Trustees of the Marist Fathers for the Province of Australia v Hunters Hill Council

Land and Environment Court (NSW)|2019-05-30

Nature of the Appeal and Outcome

COMMISSIONER: The applicant lodged Development Application No. DA 2017/1180 on 24 November 2017. The application sought approval for: "subdivision of two (2) existing zoned residential land parcels to create two (2) separate residential lots and a residue lot containing the existing Church building and heritage curtilage, together with ancillary works including minor internal realignment of the driveway and car park, associated removal of identified lose (sp.) surface fill and building rubble, stormwater drainage, landscaping and tree pruning and removal" (Exhibit C).
The development is proposed at Lots 2 and 3 in DP 1116569, 5 Crescent Street, Hunters Hill. Included in the development application are building envelopes and indicative development plans for the future residential development of the proposed lots. The church building and its functions are to be retained as part of the proposed development.
The Council refused consent on 27 February 2018 and the applicant is appealing that determination in accordance with the provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The application was subject to mandatory conciliation under s34 of the Land and Environment Court Act 1979 (LEC Act) on 24 September 2018. Following the termination of the conference the Applicant sought and obtained leave to amend the description of the proposed development as follows: "Subdivision of two (2) existing zoned residential land parcels to create two (2) separate residential lots and a residue lot containing the existing Church building and heritage curtilage, together with minor internal realignment of the driveway and carpark and stormwater drainage works (including minor earthworks and tree removal relating to the stormwater works)."
The Court also granted leave to the Applicant on 14 December 2018 for an amended subdivision plan, an updated Heritage Impact Statement, Arborist report, Environmental Assessment, Remediation Action Plan, Stormwater engineering plans and Landscaping Plan.

The Site and Locality

The site is known as 5 Crescent Street, Hunters Hill. The site has an area of 5,248m² with a frontage of 121.3m to Crescent Street and 64.285m to Futuna Street.
The site falls steeply, over 10m down, to Crescent Street with a cross fall of more than 5m to the east along the Crescent Street frontage.
The site is occupied by a sandstone church, St Peter Chanel Church, which was built between 1890-1901. The site is listed as Heritage Item 146 - St Peter Chanel Roman Catholic Church. It is surrounded in the immediate vicinity by other heritage items including "Wilton Bank" at 1 Crescent Street, "Braeburn" at 3 Crescent Street, "Milthorpe" at 12 Crescent Street [SHR Item], "Hestock" at 14 Crescent Street [SHR Item] "Wyralla" at 2 Futuna Street, "Lugano" at 7 Futuna Street and "Meryla" at 9 Futuna Street.
The location of the heritage items relative to the subject site (notated a I146) is indicated in the following extract of the Heritage map [HER_003A]: State Heritage Items: I3: "Milthorpe" at 12 Crescent Street I4: "Hestock" at 14 Crescent Street Local Heritage Items: I94 "Wilton Bank" 1 Crescent Street I95 "Braeburn" 3 Crescent Street I147 "Wyralla" at 2 Futuna Street I148 "Herne" at 5 Futuna Street I149 "Lurgano' at 7 Futuna Street I150 "Meryla" at 9 Futuna Street
The site is also located within: Hunters Hill Conservation Area No 1- The Peninsula (HCA), indicated by the red diagonal hatch.
Adjoining and nearby development comprise of dwelling houses of mixed form, scale, style and age. The subdivision pattern of surrounding development is varied (Exhibit P).

Relevant Planning Controls

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the development. SEPP 55 at cl 7: requires the consent authority to consider whether the land is contaminated (at subcl (1)(a)) and, if it is contaminated, the consent authority must be satisfied "that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out". Finally at subcl (3)(c), the consent authority is required to be satisfied that if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, that the land will be remediated before the land is used for that purpose.
The site is located within land that relates to the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP), and therefore consistency with cl 25 is relevant for the Court's consideration: 25 Foreshore and waterways scenic quality The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.
The Respondent argues that the development cl 26 of the SREP is also relevant, whilst noting that St Peter Chanel Church does not fall within the defined terms of 'landmarks' or 'heritage items' under that instrument. 26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.
The Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (DCP 2005) also applies to the development.
The subject site falls within the boundaries of the Hunters Hill Local Environmental Plan 2012 (LEP 2012) and is zoned R2 Low Density Residential. The objectives of the zone are a matter for consideration in the determination of the proposed development (cl 2.3(2) of LEP 2012). The objectives of the zone are: • to provide for the housing needs of the community within a low density residential environment, • to enable other land uses that provide facilities and services to meet the day to day needs of residents. • to maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities. • to provide for high levels of amenity that are consistent with a low density residential environment.
Pursuant to cl 2.6 of LEP 2012 subdivision of the land requires consent.
Clause 4.1 of LEP 2012 sets the minimum subdivision lot size by reference to the lot size map. For the subject site, the minimum lot size is 900m². The proposed lots comply with this development standard. Notwithstanding the compliance with the development standard, the Respondent argues that the development is inconsistent with objectives (a) and (b) as follows: (a) to soften visual impacts of residential developments when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building. (b) to accommodate residential developments that would be compatible with the size, scale and character of surrounding buildings.
Clause 4.3 sets a maximum height of 8.5m for future buildings on the proposed lots.
Given the site is mapped within a HCA, and contains a heritage item, cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of Hunters Hill, the heritage significance of heritage conservation areas, including associated fabric, setting and views, conserve archaeological sites and Aboriginal objects and places of significance. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).
At cl 6.2(3): Earthworks, the consent authority is required to have regard to the following matters prior to the grant of consent: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
LEP 2012 requires the consent authority to form a positive opinion of satisfaction on a number of matters before the exercise of power to grant consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13]). Relevant to these proceedings are: 1. 6.3: Stormwater Management at subcl (3) states: Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. As the site is identified on the LEP 2012 Riverfront Map extract cl 6.7: Development on riverfront areas applies. Clause 6.7(3) of LEP 2012 states: Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that: (a) measures will be taken, including in relation to the location, design and appearance of the development and conservation of existing trees, to minimise the visual impact of the development to and from the nearest waterway, and (b) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out, and of surrounding land, will be maintained, and (c) existing views towards waterways from public roads and reserves would not be obstructed.
The proposed development is subject to the provisions of the Hunters Hill Development Control Plan 2013 (DCP 2013). The relevant provisions are discussed concurrently with the evidence.

