Davies v Campbelltown Council Council

CASES CITED: Clive Lucas & Partners v Campbelltown City Council [2007] NSWLEC 659 Segal & Anor v Waverley Council [2005] NSWCA 310

APPLICANT Mrs M-L Taylor, solicitor of Bartier & Perry LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10451 of 2008 Trevor Davies v Campbelltown City Council

JUDGMENT 1 This is an appeal against the refusal by Campbelltown City Council (the council) of a development application (3177/2007 DA-C) under the Environmental Planning and Assessment Act 1979 to construct a childcare centre at Blair Athol House, 23 Blair Athol Drive, Blair Athol (the site).

2 The key contention between the parties is whether the proposal will have an adverse impact on the heritage significance of Blair Athol House. The site and its context 3 The site is irregular in shape with an area of about 5,470sqm.

4 Blair Athol house is described in the Statement of Heritage Impact (SHI) prepared by Clive Lucas, Stapleton & Partners as:

Blair Athol is a large two storey late nineteenth century house prominently set on a hill overlooking Campbelltown with a single store[y] rear wing to the north. Built in the Victorian style, it has a corrugated iron hipped roof, single pane double-hung sash windows, Italianate style rendered chimneys and a two storeyed verandah with elaborate cast-ironwork. The house is approached from the street through the garden on the east-side via a sweeping circular drive. It is set in a large garden with a sunken level lawn to the east dominated by mature trees which are a landmark in the district. 5 Blair Athol House forms part of the Blair Athol Group, which includes Kia (21 Blair Athol Drive) and the Kraal (29 Blair Athol Drive). The Blair Athol Group was originally part of a large rural estate, which was rezoned and subdivided for residential development in the 1990s. As part of the subdivision Blair Athol Drive was created which now provides access to the house. The original access was by a driveway off Blaxland Road.

6 Adjoining the house to the west is an "unnamed" reserve which forms part of a larger open space network formed as part of the subdivision of the original estate. Kia is located within the open space network but is zoned residential and is privately owned. This building is vacant and in poor condition. Recent residential development adjoins the site to the north and east and on the opposite side of Blair Athol Drive. The Kraal is located to the east of the site and is used for residential purposes. Planning framework 7 The site is in the 2(b) Residential B Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP 2002). Childcare centres are permissible with consent.

8 The objectives of the zone relevantly include; to allow development which: (i) is compatible with residential use, and (ii) is capable of visual integration with the surrounding buildings, and (iii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and (iv) does not place demands on services beyond the level reasonably required for residential use. Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development. 9 Cl 43 includes the following objectives in relation to heritage: (a) to conserve the environmental heritage of the City of Campbelltown, and (b) to conserve the heritage significance of existing significant fabric, relics, settings and views associated with the heritage significance of heritage items and heritage conservation areas, 10 Cl 44 (4) provides that: Before granting a consent required by this clause, the consent authority must assess 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. 11 Heritage item is defined in LEP 2002 as:

(a) a building, work, archaeological site, tree or place specified in an inventory of heritage items that is available at the office of the Council and the site of which is described in Part 1 of Schedule 1 and shown edged heavy black on the map, or

…… 12 The description in Part 1 of Schedule 1 is:

Blair Athol group comprising: Blair Athol 23 Blair Athol Drive, Lot 359 DP870579, Blair Athol The Kia 21 Blair Athol Drive, Lot 357 DP870579, Blair Athol The Kraal 29 Blair Athol Drive, Lot 401 DP870579, Blair Athol 13 Each property is individually shown as edged heavy black on the Map. We interpret this to mean that the heritage item comprises three individual properties that form the Blair Athol group. It is therefore necessary to assess the impact on Blair Athol House as well as the group as a whole.

