Character
The assessment framework
79Clause 32 states:
32 Design of residential development
A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.
80Clause 33 falls within Division 2 and relevantly states:
33 Neighbourhood amenity and streetscape
The proposed development should:
(a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) .
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:
(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site's land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) .
(g) ..
The evidence
81Dr Pollard states that the character of the area is a rural one, within which the vineyards form an attractive and distinct focus. The section of Oakey Creek Road that runs in a north/south direction represents a legible boundary between the urban area of Cessnock and the rural areas to the west. The proposed development weakens the current distinction between the urban area and the rural/vineyard character beyond by placing a relatively dense "bubble" of residential development in an area that is a valuable contributor to the sequential visual exposure to the rural vineyards district.
82Travelling westward along Marrowbone Road provides attractive rural views from leaving the roundabout at Oakey Creek Road towards the mountain range, including Mt Smart. These views widen after crossing the existing low ridge towards the west and boundary of the site; the rural and viticultural character is established from the roundabout. The views obtained across the site from Oakey Creek Road to the western region are attractive rural views that contribute meaningfully to the experience of entering this part of the wine region. If approved, the site would remain the only urban development on the western side of Oakey Creek Road.
83Dr Pollard further states that the use of Oakey Creek Road as a physical barrier between the urban and rural/vineyard characters is worthy of retention as it provides a defined and tangible experience of leaving the township and entering a rural area. In his opinion, this can be described as an "entry statement". While other roads access the vineyard district, the entry to the vineyard district via Oakey Creek Road is still important, particularly for those persons not wishing to follow the established tourist routes. The proposed development represents an unattractive and inappropriate treatment of the extended urban edge because of the poor design and siting of the dwellings, the extensive earthworks, mounding, the limited capacities for establishing adequate landscaping and a significant visual impact on adjoining properties such as the Kelman Estate and the Iron Gate Winery.
84In relation to cl 33, Dr Pollard states that the desirable elements of the locations current character should not come from the standard urban areas of Cessnock, but rather from the surrounding rural and vineyards area. To a degree, some of the cottages in the Kelman Estate have drawn their expression in this manner. These elements include selection of materials, siting of buildings and architectural expression. In contrast, the proposal includes self care residences, which are virtually identical to those at other developments owned by the applicant. With only minor concessions to colour schemes and detailing of veranda columns Dr Pollard states that these do not address the central concern. The layout of the cottages and duplexes are monotonous and do not take account solar access. Other buildings are simply extrusions with glass walls facing of east and west. Overall, the buildings do not recognise the locations character.
85Mr McMahon states that the locality surrounding the site can be divided into two distinctly different character precincts (east and west) that are distinguished by landform, views and prominent land uses. The common boundary of the precinct is a low height, but visually prominent, ridgeline that extends north-south along the western boundary of the site.
For the western character precinct, the undulating foothills provide extensive vistas of the Brokenback Range. The predominant land use is viticulture and the rolling fields exhibit attractive patterns of vines. Vistas are dominated by the mountain range. It is a distinctive landmark, generating a memorable "sense of place". This precinct exhibits a typical vineyard region landscape. It is attractive and highly valued.
86In the eastern character precinct, landform is comparatively flat and less distinctive. Views are local and interrupted by vegetation, predominantly along roads and creeks and are not particularly compelling. There is a wide mix of uses predominantly suburban in nature including residential estates, a golf course, prison, high school and caravan park. There are a few small vineyards at the intersection of Marrowbone Road, Oakey Creek Road and Mount View Road adjoining the site however no distinct land use prevails.
87The site falls within the eastern character precinct. It is not located in the vineyards district either physically or conceptually and has an in inconsequential relationship with it. Rather, it has a stronger relationship with the residential areas and supporting activities of Cessnock to the east and as such will not detract from this character. The presence of the development, including the landscaped mound, will have no impact on the character of the area nor will it diminish the value of the ridgeline as the division between the two character precincts. The mound is 2 m in height while the fence has a height above that of 1.8 m. Both features are restricted to the southwest corner of the site and importantly, both features will be obscured by the sites foreground landscaping.
