Corona Projects Pty Ltd v Bayside Council

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application DA-2025/69 (Development Application). The Development Application sought consent for the removal of trees and construction of a detached single storey dwelling house with double driveway (manoeuvring area), car parking, and strata subdivision on land identified as Lot 8 in Deposited Plan 32169, known as 55 Gardeners Road, Daceyville (Subject Land).

2. The appeal was subject to conciliation on 21 October 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(ii) of the LEC Act.

3. The Court inspected the Subject Land and surrounding area with the parties by walking part of Gardeners Road and Astrolabe Road, Daceyville. At the request of the parties, the Court also drove through further streets within the Daceyville Garden Suburb Heritage Conservation Area (HCA).

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act. The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

Background

5. The registered proprietor of the Subject Land provided its consent to the lodgement of the Development Application by the applicant (see Class 1 Application, tab 2).

6. The Subject Land is 632.3m2 as per the deposited plan and has a 14.26m wide frontage to Gardeners Road, being a classified road.

7. The Subject Land is zoned R2 Low Density Residential under the Bayside Local Environmental Plan 2021 (BLEP) and located within the Daceyville Garden Suburb HCA.

8. The Subject Land currently accommodates a single storey semi-detached dwelling with a gable tile roof.

9. The Development Application was lodged with the respondent on 20 March 2025.

10. The Development Application was notified from 3 to 17 April 2025 with five written submissions received.

11. On 6 June 2025, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

12. On 30 June 2025, the respondent filed its Statement of Facts and Contentions (Ex 6).

13. At the commencement of the hearing, the applicant sought leave to amend the Development Application by relying on amended plans and documents (Amended Development Application). The amendments can be summarised as follows:

14. the deletion of a bedroom in the proposed dwelling and change in design and height of the proposed roof;

15. deletion of the car stacker;

16. increased landscaping and further detail as to the proposed landscaping scheme;

17. updated Heritage Impact Statement dated September 2025 (Updated Heritage Impact Statement); and

18. updated BASIX certificate.

19. The respondent did not object to the proposed amendments and leave was therefore granted.

Issues

15. The issues remaining in dispute at the hearing can be distilled as follows:

16. Whether the Amended Development Application has acceptable heritage impacts, having regard to the Subject Land’s location within the Daceyville Garden Suburb HCA.

17. Whether the Amended Development Application should be approved having regard to the subdivision pattern in the locality.

18. Whether the Amended Development Application should be approved having regard to the proposed landscaping scheme.

19. As will become clear, these three issues largely overlap.

Expert evidence

17. The applicant relied on the expert evidence of Mr Brad Vale (heritage), Ms Joleen Clarke (landscaping) and Mr Mathew Fortunato (town planning).

18. The respondent relied on the expert evidence of Ms Vanessa Holtham (heritage), Mr Greg Tesoriero (landscaping) and Ms Felicity Eberhart (town planning).

19. The following joint reports were filed and subsequently tendered at the hearing:

20. Joint Expert Report of Heritage Experts prepared by Mr Vale and Ms Holtham filed 2 October 2025 (Ex 2) (Joint Heritage Report).

21. Joint Expert Report of Landscaping Experts prepared by Ms Clarke and Mr Tesoriero, filed 3 October 2025 (Ex 3) (Joint Landscaping Report).

22. Joint Expert Report of Town Planning Experts prepared by Mr Fortunato and Ms Eberhart, filed 2 October 2025 (Ex 4) (Joint Town Planning Report).

Legislative and planning framework

20. The Subject Land is zoned R2 Low Density Residential under the BLEP and the proposal, being for amongst other things, a detached dual occupancy, is therefore permissible with consent. The objectives of the R2 zone, to which I have had regard, are extracted below:

• 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 ensure land uses are carried out in a context and setting that minimises impact on the character and amenity of the area.

• To enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

21. The parties disagree whether the proposal is consistent with the objectives of the R2 zone, namely whether the proposal will be “carried out in a context and setting that minimises impact on the character and amenity of the area”.

22. The parties agree that the proposal complies with the relevant height and floor space ratio development standards in the BLEP.

23. Clause 5.10 of the BLEP relating to heritage conservation is relevant to this matter and relevantly provides as follows:

5.10 Heritage conservation

Note.

Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives The objectives of this clause are as follows—

(a) to conserve the environmental heritage of Bayside,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) a heritage item,

(ii) an Aboriginal object,

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

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

…

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

…

24. The Subject Land has the following heritage conservation area listing in Pt 2 of Sch 5 of the BLEP:

| Name of heritage conservation area | Identification on heritage map | Significance | | Daceyville Garden Suburb Heritage Conservation Area | Shown by a red outline with red hatching and labelled “C2” | Local |

25. The Bayside Development Control Plan 2022 (BDCP) applies to the Subject Land.

26. Part 3.4 of the BDCP relates to heritage and is relevantly extracted below:

3.4.1 Heritage overview – General

…

The heritage items of Bayside are significant in the course and pattern of Bayside’s history and have heritage value to the people of the Bayside Local Government Area (LGA). Local heritage items in the LGA contribute to the community’s sense of place and identity and form important links to the past that are protected and conserved for future generations. Heritage conservation does not prevent change, rather it contributes to the rich tapestry of the history and stories that have shaped the places, and people across the Bayside LGA.

The Bayside LSPS reinforces the strategic important of heritage in the future planning of the LGA to ensure that the design of the public domain and built environment respects, protects and enhances the distinctive character, important scenic and cultural landscapes and reinforces the unique stories and diverse histories of communities across Bayside LGA.

Land to which this Part Applies

This Part of the Bayside DCP is to be used to guide proposed development or works to heritage items and within heritage conservation areas and works proposed within their vicinity. It incorporates overarching objectives and detailed provisions which aim to ensure the conservation of heritage in the Bayside LGA, whilst allowing appropriate change to occur. Specifically, it applies to:

• Land that is listed as a heritage item

• Land that forms part of a group heritage listing

• Properties that are located within heritage conservation areas

• Properties that are in the vicinity of heritage items and heritage conservation areas.

…

Heritage management documents should be prepared in accordance with the following documents and best practice guidelines:

• NSW Heritage Manual (NSW Heritage Office 1996)

• Assessing Heritage Significance (NSW Heritage Office 2001)

• Assessing Significance for Historical Archaeological Sites and Relics (NSW Heritage Branch 2009)

• the relevant principles and guidelines of the Australia ICOMOS Burra Charter, 2013 (the Burra Charter).

Bayside Council acknowledges the principles and practices recommended by the Burra Charter in the conservation of items of cultural heritage, which have informed the preparation of this section of the DCP. The Burra Charter provides guidance for the conservation and management of places of cultural significance (cultural heritage places). The Charter sets a standard of practice for those who provide advice, make decisions about, or undertake works to places of cultural significance, including owners, managers, and custodians.

27. Heritage related objectives and controls particularly relevant to this matter have been extracted below.

3.4.6 Development in Heritage Conservation Areas

Infill Development

| Objective | Control | | O8 | Infill development shall be consistent with characteristic development in the HCA in terms of height, bulk, scale, setback, materials, and character. | C25 | New development within heritage conservation areas shall be designed to positively respond to the significance of the HCA, be consistent in scale, bulk and form with characteristic development maintain the setting and the character of the area. Note: A preferred approach is to design new buildings in a contemporary manner, which is sympathetic to the surrounding area. | | C26 | New development must be sited to reflect the front and side setbacks and predominant orientation of the HCA and the established pattern of setbacks within a street or precinct. Note: Where there is a variation in the front setbacks within a street, the prevalent pattern of setback along the entire length of the street should be used to determine the appropriate front setback. | | C27 | Infill development must incorporate the use of materials and details that are compatible with, yet do not directly copy, those of contributory buildings in the streetscape and colours used should be recessive (i.e. not prominent) so that they do not visually dominate the HCA. | | C28 | The roof form and roofing materials of new development should be consistent with characteristic development within the HCA. | | | C29 | New landscaping is to be compatible with the character of surrounding heritage buildings and be designed to minimise the visual appearance of new development to reduce its impact on the heritage item or HCA. |

Subdivision or Amalgamation in Heritage Conservation Areas

| Objective | Control | | O9 | Ensure that subdivision and amalgamation of land in a HCA is commensurate with the heritage significance of the area, and conserves the important characteristics of the subdivision pattern and allotment layout, streetscape character and notable features. | C30 | All development proposals should demonstrate how they have interpreted the original subdivision pattern within the HCA. | | C31 | Lot boundary changes are not supported where the development pattern or early subdivision is integral to the heritage significance of the HCA. | | C32 | Lot boundary changes within HCAs should retain significant features such as buildings archaeology, trees, gardens, and outbuildings associated with the pattern of development of that area. | | C33 | Amalgamation of sites within HCAs must allow for the ongoing interpretation of the original subdivision through building form and landscape design. |

28. Part 7.17 relating to Daceyville as a “specific place” is relevantly extracted below:

7.17 Daceyville

7.17.1 Description

Daceyville, or Dacey Garden Suburb as it was known originally, is historically, aesthetically, and socially significant, and significant for its historical associations to the former City of Botany Bay, the current Bayside LGA, the state of New South Wales, Australia and potentially internationally.

