Southern Cross Care (NSW & ACT) Limited v Campbelltown City Council

Land and Environment Court (NSW)|2020-09-10

Judgment

COMMISSIONER: These proceedings are an appeal by the Applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal of Development Application No. 440/2019/DA-SL ('DA') by Campbelltown City Council ('Council'). The DA seeks consent for the construction of a part three, part four storey ninety (90) bed residential aged care facility at 34 Sturt Street, Campbelltown, legally described as Lot 19 DP 758217 and Lot 20 DP 758217 ('Site').

Site and surrounds

I rely on Council's Amended Statement of Facts and Contentions (Ex 1), generally uncontested, for much of the material in this and the following two descriptive sections.
The Site is vacant. It has two street frontages. The south-western frontage is to Sturt Street measuring some 70.47m. The Site's north-eastern frontage is to Innes Street and measures 70.45m. The high point of the Site is located at its southern western corner. The fall to the Site's low point is considerable, some 14m, to the north-western corner.

Statutory and policy setting

The Site is zoned SP2 Infrastructure under Campbelltown Local Environmental Plan 2015 ('CLEP'). An extract from the relevant zoning map is provided below with the Site highlighted in red. Figure 1 - Zoning (source: Council's Amended Statement of Facts and Contentions (Ex 1), par 20)
The objectives of the SP2 zone, albeit with a number not relevant here, are: • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. • To encourage activities involving research and development. • To optimise value-adding development opportunities, particularly those associated with research. • To provide for the retention and creation of view corridors. • To preserve bushland, wildlife corridors and natural habitat. • To maintain the visual amenity of prominent ridgelines.
Relevantly, the land use table to CLEP provides that the following development is permissible (with consent) within the SP2 zone: "The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose".
It can be seen from Figure 1 that the relevant "purpose" for the Site as indicated on the zoning map is: "… Cemetery, Church, Seniors Housing".
There is no dispute that the proposal would meet the definition of seniors housing and would thus be permissible on the Site. It is noteworthy, therefore, that the proposal does not rely on the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Applicant's closing written submissions filed 2 October 2020 ('ACS'), p 8).
It can also be seen that the land to the south-east of the Site, the St John's Church and cemetery land, shares this zoning.
It is also noteworthy that the area zoned SP2 in the vicinity (ie the Site as well as the St John's Church and cemetery land) is not subject to a maximum building height development standard under CLEP. There is a building height control of 9m applying to surrounding lands. In addition, the area zoned SP2, as well as the residentially-zoned surrounds, are not subject to a floor space ratio development standard under CLEP.
Clause 5.10 of CLEP is concerned with heritage conservation. The clause is pertinent because the St John's Church and cemetery land is occupied by a State heritage listed item. The heritage item name, according to CLEP (Schedule 5) is "St John's Church Group". In the same Schedule to CLEP, the property description is provided as Lot 1, DP 246268; Lot 2, DP 758217; Lot 1, DP 1037742, which cross-checks to include all of that area of SP2 zoned land shown in Figure 1 with the exception of the land subject to the current DA.
Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP) applies to the Site. With the exception of certain provisions relating to retention of significant views (Ex 1, p 15), Council is not contending contraventions of CDCP.