88Mr McMahon describes Oakey Creek Road as little more than a convenient demarcation between zones and it is not based on any physical analysis of the characteristics of the area. Similarly, the role of
Oakey Creek Road as a gateway to both Cessnock and the vineyards is at best, minor as it lacks a concentration of the wine country attractions, activities and vineyards, which would ordinarily give the road a significant role in the movement patterns of the area. Consequently, Mr McMahon maintains that the development will not result in any change in opinions, expectations or perceptions of the vineyards district in the eyes of tourists and other visitors that could have any impact on the tourism profile of the area.
89In relation to cl 33, Mr McMahon states that the Bellbird Release Area is 280 m from the site to the east. Construction has commenced on traditional residential subdivision layouts. Other well-established residential estates are located on the north side of Mount View Road where subdivision and housing design is conventional, comprising regular and typical project homes on conventional size lots. Importantly, no vineyard theme is evident. This form of development has a significant influence on the quality and identity of the area. Also, there is not a distinctive or prevailing architectural theme in Cessnock and the vineyards have a range of architectural styles, materials and colours. In many respects, development of the site will complement and reinforce the contribution made by the Kelman Estate to the area's identity.
90Dr Lamb agrees with the conclusions of Mr McMahon. He accepts that the site is the boundary between urban and rural land however the boundary appears to be as much of a coincidence as a deliberate planning decision, given that prior to the development of the Kelman Estate, this property was a saleyards with more rural than urban character. It has now zoned urban, notwithstanding it has both urban and rural attributes. Dr Lamb notes that the promoted entries to vineyard district from Cessnock are dominantly from Wine Country Drive, which is heavily promoted, signposted and shown on most tours materials as the premier access. Dr Lamb agrees with Mr McMahon that the ridge on the western boundary of the site and which runs further north is the natural and aesthetic divide between the outskirts of Cessnock and the scenic, vineyards district to the west and north-west. If there is a gateway in the locality, it is where Marrowbone Road and Oakey Creek Road cross into the watersheds to its west, where the views of Mount Smart, Mount View and the Brokenback Ranges dominate wide floored valleys with vineyards in various locations.
91As a visual experience for a tourist, as distinct from the boundary between two different zonings, entry to the vineyards district is a cognitive construction that depends on the assembling of cues, memories, the anticipated stereotypical images and expectations. Dr Lamb maintains that there will be no conceivable difference to the experiences of tourists at either self- directed or guided tours with regard to "entry statements". The proposal will be an edge of town experience, just as the existing edge that the Kelman Estate, as an example, is now.
92The bulk and scale of the development and population of residents permissible under SEPP 2004 is obviously not a development contemplated for the rural or the adjacent residential zone. In a sense, it is pointless to note the differences in density and built form of a retirement village and a block of vines, grazing land or some of the attributes of the Kelman Estate, such as density. The critical question in relation to the visual impacts is not will there be a contrast but whether the proposal produces reasonable streetscape and neighbourhood amenity in the context of being a SEPP 2004 development. To do so does not mean that the development has to be the same, but only to be reasonably compatible and address the desirable aspects of the setting.
93In the opinion of Dr Lamb, and considering cl 33, the proposed development makes use of the existing characteristics of the site to assist in reducing the visual prominence, responds to the topography, retains significant existing scenic features, has wide setbacks, buffers of rural character and a landscape design that will extensively screen the development. The development has very low potential visibility from Marrowbone Road as a result of a mounding and landscape screening effects and earth mounds, grassy banks or screening vegetation are natural features in a rural landscape.
Findings
94Clause 32 provides that consent must not be granted unless the Court is satisfied that adequate regard has been given to the principles set out in Division 2. The principle in cl 33, relating to neighbourhood amenity and streetscape, requires the proposed development to "recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character)" so that any new buildings "contribute to the quality and identity of the area". Neighbourhood amenity and residential character to be maintained by considering building setbacks, building form and heights and landscaping.
What is the appropriate area to consider cl 33?
95The experts accepted that the area character was largely the visual catchment from the site although given the emphasis on viticulture, the area on the opposite side of the ridge that runs along the eastern edge of the site was also relevant.
What is the character of the area?
96The experts accepted that that the area surrounding the site has a mixed character. The site has a rural character with gentle to moderate slope. It is cleared and contains three dams and some unattended grape vines. The site adjoins Saddler's Creek Winery to the south and open rural land to the north. Further to the north on the opposite side of Oakey Creek Road is the Iron Gate Winery. To the east of the site is the Kelman Estate, which has a more urban character but not at the same density as the residential development further to the east. Part of the eastern boundary of the site adjoins land occupied by the Cessnock Correctional Facility although the presentation to Oakey Creek Road is vegetated with the buildings some distance from the street. Land on the opposite side of the ridge is predominantly agricultural and viticultural in character. Native vegetation was located mainly within the road reserves and creeklines although some stands of vegetation exist away from these locations. Built form is generally sparse with some older style dwellings and newer buildings associated with the rural and viticultural activities.
