Winten Property Group v Campbeltown City Council

Land and Environment Court (NSW)|2000-05-22|Before: Cowdroy J

CITATION : Winten Property Group v Campbeltown City Council [2000] NSWLEC 90 APPLICANT Winten Property Group PARTIES : RESPONDENT Campbeltown City Council FILE NUMBER(S) : 10331 of 1999 CORAM: Cowdroy J KEY ISSUES: Development Application :- Residential development/community title subdivision - development impinging upon heritage item - golf practice course proposed within curtilage of heritage item - curtilage the subject of permanent conservation order and registration on State Heritage Register - council's master plan for development - objective of local environmental plan to preserve a separation of residential development between two cities - development control plan requiring retention of a visual corridor - proposed development inconsistent with preservation of heritage item and inconsistent with separation of residential development as proposed in master plan and with its objectives. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Winten Property Group v Cambelltown City Council [1999] NSWLEC 241, unreported DATES OF HEARING: 21/2/00, 22/2/00, 23/2/00, 24/2/00, 25/2/00, 28/2/00, 29/2/00 DATE OF JUDGMENT: 05/22/2000

SOLICITORS Pike Pike Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr D Wilson (Barrister)

SOLICITORS Marsdens Solicitors

IN THE LAND AND MATTER No. 10331 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J with Commissioner Bly OF NEW SOUTH WALES DECISION DATE: 22 May 2000

Winten Property Group Applicant v Campbelltown City Council Respondent JUDGMENT

This class one appeal arises from the refusal of Campbelltown City Council ("the council") of development application no G300016-98 dated 24 December 1998, ("the development application") by the Winten Property Group ("the applicant"). The development application seeks approval for the creation of a community title subdivision of lot 4 DP 854870, lots 1, 3 & 7 DP 828871 and lot 1 DP 612265 Campbelltown Road and Quarter Sessions Road, Glenfield (hereafter referred to as "the site"). I have heard these proceedings with Commissioner Bly.

The subdivision (hereafter referred to as "the development") proposes 168 variously sized residential lots, a 21 ha community association lot, a 15.5 ha drainage lot, and a 7.22 ha lot surrounding Macquarie Field House ("the House") which is a listed heritage item of State significance (refer to Appendix A for map of site). On the western ridges of the site and towards the top of the escarpment four rural residential lots and four larger residential lots are proposed. The remaining residential lots would generally be located between the middle of the site and the northern boundary of the site on the more gently sloping lands. A golf practice course is proposed for the 7.22 ha lot. A clubhouse with tennis courts is proposed for the community lot. Flood prone lands on the flat areas to the east of the site are to be utilized for drainage.

In 1981 a Permanent Conservation Order ("PCO") under the Heritage Act 1979 was applied to an area of 1.7 ha surrounding the House. The PCO was supported by the Heritage Council. In 1985 the PCO boundaries were extended to include an area of 23 hectares. Under the recently amended provisions of the Heritage Act 1979 the PCO is now a listed curtilage on the State Heritage Register ("the SHR").

The Site 4. The site is an irregularly shaped parcel of land situated between the south-western freeway and the main southern railway line, south-west of the Glenfield railway station. The site has an area of 81.5 ha and is undeveloped with the exception of the House.

Topographically the site features steep elevated ridges at its western, south-western and southern ends which to the east develop into gently sloping lands. The site consists of flat flood prone land at its eastern end adjacent to Banbury Curran Creek. The vegetation on the site is predominately grassland with scattered clumps of trees. The House is located in an elevated position on the southernmost point of the site.

The proposed golf practice course would be developed within part of the area of the SHR curtilage. A strip of land between the House and the proposed development including part of such curtilage is proposed to be set aside as a corridor of visual significance.

Adjoining the site to the north are the extensive grounds of the Glenfield Park Special School and the Hurlstone Agricultural High School. To the west, beyond the south western freeway is the Ingleburn Army Camp. To the south is the Macquarie Links residential development and golf course known as the 'Macquarie Links Estate' which is presently under construction, together with a proposed 'Monarch Hotel'.

Beyond Banbury Curran Creek and the Main Southern Railway to the east are the established suburbs of Glenfield and Macquarie Fields.

Statutory Framework 9. Local Environmental Plan No 112 - Macquarie Field House ("LEP 112") is applicable to the site. Such LEP also applies to the Macquarie Links Estate and various parcels of land on the western side of the freeway and on the eastern side of Banbury Curran Creek. The site occupies approximately one third of the area to which LEP 112 applies.

The aims and objectives of LEP 112 are:- (1) The aim of this plan is to replace the present zonings of the land to which it applies in order to permit that land to be used as the site for an integrated development incorporating a hotel, convention centres, facilities for executive and staff development, certain types of accommodation and business activities and recreational facilities.