Proposal

The description of the proposal adopted in Ex 1 (p 2 et seq) was generally accepted by the Applicant (ACS, p 4 et seq). Below I provide an abbreviated version of this description: "(a) Lower Ground: Main entry area with foyer and reception area; café and outdoor seating area; pedestrian access from Sturt Street; internal parking for 14 vehicles; external at grade parking for nine at grade visitors; …; substation and hydrant booster along the Sturt Street frontage. (b) Ground: Two residents wings consisting of a total of eighteen (18) resident's rooms; dining room …; lounge area(s); gym; outdoor terrace area; … six (6) patient rooms... (c) Level 1: Dementia specific level. Two residents wings consisting of eighteen (18) rooms within each wing; … lounge areas …; an internal courtyard area within each wing; … dining areas …; activity/lounge area; … kitchen and back of house operations …; (d) Level 2: Two residents wings consisting of eighteen (18) rooms within each wing; … dining area(s) … lounge areas; activity/lounge area; … kitchen and back of house operations . (e) Hours of operation: 24 hours a day, 7 days a week. (f) Staff: 28 on-site staff at any one time, including shift change over. (g) Two (2) central lifts provide access to all levels. (h) Two (2) separate parking areas are proposed, one undercover car parking area consisting of fourteen (14) car parking spaces and one above ground parking area consisting of nine (9) car parking spaces accessed from Sturt Street. (i) Separate pedestrian access is proposed from Sturt Street ... Pedestrian access is not proposed from Innes Street. (j) Service vehicle parking and manoeuvring area and one minibus parking area accessed from Innes Street. (k) Combined ambulance bay/drop-off/pick-up area at the main entrance accessed from Sturt Street. (l) Private shuttle bus service to transport residents to and from shops and services. (m) LPG tank located within the Innes Street setback. (n) Access to the undercover car parking is controlled via a security gate and intercom control. Above ground parking is not proposed to be access controlled. (o) One block wall with building identification sign attached ("Southern Cross Care") is proposed adjacent to the main entry. (p) Security measures including the installation of CCTV cameras at the pedestrian and vehicular entry points. (q) Chain-link fence is proposed to be erected on the north-eastern property boundary. (r) (Certain nominated trees would) be retained on the development site. (s) (In accordance with an ecological assessment submitted with the amended development application, nest boxes would) be installed in trees within the site and two within trees on the adjacent site."
Amending plans were filed 28 September 2020, and generally following dialogue and recommendations from experts. These changes included moving the ambulance bay underground, reconfiguring parking with consequent landform terracing requirements, reducing the size of a colonnade and changes to finishes to the northern and western elevation.

Issues

With joint conferencing and subsequent plan amendments, contentions in regard to driveway arrangements and traffic, as well as those linking contamination and arboricultural concerns have been resolved. The contested issues between the parties came down to two: 1. heritage conservation - essentially in regard to suggested adverse effects of the proposal on the heritage significance of the St Johns Church Group 2. urban design - centred on the proposal's compatibility with surrounding land uses and streetscape character.
It will be seen that the height of the proposal is a considerable linking element between the two issues.

Hearing proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued 1 July 2020. More particularly, the hearing was conducted as a "virtual court room" with the assistance of the "Microsoft Teams" platform. In this instance the opportunity was taken to conduct a restricted inspection of the Site and context. There was limited attendance, and social distancing was employed.
I can also note here that I have reviewed submissions from objectors (Ex 3). Having done so, and in light of the various amendments which have been undertaken to the proposal, I am satisfied that the real issues warranting adjudication here are those relating to heritage conservation and urban design.
I will take the opportunity here to also list the experts providing evidence at the hearing. Issue For K Danis Heritage Applicant D Logan Heritage Council S Cox Urban design Applicant R Dickson Urban design Council

Documentation on heritage significance

The State Heritage Register ('SHR') Statement of Significance for the 'St. Johns Roman Catholic Church and Cemetery (former)' is (Ex Z): "St Johns Roman Catholic Church and cemetery is of State significance for its associations with the Catholic Parish of Campbelltown, the second oldest parish in Australia. It is associated with the pioneers of the early Australian Catholic church, especially Father John Therry who designed the building. Construction of the masonry building was commenced in 1825 but it was not completed until 1841. It is thought to be the oldest masonry Catholic Church building in Australia. It is associated with James Ruse and Matthew Healy whose graves are located in the cemetery."
The name "St Johns Church Group" is adopted for the heritage item in CLEP and forthwith, and for convenience only, I will refer to the item by that name. The experts advise that the Statement of Significance, relevant to the CLEP listing, was revised in the Campbelltown City Council Heritage Review (Paul Davies 2011) and the revised Statement is as follows (Ex 4, p3 and Ex 11): "St John's Catholic Church constructed 1825-1839 is the oldest remaining Catholic church building in Australia. The building is a unique structure as a Catholic church the construction of which began prior to the introduction of government financial support for Catholic church building and is one of the best and earliest surviving examples of the Colonial Gothic Picturesque style in NSW. It remains the finest surviving work of Father J.J. Therry's church building in the earliest days of the colony of NSW and contains some exceptional examples of Colonial craftsmanship such as early joinery and carpentry, early stonework and shell lime mortar. It is unique at a National level as evidence of Catholic church building in Australia prior to the introduction of government financial support for Catholic church buildings via the NSW Church Act of 1836. Old St John's has an exceptional setting on a hilltop overlooking the City of Campbelltown and is associated with a large Colonial period cemetery. It is an important Colonial landscape in a city where most of this heritage has been lost or obscured."

