Praveen v Penrith City Council

Representation: Counsel:
B Praveen (Self-Represented)(Applicant)
A Kleiss (Solicitor)(Respondent)
Solicitors:
Penrith City Council (Respondent)

File Number(s): 2025/322928

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA25/0478 (the proposal) at 193 Maple Road, North St Marys, NSW 2760 (the site) by Penrith City Council (the Council).

2. The DA sought consent for the construction of a detached secondary dwelling.

3. The appeal commenced with a conciliation conference and site view on 3 November 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

4. As the parties were unable to reach agreement during conciliation, the matter proceeded to a hearing under s 34AA(2)(b)(i) on 3 November 2025.

5. The applicant was granted leave to amend the development application to rely on amended architectural plans under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), by exercising the power under s 39(2) of the LEC Act to carry out the Council’s function as consent authority. The Council did not oppose leave being granted for the amendment of the application.

Issues

6. The Council contends that the application should be refused primarily due to the adverse impacts of the proposed development on the heritage significance of the Heritage Conservation Area (HCA).

The site and its context

7. The site is legally described as Lot 6 in DP 31611.

8. The site located within a Heritage Conservation Area which is a housing precinct designed by the prominent architect and town planner Walter Bunning in the early years of the Second World War to house employees of the neighbouring ammunition factory. The houses were referred to as ‘Duration cottages (Permanent)’.

9. The North St Marys Staff Cottages HCA is bound by Maple Street to the north, Griffiths Street to the south, Viney Street to the east and Forrester Road to the west.

10. The site is rectangular, with an area of 537m2, located on the southern side of Maple Road, with a street frontage of 19.81m. There is an existing single-storey timber framed gable-roofed residence on the site, with an attached carport, accessed from Maple Road. Its primary elevation faces the landscaped public open space to the south. The private garden to Maple Road is enclosed by a metal fence.

11. The immediate context of the site is within a residential area of single storey detached dwellings.

Background

12. The development application was accepted by Penrith City Council as lodged on 27 June 2025, and notified by Council from 7-20 July 2025. No submissions were received. The DA was refused by the Penrith City Council on 1 August 2025.

13. The Applicant filed the Class 1 Application in the Land and Environment Court on 22 August 2025, appealing against the Respondent’s refusal of the DA.

The proposal

14. The DA seeks consent for the construction of a detached single storey secondary dwelling located in the private open space to the north of the existing residence.

Penrith Local Environmental Plan

15. The site is zoned R2 Low Density Residential under the Penrith Local Environmental Plan 2010 (PLEP) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To promote the desired future character by ensuring that development reflects features or qualities of traditional detached dwelling houses that are surrounded by private gardens.

To enhance the essential character and identity of established residential areas.

To ensure a high level of residential amenity is achieved and maintained.

16. Clause 5.10 of PLEP 2010 applies to the proposal. The site is located within the North St Marys Staff Cottages Heritage Conservation Area (HCA), identified as HCA4 in Schedule 5 of Penrith Local Environmental Plan 2010 (PLEP).

Evidence

17. The Applicant did not rely on expert heritage evidence.

18. The Council tendered an expert report by Mr McDonald (Exhibit 4) and relied on the expert heritage evidence of Mr McDonald.

19. A short form heritage impact statement (HIS), prepared by Patrick Wilson, ‘Touring the Past’, was tendered by the Applicant as Exhibit A. The author did not attend the hearing.

20. The HIS considered that the proposal to construct a secondary dwelling “would have a nominal effect on its core element of heritage value”, which in the author’s opinion is the presentation to the green spine of the central reserves. The report considered the rear yards to be intended as “functional and private space”, and that although “the proposed secondary dwelling would alter the way in which the backyard of the subject place is interpreted from Maple Road… the impact on the significance of HCA4 would be - at worst - minor”.

21. In his heritage and planning report (Exhibit 4), Mr McDonald disagreed with this assessment. He identified the consistent development pattern as the defining characteristic of the HCA. He noted his view that “The pattern of dwelling houses facing into the central open space and set in open rear yards is vital to interpretation of the Radburn approach”, and that this pattern is broken only by the development of the secondary dwelling at 195 Maple Road. He considered the carports and small sheds on other properties to be minor visual intrusions.

