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[2026] NSWLEC 1178
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-10
Dickson C
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Medium Neutral Citation: McDonald v Wingecarribee Shire Council [2026] NSWLEC 1178
Hearing dates: 9, 10 March 2026
Date of orders: 10 April 2026
Decision date: 10 April 2026
Jurisdiction: Class 1
Before: Dickson C
Decision: The Court orders that: (1) The appeal is upheld. (2) Development application DA 24/1131 for demolition of the existing dwelling and the construction of a new dwelling and swimming pool at 26 Oxley Street, Berrima (Lot 10, Section 37, DP 758098) is determined by the grant of consent subject to the conditions in Annexure A. (3) The exhibits are returned with the exception of Exhibits A, B, C and 1
Catchwords: DEVELOPMENT APPLICATION — demolition of the existing dwelling and site structures and construction of a new dwelling — amended plans and documents — whether it is acceptable to undertake demolition of existing dwelling in a heritage conservation area — whether the demolition has a detrimental impact on heritage significance of the conservation area — experts agreed on the acceptability of the proposed dwelling — remaining contentions resolved — appeal upheld — development consent granted
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7
Land and Environment Court Act 1979 (NSW), s 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pts 2.3, 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.2
Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.7, 5.10, Sch 5
Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66
Svedas v Council of the City of Sydney [2011] NSWLEC 215
Texts Cited: Wingecarribee Shire Council, Berrima Village Development Control Plan (1 January 2021)
Category: Principal judgment
Parties: Duncan James McDonald (Applicant 1)
Kathryn Margot McDonald (Applicant 2)
Wingecarribee Shire Council (Respondent)
Representation: Counsel:
C Koikas (Applicants)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicants)
Pikes Verekers Lawyers (Respondent)\
File Number(s): 2025/395573
Publication restriction: Nil
COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and outbuildings, and the construction of a new dwelling. The development is proposed at 26 Oxley Street, Berrima. The Respondent, Wingecarribee Shire Council refused the development application (DA 24/1311) and the Applicant appeals to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against that determination.
The matter was listed for conciliation on 9 March 2026 pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). No agreement was reached and the conciliation was terminated and the matter proceeded to hearing.
By consent, the Applicant was granted leave by the Court to amend their development application at the commencement of the hearing, including incorporating amendments arising from the joint expert conferencing and reporting process.
The site is within the Berrima Heritage Conservation Area (HCA) as identified in the heritage map of Wingecarribee Local Environmental Plan 2010 (LEP 2010). Further, the adjoining property is a listed heritage item: ‘Oakley Cotttage’ at 24 Oxley Street, Berrima. The heritage experts in the proceedings agree that the amended development application does not have a detrimental impact on the heritage significance of the adjoining heritage item. I accept that agreement.
The Respondent maintains that the development application warrants refusal on the basis of the detrimental impact of the demolition of the existing dwelling on the heritage significance of the heritage conservation area. Following the process of joint expert conferencing and the amendments to the development the remaining contentions are resolved. In particular I note that the planning and heritage experts agree that if demolition is permitted, the replacement dwelling proposed in the development application is acceptable.
Structural engineering
Alex Been (Respondent) and Rodney Pratt (Applicant).
Planning
Rebecca Englund (Respondent) and David Furlong (Applicant).
Arboriculture
Charlene Ferguson (Respondent) and Sibone Nadin (Applicant).
Heritage
Michael Edwards (Respondent) and James Phillips (Applicant).
Section 4.15(1) of the EPA Act requires that, in considering a development application, the Court must consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
Before addressing the merit issues raised by the Respondent as to whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met.
Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), a development application may be made by the owner of the land, or another person with consent of the owner. The development application was lodged by AO Design Studio Pty Ltd with the consent of the owners of the land. In accordance with the decision in Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 the Applicant has standing to commence these proceedings under s 8.7(1) of the EPA Act.
The development application was notified by the Respondent from 24 May to 7 June 2024. Eight submissions were received in response to the notification. The objections raised concerns about heritage; character; solar access; impacts on trees; privacy; setbacks and gross floor area. A member of the public also addressed the Court at the commencement of proceedings onsite. With the assistance of the amended development application documents filed in the proceedings I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.
Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The historic use of the land has been residential. There is no indication of the use of the land for any contaminating purpose. Given the age of the dwelling preliminary investigations into the fabric of the house have been made. The development application includes an asbestos management plan that details then proposed management of asbestos on the site. With the assistance of the reports supporting the development application, and the annexed conditions, I am satisfied that the site will be suitable for the ongoing residential use of the site.
Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), and Pt 6.2 ‘Development in regulated catchments’ applies as the site is located within the Sydney Harbour Catchment. In determining the development application, I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC. These provisions deal with mandatory water quality, aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. I have made reference to the Statement of Environmental Effects (SEE), the Stormwater Management Plans and the Water Cycle Management Study to assist me in considering these mandatory matters. I accept the agreement of the parties that the matters in Pt 6.2 of SEPP BC do not warrant the refusal of the development application.
The requirements of Ch 2 of SEPP BC are satisfied as the development application seeks development consent for the removal of any trees to which Pt 2.3 of the SEPP BC applies. Further, the amended development application is accompanied by an Arboricultural Impact Assessment (AIA) that was subject to expert conferencing. The experts agree that, subject to compliance with the recommendations of the AIA, the neighbouring tree assets can be adequately protected during construction in accordance with AS 4970:2025 Protection of trees on development sites.
The amended development application is accompanied by a complying BASIX Certificate. Further, the development application includes an ESD Report which satisfies s 3.2 of the State Environmental Planning Policy (Sustainable Buildings) 2022. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part. A condition of consent requires compliance with the commitments detailed in the BASIX certificate.
The site is zoned R2 Low Density Residential under the provisions of LEP 2010. In determining the development application, I have given consideration to the objectives of the zone as required by cl 2.3 of LEP 2010. Development for the purposes of a dwelling house is permitted with consent in the zone.
The demolition sought in the development application is permitted with consent pursuant to cl 2.7 of LEP 2010.
The site is within a listed HCA. Clause 5.10(4) of LEP 2010 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the HCA. This consideration is discussed commencing at [20] of this judgment.
Berrima Village Development Control Plan (BV DCP) applies to the site. The documents filed with the development application details the compliance of the development with the relevant provisions of BV DCP. The provisions of BV DCP that are relevant to the remaining contentions are discussed commencing at [24].
Having considered the preconditions to the grant of consent, and found them satisfied, the remainder of the judgment considers and determines the merit contentions raised by the Respondent.
The site is mapped within the bounds of the HCA and adjoins a locally listed heritage item in Sch 5 of LEP 2010: Oakely Cottage Item 250.
The relevant portion of the Heritage Map in LEP 2010 is extracted below:
Extract of the Heritage Map in LEP 2010 with the site marked in yellow.
Berrima is significant as one of the few intact villages in the State which demonstrate the characteristics of nineteenth century town development from the period of convict settlement to the end of the Victorian era. Its original layout and town limits are largely intact and the surviving stock of residential, commercial and administrative buildings along with churches and major buildings associated with the Gaol, provide evidence of the role of Berrima as an early administrative centre and a town which served generations of travellers on the South Road. The town is also significant as a collection of largely intact early buildings which are predominantly Georgian in style, the value of which is reinforced by the high quality of the surrounding natural environment and plantings within the town. The heritage attributes of Berrima are recognised by visitors from all parts of Australia who enjoy the character and history of the town which has become a cultural tourism attraction.
Clause 5.10 of LEP 2010 provides the requirements for heritage conservation. Clause 5.10(2)(a)(i) mandates that consent is required for the demolition of a heritage item. Clause 5.10(4) states: 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 consideration is a precondition to the grant of consent.
The following provisions of BV DCP are relevant the merit assessment of the proposed demolition of the existing dwelling as it is located with the HCA.
Section A 2.3: Heritage Conservation
Objectives
(a) Preserve and protect buildings of heritage and cultural value.
(b) To ensure that all new development within the Berrima Conservation Area is compatible with the existing visual, built and landscape character of the area by setting standards which will ensure this.
(c) To encourage increased community awareness of Berrima’s intrinsic heritage, visual and environmental qualities and the need for conservation measures. In particular, the need to ensure that owners are aware of the responsibilities associated with the ownership and maintenance of heritage listed properties within the Village.