Public Submissions

The application was notified in accordance with the provisions of DCP 2013. As a result of this notification, one submission in support and 31 submissions in objection were received by the Council. These submissions raised the following concerns:

that a subdivision of two lots may be more appropriate.
that any excavation or rock cutting should not be done with jackhammers;
that views from St Peter Chanel Church will be seriously affected by the development.
off-street parking for the church will exacerbate the current problem of inadequate parking during services and events such as weddings and funerals;
the development fails to respect the heritage significance of the existing site and the Church;
the loss of the curtilage of the heritage item to development is inappropriate and will affect the Church's significance. The entirety of the site is significant and should be conserved;
the removal of many of the mature trees in the front of the development is not supported;
the removal of existing vegetation, large quantities of fill and natural sandstone will result in an unacceptable long length of 7-8m high cliff face supported on concrete piles fronting Crescent Street;
the house lots created by the development will be comparatively narrow, and due to the steepness of the site, will be unsuitable for the construction of houses;
the proposed development will detrimentally impact the visual linkage between the proximate heritage items;
the proposed development will detrimentally impact on the character of the conservation area;
there are significant views to and from the site that are of visual significance. These views will be detrimentally impacted by the proposed development;
any new buildings that follow the subdivision will appear 'massive' and imposing from Crescent Street as they are likely to be located high on the block to obtain views; and
management of water runoff and soil stability in the proposed development.

At the commencement of the proceedings, on-site evidence was heard from a number of objectors to the application. The issues raised by these objections repeated many of the issues in the proceeding with the following additional concerns:

that the community values the social heritage values of the site and its linkage to the history of the Hunters Hill precinct. The significance of the item is the whole of the current site;
the site is significant as it has a unique connection to Saint Peter Chanel who was martyred in Futuna, a Pacific island, and his remains were returned (for a time) to Hunters Hill;
the proposed development will detrimentally impact the significance by reducing the setting and changing it from a natural vegetated backdrop to residential dwellings;
that the landscaped backdrop or setting of the Church is important to its prominence;
that the community has provided a financial 'contribution' to the site by the waiver of Council rates;
that the Great North Walk and other community walks pass the subject site;
that the centralising of drainage from proposed Lot 3 and the increased hardstand on proposed Lots 1 and 2 may impact on street drainage and overland flow in Crescent Street;
the removal of the existing sandstone on proposed Lots 1 and 2 and 40-50 trees to facilitate future residential development will change the character of Crescent Street.
concern that Crescent Street will be unable to provide access to the types of machinery required to undertake the likely excavation to construct dwellings on the proposed lots;
that the fill and rubble in the hillside that would be excavated is likely to be unstable;
key sections of Council's DCP are breached by the proposed development: cl 2.4 which requires the maintenance of trees; cl 3.3.4 which limits excavation to 1.5m and the maximum slope provisions for building platforms; and
whilst single houses are indicated for Lot 1 and Lot 2, the lots are of sufficient size to accommodate dual occupancy development

Experts

In line with the issues in dispute in the proceedings the parties engaged the following experts: 1. Applicant:

Ms Samantha Polkinghorne, Heritage Consultant
Mr Craig Burton, Landscape Heritage Consultant
Mr Brett Maynard, Traffic Consultant
Dr Richard Lamb, Visual Impact Consultant
Ms Helen Deegan, Town Planning Consultant
Ms Lisa Durland, Arboriculture Consultant
Mr Solern Liew, Engineering Consultant 1. Respondent:
Mr David Logan, Heritage Consultant
Mr Matthew Taylor, Landscape Heritage and Visual Impact Consultant
Mr Tom Steal, Traffic Consultant
Mr Mark Adamston, Town Planning Consultant
Ms Catriona Mackenzie, Arboriculture Consultant
Mr David England, Engineering Consultant.

Is the land suitable (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out?

