ERF Hospice Foundation Ltd v Wingecarribee Shire Council

Land and Environment Court (NSW)|2020-09-25

Judgment

At the intersection of Edward Street and Church Street, Bowral is a large grassed allotment the subject of an appeal, brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). ERF Hospice Foundation Limited (the Applicant) brings the appeal against the Wingecarribee Shire Council's (the Respondent) deemed refusal of development application number 18/0538 seeking demolition of an existing cricket pitch identified as an item of local heritage significance, the removal of 30 trees and the construction of a seniors living development comprising 13 independent living units (5 x 2-storey and 8 x 1 storey) with 26 resident car spaces and associated landscaping (the proposed development) at 11 Edward Street, Bowral (the site).
On 26 May 2020, the Court granted the Applicant leave to amend the application and rely upon amended plans.
At the outset of the hearing, the Applicant sought to further amend the application and rely upon amended plans. The Respondent did not oppose the granting of leave subject to a schedule of amendments being prepared to confirm the extent of changes and noting that the amended plans gave rise to inconsistencies in documents already before the Court.
Leave was granted to the Applicant to rely upon the following plans and other documents contained in Exhibit A:

Aboricultural Impact Assessment, prepared by Ms Melanie Howden dated 5 September 2019 (tab 13), and updated Aboricultural report dated 9 September 2020 (tab 14).
Disability Access Report prepared by Mr Lindsay Perry dated 11 September 2020 (tab 15).
Landscaped area calculation plan prepared by Plantlife dated 27 August 2020 (tab 17).
Elevations prepared by Tziallas Omeara Architecture Studio dated 2 September 2020 (tab 18).
Civil Engineering plans prepared by Novati Consulting Engineers dated 22 September 2020 (tab 19).
Water Cycle Management Study prepared by Novati Consulting Engineers dated 22 September 2020 (tab 20).

Approach to the proceedings

On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy on the Court's website that set out arrangements for matters to be conducted remotely.
On 5 May 2020, the Court listed this matter for hearing, to commence on 24 September 2020.
On 1 July 2020, the Court published a revised COVID-19 Pandemic Arrangements Policy that set out arrangements for a staged return to face-to-face attendances in Court and on-site.
At a directions hearing on 24 August 2020, the Respondent sought an onsite view prior to the hearing. The Court granted the request and directed that the onsite view proceed subject to those attending being limited to seven (7) people.
I presided at a case management conference with the parties on 21 September 2020 at which it was agreed that the most effective use of time would be for the onsite view to commence at the earlier time of 9.30am on 24 September 2020, and for a face-to-face hearing to commence at 11am the same day in the Moss Vale Local Court where expert evidence in respect of stormwater and aboriculture would be heard.
It was also agreed that the limitations imposed upon the Moss Vale Local Court by social distancing protocols may fail to cater for the number of people who may wish to attend the hearing given the degree of public interest demonstrated in the matter.
For this reason, and in accordance with par 46 of the Court's COVID-19 Pandemic Arrangements Policy, I granted leave for three objector's to provide submissions and directed that this should occur at the commencement of the second day of the hearing, which would be conducted via Microsoft Teams to allow a greater number of people to observe the proceedings than would otherwise be possible to attend in person at the Moss Vale Local Court, after which expert evidence in respect of planning and heritage would be heard.
As the hearing evolved, parties were unable to complete the evidence and submissions in the two days allocated for the matter and it was necessary to list the matter for an additional day of evidence.
I attended the site at the commencement of the proceedings and my attention was drawn to a number of existing trees the subject of expert arboricultural evidence, and to the cricket pitch that is of local heritage significance. In the company of the legal representatives and the planning and heritage experts I then walked the perimeter of the site and was shown the interface with adjoining properties.
In the company of the same, I was then taken on a walking tour prepared by the Applicant, which included travelling north up Edward Street on the western side to observe the ground over which a footpath is proposed, and various pits and headwalls the subject of expert stormwater evidence.
We then walked west along Boolwey Street, and viewed the site from the driveway access into the car park on the grounds of St Jude's Church, before proceeding south along Bendooley Street before turning east on Bowral Street until we reached St Jude Street.

The site and its context

The site, as it is described in the Amended Statement of Facts and Contentions (Exhibit 1) is generally rectangular in shape with a slight fall towards the properties to the south of the site which front Bowral Street, and to the north toward the neighbouring property at 9 Edward Street.
The site is legally described as Lot 5 in DP 1188597, having a total area of 6,470m2.
Access to the site is from the north east where Edward Street and Church Street bend to form a right angle turn. At this corner, the shoulder of the roadway thickens to allow access to the subject site, and to adjoining properties at 1 Church Street, and 9 Edward Street.
The immediate locality is characterised by low density residential dwellings that are predominantly single storey cottages in mature landscaped grounds.
The site is identified as an item of local heritage significance in Schedule 5 of the Wingecarribee Local Environmental Plan 2010 (WLEP) (Item No. I1892) for the cricket pitch that is located towards the western boundary on the site.
Adjacent to the site are a number of heritage-listed properties identified in Schedule 5 of the WLEP, including:

'Eldon Cottage' at 42 Bendooley Street, Bowral (Item No. I086)
'St Jude's Anglican Church Group, including Rectory, Church Hall, Lych Gate and Cemetery' at 34 Bendooley Street, Bowral (Item No. I082)

There are also a number of heritage-listed properties in the immediate vicinity of the site, including:

'Cottage' at 44 Bendooley Street, Bowral (Item No. I087)
'House' at 46 Bendooley Street, Bowral (Item No. I1819)
'Hathaway House' at 75A Bowral Street, Bowral (Item No. I1811)

The site is also in the vicinity of a number of state heritage items identified for their connection to the Australian cricketer, Sir Donald Bradman (Bradman). These include:

Glebe Park.
St Jude Street, including the Bradman Oval (Item No. I541) and the 'Bradman Museum Collection and Grandstand' (Item No. I469).