(d) Ensure that redevelopment immediately adjacent to buildings of heritage or cultural value in no way detracts from the visual quality or amenity of heritage buildings
e) Ensure that redevelopment within or immediately adjacent to Conservation Areas reflects the high heritage value and visual setting of the Berrima Village and contributes to that value.
(a) Promote a mix of housing types to increase residential choice within the village, particularly around bus and rail connections.
(b) Encourage appropriate site amalgamation and redevelopment to provide a range of residential opportunities throughout the village.
Controls
(a) Retain the identity and containment of the village core area to the north of the Wingecarribee River within the Berrima Conservation Area and to limit the settlement as a whole within the Berrima Landscape Conservation Area.
(b) Retain the rural setting of Berrima by regulating development and removal of trees within the Berrima Conservation Area and the Berrima Landscape Conservation Area.
(c) Retain the rural setting along the main approaches to and exits from Berrima, being the Old Hume Highway (Great South Road), Oldbury Street, Berrima Road (to the southern boundary of the Berrima cemetery) and Medway Road (between the Old Hume Highway and the freeway).
(d) Demonstrate an appreciation of the existing streetscape.
(e) Enhance the character of individual streets within the Village through appropriate built form design.
(f) Provide areas of private open space which are well maintained and contribute to the overall visual amenity of the locality.
(a) A 9.5: Principles of Minimum Acceptable Design
As stated in Section A4.1, Council is only interested in development which makes a positive contribution to the urban amenity of Berrima. In both the commercial and residential areas of the Village there are sections of high heritage value where new development, including renovations, must be sympathetic to the Georgian style of the town plan and essential Georgian style elements. However, new development in areas of lesser heritage value may provide more opportunity for innovative design, but such design must demonstrate, in the opinion of Council, a positive contribution to the streetscape and urban amenity of the Village. If considered appropriate, Council may request an independent architectural assessment of the design proposal.
To retain heritage values of listed heritage items and draft heritage items by ensuring that development in the vicinity is sympathetic with the heritage values of individual items and to the Berrima Village heritage conservation area.
(a) Development applications on properties containing or adjoining locally listed items or draft heritage items shall be referred to Council’s Heritage Adviser for comment prior to lodgement of the Development Application.
(b) Development applications adjoining or in the vicinity of a property on the NSW State Heritage Register or National Heritage Register items shall be referred to the NSW Heritage Council for comment prior to lodgement of the Development Application. Details of any comments provided shall be included in the statement of environmental effects submitted with the development application to Council.
(c) Development applications on properties adjoining listed heritage items or draft heritage items shall contain a Heritage Impact Statement (or Heritage Conservation Strategy or Heritage Conservation Plan as requested by Council).
(d) Development applications on properties in the vicinity of any heritage listed item or draft heritage item, including within sight of and adjacent to any heritage item or draft heritage item, should be referred to Council’s Heritage Adviser for comment.
(e) All development applications on properties in the vicinity of any listed heritage item or draft heritage item should be notified by Council to Council’s Heritage Advisory Working Group and the Berrima Residents Association for comment.
(f) Surrounding development density shall be taken into consideration. For both commercial and residential development, the existing roof size, spacing, height, proportion and pitch in nearby allotments is to be the guide to acceptable development density, i.e. the site should not be considered in isolation, and should have the same proportion of buildings to open land as other allotments in the area. Attention to sufficient deep soil landscaped area is also important, rather than just minimum private open space requirements.
(g) In considering whether to grant consent to a development proposal in the vicinity of a heritage item or draft heritage item, Council must be satisfied that the proposal:
(i) remains compatible with the average height, bulk and scale of buildings located on adjoining or nearby land and be adequately set back to ensure that heritage items and other significant buildings in the streetscape are not dominated by new or infill development.
(ii) has the same proportion of buildings to open land as surrounding contributory development.
(iii) seeks unification with existing built forms on adjoining or nearby land, by ensuring respect for and compatibility with architectural elements including:
A. the existing building line,
B. brickwork styles,
C. parapet style and rhythm,
D. window and door opening dimensions, proportions and spacing,
E. fenestration treatment
F. roof size, spacing, height, proportion and pitch,
G. materials and finishes,
H. Density of surrounding development
I. Amount of deep soil landscaping
To ensure that development within the Berrima heritage conservation area is sympathetic to the Georgian style and heritage significance of the Berrima Village
Controls
(a) For properties that contain contributory buildings and/or gardens the following performance controls apply:
(i) Retain the qualities and details which form the stylistic character of the building/place, and organise alterations/additions so as not to compromise such character.