(2) The objectives of this plan are:- a) to control the uses to which the land to which this plan applies may be put; b) to conserve the environmental heritage of the land to which this plan applies; c) to protect and enhance the role of the land to which this plan applies in providing a clearly perceived break between urban development in the City of Campbelltown and that in the City of Liverpool by preserving the visual character and landscape quality of that land; d) to protect and enhance the role of the land to which this plan applies in providing a rural backdrop to the residential areas of Glenfield, Macquarie Fields and Ingleburn; e) to protect the quality and nature of the view from the South Western Freeway where it passes through the land to which this plan applies; f) to protect that part of the major urban drainage system for the City of Campbelltown situated on the land to which this plan applies; g) to control, by means of a development control plan, the siting, height, bulk, scale and density of any buildings to be erected on the land to which this plan applies to achieve the objectives stated in paragraphs (c), (d), (e) and (f); and h) to guide, by means of a development control plan, the future landscaping of the land to which this plan applies to achieve the objectives stated in paragraphs (c), (d), (e) and (f). 11. Clause 8 of LEP 112 provides:- Except as otherwise provided in this plan, in respect of the land to which this plan applies:-

(a) there are no purposes for which development may be carried out without development consent:

(b) the purposes for which development may be carried out with development consent are:

agriculture (other than intensive animal or horticultural husbandry);
buildings required to accommodate activities ancillary to other permissible purposes;
clubs;
dwelling-houses used in conjunction with development for other permissible purposes;
drainage;
educational establishments;
executive lodges;
hotels;
motels;
places of assembly;
planting of trees or shrubs for reforestation, agriculture or landscaping;
recreation areas;
recreation facilities;
refreshment rooms;
residential flat buildings used in conjunction with development for other permissible purposes;
roads;
shops where the gross floor area of each shop is less than 50 m2;
training lodges; and
utility installations other than gas holders and generating works; and
development for any other purpose is prohibited.

Sheahan J in Winten Property Group v Campbelltown City Council [1999] NSWLEC 241, unreported, determined that for the purposes of LEP 112, subdivision for the erection of dwelling houses is permissible with development consent providing the ' use of the dwelling house be linked to, or that is its use must be in conjunction with one of the other uses nominated in the clause' (cl 8 of the LEP).

In relation to the House, cl 16 of LEP 112 is relevant. It provides:- 16 (1) A person shall not in respect of a building, work, relic, tree or place that is a heritage item:- (a) demolish or alter the building or work; (b) damage or move the relic; (c) excavate for the purpose of exposing the relic; (d) damage or despoil the place or tree; (e) erect a building on or subdivide land on which the building, work or relic is situated or that comprises the place; or (f) damage any tree on land on which the building, work or relic is situated or on the land which comprises the place, except with the consent of the council. (2) The council must not grant consent to a development application required by subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting. (3) The council may require that a conservation plan accompany a development application referred to in this clause to enable the consent authority fully to consider the heritage significance of the item and the impact of the proposed development on the significance of the item and its setting.
Also applicable to the site is Development Control Plan No 63 - Macquarie Field House ("DCP 63"). Such DCP contains provisions relating to, inter alia, development of steep and flood prone land, siting of buildings, landscaping and planting.

Particularly relevant to the site, are cl 3.1, and 3.2 of DCP 63 which provide as follows:- 3.1 Controls on the heights of buildings

Every effort should be made to minimise the number of buildings erected on the land between the Main Southern Railway Line and the South Western Freeway, which protrude above the existing skyline or horizon when viewed from the eastern side of the railway line and the F5 Freeway.

3.2 Siting of buildings (a) Buildings or structures should not be erected within the area marked "Significant Landscape feature in view from the Freeway" shown on Map B to this plan unless the Council is satisfied that the erection of the buildings or structures will not interfere with, or detract from, the quality of the existing view from the Freeway. (b) Buildings or structures should not be erected within the area marked "Significant Distant View from the Freeway over Study Area" shown on Map B to this plan unless the Council is satisfied that the erection of buildings or structures will not interfere with, or detract from, the quality of the existing view from the Freeway. (c) In considering any application for development on the land, the Council shall take into account the desirability of retaining corridors across the site generally in locations shown on Map B "Corridors of Visual Significance". Such corridors should be preserved clear of buildings or structures which would alter the character of the existing open grasslands now visible along those corridors. The width of those corridors to be not less than 100 m.

Clause 5 of DCP 63 (a) The Council shall not approve of any development application on the land unless and until it has been provided with, and approved of, a master plan for the development of the land. (b) Such a master plan shall indicate the proposed means of access, the architectural theme and style of proposed buildings, those parts of land on which it is proposed to erect buildings, those parts of the site on which it is proposed to provide recreational areas or facilities, an indication of the general distribution of uses upon the site, an indicative staging programme and such other matters as the Council may consider appropriate. (c) The Council shall not approve a master plan for development of the land to which this plan applies until the owner of the land and the Roads and Traffic Authority of NSW have entered into a legal agreement regarding access under the F5 Freeway that will permit:- (i) legal access between the eastern and western sections of the land sufficient for it to be considered in practical terms a single site;

(ii) the access to be enlarged to a standard which will permit it to fulfill the role of the second means of access identified in the Environmental Study for the land to which this plan applies as being required to serve the proposed development of the eastern section of the land.

(d) Council may incorporate that master plan into this development control plan. 16. DCP 63 incorporates a map known as Map B which shows the site and the "Corridor of Visual Significance" ("the view corridor") as referred to in clause 3.2(c) of such DCP, extending from the north-eastern corner of the site to its south-western corner adjacent to the freeway. The south-western corner of the site is also identified as a "Significant Landscape Feature in View from the Freeway."

A Master Plan for the subject site was approved by the council in 1990 ("the 1990 Master Plan"). It prescribes the manner in which the development of the site is envisaged. Pursuant to such plan, the subject site is divided into components as follow:- · the curtilage of Macquarie Field House; · a visual corridor of mainly open grassland which follows approximately the Visual Significance Corridor shown on Map B; · two pockets of corporate lodges on the escarpments towards the western end of the site. · a golf course on the eastern half of the site, including a portion of the visual corridor; · an open grassland landscape feature at the western end of the site adjacent to the Freeway;

The development was advertised and two submissions were received. The first submission was from Rail Estate, the property group of the State Rail Authority requesting that consideration be given to possible noise impacts from trains on the main southern railway line.