What is the appropriate character for the site to consider cl 33?
97The experts differed on what was the appropriate character for the site based on the hypothetical line that divides the urban and rural characters. Dr Pollard maintained that the appropriate demarcation between the rural and urban characters is Oakey Creek Road. This boundary reflects the zoning boundary that separates the urban and rural zonings. In his opinion, the development, being predominantly urban did not reflect the desirable elements of the rural character west of Oakey Creek Road. Mr McMahon and Dr Lamb rely on topographical and physical characteristics of the area and determined that an appropriate demarcation was the ridge to the western part of the site. In this context, the proposed development provides desirable elements of the urban form to the east that includes the Kelman Estate.
98The location of the site at the interface of two different characters presents some practical difficulties in addressing the questions posed by cl 33, including any reliance on setbacks, building heights and landscaping given the setting of the site. In considering the different positions taken by the experts, I am satisfied that the conclusions Dr Pollard should be accepted for a number of reasons. First, I accept that while the predominant viticultural character of the area occurs after crossing the ridge on Marrowbone Road to the west of the site, existing viticultural operations exist and can be observed from the site (Iron Gate Winery and Settlers Creek Winery). I see no reason why these wineries do not help establish a viticultural character from Oakey Creek Road.
99Second, there is no reason why the site and the land to the north could not be used for viticultural activities. Mr Gell maintains that the soil surveys conducted on the site establish that the land is not prime soils and as such could not produce prime fruit however Mr Hilder states that good quality fruit has been produced in the past from the site and there is no reason why this could not be continued in the future, with good management. While the site could not be categorised as "prime" agricultural land, it has the same agricultural classification as part of the Iron Gate Winery (Class 4) that appeared to operating in an effective manner based on the site inspection. Also, the site operated a viable wine growing operation in the past although with questionable management techniques. As I understand there was agreement that the existing vines on the site could be re-established, given proper management.
100Third, and while a zone boundary or a road does not necessarily always provide a suitable demarcation line, in this case, it does anticipate two areas with distinct differences in existing and anticipated character. Some weight needs to be given to the zone boundary given that its location through LEP 1998 and LEP 2011 have been advertised, any objections considered, ultimately adopted by the council and gazetted.
101Fourth, DCP-Part E3 specifically identifies the site as being located in the Vineyards District Locality Plan (Figure 1) and part of the site being located within a Visually Significant Area (Figure 3). The character of the Vineyards District Locality is relevantly described in cl 2, Appendix 1 as:
2. VINEYARDS CHARACTER
2.1 DESCRIPTION
The Vineyards District is characterised by the rising of the Brokenback Range from the valley floors of Black Creek. Remnant forest along the roadsides provides a reminder of woodland and grasslands which were once abundant across the district. Similarly, some remaining species of rainforest trees which grow along the banks of Black Creek are reminders of the likely rainforest habitat which existed at the time of European Settlement. ...
The history of European land use in the Vineyards District has resulted in a layering of uses primarily centered on viticulture, agriculture, wine production and the scenic qualities of the region. The imprint of early occupation of the land can still be experienced in the ordered pattern of narrow carriageways, vines and pastures. It is also clearly demonstrated in undulating lands extensively cleared for agricultural and viticultural activities, resulting in significant loss of natural vegetation.
The built environment has also evolved over time. Early building forms of the early to mid 1800's in the Vineyards District were usually associated with mixed farming. Places which remain from
this era are important reminders of early settlement and vineyards, and are likely to become of increasing interest to visitors and the community alike. Traditional sets of buildings designed for the manufacture of wine are also important landmark structures throughout the region. The Vineyards District, however, has changed with contemporary architecture often inspired by European viticultural styles. Increased tourist visitation has attracted smaller scale development such as cellar door sales and boutique wineries, and also large scale accommodation and
recreational developments. These changes, along with new land uses such as golf courses and large water treatment ponds have significantly modified the landscape.