(ii) Where practicable discourage the introduction of ‘replacement building elements’ that are unsympathetic to the style of the building
…
(c) For new buildings on vacant properties OR sites to be wholly redeveloped the following performance controls apply:
(i) Avoid large scale monolithic buildings and achieve small scale and discreet built forms.
(ii) Respect the visual prominence and scale of existing items of heritage, contributory buildings and the streetscape generally by means of selective planning for setback, height, architectural design, materials and colours.
(iii) Retain sunlight penetration to footpaths and other public spaces.
(iv) Avoid mock heritage building styles and fenestration.
(v) Enhance landscaping with a thematic use of plant species and styles (i.e. identify common local plant varieties, use of hedges etc.).
Pursuant to Figure A12.1 in Section 13 of the BV DCP the site is located within Precinct 7 of the HCA. Each of the precincts contain a statement of the desired future character of the precinct and the relevant controls.
A13.8 West Oxley and Apple Streets Precinct (No. 7)
A13.8.1 Character
The precinct is an open residential area which has no buildings of heritage significance. It provides the link between the Village and the riverside recreation area. Its character is one of gardens lining informal (and in the case of Apple Street, unsealed and ungraded) roads. The precinct is visible by visitors on foot and also visible from other parts of Berrima. Hence, on vacant sites and sites identified for redevelopment, there is a need for appropriately designed new buildings
A13.8.2 Precinct Objectives
The objectives of the West Oxley and Apple Streets Precinct are:
(a) Continue as a residential area which will enhance the heritage character of Berrima.
(b) Retain Apple Street west of Argyle Street as informal, unsealed and ungraded with new tracks formed as needed.
I note in the expert evidence and submissions in this matter, reference was made to the Court’s planning principle in Helou v Strathfield Municipal Council [2006] NSWLEC 66 (Helou). In determining the development application, I have considered the expert evidence and the submissions given in response to the Helou planning principle.
Planning principles can be helpful to summarise and apply consistent reasoning where policy is unclear, they do not override or replace the applicable planning controls. In this matter, both LEP 2010 and BV DCP contain relevant controls and objectives applicable to the development application. Thus planning instruments and policies are mandatory matters for consideration under s 4.15(1) of the EPA Act. Accordingly, I have not chosen to frame my reasoning with the Helou planning principle. This is consistent with the findings of the Court in at Svedas v Council of the City of Sydney [2011] NSWLEC 215 at [51].
The Respondent argues that the development application warrants refusal as the demolition of the existing dwelling would adversely impact on the heritage significance of the HCA. The Respondent argues that the existing single storey detached dwelling house displays the principal characteristics attributed to the late 19th century Victorian period and of the simple timber town cottage vernacular which is representative of the heritage values of the Berrima Village.
Ms McCulloch submits that the existing dwelling and its minimalistic garden setting possess contributory value to the HCA and that its demolition would have a negative and unacceptable impact on the integrity, authenticity and significance of the HCA.
Further, despite the Applicant submitting pest, structural and a heritage schedule of conservation works, the Respondent concludes that the demolition of the entirety of the existing dwelling is not warranted and that important original elements, together with the substantive silhouette and principal form of the dwelling, could be retained with appropriate repair and remediation.
Ms McCulloch submits that despite the merit of the replacement dwelling, the detrimental impact of the proposed demolition on the significance of the HCA is sufficient to warrant the refusal of the development application.
The Respondents submissions arguing that the development application should be refused are supported by the expert evidence of Mr Edwards. His evidence can be summarised as follows:
The existing dwelling on the site displays characteristics which positively contribute to and reinforce the late 19th century period housing character of the HCA. The existing dwelling exhibits characteristics that positively reinforce the prevailing and predominant character of the HCA through its form, retention of the original silhouette (as viewed from the principal elevations) and the composition of the front elevation together. The dwelling also sits close to the front boundary and has a strong visual presentation and relationship to the streetscape. On this basis the existing dwelling is a contributory building.