The second submission was from Hurlstone Agricultural High School expressing concerns in relation to maintenance of the school's rural setting, excessive density of residential development adjacent to the school's southern boundary, land use conflicts between the school's agricultural activities and the proposed residential development, and the interference to farm animals by domestic pets.

The development application was refused by Council on 16 November 1999 for the following reasons:- 1 . That proposed development is inconsistent with the objectives for the land to which Campbelltown Local Environment Plan No. 112 (LEP 112) applies in particular objectives 2(b), 2(c), 2(d), 2(g) and 2(h). 2 . The proposed development is inconsistent with clauses 16 and 17 of LEP 112 and will have an unacceptable and unreasonable impact on the heritage significance of an item of environmental heritage namely Macquarie Field House and its curtilage. 3 . The development application is inadequate in that no conservation plan has been lodged to enable the consent authority to fully consider the heritage significance of the item of environmental heritage identified in LEP 112 and the impact of the proposed development on the significance of that item and its settings. 4 . The proposed development is not sensitive to and will have an unacceptable adverse impact on the scenic and rural quality of the locality, in particular having regard to the adjoining land use of Hurlstone Agricultural High School. 5 . The proposed development will have an unacceptable and adverse impact on views and vistas to and from the item of environmental heritage identified in LEP 112. 6 . The proposed development is inconsistent with the provisions of Campbelltown Development Control Plan No. 63 (DCP 63) in particular clauses 3.2(c), 4, 5 and 6.3. 7 . The development application is inadequate in that no agreement has been obtained from the Director-General of National Parks and Wildlife by the applicant to development within the vicinity of the potential archaeological deposit, MFH#2. 8 . The Heritage Council of NSW has now advised Council of its determination in accordance with Section 91A of the EP & A Act, by informing Council that it will not grant an approval for the subject development to be lawfully carried out. "In arriving at its decision the Heritage Council carefully considered the heritage significance of the item (see SHR listing and statements of significance attached) and found that the development, if approved would materially affect that heritage significance for the following reason, the development would require the subdivision of the existing State Heritage Registered (PCO) curtilage.

On behalf of the respondent council, expert evidence was given by:- · Mr J Burton - town planner; · Mr L Tropman - conservation architect; · Mr S Read - landscape architect.

In addition, evidence was given by Mr A Rendel the President of Hurlstone Agricultural High School Council.

On behalf of the applicant, expert evidence was given by:- · Mr G Smith - consultant town planner; · Mr V Murphy - consultant town planner; · Mr C Betteridge - heritage consultant; · Dr R Lamb - visual and heritage consultant; · Mr W Mayne-Wilson - landscape architect; · Mr R Mackay - heritage consultant. · Ms M Dallas - archaeologist; · Ms N Sonter - landscape consultant.

An agreed Statement of Issues was filed in the Court. Issues 1 and 7 were deleted during the proceedings with the remaining issues being:- 1 . Deleted.

2 . The proposed development is inconsistent with the objectives for land to which Campbelltown Local Environmental Plan No. 112 (LEP 112) applies in particular objectives (b), (c), (d), (e) and (f) in clause 2(2).

3 . The proposed development will have an unacceptable and unreasonable impact on the heritage significance of an item of environmental heritage namely Macquarie Field House and its curtilage.

4 . The development application is inadequate in that no conservation plan has been lodged to enable the consent authority to fully consider the heritage significance of the item of environmental heritage identified in LEP 112 and the impact of the proposed development on the significance of that item and its settings.

5 . The proposed development is not sensitive to and will have an unacceptable adverse impact on the scenic quality of the locality.

6 . The proposed development will have an unacceptable and adverse impact on views and vistas to and from the item of environmental heritage identified in LEP 112.

8 . The proposed development is inconsistent with the provisions of Campbelltown Development Control Plan No. 63 (DCP 63) in particular clauses 3.1, 3.2, 4(c), 5 and 6.3.

9 . The proposed development will have an unacceptable adverse impact upon an aboriginal relic site.

10 . The proposed development is contrary to the public interest.

The Court has addressed the points of contention between the parties by the consideration of three significant issues, namely; the curtilage and setting of the House; the view corridor envisaged by the 1990 Master Plan and the separation in urban development between the City of Liverpool and the City of Campbelltown as provided by cl 2 (c) of LEP 112.

In a report to the Heritage Council, Mr Read, council's landscape architect, expressed the opinion that adverse visual and physical impacts would affect the House if the residential subdivision of some 168 lots (compared to the 40 dwellings envisaged in the 1990 Master Plan) were implemented. The House is a rare surviving example of a colonial farm and the development would impinge upon the visual aesthetics of the open fields and hilltop. Mr Read was not opposed to some development of the site as indicated in the 1990 Master Plan or as suggested by Mr L Tropman, council's conservation architect.

Mr Tropman was concerned that the proposed development of the site would have a negative impact both on the heritage significance of the House and the views and vistas to and from the House. Mr Tropman considered the development would be detrimental to the general setting of the House but accepted like Mr Read, that the 1990 Master Plan was an appropriate compromise for the development of the site.

