Anvest Holdings Pty Ltd v Blacktown City Council

Case •

[2023] NSWLEC 1158

•

05 April 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Anvest Holdings Pty Ltd v Blacktown City Council [2023] NSWLEC 1158
Hearing dates: 7-9 February 2023: Submissions on 23 February, 27 February 2023, and 17 March 2023
Date of orders: 5 April 2023
Decision date: 05 April 2023
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Restrictions 5, 6, 7 and 19 contained in the section 88B instrument relating to DP1254249 do not apply to the development the subject of Land and Environment Court Proceedings 2022/101518, to the extent necessary to enable the development the subject of the grant of consent to be carried out.

(3) Development application DA-22-00049 for proposed lot amalgamation and construction of a centre-based child care facility with associated landscaping and carparking is determined by the grant of consent, subject to conditions of consent at Annexure A

(4) All Exhibits are returned, except for Exhibits D and E.

Catchwords:

DEVELOPMENT APPLICATION: centre based child care facility – Blacktown Growth Centres Precinct Plan – Clydesdale House Precinct Plan Control Area – streetscape character – restriction as to user

Legislation Cited:

Conveyancing Act 1919, s 88E

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.14

Environmental Planning and Assessment Regulation 2000 cl 55

Heritage Act 1977, s 38A, 57, 62

Land and Environment Court Act 1979, s 39

Local Government Act, ss 223, 335

State Environmental Planning Policy (Education Establishments and Child Care) 2017, cl 23

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy (Precincts – Central River City) 2021, ss 1.4, 1.9A, 3.10 App 11ss 4.3, 4.4, 5.10, 6.1, Sch 5,

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 9, Ch 3

Cases Cited:

Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191

Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135

Texts Cited:

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Blacktown Development Control Plan 2015

NSW Planning & Environment, Child Care Planning Guidelines, August 2017

Category:Principal judgment
Parties: Anvest Holdings Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
A Pickles SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2022/101518
Publication restriction: No

Judgment

  1. COMMISSIONER: This appeal relates to a proposal for a centre-based child care facility to accommodate 84 children and 14 staff, comprising outdoor covered play areas, playground equipment, acoustic and security fencing with associated landscaping and car parking at a site formed by the amalgamation of four lots in Marsden Park.

  2. To this end, the Applicant in these proceedings, Anvest Holdings Pty Ltd (Anvest) lodged development application DA-22-00049 with Blacktown City Council (the Respondent) on 20 January 2022.

  3. The development application was subsequently notified to property owners and occupiers in the vicinity of the site between 23 February – 25 March 2022.

  4. On 8 April 2022, as the development application was otherwise undetermined, Anvest filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  5. Anvest amended the development application on 18 November 2022 by notice of motion later marked Exhibit D.

  6. Anvest was also granted leave to rely upon amended architectural plans agreed by the parties to resolve certain discrepancies of a minor nature in respect of fencing, on drawings A200 and A401.

  7. It is also relevant to record here that Anvest was granted leave, unopposed, to file corrected landscape plans after the Court reserved its decision, following identification of certain inconsistencies. Amended landscape plans were filed on 23 February 2023.

  8. The matters for the Court to determine in this matter may be summarised as whether:

  1. Firstly, the effect of the proposed development is acceptable on the heritage significance of the Clydesdale Estate, of which it forms a part.

  2. Secondly, the scale, bulk and character of the proposal is consistent with the locality is which it is sited

  3. Thirdly, the restriction on the use of the subject land should be extinguished or otherwise disturbed.

The site and its context

  1. The site is in an area of former rural land undergoing rapid urban development. Both newly constructed and virtually complete homes are evident on lots in the immediate vicinity of the site as is site fencing, material stockpiles and other signs of construction activity.

  2. It is in this context that the site comprises four lots formed by an earlier subdivision of land that was originally part of the Clydesdale Farm property, recognised for its heritage significance at both the state and local level.

  3. The proposed consolidation of the lots results in a site that addresses three streets identified as Coromandel Street to the west, Clydesdale Farm Road to the north and Bakehouse Avenue to the east.