Some proposal particulars of relevance to heritage conservation considerations

The proposal would sit wholly outside the defined site boundary of the St John's Church Group, and all proposed building works are well setback from the common boundary at the northern half of the Site (i.e. closest portion to the Church building). Ms Danis indicated the development has been setback by approximately 27.5m to that boundary (Ex 4, p 6). When I scale from the site plan (Ex A, Drawing A200 - a small format drawing) the closest point of the proposed building would seem to be between 55m and 60m from the Church building.
All mature trees that contribute to the item's setting are retained. While the Applicant also notes that the roof of the proposal is significantly lower than the roof of the Church (illustrating the local topography), it is also relevant to compare the eyeline height of a person standing and looking out from the Church surrounds. This height is shown as RL 128.5 (Ex 6, Appendix H) a little lower than the "roof line" RL shown for the proposal (RL 128.6 - see e.g. Ex A Drawing A205, although the plans also show roof elements above that height).

Framing the issue

Clause 5(10)(4) of CLEP requires me to consider the effect of the proposed development on the heritage significance of the St Johns Church Group. The consideration of this "effect" requires attention to two main points: 1. Effect of the proposal on the outlook from the St John's Church forecourt area as a factor in the heritage setting of the item. 2. Effect of the proposal on the views to the St Johns Church Group (from outside).
In regard to the second point, I can say at the outset that I would find that the proposal is satisfactory, on balance, in regard to effects on the heritage significance of the St Johns Church Group in regard to views to it from outside the Site. There is some agreement that the views to the Church from wider afield including the Campbelltown CBD are not significant now, and I accept Ms Danis' evidence that any view impact from Blair Athol (another heritage item listed in CLEP) cannot be seen as significant.
Further, and having regard to the question of balance, which I return to in the conclusion, I would not place determinative negative weight on the affectation of the view to the St Johns Church Group, as experienced from Sturt Street, George Street and Innes Street. In regard to Sturt Street, the proposal's final architectural detailing and siting, tree retention near the road boundary and the distance of the Church from it, means that while there would be an adverse effect, it would not be sufficient of itself for a negative determination. The massing of the proposal would dominate the view of the St Johns Church Group in a relatively small spatial area. This means that from Sturt Street, for the most part, the St Johns Church Group would continue to be able to be "seen in the round" at the hilltop somewhat in the distance with significant open curtilage. There is a similar situation with regard to Innes Street, although the view is always narrower. In regard to perceptions from George Street, while the proposal would be viewed from certain areas, it is distant enough not to dominate the Church building.
The determinative matter is the first "point" above and I turn to it now.

Effect of proposal on outlook from the St John's Church north-west forecourt area