Mr Tropman described the House and its site in the following terms:- Macquarie Field House itself is a rare remaining example of a Regency style house in the Cowpastures/Camden area. The house is a significant landmark in the area for a number of reasons. Firstly , the house was deliberately sited on the top of a high spur which made it prominent in the area soon after its construction. Secondly , the important remnant plantings, due to their size and abundant nature, have, over time, become (instead of the homestead) a landmark in the district. Finally, the contrast between the homestead with its associated vegetation and the open, rural space below it, together with the ability to view the whole extent of the high spur accentuates its prominence. He described the House as a:- … rare remaining example of a property on the Cumberland Plains which has enough of the surrounding rural landscape adequately intact to allow a clear interpretation of the previous use of the house and land as a working farm. Mr Tropman expressed the opinion that, the setting is extremely important to the significance of the House, which he described as an ' exceptional item of environmental heritage '.

Both Mr Tropman and Mr Read were of the opinion that the SHR curtilage should be extended to the northern boundaries of the site as well as to the meadows leading to Ray Watts Road and the northern ridge of the landscape to provide proper recognition of the heritage value of the House.

The proposed residential development area and the alluvial flats are presently maintained as a meadow which could have been seen from the north facing bay window in the House. Vegetation presently growing near the House obscures such vista. Mr Tropman was of the opinion that the outlook from the House has highly significant historic and aesthetic values and comprises part of the " aesthetic presentation for arrival " at the House.

Mr Tropman did not accept the proposed "screen plantings" associated with the development would be adequate to preserve the historical significance of the House. In his opinion such plantings would be inconsistent with the objective in DCP 63 namely the creation of landscape characterized by crops of trees in open grassland. Views to the House would also be adversely affected by such planting.

Mr Tropman concluded:- To allow the proposed development to proceed would be a repetition of the mistake made in allowing the Macquarie Links Estate development to proceed with increased consequences related to the levels of significance of the views from the house to the proposed development area.

At an early stage of the preparation of the development proposal, Mr W Mayne-Wilson, landscape architect retained by the applicant prepared a Curtilage Study for the Macquarie Field House ("the study") which was reviewed by Mr R Mackay, heritage consultant retained by the applicant. The study traced the history and basis for the SHR Curtilage listing and its extension from 1.7 ha to 23 ha as required by the Heritage Council to incorporate the ' visual curtilage of this rural site '. The study recognized that the House, because of its surrounding vegetation and location on the tip of a high spur, had become a major landmark in the district. The study concluded that:- Taking into account the need to protect its landmark qualities, its architecture, plantings, outbuildings, archaeological remains, carriageway, garden and water supply elements, setting, and its historic farming origins, it is considered that the present curtilage of Macquarie Field House is, in combination with the view corridor established from the South Western Freeway down the gully towards the suburb of Glenfield, entirely appropriate and adequate for the protection of its heritage significance.

Mr Mackay acknowledged in his report that the development would have a number of negative impacts. These were identified as the erection of new dwellings within the visual catchment, alterations of views to the north, north-east and north-west from the House, changes to the visual setting, including introduction of fencing and the golf practice course. Mr Mackay found that such negative impacts were outweighed by a number of positive benefits, namely retention of the House; its garden and environs; maintenance of the visual prominence of the House within the surrounding landscape; an opportunity to provide resources for conservation planning and physical conservation activities; expansion of the existing House lot; protection of the visual setting through the community lot and visual corridor with restrictive covenants; maintenance of a rural farm 'visual character'; maintenance of most key views to and from the House; and no major adverse impact on the assessed significance of the House. Mr McKay concluded that the heritage impact on both the House and its curtilage would be acceptable and reasonable.

Mr Mayne-Wilson was of the opinion that following the development, the House with its position on the hill would continue to be visually dominant and maintain its significance despite the changes to its setting. Like Mr Mackay he did not believe that the impact upon the House would be unreasonable nor that the development would suffer from the adverse impacts of the Macquarie Links Estate to the south. He explained that despite the significance of the House which has been recognized for many years, no provision exists in any heritage instruments to protect the visual setting of the House or to control or limit development beyond the SHR curtilage boundary.

Mr Betteridge, heritage consultant retained by the applicant, considered the proposal to be acceptable and reasonable. He acknowledged that a change to the rural landscape would result from the development, but said that such change would be within acceptable limits. He considered that the SHR curtilage was sufficient to protect the significance of the House, since it would continue to be surrounded by gardens and an area of rural land, even beyond the SHR curtilage. He recognized the evolving landscape of the area and said that with appropriate landscaping and building controls, the proposed residential subdivision would be acceptable.

In terms of the relationship of the House to its landscape, Dr R Lamb, a visual and heritage consultant retained by the applicant, concluded that:- The orientation of the homestead and its address to the landscape has been adequately and correctly identified and that the proposal has been placed in the best possible location from a visual impact view point, i.e. on the east facing slope away from the main formal address of the house and outside the foreground from which it can best be appreciated from the east. The curtilage of "Macquarie Field House" would not be compromised and the opportunity for people to continue to appreciate the setting and the original outlook and relationship to the east and north east would be retained.

Dr Lamb opined that the proposal was reasonable given the constraints. He explained that the ' heritage of the place' has been considered in a holistic fashion namely, the consideration of the inter-relationship between the House and its landscape. Many landscape features would be retained and the House would, especially given its elevation, remain as a dominant feature when viewed from many vantage points including Macquarie Fields and Glenfield.

Mr G Smith, a consultant town planner retained by the applicant, accepted that the development would have some impact on the heritage significance of the House. He did not consider such impact to be unacceptable or unreasonable. His conclusion is based upon the fact that a 1990 local environmental study (which preceded LEP 112) hereafter referred to as the "LES" and the controls which derived from it, envisaged significant changes in consequence of development to lands which can be readily viewed from the House. Mr Smith considered that such changes would have a similar impact on the House as those which might result from the applicant's proposed development.