14 Part 3 of Campbelltown Development Control Plan No 83 - Heritage Policy (Heritage DCP) provides the following conservation guidelines for heritage items;

Assessment A development application must be prepared in accordance with the conservation guidelines The Burra Charter and The Conservation Plan . Copies are available from Council's Heritage Planner. Design Principles and Elements The design of any proposed development should not lessen the significance of a heritage item. New development should be compatible and complementary. Design principles to be considered include: * the use of recessive/neutral elements so the significance of a heritage item is retained and enhanced * the recognition of architectural and landscape elements (style and design) * the interpretation of architectural and landscape elements, where appropriate, in a modern way * the views to and from the site * the streetscape * the creation of a sense of place. Design should not: * detract from, dominate or compete with the significance of a heritage item * compete for visual attention * obscure the significance of a heritage item * generally mimic/copy architectural style/designs * overdevelop the site. The proposal and its history 15 The development application was lodged on 20 December 2007. The application was notified and 10 objections were received. Council refused the application on 15 April 2008.

16 The application comprises: o the construction of a new "pavilion" to be used as a childcare centre for 90 children o provision of onsite parking for 28 cars o restoration of the front verandah of Blair Athol House o restoration of the existing driveway, turning circle and centre garden o construction of a new driveway off Blair Athol Drive o internal alterations to the service wing of Blair Athol House o the proposed hours of operation of the childcare centre are 7am to 6pm Monday to Friday. 17 The applicant has agreed to a condition that Blair Athol House will continue to be used as a residence for the owner of the property or a staff member of the childcare centre.

18 The pavilion is similar to an earlier application for a reception centre which was refused by the Court on 8 October 2007 (Appeal 10528 of 2007). The reasons for refusal outlined in the judgment address principally amenity issues relating to noise and traffic. The judgement is silent on heritage impacts of the proposal and it is not clear whether this was raised as an issue in the case. (Clive Lucas & Partners v Campbelltown City Council [2007] NSWLEC 659). Consistent with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310, the Court is not bound to follow or even to take an earlier decision into account if irrelevant to the resolution of the contested issues. This application must be considered on its merits in the particular circumstances of this case. While the "pavilion" was similar in the earlier proposal, the use and the issues contested in Appeal 10528 of 2007 were different and of little relevance to this application. The evidence 19 The Court visited the site and heard evidence from: o Mr Meredith, 38 Blair Athol Drive o Mrs Plummer, The Kraal 29 Blair Athol Drive o Mr Kyytsonen, 34 Blair Athol Drive o Mr Standen, 23 Helm Cottage Street 20 The objectors were principally concerned about the size of the childcare centre, both the size of the building and the number of children. They considered the new building would impact on the heritage significance of Blair Athol House. Mrs Plummer was particularly concerned about the impact on her home, which is part of the original estate. She considered that it was not unreasonable to continue to use the house as a residence and that further development of the site was not justified to conserve the building. The residents raised concerns about noise impacts, the number of car spaces and the impact of increased traffic on the safety and amenity of Blair Athol Drive.

21 For the council expert evidence was provided by: o Mr G Brooks, heritage architect, o Mr L Fletcher, town planner. 22 For the applicant expert evidence was provided by: o Mr H Abrahams, heritage architect and architect of the proposal, o Mr K Burrell, town planner. 23 Mr T Davies, the applicant, provided information on the proposed use and operation of the centre.

Impact on heritage significance 24 Mr Brooks and Mr Abrahams agreed that the Blair Athol Group is listed as an item on LEP 2002 but that the heritage map for the group shows three separate land parcels to which the listing applies. Their assessment focused primarily on the affect of the proposal on the heritage significance of Blair Athol House. There is no formal statement of heritage significance included in the NSW Heritage Inventory Database for either the Blair Athol Group or the individual buildings, which comprise it.

25 The heritage experts agreed that the Statement of Significance for the group in the 1995 Conservation Management Plan (CMP) and the 2006 Update to the CMP (Update) are reliable, although they noted that the CMP was prepared prior to the construction of the residential subdivision.