Ms Danis notes that the State-level heritage significance, as indicated in that listing's statement of significance, is limited (Ex 4, p6): "The significance of the St Johns Church at State level is recognised for its associations with the Catholic Parish of Campbelltown as the second oldest parish in Australia and for being the oldest masonry Catholic Church building in Australia together with its association with James Ruse and Matthew Healy whose graves are located in the cemetery."
The point here was that there was no reference to the church "setting" in the SHR listing. Ms Danis also references how the Campbelltown City Council Heritage Review ('2011 Heritage Review') also emphasised the historical value of the building itself. The point made here, by Ms Danis, was that none of these values, which must be seen as important factors contributory to the listing (relating to the church building as an historical element today or the historical individuals, parish-related factors or architectural particulars behind its construction), would be adversely affected by the proposal.
Ms Danis noted the fact that there was reference to the "exceptional setting on a hilltop overlooking the City of Campbelltown…" in the 2011 Heritage Review. Her opinion was that due recognition was given to this value with the proposal. This had occurred with the series of design changes undertaken in regard to the proposal, including in regard to "siting, bulk, mass articulation, height, location … and substantial setback from the common boundary". The setback distances were seen to provide a sufficient buffer between the Church and the proposed development. Because of the Site's topography the proposal would be seen as a two-level development rather than the actual 3 to 4 storeys.
Ms Danis noted that it was not uncommon to have development nearby to a heritage item of State or local significance: "(the) matter is to consider what aspects of the heritage item in its wider context will need to be conserved and to aim maintaining identified setting of the item" (sic) (Ex 4, p 7).
Some material was provided from the Burra Charter (2013) to assist in defining how "setting" might be interpreted, first referencing from Article 8, directly concerned with this topic: "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."
Then relating to Article 1.12 (Ex 4, p 7): "Setting is explained in Article 1.12 of the Burra Charter as may include: structures, spaces, land, water and sky; the visual setting including views to and from the place, and along a cultural route; and other sensory aspects of the setting such as smells and sounds. Setting may also include historical and contemporary relationships, such as use and activities, social and spiritual practices, and relationships with other places, both tangible and intangible."
Ms Danis believes that the fact that the Site (i.e. the land subject to the development application) was not included within the actual heritage listing (i.e. as part of the curtilage) "indicates that the subject site was not considered as part of its setting and was expected to be redeveloped" (Ex 4, p 7).
It is acknowledged by Mr Danis that the views out over the Site from surrounds of the Church building ("front south-western porch of the church" (Ex 4, p 6)) are "significant" (Ex 4, p16), however the impacts have been minimised by mitigation measures. The result is that (Ex 4, p17): "The height and roofscape articulation of the new development have been shaped and the height has been reduced to allow for the majority of the existing views from the Church towards the City to be maintained especially from the front of the Church to the northwest view cone (Ex 4 p15)" "(the) majority of the ridgeline beyond the Campbelltown city Centre will remain visible due to the increase setbacks from the church and from Sturt Street as well as the articulation of the building components particularly the roof form (Ex 4, p 17).
Mr Logan believed these views were historically significant and formed an important aspect of the siting of the Church. They were described as: "Near and expansive views from the Church to the north-west across the open park-like grassed surrounds to the town centre and landscape beyond."
He used material from the view impact analysis (Urban Design Strategy by Turner Studio - Ex F) to suggest that: "The development would place an intrusive element within the view, obstructing important connections between the Church and its surrounds, and diminishing its significance."
Mr Logan also referred to other material to support his opinions in regard to the historical significance of the view from the Church. Firstly, quoting from content within the Conservation Management Plan ('CMP') prepared for the heritage item itself (Ex 4, p 21), and secondly from the correspondence from Heritage NSW dated 17 July 2020 (included in Council's Bundle (Ex 2, Tab 23) and which I reproduce below: "The current expansive views from the Church's forecourt to the surroundings, especially to the north west are of high significance and contribute to the Church's setting. The impact of the proposed development on those views will be irreversible."

Consideration

The consideration here can be separated into two aspects. First is the extent of the loss of the view. The second is the significance of this loss. Consistent with the evidence, the point of attention needs to be the outlook from the Church surrounds, but particularly looking to north-west.