In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40, Preston CJ confirms cl 7 of SEPP 55 establishes two sets of preconditions to the exercise of the power under s 80(1) of the EPA Act by a consent authority to determine a development application for consent to carry out development on land. These requirements are outlined at [48] and [58] as follows: "[48] First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of "a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines". … [58] Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose."
The current Contaminated Land Planning Guidelines are "Managing land contamination planning guidelines: SEPP 55 - remediation of land", NSW, 1998.
Pursuant to cl 9 of SEPP 55, the remediation work falls within Category 1 remediation work, work needing consent as the site is in a heritage conservation area (cl 9(e)(ii)).
The Contaminated Land Planning Guidelines propose different responses from the consent authority in determining development applications for contaminated land dependant on whether the application falls within Category 1 or 2 as follows: "Suggestions for possible planning responses for DAs If investigations find that contamination makes the land unsuitable for the proposed use and requires remediation, this may be enforced by: • if the remediation requires consent under SEPP 55 (category 1 work): - requiring the applicant to amend the DA to include a remediation proposal, or - requiring a new and separate DA for the remediation before the DA for the use is considered … • If investigations find that contamination makes the land unsuitable for the proposed use and either the land may not be appropriately remediated or the proponent does not wish to remediate: - the proposal may be modified to a use that is suitable for the land without remediation, provided a new DA is not required, or - the application may be withdrawn, or - the application should be refused." (Exhibit 2)
It is accepted by the parties and their experts that the land encompassed by proposed Lot 1 and Lot 2 is contaminated. The relevant extent and type of contaminants are detailed below: "Lots 1 and 2: These lots were generally found to consist of fine to medium grained Gravelly Silty Sand fill with thickness ranging from 0.4m to in excess of 2.7m thick. We note that typically of sandstone hill slopes, the depths of fill (and sandstone bedrock) are expected to vary significantly over short distances as the Hawkesbury sandstone typically drops in steps and benches downhill. In addition, the potential presence of an ex-quarry cliff face beneath the fill batter would make [an] estimation of fill depths difficult. The sandy fill was found to generally contain building rubbish inclusions including concrete cobbles, scrap metal pieces, brick pieces, plastic wire and traces of glass fragments. Pieces of asbestos fragments were also encountered in the fill in BH 5 and 12. BH 1 to 3, 7 and 12 were terminated on possible fill rubble. Sandy fill samples analysed for a range of potential contaminants consisting of Heavy metals (As, Cd, Cr, Cu, Hg, Pb, Ni and Zn), Organochlorine pesticides, Polychlorinated Biphenyls, Total Recoverable Hydrocarbons, Benzene, Toluene, Ethyl Benzene and Xylene, Polycyclic Aromatic Hydrocarbons and Asbestos encountered all concentrations to be below laboratory detection Units or within the Site Criteria except the following; - Elevated levels of Lead of 700mg/kg, 350mg/kg and 510mg/kg in BH 5 (0.3-0.4m), BH 8 (0.4-0.5m) and BH 12 (0.6-0.7m) respectively above the HBIL 'A Criteria of 300mg/kg. - Asbestos fragments containing Chrysotile, Amosite and Crocidolite in BH 5 (0.3-0.4m) and BH 12 (0.6-0.7m). - Asbestos fibres detected in BH 12 (0.6-0.7m). Slightly elevated levels of Copper of 1500mg/kg was encountered in BH 12 (0.6-0.7m) above the EIL Criteria of 378mg/kg and slightly elevated levels of Zinc of 630mg/kg, 500mg/kg and 890mg/kg were also encountered in BH 5 (0.3-0.4m), BH 8 (0.4-0.5m) and BH 12 (0.6-0.7m) respectively above the EIL Criteria of 393mg/kg. A trace of Benzo(a)pyrene of l.lmg/kg, 0.74mg/kg and 1.2mg/kg was encountered in BH 5 (0.3-0.4m), BH 8 (0.4-0.5m) and BH 12 (0.6-0.7m) respectively above the ESL Criteria of 0.7mg/kg." (Exhibit N)
The Phase 2 Contamination Assessment concludes that Lots 1 and 2 are impacted by Lead-contaminated fill and building rubbish including asbestos. Further, it concludes that the proposed drainage works will require site remediation and environmental management.
The proposed development for which approval is sought does not include the remediation of Lot 1 or Lot 2 beyond the extent of the land necessarily disturbed for the construction of the drainage pipeline in the proposed easement (the drainage works).
The Remediation Action Plan (RAP) details the site remediation for the drainage works as follows: "- Excavation of all contaminated fill along the drainage easement to expose natural soil or rock. Care should be taken to ensure a safe batter slope be observed to prevent site instability, otherwise temporary shoring should be in placed to maintain site stability. - The base of the excavation should be inspected by an environmental engineer to ensure all rubbish and asbestos impacted fill is removed. Validation sampling and laboratory analysis should be carried out on the base of the excavated area to ensure all contaminated soil has been removed from the site. - The contaminated fill should be disposed off site to a NSW EPA approved landfill in accordance with Workcover and other regulatory requirements. The excavated fill containing asbestos should be classified as Special Waste 'Asbestos Waste' in accordance with NSW EPA guidelines (Reference 11). - All excavation areas requiring backfilling should be backfilled with clean fill which must be validated. …" (Exhibit N)
The engineering experts disagree as to the management of the land, and its contaminants, during and after these works.
Consistent with the RAP, Mr Liew's evidence in the joint report is that the "proposed lots can be made suitable for future residential purposes subject to (the) implementation of engineered processes and removal of contaminated fill." Further, Mr Liew states that the works associated with the development application will involve minor earthworks relating to driveway/carpark and drainage works and therefore tree removal and removal of contaminated fill will be limited (Exhibit 5).
In the alternative, Mr England argues that the proposed lots are not suitable for residential development due to contamination including elevated levels of lead above the upper limit of NSW EPA health-based soil investigation level (HBIL) of 300mg/kg. He argues that, given that the development application does not involve the removal of the fill, any lot created by this development will still contain contamination levels above the recommended guidelines. He concludes that: "Due to the high level of contaminants, it is my opinion that the Applicant cannot create any residential lots of acceptable dimensions which are suitable for residential purposes." (Exhibit 5)
In his oral evidence, Mr England also raised concern that in undertaking the drainage works, there is a need for the excavation to extend until 'a clean margin' is met. In other words, in his view, the excavation should continue until clean soil is encountered on the horizontal and vertical faces of the trench. Mr England expressed concern that given the distribution of the contaminants on the site, the extent of excavation to achieve such a 'clean margin' is therefore unclear.
The experts agree that the consequences of the making of the subject development application, the completion of the site investigations and the results of the borehole findings is that the landowner has a reportable duty under the s 60 of the Contaminated Land Management Act 1997.