The existing dwelling is relatively intact. Whilst the dwelling has been subject to previous cosmetic and structural changes; the majority of the substantial structural changes are concentrated towards the rear of the original cottage or are internal and have generally a low impact on the continued ability to distinguish the original silhouette and form of the cottage. The more substantial changes that are discernible in the streetscape include the over-cladding or replacement cladding with FC sheet to the side elevations and the replacement of the front verandah. These changes are reversible. Further, despite those changes, the composition, scale, setbacks and materiality are substantively intact and as an ensemble, remain clearly discernible and positively echo and reinforce the prevailing character of late 19th century housing in the streetscape and the HCA.
The demolition of the existing dwelling will have a negative and deleterious effect on the authenticity and integrity of the HCA. The existing dwelling retains a clear expression of the original silhouette and form as viewed from the street.
The loss of contributory buildings in a HCA incrementally erodes the authenticity, integrity and significance of an HCA.
Despite the material affectation, deterioration of fabric, cosmetic and structural changes that have occurred over time they do not preclude the ability for sensitive restorative works to be undertaken. These works could reverse previous unsympathetic changes and in doing so, further elevate the contributory values of the dwelling to the HCA.
Whilst the development application includes structural reports, building condition information and a schedule of conservation works these do not validate a “need” for demolition as:
(a) Remedial and restorative works are not uncommon for a building of this age and condition. (b) Many of the items identified for remediation and removal of fabric are in fact the portion of the existing building which is a later addition and not the original dwelling. (c) There is sufficient fabric remaining to demonstrate the form, fabric and detailing of the original.
The Applicant argues that it is unreasonable to refuse demolition of the existing building in the circumstances of this care. Their argument, and the evidence of Mr Phillips, can be summarised as follows:
It is the agreed evidence of the heritage experts that the demolition of the existing building will not have a detrimental effect on the adjoining heritage item (Oakley Cottage).
The existing single storey detached dwelling does display characteristics attributed to late 19th century Victorian period cottages. Those characteristics have been diminished by deterioration and unsympathetic works and the contribution of the building to the significance of the HCA is not so material to warrant retention. Mr Phillips argues that whilst the dwelling appears to retain its original form in outline when viewed from the street, changes to the building fabric that have occurred over time, particularly to the front elevation of the house, have diminished its contribution to the HCA.
Extensive works are required to address defects in the building, remove asbestos and make the building safe. The scope of works agreed by the structural engineering experts is substantial and is relevant to two issues: first, the extent to which the existing dwelling contributes to the significance of the HCA; and second, to a determination of the reasonableness of the proposed demolition. Mr Koikas submits that, where “intactness” is identified as a value in the statement of significance for the HCA, the Court should give weight to Mr Phillips’ opinion that the scale of the required conservation works would, in effect, amount to reconstruction.
That the development application complies with the controls in BV DCP. To the extent that the Respondent argues that the development application varies objective (a) at Section A2.3 to ‘Preserve and protect buildings of heritage and cultural significance’, that variation should be considered in light of the limited significance of the existing dwelling due to its poor condition and limited intactness. Further, the extent of remedial and repair work agreed by the structural experts would dimmish any authentic contribution to the HCA as the works would require intervention to and replacement of much of the original fabric.
In assessing the reasonableness of the proposed demolition, the Court should give weight to the amenity of the existing dwelling and the constraints it provides in realising the reuse of the building. The Applicant submits that those amenity considerations include: a lack of insulation in the original portion of the dwelling, the lack of energy efficiency, an inability to control dampness and an incompatibility with ageing in place due to the elevated nature of the dwelling and narrow circulation spaces.
I accept the agreement of the heritage experts in their joint report that the existing dwelling contributes to the HCA, though I note their disagreement as to the extent that the contribution remains intact and undiminished by historic insensitive alterations to the cottage and its current state of repair and condition.
Having considered the evidence of the experts and the submissions of the parties I am satisfied that the proposed development should be approved, and in particular that the demolition of the existing dwelling is acceptable. My reasons follow.
Clause 5.10(4) of LEP 2010 requires my consideration of “the effect of the proposed development on the heritage significance of the area” (emphasis added). In this case, that requires my consideration of two elements – the demolition and the proposed replacement building which collectively comprise the “proposed development”. It is the agreed evidence of the experts that the proposed replacement building is acceptable in heritage terms. I accept that agreement.