At the national and international level, the Dacey Garden Suburb manifests the physical and social values that marked the understandings of a model settlement in the earliest years of the international town planning movement. This movement is strongly associated both with the maturity of the Industrial Age and the recognition of its concomitant social impacts caused by pollution and overcrowding; and then by the significant social, economic and political ramifications following WW1.

Dacey Garden Suburb demonstrates a very high level of significance as a model suburb designed by a series of Australia’s leading architects, including several of its pioneering town planners, in response to the need for a healthy living environment for the working classes. It is the international prototype of its type, being the first example in Australia of the translation of the principles of the ‘Garden City’ into the lower density and suburban context of the ‘Garden Suburb’.

The physical manifestation of the earliest principles of town planning remain clearly legible in the disciplined and cohesive form of the suburb; including its clearly defined radial street pattern which has established streetscapes of both grand and intimate scale with both axial and evolutionary elements.

The design of Daceyville's housing represents a sophisticated interpretation of stylistic consistency through a ‘pattern book’ approach to the individual design of buildings within the suburb regardless of purpose which is made notable through the templates being the work of skilled architects; in a setting that continues to provide evidence of the importance placed on the provision of open space in both public and private domains through building setbacks and controls over development including both alterations and additions. The consistency of built forms and detailing has survived and resulted in a precinct with a notable physical, spatial and landscape integrity. Later layers of change, including the recent introduction of infill development, has respected these original town planning principles, which illustrates their ongoing relevance and validity to contemporary town planning.

The ongoing purpose of Dacey Garden Suburb as a place for public housing continues to demonstrate the community’s commitment following WW1 to provide quality accommodation in a healthy environment for the less fortunate in the community. Dacey Garden Suburb is the earliest model suburb in the world to have been built for this purpose and to have remained managed and occupied as social housing.

The more recent infill development by the Department of Housing has largely retained the integrity of the historic cultural landscape and now makes a valid contribution to the contemporary heritage values of the area. It not only provides demonstrable evidence of the ongoing community need for housing for low-income earners, but the form and density of this infill development is the result of the esteem in which both the subdivision and original housing is held by local residents the wider community, including significant community groups such as the National Trust (who had recorded the suburb as a historically significant precinct as early as 1978) and professional bodies of urban planners and architects; who together protested successfully against the original proposal for extensive demolition of the original fabric and its replacement by high density housing in the 1980s.

Character Statement

The character of the Daceyville HCA is made up of Federation Arts and Crafts cottages constructed between 1910 and 1920, with some commercial buildings. Existing housing stock is a combination of single-storey cottages, semi- detached dwellings, and town houses.

This character should be preserved and retained through the retention of contributory buildings, public open space, the existing subdivision pattern and typical Garden Suburb layout, and large street trees. Characteristic elements to be preserved include:

• Original Federation Arts and Crafts detached and semi-detached single and two-storey buildings, with styles of dwellings often repeated throughout the precinct.

• The dominant material palette of brick, painted brick, fibro and rendered brick in a variety of period colours including peach, apricot, pink, brown, green and red.

• The relationship between the public and private domain with open landscaped theme created by generous front setbacks, large landscaped areas surrounding buildings with established gardens, low scale fences, and a lack of boundary fences abutting public roads and open space.

• Wide streets and wide verges with mature street plantings.

• Radial avenues centred on Dacey Gardens Reserve.

29. Objectives and controls for the Daceyville “specific place” are contained at pp 387-391 of Ex 1.

30. Part 3.7 of the BDCP relates to landscaping and is relevant to the proposal.

31. Part 4 of the BDCP relates to subdivision, consolidation and boundary adjustments. Part 4.4 regarding strata subdivision is also relevant to the proposal.

32. Part 5.2.1 of the BDCP relates to low-density residential (dwellings, dual occupancy, semi-detached dwellings) and Pt 5.2.2 additional controls for dual occupancy and semi-detached dwellings are also relevant to the proposal.