The contentions

The background facts of the matter and the contentions as originally set out by the Respondent are contained in the Amended Statement of Facts and Contentions (Exhibit 1), are amended in Exhibit 2, and may be summarised as follows: 1. The proposed development will have an unacceptable adverse impact on the heritage significance of the heritage item and its contribution to the heritage conservation area. 2. The proposed development will have an unacceptable adverse impact on the heritage significance of the heritage conservation area and upon heritage items in the vicinity of the site. 3. The proposed number of storeys results in a built form that is inconsistent with the predominant single storey character of the heritage conservation area. 4. The proposed development is inconsistent with and not sympathetic to the character of the locality and will have an unacceptable impact on the neighbourhood amenity and streetscape. 5. The proposed development will have an unacceptable adverse impact on the amenity of the adjoining residence in terms of visual bulk and character. 6. The proposed on site detention system is unacceptable and suitable vehicular and pedestrian access to the site is not provided. 7. Insufficient information has been prepared that would permit an assessment of the arboricultural impact of the proposed development on trees within, and in Edward Street.

Expert evidence

The Court was assisted by the following experts in planning, heritage, stormwater, arboriculture and traffic. Discipline Applicant Respondent Planning Mr Scott Lee Ms Deborah Laidlaw Heritage Mr John Oultram Mr Paul Davies Stormwater Ms Claudia Novati Mr Grant Harlow Aboriculture Ms Melanie Howden Ms Catriona Mackenzie Traffic Mr Dean Brodie Mr Craig McLaren

In accordance with the Court's usual practice, the experts conferred in the preparation of joint expert reports that are in evidence. Oral evidence was required from the experts in planning, heritage, stormwater and aboriculture.

Statutory Controls

According to the Respondent, the aims of the WLEP that are pertinent in this matter include, at cl 1.2 of the WLEP: (a) to conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of Wingecarribee, … (j) to conserve the Aboriginal and European cultural and environmental heritage of Wingecarribee, …
The site is located within the Bowral Heritage Conservation Area (Bowral HCA) as identified in the WLEP, and is within the R2 Low Density Residential zone referred to in cl 2.2 of the WLEP in which seniors housing is permitted with consent.
The objectives of the R2 zone are in the following terms: • 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.
According to cl 4.1 of the WLEP, the minimum lot size applicable to the site is 2,000m2.
As the cricket pitch on the site is an item of local heritage significance, and as the site is within the Bowral HCA, the provisions of cl 5.10 of the WLEP apply and are in the following relevant terms: 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 Wingecarribee, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (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, … (iii) a building, work, relic or tree within a heritage conservation area, … (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or … (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.
Clause 7.10 of the WLEP also provides, relevantly, that consent must not be granted unless the Court is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.
While the proposed development is for seniors living, it is common ground that the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP) does not apply to the development application as cl 4(6) of the Seniors Housing SEPP excludes land described in Schedule 1 (Environmentally sensitive land).
Schedule 1 of the Seniors Housing SEPP provides, at (h) that land identified in another environmental planning instrument as 'water catchment' is excluded from the benefit of the Seniors Housing SEPP.
The site is identified as being within a Drinking Water Catchment by the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (Sydney Water Catchment SEPP).
Clause 10 of the Sydney Water Catchment SEPP provides, relevantly: (1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. (2) For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool.
Clause 11 of the Sydney Water Catchment SEPP requires the concurrence of the Regulatory Authority as a precondition to consent for the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment.

The heritage significance of the pitch is disputed

As you enter the town of Bowral by road, a welcoming sign features the image of a cricketer adopting a wide stance and playing off the backfoot, intending what appears to be a lofted straight drive over mid-on, or the bowlers head, to the boundary.
Bowral is clearly proud of its association with the game of cricket. A particular focus of this association is the period of time spent by Bradman in Bowral, and his development as a cricketer of international acclaim.
The degree of association, if any, between Bradman's school-aged years and the cricket pitch on the subject site is a matter of dispute. While the heritage experts are agreed that there is no definitive connection between the cricket pitch that is the subject of this appeal and Bradman, Mr Nick Corbett, in written submissions, sets out research he has undertaken on his own initiative and which he asserts is strongly suggestive of such a connection.
Mr Corbett identifies as a long-time resident of Bowral who undertook research on the cricket pitch as part of a graduate certificate in Natural Resource Management and which he considers to be grounded in primary sources.
In summary, Mr Corbett's submission is that:

The cricket pitch is significant for its association with cricket in Bowral, which is itself important in explaining the rise of Bradman as a world class cricketer from a country town.
A number of cricket pitches were located in the Glebe, and there is evidence of multiple teams playing on multiple pitches simultaneously.
The marks identified in the 'Google earth aerial' that appears in the joint expert report (Exhibit 9, p 8, 'Figure JO2') are more likely to be remnant orchards or kitchen gardens associated with the St Jude's Church than tennis courts which were located closer to Edward Street.
The site was a thoroughfare for the young Bradman who attended the nearby school until 1922, and choir until 1923.

