula, at (c) is in the following terms ( and is subject to the requirements of the other provisions under Section 3.6.6.1 ) : “Subject to the satisfaction of other requirements within the Plan, the number of dwellings permitted within a multi dwelling housing development shall not exceed: i) 2 dwellings for the first 700sqm of land area; and ii) 1 dwelling for each 300sqm of land area thereafter.” A pplying the formula in (c) to the total area of the site yields 76 dwellings. The proposal is for 75 dwellings. The yield achieved by the proposal has disregarded the presence of the house and barn on the site and a suitable heritage curtilage for the setting of the house and barn, because almost the entire area of the site has been applied to the formula . The dwellings have then been concentrated on parts of the site in order to create a small curtilage around the house which extends into common open space to the south-west. This has resulted in the dwellings being tightly packed into dense terrace rows. Crucially, the formula includes the proviso that other requirements in the DCP are satisfied. DCP 201 5 includes, at Part 2, Section 2.11, design requirements for heritage conservation, with the following objective: “Ensure that new development takes appropriate account of the significance of heritage items, heritage conservation areas, relics and settings.” By including the area of the house ’ s heritage curtilage in calculating the number of dwellings that may be accommodated on the site and concentrating the yield for the whole site on only parts of the site , outside the proposed heritage curtilage, the proposal has disregarded a requirement of DCP 2015 to ensure that new development takes appropriate account of the significance of the heritage item and its setting. The proposal has failed to achieve a low density residential environment on the site because the multi dwelling housing yield for the whole site has been concentrated on to parts of the site, creating a character that is commensurate with a medium density development. In order to achieve a low density residential environment, the yield of the proposal should have been determined by the area of the site available for the development, outside of the house ’ s heritage curtilage. The density of the proposal does not achieve a low density residential environment because the density of the development has been determined without regard to the significant constraint of the heritage curtilage of the heritage item. Conclusion I am satisfied, on the basis of all the evidence before me, that the Council ’ s contention that the proposal will have a n unacceptable impact upon the site ’ s heritage significance, because the proposal has failed to consider the impact of the works on the heritage significance of the site, including impacts on built elements including the house and the barn, on the entry driveway, on the remnant garden and trees and on views and historic connections , is made out. The proposal is unresponsive to the heritage values of the site and the applicant ’ s position of deleting individual dwellings by condition in response to conflicts identified following the spatial layout of the proposal does not retrospectively address the inadequacies of the site analysis in identifying the constraints of this site. The failure of the proposal to adequately respond to the site ’ s heritage constraints is determinative, because the proposal is contrary to the objective of the heritage clause of LEP 2015, at cl 5.10(1)(b). As a consequence of my determinative findings regarding the heritage contention , it is not necessary to determine the Council ’ s remaining contentions. Ultimately, the applicant ’ s error was a failure to properly analyse the site and instead to maximise the yield on the site in response to the formula at s ection 3.6.6.1(c) of DCP 2015, without first satisfying other requirements of DCP 2015 such as identifying an appropriate heritage curtilage including the garden setting and valuable trees to be retained. I have com e to th e decision that the proposal should not be granted development consent independently of any consideration regarding the amendment made to LEP 2015 (Amendment No. 17) to remove multi dwelling housing as a permissible use in the R2 zone . Orders The orders of the Court are: The appeal is dismissed . Development Application No. 4457/2018/DA-M for the construction of a multi dwelling housing development, associated site works and alterations and additions to the existing house, at 50 Badgally Road, Claymore, is refused. The exhibits, other than E xhibits 1, A, B and C , are returned. __________________ Susan O’Neill Commissioner of the Court ********** Amendments 01 March 2021 - Typographical error at [53] corrected. 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: 01 March 2021