Mr V Murphy, a consultant town planner retained by the applicant, explained his interpretation of 'curtilage' as being an extension or part of the heritage item and the 'setting' being everything surrounding the item. He considered the heritage issues which arose in these proceedings to be primarily related to the visual setting of the House. Concurring with the other experts for the applicant he agreed that there would be some adverse impact on the setting, because of the change from a rural to a partly urban setting. He was of the opinion that the impact was not unreasonable especially given that the site had been zoned for urban development. Other factors which, in his opinion, indicate the acceptability of the proposal in the heritage context include the existence of the substantial buffer between the House and new buildings, and the fact that views to and from the House will remain substantially the same.

The Court has considered the conflicting expert opinions concerning the impact of the development upon the House and prefers the opinions expressed by the experts retained by the council. While development of a kind foreshadowed in the 1990 Master Plan could be acceptable, the proposed development would severely impact on the rural setting of the House. The Court does not accept the opinion of the applicant's experts that the wider setting of the House has already been lost. Rather, the Court considers that the integrity of the House and of its setting is in such a precarious position that any development in close proximity to, or which is inconsistent with its preservation would be likely to destroy its heritage significance.

The remaining undeveloped land surrounding the House and the SHR curtilage is central to its heritage value. The SHR curtilage would be affected by the creation of the golf practice course and it is apparent from the evidence of the council's experts that the development would intrude into the setting, and diminish the historical value of the House. The House is of substantial heritage significance and accordingly warrants preservation. A view of the House and the site has confirmed the conclusion of the Court.

The View Corridor 43. If the view corridor was to be positioned as shown on Map B of DCP 63, approximately one quarter of the proposed residential subdivision would intrude into it. The applicant proposes to make allowance for a view corridor which in part coincides with the council's recommended corridor at its western end and diverges significantly at its eastern end. The exact location of the view corridor is not specified in the LEP, nor in the DCP.

Mr J Burton, council's consultant town planner was of the opinion that the corridor was required to preserve views from the southern railway line and from the streets of Glenfield. He agreed the latter would be achieved by the applicant's location of the proposed corridor but not the former.

The provisions of LEP 112, when read in conjunction with DCP 63, envisage development between the SHR curtilage and the boundary of the site, separated by the view corridor. By moving the view corridor to the south, the proposal has the effect of combining such corridor with the SHR curtilage and a triangular area of land near Banburry Curran Creek. The question is whether, in such position, it achieves the general objective of providing a view corridor to the south-western corner of the site.

Mr Murphy said of the visual corridor requirement that ' the whole concept is misconceived and inappropriate' . Despite this conclusion he referred to the LES which, in making recommendations for a DCP states:- The distribution of buildings and plantings on the site should be arranged to ensure that it will be possible for an observer in Seddon Park, Glenfields, or at the Macquarie Fields Railway Station, to see through to the ridgetop along a belt of open land, at least, 100 m wide. Dr Lamb expressed his opinion as follows:- The position of the corridor as proposed would serve the purpose of scenic protection of both "Macquarie Field House" and the rural character of the landscape better than that depicted in the DCP. The proposed realigned corridor visually increases the area protected by the SHR boundary, thus maintaining a more intact and coherent landscape as the setting for "Macquarie Field House" than would be achieved by literal interpretation of the corridor.

It would have been of greater assistance if clear objectives for the view corridor had been provided in LEP 112 or DCP 63. Clause 3.2(c) of DCP 63 requires in effect that in considering an application for development the consent authority ' shall take into account the desirability of retaining corridors across the site generally in the locations shown on Map B… '.

While the proposed view corridor is not in the location shown on Map B of DCP 63 it has essentially the same effect. The applicant's proposal satisfies the requirement for a view corridor.

Separation between Development 49. Objectives 2(2)(c) and 2(2)(d) of LEP 112 seek the maintenance of a clearly perceived separation or 'break' between urban development in the City of Campbelltown and the City of Liverpool to provide a rural backdrop to the suburbs of Glenfield, Macquarie Fields and Ingleburn.

Mr Burton was of the opinion that despite the larger sized lots proposed for the development and provision of landscaping it would significantly reduce the effectiveness of the existing rural buffer between developed areas. He concluded that the rural backdrop for Glenfield and Macquarie Fields would be dramatically altered by the type of proposed development. Mr Burton considered that if development is to occur in this locality it should be below the ridgeline and above the alluvial meadows and of a similar density and layout to that of the Glenfield Special School.

Mr Read also thought that the urban break and the rural backdrop objectives would be affected because the development would be clearly seen from adjoining suburbs and from the railway to the east. In this regard, the impact was exacerbated because of the proximity of the site to the House. The adverse impacts would be compounded because the Macquarie Links Estate has already reduced the urban separation formerly available to the south of Macquarie Field House.

In relation to the urban separation or 'break', Mr Murphy held an opposite opinion to council's experts. He said:- If the development is approved there will still be a " clearly perceived break between urban development " in the two Cities. The subject site is a considerable distance away from the local government boundary, as a simple matter of fact. All the development proposed will be in a separate visual catchment. With the exception of a single rural dwelling, no part of any future building will be visible from Campbelltown Road or the South-Western Freeway. The visual character and landscape quality of any part of the site visible from the inter-City boundary will be preserved.
In relation to the rural backdrop objective he said:- The site will continue to provide a rural backdrop to the residential areas of Glenfield, Macquarie Fields and Ingleburn. With the one exception, no buildings are proposed above the ridge line. Generally, only limited development will be permitted above the base of the escarpment. A substantial area around the heritage item will be kept free of all buildings.