Extent of loss of view

The Applicant's visual analysis provide useful evaluative material of itself (included as part of the Urban Design Strategy - Turner, May 2020 Ex F; with critical material also provided in the photomontages behind Tab 4 to the Applicant's Bundle tendered as Ex X). This larger format material is difficult to reproduce here, so I reproduce the before and after imagery below, an excerpt from Ex 4, for contextual purposes rather than try to represent the impact perception. Figure 2 Photos from Joint Expert Heritage Report (Exhibit 4), pp19-20
For me, a core function of the visual analysis material was as a baseline for the physical inspection which occurred on the first day of the hearing. Viewer positions adopted in the visual analysis were visited during the inspection, with viewpoints identified as "VP1" and "VP9" the most critical points of attention, given their positioning to investigate the outlook from the Church to the north-west. VP1 was at the Church forecourt at the southern entrance, VP 9 was near the south-west corner of the Church building. The photomontages produced for VP1 and VP9, using contextual markers evident in the photos and on the ground during the Site inspection (e.g. existing trees and other structures) made it possible, during the site inspection, to get a good comparative sense of what existed now and what would remain afterwards with development of the proposal.
Both experts also spoke to the visual analysis during the Site inspection, and my interpretation was there was general acceptance of the factual particulars of what view would be lost and retained were the proposal to go ahead.
Ms Danis submitted in written evidence that "the majority" of the existing view to towards the north-west would be maintained (Ex 4, p 15 and p 17). However, even if this were the case in numerical terms this submission did not represent the true effect. It was clear to me that terminology used by Heritage NSW is correct and that an "expansive" view towards the town centre, and across the valley beyond, exists at present. It was also clear that, with the width and height depicted in the photomontages, the proposed building would obstruct the view significantly, taking a good part away from the sense of expansiveness or openness which now exists for that particular outlook.

Significance of the view loss

Both experts referenced the Burra Charter which, at Article 8, provides that "conservation requires the retention of an appropriate setting", suggesting a need for "retention of the visual and sensory setting" where appropriate as a contributing element to the cultural significance of a place. Ms Danis' evidence argues the proposal has achieved this. As indicated previously, I agree with her, generally, that the "hilltop setting" of the Church itself, as viewed from outside the St Johns Church Group, would not be unreasonably affected by the proposal. But I am not persuaded by Ms Danis' arguments in regard to the setting when viewing out from the Church surrounds, and the particulars of the view loss. I will mention here that I don't consider the fact that the Site was not included within the area subject to heritage listing in CLEP should be considered as a limiting factor in consideration of whether there has been an appropriate retention of the visual setting (see [36]), as a factor of cultural significance, when viewing out from the Church surrounds.
I am more convinced by Mr Logan's evidence, which came to a different conclusion in regard to the particulars of the view loss than that expressed by Ms Danis in her written evidence. Mr Logan's opinion was in alignment with my conclusion on-site. See [45]. But in my opinion, Mr Logan also provided a more robust justification for his opinion of the significance and historical relevance of the existing views, relying in part on other documentary material. He referenced the advice from Heritage NSW (cited previously) and commentary in the CMP, which I reproduce below (Ex 4, p 21 - an excerpt from the CMP was also tendered as Ex 18): "(the) most significant view from the subject site provides panoramic access to the Campbelltown area to the north-west (Figure 95). This is also considered a historic view and although the surrounding Campbelltown area has been built up over the years, this view is still readily discernible' (CMP p. 80)".
This noting, in the CMP, of the north-west view as "the most significant view from the subject site", it as "panoramic" and it as a "historic view", was significant to me.
A question in the evaluation of significance of the view loss in this matter is the different "statements of significance" in (1) the State Heritage listing and (2) the listing contained in the State Heritage Inventory and arising from the 2011 Heritage Review under Council auspices. Clearly, the State Heritage listing's statement (see [22] and Ex Z) does not suggest the St John's Church Group's setting as a justification for State significance. The statement of significance arising from the 2011 Heritage Review (under Council's auspices) and now represented in the State Heritage Inventory, makes direct reference to the "exceptional setting on a hilltop overlooking the City of Campbelltown" and the Site as "important colonial landscape in a city where most of this heritage has been lost or obscured" (see [23] and Ex 11, p 6).
The fact that the attributes designated as justification for State listing were not threatened by the proposal should not be seen as a justification for the proposal. Rather than seeing the "non-effect" on the State heritage listing attributes as opening the door to approval, it seems to me unreasonable to not draw a relationship between the two listings and the heritage significance attributable to each. That is to say, while it is clear that the proposal does not threaten those attributes of the St Johns Church Group seen as providing the justification for the State listing, the fact of the State-level listing can be seen to add to the significance of the attributes designated for local listing.
In my opinion, the proposal would take away significantly from the setting through its obstruction of the "historic" expansive view open to the north-west, still obvious and available from the Church surrounds and a clear factor in the heritage significance of the St Johns Church Group. I agree with Mr Logan that the current setting of the Church allows it to evoke an important historic ambience, which would be seriously and unreasonably impaired by the massing of the proposal generally, as a new foreground element, but particularly the top storey of the development which is the most affecting aspect in regard to the obstruction of the expansive nature of the view.