  4. The lots are legally described as Lots 1001, 1017, 1018 and 1019 in DP 1254249, and are otherwise known as Nos 21, 23 and 25 Clydesdale Farm Road, and No 38 Coromandel Avenue, Marsden Park. Together the lots forming the site have a total area of 2,421.2m2.

  5. Directly across Clydesdale Farm Road to the north is an expanse of open land, identified variously as part of the former Clydesdale Farm, and floodplain. To the approximate north of this land is Richmond Road.

  6. Certain restrictions on title apply to some or all of the lots, about which more will be said. Two aspects of the restriction are relevant to note here:

  1. The Restriction of Use distinguishes certain lots fronting Clydesdale Farm Road, and certain lots south of this frontage. The terms of the Restriction are relevant insofar as requiring development on the lots fronting Clydesdale Farm Road to be single storey only, but two-storey development is permitted on lots to the south of those lots fronting Clydesdale Farm Road, and for fencing, materials and finishes to conform to certain terms.

  2. The restriction applies the following to all of the lots comprising the site:

“…

b) Only single dwelling developments will be permitted. Dual occupancy/secondary dwelling developments are prohibited.”(Exhibit D, Tab 19)

  1. A two-storey dwelling has recently been constructed on the adjoining site to the south of the site at No 31 Bakehouse Avenue.

  2. The site is located within the Marsden Park precinct, identified as a part of the North West Growth Centre in the State Environmental Planning Policy (Precincts – Central River City) 2021 (Central City SEPP).

  3. The site is also located within the R2 Low Density Residential zone according to the Central City SEPP, in which centre-based child care facilities are permitted with consent, where consistent with objectives of the R2 zone that are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow residents to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

•  To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

  1. The site is also a part of an item of state heritage significance, identified in the Central City SEPP at Sch 5 of Appendix 11 ‘Blacktown Growth Centres Precinct Plan’ as Clydesdale House – Farmers Cottages and Barn (Clydesdale Farm).

  2. The Amended Statement of Facts and Contentions, authored by the Respondent (Exhibit 1) records that the site is identified as “Flood Prone and Major Creeks Land” according to the North West Growth Centre Development Control Map Sheet DVC_005, published under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), in respect of which a flood emergency response plan (Exhibit D, Tab 12) has been prepared to the satisfaction of the Respondent (Exhibit 4).

The planning framework

  1. It is necessary to describe the planning framework that applies to the site, in the circumstances of this case.

The Heritage Act 1977

  1. As the site is part of the former Clydesdale Farm about which more will be said, the provisions of the Heritage Act 1977 (Heritage Act) apply.

The applicable State Environmental Planning Policy

  1. Section 1.4 of the Central City SEPP provides for the transfer of provisions from the former Growth Centres SEPP.

  2. Section 3.10 of the Central City SEPP identifies controls applying to the Marsden Park Precinct at Appendix 11, to the extent that the Blacktown Growth Centres Precinct Plan 2013 (Blacktown Growth Centres Precinct Plan) applies.

  3. Appendix 11 is titled Blacktown Growth Centres Precinct Plan, and relevantly provides:

  1. The land use table, identifying the site is zoned R2 Low Density Residential

  2. The height of building standard applicable to the site is 9 m (cl 4.3)

  3. The site is not identified as having a floor space ratio applied (cl 4.4)

  4. Provisions in respect of heritage conservation (cl 5.10)

  5. Development consent must not be granted unless the Court is satisfied that public utility infrastructure essential for the proposed development is available when required (cl 6.1)

  6. The description of Clydesdale Farm is set out in Schedule 5 (folio 102)

The applicable development control plan

  1. As the site is within the Blacktown Growth Centre, the Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (Blacktown Precinct DCP) applies, as does the Blacktown Development Control Plan 2015 (BDCP 2015).

