Samowill Pty Ltd v Queanbeyan - Palerang Regional Council; Samowill Pty Ltd v Heritage Council of New South Wales - [2017] NSWLEC 1550 - NSWLEC 2017 case summary

Land and Environment Court (NSW)|2017-09-13

Judgment

COMMISSIONER: This appeal was lodged by the applicant in response to the refusal by Queanbeyan-Palerang Regional Council (the Council) of a subdivision application. The applicant seeks approval for a five lot subdivision to allow future residential development. The subdivision results in four new residential lots ranging in size from 1150 to 1656sqm with the remaining lot to contain the existing motel building. The works incorporate a new road off Wallace Street, Braidwood.
The application was refused by the Council on the basis that the application was not provided concurrence from the Heritage Council of NSW ('NSW Heritage'). Concurrence was refused due to the developments detrimental impact on the heritage item: "Braidwood and its Setting".
In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 ('the LEC Act') was unable to be reached between the parties to resolve the dispute in a manner that was acceptable to the parties. The conciliation was terminated on this basis.
The applicant was granted leave by the Court to rely on amended plans and documentation in June 2017. Included in this documentation is a Historical Archaeological Testing Report that examined the archaeological potential of the site. Relevantly that report concluded: "… • Archaeological testing has confirmed that the site contains archaeological remains associated with the mounted police barracks and annex. The remains comprise footing trenches, demolition and rubble backfill, a posthole, timber floor evidence, and patchy underfloor deposit in the annex containing artefacts. … • The archaeological remains of the mounted police barracks are state significant for their historical, associative and rarity values. As the site is not intact, the archaeological remains have research potential at a local level of significance. • The proposed 5 lot subdivision would result in the archaeological site being contained within on allotment - lot 4. • The subdivision should not impact the archaeological significance if earthworks and excavation do not occur within the archaeological zone." + (Exhibit G)

The site and its context

The site is legally described as Lot 11 in DP 1096463 and Lot 111 in DP 755913. The site is irregular in shape and has an area of 15,778 square metres. The site has an undulating slope and is currently vacant with the exception of an existing single storey brick motel building.
The subject site forms part of land locally known as the "Police Paddock". The land sits within the State Heritage Listed area of "Braidwood and its Setting"(SHR 01749). The southern part of the Police Paddock contains Monkittee Creek which traverses in an east west direction. Refer paragraph [12] for the location of the subject site within the bounds of the Police Paddock. Monkittee Creek represents the lowest point in the topography within the vicinity of the site. From the creek the topography rises north towards the subject site, and south towards the town. The site includes a localised high point.
The site is on the northern side of the town. It has frontage to Wallace Street, including its intersection with Solus Street which extends east west to connect with the Kings Highway.
In contention between the parties is the role of the site as part of the setting of Braidwood on approach and departure from the town. The following aerial photographs show the location of the site relative the Kings Highway which provides access from Canberra.
Extent of the Police Paddock (hatched) in relation to the subject site:

Statement of Significance:

The NSW Heritage listing contains the following statement of significance for the item: "Braidwood and its setting are of state significance as an excellent surviving example of a Georgian period town plan, dating from the late 1830's. The plan, which retains high integrity, reflects colonial administration as applied to the outer reaches of the Nineteen Counties from the 1820's, following earliest European settlement in the area. The surviving historic elements in the surrounding landscape strengthen the town's significance. The town buildings reflect key phases of development, commencing with the initial construction period in the 1840's, and the consolidation in the later half of the century following the gold boom. The integrity of Wallace Street as a fine collection of 19th century buildings throughout the town contributes further to its heritage value and creates fine streetscapes often with delightful views of the pastoral surrounds. The abrupt transition at the town boundary between built and pastoral landscapes highlights significant historical settlement patterns, specifically the large land grants on the north, east and south sides of the town obtained by McKellar, Wilson and Coghill, and passed on to the Maddrells and eventually others. The juxtaposition of a cohesive town set within a historic pastoral landscape on the north, east and south sides is also significant. The closer settlement on the western side reflects the subdivision of the former Church and School Estate. In NSW, colonial towns that retain significant historic form and fabric to the extent that Braidwood does, are rare. Some 20th century elements in the town reflect later phases of development. Construction circa 1936 is significant for its association with the emergence from the Great Depression and amalgamation with of the Municipality of Braidwood with the Tallaganda Shire. Development in the 1950s, particularly to the west of the town is significant for its association with post WWII population growth and the mid 1950s wool boom. 20th century development is reflected in most towns in NSW and, in the context of Braidwood, is considered to be of local significance only." (Exhibit R2)
The site is within the bounds of a listing on the SHR: "Braidwood and its Setting". The map attached to the register is extracted below:

Planning Controls:

The development application is for integrated development (s 91A Environmental Planning and Assessment Act 1979 ('the Act'), as approval under s 58 of the Heritage Act 1977 ('Heritage Act') is required. The Heritage office has declined to provide concurrence.
The State Heritage Listing provides for exemptions from the need to gain approval from the Heritage Office where development "complies with" the Braidwood Development Control Plan 2006. The parties agree that this general exemption does not apply to the current application.
Relevantly pursuant to s 39(6A) of the LEC Act the Court, on appeal, can determine an application whether or not concurrence (general terms of approval) have been granted (sub section (a)); and the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval (sub section (b)); and may determine the appeal in a manner that is inconsistent with the general terms of approval of an approval body (sub section (c)).
The application also requires concurrence from NSW Roads and Maritime Services, NSW Water and the NSW Rural Fire Service. Each of these authorities have provided their general terms of approval for the application, and their requested conditions have been incorporated into the without prejudice conditions (Exhibit 3).
The subject site is covered by the Tallanganda Local Environmental Plan 1991 ('LEP 1991'). LEP 1991 was repealed when the Pallerang Local Environmental Plan 2014 ('LEP 2014') commenced on 31 October 2014. However given the development application subject of the appeal was lodged with Council on 30 October 2014, LEP 1991 is the applicable instrument.
Under LEP 1991 the proposal is defined as subdivision and is permissible with consent.
The relevant aims and objectives of LEP 1991 are: "(a) to encourage the proper management, development and conservation of natural and man-made resources within the Shire of Tallaganda by protecting and conserving … (v) places and buildings of archaeological or heritage significance, including aboriginal relics and places, and … (c) to afford protection to the environmental heritage within the Shire of Tallaganda by: (i) conservation of environmental heritage, (ii) Integration of heritage conservation into the planning and development control processes, … (iv) ensuring development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of the items or their settings."
Clause 9(3) of LEP 1991 states that "Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out."
The subject site falls predominately within the 2(v) Village or Urban land zone. Relevantly the objective of this zone is "to promote development in existing towns and villages and to allow future development in them in a manner which is compatible with their urban function."
A small portion of the site parallel to Kings Highway (or Solus Street) is zoned 1(a) General Rural. The objectives of this zone relevant to the appeal are: "(a) protecting, enhancing and conserving: … (viii) places and buildings of archaeological or heritage significance, including aboriginal relics and places, …"
Subdivision is a permissible use with consent in both zones.
Clause 11 of LEP 1991 applies to applications for subdivision, at (2) the clause states: "The Council shall not grant consent to land within Zone No. 1 (a) or 1 (c) unless it has made an assessment of whether: … (b) the subdivision will create or increase the potential for ribbon development along any road, particularly a main or arterial road."
There is no applicable minimum lot for subdivision within the 1(a) General Rural zone under LEP 1991. A minimum 40ha lot size is required however for the erection of dwelling houses in the 1(a) zone. The proposed lot sizes do not meet this requirement.
The application complies with the minimum lot size provisions for subdivision of land for dwelling houses in Zone 2(v) pursuant to Clause 19 of LEP 1991.