Public submissions

33. As set out at [10], the Development Application was notified between 3 and 17 April 2025 with five written submissions received. These submissions raised concerns regarding:

34. inappropriate subdivision by proposed use of strata scheme to bypass controls that specifically do not permit land subdivision;

35. the proposal contradicts the fundamental character of Daceyville’s Garden Suburb HCA;

36. unauthorised building works that had taken place on the Subject Land, including site clearing and the construction of a front fence without consent;

37. private open space within the front setback is inappropriate;

38. private open space, at the rear of the rear dwelling, is insufficient in size and will be significantly overshadowed;

39. the clothesline is inappropriately located; and

40. disruption to wildlife.

41. The Court also heard from one resident objector onsite who raised concerns regarding the heritage implications of the proposal and potential precedent to be set if the application is approved.

Does the Amended Development Application have acceptable heritage impacts?

Applicant’s position

35. The applicant submits that the proposed development is permissible with consent and to the extent that controls in the BDCP seek to prohibit subdivision or the location of built form in land that was previously garden, the applicant submits that s 3.43(5) of the EPA Act makes clear that the BLEP prevails and those provisions of the BDCP which are inconsistent with the BLEP must be disregarded.

36. The applicant relies on the Updated Heritage Impact Statement and views of its heritage expert, Mr Vale, to submit that the Amended Development Application should be approved having regard to cl 5.10 of the BLEP and relevant objectives and controls in the BDCP. To this end, the applicant’s outline of written submissions (AWS) contains a table “of many of the DCP’s controls, with which the proposed development complies” (at par 19).

37. The applicant further submits that the proposal meets all development standards in the BLEP, and to the extent that the respondent criticises the merits of the proposal, this is based upon the incorrect premise that a detached dual occupancy should not be allowed on the Subject Land having regard to its setting in the Daceyville Garden HCA.

Respondent’s submissions

38. The respondent relies on the evidence of Ms Holtham to submit that the spatial arrangements of the properties and the buildings themselves, including the emphasis on gardens and a landscaped setting, are critical to the heritage significance of the Daceyville Garden HCA. The respondent submits that the design of the proposal is inconsistent with these spatial arrangements and inconsistent with the character of the street and Daceyville HCA due to the focus of the design being on the built form, rather than prioritising a landscaped and garden setting.

39. The respondent relies on the evidence of Mr Tesoriero to submit that the landscaping plan proposed is ultimately inadequate, particularly having regard to the unsuitability of a number of trees proposed. The respondent argues that this is a significant issue in the context of the emphasis on the garden and open space setting within the Daceyville HCA.

Consideration

40. It is not disputed that cl 5.10 of the BLEP is relevant to the proposal, being the proposed erection of a building on land that is within a heritage conservation area (cl 5.10(2)(e)(i)). Therefore, pursuant to cl 5.10(4) of the BLEP, the consent authority (here, the Court) must, before granting consent consider the effect of the proposed development on the heritage significance of the item or area concerned.

41. The Subject Land is located within the “Daceyville Garden Suburb Heritage Conservation Area” and I accept Ms Holtham’s evidence that it is clear from its title as well as description and character statement in the BDCP that the:

42. “garden” element, realised through open space in the public and private domains and large landscaped areas; and

43. radial street pattern and consistent subdivision pattern,

are extremely important to the heritage significance of the HCA.

42. This is made clear through the following descriptions and statements in s 7.17 of the BDCP:

43. “The design of Daceyville's housing represents a sophisticated interpretation of stylistic consistency through a ‘pattern book’ approach to the individual design of buildings within the suburb regardless of purpose which is made notable through the templates being the work of skilled architects; in a setting that continues to provide evidence of the importance placed on the provision of open space in both public and private domains through building setbacks and controls over development including both alterations and additions. The consistency of built forms and detailing has survived and resulted in a precinct with a notable physical, spatial and landscape integrity. Later layers of change, including the recent introduction of infill development, has respected these original town planning principles, which illustrates their ongoing relevance and validity to contemporary town planning.”

44. “This character should be preserved and retained through the retention of contributory buildings, public open space, the existing subdivision pattern and typical Garden Suburb layout, and large street trees.”

45. “Characteristic elements to be preserved include:

…

The relationship between the public and private domain with open landscaped theme created by generous front setbacks, large landscaped areas surrounding buildings with established gardens, low scale fences, and a lack of boundary fences abutting public roads and open space.

43. I have placed significant weight on the fact that both heritage experts agree that the dwelling proposed to be constructed at the rear of the Subject Land will be visible from both Gardeners Road and Astrolabe Road (Tcpt, 22 October 2025, p 41). This means that the proposed development will visually present as a departure from the prevailing subdivision pattern and landscaped garden setting.