  2. The relationship between the Blacktown Precinct DCP (Exhibit 2, Tab 15) and the Growth Centres SEPP is set out at Section 1.4 of the Blacktown Precinct DCP, advising that it:

“…should be read in conjunction with the Growth Centres SEPP, in particular the specific Precinct Plans which are included as Appendices of the SEPP. The Growth Centres SEPP and the relevant Precinct Plan provide the statutory planning controls for development in the Precinct. This DCP is consistent with and supports those controls by providing more detail in relation to how development is to occur in the Precinct.”

  1. Schedule 6 of the Blacktown Precinct DCP applies to Marsden Park Precinct, in which the site is located.

  2. Section 3 of Schedule 6 deals with Subdivision planning and design in the Marsden Park Precinct, the purpose of which is to establish an overall vision and Indicative Layout Plan for the future development of the Precinct (Section 1.2).

  3. Section 3.1 states relevantly:

“Planning for the Marsden Park Precinct responds to the need for new and diverse housing in Sydney that is well connected to major centres and employment, protects natural assets and encourages sustainable living. Consideration of the surrounding context, history and natural environment has informed the precinct planning process.

…

Items and places of significant heritage value, particularly Aboriginal heritage and Clydesdale Estate, have been integrated into the planning of the Precinct and protected through a sensitive design approach.”

  1. Figure 3-1 is the Indicative Layout Plan (ILP) for the Marsden Park Precinct (folio 197), in which the site, Clydesdale House and other precinct features relevant to this case are depicted in an area defined as the Clydesdale House Precinct Plan Control Area (CHPPCA).

  2. Section 2.2 of the Blacktown Precinct DCP explains the ILP forms the basis for urban development in the Precinct by setting out:

  • The road network

  • Public transport routes

  • The open space and drainage networks

  • The locations of land uses including residential development, schools, community facilities, utilities, centres and employment lands

  • Areas requiring protection because of environmental or heritage values

  • The target density and types of housing that are preferred in various parts of the Precinct

  1. The controls, at Section 2.2.2 of the Blacktown Precinct DCP include, relevantly:

“1. All development applications are to be generally in accordance with the Indicative Layout Plan

….”

  1. As the proposal is for development other than residential development in a residential area, Section 4.4 of the Blacktown Precinct DCP applies and relevantly provides:

“The residential zones within the Precinct Plan permit a range of non-residential land uses which, depending on their scale, suitability, location and design, may be compatible with adjoining residential uses. Reference should be made to the Precinct Plan for the permissibility of specific non-residential uses in each zone, including the zoning table in Part 3 and the local provisions in Part 6. For some land uses, the local provisions in Part 6 specify additional requirements that must be met for council to grant consent to these uses. The Precinct Plan recognises that allowing non-residential development in the residential zones is appropriate providing controls are in place to minimise the negative impacts of noise, loss of privacy, traffic, parking and other nuisances on local residential amenity. The controls for non-residential development consist of:

• General requirements, which apply to all non-residential development in residential zones.

• Specific provisions covering land uses such as child care centres, neighbourhood shops, educational establishments and places of public worship, in addition to, or overriding, the general requirements.

Note: In the event of an inconsistency between the general and specific provisions in this section of the DCP, the specific controls will prevail.

…”

  1. General requirements are set out in Section 4.4.1 of the Blacktown Precinct DCP. The objectives are:

“a. To establish appropriate controls to minimise the adverse effects of non-residential development on surrounding residential development.

b. To maintain consistency in development standards between non-residential and residential land uses and ensure that buildings are similar in height, bulk and scale to surrounding buildings.

c. To ensure that non-residential development is appropriately located.

d. To avoid concentrations of non-residential uses in any particular area where the cumulative impact on residential amenity would be unacceptable.”

  1. Specific controls that prevail over general controls in the event of inconsistency are at Section 4.4.1.3 and relevantly provide:

“1. Non-residential development on residential zoned land is to comply with the requirements of Section 4.1 and clauses 4.2.9 to 4.2.10 of this DCP in relation to residential amenity and sustainable building design.