Design

There were three design related contentions raised in Ex 1 which can be summarised as follows: 1. Excessive and unacceptable building height (Contention 5) 2. Compatibility with surrounding land uses (Contention 6) 3. Compatibility with existing low density residential streetscape character of Sturt and Innes Streets (Contention 7).
I have already found at [51] that I believe that the proposed design provides for an excessive and unacceptable building height due to adverse heritage conservation effects.
I will briefly examine the compatibility question.
There was some agreement from the experts on desired future character for the adjacent and nearby low density residential lands. But no such agreement on how the question of compatibility might be framed for the SP2 zoned development site. Experts referenced different Court planning principles.
Mr Cox noted (Ex 6, p3): "The site is located within an SP2 zone with Seniors Housing shown as a permitted use. Having regard to the Planning Principles of Veloshin v Randwick Council [2007] NSWLEC 428, where the planning controls are aimed at creating a new character (Seniors Housing rather than low-density residential development as per the adjacent zone) and there are no controls related to bulk and character, the assessment of height and bulk should relate to whether the proposal looks appropriate in its context."
Mr Dickson referenced the Court's planning principle for development at a zone interface in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at [25] which in part provides: "As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone … Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. … Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like."
Mr Cox emphasised the setbacks of the proposed building (18m + to Sturt Street road reserve boundary and 6.5m + to the residential property boundary to the west) as being significantly in excess of the setbacks in place now for nearby development. More generally, according to Mr Cox, the set of photomontages (Ex X behind Tab 4) were seen to "demonstrate how the form integrates with the site and benefits from the site topography and existing landscape" (Ex 6, p 18). A townhouse design conception for redevelopment of 32 Sturt Street (i.e. adjacent site to the north-west) in accordance with the Low Rise Housing Diversity Code was provided (Ex 6, App J) which, according to Mr Cox, showed how views to the proposal would be limited further with future development of 32 Sturt Street in accordance with the desired future character of the area.
Mr Dickson's opined that (Ex 6, paragraphs as shown): "11. The proposed development in its current form fails to recognise the form of existing single and two storey residential development along Sturt Street and demonstrate how the proposal takes into consideration development likely to occur in the R2 low density residential zone (as anticipated by state and local planning instruments) given the excessive bulk and scale of the proposal presenting as four storey built form at the Sturt Street elevation. 12. In my opinion, landscape treatment should not be relied on to hide the apparent bulk and scale of a proposal. Although it may assist with concealing some bulk or scale of a development, in my experience landscaping has not been relied on in the planning principle for view sharing or parsonage in the assessment of development applications."
Mr Dickson goes on to suggest an alternative option which would in his view reduce height and bulk perception and address concerns relating to heritage conservation impact. Mr Dickson's conception would lower the overall building by some 3.2m and provide for a further breaking up of the building envelope. Other features include more direct pedestrian relationship with Sturt Street and increased excavation.

Consideration

I am not convinced that some kind of alignment with the local low density character, now and into the future, is what should be sought with a proposal on this SP2 zoned Site. I am also not of the view that a building which has an institutional look should be seen as a design failure of itself in this setting. The Veloshin test raised by Mr Cox is the appropriate one, that the building looks appropriate in its context.
As the proposed building presents in the plans before the Court, it would make for a very large and dominant building massing in Sturt Street. The height and building width would make for discordant elements in the Sturt Street streetscape. The top level, reasonably thought of as the fourth storey or higher when viewed from the lower side of the site in Sturt Street, which is of considerable massing, has a lot to do with this discordance.
But I also note there is a considerable setback to the road reserve boundary. This physical positioning of the building along with its architectural form (articulated block elements, colour system) and in regard to tree retention and landscaping, are all positive design features which work to offset the negative height and massing factors. Certainly, these design sensitivities indicate the potential for a large (although lower) building form to present as a positive architectural feature, "appropriate" in the streetscape given the SP2 context.