26 The CMP provides the following discussion on significance:

The Blair Athol Homestead has architectural merit, both stylistically and aesthetically. As the last of the large estate houses remaining close to the centre of the City of Campbelltown, Blair Athol has an unusual rarity value. Its prominent setting, on a hilltop and flanked by mature remnants of a once extensive garden, adds to its aesthetic values. 27 The Summary Statement of Significance in the Update states:

Blair Athol, built in circa 1880 for John Kidd, MLA, a prominent citizen of Campbelltown, is of both of local significance for its intactness, landmark position prominent in views from the town, its aesthetic qualities including its gardens, and as a reflection of the large land holdings which surrounded the village of Campbelltown in the late 19th century. 28 The experts also agreed that a number of key aspects should be considered in relation to the proposal which are summarized as: o the Blair Athol Group and adjacent reserves are the principal remains of the formerly large rural estate and gardens. o the original design concept was of a large residence prominently located. Long-distance views have been diminished by residential subdivision. o the remaining pastoral character of the original property arises from the adjacent reserve and from the immediate garden setting. o the current street frontage presentation is a result of the 1990s subdivision. o the visual connections between the fronts of the three houses are an important aspect of their significance. 29 The experts agreed that a number of conservation policies in the CMP were of relevance to the proposal. These include:

f) The best future use of the buildings is for residential purposes. However, any use which did not compromise the identified significant elements of the buildings could be considered.

g) If the erection of any new structures is necessary to ensure or assist the conservation and economic ongoing use of these buildings, they should be sited at the rear of the allotments, so that the sight lines across the front of the three buildings on the property, and between the buildings and the City of Campbelltown, are maintained. 30 Mr Brooks and Mr Abrahams agreed on the nature of the setting of Blair Athol House, although Mr Brooks also considered that longer distant views can be enjoyed from the unnamed reserve.

31 The experts agreed that the changes to the current context of Blair Athol House and its setting which would result from the proposal are: o The addition of a large new single storey pavilion located to the western side of the main house and set back 6 or 7 metres from the front of the verandah. The proposed pavilion has a footprint equal to Blair Athol House. The design is derived from the traditional glasshouse or greenhouse sometimes associated with large historic rural properties in Australia. o The introduction of a paved car parking area to the east of the main house, on the expanse of lawn which was the site of the former tennis court. o The introduction of an entry driveway cutting into the street front embankment on the south west corner of the Blair Athol property, and replicating the original driveway configuration. o Reduction of views of the side and rear wing of the house from the public reserve to the west. 32 Evidence was also given that there would be changes to the grounds including the development of several new pathways, new fencing and erection of acoustic screens.

33 The heritage experts disagreed on the following matters which they both felt were key issues in the appeal: o Whether the loss of views to Blair Athol house from the adjoining public reserve to the west of the property will diminish the heritage significance of the place and its setting, and o Whether the scale and proximity of the proposed new pavilion will impose on and compete with the main two-storey house which is the prime component of historic imagery of the Blair Athol Group Loss of views and resultant impact on heritage significance. 34 Mr. Brooks considered that the house needed to be appreciated in the round, for its significance to be understood. He stated that: …views to the house from the north-west, where it can be appreciated in the round, are as important for the appreciation of the nature and composition of the building as the views obtained from the street along the entirety of the Blair Athol Drive frontage. The parkland views, and the medium distance visibility of the main house from The Kia cottage, are the only historical prospect which remains unaffected by changes in the topography of the precinct following the cutting in of Blair Athol Drive and residential development of the surrounding landscape. 35 Mr Brooks was also concerned that the addition of such a large pavilion so close to the side of the main house will erode the important remnant pastoral setting of the building. The scale and length of a new pavilion would dominate the western setting of the house. Additionally, the introduction of a paved car park, fences, outdoor play areas and acoustic screens would erode the distinct visual composition and profile [of the house] against the adjoining properties and the ridge line.

36 Mr. Abrahams considered that the affected views are a secondary aspect of the significance and presentation of the house. In his opinion the views of the side of the house and its rear wing are not defined in the endorsed CMP as significant views, and the significant architectural aspect of the house is its form and presentation to the south overlooking Campbelltown and the visual links between the three houses. He stated that outbuildings, which would have partially obscured the rear wing, previously occupied the west side of the house. He pointed out that the rear wing would remain visible from the street at the entrance to the property and from various places within the grounds.