44. It is important to note that the application is seeking to establish a detached dual occupancy and strata subdivision, both of which I accept are permissible with consent in the R2 zone. I further accept the applicant’s submission that any provisions of the BDCP which are inconsistent with the permissibility of a detached dual occupancy with strata subdivision in the R2 zone should be disregarded. However, the proposal must still be acceptable on its merits and have acceptable environmental impacts having regard to s 4.15 of the EPA Act and relevant provisions of the BLEP and BDCP.

45. I accept the evidence of Ms Holtham that the erection of the dwelling at the rear, despite being a strata and not Torrens title subdivision, will still present as a physical subdivision and detract from the largely consistent subdivision pattern of the immediate locality. Mr Vale also conceded that there will be a perception of a subdivision due to the erection of the dwelling at the rear and associated fencing (Tcpt, 22 October 2025, pp 48(47) – 49(9)). Therefore, due to the design of the proposal, the dwelling proposed at the rear of the Subject Land will be visible from Gardeners Road and Astrolabe Road and present as a subdivision of the land.

46. As the prevailing subdivision pattern is an important component of the heritage significance of the Daceyville HCA, I do not consider the proposal, which presents to two streets as a subdivision, to be sympathetic to, or consistent with, the heritage significance of the area and would have unacceptable heritage impacts for the purposes of cl 5.10(4) of the BLEP. Further, I am of the view that the proposal has not been designed to positively respond to the significance of the HCA and is visually inconsistent in scale, bulk and form with characteristic development and does not maintain the setting and character of the area as required by Control 25 in s 3.4.6 of the BDCP. This is because the proposed dwelling will be visible from Gardeners Road in particular (as well as Astrolabe Road), and will not present as a garden or landscaped setting due to the landscaping design proposed, being another key element of the heritage significance of the Daceyville HCA.

47. To this end, I accept the evidence of Mr Tesoriero that the “surrounding landscaping character of the HCA is typically defined by large, contiguous open space areas within the rear setback inclusive of large canopy trees” (Ex 3 at par 50). I further accept the oral evidence of Mr Tesoriero that a number of trees proposed by the applicant are unsuitable for the proposed locations due to lack of soil for root development and overstated in relation to their growing potential in those locations (for example, Trees 2, 3 and 4). This has the effect that the proposed landscaping will not realistically achieve the heights or screening potential indicated on the plans.

48. I did not find Ms Clark’s response in oral evidence that some of these trees could be contract grown so that the first lateral branches would avoid impeding vehicular access or that the driveway could be updated from concrete to a hard sand surface with permeable paving compelling for the reasons given by Mr Tesoriero. These reasons being that in respect of Trees 2 and 3, the trees are not suitable for the pruning proposed by Ms Clarke due to their density and in respect of Tree 4, unless there is a root barrier (which will impede root growth) the roots will likely lift the pavers and cause subsidence over time. Ms Clarke’s response that the species can be further changed is not sufficient given that no alternatives were proposed and the Court needs to assess the proposal before it at the time of hearing.

49. Ultimately, the proposal does not provide an adequate landscaped and garden setting for the reasons given by Mr Tesoriero which is critical to maintaining the heritage significance of the Daceyville Garden HCA and should be a central feature of the design of the proposal. The proposal therefore does not meet C29 in section 3.4.6 of the BDCP which provides that “new landscaping is to be compatible with the character of surrounding heritage buildings and be designed to minimise the visual appearance of new development to reduce its impact on the heritage item or HCA.”

50. This is not to say that there is not another design for a detached dual occupancy that could have acceptable heritage impacts, for example, a smaller footprint with an emphasis on a garden and landscaped setting when viewed from Gardeners Road and Astrolabe Road. However, the proposal before the Court has been designed so that it visually presents as a physical subdivision from Gardeners Road and Astrolabe Road and proposes confused and inadequate landscaping that will detract from the garden setting and significance of the HCA.

51. The Amended Development Application should therefore be refused having regard to relevant considerations under cl 4.15(1) of the EPA Act, cl 5.10 of the BLEP and Controls 25 and 29 in s 3.4.6 of the BDCP.

52. As I have determined to refuse the Amended Development Application, it is not necessary to consider the other matters in dispute, noting that they have been addressed to a certain extent in the consideration of the heritage impacts of the proposal.

Orders

53. The Court orders that:

54. The appeal is dismissed.

55. Development Application DA-2025/69 is refused.

56. The exhibits are returned, except for Exs D, J, 2, 3 and 4.

N Targett

Commissioner of the Court

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