102In summary, DCP-Part E3 contemplates a particular character for the Vineyards District that displays elements such as remnant forest along the roadsides and creeks, layering of uses primarily centered on viticulture, agriculture or wine production, undulating lands extensively cleared for agricultural and viticultural activities, ordered pattern of narrow carriageways, vines and pastures, contemporary architecture often inspired by European viticultural styles, smaller scale development such as cellar door sales and boutique wineries and large scale accommodation and recreational developments.
Is the form and siting of the development appropriate in this context?
103The council raised a number of separate issues in relation to the form and location and character of the development. These are:
Visual impact
104The visual impact of the proposal was a significant issue in the proceedings in determining whether the proposed development was acceptable in its appropriate character context. In my view, the desirable elements of the location's current character can be obtained from visiting the area and the anticipated character from the form and type of development anticipated by the council's objectives and planning controls.
105The existing character was observed on the site inspection. The character has been previously described (see par 96) and can be summarised as cleared undulating agricultural land with native vegetation consisting mainly along road reserves and creek lines with the dominant land use consisting of viticultural activities and grazing. The built form consisted of older rural style structures, dwellings and more contemporary designs associated with viticultural and rural activities and ancillary uses.
106In terms of anticipated character, the Zone 1(v) objectives seek:
(a) to maintain prime viticultural land and enhance the economic and ecological sustainability of the Vineyards District, and
(b) to encourage appropriate tourist development consistent with the rural and viticultural character of the Vineyards District, and
(c) to minimise conflict between viticultural and non-viticultural land uses by ensuring sympathetic location and design of those uses, and
(d) to enable continued rural use of land which is complementary to the viticultural character of land within this zone, and
(e) to protect the water quality of receiving streams and to reduce land degradation, and
(f) to actively promote the need to conserve and enhance the biodiversity of the Vineyards District, and
(g) to conserve the aboriginal archaeology and european heritage of the Vineyards District.
107The objectives provide a clear emphasis on maintaining and enhancing the Vineyards District and encouraging appropriate associated tourist development. Similar objectives are provided for the RU 4 zone under LEP 2011.
108The uses permissible, with consent, for the 1(v) zone are:
Animal boarding, breeding or training establishments (other than for dogs); art galleries; bed and breakfast accommodation; cellar door facilities; child care centres; commercial vineyards; community centres; commercial signs; conference facilities; dams; dwelling-houses; environmental facilities; home industries; home occupations; horse training establishments; integrated tourist development; motels; picnic grounds; places of assembly; public buildings; reception establishments; recreation facilities in association with tourist accommodation buildings; refreshment rooms; riding schools; sheds; stables accommodating more than 2 animals; tourist accommodation buildings; tourist-related shops in association with integrated tourist development; tourist-related craft shops; underground coal mining which does not involve surface works or infrastructure; utility installations; wine storage facilities; wineries.
109Unsurprisingly, the viticulture theme runs through the permissible uses but there is no exclusivity for viticultural and related activities although cl 9(3) provides that consent must not be granted unless the development is consistent with the zone objectives.
110DCP-Part E3 provides further guidance for future development in relation to density, dwelling location and setbacks and consequently, the character anticipated for the Vineyards District. For comparison, the maximum number of tourist accommodation units for a 44 ha site is 66 (cl 3.2.4). These units are to be located within 15 buildings (Table 3.7.4(a)) if landscaping is provided along "property boundaries and creek lines" (cl 3.2.4(2)). The maximum floor space ratio is 0.1:1. The buildings should be "clustered to minimise site impact of the development" (cl 4.1.1, Appendix 1) and not located on "major ridges and high points... so as not to interrupt the natural skyline" (cl 4.1.3, Appendix 1). The front setback should be a minimum of 75 m (cl 3.2.5.1) and the side setback a minimum of 50 m (cl 3.2.5.2).
111In considering that the proposed development provides for the construction of 177 self-contained dwellings, 20 hostel assisted living serviced apartments, a residential care facility incorporating 40 rooms, communal facilities, a dwelling to be used as a manager's residence, landscaping and some acoustic mounding in the setback areas, I am not satisfied that adequate regard has been given to "recognise the desirable elements of the location's current character" or the character anticipated by the councils planning controls.