In the course of his oral submission, Mr Corbett relied on material that was not before the Court, but which Mr Corbett maintained had been forwarded to the Respondent prior to the hearing.
Mr Seton for the Respondent acknowledged that the material had been received but was inadvertently omitted from the bundle at Exhibit 5.
Mr Corbett's supporting material was provided to the Court forthwith, and was received prior to the evidence of the heritage experts being heard.
I directed that the Respondent file Mr Corbett's supporting material, and it was agreed that it should be appended to objector submissions at Exhibit 4.
The material includes:

Figure 1: Historic cricket pitches on the Glebe, showing the location of a number of cricket pitches within the Glebe between 1888 and 1922.
Figure 2: Rough tracing of alignment plans showing Glebe lands, Municipality of Bowral, 11/2/1919 (Town Clerk).
Figure 3: Local Government Planning Map 1951, Courtesy of Berrima District Historical & Family History Society.
Figure 4: described as a rough map from December 1918 was drawn by Mr AJ Lee, Headmaster of Bowral Public School. It shows the 1904 tennis courts on the northern boundary, sourced from State Archives and Records.
Figure 5: Bowral High School (1919, February 28). Robertson Advocate (NSW: 1894-1923), p2. Retrieved June 25, 2018, from http://nla.gov.au/nla.news-article120009963
Diagram showing the location of the 1904 and 1925 tennis courts and children's library.
A written article said to show that, in 1906 the St Jude's choir boys and Our Boys Institute formed a cricket club and were granted use of the 'old pitch on the Glebe' by Reverend Wilkinson. Source: "Church of England Items," 1906. Source: Church of England Items. (1906, September 5). The Wollondilly Press (NSW : 1906 - 1914), p 2. Retrieved June 2, 2015, from http://nla.gov.au/nla.news-article112511603
Figure 6 Ginger Meggs Movie 1982, being a still image taken from the movie in which both the cricket pitch and children's library appeared on film.
Figure 7 which appears to be a scorecard from 1894 in which Bradman's cousin and Bowral Association star Batsman Jim Cupitt and Association wicket keeper Charles Church, who supervised the building of the concrete cricket pitch in 1892, were selected to play for Southern Districts in country week at the Sydney Cricket Ground region (Cricket, 1894, Oct 16; cricket notes, 1931). Source: Australian cricket Annual: a complete record of Australian cricket in 1895-6. Editor John C Davis, George Robertson, Syd, 1896.

Two figures contained in Mr Corbett's supporting material are of particular relevance as they became a focus of the expert evidence. Figure 1 and Figure 3 are re-produced below. Figure 1 - showing multiple cricket pitches on 'the Glebe' (site marked in red) Figure 2 - the 1951 Town Planning Map (site marked red)
At the commencement of the third day of the hearing, and after the heritage experts had completed their oral evidence, the Respondent also sought to tender, unopposed by the Applicant, a Sewerage Plan dated 1930 that was received from Mr Corbett. This was also added to Exhibit 4.

Expert evidence - heritage

On p 4 of the joint report, the heritage experts provide a helpful summary of the things on which they agree, including:

The pitch is not of specific value in relation to Bradman's period of playing in the area.
The establishment of cricket pitches from the 1890s onwards is a common development in NSW.
The association with the cricket clubs of Bowral is a loose association.
The cricket pitch has no known associations with Bradman.
The current pitch measures 19 metres (62 feet), which is less than the regulation distance of 22 yards.
The site would not accommodate a standard cricket oval.
The State Heritage Inventory Listing Sheet for the cricket pitch does not contain an assessment or statement of significance,
The site has trees that are recorded in 1963 aerials that would have precluded formal cricket games.
The site was never formally gazetted as a sporting or recreation ground and was part of a residential subdivision of the Glebe lands for St Jude's Church in 1921.
The site was used for tennis courts from 1904 until the 1950s and recent aerials of the site show the location of these over the cricket pitch.

While the experts agree on the matters listed above, they disagree on the correctness of the assessment that informed the heritage listing. Mr Oultram considers the site to have little inherent heritage value, while Mr Davies is of the view that the site has moderate heritage significance in relation to the cricket pitch.
It is also relevant to state here that the heritage experts acknowledge their respective assessments have been formed on the basis of research undertaken by others.
Furthermore, subsequent to the agreement above, and after review of Mr Corbett's supporting material, Mr Davies advised that he now considered it possible that the tennis courts previously agreed to have been superimposed on, or in place of, the cricket pitch, were in fact located as shown on the 1951 town planning map.
It also came to Mr Davies in his oral evidence that as tennis courts are usually set out in a north-south orientation, and not an east-west orientation as suggested on the 'aerial image', the location identified by Mr Corbett was more likely.
The relevance of the location of the tennis courts, as I understand it, is that in the event the tennis courts were superimposed on, or in place of, the cricket pitch between 1904 and 1950, it is highly improbable that Bradman ever played on the cricket pitch as it was either concealed below the tennis courts, or had been demolished in order to build them.
However, if the tennis courts were located as indicated on the 1951 town planning map, it is likely that the cricket pitch was in situ during the period of Bradman's school years and more likely that the cricket pitch is the same pitch as that laid in 1892, and is not a later construction as otherwise agreed by the experts.

