Betteridge evidence
30 Mr Betteridge states that the only local native species likely to have existed in the grounds of the Church in 1984 would have been the single specimen of Cheese Tree, the self sown figs on the rock outcrop or possibly some self-sown Pittostporum undulatum. Neither the Cheese Tree or the Pittostporum are mentioned in the 1984 Heritage Landscape Study as being characteristic of the original vegetation of the area. The existing landscape plantings on the site are dated to the late 1960's so consequently the description of the items does not coincide with the title of " Grounds and native vegetation of Wentworth Memorial Anglican Church". Overall, and apart from the existing Hoop pine, the native vegetation on the site (both self-sown and planted) is not sufficiently significant to warrant it's listing for that reason. In his opinion, the listing largely relates to the architectural significance of the Church rather than the grounds and the native vegetation..
31 Mr Betteridge states that the Hall is not of sufficient significance to warrant listing in its own right or to be grounds for refusing its demolition. The application is within the limits of acceptable change for the site and retains sufficient curtilage with the Church for its historic, associational, aesthetic, social and other heritage values to be retained.
Findings - heritage impact
The amended plans
32 The plans relied upon by the applicant (Option 4 plans) provided a smaller area for Lot 11 than on earlier plans (originally 880 sq m with a Right of Way to provide access to both lots). The amended plans reduce the area to 724 sq m and delete the Right of Way to allow for the retention of the stone retaining wall and memorial plaques and the flagpole on Lot 12.
33 The amended plans and the deletion of the Right of Way have the effect of addressing the council's concerns over the existing historical access to the Church.
The Wentworth Mausoleum
34 Clause 27 provides that consideration must be given to the likely effect of the proposed development on the heritage significance of a heritage item…. and on its setting, when determining an application for consent to carry a development on land in its vicinity.
35 The council's contention states that the proposed subdivision will have a negative impact on the social significance of a heritage item in the vicinity of the site; being the Wentworth Mausoleum, surrounding stone and wrought iron fence, grounds, trees.
36 With the benefit of the site inspection, including the Wentworth Mausoleum, I agree with the conclusions of Mr Staas and Mr Betteridge. The Wentworth Mausoleum has very little physical connection to the site beyond the path that leads to the Church from Fitzwilliam Road and the path that connects the Church to the Wentworth Mausoleum. The topography dictates that the Wentworth Mausoleum and proposed Lot 11 are on opposite sides of a rocky outcrop. In my view, the physical and social relationship with Church is unaffected by the proposed subdivision and any future development on proposed Lot 11.
37 Pursuant to cl 27, the proposed development will not adversely affect the heritage significance of the Wentworth Mausoleum.
Will the proposed development affect the heritage significance of the item and its setting?
38 While the development application seeks only the subdivision of the site and not the removal of the Hall, the evidence was premised on the potential removal of Hall, or at best, its adaptive reuse. The applicant stated that Lot 11 was to be sold to provide funds for other church activities, including the ongoing maintenance of the Church. So there can be no future dispute over development on Lot 11, I propose to consider the requirements of cl 26(2) as if demolition of the Hall was likely to occur.
39 Clause 26(2) provides that consent shall not be granted unless consideration has been given to the extent to which the proposed development would affect the heritage significance of the item and… any stylistic or horticultural features of its setting. The consideration required by this clause is generally based on the Statement of Significance set out in the inventory listing of the Heritage Branch. In this case, the task required by cl 26(2) is more difficult given the "Name of Item" being "Grounds and Native Vegetation of Wentworth Memorial Anglican Church" and the terms of the "Statement of Significance" that relates principally to the Church building rather than the grounds and any native vegetation.
40 In balancing the competing evidence, I prefer the evidence of Mr Staas and Mr Betteridge for a number of reasons. First, I accept the conclusions of the Strategy that appropriately relies on the assessment using the inclusion/exclusion criteria of the NSW Heritage Office for determining the heritage significance of the Hall.
41 Second, I accept that the curtilage plan accepted by the NSW Heritage Office satisfactorily protects the heritage significance of the Church, including its architectural significance and its historic, associational, aesthetic, social and other heritage values. I note that the proposed subdivision provides a greater curtilage than that accepted by the NSW Heritage Office.
42 Third, the amended plans provide for the retention of the existing retaining wall, commemorative plaques and flagpole on the proposed Lot 12.
43 Fourth, given the emphasis placed on the access to the Church by Ms Reilly and a number of objectors and its significance to the Church; the access is now largely unaffected by the proposed amended subdivision layout.
44 Fifth, and adopting the position that the inventory listing focuses on the Church building (as distinct from the grounds and native vegetation) the absence of any reference to the Hall in the inventory is of some importance. Also of importance is the weight of expert evidence supporting the proposal. Of the expert evidence available to the Court, Mr Staas, Mr Betteridge, the council's Heritage Officer in a report to the Council on 19 July 2010, Mr Stapleton, a heritage consultant commissioned by the council to assess whether a number of sites have potential heritage significance (including the Church) and the NSW Heritage Office in their considerations of an appropriate curtilage for the Church found that the Hall had insufficient heritage significance to warrant its retention. Ms Reilly was alone in her support for the retention of the Hall.
45 Sixth, and adopting the opposite position to point five; that is, the inventory listing focuses on the grounds and native vegetation, I agree with Mr Betteridge that the absence of any substantive native vegetation, beyond the Hoop Pine, supports the proposed subdivision. Mr Rigg, for the council, submitted that the applicant was in essence, challenging the terms of the listing, however I do not accept this submission. As I understand Mr Betteridge's evidence, he was simply responding to the terms of the listing by stating that the native vegetation on the site is, at present, not sufficiently significant to warrant its listing for that reason and this was a reason for concluding that the proposed development would not unacceptably impact on the heritage significance of the grounds and native vegetation. I note that a Heritage Conservation Management Strategy has been prepared by Mr Staas, for the grounds and native vegetation, and that compliance with the Strategy has been accepted by the applicant as a condition of consent.
46 Seventh, and accepting the draft LEP is a relevant consideration, the exhibited draft LEP and the accompanying report on the heritage significance of the site prepared by Mr Stapleton does not suggest that the Hall has any heritage significance that would require its protection. Even though Ms Reilly considered it appropriate to amend Mr Stapleton's report on the heritage significance of the site to include the Hall, there must be some doubts whether the statement of heritage significance, as amended by Ms Reilly, would ultimately be accepted given that the amendments were made after the exhibition period and inconsistent with the conclusions of the NSW Heritage Office on the acceptance of a curtilage plan for the Church that largely reflects the proposed subdivision. I do not accept the amended statement of heritage significance could be seen as imminent or certain.
47 Pursuant to cl 26(2), and for the reasons mentioned in the preceding paragraphs, I am satisfied that the proposed development will not affect the heritage significance of the item and… any stylistic or horticultural features of its setting.
Can the Hall be demolished?
48 Based on the findings for the tests imposed by cl 26(2) and cl 27, there is no heritage reason why the Hall could not be demolished.
Can a dwelling be reasonably erected on Lot 11?
49 The development application provided a potential building form for a dwelling on Lot 11, in the general location of the Hall. The building form was based on the requirements in DCP 2003. The Court was also directed to the planning principle in Parrot v Kiama [2004] NSWLEC 77 where it states that "a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful designed to minimise them".