Dr Lamb gave evidence that the subdivision would retain the visual horizon line when viewed from the Glenfield area thus protecting the grassy ridge-line which would form a backdrop to the development. He also explained that many of the views of the development from the east are restricted or softened by existing vegetation. In these circumstances he considered that it met the objectives of LEP 112.

The planning instruments affecting the land clearly reflect that the visual separation is important for the public interest and the development of the locality. To a significant extent the Macquarie Fields Estate has already intruded into the space designated for this purpose and it is puzzling that council ever permitted such development. It is clearly inconsistent with council's 1990 Master Plan.

The Court is satisfied that any further erosion of the site by the proposed development would reduce the break to a mere token and accepts the evidence of the council's expert that the retention of the visual separation is important. Such separation is created not merely by the view corridor, but by sufficient open space to constitute a break in residential development between the cities of Liverpool and Campbelltown. The preservation of such a break is an important objective of LEP 112, and there is no justification for ignoring it. The separation could be retained by the type of development which is proposed in the 1990 Master Plan, but not by the current proposal for residential development.

Summary of conclusions 57. The development of the fields to the north of the House in a manner compatible with its significance is essential to the preservation of the setting of this heritage building, and its curtilage. Additionally the preservation of a visual separation to avoid unbroken residential development between the City of Liverpool and the City of Campbelltown is an express objective of LEP 112 and should be maintained. For these reasons, the Court considers that the application for the development of a residential subdivision should be refused. The site remains capable of development in a similar manner to that envisaged by the 1990 Master Plan.

That the appeal be dismissed.
The development application no G300016-98 dated 24 December 1998 made to Campbelltown City Council for a residential subdivision and facilities on land comprising DP 854870, DP 828871 and DP 612265 is determined by refusal of consent.
The exhibits be returned

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.

8. The proposed development is inconsistent with the provisions of Campbelltown Development Control Plan No. 63 (DCP 63) in particular clauses 3.1, 3.2, 4(c), 5 and 6.3.

9. The proposed development will have an unacceptable adverse impact upon an aboriginal relic site.

10. The proposed development is contrary to the public interest.

25. The Court has addressed the points of contention between the parties by the consideration of three significant issues, namely; the curtilage and setting of the House; the view corridor envisaged by the 1990 Master Plan and the separation in urban development between the City of Liverpool and the City of Campbelltown as provided by cl 2 (c) of LEP 112.

The Curtilage and Setting of Macquarie Field House

26. In a report to the Heritage Council, Mr Read, council's landscape architect, expressed the opinion that adverse visual and physical impacts would affect the House if the residential subdivision of some 168 lots (compared to the 40 dwellings envisaged in the 1990 Master Plan) were implemented. The House is a rare surviving example of a colonial farm and the development would impinge upon the visual aesthetics of the open fields and hilltop. Mr Read was not opposed to some development of the site as indicated in the 1990 Master Plan or as suggested by Mr L Tropman, council's conservation architect.

27. Mr Tropman was concerned that the proposed development of the site would have a negative impact both on the heritage significance of the House and the views and vistas to and from the House. Mr Tropman considered the development would be detrimental to the general setting of the House but accepted like Mr Read, that the 1990 Master Plan was an appropriate compromise for the development of the site.

28. Mr Tropman described the House and its site in the following terms:-

Macquarie Field House itself is a rare remaining example of a Regency style house in the Cowpastures/Camden area. The house is a significant landmark in the area for a number of reasons. Firstly_, the house was deliberately sited on the top of a high spur which made it prominent in the area soon after its construction._ Secondly_, the important remnant plantings, due to their size and abundant nature, have, over time, become (instead of the homestead) a landmark in the district. Finally, the contrast between the homestead with its associated vegetation and the open, rural space below it, together with the ability to view the whole extent of the high spur accentuates its prominence._

... rare remaining example of a property on the Cumberland Plains which has enough of the surrounding rural landscape adequately intact to allow a clear interpretation of the previous use of the house and land as a working farm.

Mr Tropman expressed the opinion that, the setting is extremely important to the significance of the House, which he described as an `exceptional item of environmental heritage'.

29. Both Mr Tropman and Mr Read were of the opinion that the SHR curtilage should be extended to the northern boundaries of the site as well as to the meadows leading to Ray Watts Road and the northern ridge of the landscape to provide proper recognition of the heritage value of the House.

30. The proposed residential development area and the alluvial flats are presently maintained as a meadow which could have been seen from the north facing bay window in the House. Vegetation presently growing near the House obscures such vista. Mr Tropman was of the opinion that the outlook from the House has highly significant historic and aesthetic values and comprises part of the "aesthetic presentation for arrival" at the House.

31. Mr Tropman did not accept the proposed "screen plantings" associated with the development would be adequate to preserve the historical significance of the House. In his opinion such plantings would be inconsistent with the objective in DCP 63 namely the creation of landscape characterized by crops of trees in open grassland. Views to the House would also be adversely affected by such planting.

To allow the proposed development to proceed would be a repetition of the mistake made in allowing the Macquarie Links Estate development to proceed with increased consequences related to the levels of significance of the views from the house to the proposed development area.