Submissions

Mr Galasso's (SC) primary submission is that the subject development application does not seek the use of proposed Lots 1 and 2 for residential purposes. As such he submits that cl 7(2) of SEPP 55 is not engaged as the development application does not seek a change of use.
In the event that the Court does not accept the Applicant's primary submission, Mr Galasso submits that the requirements of clause 7 are met as follows:

Subclause 7(1)(a) of SEPP 55 is met. It is agreed that the land encompassed by proposed lots 1 and 2 is contaminated, and Phase 1 and 2 Contamination Assessments detail the level and distribution of contaminants.
Further, the evidence from the various experts is that the site may have been previously utilised as a 'landfill site', a type of activity nominated in Table 1 of the Contaminated Land Planning Guidelines.
That the extent of works encompassed by the application, and therefore the scope of cl 7(1)(b), is the construction of drainage works within the easement. The Court can be satisfied that the RAP details how those works will occur and how the extent of the easement will be remediated (cl 7(1)(c)).
Finally, whilst it is not required by this application, Mr Liew's evidence is that proposed Lots 1 and 2 can be remediated by the removal of the contaminated fill. This can appropriately occur when building works are proposed for these lots. The reference scheme demonstrates one such approach to how remediation by excavation could be facilitated harmoniously with residential construction on the proposed lots.

Mr Staunton accepts the submissions of Mr Galasso that the subject development application does not seek approval for the use of the proposed lots for residential purposes. He submits that it is a matter for the Court's discretion "as to whether or not it approves a subdivision that creates two lots that are contaminated, known to be contaminated, without any obligation for that remediation as part of the development" (Tcpt, 30 May 2019, p 238(13-15)).

Findings

The EPA Act at s 1.5 provides the following meaning of "development": (1) For the purposes of this Act, development is any of the following: (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument.
I accept the agreed submissions of Mr Galasso and Mr Staunton that the development application seeks the subdivision of land and the carrying out of work, but does not seek approval for the change of use of the land to residential purposes: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [25].
Accordingly for the purpose of considering subcll 7(2) and (3) of SEPP 55, the purpose for which the subdivision is carried out remains 'place of public worship' or ancillary to that purpose.
In applying the preconditions to the works sought in the application, I prefer the evidence of Mr Liew, that the methodology detailed in the RAP is capable of allowing the completion of the drainage works proposed by the application, and the remediation of the drainage easement. However, if consent was to be granted to the development application, I am satisfied on the evidence that it would be necessary for a suitable barrier (or the like) to be placed at the extent of the works (horizontally and vertically) to maintain a separation between the remediated and contaminated parts of proposed Lot 1 and Lot 2. Such a condition could be applied to any consent for the proposed development.
As such the precondition in cl 7 of SEPP 55 is met for the proposed development of subdivision and the works sought in this application.
However, I accept Mr Staunton's evidence that the consideration of the suitability of the proposed lots, without remediation, is a discretionary matter. The R2 Low Density Residential zone, which the proposed lots are relevantly zoned, allows the following uses with consent: Bed and breakfast accommodation; Boarding houses; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Group homes; Home-based child care; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Respite day care centres; Secondary dwellings; Tank-based aquaculture.
Relevantly, 'home occupations' are permitted without consent, and all other uses are prohibited.
Due to the documented levels of contamination each of the nominated residential, community and childcare uses that are permissible with consent in the zone would not be able to be undertaken on the site without remediation as they fall within the Land use categories: HIL A and B in the 'Schedule B7 Guideline on Derivation of Health Based Investigation Levels' (Exhibit 10).
The relevant lead contamination levels for HIL A and B are 300ppm and 600ppm respectively which are both exceeded by at least one borehole result detailed in the Phase 2 Contamination Investigation (Exhibit N).
It was Mr Liew's oral evidence that whilst capping of the site may be an option to remediate the land, it would be difficult firstly due to the existing vegetative cover and due to the slope and instability of the land. This evidence was agreed by Mr England.
Both experts concluded that the likely management of the remediation for future use of the site would be to excavate, remove the contaminated material and stabilise the site. The depth of excavation is not clear. Mr Liew's oral evidence was that the bore roles had a depth of approximately four metres and the end of the fill was not reached (Tcpt, 28 May 2019, p 43(44-47)).
I am satisfied as a result of the above that the final landform of the proposed lots, for any future permissible purpose, is uncertain as the extent and scale of the likely remediation is not determined.
As a result, the relative level of any future building platform can therefore not be made clear at the time subdivision is sought.
Applying Shoalhaven City Council v Lovell (1996) 136 FLR 58, which at [2] the Court found that because the erection of building structures are' "are apt to occur if land is subdivided for residential or similar use, such things being or potentially being incidents of that use, it is relevant for a consent authority to consider their possible effect when consent is sought merely to subdivide the land, rather than only when the occasion arises to approve the erection of buildings or structures or the use of the subdivided land generally". Given this uncertainty I am unable to be persuaded of the suitability of the site for subdivision or that the probable impacts of the erection of buildings or structures on the land are likely to be acceptable.