Clause 38 of LEP 1991 allows prohibited development on a site that is divided by a zone boundary to be granted consent providing the development extends no more than 20m into the adjoining zone. It is agreed between the parties that this clause applies to the site and has the effect of permitting dwelling house development on the proposed lots, even within the 1(a) zoned land.
The heritage provisions of LEP 1991 (clauses 31-33) do not apply to the application as the place is a heritage item or is within a heritage conservation area which is the subject of a conservation instrument under the Heritage Act. (Clause 36 LEP 1991). The listing of Braidwood under the SHR has the same effect.
The Palerang Local Environmental Plan 2014 ('LEP 2014') was gazetted with a delayed commencement date of 31 October 2014. As the development application was lodged on 30 October 2014, prior to the commencement of the application pursuant to cl 1.8A of LEP 2014 does not apply to the application.
However draft local environmental plans can be a consideration in the assessment of development applications (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 204-205).
Under LEP 2014 the site is split zoned RU1 Primary Production, and R2 Low Density Residential. The relevant minimum lot sizes in the zones are 40ha and 850sqm respectively (Clause 4.1). Under this instrument the current application would be prohibited, save for a variation under cl 4.6 of LEP 2014.
Under LEP 2014 "Braidwood and its Setting" is listed as a heritage conservation area (HCA) within LEP 2014 and cl. 5.10 Heritage conservation applies to the HCA. The objectives of cl 5.10 of LEP 2014, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Palerang and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
Council submits that the application should be assessed under the provisions of LEP 1991.
Braidwood Development Control Plan 2006 ('DCP 2006') applies to the application. Pursuant to an exemption to the provisions of the Heritage Act gazetted on April 3 2006 development that complies with the provisions of DCP 2006 are exempt from gaining approval under Part 4, Division 3 of the Heritage Act. As such compliance with the DCP provisions act as a form of deemed concurrence.
The clauses of DCP 2006 relevant to the appeal are: 1. Introduction: "… This DCP has also been prepared in recognition of the State Heritage Significance of Braidwood and its setting." 1. Objectives: … "In relation to heritage matters: • to ensure the protection of heritage items and the heritage significance of Braidwood and its setting; • to ensure that future development does not detract from the historic rural character of the town; • to ensure management of the town's streetscapes is consistent with the town's historic character; • to ensure management of the town's perimeter and setting is consistent with it's historic and aesthetic values; • to maintain Braidwood as a living, working community. … In relation to subdivision: • to establish general subdivision guidelines; • to establish guidelines for the subdivision of existing allotments within the historic town boundary consistent with heritage values; • to establish guidelines for the subdivision of land within the surrounding area's Heritage Boundary that are consistent with heritage values; and • to limit negative impacts that might arise from subdivision and subsequent development."
DCP 2006 contains specific provisions for precincts within Braidwood. The application of Precinct 6: Former Police Paddock, Precinct 7: Land surrounding the south, east and north edges of town, Precinct 9: Approach Roads are relevant to the application. These specific provisions are discussed in the consideration of the expert evidence.
Pursuant to cl A1.6 of the Palerang Development Control Plan 2015, its provisions do not apply to the development application. DCP 2006 is the relevant planning instrument for consideration under s 79(1)(a)(3) of the Act.
The DCP provisions are a mandatory consideration, and a focal point, of the assessment of the application (see Zhang v Canterbury City Council [2001] NSWCA 167). However s 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