The assessment of heritage significance of the cricket pitch

Relevantly, the listing sheet recording the item does not itself comprise a statement of significance (Exhibit 5, Tab 19). Instead, the parties look to the Assessment of Heritage Significance prepared by Chris and Charlotte Webb Pty Ltd dated November 2015 (Exhibit A, tab 5) (Webb Report) in which a statement of significance is found.
The Webb Report records, at Section 1.1, that it was prepared to address the significance of the cricket pitch on the site as part of the development application for the proposed hospice, Edward St, Bowral.
The statement of significance contained in the Webb Report is as follows: "The cricket pitch has moderate historical significance as a remnant concrete pitch dating back to the 1890's, although it is in poor condition with deteriorating repairs. It has moderate significance for its association with the Bowral Association Cricket Club which later boasted the membership of Sir Donald Bradman, arguably Australia's greatest test cricket."
This statement of significance is in similar terms to the statement of significance contained in the assessment prepared by Dr Carol Cosgrove dated 16 April 2018 (Cosgrove Assessment) (Exhibit A, tab 4) which is as follows: "The cricket pitch at 11 Edward Street has historical significance as a remnant concrete pitch, possibly dating back to the late 1880's. It is also significant for its association with the Bowral Association Cricket Club and the and the [sic] Surveyor's Camp Cricket Club (later the Bowral Cricket Club), which from 1925 boasted the membership of Sir Donald Bradman, arguably Australia's greatest test cricketer. However, it is unlikely that Bradman ever played at this cricket pitch."
The Webb Report also contains, at Section 6.5, three recommendations. These include: "i Recommendation 1 A full detailed recording be made of the pitch, including location, accurate measurements and photographs of both the playing surface and the pitch profile whether the pitch is to be retained or removed. ii Recommendation 2 Preference should be given to retaining at least a portion of the pitch in situ with appropriate interpretation. This could be achieved with the current development proposal if part of the southern end of the pitch were retained. iii Recommendation 3 If any artefacts are discovered during excavation work should be stopped immediately until an archaeological heritage specialist can assess the site."
The recommendations above formed the basis of the Council's decision, taken on 23 March 2016, to adopt the recommendations of the Heritage Committee dated 19 February 2016 and a Planning Proposal was prepared to amend the WLEP (Exhibit 5, tab 21) to include the site in Schedule 5 of the WLEP which has the effect of listing the cricket pitch as an item of local heritage significance.
According to the Applicant, the reliance by the Council on the Webb Report as the basis of the listing demonstrates that no original research or independent was undertaken.
Furthermore, nowhere in the Webb Report does it recommend listing the cricket pitch as a heritage item. Instead, it identifies that a detailed recording of the pitch should be made, a portion of the pitch should be retained in situ, and that work should stop if artefacts are found during works.
Similarly, Mr Tomasetti notes that the Cosgrove Assessment also considers the removal of the cricket pitch, so long as an interpretation plan is prepared.
The recommendations in the Webb Report flow from an assessment completed in accordance with the seven criterion set out in the document 'Assessing heritage significance' published by the NSW State Heritage office that found, in summary, that: 1. The historical significance of the cricket pitch is moderate, as it is relatively intact and dating back to 1892. 2. The level of rarity of the cricket pitch is assessed as 'little' given that numerous cricket pitches were constructed throughout the district during this period. 3. The aesthetic significant is also assessed as 'little' as it is in poor condition and in a state of disrepair. 4. Its level of scientific significance is assessed as 'little', as common materials were used in its construction. 5. Its social significance is assessed as 'moderate' given the association with the early cricket clubs of Bowral and surrounding areas, and as evidence of direct association with Sir Donald Bradman has been discovered.
While Mr Davies considers it likely that the cricket pitch dates from 1892, there is no certainty to that, but in any event it is preferable for the pitch to be retained, in whole or in part, and for 'interpretation' to be provided which may include an area around the pitch that is publicly accessible and supported by signage.
The Applicant considers it reasonable that a condition be placed on the consent to the effect that a plaque or similar is installed at the street frontage that could mark the historical uses of the site.
However, according to Mr Davies, signage alone would be a simplistic response to the opportunity for interpretation which is substantially diminished by the removal of the cricket pitch.