Will the proposed development affect the heritage significance of St Peter Chanel Church?

The development application is accompanied by a set of architectural and landscape plans ('the reference scheme') that seek to 'prove up' the ability of the proposed lots to accommodate an acceptable and feasible form of development. Mr Galasso submits this is consistent with the decision: Shoalhaven City Council v Lovell, cited at [60].
The parties, and their experts, also agree that the Planning Principle in Parrott v Kiama [2004] NSWLEC 77 (Parrott) at [17] is relevant to the proceedings. It states: "17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them."
Given the preceding the evidence of the heritage, planning and visual experts focus on the impacts arising from the subdivision, as well as the future redevelopment of the land for residential purposes as detailed in the reference scheme.
To determine whether the proposed development has an effect on the heritage significance, it is necessary to delineate what that significance is. Whilst the St Peter Chanel Church is listed in LEP 2012, the State Heritage Register includes no statement of significance for the item.
A Conservation Management Plan (CMP) prepared by NBRS Architecture. Heritage accompanies the development application. It includes the following statement of significance for the St Peter Chanel Church: "The site of St Peter Chanel Roman Catholic Church does demonstrate heritage significance at a Local level for historic, aesthetic and social heritage values. St Peter Chanel demonstrates strong associations with the Marist Fathers, who constructed the church building as part of the establishment of their Order in Australia. The Marist Fathers have also established a wider presence in the area with other sites in Hunters Hill and Woolwich area, including nearby Marist offices, Church and residential accommodation in nearby Mary Street. The site, as a place of continuous religious worship since the 1890's demonstrates the evolution and development of cultural practices associated with faith based community activities. The site also demonstrates a limited association with educational practices in the form of a church school (now demolished) run by the Sisters of St Joseph between c 1899 and 1907 and then Marist Sisters between 1908 and 1936. The church of St Peter Chanel is a good and intact example of a Gothic style ecclesiastical building, constructed in two stages during the late Victorian period. It has retained good examples of typical church construction features, including timber hammer beam trussed roof, sandstone exterior and stained glass windows. The overall proportions of the building, including the distinctive faceted roof form over the chancel provide a good example of a medium sized Gothic church building. The interior of the church has been modified at various times to accommodate early expansion, changes in liturgical practice, upgrading fixtures and fittings and responding to the need to provide DDA compliant access. St Peter Chanel does demonstrate landmark qualities in the local area, though limited due to its location off the main road. The roof form of the Church does have landmark qualities as a component of distant views from the north and east side of the Lane Cove River. St Peter Chanel, Hunters Hill, demonstrates historic, aesthetic and social significance at a Local level for its ongoing church use in association with the Marist Fathers, and as a good and intact example of a Gothic style church building." (Exhibit F)
This is the relevant statement of significance in the proceedings.
The CMP nominates no fabric, spaces or views as being of exceptional significance. The CMP ranks the following as being of high significance: "4.1.2 High Significance This category includes spaces or fabric that retain a high degree of original fabric, and would demonstrate a key element of the items' significance. It may include alterations that do not detract from the significance of the place. (Fulfil the criteria for local or State listing.) Fabric in this category includes: a) Aspects of the architectural design intent of the exterior of the building, including - Distinctly ecclesiastical architectural design of the Church building b) Original external fabric, including: - Sandstone walls, including chimneys and carved elements ie. apex crosses - Sandstone wall and pedestrian entry on Futuna Street - Original joinery, including doors, windows and louvered ventilators in both the roof and the gables - Slate roof cladding - Stained glass windows c) Original internal fabric, including: - Timber trussed roof system and ceiling linings - Internal wall finishes, both face sandstone and render, and associated details, such as truss support stones - Timber flooring and floor structure - Moveable heritage, including pews, baptismal font, Stations of the Cross etc Spaces in this category include: Church Vestry Porch Views and vistas in this category include: Views to the Church roofline from north of the Lane Cove River Views across Lane Cover Rover from the northern embankment of the site Views of the Church building from both east and west along Futuna Street." (Exhibit F)
To maintain these views to the roofline of St Peter Chanel Church, the CMP proposes that a 'Heritage Height Plane' would apply to the proposed lots. The applicant argues that this would ensure that the maximum height of any building on the new lots remains 3.5m below the eaves line of St Peter Chanel Church.
This is codified in the CMP which includes the following policy advice to guide any future plans for St Peter Chanel Church: "… Policy 3.2: To fully retain the identified cultural heritage significance of the place, the form and scale should continue to be read as a landmark building in an open setting (Article 10). … In the eventuality of development in the vicinity of the Church building it is essential to conserve any views of the Church roofline from across Lane Cove River. This would be achieved by limiting any development to a height of no greater than 3.5 meters below the eaves line of the main Church roof. Policy 3.6: Any future development to the north of the Church building is to be no higher than 3.5 meters below the eaves line of the main church roof, so as to conserve views of the roof from distant vantage points." (Exhibit F)
To overcome any uncertainty that the 'heritage height plane' determined by the CMP, which was reduced in height during the proceedings, is enforceable, the applicant proposes the following condition: "15. A Section 88b Instrument and one (1) copy are to be submitted with the application for a subdivision certificate. The final plan of subdivision and accompanying Section 88b Instrument are to provide for: ... (b) A restriction as to user on Lot 1 limiting any future development to a maximum height of R.L 34.0. (c) A restriction as to user on Lot 2 limiting any future development to a maximum height of R.L. 31.0. The instrument creating the restrictions, easements and covenants under the provisions of Section 88B requirement by these conditions of consent must be lodged for registration with the plan of subdivision. Hunter's Hill Council must be the prescribed authority in the Instrument whose consent is required to release, vary or modify the burdens/benefits. Proof of registration of the restrictions, easements and covenants under Section 88B must be provided to Council within 28 days of registration of the plan of subdivision." (Exhibit Q)
The Respondent also relies on an earlier CMP prepared for the site by Michael Fox Planning in 1998 (Exhibit 11). This earlier CMP is referenced in the by NBRS Architecture CMP prepared to accompany the development application. This earlier CMP provides a differing ranking of significance for elements of the site and the views to and from the item.
As the development will result in the reduction of the site in which the Church is located, the experts gave detailed consideration to the issues of curtilage and setting.
