Stanton Dahl Architects v Penrith City Council

Stanton Dahl Architects v Penrith City Council - [2009] NSWLEC 1204 - NSWLEC 2008 case summary — Zoe

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The consent authority shall not grant consent to an application to carry out development for any purpose: (a) if any proposed building will be located on ridgetops or if it will intrude into the skyline when viewed from road or other public places, (b) unless it is satisfied that the proposed development will not adversely affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of any item of environmental heritage in the valley, (c) if services, in particular arrangements regarding the provision of water and disposal of effluent satisfactory to the requirements of the Water Board, are not adequate or will not be provided in a reasonable time, (d) unless it is satisfied that the proposed form and sitting of buildings, colours, landscaping, and building materials are appropriate for the rural character of the valley and are consistent with the Design and Management Guidelines or their intent, (e) if any proposed development will detract from the vistas of an item of environmental heritage as documented in the Design and Management Guidelines, (f) unless it is satisfied that the development will not be exposed to unacceptable risk from bushfires, (g) if extensive areas of vegetation will be cleared, (h) unless it is satisfied that the agricultural viability of holdings and potential of the land will not be adversely affected, (i) unless it is satisfied that Aboriginal and European archaeological material on the land will not be adversely affected, (j) unless it is satisfied that the view from Mulgoa Road will not be adversely affected, (k) unless it is satisfied that the rural setting of Mulgoa village will not be adversely affected, (l) unless it is satisfied that development and its access will not be exposed to unacceptable risk from flooding, (m) unless it is satisfied that the development will not adversely affect the hydrology of Mulgoa Creek, and (n) unless it has considered any Development Control Code prepared pursuant to clause 17, (o) unless it is satisfied that the proposed development is appropriate for the size and shape of the land to which the development relates, (p) unless it is satisfied that the proposed bulk, scale, shape, size, height, density, design and external appearance of that development is appropriate for the rural character of the valley, (q) unless it is satisfied that the proposed development will not adversely affect the amenity of the area, and (r) unless it is satisfied that adequate provision has been made for the landscaping of the land to which that development relates and it has considered whether any trees or other vegetation on the land should be preserved. 15 Clause 15 of SREP 13 provides:

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(a) to conserve the rural, heritage and natural landscape of the valley, (b) to provide for the development of agricultural, residential, tourist and recreational land uses which are compatible with the rural and natural landscape and heritage of the valley, (c) to protect the visual amenity of the valley, (d) to avoid fragmentation and alienation of prime agricultural land, (e) to maintain the low density of rural settlement, and (f) to allow for the development and maintenance of the Warragamba-Prospect water supply facilities. 19 Mr Hemmings, for the applicant, submits that cl 20 would permit development which is not permissible within the zone and that therefore the objectives of the Rural Conservation zone are of little relevance and that this is reinforced by the words except as otherwise provided by this plan in cl 8(3). He submits that the objectives of the plan and the zone are not ignored but that there is no requirement to find a positive finding of consistency with the objectives. Mr Robson appeared to accept this submission referring to it being similar to the way objectives are considered under existing use rights. 20 We accept Mr Hemmings submission. Clause 8(3) requires consistency with the objectives of the plan and the zone except as otherwise provided by this plan. Clause 20 provides, subject to the satisfaction of certain criteria, the use of land that would otherwise not be permissible within the zone. A finding of consistency with the zone objectives is therefore not required, however, we consider that they, and the objectives of the plan, are relevant to the merit considerations of the application, particularly in assessing the impact on amenity of a development within the Rural Conservation zone. Sydney Regional Environmental Plan No. 13 - Mulgoa Valley - Design and Management Guidelines. 21 Clause 12 of SREP 13 requires a consideration of the Design and Management Guidelines (the Guidelines) in relation to the form and sitting of buildings, colours, landscaping, and building materials and vistas of an item of environmental heritage.

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a) delete or move and reduce in size the multi purpose hall so that it does not visually impact on the church and its setting (perhaps to the area of the playing field). b) the northern car park is to be reduced in size to accommodate the minimum number of spaces required for the church and to reduce the visual impact on the church and its setting and on the Cumberland Plain Woodland (CPW). If possible, provide access only via the current entrance and not through the school (the car park may be used for overflow parking for the school). The car park should be detailed to be informal with landscaping and minimum hard surfaces. c) the playing field should be reduced in size and the netball fields moved further to the south to retain more CPW, provide a buffer and greater connectivity of the CPW on the eastern part of the site with the CPW to the west of the site. d) the southern car park is to be reduced in size, if possible, to accommodate only the minimum number of spaces required for the school. e) the hard surfaces such as the bus bay, roads and footpaths should be minimise f) while taking into account the need to provide disabled access, the extent of cut and fill and the use of podiums should be minimised. g) the size of the buildings should be reduced through measures such as hipped rooves and breaks in the length of wall h) the inclusion of the demolition of the church hall, rectory and toilet block and the construction of the northern car park as part of Stage 1. 36 The Directions also required further information including background noise monitoring, a draft heritage agreement and a voluntary planning agreement for the retention of CPW and further joint report of the experts on the amended plans and outstanding contentions. 37 The hearing resumed on the 11 March 2009. The Court granted leave for the applicant to rely on amended plans and to reopen the hearing for further evidence on the amended plans. The proposal 38 The amended proposal is for the staged development of the Mulgoa Anglican Primary School for a maximum of 360 pupils and parking for 90 cars. Stage 1 will be for approximately 90 students and 8 staff with parking for 30 cars. It is anticipated that the stages will be completed over a five year period depending upon demand. St Thomas Church is to be used as a school chapel and be also available for use by the parish for services and ceremonies such as weddings and funerals. Conservation works and ongoing maintenance of the Church are part of the proposal as well as conservation, rehabilitation and regeneration of CPW. 39 The application seeks approval for a masterplan for the site and approval for the construction of Stage 1. 40 Stage 1 includes: · Demolition of the toilets, hall and rectory associated with the Church. · Construction of a new church hall and modification of an existing parking area for church parking. · Construction of an administration and kindergarten module. · PE court which is to also be used for am and pm parking. · Playing area · Driveway, and bus set down and pick up areas and carpark · Landscaping 41 The masterplan includes: · Stage 2 classroom module · Stage 4 classroom module and carpark · Stage 5 hall with stage and canteen and PE court · Stage 6 classroom module and carpark. 42 The masterplan also includes a playing field, assembly area and amphitheatre but the staging of these is not specified. A landscape masterplan provides details of landscaping and CPW works. The staging of this work, other than the landscaping associated with Stage 1, is not specified. The evidence 43 The Court visited the site and heard evidence from a number of residents whose principle concerns were that the proposed school was not permissible in the zone. Further, the school would affect the rural character of the area and was in conflict with the aims of SREP 13, which sought to conserve this character. The scale of the development was considered to be excessive and impacts on flora and fauna and visual and noise pollution were also matters of concern. There were specific concerns about the increased traffic and the necessity for road upgrading which was considered to be not consistent with the rural character of the area.