Finding

I agree with the Applicant that the appropriate evaluative approach to assessing heritage impacts is not to adopt a baseline stance that there is to be no impact. That is to say, Mr Logan is incorrect to suggest the protection of settings of heritage items is "enshrined" through the provisions of CLEP (Ex 4, p13). Heritage conservation is a most important component part of the NSW planning system, but it does often compete with other equally important environmental planning objectives. I agree with the Applicant that planning objectives relating to providing for seniors housing (in this case in the form of a residential aged care facility) as an element of community infrastructure, are important considerations, with this Site identified for that purpose under its SP2 zoning. I agree it is further notable that this Site does enjoy a "recent, highly specific" zoning (Applicant's Closing Submissions in Reply filed 14 October 2020, par 11).
However, the fact of the zoning itself certainly does not bring irresistible weight to any and all development applications. The findings of BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 were cited by both parties in closing submissions. I repeat a key finding of McClellan CJ here [118]: "In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts."
My finding here is that the proposal results in unacceptable environmental impacts. The central impact of concern is in regard to the effect of the proposed development on the heritage significance of the St Johns Church Group. The statement of significance relating to the local listing of the St Johns Church Group makes clear that the "setting on a hilltop overlooking the City of Campbelltown" is a factor in this listing (Ex 10). It indicates that the setting is "exceptional" (ibid). The Burra Charter indicates that conservation "requires the retention of an appropriate setting", and that "(new) construction that would adversely affect the setting or relationships (is) not appropriate."
As per the above considerations, I find that the proposal in its current form would have a severe and unreasonable effect on the heritage significance of the St Johns Church Group. While the proposal would bring certain environmental planning benefits, particularly in regard to the provision of seniors housing infrastructure, an ambition of CLEP for this Site, these benefits cannot be considered to outweigh the adverse impacts.

Costs

Section 8.15(3) of the EPA Act provides for orders for the payment of costs thrown away in certain instances. The following points can be made in regard to this contested issue:

Section 8.15(3) requires costs to be ordered other than in instances of a "minor amendment". That is to say, there is no discretion available.
The statute does not define the term "minor" and the onus is on the Applicant to show that the amendments are minor (S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 at [5]-[6]).

In Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 at [42], Pepper J determined a set of eight principles to assist in determining whether amendments are "minor" for the purpose of s 8.15(3) (then s 97B). While determining that the question of what is a minor amendment is a matter of fact and degree, the principles point to considerations such as: the cumulative or overall effect in context, whether a significant re-assessment was required; and that merely because the amendments are responsive to issues raised by the council or narrow the issues in contention, is not relevant to the determination of whether amendments are minor.
I believe that the changes to access and parking provisioning, including consequent changes involving tiering of retaining walls (with extension of the parking area to the south-east), as well as the architectural changes (in particular the changes to the colonnades), go beyond "matters of detail" Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 at [31]. These amendments brought about material changes to the proposal. For this reason, these amendments are not be able to be classified as minor, and in that case require an appropriate order as to costs thrown away by the Council.
The orders of the Court are: 1. The Applicant is granted leave to amend its development application to rely upon the amended architectural and civil plans filed with the Court on 28 September 2020. 2. The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is dismissed. 4. Development Application 440/2019/DA-SL for a residential aged care facility at 34 Sturt Street, Campbelltown is refused. 5. The exhibits are returned with the exception of Exhibits 1, G, J, L, M, N, O, P, Q, S, T, U, V.

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: 20 January 2021

(2004) 138 LGERA 237

(2009) 168 LGERA 260

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Cases Cited (9)