The CMP makes the following comments in relation to these matters (emphasis added): "4.3.1 Establishing and Appropriate Curtilage The boundary of the site dates from its original purchase by the Marist Fathers c1890, and is bound to the north and south by Futuna and Crescent Street. The current curtilage is considered a Lot Boundary Curtilage. The report recognises that views of the Church roofline above the tree canopy from further afield are an important aspect of the landmark quality of the Church building and should be protected. Any modifications to the curtilage of the site should take into account the need to preserve significant views of the Church roofline from across the Lane Cove River. The setting of the Church building is contained within the existing Lot Boundary Curtilage and comprises all those components of the site that are located within the level area accessed off Futuna Street. That area of the embankment which falls steeply away to the north from the rear of the carpark does not contribute to the setting of the Church building, even though it falls within the existing curtilage." (Exhibit F)
The role of the embankment (the location of proposed Lots 1 and 2) in the curtilage, setting and significance of St Peter Chanel is not agreed by the heritage experts.
Notably, the CMP concludes that: "The trees on the site are generally indicated, however only the two palms at the pedestrian entry are important in terms of the church setting. None of the other landscape items on the site have been identified as significant" (Exhibit F).
Ms Polkinghorne's evidence in the joint report is consistent with her analysis in the development of the CMP. In relation to the potential impacts of the reference scheme on the significance of St Peter Chanel Church, her conclusion is: "The reference design does contemplate built forms visible above the existing edge of the escarpment, with landscape hedging replacing the existing green backdrop; these forms do not diminish how the Church is understood or appreciated from Futuna Street, nor from further vantage points." (Exhibit 4)
In relation to the retention of the setting of St Peter Chanel Church, and views to and from it, Ms Polkinghorne concludes: "26. The reference design and supporting photo montages contained in the application demonstrate that a scheme can be developed that retains views of the primary aspects of the Church and its setting. The contribution of the church building, most notably the roofline and northern gable, as part of the treed ridgeline of the Hunters Hill peninsular are retained in available views from the water and across the river. 27. The reference design also demonstrates that views of the Church from Futuna Street and from the grounds immediately around the building are maintained. The aesthetic value of the Church and its presentation to the public domain from Futuna Street remains clearly legible. Any changes to the character of the backdrop to the Church do not alter the understanding of the values of the Church and its role in the community." (Exhibit 4)
In contrast, Mr Logan argues that the CMP "does not adequately assess, or provide (a) policy for, the setting of the Church" (Exhibit 4).
Mr Logan disagrees that a reduced curtilage (that would result from the subdivision) is acceptable for St Peter Chanel Church. His reasoning is as follows: "18. The southern boundaries of the proposed lots extend over the platform/plateau from which the Church commands its presence above the escarpment within its land- and waterscape. The whole site is considered to be the curtilage as a 'lot curtilage' rather than a 'reduced curtilage' that omits the lower part of the curtilage, the escarpment. The new lots would subsume both the lower part and a portion of the upper part of the curtilage which forms part of the immediate setting of the Church. Thus, the lots 'borrow' from the most immediate setting of the Church and in so doing would site the new boundaries, and likely future fences and other privacy screening, within this platform area. … 76. The elements that contribute to the heritage significance of the Church include the open space setting and plantings of the plateau and escarpment on which the Church is positioned. The escarpment itself is also part of the item's significance. It is historically significant as part of the original Church site and as part of its visual setting. It is therefore appropriate that it remains as part of the Church curtilage. 77. The Applicant's Conservation Management Plan instead recommends a reduced curtilage for the heritage item. This reduced curtilage is diagrammed at Figure 46 of the Conservation Management Plan. As the escarpment is part of the visual setting of the Church and part of its historic and aesthetic value, it is appropriate that it remain as part of the curtilage of the heritage item. The proposed reduced curtilage would be inconsistent with clause 3.8.3(b) of the DCP. 78. Further, considering the approach taken in the publication Heritage Curtilages, (Heritage Office, Dept of Urban Affairs & Planning, 1996), the appropriate curtilage is not a 'reduced curtilage', contrary to the recommendations of the Applicant's Conservation Management Plan, which underpins the resultant built form indicated in the reference design. Rather, an appropriate curtilage includes the escarpment as an essential component of the site and part of its 'lot curtilage'." (Exhibit 4)
In relation to any impact of the reference scheme on views to or from St Peter Chanel Church, Mr Logan's evidence is: "41. The Church was designed to be viewed in-the-round and hold a commanding position in its land- and waterscape like many Catholic institutions across Australia. The church is one of three key Catholic institutions sited at about the same level at Hunter's Hill and Riverview, the others being St Ignatius' College and St Joseph's College. Indeed, The Daily Telegraph in 1889 recorded that 'The site of the church is a magnificent one close by the Woolwich-road, and commanding a splendid view over the Lane Cove River, with St Joseph's College in the distance.' [4 December 1899, page 7]. Historic and visual links were reinforced with the development of St Ignatius' College's main building up to 1930. 42. The Church is also oriented with the nave running east-west and the apse at the east as is typical of traditionally designed churches. The longer views to and from the church are considered different in type from those of its immediate setting rather than secondary. It is, however, in the immediate setting of the Church that the impacts will be greatest with new development rising above the level of the plateau from which the Church holds its commanding presence. 43. These principal impacts on the immediate setting have been neither fully assessed nor demonstrated in montages and modelling. Nor has adequate assessment and conservation policy to manage the immediate setting been provided in the conservation management plan. … 80. When viewed from Futuna Street and within the grounds of the Church, existing vegetation at the top of the escarpment form part of the visual setting. This would be replaced with roofs and walls of dwellings that rise well above it and there may also be fences and private gardens. Even if new screening is planted it would take time to establish and may never fully screen out the houses. In any case, the visual and physical connection between the Church and surrounding areas to the north would be adversely impact. Such views are important aspects of the setting of the heritage item. 81. The setting of the Church site also includes two streetscapes: that of Futuna Street and that of Crescent Street. The future development at the escarpment edge replacing the vegetative backdrop to the Church in views from Futuna Street would affect appreciation of the Church and be a visual intrusion within the Futuna Street streetscape views. The streetscape of Crescent Street would be altered from the established character of its southern side as an escarpment due to the major excavation for both dwellings and vehicular access and on-site parking needed to serve them." (Exhibit 4)