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47 The Court heard expert evidence for the council from: · Mr Atkins, on acoustic issues · Mr Wickham, senior planner of Sydney Water on hydrological issues · Mr N Dickson, on planning issues · Mr R Moore, on heritage issues · Dr Wotherspoon, on ecological issues 48 The Court heard expert evidence for the applicant from: · Mr Fattoreto, on acoustic issues · Mr R Gruber, on hydrological issues · Mr N Ingham, on planning issues · Mr P Davies, on heritage issues · Mr D Fanning, on ecological issues 49 At the resumption of the hearing, the Court heard evidence on the amended plans and associated matters for the Council and for the applicant from all the expert witnesses except from Mr Wickham and Mr R Gruber. Permissibility 50 The council initially raised a contention with the adequacy of the statement of heritage impact and statement of economic viability and their consideration under cl 20(2) of SREP 13. Council did not press any issue in relation to the adequacy of these documents or permissibility of the proposal in relation to the satisfaction of cl 20(2). We find that, given the evidence of the experts, the statement of heritage impact and statement of economic viability are adequate. 51 Mr Robson SC, for the council, submits that the proposal does not gain permissibility under cl 20(3) of SREP 13 as the Glebe land is not an item of environmental heritage under SREP 13. In summary, he submits that an aim of SREP 13 is to identify and conserve the environmental heritage of Mulgoa. The definition of an item of environmental heritage includes buildings and places, identified on sheet 2 of the Heritage map. St Thomas Church is identified in the key to the Heritage map. The dashed line, which surrounds both the Church land and the Glebe land, in his submission, does not identify the whole of the place as an item. Mr Robson supports this argument by the reference in cl 11 of SREP 13 to the St Thomas Church PCO 426. The PCO was gazetted in January 1986 and SREP 13, including cl 11, was gazetted in December 1987. In his submission, the listing in SREP 13 would reflect the PCO listing. 52 Mr Robson further submits that the proposal does not gain permissibility under cl 20(3) of SREP 13 as it proposes the erection of a building which is not permitted by the cl 20(3). 53 The "chapeau" to cl 20(3) provides that:

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The consent authority may grant consent to the use, for any purpose, of a building that is an item of environmental heritage, or of the land on which the building is erected, even though the use would otherwise be prohibited by this plan, if it is satisfied that…. 54 Mr Robson refers to the definition of "development" in s4 of the Act, which includes "the use of land", "the subdivision of land", "the erection of a building" and "the carrying out of a work". He submits that "the use of land" constitutes one of the elements, which comprise the definition of development. It may not be substituted for other elements of the definition. Clause 20(3) refers to use, for any purpose, of a building…. or the land. This, in Mr Robson's submission, does not permit "the erection of a building" or any other components of the definition of development. If this were the intention the clause would have used the term "development". Clause 20(3) permits a heritage building or the land on which the building is erected to be used for a purpose, which would otherwise not be permissible under the zoning. It does not permit the "erection of a building" for a use that is not permissible in the zone. 55 Mr Hemmings, for the applicant, submits that the approach to be taken to the interpretation of cl 20 of SREP 13 is described as remedial, beneficial or facultative. He submits that such provisions should be interpreted as widely as the language will allow. In his submission, cl 20(3) facilitates the conservation of the item of environmental heritage by permitting the use of the land for an otherwise prohibited purpose. It is a beneficial and facultative provision and should be read widely. 56 In Mr Hemmings submission, the aims of SREP 13 through cl 20 are to conserve items of environmental heritage, which are identified in SREP 13. The identified item of environmental heritage is shown on the heritage map within the hatched line, this includes both the Church land and the Glebe land, which have different components and different levels of significance but are both part of the item of environmental heritage. The interpretation of "the chapeau" of clause 20(3) should not be limited to the use of the building or the land within the definition of development. Such an interpretation is too restrictive and does not facilitate the conservation of the item of environmental heritage, which may include buildings, graves and landscape elements. 57 Mr Hemmings urged the same beneficial and facultative approach in the interpretation of cl 20(3)(c) of SREP 13, which should not be read as requiring proof that the application is the only way the building will be conserved. 58 Mr Hemmings supported his submission with reference to decisions by Lloyd J in Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC106 and Currey v Hargraves & (2) Ors [2007] NSWLEC 471. In Hallidays Point His Honour considered the interpretation of State Environmental Planning Policy (Seniors Living) 2004 and stated at par 28:

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Item of environmental heritage means those buildings, works, relics or places of historic, scientific, cultural, social, architectural, archaeological, natural or aesthetic significance for the Sydney Region identified on Sheet 2 of the Map. 66 While the St Thomas Church building is clearly of heritage significance other elements on the site are also of significance, including the cemetery, the gates, the archaeological relics, the rural setting of the place, the historic association of the Glebe land to the Church land and to Fernhill and the Cottage. The heritage experts discussed the varying degrees of significance and concluded that the Glebe land was of heritage significance as some of the physical fabric was located on this part of the site; it had historical significance and provided a rural setting for the church. The experts did not support the removal of the Glebe land as heritage item under the draft LEP. 67 Clause 20(3) refers to …..the use, for any purpose, of a building that is an item of environmental heritage or of the land on which the building is erected….. We find that the land upon which the building that is the item of environmental heritage is erected includes both the Church land and the Glebe land. Both of these lots are identified on the Heritage map and both are of heritage significance for the Sydney Region. 68 As we understand Mr Robson's submission, development for the purpose of an educational establishment is prohibited in Zone No 1 Rural Conservation. The building that is an item of environmental heritage (St Thomas Church) and the church land may be "used" for the purpose of an educational establishment, subject to meeting the criteria in cl 20(3). However, "the erection of a building" or " the carrying out of work" for the purpose of an educational establishment would not be permitted as cl 20(3) refers to "use" and not to "development" as defined under s4 of the Act. 69 If Mr Robson's submission is correct St Thomas Church may be used for the purpose of an educational establishment under cl 20(3) but the carrying out of any work for the purpose of an educational establishment would remain prohibited. Similarly, the land upon which St Thomas is erected may be used for the purpose of an educational establishment but the carrying out of any work or the erection of a building for the purpose of an educational establishment may not. We find this to be a very limited interpretation of the clause that would be inconsistent with its purpose to be a conservation incentive for items of environmental heritage and would not achieve the conservation aims of SREP 13. 70 We accept that cl 20(3) is not clear and that the wording of the incentives clause in the draft LEP refers to development rather than use. While dealing with a different heritage incentives clause the decision of Cowdroy J in Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662 offers some assistance. His Honour concluded that

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18 Based upon such interpretation the word "use" contained in cl 50(1) of the LEP is to be interpreted liberally to include "development". Whilst the council relied upon the definition of "development" as contained in the EP&A Act, the Court is satisfied that the word "use" is not to be construed in accordance with that definition. To do so would result in an interpretation which would be unduly narrow and which would provide negligible scope for the operation of cl 50(2) of the LEP. That is, if cl 50(1) of the LEP only applied to use in the sense submitted by the council, cl 50(2) which provides an additional concession for the development proposed in cl 50(1), would have limited operation, taking into account the nature of that development. 71 His Honour's decision relied on the relationship between the two parts of cl 50 and is different to this case; however, his opinions about a "unduly narrow interpretation" and "negligible scope for operation" are relevant to the facts of this case. Mr Moore and Mr Davies, while holding different opinions about the merits of this proposal, accepted that the church and the land could potentially be used for a purpose other than what is permissible in the zone, such as a function centre. They both recognised that this may involve the erection of further buildings on the site to facilitate the conservation of the item. They also recognised that such a use would involve works being carried out to the existing building. None of the experts interpreted cl 20(3) as prohibiting the erection of a building or the carrying out of work for a purpose which may not be permissible within the zone. The principle concern was with the merits of the proposal and whether it satisfied the tests in cl 20(3). Clause 20(3) tests 72 The parties held different opinions on whether the proposal met the tests in cl 20(3). These tests are: (a) the proposed use would have little or no adverse effect on the amenity of the area 73 The key amenity effects raised by council relate to the impact of noise from both the school use and traffic and the compatibility of the proposal with the rural character of the area.

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This generally provided a conservative assessment of noise impacts because as the school develops over time (particularly in developing areas such as Mulgoa) background noise levels would be expected to increase. This assessment assumes that the background level remains at the current level. 78 The experts prepared a further joint report (Ex BB) in which Mr Atkins agreed that the ECRTN was the appropriate goal for assessing vehicle noise and that the goal for assessing on site noise was the Industrial Noise Policy (INP). · Road noise 79 The ECRTN provides noise goals for generated traffic noise at residential facades. The daytime goal (7am - 10pm) for collector roads is 60LAeq(1hr) and for local roads the goal is 55LAeq(1hr). The ECRTN guidelines also permit an increase of up to 2dB(A) where it is not feasible or reasonable to reduce noise levels to the noise goals. 80 In the joint report, the experts agreed that if St Thomas Road (south) were classified as a collector road, the traffic noise levels would comply with the ECRTN noise goals at all receivers. Mr Atkins maintained his opinion that the road was classified as a local road although he acknowledged that it served a collector road type function. Therefore as a local road, it did not meet the goal in ECRTN. Further, he questioned the appropriateness of the ECRTN goals given that the school use was not permissible in the zone and the test in cl 20(3)(a) was that the proposed use would have little or no adverse effect on the amenity of the area. Instead, he examined the increase in noise levels above the existing background noise. This approach was different to the approach he had taken in the first joint report where he accepted the standard in the ECRTN. 81 Mr Fattoretto stated that, based on the evidence of Mr Varga, the road was functionally a collector road and that the proposal therefore complied with the goals in the ECRTN and would therefore not adversely impact on the surrounding receivers. He stated that the existing noise levels were irrelevant to the determination of functional category of a road under the ECRTN.

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85 In the absence of any specific controls for schools, Mr Fattoretto adopted the goals in the INP but he stated that the INP related to industrial noise and that schools and similar facilities should not be assessed in the same way as a factory. He referred to the Association of Australian Acoustical Consultants (AAAC) Child Care Centre Noise Assessment technical guideline, which provides a background plus 10dB(A) assessment objective where external play is limited to 2 hours per day. In his opinion, this criterion was also applicable to outdoor play in schools. Nonetheless, the noise modeling of the proposal met the more stringent control in the INP of background plus 5dB(A) when measured 30m from a dwelling, which is where noise level is measured for rural properties under the criteria. 86 Mr Atkins acknowledged that he had adopted the AAAC approach in his assessment of other schools such as in the appeal Mohamed El Dana v Bankstown City Council [2008] NSWLEC 1484, but distinguished his different approach on the basis that the school in Mohamed El Dana was permissible within the zone whereas the proposal relies on the incentive clause and a positive finding of little or no adverse impact. Mr Fattoretto stated that noise criteria seek to ensure no adverse impact on residential properties. 87 Mr Atkins also raised concern that some of the modeling only just complied with the INP noise goal and that if more children were outside than modeled the noise levels would increase. Further he noted that in some cases the property boundary is greater than 30m from the dwelling (receivers 3 and 6), and the noise levels at these boundaries did not meet the INP noise goal. 88 The experts agreed that noise barriers and mounds would reduce noise by about 1-2dB(A). In Mr Fattoretto's opinion these were not required. The school would not have the number of children modeled until Stage 4 of the development, at which stage a further assessment of background noise and levels could be undertaken to assess whether measures such as screens or limitations on numbers of children playing outside and periods of outdoor play were required.