In determining the impact of the demolition of the existing dwelling I am required to consider that impact in the context of the statement of significance of the HCA. The relevant statement of significance is that extracted at [22], contained at A9.2.4 of the BV DCP.
In my view, to the extent that the existing dwelling possesses heritage value contributing to the significance of the HCA, that contribution must be considered within the hierarchy established by the relevant planning instruments. The subject site is not identified as either a State or Local Heritage Item in Sch 5 of LEP 2010. Furthermore, the HCA is not subject to detailed planning or assessment that specifically identifies those buildings, structures or landscape elements which make a positive contribution to the heritage significance of the HCA. Accordingly, the delineation of whether a specific building or site is ‘contributory’ is a determination made with the assistance of expert evidence in the processing of a development application. In these circumstances, it is appropriate to afford weight to this hierarchy when assessing the acceptability of demolition. In other words, the importance or magnitude of the detrimental impact of the demolition of a listed building, or a building or item specifically noted as having a contributory significance in a HCA is, in my view, greater than in circumstances where the individual building or item in question does not have such a nomination.
Further, with the HCA there are areas nominated in the BV DCP of greater and lesser importance. At Figure A12.1 in Section 13 of the BV DCP the HCA is divided into precincts detailing the intended future character of those areas and their contribution to the HCA as a whole. I accept the submission of Mr Koikas that there is a form of hierarchy in the delineation of the precincts. So much is clear from the terms of A 9.5 of the BV DCP and the commencement of the precincts with the Market Place Precinct which the BV DCP notes form the focus for the Village.
The detrimental impact of the proposed demolition is required to be taken into consideration along with the provisions of the relevant environmental planning instruments, the development control plan and the matters listed at s 4.15(1) of the EPA Act.
I find that the development application is consistent with relevant the planning controls in BV DCP as follows.
In their evidence the heritage experts agree that the proposed new dwelling in the development application is compliant with the development controls in Section A 2.4.2 of BV DCP. I accept their evidence and find that the amended development application retains the aesthetic significance of the HCA through the design and siting of the proposed development.
I accept the submission of Mr Koikas that the effect of A.9.5 in BV DCP, when read in context and with reference to the precinct map in Figure A12.1, is that there is an inherent hierarchy in the importance of the heritage precincts. In my view that hierarchy is relevant to the determination of the acceptability of the proposed demolition.
The subject site is located in Precinct 7: West Oxley and Apple Streets Precinct. The character statement for the precinct at A 13.8.1 emphasises two concepts. Firstly, the role of the precinct in the HCA as a link between the Village and the riverside recreation area and secondly, that the importance of the precinct is as an open residential area with no individual buildings of heritage significance. In my view, the proposed demolition is not antipathetic to either of those roles of the HCA. I am satisfied that, with the agreement of the heritage experts as to the acceptability of the proposed building, the development application is consistent with the objective of Precinct 7 to “continue as a residential area which will enhance heritage character of Berrima”. I am not persuaded that any detrimental impact arising from the demolition of the existing building is sufficient to be inconsistent with the objective of the precinct.
Section 9.10 of the BV DCP has the objective of retaining the heritage values of the listed items, such as the adjoining Oakley Cottage, by ensuring development in the vicinity is sympathetic with the heritage values of the item and the HCA. I accept the agreed evidence of the experts that the development controls in Section 9.10 are met by the amended development application. I note that Section 9.10 of BV DCP does not address demolition but is instead focused on redevelopment or new work.
As the development application proposes the wholesale redevelopment of the site, Section A9.11(c) applies. On the evidence of the experts, I find that the amended development application is consistent with the controls as it:
(a) Achieves a small scale and discreet built form, (b) Respects the visual prominence and scale of the adjoining heritage item, (c) Avoids mock heritage building styles, and (d) Has an appropriate landscape design.
In considering the impact of the proposed demolition on the significance of the HCA I accept that the intactness, and state of repair of the existing building is relevant. In my view that relevance arises in two ways. Firstly, to the extent that the existing dwelling is able to contribute to the heritage significance of the HCA and secondly, as part of the determination of the reasonableness of the proposed demolition.