22. The expert witness gave oral evidence in the hearing and was cross examined by the Applicant.

23. Mr McDonald noted that he wished to correct his report to clarify that the adjoining residence at 195 Maple Street is not an original dwelling house from the 1940s, and that it was likely built in the 1970s (Exhibit 4), an aerial photograph from 1956 was tendered to indicate that this site was vacant at that date (Exhibit 7).

24. Queried in cross examination as to the heritage impact on the HCA of the carports, garages and associated driveways, which have been constructed at several houses, Mr McDonald reiterated his opinion from his expert report that these constitute minor visual intrusions than the proposed development.

25. Questioned about the apparent inconsistency of Penrith Council in granting development consent for the secondary dwelling at 195 Maple Road (DA13/1164), and refusing consent for a similar development on the subject site, Mr McDonald gave his opinion that there was inadequate heritage assessment prior to the 2013 approval.

26. The Applicant asked Mr McDonald whether he considered the presence of the high metal fence to Maple Road resulted in the loss of the open space to the rear, which in Mr McDonald’s view forms part of the significance of the HCA. Mr McDonald was consistent in his response that the significance of this open space is not contingent on these spaces being open to the street.

27. Mr Praveen submitted a written submission which can be summarised as follows:

28. The proposal is consistent with the planning framework;

29. The proposal retains the contributory character of the site;

30. The Council’s refusal is based on inconsistent and incorrect application of the cited heritage significance; and

31. The development Guidelines (the Staff Cottages Conservation Area St Marys Development Guidelines) have no statutory force.

Consideration

28. Clause 5.10 of PLEP includes the relevant objectives to conserve the environmental heritage of Penrith and to conserve the heritage significance of heritage conservation areas, including associated “fabric, settings and views”. Subclause (2)(e) requires development consent for erecting a building on land within a heritage conservation area.

29. Clause 5.10(4) of PLEP 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 item or area concerned” before granting consent.

30. Chapter 7, Culture and Heritage, of Penrith Development Control Plan 2014 (DCP 2014) applies to the proposal as the DCP 2014 applies to heritage conservation areas listed in Schedule 5 of PLEP, and it also applies to land within the vicinity of heritage conservation areas.

31. DCP 2014 clause 7.1.1 identifies that the impact on a conservation area can include affecting: the setting or heritage curtilage, the form of any historic subdivision pattern or having an adverse impact on its heritage significance.

32. The importance placed on setting is echoed in Article 8 of the The Burra Charter: Australia ICOMOS Charter for Places of Cultural Significance 2013 (The Burra Charter), tendered in Exhibit A which notes that “Conservation requires the retention of an appropriate setting. This includes retention of the visual and sensory setting as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate”. The Burra Charter provides guidance for managing heritage places.

33. It follows that in deciding whether to grant development consent on land to which this clause applies, consideration must be given to the heritage significance of the HCA and the effect of the proposed development on the heritage significance of the HCA.

34. Heritage Significance is defined in PLEP to mean “historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value”.

35. The State Heritage Inventory (SHI) includes the following Statement of significance for the HCA:

“The Staff Cottages were completed in the early years of the Second World War to house employees of the neighbouring ammunition filling factory, the complex demonstrates the war emergency years and the contribution of this region in the world-wide conflict. Developed by the architect and town planner Walter Bunning the complex is unique in demonstrating a phase in the development of town planning in Australia with the realisation of atypical planning concepts derived from respected overseas practices. Today the complex, with its numerous contributory components, form a discreet housing unit, which unifies public and private domains.” (Exhibit 4)

36. The SHI notes that the precinct is important as an example of a housing precinct designed along Radburn principles which incorporates internal spines of open space with internal vehicular and pedestrian access feeding off arterial roads.

37. The SHI incorporates management recommendations for the precinct, including that:

38. “A specific DCP should be implemented outlining appropriate development within this Conservation Area in terms of design and landscaping”.