Expert Evidence

In line with the issues in dispute in the proceedings the parties engaged experts in heritage as follows: 1. Mr Paul Rappoport - for the first and second applicants; 2. Mr David Hobbes - for the first respondent 3. Mr Robert Allan Moore - for the second respondent
A joint expert report was filed by the heritage experts, which I have read and considered this report as part of the proceedings.

The issues

The fundamental issues for determination in this appeal are whether the proposed development has a detrimental impact on the significance of the SHR listing of "Braidwood and its Setting"; and whether, following merit evaluation, the development warrants approval.

Will the proposed development have an unacceptable detrimental impact on "Braidwood and its Setting"?

It is the evidence of Mr Rappoport that the proposed subdivision will not have an unacceptable adverse impact on the heritage item "Braidwood and its setting", his reasoning is as follows: 1. the proposed development will merge well into the urban/rural landscape of Braidwood; 2. the development affects only a small proportion of the pastoral area that survives to the north of the town and the north of Monkittee Creek and affects only a small section of the Police Paddock; 3. the proposed development will constitute only a minor intrusion into the open vista when arriving in the town from the north, and by reference to the SHR listing it is questionable if this vista has any identified significance; 4. cl 4.8 of DCP 2006, Precinct 7, addresses rural lands to the south east and northern edges of the town. Figure 14, which represents Precinct 7, establishes the relevant buffer zones, and curtilage areas. The subject site is not mapped within these zones. The DCP seeks to implement the SHR listing and has not identified the views to the subject site as being a buffer or curtilage to the item (Precinct 7), or of significance on approach to the town, which is defined as Precinct 9.
An extract of Figure 14 in DCP 2006 is reproduced below:
Importantly Mr Rappoport concludes that: "I do not regard the arrival and departure experience of the Town including the open lands which include the subject development site and the former Police Paddock to be so prominent as to prevent a development such as that proposed from taking place. It is my view that crucial elements and aspects of the town's significance will continue to survive and prosper." (Exhibit 5)
Following a review of historic town plans, and maps it is Mr Rappoport's evidence that: 1. both the 1839 and 1854 Town plans, prepared by Larmer, show that further subdivision was at that time intended for the Police Paddock; 2. to the extent that the proposed subdivision departs from the alignment of the present residue lot for the Police Paddock, the change in lot pattern would not adversely affect the heritage significance of the historic town of Braidwood.
Mr Rappoport argues that in completing the assessment of the application the Court should give weight to the proposal to include interpretation of the historic development of Braidwood, and the Police paddocks within the site. It is his evidence that this will further the knowledge and understanding of the town and its history by residents and visitors (Exhibit 5). It is Mr Rappoport's view that this would be a heritage benefit from the project.
In contrast to the preceding, it is the evidence of Mr Hobbes and Mr Moore that the proposed subdivision will impact on views from Solus Street, and that the intrusion of residential development into the site of the Police Paddock will have a detrimental impact on the heritage significance of Braidwood and its Setting.
Mr Hobbes' evidence is that the Police Paddock is a significant element of "Braidwood and its Setting" as listed, for: "the views that it allows on approach to the town out to the pastoral land beyond, [and] for its ability to demonstrate the abrupt transition between the nineteenth century town layout and the surrounding rural landscape, and as evidence of nineteenth century policing activities." (Exhibit 5)
Mr Hobb's argues that affecting part of the Police Paddock, by subdivision and road construction and eventually housing, will have a visual impact which "significantly reduces the degree to which these features can be read and understood" (Exhibit 5). It was clear in his oral evidence that the relevant features are those detailed in paragraph [51], namely: the views from the town to the pastoral landscape; the abrupt transition; and the evidence of historical policing activities. In forming this conclusion Mr Hobb's relies on the following extract from the assessment of significance under SHR Criteria (a): Historical Significance. This assessment is contained within the SHR as follows: "… The views to and from the surrounding pastoral landscape and road approaches to the north, east and south of the township are integral to the conservation and appreciation of its significance. …" (Exhibit R2)
In contrast to the views expressed by Mr Rappoport it is Mr Hobbes' evidence that whilst some early town plans (1839 and 1854) indicate that further subdivision of the Police Paddock was envisaged, it did not occur. He concludes that it is this lack of development within Braidwood that contributes to it "presenting as a snapshot in time" and that this degree of intactness was a primary reason why Braidwood is the only NSW town listed on the SHR. As such it is Mr Hobb's evidence that any indication of further subdivision in historic plans are of little weight.
Mr Hobbes' retains the view that the "proposed subdivision will have an adverse impact on views, on an appreciation of the abrupt transition between town and countryside and on the significance of the Police Paddock as rare evidence of 19th century policing activities." (Exhibit 5).