33. At an early stage of the preparation of the development proposal, Mr W Mayne-Wilson, landscape architect retained by the applicant prepared a Curtilage Study for the Macquarie Field House ("the study") which was reviewed by Mr R Mackay, heritage consultant retained by the applicant. The study traced the history and basis for the SHR Curtilage listing and its extension from 1.7 ha to 23 ha as required by the Heritage Council to incorporate the `visual curtilage of this rural site'. The study recognized that the House, because of its surrounding vegetation and location on the tip of a high spur, had become a major landmark in the district. The study concluded that:-

Taking into account the need to protect its landmark qualities, its architecture, plantings, outbuildings, archaeological remains, carriageway, garden and water supply elements, setting, and its historic farming origins, it is considered that the present curtilage of Macquarie Field House is, in combination with the view corridor established from the South Western Freeway down the gully towards the suburb of Glenfield, entirely appropriate and adequate for the protection of its heritage significance.

34. Mr Mackay acknowledged in his report that the development would have a number of negative impacts. These were identified as the erection of new dwellings within the visual catchment, alterations of views to the north, north-east and north-west from the House, changes to the visual setting, including introduction of fencing and the golf practice course. Mr Mackay found that such negative impacts were outweighed by a number of positive benefits, namely retention of the House; its garden and environs; maintenance of the visual prominence of the House within the surrounding landscape; an opportunity to provide resources for conservation planning and physical conservation activities; expansion of the existing House lot; protection of the visual setting through the community lot and visual corridor with restrictive covenants; maintenance of a rural farm `visual character'; maintenance of most key views to and from the House; and no major adverse impact on the assessed significance of the House. Mr McKay concluded that the heritage impact on both the House and its curtilage would be acceptable and reasonable.

35. Mr Mayne-Wilson was of the opinion that following the development, the House with its position on the hill would continue to be visually dominant and maintain its significance despite the changes to its setting. Like Mr Mackay he did not believe that the impact upon the House would be unreasonable nor that the development would suffer from the adverse impacts of the Macquarie Links Estate to the south. He explained that despite the significance of the House which has been recognized for many years, no provision exists in any heritage instruments to protect the visual setting of the House or to control or limit development beyond the SHR curtilage boundary.

36. Mr Betteridge, heritage consultant retained by the applicant, considered the proposal to be acceptable and reasonable. He acknowledged that a change to the rural landscape would result from the development, but said that such change would be within acceptable limits. He considered that the SHR curtilage was sufficient to protect the significance of the House, since it would continue to be surrounded by gardens and an area of rural land, even beyond the SHR curtilage. He recognized the evolving landscape of the area and said that with appropriate landscaping and building controls, the proposed residential subdivision would be acceptable.

37. In terms of the relationship of the House to its landscape, Dr R Lamb, a visual and heritage consultant retained by the applicant, concluded that:-

The orientation of the homestead and its address to the landscape has been adequately and correctly identified and that the proposal has been placed in the best possible location from a visual impact view point, i.e. on the east facing slope away from the main formal address of the house and outside the foreground from which it can best be appreciated from the east. The curtilage of "Macquarie Field House" would not be compromised and the opportunity for people to continue to appreciate the setting and the original outlook and relationship to the east and north east would be retained.

38. Dr Lamb opined that the proposal was reasonable given the constraints. He explained that the `heritage of the place' has been considered in a holistic fashion namely, the consideration of the inter-relationship between the House and its landscape. Many landscape features would be retained and the House would, especially given its elevation, remain as a dominant feature when viewed from many vantage points including Macquarie Fields and Glenfield.

39. Mr G Smith, a consultant town planner retained by the applicant, accepted that the development would have some impact on the heritage significance of the House. He did not consider such impact to be unacceptable or unreasonable. His conclusion is based upon the fact that a 1990 local environmental study (which preceded LEP 112) hereafter referred to as the "LES" and the controls which derived from it, envisaged significant changes in consequence of development to lands which can be readily viewed from the House. Mr Smith considered that such changes would have a similar impact on the House as those which might result from the applicant's proposed development.

40. Mr V Murphy, a consultant town planner retained by the applicant, explained his interpretation of `curtilage' as being an extension or part of the heritage item and the `setting' being everything surrounding the item. He considered the heritage issues which arose in these proceedings to be primarily related to the visual setting of the House. Concurring with the other experts for the applicant he agreed that there would be some adverse impact on the setting, because of the change from a rural to a partly urban setting. He was of the opinion that the impact was not unreasonable especially given that the site had been zoned for urban development. Other factors which, in his opinion, indicate the acceptability of the proposal in the heritage context include the existence of the substantial buffer between the House and new buildings, and the fact that views to and from the House will remain substantially the same.

41. The Court has considered the conflicting expert opinions concerning the impact of the development upon the House and prefers the opinions expressed by the experts retained by the council. While development of a kind foreshadowed in the 1990 Master Plan could be acceptable, the proposed development would severely impact on the rural setting of the House. The Court does not accept the opinion of the applicant's experts that the wider setting of the House has already been lost. Rather, the Court considers that the integrity of the House and of its setting is in such a precarious position that any development in close proximity to, or which is inconsistent with its preservation would be likely to destroy its heritage significance.

42. The remaining undeveloped land surrounding the House and the SHR curtilage is central to its heritage value. The SHR curtilage would be affected by the creation of the golf practice course and it is apparent from the evidence of the council's experts that the development would intrude into the setting, and diminish the historical value of the House. The House is of substantial heritage significance and accordingly warrants preservation. A view of the House and the site has confirmed the conclusion of the Court.

43. If the view corridor was to be positioned as shown on Map B of DCP 63, approximately one quarter of the proposed residential subdivision would intrude into it. The applicant proposes to make allowance for a view corridor which in part coincides with the council's recommended corridor at its western end and diverges significantly at its eastern end. The exact location of the view corridor is not specified in the LEP, nor in the DCP.