39. “The significant layout and subdivision of the Conservation Area must be retained; this includes the open reserves and arterial road access”.

40. “New development should reflect the scale, massing, setbacks and form as required in a specific DCP for this area. New development should relate to the existing subdivision pattern, be of high quality and add to the visual amenity and quality of the area”

41. “An appropriate curtilage should be retained in relation to the streetscape, landscaping and significant cottages”.

42. “Owners of original cottages should be encouraged over time to recover the significant form of those building by removal of intrusive elements internally and externally. Council should provide guidance and assistance to owners to facilitate this”.

43. “Any new development which abuts the Conservation Area must provide an appropriate interface between one area to the other through its scale, form, materials and landscaping”.

Staff Cottages Conservation Area St Marys Development Guidelines

38. Penrith Council has prepared and adopted development guidelines for the HCA, which goes some way towards meeting the management recommendations in the SHI listing to prepare a site specific DCP.

39. The “Staff Cottages Conservation Area St Marys Development Guidelines” (Guidelines) document, dated October 2023, was prepared by OCP Architects for Penrith City Council (Exhibit 2).

40. Although the Guidelines are publicly available, the Respondent noted the guidelines were adopted without community consultation. As a result, the document should be given less weight than if it had been adopted following consultation with interested parties, on the basis that the community has a right to be informed about planning matters that affect it (EPA Act, s 2.23(2)(a)).

41. However, the Guidelines have gone through several iterations and demonstrate a research-based understanding of the history and significance of the HCA, and an intent to provide site-specific management guidelines consistent with this. On that basis, the Guidelines provide some utility as a basis for assessing development proposals, and as noted by Mason P in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at [81], “nothing in the EPA Act stipulates that environmental planning instruments are the only means of discerning planning policies or the ‘public interest’”.

42. Section 2.13, Secondary Dwellings, of the Guidelines sets out the objective: “To maintain the integrity of the Walter Bunning town plan by maintaining the original lot layouts and configuration of dwellings and structures on each lot”. The associated control explicitly notes that secondary dwellings cannot be supported within the HCA.

Findings

43. It is acknowledged that secondary dwellings are permitted within R2 zone, and that a secondary dwelling was approved in 2013 within the adjoining lot at 195 Maple Road.

44. While the parties agree on the significance to the HCA of the presentation of the cottages to the central landscaped spine, a key issue for consideration is whether the consistent configuration of buildings on the sites, including the predominantly open space to the rear yards, is part of the existing character that makes an important contribution to the heritage significance of the HCA.

45. The approval of the secondary dwelling on the adjoining property does not set a precedent that binds the determination of later development applications, especially in the case where, as Mr McDonald’s evidence provided, insufficient consideration may have been given at that time by Council to the heritage impact of the approved development.

46. I accept Mr McDonald’s evidence that the heritage impact of the proposed development is substantially greater than that of the carports, driveways, and minor alterations to the original cottages identified by the applicant.

47. I am persuaded by Council’s submissions and the evidence of Mr McDonald that the existing pattern of development is significant, and that the construction of the secondary dwelling in the current open rear yard would alter the significant pattern of development in a manner that would diminish the integrity of the Walter Bunning plan designed along Radburn principles, which is a key element of the heritage significance of the HCA.

48. On the basis of the evidence before me, I find that the proposed development is not compatible with the important characteristics of the HCA, including the retention of an appropriate visual setting, and would result in an adverse heritage impact on the identified significance of the HCA contrary to the objectives to conserve the heritage significance of heritage conservation areas including associated fabric, settings and views, at cl 5.10 (1)(b) of PLEP.

Orders

49. The orders of the Court are:

50. The appeal is dismissed.

51. Development Application No. DA25/0478 for the construction of a detached secondary dwelling at 193 Maple Road, North St Marys NSW 2760, is refused.

52. The exhibits, other than Exhibits 1, 2, 4, 5, A and B are returned.

……………………….

Niall Macken

Acting Commissioner of the Court

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