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Findings 93 Clause 20(3)(a) requires an assessment of whether the proposed use would have little or no adverse effect on the amenity of the area. Only if the consent authority is satisfied that the proposal would have little or no adverse effect on the amenity of the area can it grant consent to a use that would otherwise not be permissible. 94 The test does not require a finding that there will be no effect or change in amenity. A change or effect may result that is not necessarily adverse or there may be an adverse effect, which is assessed as being of little consequence. The test also requires that the adverse effect be on the area, which is not limited to the site itself or its immediate vicinity. 95 Mr Robson submits that in applying this test a cautious approach is required and that the test does not seek mere compliance with the criteria normally employed to assess matters such as noise. He draws a distinction between the assessment required under cl 20(3)(a) and that required under cl 12 of SREP 13. 96 The test in cl 20(3)(a) requires an assessment of whether an effect is adverse. The established criteria are the appropriate method to determine the extent of effect. We accept Mr Fattoretto's evidence that the purpose of noise criteria is to limit adverse effects on residential amenity as a result of noise. This does not mean that there will be no effect but if there is compliance with the criteria it will not be adverse. · On site noise 97 The proposal complies with the ACCC guidelines and the more stringent INP criteria. We note that the noise assessment goals for noise from the school are based on background noise. In a rural environment the background noise will generally be less and therefore the criteria is sensitive to the nature of the area. 98 The noise generated by the school at full capacity from children using the outdoor areas will not exceed background plus 5dB(A) within 30m of a dwelling. At those property boundaries which are greater than 30m from the dwelling the noise is under the ACCC criteria of background plus 10dB(A) for 2 hours. Due to the distance of the properties from the school and the intermittent use of the outdoor areas during the week and during the year, we accept Mr Fattoretto's evidence that there will be no adverse effect on the use of the dwelling and its surrounding area. There will be some adverse effect closer to the property boundary of receivers 3 and 6 but this effect is not sufficient to constitute more than a little adverse impact on these properties or an adverse effect on the area. 99 Mr Atkins concerns in relation to greater numbers of children playing outside would not arise until Stage 4 of the development, if at all, and can be dealt with through management of children numbers and periods of play and screening. 100 We accept that there is no requirement to provide noise barriers. However, noise should be monitored before the construction certificate for Stage 4 is issued to determine whether any noise mitigation or management measures are required. We note that the horizon for development of the school is over a number of years and that the noise environment may change over this period. The noise assessment is a conservative approach based on the full capacity of the school and the existing noise environment in an area where it is not unreasonable to expect that background noise levels may increase. · Road noise 101 We accept that Mulgoa Road (south) serves the function of a collector road as it joins two sub-arterial roads; Mulgoa Road and Northern Road. The proposal therefore complies with the noise goals in ECRTN. There will be an increase in noise levels along St Thomas Road (south) between Mulgoa Road and the school entrance (a distance of approximately 100m) as a result of the increase in traffic numbers during the am and pm peak. There will also be a decrease in the speed of cars using this section of the road due to the school zone which will mitigate to some extent the noise increase. Two houses (receivers 1 and 5) and the child care centre (receiver 2) are along this part of Mulgoa Road (south). We accept that even though the proposal complies with the ECRTN goal there will be an adverse impact on these properties but this effect is not sufficient to constitute more than a little adverse impact on these properties or an adverse effect on the area. Again we note that the increase is based on full operation of the school which will occur over a number of years and that the traffic numbers may also increase during this period independent of the school. · Rural character 102 The proposal is located centrally in the Glebe lands and is set back significantly from the church, the adjoining house and the roads. It will not be viewed from Mulgoa Road and there will only be glimpses of the school from St Thomas Road (south). The proposal will remove the existing rectory, hall and toilet block and thereby improve the outlook from St Thomas Church. The proposal will not change the rural character of the immediate vicinity of the site or the area and therefore not adversely effect the amenity of the area. 103 The concerns raised by Mr Dickson in relation to the internal impacts of the proposal would also not constitute an adverse effect on the amenity of the area. The proposal meets the functional requirements of a school and we are satisfied is of appropriate form, sitting, colours, landscaping and materials for the rural character of the valley and is consistent with the Guidelines as required by cl 12(d) of SREP 13. The concerns raised by Mr Dickson would not warrant refusal of the application or amendments to the proposal. 104 We find that the proposal meets the test in cl 20(3)(a) as it would result in little or no adverse impact on the amenity of the area. The extent of adverse effect would not, in our opinion, be sufficient to mean that consent could not be granted to the use of the site for an educational establishment, even though the use would otherwise be prohibited by the plan. 105 Further, the proposal meets the development criteria in cl12 (d), (j), (k), (p) and (q) which were raised as contentions by council. (b) the proposed use would not adversely affect the heritage significance of the item of environmental heritage 106 St Thomas church was built in 1838 on land, which was part of the Cox family holdings, given to the Anglican Church for the erection of a church, a rectory and a school. The Cox family was significant early settlers in the area and the church and graveyard comprise part of the historic Mulgoa group of properties, which also includes the colonial residence of Fernhill and the Cottage. The three properties are listed on the State Heritage Register. The church is an exceptionally fine and important colonial building and the church in its setting has important aesthetic and historic values. The graveyard contains significant gravesites associated with the history of the district. The significance of the Church and its setting have been recognized for a long time, as indicated by its listing on the Register of the National Estate and of the National Trust and by the placing of an early Permanent Conservation Order on it. The alignment of St Thomas's Road is also of heritage significance. The northern part of the road retains much of its original appearance and significance and the whole road is proposed for listing in the draft Plan. 107 Mr Moore and Mr Davies generally agreed on the heritage significance of St Thomas Church and the Glebe lands. Although Mr Davies gave more importance to the use of the item as a church and its social significance and Mr Moore considered the aesthetic and historic values of the church and its setting to be its prime significance. The experts therefore disagreed on the impact of the proposal on its significance. 108 The Court agrees with the heritage experts that the area of heritage significance extends over the areas encompassed by the previous Cox's estate, including The Cottage, Fernhill, St Thomas's Church and Cemetery, and the Glebe land. Heritage significance is not confined to the buildings but extends to the cultural landscape of the original estate.