To the extent that Mr Edwards’ evidence details a preference for, or the appeal of, a development application which sought to retain the existing original portion (“the front four rooms”) of the dwelling in a remediated and restored state I have considered this evidence with care so as not to traverse the line of undertaking an assessment of a development which is not before the Court. The focus for the Court is determining the impact of the proposed demolition on the significance of the HCA and then considering that impact in the framework of s 4.15(1) of the EPA Act. It is not a question of determining the preferred development outcome for the site.
Further, I accept the agreed evidence of the structural engineering experts that the following list of works are required to firstly address defects in the existing structure and secondly to provide robustness and durability. I note those agreed works are:
Works required to address defects in the existing structure (ie repairs)
1. Timber framing repairs for (typically termite damaged or decayed) elements of the floors, internal and external walls, roof and verandah posts. Framing repairs would include removal and replacement of the eastern external wall framing (all studs and the bottom plate/ bearer), and possibly the top plate and gable end studs (subject to more detailed inspection) as the practical response to the requirement for wall framing repairs to this wall.
2. Replacement of piers and pad footings where existing piers have collapsed.
3. Brickwork repairs and repointing for the fireplace, chimney and sub-floor walls and piers
4. Excavation of ground inside the east side of the building to create additional clearance to floor framing
5. New footings and piers where excavation of material to the sub-floor undermines existing piers
6. New footings along the east wall and underpinning of the east wall fireplaces
7. Backfilling of the void under the western external subfloor wall where currently undermined.
8. External ground works along the eastern side of the house including removal of the existing concrete pathway and excavation of ground to lower the external ground levels relative to the internal floor frame.
9. General works to improve weather proofing, stormwater drainage and insulation.
Works recommended and practical to achieve during repair of the existing structure (ie works that can be practically achieved that provide robustness and durability).
1. Installation of new noggins and bracing in all walls, and tie-down connections from roof to floor.
2. Removal of all existing internal piers and footings and replacement with concrete pad footings and new piers. Note this would require the removal and reinstatement of the floor boards and internal floor framing.
3. Replacement of piers and footings along the north and south walls.
4. Treatment or replacement of the western external brick masonry sub-floor wall and footings (the appropriate replacement structure is dependant on adjacent building development or landscaping).
5. Roof bracing and additional support (eg underpurlins and strutting).
- Possible chimney bracing (subject to further assessment)
7. Replacement of the existing concrete slab verandah floor and entry stairs with time framed structures
8. Replacement of the existing steel verandah posts with new timber posts.
9. Discrete strengthening of the verandah roof structure (to address the lack of internal roof support)
In my view this extent of works is a consideration that weighs towards a finding that demolition is reasonable in circumstances where the contribution of the current building (or site) to the heritage significance of the HCA is:
Not specifically delineated in the LEP 2010 or in BV DCP,
The site is located in a precinct within the HCA that is in my view, nominated to be of a lower order of importance in the planning controls for the reasons detailed at [41],
The development application is compliant with the controls in the BV DCP,
The experts agree that the proposed replacement dwelling is acceptable, and
The scope of works listed at [44] is such that, in my assessment, the extent of original fabric will be significantly diminished by the repair required.
It is my view that any value in retaining the remaining components of the existing building and site that constitute the original and early fabric is outweighed by; the extent of agreed works required that will dimmish the extant fabric; the extensive and less sympathetic later alterations and additions to the building both externally and internally; and the location of the site in precinct that is of a lower order of importance in the HCA. I am satisfied that the existing dwelling and its outbuildings can be demolished.
Notwithstanding the preceding, I accept that the demolition of the existing dwelling will have a minor adverse impact on the significance of the HCA. This is a consequence of the development application. However, when considered in the context of the development application as a whole and having regard to the development’s compliance with the provisions of LEP 2010 and the BV DCP, together with the other relevant matters for consideration under s 4.15(1) of the EPA Act, I am satisfied that the impact does not warrant refusal of the application.
The Court orders that:
The appeal is upheld.
Development application DA 24/1131 for demolition of the existing dwelling and the construction of a new dwelling and swimming pool at 26 Oxley Street, Berrima (Lot 10, Section 37, DP 758098) is determined by the grant of consent subject to the conditions in Annexure A.
The exhibits are returned with the exception of Exhibits A, B, C and 1
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Annexure A (361 KB, pdf)
McDonald
Wingecarribee Shire Council [2026] NSWLEC 1178
(2010) 177 LGERA 312
(2006) 144 LGERA 322