2. For all non-residential development, the controls relating to lots with frontages greater than 15 metres in the following clauses of this DCP apply:

Clause 4.2.3 Front setbacks;

Clause 4.2.4 Side and rear setbacks;

…

8. Council will have particular regard to the effects of non-residential development in the residential zones. Council will consider whether:

• the proposed development will be out of character with surrounding residential development, particularly in relation to the height and/or scale of any proposed buildings;

…

9. Non-residential development in residential zones should be similar in bulk, scale, height and siting to the surrounding buildings.

10. Finishes, materials, paving and landscaping are to be consistent with those of surrounding residential development.”

  1. Section 4.4.2 of the Blacktown Precinct DCP provides objectives and controls for Child Care Centres which, according to the introduction, at Section 4.4.2.1, summarises controls contained within Part C of the BDCP 2015, to which Applicants are directed for comprehensive controls applicable to Child Care Centre developments in the Precinct.

  2. Section 4.4.2.3 tabulates the controls relevant to the proposal in the following terms:

  • Distance separation: the site must not be adjoining or directly across the road from another approved or operating child care centre

  • Minimum allotment size: 900m2 is recommended

  • Minimum frontage width: 26m is recommended

  • Capacity: 40 places for children is recommended with at least 4 places for children under 2 years of age

  • Front setback: 6m

  • Front car parking setback: 2m (setback must be landscaped)

  • Side Setback: 1m (side setback must be landscaped)

  • Rear setback: 1m (side setback must be landscaped)

  1. It is commonly held by the parties, supported by the evidence of the planning experts, that certain controls listed above have no effect as the provisions of the relevant environment planning instrument, explained at [41]-[44], prevail.

  2. Section 4.4.2.4 provides guidance on site selection for child care centres, including relevantly, according to the Applicant:

“if practical, be located on sites that have minimal common boundaries with residential neighbours.”

  1. Section 4.4.2.5 sets out matters for consideration, including relevantly:

“the extent to which the design of the proposed development is consistent with the desired character of the residential area in which it is located.

…

Whether the landscape design complements the building and streetscape, provides screening for car parking and outdoor play pace, and incorporates learning and educational opportunities for children…”

The application of State Environmental Planning Policy (Transport and Infrastructure) 2021 is limited

  1. State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the proposal, but for the provisions contained in Ch 3 by virtue of the Savings provision at Sch 9 (1) that states:

Chapter 3 does not apply to or in respect of the determination of a development application made under Part 4 of the (EPA) Act, but not finally determined before the commencement of Chapter 3.

  1. That said, Sch 9(2) contains an exception that, despite the above, a consent authority must take into consideration regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the NSW Planning and Environment Child Care Planning Guideline, August 2017 where that development application is for the purpose of a centre based childcare facility, as in this case.

  2. However, Sch 9(5) then provides, in respect of the above, that an application answering the description at [41] is to be determined as if Ch 3 of the Transport and Infrastructure SEPP had not been made.

  3. The practical effect of the above is that Ch 3 of the Transport and Infrastructure SEPP does not apply to this proposal. Instead, the provisions of State Environmental Planning Policy (Education Establishments and Child Care) 2017 (Child Care SEPP) apply, with effectively the same outcome.

The applicable provisions of the Child Care SEPP

  1. The parties agree that the proposal complies with the relevant provisions of the Child Care SEPP. However, the Respondent contends the proposal fails to appropriately consider the following matters for consideration that are set out in the Child Care planning guideline, that the Court must take into consideration in accordance with cl 23 of the Child Care SEPP (Exhibit 2, Tab 17):

“C1

Objective: to ensure that appropriate zone considerations are assessed when selecting a site.

…

- the setbacks and siting of buildings within the residential context

- visual amenity impacts (e.g. additional building bulk and overshadowing, local character)

…

C2

Objective: to ensure that the site selected for a proposed child care facility is suitable for the use.

…

- the characteristics of the site are suitable for the scale and type of development proposed having regard to:

- length of street frontage, lot configuration, dimensions and overall size.

- number of shared boundaries with residential properties

…

C5

Objective: to ensure that the child care facility is compatible with the local character and surrounding streetscape.