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St Thomas' is one of a handful of surviving Anglican churches in New South Wales dating from the early decades of the 19th century. The church is the first to be erected in the colony following the introduction of Governor Bourke's 1836' Church act' which made government subsidies available for the election of churches and parsonages. St Thomas' Church and graveyard is a relatively intact example of the 19th-century concept of parish church and churchyard. The Church and its surrounding graveyard, located on a relatively unspoilt site in the historic Mulgoa Valley, has great aesthetic appeal, and its setting has the ability to demonstrate the atmosphere associated with an important country church and burial ground of the mid-19th-century. The church is an interesting idiosyncratically designed ecclesiastical example of Tudor architecture, and is believed to be the only known work of the architect James Chadley. The church is the earliest known Australian example of hammer-beam roof construction, so strangely designed that it appears almost experimental. The use of tall poles to support the bell inside the stone tower is a very rare example of this form of construction, and is possibly unique at a state or national level. The church possesses a small organ which is a fine example of the work of the eminent English organ builders, J. W. Walker &Co. The graveyard contains a wide range of iron grave surrounds, and several individual monuments which display a high degree of skill in their design and execution. The historic disposition of the land set aside for church and parsonage in the early 1800s have been largely retained, and can readily be interpreted because of the present layout of nearby roads. Due to the relative low scale of development within the Mulgoa Valley, the church and graveyard retain important historical and physical associations with several early colonial homesteads -- Fernhill, Glenmore, the Cottage and Winbourne. The church has been used continuously for public worship according to the rites of the Church of England for almost 160 years, and is today the parish church of a lively Anglican congregation. 111 The elements of significance outlined in the Statement of Significance remain essentially the same except that the church is no longer the centre of a lively Anglican congregation, though it is still used for Anglican religious services. 112 In considering these varied elements of significance, Mr. Davies and Mr. Moore differed in the emphasis they placed on them. For Mr. Moore, the paramount significance of the item rested in its historic and aesthetic value, and particularly the extent to which it retains an air of 'rurality' and isolation. Mr. Moore quoted the Conservation Plan to support his view:

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The principal heritage significance of the place is as an operating Anglican Church and uses for the site that allow this are preferred. 114 Because of this difference of emphasis, Mr. Moore's view was that the proposal had the potential for a serious adverse impact on the place, by threatening the important aesthetic qualities and by affecting both the immediate setting and the larger setting of the heritage group. Mr. Davies, on the other hand, was of the view that the proposal would not adversely affect the significance of the Church in its setting, and that it had the potential to conserve and enhance the significance of the item by providing the opportunity for assurance of ongoing maintenance and use for Anglican worship. 115 From the evidence, it is possible to draw conclusions about the potential positive and negative effects of the proposal on the heritage value of the item. This is relevant in determining whether the proposal would adversely affect the significance of the place as an item of environmental heritage. 116 The proposal will have the potential to enhance or contribute to securing the conservation of the heritage values of the item in the following ways: · funding for current necessary repairs to the church and graveyard, and of ongoing maintenance and necessary major repairs into the future, · an approved regime of maintenance and care for the church and Cemetery, · provision of security and care - taking facilities, · removal of elements which according to the conservation plan presently significantly affect the historic and aesthetic values of the church and Cemetery, including the toilet block, the burnt out Rectory, and the present church hall, and the removal of cars from their haphazard parking positions in the immediate vicinity of the Church (on a disturbed Aboriginal site), · enhancement of the social value of the item by the security of an ongoing long term traditional use of the church for Anglican worship, both by parishioners and by the school students, · security of church furnishings and internal fit out, and provision for their upkeep, and · maintenance of the historic Glebe land as one parcel, in the same ownership, with that ownership associated with the church. 117 Conversely, the proposal has the potential to adversely affect the heritage significance of the item in the following ways: · the scale and proximity of the development may adversely affect the setting and appreciation of the heritage values of the church and Cemetery and their landscape. · In particular, the visual and aural impact of the development may mean that the current experience of the Church and Cemetery in a rural and peaceful setting would be affected.