The impact of the proposed new pavilion on Blair Athol House 37 Mr. Brooks acknowledged that the style of the new pavilion, after the manner of a traditional glasshouse or greenhouse, was an attempt to integrate it into the historic fabric of the house and surrounds. However, he felt this did not succeed, because of the scale and proximity of the new pavilion and its architectural detailing. In his opinion: ….the pavilion is simply too large and too close to the front of Blair Athol house to be accepted as a supplementary and subservient structure on the site. 38 Mr Brooks did not agree that the proposal interpreted or had a similar impact as the earlier outbuildings.

39 Mr Abrahams felt that the single storey pavilion would not impose upon the house in scale because it is a large two-storey Victorian house with associated mature trees and because the proposed pavilion is formal and front facing, like the house. He referred to original glasshouses of a similar scale or similar distance from the house at other properties. It is his opinion that there is sufficient precedent to make the form and architectural expression of the proposed building acceptable.

Findings 40 During the planning for and development of the surrounding subdivision very little consideration appears to have been given to preserving the heritage values of Blair Athol House and the Group in a pastoral setting. The area of reserve on the top of the hill did not achieve this, leaving only the small "unnamed" reserve and the remaining grounds surrounding the house to represent this pastoral setting. The earlier neglect of this aspect leaves little room to move, in ensuring the ongoing preservation of the site's heritage values.

41 We agree with Mr. Brook's opinion that the development will result in loss of views of the house in the round and of the rear wing, and that the scale and size of the pavilion will have an impact on Blair Athol House itself and to a lesser extent the Blair Athol Group.

42 The CMP refers to the house as a whole as being significant in its pastoral setting. The "unnamed" reserve is part of a much larger reserve to the west, which provides open country along the hilltop, but the vast majority of the reserve is disassociated from the house and its immediate setting. The best remaining view of the house, which allows one to appreciate it in a way that is reminiscent of its previous pastoral setting, is from the "unnamed" reserve.

43 To appreciate all its facets of significance one needs to view the house in the round. Viewing it completely in the round is in fact now quite difficult, because of the development of the housing subdivision on two sides. This increases the importance of any remaining views, which contribute to an overall understanding of the complex.

44 The rear wing of Blair Athol House is best seen from the public domain from the "unnamed" reserve, although there are also views from the entrance to the property. The rear wing is an integral part of Blair Athol house, which illustrates important design elements, as well as the different facets and social hierarchy of uses and occupants of the house. Previous outbuildings may have partially obscured some of the rear wing, but these were part of the original complex and much smaller in size and further away than the pavilion. The pavilion would totally obscure the view of the rear wing, and significantly diminish the view of the remainder of the house from the western side.

45 The conservation policy in the CMP seeks to position any new buildings at the rear of the allotments so that sight lines across the front of the three buildings and between the existing buildings are maintained. The visual connection between the fronts of the three buildings, which comprise the Blair Athol Group will not be materially affected by the proposal. The relationship between The Kraal and Blair Athol House is already adversely impacted by the intervening residential development that has occurred. The proposal will impact on the visual relationship that currently exists between the Kia and Blair Athol House. Although at a distance and partially obscured by trees these properties can each be viewed from each other across the "unnamed" reserve. We note that the poor condition of the Kia has already severely impacted upon the significance of this building.

46 The Court heard evidence that the applicant would make every effort to ensure that the visual effect of fencing and acoustic screens would be minimised. However, Mr Davies acknowledged that the fence on the western side, between Blair Athol house and the "unnamed " reserve, would probably need to be changed in character and made higher than at present to meet requirements of a child-care centre. An acoustic fence is required within the site set back from the northern boundary, which screens existing vegetation. Shade structures and lopping of trees may also be required in the play area. With the possible exception of tree lopping, We we find that the cumulative effect of these proposed associated developments, along with the car park, will further detract from the remaining views to the house and its setting.