The evidence of Mr Moore is consistent with that of Mr Hobbes. He also holds the view that the arrival and departure experience of the town (and relevantly views to the site from Wallace and Solus Street) are critical to maintaining the intactness of the heritage item and its significance (Exhibit 5). Mr Moore places significant weight on the assessment criteria under SHR Criteria (g): Representiveness. This assessment is contained within the SHR, as follows: "Braidwood is an excellent example of a 19th Century rural town plan. The rectangular Georgian plan of 1839 sits well in its landscape and has not been split by subsequent rail or road alignments, or overlaid by more recent planning models or block amalgamations. It reflects a range of key planning determinants of the day including Governor Darling's approach to order, payout and block and road dimensions. The plan also reflects the importance of the judiciary and police system by inclusion of a substantial area for police horse paddocks, as befitted the centre of a police district. The evidence of the town's perimeter and the abrupt transition between the town and the surrounding pastoral area reinforces its significance." (Exhibit R2) [emphasis added]
It is Mr Moore's evidence, that in addition to the developments detrimental impact on the heritage significance of Braidwood and its Setting, the development will also set an undesirable precedent. His evidence in this regard is as follows: "In my opinion it is apparent that the projected subdivision will presage the eventual removal of the significant pastoral area which survives to the north of the Town proper, and to the north of Monkittee Creek, beyond which, on the eastern side of Wallace Street, the current motel is the first building. Prominent in both the arrival and the departure experience of the Town, the open lands which include the subject land and the former Police Paddock are in my opinion, crucial to the survival of this significant historic defined character. They will not survive a consent issued for this proposal, and those which will be encouraged to follow after, as suggested by the road design for access to the projected lots." (Exhibit 5)
In his evidence Mr Moore draws from the assessment report completed by the NSW Heritage Office (Tab 6, Exhibit R2). This report was provided to the NSW Heritage Council for their consideration of whether to provide concurrence to the development.
Extracts from that assessment report are provided below. These paragraphs summarise the reasoning of the Heritage Office's refusal of concurrence: "Significance 9.2.1 The proposed subdivision is located within the former Braidwood Police Paddocks and Barracks, which are identified as being of exceptional historical and archaeological significance, and contribute to the significance of Braidwood as surviving evidence of the original lot patterns and historic development of the town. Impacts to significance result from the proposed change of historic use, and impacts to significant views and siting, and potential impacts to fabric and discussed below. Curtilage and Setting 9.3.1 The visual cohesiveness of this area as one large grazing paddock contributes to its individual significance, as providing a clear transition between the town plan and its rural setting. The previously approved subdivisions in the northwest of the Paddock Precinct have somewhat diminished this significance. Permitting further subdivision and change of use, particularly within the location of the former Barracks, will further diminish the historical and aesthetic significance of the former Paddocks, as well as the ability to interpret this significance. Views and Vistas 9.4.1 The proposal to construct four new dwellings along the new frontage to the proposed access road, extending into the rural landscape of the Paddock, would alter views and the Paddock's rural quality as undeveloped grazing land. Sensitive building design would not reduce these impacts. Development in this area would alter views from the Kings Highway/ Wallace Street towards the flat, open landscape, as well as the countryside beyond. … Change of Use 9.5.1 The proposed change of use would have an adverse impact on the historical significance of the Paddocks, which has remained largely in its original configuration and historic use as grazing land since the 1830's. Subdivision 9.6.1 The subdivision will separate ownership and responsibility for maintaining the site's heritage significance, and is likely to physically divide significant fabric through boundary fencing. New building elements such as fencing would obscure physical interpretation of significant elements and remove the ability to interpret the site as one entity. …." (Tab 6 Exhibit R2)
In reply to the evidence from Mr Rappoport in regards to the historic plans of Braidwood, Mr Moore does not agree that such early planning documents may be relied upon. It is Mr Moore's evidence that the proposal should be responsive to the evolved heritage character of Braidwood and the heritage significance which is attributed to it by the detailed listing on the SHR. The development is inconsistent with the controls in Councils planning instruments.
DCP 2006 applies to all the land covered by the item Braidwood and its Setting. The format of the plan is to divide the land within the listed area into precincts. The subject site is predominately in Precinct 6: Former Police Paddock, with some portion of the site (the motel, proposed lot 1) being within Precinct 2: Residential within Historic Town Boundary.