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135 In considering these complex and potentially conflicting issues, the Court, as well as considering relevant planning instruments, has had particular regard to the relevant elements of the Burra Charter. In the Burra Charter emphasis is given to finding a conservation solution that respects all the heritage values of a place. In the case of St Thomas, the aesthetic and historic value of the Church and its setting, and its continued use as an Anglican church and a centre of church activity over a long period of time, giving it current social value, are equally important elements of its cultural significance. 136 We have also considered the draft Heritage Agreement, which establishes a fund for the ongoing maintenance and conservation of the item listed under the SHR. We note that the agreement is ultimately between the Minister and the owner, however, it should also include the requirement to comply with the Conservation Plan and an ongoing commitment to the continued use of St Thomas as a school chapel and for parish services. The use of St Thomas as a church is a fundamental element of its significance and a principle reason why we have found that the impact on the heritage significance to be acceptable. 137 The amended proposal ensures continued traditional use, maintenance and upkeep of the Church and its setting, without adversely affecting the other heritage values of the item of environmental heritage. On balance it enhances the heritage significance of the item and meets the test in cl 20(2)(b) of SREP 13. The proposal also meets the considerations in cl 9 and cl 12(b), (e) and (i) of SREP 13. (c) the conservation of the building is unlikely unless the consent authority grants consent as referred to in this clause 138 The Court interprets the phrase conservation of the building in a wide sense, to mean conservation of all the elements of heritage significance which the Church and its setting possess. This is in accordance with the evidence of both heritage experts and with Burra Charter practice. 139 The present situation is that the parish cannot provide for the upkeep of the church, cemetery and its grounds. Mr Davies's evidence indicates that the church is no longer the official parish church, the centre of parish activity has moved elsewhere, and adequate funds are not available for its upkeep from parish resources, including the funding available from a bequest (the Davey Fund). There is no funding to rebuild the parish hall and the donations to the parish are not sufficient to support the stipend for the parish priest. Vandalism is already a problem. Conservation of the building is therefore unlikely if the site is to be used solely as a parish church. There is no evidence that funding by the Anglican Church Property Trust Diocese of Sydney, the previous owner of the site, will support the ongoing conservation of the building. 140 The church has been sold to the Anglican Schools Corporation, which has an agreement with the parish for upkeep of the Church and its continued use. In the event that the proposal for the school is not approved the Anglican Schools Corporation has indicated that it would not retain the site and its agreement with the parish would cease. Conservation of the building is therefore unlikely if the application is not approved unless there are likely alternate proposals. 141 The Court questioned whether the Heritage Act could be of use in ensuring the conservation of the heritage item. Under Division 5 of the Heritage Act, minimum standards of maintenance and repair may be imposed on the owners of an item listed on the SHR to prevent demolition or significant damage by neglect. These standards may relate to the protection of the building from weather and from fire, security to prevent vandalism, and essential maintenance and repair to prevent serious or irreparable damage or deterioration. However this clause does not guarantee effective long-term conservation and maintenance and would ensure only a minimum amount of low level maintenance and other measures which will over a relatively short time be likely to result in gradual deterioration of fabric and loss of traditional use. 142 Another option would be to find an alternative use for the church such as a function centre or dwelling, Mr. Moore considers this to be a regrettable but a more desirable outcome for the conservation of aesthetic significance than the effects of the proposed development. But this course of action is uncertain, and would in the opinion of the Court have an undoubted significant impact on other elements of significance especially historic significance, intactness of church interiors and furnishings and in particular social and spiritual values associated with continued use. Under this scenario, the church would no longer be a consecrated Anglican place of worship. 143 An earlier option canvassed for the conservation of the Church was to subdivide the Glebe land and to use the proceeds from the sale of these parcels to establish a fund for the upkeep of the church and graveyard in its bushland setting. This was previously proposed and as we understand, given initial favourable consideration by council. However the ownership of the Church and Glebe land has now changed, the minimum size of an allotment for a dwelling house under SREP 13 is 20ha and dwelling houses are not permissible on the site under the draft LEP. Council's current attitude to such a future proposal, should it arise, is unknown, and was not presented at the hearing. Such a solution in any case would be unlikely to guarantee the church's security, or continued use by the Anglican Church.

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The disagreement centered on whether cleared areas comprised CPW. They agreed that areas with a native seed bank of greater than 50% would naturally regenerate as CPW over time. Dr Wotherspoon considered the mown areas met this criterion and were therefore CPW. Whereas, Mr Fanning considered that these areas would only regenerate with significant intervention and were therefore not CPW. They also held different opinions on whether the Asset Protection Zone (APZ) would retain ecological value as areas of CPW. Consequently they held different opinions on the extent of CPW on the site and the areas that would be impacted upon by the development. They both agreed that an offset should be provided for the loss of CPW but disagreed on the amount and whether it should be off site. 148 On the basis of his criteria of CPW, Dr Wotherspoon concluded that there was about 1.5ha of CPW that would be either removed or impacted upon by the development and the APZ such that it would require an offset. Further, he considered that the offsets proposed on site for conserving, rehabilitating or regenerating CPW were not adequate. In his opinion, the development did not remove the threat from these areas and it was therefore inappropriate that they be included as offsets. He stated that the development would impact on the areas to be retained, as it was a large development in the centre of the site, which would have edge effects. He acknowledged that the in principle Vegetation and Fauna Management Plan (VFMP) was adequate and would mitigate effects of the development and the occupation of the site. Nonetheless in his opinion the proposal would result in a net loss of the ecological value of the site and an offsite offset should be provided. 149 Dr Wotherspoon considered that the importance of offsetting the impact of the development was increased by the recent preliminary determination of the NSW Scientific Committee for CPW in the Sydney basin bioregion as a proposed critically endangered ecological community. Further, he considered the area of CPW on the site gained increased importance due to its connectivity with other areas of CPW to the west, across Mulgoa Road. 150 In Mr Fanning's opinion, the area of CPW to be removed was about 0.41ha with a further area of about 0.32 ha of CPW to be managed as APZ. Mr Fanning considered that the CPW to be managed as APZ would retain some ecological value through the retention of trees and a degree of ground cover. In his opinion the conservation of 4.61ha of core CPW, the rehabilitation of 2.23ha of degraded CPW and the regeneration of 0.72 ha of cleared pastureland as CPW would more than offset the loss of CPW. He stated that the VFMP and the Voluntary Planning Agreement (VPA) provided sufficient safeguards to ensure that the onsite offset would be appropriately managed to retain its ecological value. 151 The experts agreed that CPW provides a habitat for the snail. Consequently, if this habitat is removed, an appropriate offset should be provided through the conservation of CPW. 152 Both experts agreed that it would not be appropriate to use the Biobanking process to establish an appropriate offset, although Dr Wotherspoon considered the Biobanking calculator to be a valuable tool that could provide guidance about the nature of any offset.