The character of the Bowral Heritage Conservation Area

The Respondent contends that the proposed development will adversely effect the heritage significance of the item, adjacent items, and the Bowral HCA itself.
The Bowral HCA contains a statement of significance as follows (Exhibit 5, tab 20): "The Bowral Urban Conservation Area is significant as an urban cultural landscape which provides evidence of the phases of major development of the town of Bowral. Each precinct has a different character and presents different aspects of town foundation and growth. Periods represented range from its establishment as a private town in the 1860s through to the interwar period. Functions represented include residential, civic, religious and educational. While the nature of the buildings and the gardens, public and private, illustrate the importance of Bowral as a 'rural retreat' for wealthy Sydneysiders in particular, associations with other community groupings are also represented in more modest vernacular streetscapes which are included in the Area. In addition to the historical attributes the precincts in the Area, possess significant streetscapes which, considered as a whole, reveal the harmonious townscape character which is highly valued by the local community and visitors alike."
The Bowral HCA comprises 3 precincts, however the Applicant submits that the precise boundaries of the precincts are not defined, and the test required of cl 5.10(4) is on the effect of the proposed development on the significance of the Bowral HCA, and not to some other locality for which there is no such statement.
A description of the Southern Residential Precinct appears at Section 3 of the State Heritage Register listing for the Bowral HCA, also found at Tab 20, and is as follows: "The Southern Residential Precinct: contains a number of residential dwellings of the Federation period with large allotments that have been developed during the twentieth century. The southern end of Bendooley Street provides a mixture of styles in a mature landscape setting essential to the character of Bowral as a rural retreat. In Edward and Church Streets, the houses provide interesting examples of villas from the 1920s-1940s in mature garden settings. The southern precinct is important for the landscape elements provided by both public and private plantings."
As the description at Section 3 is distinct from Section 2 which contains the statement of significance, the Applicant suggests I should confine my consideration of cl 5.10(4) to the statement of significance at Section 2, while the Respondent urges me to read the document as a whole.
To read the document as a whole would suggest that Edward and Church Street are identified as being of particular interest or note within the broader Bowral HCA, and so my consideration of cl 5.10(4) should take particular note of the characteristics of Edward and Church Street.
I accept the Respondent's submission that the document should be read as a whole and that the physical description of the Southern Residential Precinct should carry weight in considering the effect of the proposed development on the Bowral HCA. I consider this a reasonable approach for 2 reasons: 1. Firstly, the statement of significance makes particular reference to the precincts that constitute the Bowral HCA, and states that "each precinct has a different character". The description of the three precincts then follows the statement of significance for the Bowral HCA as a whole. The physical description of the Southern Residential Precinct assists the reading of the words within the statement of significance. To preclude the description of the precincts leaves the reader with no guidance as to the nature of the 'different character' referred to in the statement of significance. 2. Secondly, as the Bowral HCA is a singular area comprising such a large part of the Bowral township, it is reasonable to consider the effect of a development, if there is one, will be more acute or relevant to its immediate environs than to the environs at a distant point in the township. This is born out in the manner in which the experts have considered the contentions. Precedents identified by the Applicant's experts are of the immediate streets, and are not themselves drawn from the wider Bowral HCA.
Nowhere in the statement of significance, or the description of the Southern Residential Precinct are single storey dwellings identified as being characteristic of the area, and many have upper storey additions with visible two storey frontages, in Mr Oultram's assessment.
In particular, properties located close to the site on Boolwey Street are an example of dwellings with upper storeys that are closely located so that pitched roof forms overlap when viewed on angle that are akin to the scale and density of the dwellings proposed on the site as in Figure JO8, re-produced below.
In her oral evidence Ms Laidlaw accepts that images taken by Mr Oultram at par 82 of the joint report show a number of dwellings in the immediate area that are one-and-a-half storeys, or two storeys.
To Ms Laidlaw, the numerical control is less of a concern than the overall density of development on the site. As it is put by the experts in par 101 of the joint report: "The primary issue relating to building height is the appropriateness of dwellings of this height/form in the context of the density of development sought and from the perspective of character and impact on the conservation area."
As I understand it, Ms Laidlaw could support two storey development in contradiction of the sections C2.9.2(a)(b), and C14.3.2(i)(j) of the Bowral Town Plan Development Control Plan 2010 (BDCP) if the result was dominant landscape elements which characterise and distinguish the locality.
However, Mr Seton considers the areas that are landscaped to be 'remnant pockets' and notes Mr Oultram's view, expressed at par 133 of the joint report, that the proposed development is 'particularly dense', in response to which Mr Oultram proposes an alternative site layout at Appendix A of Exhibit 9 that is not reflected in the application before the Court.
Mr Lee suggests the character of the area is not dominated by landscaping, but is instead a mix of built and landscape form and describes the development as low density as it is, in effect, 1 dwelling/500m2. Furthermore, as the site is currently a large open paddock with limited frontage to the public domain, it is generally concealed from view, is an 'anomaly', and there is no reason for it to adopt a similar pattern of development to single dwellings on individual lots.
Mr Lee accepts the pattern of subdivision and streetscape character in the immediate vicinity of the subject site vary. In particular, the character of Boolwey Street varies from that in Edward and Church Street. The subdivision pattern on the northern side of Boolwey Street is generally smaller lots of around 700m2, which Ms Laidlaw considers to be a reason that landscaping is less dominant here when compared to the lot size and setbacks in Edward and Church Street.
Mr Davies provides, at Figure PD1, a plan of the site if the scale of subdivision on the western side of Edward Street is applied to the subject site.
The result is a subdivision of 4 or 5 lots that is not intended as an analysis of what should be proposed, but to demonstrate how the consistent character of Edward and Church Street would be overlaid on the site, adopting the dominant siting, setting and pattern in the street that is so determined by front, side and rear setbacks that stands in contrast to that proposed.
As the site is substantially land-locked, Mr Davies' assessment is that the northern and eastern boundaries form side setbacks as they relate to properties in Edward Street and Church Street. The western and southern boundaries are properly defined as rear setbacks adjoining properties fronting Bendooley Street and Bowral Street that have, generally, large rear yards that are deserving of a greater setback on the subject site than that proposed.
Consistent with the pattern of surrounding properties, there is a greater need for setbacks to rear boundaries than side boundaries. Mr Davies illustrates this logic in Figure PD3 of the joint report, re-produced below.
The Applicant has prepared photomontage images (Exhibit A, tab 27) from locations marked on a plan that illustrate the proposed landscaping at the site frontage when viewed from Edward and Church Street.
The images are said to demonstrate a built form that is sympathetic to the Bowral HCA, and to Edward and Church street in particular. Hedging to the front boundary mimics hedging in adjoining properties, and softens the entry to the site.
The Respondent contests the veracity of the images in depicting the proposed development. Mr Lee accepts that the surface mounted electrical transformer, located adjacent to the entry to the site, is not shown in the image but would be a lower height than the front hedge, and would be a painted finish.
However, according to the Respondent, the frontage to Edward and Church Street would be dominated by the hardstand driveway, electrical transformer, communal bin storage and elevation of Dwelling 1, all of which are alien in the streetscape and so are incompatible with the character of Edward and Church Street.