Submissions

On the basis of the historical evidence tendered in Exhibit V and Exhibit F, Mr Galasso argues that the setting of St Peter Chanel Church has evolved over the time it has occupied the site, and further that the intent of the original purchaser was that it would be subdivided in time.
Mr Galasso emphasises that historically the plateau section (proposed Lot 3) has previously contained school buildings, tennis courts and large trees. He submits that this historic fact should be considered in the Court's assessment of the impact of any future building on proposed Lots 1 and 2 on the significance of St Peter Chanel Church.
Further, Mr Galasso submits that the land proposed for subdivision has never been the subject of activity related to the purpose or significance of St Peter Chanel Church.
He argues that Ms Polkinghorne's evidence is clear that the significance of St Peter Chanel Church arises from the building itself, and from the appreciation of the Church in the grounds. He emphasises that her evidence is that the principle view is from Futuna Street. Mr Galasso submits that due to the topography of the site (significant level difference between the plateau and proposed Lots 1 and 2), the need for excavation to address contamination, and the implementation of a site-specific height limit the Court can be satisfied that this principle view, nor the view from Lane Cove River, will be detrimentally impacted.
Mr Staunton frames the subdivision application as resulting in the severance of the embankment from the curtilage and setting of St Peter Chanel Church. He submits that on the basis of Mr Logan's evidence, the Court would conclude that this detrimental impact on the significance of the item is sufficient to warrant the refusal of the application.
Further, Mr Staunton argues that the earlier CMP for the site prepared by Michael Fox Architects supports the analysis and evidence of Mr Logan of the importance of the embankment to the significance of St Peter Chanel Church and its curtilage and setting.