…

• contribute to the local area by being designed in such a way to respond to the character of the locality and existing streetscape

• build on the valued characteristics of the neighbourhood and draw from the physical surrounds, history and culture of place

• reflect the predominant form of surrounding land uses, particularly in low density residential areas

• recognise and respond to predominant streetscape qualities, such as building form, scale, materials and colours

• include design and architectural treatments that respond to and integrate with the existing streetscape and local character

• use landscaping to positively contribute to the streetscape and neighbouring and neighbourhood amenity

• integrate car parking into the building and site landscaping design in residential areas

…

C9

Objective: to ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain.

Front fences and walls within the front setback should be constructed of visually permeable materials and treatments. Where the site is listed as a heritage item, adjacent to a heritage item or within a conservation area front fencing should be designed in accordance with local heritage provisions.

…

C12

Objective: to ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised.

…

• setbacks should provide adequate access for building maintenance

• setbacks to the street should be consistent with the existing character.

Where a Local Environmental Plan or Development Control Plan do not specify a floor space ratio for the R2 Low Density Residential zone, a floor space ratio of 0.5:1 is to apply to a child care facility in the R2 zone.

C13

Objective: to ensure that setbacks from the boundary of a child care facility are consistent with predominant development within the immediate context.

…

C14

Objective: On land in a residential zone, side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house.

…

C17

Objective: to provide landscape design that contributes to the streetscape and amenity.

…

C18

Incorporate car parking into the landscape design of the site by:

…

• taking into account streetscape, local character, pedestrian safety and context when siting car parking areas within the front setback.”

…

The effect of the proposed development on heritage significance

  1. The Respondent contends that the proposal should be refused as it imposes an unacceptable and adverse impact on the heritage significance of ‘Clydesdale Farm’, which is a place of state heritage value.

  2. The Court was assisted in its consideration of heritage matters by the evidence of Mr Paul Rappoport on behalf of the Applicant, and Ms Samantha Polkinghorne on behalf of the Respondent who conferred in the preparation of a joint expert report (Exhibit 5).

  3. As Clydesdale Farm is listed for its state heritage significance, s 38A of the Heritage Act applies, and it provides for the preparation and endorsement of a conservation management plan by the Heritage Council in the following terms:

38A   Conservation management plans for State heritage items

(1)  The Heritage Council may, for the purposes of this Act, endorse a conservation management plan for an item listed on the State Heritage Register.

(2)  The regulations may make provision for or with respect to conservation management plans for items listed on the State Heritage Register.

(3)  In this section—

conservation management plan means a document that—

(a)  identifies the State heritage significance of an item, and

(b)  sets out policies and strategies for the retention of that significance, and

(c)  is prepared in accordance with the guidelines for the preparation of conservation management plans (if any) publicly issued from time to time by the Heritage Council.

  1. As the site is within the curtilage of Clydesdale Farm, s 57 of the Heritage Act relevantly provides:

57   Effect of interim heritage orders and listing on State Heritage Register

(1)  When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3—

(a)  demolish the building or work,

(b)  damage or despoil the place, precinct or land, or any part of the place, precinct or land,

(c)  move, damage or destroy the relic or moveable object,

(d)  excavate any land for the purpose of exposing or moving the relic

(e)  carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,

(f)  alter the building, work, relic or moveable object,

(g)  display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct,

(h)  damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.

…

  1. Section 6.1, Section 2 of Schedule 6 of the Blacktown Precinct DCP requires that all development within an area identified in Figure 6-1 must comply with the recommendations of a Conservation Management Plan (CMP) endorsed by the NSW Heritage Council.

  2. Section 6.1 also deals with site specific controls for development around Clydesdale Farm and other locally listed heritage items, with objectives in the following terms:

“Objectives

a. To protect the rural and visual curtilage of the State Heritage Item, Clydesdale House;

b. To ensure that residential development within Lot 2 DP 260476 is compatible with the heritage significance of Clydesdale House, including its rural setting;

c. To ensure that the future of heritage items within the Marsden Park Precinct are considered in the context of the development potential of the site;

d. To ensure that heritage items are integrated with the development of the Precinct; and

e. To provide opportunities for interpretation of the history of Marsden Park.”