Landscape and aboriculture

The proposed development includes the removal of a number of large trees on the site which the Respondent contends has the effect of adversely impacting the heritage item itself, the Bowral HCA, and the character and amenity of the local area.
In particular, the need for the removal of trees 1, 14, 17-19 is questioned, and the long term health of tree 3 is put at risk of the proposed works, according to Ms Mackenzie.
The impact of offsite works comprising stormwater and footpath works beyond the site also puts at risk the health of mature street trees located in the road reserve on Edward Street, and works shown in the Civil drawings at DA06 (Exhibit A, tab 19) including road widening and kerb and guttering is said to adversely impact the character of the Edward and Church Street setting.
It is relevant to state here that the arboriculture experts agree that the removal of the two mature Monterey Pines, identified as trees 4 and 5, is acceptable despite their very high landscape significance and high retention value, but is due in part to their status as environmental weed species in the Wingecarribee local government area.
In general terms, Ms Mackenzie is of the opinion that some of the trees proposed to be removed make a positive contribution to the streetscape and the wider Bowral HCA.
Furthermore, the replacement planting plan for the site fails to provide for large canopy trees, opting instead for medium scale trees that are described as 'fastigiated', or 'columnar' and which are not consistent with the preference in the BDCP for canopy trees.
Tree 1 is an English oak tree, located in close proximity the entry to the site. In summary, the experts agree that it has high landscape significance, is in good health and condition, and is a prospective long-term contributor to the amenity and landscape character of the site and the heritage conservation precinct.
The experts agree it would be ideal to retain Tree 1 if design constraints permit. In spite of it being retained in an earlier version of the plans, it is now shown removed to provide vehicular access to the dwellings.
In her oral evidence, Ms Mackenzie considers Tree 1 to meet four criterion set out for assessing significance of trees in Appendix C of the joint report (Exhibit 7), including having value in respect of the cultural sentiments reflected by the community as evidenced by the prevalence of English oak trees in the Bowral landscape.
Tree 3 is a mature liquidambar of high landscape significance, is in good health and condition and is proposed to be retained in the rear setback to Dwelling 13.
Ms Mackenzie considers it possible that the stormwater drainage shown within the tree protection zone could require the cutting of roots in order to achieve the required fall in the pipe between Dwellings 12 and 13, resulting in harm to the tree.
Hand digging, trenchless under boring and other mitigation methods are common, and appropriate according to Ms Howden. However, as the drainage requires a consistent fall, Ms Mackenzie's concerns are that roots, if encountered, would require cutting regardless of the method used to identify the location and size of roots.
That said, the experts agree that liquidambars are a robust species.
Trees 14 and 19 have moderate landscape significance, and are located near Dwellings 8 and 9. Ms Howden agrees that a greater setback from the boundary at these two dwellings would permit their retention.
Trees 17 and 18 are shown removed as a result of conflict with retaining walls shown in the proposed development.
Ms Mackenzie identifies three locations where large trees could be located in the proposed development with minor amendments, including:

East garden area of Dwelling 1
Rear west area of Dwelling 2
Southeast corner of Dwelling 10

Impact of stormwater on street trees in Edward Street

The Applicant proposes a 375mm diameter stormwater drainage line on the western side of the Edward Street road reserve to discharge at a new headwall proposed for the intersection of Edward Street and Boolwey Street.
Given the proximity of the drainage to existing mature street trees and the likely proximity of roots near to the surface of the road reserve, Ms Howden notes tree protection measures to be employed, including an intent to avoid excavation for the footpath proposed on the western side of Edward Street.
A footpath is shown on drawing DA06, as requested by the Respondent in early discussions with the Applicant. It is a straight path that the experts agree would, in reality, need to 'meander' so as to avoid existing roots, stormwater pits and the like, and to ensure excessive cross fall is avoided.
As tree roots are known to 'flex' in wind, Ms Mackenzie is also of the view that the footpath cannot be concrete, but may be better suited to a material such as polyurethane and graded gravel or decomposed granite.
Whatever material is used, the experts are unaware of the depth of cover likely over the proposed drainage, given the absence of survey information. However, a minimum cover of 600mm is commonly agreed to be preferable.
The Applicant submits that as the offsite works are not the subject of this application, but of a later application under s 138 of the Roads Act 1993, the extent and nature of the works will continue to evolve and conditions of consent to this effect are proposed by the Applicant.
In the alternative, Mr Seton urges me to consider the likely impacts of works proposed in Edward and Church Street in my determination of this matter, for the reasons shown by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake).

Onsite stormwater system

On review of the amended plans and other documents served on the Respondent on 22 September 2020, Mr Harlow is of the opinion that the proposed stormwater system is shallow, and may be a 'relic' of a former design that pre-dates the amendments to the trenchless under boring now proposed to Edward Street.
Mr Harlow's specific concerns may be summarised as follows: 1. The type of onsite detention (OSD) is inappropriate. While the amended plans show a greater volume in the OSD capacity, an underground storage system is preferred over the selected 'Stormtech' system which is a self-supporting arch system that functions, as I understand it, as an elaborate form of absorption trench. 2. Access for maintenance to the 'Stormtech' system is limited which may result in the system 'silting up', and the potential for infiltration of water into the underlying subsoil may undermine dwellings immediately adjacent to the OSD. 3. The amended stormwater design does not capitalise on the additional depth made possible by amendments to the system in Edward Street. The result is that firstly, the flow of water to Edward Street post-development exceeds that of the pre-development flow (in a 1 in 5 year event), and certain pits on the site are shown with a surface level above that of the finished floor level of adjacent dwellings. 4. Relatedly, the level and depth of the pits on the site do not permit the nominated 'Enviropod' filtration system to be accommodated, when the invert level of pipes and the required the depth of cover are considered. The result is that the system is unlikely to result in a neutral or beneficial effect on water quality as required by the Sydney Water Catchment SEPP. 5. There are errors and inconsistencies in the falls shown on the stormwater plans. For example, the falls shown on DA03 in the vicinity of dwelling No.1 indicate a flow path to the central landscape median and OSD, while drawing DA04 shows a flow path to Edward Street.
Ms Novati is familiar with the Stormtech system, which has been approved on a site within 1km of the subject site and has visited a Stormtech installation in Lane Cove which uses the 'Jetvac process' to remove silt.
Ms Novati tells me that an advantage of the selected system is its adaptability, so that the 'cells' shown arranged as a block on drawing DA02 (Exhibit A, Tab 10) can be re-arranged around tree locations if required to suit the final design of the central landscaped median. Additionally, the system can be expanded to slow the release of water to Edward Street and correct the 1 in 5 year outflow to a pre-development level.
Adjustments can, and usually would, be made to the final level of pits and post-development flow off the site prior to the issue of a Construction Certificate, including further investigation on soil types to determine if tanking of the selected OSD system is required.
Mr Tomasetti submits that the issues raised by Mr Harlow are of the sort commonly addressed prior to the issue of a construction certificate, or in conditions of consent such as those proposed by the Applicant at Conditions 16 and 17 (Exhibit C).
The Stormwater experts agree that to capitalise on the additional depth made possible by changes to the Edward Street drainage, amendment to the onsite stormwater system are required.
As I understand it, this may involve:

adjustment of levels and depth of pits adjacent to Dwellings 7 and 8,
the addition of swales to the rear yard of Dwelling 9 and 10 to direct stormwater away from dwellings in the event of overflow,
a further increase in the capacity of the OSD to address the post-development outflow, and
modification of the geometry of the OSD which Ms Novati tells me can be effectively 'shaped' around the root ball of trees if required.

Consideration

The cricket pitch is listed for its local heritage significance (see [59]), absent a direct association with Bradman. For this reason, it is not necessary to establish an association with Bradman to 'validate' the listing. Neither does a failure to draw a connection with Bradman compromise the heritage significance of the item.
As the cricket pitch is listed as a heritage item and is located in a heritage conservation area, I am required to consider the effect of the proposed development on the heritage significance of the item and the Bowral HCA in accordance with cl 5.10(4) of the WLEP.
I accept that, absent a statement of significance contained in the inventory sheet, the statement of significance contained in the Webb Report is a useful reference that has been adopted by the Respondent in making its decision to list the cricket pitch for its heritage significance, and by the Applicant in these proceedings.
However, I also accept that a direct connection to Bradman, if found, has the potential to question the completeness of the assessment undertaken in the Webb Report that, in turn, informed the listing as it may indicate an under-estimation of the social significance of the cricket pitch.
In this regard, I consider Mr Corbett's submission should be given some weight, as it is informed by primary source material that has not been previously identified by the experts, or by the Webb Report or the Cosgrove Assessment. In particular, the 1951 town planning map suggests the pitch was undisturbed and in situ during the period the tennis courts were in use.
As stated earlier, this also lends weight to the proposition that the cricket pitch does indeed date from 1892. The effect of which is to strengthen the primary ground on which the heritage listing is founded, which is the age of the cricket pitch dating from the late 1890's.
Assuming this to be correct, its functional use would have been seriously limited due to the rapid succession of encroachments imposed, firstly, by the construction of 'Eldon Cottage' to the west shortly after the pitch was laid, then by the tennis courts to the north east in 1904, the children's library to its north, and finally the decision by the church to subdivide the Glebe in 1921 that resulted in the construction of houses on the Glebe.
Given the rapid succession of encroachments on the field of play, the use of the cricket pitch could not have been for anything more than a 'casual hit' after 1904, and which may or may not have included a young Bradman.
The timing of these encroachments so soon after the construction of the cricket pitch, if indeed it was completed in 1892, confines the period of time during which the cricket pitch could have been used for cricket, even in the truncated form of the game commonly played in the school yard. Furthermore, the constrained setting of the cricket pitch from 1904 onwards is consistent with the commonly held view that the cricket pitch was not used for formally convened matches.
For its purpose to be understood, a cricket pitch requires a field in which to be set. I accept that much of the field has been lost to successive encroachments which has the effect of diminishing an understanding of its use.
It is in this context that I accept the position of the experts, and of the findings of the Webb Report and the Cosgrove Assessment that consistently hold the removal of the cricket pitch would be permissible subject to appropriate provision being made for a meaningful 'interpretation' of the site and its former uses.
While the Cosgrove Assessment makes particular reference to a proposal for interpretation, the Applicant does not rely upon one in this appeal. The Respondent proposes that such a plan be imposed as a condition of consent, however the Applicant seeks to strike out condition 25 (b) and (c) to this effect (Exhibit C).
While I accept there are grounds on which the removal of the cricket pitch could be supported, it is not necessary for me to make a final determination on the effect of the proposed development on the heritage item itself, as I conclude the proposal does not warrant the grant of consent due to the impact of the proposed development on the Bowral HCA, and on an assessment of the likely environmental impacts of the development on the locality for reasons I will now set out.
Firstly, as I accept the Respondent's invitation to read the statement of significance and the physical description of the precincts of the Bowral HCA together as a whole, it follows that I also accept, as do the heritage and planning experts, that Edward and Church Street have a particular character that is different and distinct to the character of Boolwey Street, Bendooley Street, St Jude Street or Bowral Street. It is this character, being within the Bowral HCA, that is affected by the proposed development most acutely.
Secondly, and relatedly, it is within this context that I consider the presentation of the entrance to the site when viewed from Edward Street in particular. After careful consideration of both the architectural and landscape plans, I accept the Respondent's submission that the visual presentation of the site is likely to be dominated by hardstand, comprising the hardstand driveway that is also flanked to the south by the setting of the electrical transformer, the details of which are yet to be confirmed, and to the north by the communal bin storage which I understand to be unenclosed.
In my assessment, standing just north of camera location 2 (Exhibit A, tab 26), a passer-by on Edward Street would have a sightline across the driveway, and the broad area of hardstand that was formerly the northern end of the landscaped median, now shown removed on the landscape plans.
Thirdly, the traffic experts agree that further reduction in landscape within this sightline is also required. At par 10 of the joint report (Exhibit 8), a separate pedestrian footpath is proposed 'through the north-eastern corner garden', that is also reflected in a proposed deferred commencement condition at Schedule A(a)(vi).
In my assessment, the effect of this pedestrian path, not considered before now, would be to require the removal of the majority, if not the entirety, of the landscape plantings depicted on the landscape plans, and in the photomontage images.