47 We agree with Mr. Brooks' comments on the size and scale of the pavilion. The use of glasshouse typology for the pavilion is an acknowledged attempt to integrate the new building with the old. Certainly the building design is reminiscent of 19th-century glasshouses, without being imitative. However, its size and scale negate this effect. This size and scale will impose on and compete with the Blair Athol House and will consequently detract from its significance and remaining setting. We do not accept that other examples of glasshouses of themselves establish a precedent for this form of development on this site, particularly as it was not part of the original design of the house. As a new structure, it is out of scale with Blair Athol House. 48 We accept that the CMP for a historic site should form the basis for heritage conservation policy, in accordance with Part 3 of the Heritage DCP. It is difficult to fully match the proposed placement of the pavilion and its size with the policy recommendations in the CMP and its Update. The CMP envisages that if the erection of any new structures is necessary to ensure or assist the conservation and economic ongoing use of these buildings, they should be sited at the rear of the allotments. It is not clear the area that is referred to or that the proposal is necessary to ensure or assist the conservation and economic ongoing use of the house.

49 There are no specific policies in the CMP that envisage new buildings on the site. The Update is more explicit on this issue. The map on page 9 shows the location of the previous outbuildings, and the Constraints and Opportunities Map on page 17 indicates that the former outbuildings should be interpreted and the north west corner of the site as an "area capable of new outbuildings". The area indicated on the map is well towards the back of the allotment, and covers only a minor percentage of the area of the proposed pavilion.

50 Due to the curve in the road, the proposed pavilion is between 16 and 20 metres from the front boundary, compared with the verandah of Blair Athol House, which is 17 to 24 metres from the front boundary. The pavilion extends further to the north than the rear wing of Blair Athol house. The size and location of the pavilion is inconsistent with the policies of the CMP and its Update.

51 We note that the Heritage Impact Assessment prepared for council by Conybeare Morrison, while recommending acceptance of the development, comments on adverse heritage impacts on Blair Athol House, including that the siting of the proposal erodes the ability of the house to stand in the round, that the large scale of the pavilion is not in keeping with the stated reference to a traditional glasshouse, and that while the pavilion may be subservient to the main house it is a large and imposing structure.

52 We accept that the proposed restoration of the front drive, and elements of the fabric of the verandah of Blair Athol House would contribute positively to the enhancement of the site's heritage values but not to such degree as to compensate for the other deleterious effects of the proposed development. Nor are these works necessary or of such magnitude for the ongoing conservation of the item, which has already been substantially conserved.

53 Overall the effect on the views, the size and scale of the pavilion, and the cumulative effect of paths, extra and/or higher fences, acoustic screens, and the creation of a parking area on the former tennis court will significantly change the appearance and presentation of the heritage item, will detract further from its once rural setting and have an adverse impact on its significance. The proposed development therefore does not meet the requirements of cl 43 of LEP 2002:

to conserve the heritage significance of existing significant fabric, relics, settings and views associated with the heritage significance of heritage items and heritage conservation areas. 54 The proposal is also not in accord with the guidelines outlined in Part 3 of the Heritage DCP. On this basis the application must fail. It is therefore not necessary to address the issues raised by the planning experts. The opinion of Mr Fletcher largely reflects that of Mr Brooks that the pavilion is too big and too close to Blair Athol House. He concludes that the proposal is not capable of visual integration with the surrounding buildings or relates sympathetically to nearby and adjoining development and therefore is not consistent with a relevant objective of the zone. For the reasons given above, we accept this opinion.

1. The appeal is dismissed. 2. The development application (3177/2007 DA-C) to construct a childcare centre at Blair Athol House, 23 Blair Athol Drive, Blair Athol, is refused. 3. The exhibits, except exhibit 2, may be returned.

      Annelise Tuor Sharon Sullivan
      Commissioner Acting Commissioner

01/10/2008 - correct typographical errors - Paragraph(s) 30, 46, 48

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