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67 Further, the use of offsets (both other vegetated areas set aside for conservation and compensatory plantings) is an approach to address the loss of vegetation involving threatened species, populations or ecological communities through the development of vegetated land. It is an approach that saw Part 7A included in the Threatened Species Conservation Act 1995, and by reference in the Environmental Planning and Assessment Act 1979, to provide for the establishment of a biodiversity banking and offsets scheme. As I understand, the approach of offsets was not opposed by any of the experts, only that Dr Bali and Ms James did not see it as suitable in this case. 161 Mr Fanning or Dr Wotherspoon did not oppose the approach of using offsets to address the loss of vegetation involving threatened species and an ecological community. They disagreed only on the extent of loss, the amount of offset and whether this should be offsite. 162 Mr Fanning contends that the ratio of an offset for core CPW removed (0.41ha) to core CPW to be conserved (4.61ha), degraded CPW to be rehabilitated (2.23ha) and cleared pasture to be regenerated as CPW (0.72ha) would be 1:18.43. 163 Whereas if Dr Wotherspoon's figures are accepted some 1.5ha of CPW will be impacted upon by the development either through removal or through the APZ. Dr Wotherspoon accepted that an offset could be provided for the loss of CPW but gave little guidance as to the ratios to estimate the extent of offset other than it should be offsite and that the Biobanking calculator could provide assistance in determining the nature of an offset. He gave no recognition to the area of CPW to be retained, regenerated or rehabilitated on site as, in his opinion, it was not removed from threat. 164 Even on Dr Wotherspoon's evidence, the 1.5ha comprises CPW of different ecological value, which will be exposed to different impacts. In simplest terms, according to Dr Wotherspoon, there is approx 0.5ha of core CPW that will be removed by the proposal and a further 1ha managed within the APZ. 165 There is 4.61ha of core CPW that will be retained within a conservation area. While there may be some edge effects within this conservation area, we do not accept Dr Wotherspoon's evidence that it cannot comprise part of an offset, if treated properly. Dr Wotherspoon did not identify this area as being CPW that would be impacted upon by the development such that it would require an offset; it therefore follows that its ecological value is being conserved and that it may be included as part of an offset for areas being removed or impacted upon. 166 Through the VPA the conservation area is to be retained in perpetuity, will be fenced to exclude access (except for management, monitoring and/or educational purposes) and will optimise habitat for the snail. The VFMP will minimize edge effects and assist in retaining the ecological value of the area. The ratio of the area of core CPW removed (0.5ha) to the area core CPW conserved (4.61ha) would be 1:9.2. We accept that this is reasonable given the similar ecological value of the area removed to that retained. 167 On Dr Wotherspoon's evidence a further 1ha of CPW would be impacted upon by the development. The offset proposal includes areas outside the building area and APZ where CPW will be rehabilitated (2.23 ha) and regenerated (0.72ha). The VFMP identifies the rehabilitation area as forming part of an area to be conserved. Access to the area will be restricted and specific activities will include a weed removal and monitoring program and a hand slashing regime to mimic natural grazing and facilitate understorey species. The regeneration areas will involve natural regeneration and supplementary planting to regenerate or create CPW in existing areas of mown or slashed pasture. Both these areas will provide a suitable habitat for the snail. 168 The applicant has agreed that the regeneration area can be increased. However, figures on the increased area were not provided. Based on the original figure, the ratio of the area impacted upon (1ha) to that regenerated and rehabilitated would be 1:2.95. We accept that this is reasonable given the ecological value of the area impacted upon (being largely cleared CPW within the APZ) and the greater ecological value of the areas to be rehabilitated and regenerated outside the APZ. Again we do not accept Dr Wotherspoon's evidence that none of this area can be considered as part of an offset due to edge effects. If properly managed in accordance with the VFMP this area will be largely removed from threat and its ecological value improved. 169 Dr Wotherspoon's main concern was that an offset on site was inappropriate, as the proposal would not remove the area of retained CPW from threat. We do not accept this proposition and in the absence of any alternate proposal from Dr Wotherspoon we accept that the offset proposal is reasonable, even based on Dr Wotherspoon's larger areas that may be impacted upon by the proposal. 170 In reaching this conclusion we are mindful that the proposal has been largely located in an area of the site, which both experts agree does not contain CPW. The proposal has been amended to reduce the impact on CPW. A VPA and VFMP are proposed to further mitigate impacts of the proposal and conserve areas of CPW on the site and include an appropriate maintenance and monitoring programme, which will also provide a habitat for the snail. While Mulgoa Road separates the site from adjacent CPW, its connectivity with CPW to the west will be maintained. For these reason we accept that there will not be a net loss of the ecological value of the site and the proposal is acceptable. 171 We note that the offset and VFMP do not include the area of CPW within the Church lands which will also be retained and managed. The management of CPW on the Church lands needs to be considered within the context of the significance of the site as a cultural landscape and should be addressed as part of the amendments to the conservation plan and a VFMP for the Church lands. 172 Mr Harvey on behalf of the Association in relation to the amended proposal questioned the use of the area of land between the APZ to the west of the school and Mulgoa Road which is not identified in Figure 1 as an area to be rehabilitated or regenerated as CPW. The area has been cleared and may not be suitable for regeneration; however, if it is suitable it should be identified as such. In any case, its future use and management should be stated in the VFMP and Figure 1. 173 The Association also questioned the proposed internal access road, which connects the school with the church as it divides the area of CPW. This is proposed to be used for emergency access only and is to be of the same construction as the church driveway. However, we are not satisfied that this connection, other than as a pedestrian connection is required. Further the connection of the school to the existing access road to St Thomas Road (north) for emergency access and service vehicles is also questioned given that this also divides the CPW and provides an opportunity for vehicles to access St Thomas Road (north). A condition should be incorporated which deletes these access roads, unless it can be justified that they are required for emergency access. 174 We note that the VPA and the VFMP have not been finalised. These documents are fundamental to any approval. It is therefore appropriate that the VPA be amended to require conservation in perpetuity and to incorporate the comments of Mr Fanning and Dr Wotherspoon in Exhibit Y A condition that the applicant enter into the VPA is also required. Further amendments to the VPA, VFMP and Figure 1 should be undertaken to ensure consistency. Hydraulics 175 Clause 12(c) of SREP 13 provides that the consent shall not be granted to a development