The result of the above would not be a mix of built form and landscaping as characterised by Mr Lee, but of a large multi-dwelling development arranged around a large central hardstand area designed for the movement of cars, storage of bins and the locating of heavy electrical infrastructure.
While figure PD6 (Exhibit 9, p 21) is not reflective of later changes made to the area of hardstand proposed on the landscape plans (Exhibit A, tab 22), it is illustrative in my view, of the extensive impermeable surface that would be visible from Edward Street. I re-produce figure PD6 below:
The changes made to the central landscape median are applied inconsistently to the architectural, landscape and stormwater plans.
The origin of the inconsistency is most succinctly described in the margin note on p6 of Exhibit C which explains the amendment to the landscape median in the following terms: "To resolve inconsistency between architectural plans as a result of amended landscape plan which amended to allow manoeuvring area for medium rigid vehicles as required by Council. See joint traffic report"
The agreement of the traffic experts in par 14 of the joint traffic report is consistent with the margin note, and confirms the amended hardstand area is suited to a medium rigid vehicle.
As a result of the amendment, a continuous hardstand surface is now proposed between dwellings 3 and 13.
I find the result would be inconsistent with what is described at [73] as the "mature garden settings" in Edward Street and Church Street and "the landscape elements provided by both public and private plantings".
Such a result does not recognise the desirable elements of the location's current character, and nor does it retain, complement and sensitively harmonise with the particular streetscape identified in the Bowral HCA as is expected by section C8.3 of the BDCP.
The area of hardstand, paving, driveways and paths would clearly exceed 20% of the area forward of the building in contravention of section C14.3.2(d) of the BDCP, if the 'area forward of the building' is considered, conservatively in my view, as the extension of the front setback to 9 Edward Street drawn in a southerly direction to meet Dwelling 13.
The result is not assisted by the loss of Tree 1, which has very high landscape significance, close to the entrance of the site and in contravention of section C8.3(e) of the BDCP which seeks the retention of major trees.
Fourthly, for the reasons set out by Ms Novati at [123], the volume and geometry of the OSD must be further modified, as must the stormwater pits to Dwelling 7 and 8, and perhaps the landscape design to courtyards to incorporate swales.
The implications of the increase in volume and geometry of the OSD on the central hardstand and landscape median is unclear.
There appears to be limited space to increase the capacity of the OSD in a northerly direction due to the proximity of Dwelling 1. Likewise, expanding the OSD in a southerly direction either exacerbates the conflict between OSD and the landscape median, or requires the adapting of the OSD geometry around the tree's root ball, the size of which is unknown.
The implications of any or all of the above amendments on the stormwater system proposed for Edward Street are uncertain, however on the basis of the pit depths agreed by Ms Novati in oral evidence, I find a cover of 600mm is unlikely to be achieved at Pit 1 on Edward Street, and a depth of less than 450mm is likely at the headwall, according to Ms Novati.
I note Ms Mackenzie's concern at the potential impact of a 375mm diameter pipe at this depth below surface, and I accept that there is a likelihood of incursion into the root zone of the street trees in Edward Street.
The likely impact of these works, while not part of the development the subject of the development application, are a mandatory relevant consideration, pursuant to s 4.15 (1)(b) of the EPA Act.
As shown by Preston CJ at [18] of Palm Lake: "…the fact that works, which are likely to impact on the environment, are not the subject of the development application is not dispositive of the question of whether the likely impacts of the works need to be considered in the determination of the development application. The likely impacts of the works can be considered to be likely impacts of the development the subject of the development application where there is a real and sufficient connection between the works and their impacts and the proposed development."
In the Palm Lake matter, as here, civil works were needed to be undertaken, including provision of a footpath/cycleway in a road reserve to satisfy the access requirements. There, as here, drainage was required to be laid in the road reserve to connect the proposed development to the existing water and sewer mains.
As shown in Palm Lake at [30], I am required to make an evaluative judgment as to whether the likely impacts of the footpath and drainage works required to be undertaken in the Edward Street road reserve are likely impacts of the proposed development, and if so, to take those impacts into consideration in determining the development application for the proposed development.
Both the footpath and drainage works in Edward Street road reserve directly and integrally flow from the proposed development. The nature of the likely impact is on the roots of the mature street trees in Edward Street. In the absence of root mapping, a survey of the road reserve, and the final design of the OSD system, I cannot be satisfied that a path for the 375mm diameter pipe, associated pits and the headwall can be completed without adverse impact on the street trees in Edward Street.
While not determinative of the appeal itself, whilever the precise scope of the stormwater system design is so uncertain, I accept the Respondent's submission that I cannot be confident of the likely impacts of the off-site impacts of the development in respect of the mature street trees in general, and trees 69 and 72 in particular.

Orders

The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans and other documents at [4]. 2. The appeal is dismissed. 3. Development consent for Development Application number 18/0538 seeking demolition of an existing cricket pitch identified as an item of local heritage significance, the removal of 30 trees and the construction of a seniors living development comprising 13 independent living units (5 x 2-storey and 8 x 1 storey) with 26 resident car spaces and associated landscaping (the proposed development) at 11 Edward Street, Bowral (the site) is refused. 4. All Exhibits are returned, except for Exhibit 4.

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: 04 December 2020

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (1)