Relevantly DCP 2006 provides the following objectives and controls for Precinct 6: "Objectives: The objective of the former Reserve for Police Purposes is for the paddock to retain its important historic, aesthetic, social and technical significance by continuing to be used for low density development, primarily as open space for grazing. Landuse The preferred land use for the private land north of Monkittee Creek is to remain undeveloped grazing land. Controls: Development controls for the Police Reserve are: • Any new or other development within or adjacent to the Former Police Reserve must not have an adverse impact on the heritage significance on the site and/ or Braidwood and its Setting. … • Development should not have an adverse impact on significant archaeological remains • In assessing development of the reserve, Council should consider the extent, appearance and location of any proposed infrastructure as seen from the town or public domain."
Given the development proposes subdivision for residential purposes Council argues that the application is inconsistent with the land use sought by DCP 2006. Relying on the evidence of Mr Hobbes and Mr Moore, Council argues that the development does not meet the controls of the precinct as the development has an adverse impact on heritage. Mr Bradbury submits that on the same basis the application fails to meet the objective of the precinct to retain the important historic, aesthetic, social and technical significance of the Police Paddock.
At Part 5, DCP 2006 provides specific provisions in relation to subdivision as follows: "Objective To retain evidence of Braidwood's historic subdivision pattern and ensure that new subdivision and subsequent development enabled by subsequent development enabled by a subdivision is sympathetic to the heritage significance of Braidwood, including its historic plan, streetscapes. Control • Subdivision shall not alter Braidwood's historic town plan, block and lot boundaries, roads or lanes. • New lot boundaries within the town shall be parallel with or at right angles to the historic grid. • New subdivision must not facilitate development which may block views from the town to the surrounding countryside. … • The minimum lot size as set out in the LEP is not to be taken as a standard for all lots within a subdivision. It is likely that larger lots may be necessary to meet the character provisions in this DCP."
The applicant's position is that as the site is outside the precinct within DCP 2006 that seeks to control development on the approach to the town (Precinct 9). The applicant submits that the reference in the SHR listing to visual curtilage does not apply to the subject site. The applicant argues this interpretation accords with the historic town boundary of Braidwood which incorporates the Police Paddock within the bounds of the town. Mr To summarises this position as follows: "The distinction between the historic town and its surrounding, rural setting is emphasised again by Precinct 9- approach roads. Figure 16 [in DCP 2006] identifies the 4 key roads into Braidwood. Objectives (a) and (d) specifically mention "the sharp visual and land use distinction between the historic town and approach roads" and the "notion of Braidwood as a town within a rural setting". The identification of the roads, but not Solus Street (or other streets) shows the important views of the town/pastoral boundary are from those approaches." (Applicants written submissions, page 10)
It is Mr Rappoport's evidence that by reference to figure 14 of DCP 2006, the proposed development falls outside any specific controls within the DCP that address buffer zones, or visual curtilage. He concludes that the analysis of the view from Solus Street by Mr Hobbes should be given little weight. It was his oral evidence that the proposed development meets the objective of Precinct 6 (refer paragraph [61]) by maintaining the historic, aesthetic, social and technical significance of the former Police paddock. His reasoning is that: 1. The subject site represents a small area of the totality of the Police Paddock; 2. By reference to the concept plans he concludes that the future character of the dwellings proposed will likely take forms and materials that respect and contribute to the historical character of Braidwood; and 3. The view to and across the site is not identified in the SHR listing or the DCP as significant.
It is the evidence of Mr Moore that the experience of the arrival to the town of Braidwood includes views over the police paddock, and the importance of this expanse remaining open space is identified in the DCP objectives for Precinct 6. It is his view that the end of the transition between the built and pastoral landscapes is at the bridge over Monkittee Creek, directly south of the subject site. This view is consistent with the evidence of Mr Hobbes that the proposed subdivision will blur the current abrupt transition between the town and its surrounding rural landscape which was identified as significant in the SHR listing.
In cross examination both Mr Hobbes and Mr Moore accepted that by reference to the historic town plans the boundary of the "town" referred to in the SHR listing is the northern boundary of the Police Paddock. Thus the aesthetic views identified in the listing do not include views along Solus Street to the subject site.
However, Mr Hobbes maintains that the integrity of the sense of open space that is the Police Paddock, and views to it from Wallace and Solus Street are a component of the significance of the item (Braidwood and its Setting). He concludes therefore that the proposed development does not met the controls in DCP 2006 for Precinct 6, namely that: "Any new or other development within or adjacent to the Former Police Reserve must not have an adverse impact on the heritage significance on the site and/ or Braidwood and its Setting."