44. Mr J Burton, council's consultant town planner was of the opinion that the corridor was required to preserve views from the southern railway line and from the streets of Glenfield. He agreed the latter would be achieved by the applicant's location of the proposed corridor but not the former.

45. The provisions of LEP 112, when read in conjunction with DCP 63, envisage development between the SHR curtilage and the boundary of the site, separated by the view corridor. By moving the view corridor to the south, the proposal has the effect of combining such corridor with the SHR curtilage and a triangular area of land near Banburry Curran Creek. The question is whether, in such position, it achieves the general objective of providing a view corridor to the south-western corner of the site.

46. Mr Murphy said of the visual corridor requirement that `the whole concept is misconceived and inappropriate'. Despite this conclusion he referred to the LES which, in making recommendations for a DCP states:-

The distribution of buildings and plantings on the site should be arranged to ensure that it will be possible for an observer in Seddon Park, Glenfields, or at the Macquarie Fields Railway Station, to see through to the ridgetop along a belt of open land, at least, 100 m wide.

The position of the corridor as proposed would serve the purpose of scenic protection of both "Macquarie Field House" and the rural character of the landscape better than that depicted in the DCP. The proposed realigned corridor visually increases the area protected by the SHR boundary, thus maintaining a more intact and coherent landscape as the setting for "Macquarie Field House" than would be achieved by literal interpretation of the corridor.

47. It would have been of greater assistance if clear objectives for the view corridor had been provided in LEP 112 or DCP 63. Clause 3.2(c) of DCP 63 requires in effect that in considering an application for development the consent authority `shall take into account the desirability of retaining corridors across the site generally in the locations shown on Map B...'.

48. While the proposed view corridor is not in the location shown on Map B of DCP 63 it has essentially the same effect. The applicant's proposal satisfies the requirement for a view corridor.

49. Objectives 2(2)(c) and 2(2)(d) of LEP 112 seek the maintenance of a clearly perceived separation or `break' between urban development in the City of Campbelltown and the City of Liverpool to provide a rural backdrop to the suburbs of Glenfield, Macquarie Fields and Ingleburn.

50. Mr Burton was of the opinion that despite the larger sized lots proposed for the development and provision of landscaping it would significantly reduce the effectiveness of the existing rural buffer between developed areas. He concluded that the rural backdrop for Glenfield and Macquarie Fields would be dramatically altered by the type of proposed development. Mr Burton considered that if development is to occur in this locality it should be below the ridgeline and above the alluvial meadows and of a similar density and layout to that of the Glenfield Special School.

51. Mr Read also thought that the urban break and the rural backdrop objectives would be affected because the development would be clearly seen from adjoining suburbs and from the railway to the east. In this regard, the impact was exacerbated because of the proximity of the site to the House. The adverse impacts would be compounded because the Macquarie Links Estate has already reduced the urban separation formerly available to the south of Macquarie Field House.

52. In relation to the urban separation or `break', Mr Murphy held an opposite opinion to council's experts. He said:-

If the development is approved there will still be a "clearly perceived break between urban development" in the two Cities. The subject site is a considerable distance away from the local government boundary, as a simple matter of fact. All the development proposed will be in a separate visual catchment. With the exception of a single rural dwelling, no part of any future building will be visible from Campbelltown Road or the South-Western Freeway. The visual character and landscape quality of any part of the site visible from the inter-City boundary will be preserved.

53. In relation to the rural backdrop objective he said:-

The site will continue to provide a rural backdrop to the residential areas of Glenfield, Macquarie Fields and Ingleburn. With the one exception, no buildings are proposed above the ridge line. Generally, only limited development will be permitted above the base of the escarpment. A substantial area around the heritage item will be kept free of all buildings.

54. Dr Lamb gave evidence that the subdivision would retain the visual horizon line when viewed from the Glenfield area thus protecting the grassy ridge-line which would form a backdrop to the development. He also explained that many of the views of the development from the east are restricted or softened by existing vegetation. In these circumstances he considered that it met the objectives of LEP 112.

55. The planning instruments affecting the land clearly reflect that the visual separation is important for the public interest and the development of the locality. To a significant extent the Macquarie Fields Estate has already intruded into the space designated for this purpose and it is puzzling that council ever permitted such development. It is clearly inconsistent with council's 1990 Master Plan.

56. The Court is satisfied that any further erosion of the site by the proposed development would reduce the break to a mere token and accepts the evidence of the council's expert that the retention of the visual separation is important. Such separation is created not merely by the view corridor, but by sufficient open space to constitute a break in residential development between the cities of Liverpool and Campbelltown. The preservation of such a break is an important objective of LEP 112, and there is no justification for ignoring it. The separation could be retained by the type of development which is proposed in the 1990 Master Plan, but not by the current proposal for residential development.

57. The development of the fields to the north of the House in a manner compatible with its significance is essential to the preservation of the setting of this heritage building, and its curtilage. Additionally the preservation of a visual separation to avoid unbroken residential development between the City of Liverpool and the City of Campbelltown is an express objective of LEP 112 and should be maintained. For these reasons, the Court considers that the application for the development of a residential subdivision should be refused. The site remains capable of development in a similar manner to that envisaged by the 1990 Master Plan.

2. The development application no G300016-98 dated 24 December 1998 made to Campbelltown City Council for a residential subdivision and facilities on land comprising DP 854870, DP 828871 and DP 612265 is determined by refusal of consent.

Planning and Assessment Act 1979

At a glance

Court

Decision date

Before

Source

Judgment (123 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)