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The only increase in traffic flows expected to be generated by the school will occur in the short section of St Thomas Road between Mulgoa Road and the school entrance, and to a much lesser extent, in Farm Road and in Kings Hill Road . 184 In Mr Varga's opinion, St Thomas Road (south) serves the function of a 'collector road" and in his opinion the proposal will not have any unacceptable traffic effects or impacts on residential amenity. 185 In addition to the changes to the intersection of Mulgoa Road and St Thomas Road (south), the proposal includes widening of St Thomas Road (south) adjoining the entry to the school. There will be no increase in traffic using St Thomas Road (north) and no changes are proposed. Neither the planning or heritage experts raised material concerns about the changes to the roads. 186 While the impact of increased traffic on the rural setting of Mulgoa Village was initially raised by council as a contention, no expert evidence was provided other than in relation to noise, which is discussed above, and the issues was not pressed by council. 187 We do not consider that the increase in traffic or the works to either Mulgoa Road or to St Thomas Road (south) will change the existing character of these roads in an unacceptable manner that would impact on the rural character or amenity of the area. The proposal therefore satisfies the requirements of cl 12(k) and (q) and cl 15 of SREP 13 in relation to traffic. Other issues 188 The objectors, particularly the representatives of the Association considered the proposal to be inconsistent with the planning framework for Mulgoa Valley. They noted that the framework had been developed over a long period of time and that the Association has been involved in the preparation of SREP 13 in 1987 and its amendments in 1997, including the introduction of cl 20. In their opinion an educational establishment was expressly prohibited in the rural conservation zone and not envisaged under cl 20 of SREP 13. The approval of such an "urban" use was inconsistent with the objectives of the plan and the Rural Conservation zone and would undermine the planning framework for the valley. 189 Educational establishments are a prohibited use within the Rural Conservation zone. The heritage incentives clause in cl 20 of SREP 13 enables consent to be granted to a use which is otherwise prohibited provided certain criteria including those in cl 20(3) are satisfied. For the reasons in the judgment we find that these criteria are met and that the proposal is therefore permissible. A finding of consistency with the objectives of the plan and the zone is not required. Nonetheless, we have considered these objectives and do not consider that they are offended by the proposal. The proposal also meets the other requirements of SREP 13, including cl 9, cl 12 and cl 15 and does not undermine the planning framework established by SREP 13. 190 The proposal will ensure the conservation of an important heritage item and will not adversely affect the amenity of the area. The proposal will also conserve, rehabilitate and regenerate areas of CPW and the habitat for the snail, in perpetuity. In balancing the issues in the case we find the proposal is worthy of approval. However, given the importance of the Heritage Agreement, VPA, VFMP and conditions we require the amendments be carried out prior to approval being granted. 191 In reaching this conclusion we note that some objectors and experts did not oppose a school use of the site but considered the proposal to be too large. We have considered whether a reduction in the school should be required and accept the evidence of Mr Ingham that the school is not large for a primary school and the size is necessary to meet the requirements of the Anglican Schools Trust. However, we consider it to be the maximum size that can be accommodated on the site while maintaining the rural character and amenity and of the area. 192 In relation to the other contentions raised by the objectors or council we find that these would not warrant refusal of the application. Some issues raised by objectors such as lighting and fences and the requirements of the Rural Fire Service are incorporated into conditions of approval. Conditions 193 The following conditions remain in dispute between the parties: 194 Condition 40 - limits the extent of cut and fill to no more than 2m. Mr Hemmings submits that this would not enable the amphitheatre to be built and that the extent of cut and fill should be in accordance with the approved plans. Council submits that there is insufficient information to determine the extent of cut and fill. 195 The application seeks approval for the masterplan and for the construction of Stage 1 only. Further development applications will be required for each stage, which will enable further details to be provided. Condition 40 should be amended to indicate that the cut and fill should generally be in accordance with the approved masterplan but that details of the extent of cut and fill are to provided in the Development Application for each stage and should not exceed 2m, where feasible.

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Conditions 45 and 46 - following the hearing, the applicant provided a further submission that amalgamated noise conditions 45 and 46 which is not agreed between the parties. The reason for the disagreement is not clear and further submissions may be required. Conditions should provide criteria for all other noise emissions including hall, traffic on site, play areas and mechanical equipment and should comply with INP criteria and the evidence. 196 Condition 84 - the works required to Mulgoa Road. For the reasons in this judgment this condition is to remain but should be amended so that the works are not required to be carried out until Stage 2 of the development. Conditions 67 and 70 will also need to be amended to be consistent with condition 84. 197 Conditions 101 and 102 - RTA advice requiring directional signage. Condition 34 requires an application for any signage. This should be amended to require a signage strategy for the site, which is consistent with the amended conservation management plan. Condition 101 and 102 should be deleted and the requirements considered as part of the overall signage strategy. 198 Condition 111 - provision of a flora and fauna offset. For the reasons in this judgment an offsite offset is not required and the condition should be deleted. 199 Condition 116 - covenant restricting the extent of buildings on the land. For the reasons in this judgment we find that the extent of buildings is the maximum that can be reasonably accommodated on the site. However, it is not appropriate to require a restrictive covenant. An amended conservation management plan for the Glebe land and the Church land, the Heritage Agreement and the Voluntary Planning Agreement effectively limit any further development potential of the site. 200 Other changes to the conditions are also required as discussed in the Judgment. 201 The following additional conditions are required prior to any approval being granted: · a schedule of works to be carried out in each stage, which clarifies the staging of the playing field, assembly area, amphitheatre and landscaping. The CPW conservation, rehabilitation and regeneration works are to be completed prior to the occupation of Stage 1 of the development. · consolidation of lot 1 DP996994 and lot 1 DP1035490 prior to the issue of an occupation certificate for Stage 1. · the applicant is to enter into the voluntary planning agreement to retain CPW in perpetuity. Include appropriate time frame to enter into agreement. · revised landscape masterplan to be approved by Council prior to issue of Construction Certificate for Stage 1 and to be consistent with revised CMP, VFMP and VPA. · require deletion of proposed ridge vent/skylight on roof of Stage 6 classroom module (exhibit X). · require archaeological testing and monitoring to be undertaken prior to demolition of Church Hall, Rectory and toilet block (exhibit 29). · a number of conditions require matters to be completed prior to a construction certificate or an occupation certificate is issued for the development. It should be clarified that this refers to the construction certificate or occupation certificate for Stage 1 of the development. If a different stage is meant this should be stated. Directions 202 By 24 June 2009, the parties are to provide an agreed timetable for changes to the Heritage Agreement, Vegetation and Fauna Management Plan, Voluntary Planning Agreement and conditions to address the findings in this judgment.

At a glance

Court

Decision date

Before

Source

Judgment (84 paragraphs)

Parties

Cases Cited (7)

Cited By (2)