Findings:

At the time of the listing of "Braidwood and its Setting" the NSW Heritage Council considered a report detailing the reasoning behind the recommendation to list it as a State heritage item. In the executive summary of this report (Exhibit R2, Tab 10) it states: "… Braidwood's setting is considered to be its most vulnerable aspect. In the population of about 1000 there are many absentee owners. The areas has been zoned for residential subdivision since the 1970s but has not been considered attractive to development so has largely not been taken up."
The NSW Heritage Council report also details the reasoning behind the curtilage and the importance of the views towards the town as part of its cultural landscape (Exhibit R2, Tab 10). The report states "views from the town to the surrounding pastoral landscape are integral to the significance of Braidwood's cultural landscape."
In making the LEP 2014 the Council determined to maintain the predominately urban zoning for the site, and the permissibility for subdivision, albeit with a larger minimum lot size. LEP 2014 also incorporates specific heritage provisions for the town at a local level. This instrument has some weight in the consideration of the merits of the application: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council.
I accept the submission of Mr To that the Court, as part of the merit consideration of an application, should give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 per McClellan CJ at [117].
Notwithstanding that the LEP provides for residential subdivision, in and of itself that is not sufficient to determine the appropriate development on the site. The zoning provisions in LEP 1991, and the more general planning provisions in DCP 2006 both apply to the merit assessment of the application. In this case the provisions of DCP 2006 are also utilised as a form of deemed concurrence by Heritage NSW. In this matter the heritage listing, and the statement of significance, act as an additional layer of parameters to consider in the merit assessment of the application.
On the basis of the evidence in the current proceedings it is my view that the the heritage listing has the effect of limiting development on the site such that subdivision, whilst a permissible use in the relevant zone, may not able to be achieved in the form proposed by the current application (Grigorakis v Bayside Council [2016] NSWLEC 1573 at [35]).
I have considered the evidence of the experts in regards to whether the impact of the proposed development on the heritage significance of the item is acceptable. With the benefit of a site inspection, I prefer the evidence of Mr Hobbes and Mr Moore that on their evidence there is an impact that arises from the proposed development, and that impact is of such import that it adversely affects the significance of the heritage item.
On the basis of the following reasoning I find the impact of the proposed development on the heritage significance of the item sufficiently detrimental to warrant refusal of the application pursuant to s 79C(1)(b) of the Act. 1. I am satisfied on the basis of the evidence, and the site view, that the visual cohesiveness of the Police Paddock as one large expanse, contributes to its importance, and the importance of the item Braidwood and its Setting. I find that the proposed development will detrimentally impact on this significance for the reasons outlined in the NSW Heritage office assessment, summarised at paragraph [59] with which I concur. (SHR Criteria A: Historical Significance) 2. I am satisfied that the Police Paddock forms part of the significance identified in the listing of the item Braidwood and its Setting as: "the juxtaposition of a cohesive town set within a historic pastoral landscape to the north, east and south sides". It is my view that the inclusion of the Police Paddock within the historic bounds of the town is recognised in the listing as part of the historic form and fabric of the town. (SHR Criteria F& G: Rarity and Representativeness). 1. Further, by reviewing the evidence of the historic town plans I am satisfied that the proposed subdivision is also contrary to, and discordant with the simple grid design of the town. I am satisfied from the site inspection that the strong Georgian plan of the town is evident, and I find that the proposed subdivision does not respond to this element of its significance. I am satisfied that the discordant subdivision layout proposed would have a detrimental impact on the significance of the item. (SHR Criteria G: Representativeness). 2. It is clear from the historical mapping in evidence, and the Historical Archaeological report (Exhibit G) that the former police barracks was sited on the localised rise within the sites topography, (refer photo following). I am not satisfied that the form of subdivision proposed, or the placement of building envelopes, is responsive to this feature of the Police Paddock or its role as a surviving historic element (refer Statement of Significance, paragraph 13). (SHR Criteria G: Representativeness). 1. Finally I am not persuaded that the variation to the DCP controls sought by the applicant is warranted. Whilst DCP 2006 may seek the retention of the site as undeveloped land, this is in conflict with the LEP zoning provisions that apply to the site. Pursuant to s74C(5) of the Act I cannot give weight to the preferred land use for the Police Paddock as detailed in DCP 2006 where that is inconsistent with or incompatible with the provisions of the relevant LEP. 2. However the objectives of the precinct remain relevant. I am satisfied that the predominance of built form that will arise from the proposed subdivision (determined by the proposed lot size, lot boundaries and building envelopes) over the provision of open space within the proposal is incompatible with the DCP objectives for Precinct 6 to be used for low density development. Section 79C(3A)(b) of the Act requires a flexible approach to the application of DCP standards, allowing alternative solutions that would achieve the objects of the relevant standards. I find, for the reasons outlined above that the proposal is not an alternative that achieves the objectives of the relevant controls and the variations to Councils controls are not warranted in this instance.

Conclusion

I find the impact of the proposed development on the heritage significance of the item sufficiently detrimental to warrant refusal of the application pursuant to s 79C(1)(b) of the Act.
In my assessment I have given weight submissions made by members of the public in accordance with s 79C(1)(d) of the Act and the consistency of those submissions with the significance identified in the SHR listing for Braidwood and its Setting. I find that it is not in the public interest to approve the development as proposed.

Orders:

The orders of the Court are: 1. The appeal is dismissed; 2. Development application DA.2014.254 for a five lot residential subdivision of Lot 11 in DP 1096463 and Lot 111 in DP 755913 at 199 Wallace Street, Braidwood is determined by way of refusal; and 3. The exhibits are returned with the exception of Exhibits R1, 1, and A. ……………. D M Dickson Commissioner of the Court 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: 03 October 2017

(2003) 129 LGERA 195

Samowill Pty Ltd v Queanbeyan - Palerang Regional Council; Samowill Pty Ltd v Heritage Council of New South Wales

At a glance

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Judgment (10 paragraphs)

Cases Cited (5)