Findings

St Peter Chanel Church is a locally listed heritage item. The consent authority is required, before granting consent, to consider the effect of the proposed development on the heritage significance of the item (cl 5.10(4) of LEP 2012). The relevant statement of heritage significance is detailed in [60].
I accept the agreement of the parties, and the experts, that the Planning Principle in Parrot is relevant. I accept the submission of Mr Galasso that it is relevant for a consent authority to consider their possible effect of the development of the proposed lots when consent is sought to subdivide land (Shoalhaven City Council v Lovell).
I am satisfied that the s88b instrument and covenant, proposed in the consent conditions to restrict the future height of structures on Lot 1 or Lot 2, would remain relevant to the future assessment of any building work proposed (cl 1.9A of LEP 2012).
Exhibit T provides an elevation of the northern transept of the Church, marked with the relative levels of the underside of the eaves (RL 37.11), window sill (RL 34.31), mid-string course (RL 34.01) and base string course (RL 31.28) of the building.
The site survey indicates that the level of the plateau on which St Peter Chanel Church sits is approximately RL 29.20 on the western side (south of Lot 1) and RL 29.00 on the eastern side (south of Lot 2) (Exhibit B).
The effect of the applicant's proposed condition (refer to [71]) is that future development on Lot 1 would be concordant with the mid-string course of St Peter Chanel Church, and future development on Lot 2 with the base string course.
Relevantly, this means that development that is consistent with the maximum height proposed by the applicant's condition will protrude above the plateau by 4.8m in the vicinity of proposed Lot 1 and 2m in the vicinity of proposed Lot 2 and form part of the foreground with St Peter Chanel Church when viewed from Futuna Street or within the site itself.
I note that the reference scheme does not occupy the extent of this 'potential envelope' and the submissions of Mr Galasso that the reference scheme is not the only way, that there can be a redevelopment of Lots 1 and 2.
However, it is clear from this analysis, that future development on proposed Lot 1 and or Lot 2 will be readily visible from Futuna Street, and from within the grounds of St Peter Chanel Church. It is acknowledged by both heritage experts that St Peter Chanel Church demonstrates 'landmark qualities' (Exhibit F). A landmark is a conspicuous object on land, one that is easily seen. (Macquarie Dictionary).
The CMP ranks as high significance the 'views of the Church building from both east and west along Futuna Street' (Exhibit F).
I accept the evidence of Mr Logan that the fact that built form on Lot 1 and Lot 2 will have the effect of replacing the vegetative backdrop to St Peter Chanel Church in views from Futuna Street will affect the appreciation of St Peter Chanel Church and be a visual intrusion within the Futuna Street streetscape views. This detrimental impact is to a view of high significance.
I am also satisfied that the works proposed will have the effect of reducing the width of the existing parking apron and will place car parking closer to the northern transept of St Peter Chanel Church.
Both of these impacts have the effect of reducing the current open landscape setting of the item. I accept the evidence of Mr Logan that this intrusion will have the effect of diminishing the commanding presence of St Peter Chanel Church and the visual separation which contributes to its landmark qualities from more distant views.
I am not persuaded by Ms Polkinghorne's assessment in the CMP that the roof form of St Peter Chanel Church is the component of the distant views of the item from the Lane Cove River that contribute to its landmark quality or significance. With the benefit of the onsite view and the photomontages provided by the applicant (Exhibit E), I prefer the evidence of Mr Logan that the significant component is the elevation of the northern transept.
I note that the heritage experts agree that the elevation of the northern transept is the most visually prominent element of St Peter Chanel Church when viewed from the Lane Cove River. I note that the experts also agree that: "A new dwelling on the proposed eastern lot would obscure parts of the lower transept in this view [from Lane Cove River]" (Exhibit 4).
Giving consideration to these impacts, I find that the proposed subdivision, and the likely resulting built form on proposed Lots 1 and 2, will have a detrimental impact on the significance of St Peter Chanel Church by impacting its immediate setting when viewed from Futuna Street, and its setting when viewed from the Lane Cove River. Both of these impacts will reduce the setting of the item, the landmark quality of the Church, and its distinctive presence on the escarpment.
I am satisfied that the development application warrants refusal on the grounds that the site is unsuitable for the development proposed (subdivision) due to its impacts on heritage significance by the reduction of the setting and curtilage of the item.
Applying the same reasoning detailed above, I find that the development fails to meet precondition at cl 6.7(3) of LEP 2012 as I am not satisfied that the development maintains the historic significance of the land on which it is proposed to be carried out (subcl (3)(b)). This is a precondition of the type detailed in Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52;[2009] NSWLEC 69 at [88].
Having failed to meet the precondition, the Court has no power to grant development consent to the development and it is not necessary to consider or form a view on the evidence and the submissions relating to the other matters contested between the parties.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2017/1180 for subdivision of two (2) existing zoned residential land parcels to create two (2) separate residential lots and a residue lot containing the existing Church building and heritage curtilage, together with minor internal realignment of the driveway and carpark and stormwater drainage works (including minor earthworks and tree removal relating to the stormwater works) at Lots 2 and 3 in DP 1116569, known as 5 Crescent Street, Hunters Hill is refused. 3. The exhibits are returned with the exception of Exhibits 1 and A.

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: 07 June 2019

(2007) 256 LGERA 446

(2007) 156 LGERA 446

At a glance

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Judgment (13 paragraphs)

Parties

Cases Cited (9)

Cited By (1)