112The development, while providing good setbacks of around 100 m also provides a very dense urban built form over the remainder of the site. The number of dwellings and their separation provides for a large expanse of roof form and bulk that will be visible from parts of the Kelman Estate and from Oakey Creek Road and Marrowbone Road. While I understand that the landscaping has been designed to screen the development from many locations, I am not convinced that it is appropriate that landscaping be used to screen or hide a development that is uncharacteristic and inconsistent with the character of the area. Even if this was considered as an appropriate way to address the form of the development, the need to provide the setbacks as Asset Protection Zones for bushfire protection is likely to impinge on the ability to use the setbacks to screen the large amounts of built form. The need for an acoustic mound on Marrowbone Road also creates an obvious element that is peculiar to the area. Landscaping is supposed to reinforce the roads and creek lines (cl 3.2.4(2)) and be clumped around new developments and not in rows (cl 4.1.4, Appendix 1) and not be used to principally screen the development.
113I agree with Dr Pollard and Mr Broyd that the extent of built form manifests itself in ways that are inconsistent with the character anticipated for the site. The cut and fill for the internal access roads, at around 2 m in some locations, is excessive and is necessary to provide access to the large number of self-contained dwellings. In my view, the cut and fill is not "kept to a minimum" (cl 4.2.2, Appendix 1). Even though the retaining walls are terraced and the cut and fill is obscured by the proposed buildings; this is more of a function of the large amount of buildings on the site rather than minimising cut and fill.
114The need for mounding and fencing that changes the natural rural topography to minimise the visual and potential acoustic impacts from the assisted living serviced apartments and residential care facility is inconsistent with the anticipated character where development should not be located on "major ridges and high points... so as not to interrupt the natural skyline" (cl 4.1.3, Appendix 1). The two - storey form of these buildings is also at the highest point on the site although I accept that the maximum height of 8 m is not exceeded.
115While the proposal satisfies the setbacks and as I understand, the floor space ratio it does not necessarily follow that compliance with these elements would make the proposed development more acceptable. It may well be that a permissible development, for example, an integrated tourist development, may have similar setbacks or a similar floor space ratio as the proposed development and be acceptable, however this use is a use that is anticipated and recognised as a use that can compliment the existing and anticipated character of the area.
116For the reasons set out in the preceding paragraphs I find that pursuant to cl 9(3) the development is consistent with the objectives of the zone, particularly objectives (a), (b) and (d) and as such the development must be refused.
The proposed buildings
117Dr Pollard expressed concern over the design and set out of the proposed buildings. He describes the set out of the cottages and duplexes as monotonous and the design lacking in local character. Mr McMahon has similar views on the design, but not necessarily the number of dwellings, and states:
Within the site, greater variety could be introduced into the presentation of buildings via application of a wider variety of architectural elements, facade and roof materials and colours. Building placement along internal roads could be pivoted / reoriented along the building line slightly, so that a monotonous repetition of buildings addressing the roads is avoided. As the dwellings will generally not be visually evident from public places, I consider that these are minor items that are not determinant to the assessment of the proposal. The improvements could be incorporated into any conditions of consent crafted to the effect that:
• Buildings shall incorporate a greater diversity of architectural elements, facade and roof materials and colours to introduce greater variety in the presentation of buildings within the site; and
• Buildings shall be pivoted along the building line to introduce articulation and variety in setbacks from internal roads.
118I agree with the concerns expressed by Dr Pollard and the amendments suggested by Mr McMahon and if the development were to be approved I would require the amendments to be provided by way of additional plans rather than as conditions of consent.
The "Gateway"/loss of tourist trade
119I agree with Mr McMahon and Dr Lamb that the role of Oakey Creek Road as a gateway to both Cessnock and the vineyards is at best, minor and that the development will not result in any change in opinions, expectations or perceptions of the vineyards district in the eyes of tourists and other visitors that could have any impact on the tourism profile of the area.
120In my view, the concerns of Mr Broyd and Dr Pollard on the loss of an entry treatment and a negative impact on the potential tourist trade are overstated. I agree with the submission of Mr Clay that persons attending the Vineyards District are unlikely to be so offended by the proposed development that they would likely terminate their visit or not return at another time. Similarly, I do not accept that where the proposed development can be viewed from the Iron Gate Winery that, whether in a tourist coach or a private car, it would be unlikely that any patrons would be so offended that they would not return to the area because the proposed development could be seen, some hundreds of metres away.
121If there were no other reasons that development application should be refused, any potential loss of an entry statement or Gateway or a potential loss of tourist trade would not be a reason to refuse the application.