  1. Controls in respect of the Clydesdale Farm provide relevantly at Section 6.1 of Schedule 6 state:

“The following controls apply to land defined State Heritage Curtilage for Clydesdale Estate as identified in Figure 6-1.

Conservation Management Plan

2 A Conservation Management Plan (CMP) is required for all development located within the State Heritage curtilage of the Clydesdale Estate (SHR 674). The CMP must be prepared in accordance with the requirements of the NSW Heritage Office. The CMP shall establish the heritage significance of an item. The CMP shall identify conservation policies and management mechanisms that are appropriate to enable that significance be retained. The CMP must include:

a. Detailed objectives for the conservation of the rural curtilage of Clydesdale House;

b. Provisions for the conservation, interpretation and management of the view corridors and rural setting of Clydesdale House;

c. Provisions for the new development with regard to the protection of visual corridors and the rural setting, with detailed building form, materials and colour guidelines, consistent with the materials and finishes colour palette (refer to Figure 6-3);

d. Provisions for the subdivision of the residential portions within Figure 6-1; and

e. Development of site specific exemptions for inclusion in a section 88B instrument for a Heritage covenant on the future residential development of the area.

2. All development within the area identified in Figure 6-1 must comply with the recommendations of a CMP endorsed by the NSW Heritage Council and Blacktown City Council.

3. Low density residential development identified in Figure 6-1 shall comply with the building envelope controls identified in Figure 6-2.

…

Landscape and View Corridors

11. Ensure that views to the South Creek floodplain are maintained to both sides of Richmond Road when travelling north, to maintain the floodplain context within which Clydesdale House is seen (refer to Figure 6-4).

…

Heritage Interpretation Strategy

17. A Heritage Interpretation Strategy (HIS) shall be prepared for development of items identified in Figure 6-1. The HIS must be prepared by an appropriately qualified consultant and must contain the following:

- photographic recording and documentation of heritage items;

- proposed location of interpretive works;

- built form;

- landscape design;

- public art;

- signage; and

- provisions for education and general interest.

Heritage Impact Statement

18. A heritage impact statement must be prepared by a suitably qualified practitioner for development of or adjacent to items identified in Figure 3-6. It must consist of a statement demonstrating the heritage significance of a heritage item, assessment of the impact that proposed development will have on that significance and proposals for measures to minimise that impact.”

  1. Accordingly, it is relevant to summarise the background, context, analysis and policies contained in the CMP for the Clydesdale Farm, prepared by GBA Heritage dated December 2017 (Exhibit 3, Tab 1).

  2. At the outset, I note a stamp affixed to the CMP states the CMP was endorsed by Heritage NSW on 20 December 2017. The stamp also bears an expiry date of 20 December 2022, however parties submit that as no other CMP has been prepared, the CMP in evidence should be regarded to be the only CMP relevant to proceedings.

  3. Section 1.0 of the CMP provides background and context, and records Clydesdale Farm was listed for its local heritage significance in 1988, which preceded inclusion on the State Heritage Register (SHR) in 1999, after which the curtilage of the heritage item was expanded in 2012. (folio 4)

  4. Section 1.3 explains the overall strategy of the owners of Clydesdale Farm, in commissioning the CMP, was to combine the following:

“Physical conservation of significant site elements including Clydesdale House, the Stables, Cottage C6 and the Burial Ground;

Conservation of the historic cultural landscape;

Respect for identified Aboriginal places;

Residential development of Precinct 5; and

Adaptive reuse of the remainder of the site for public access and community use.”

  1. Of some relevance to this case is the identification of parts of the Clydesdale Farm into certain Precincts. The precincts are identified in Section 3.0 of the CMP as follows:

“The character of this large site varies from one part to another. To facilitate analysis the site is described in this section, and analysed in later sections, in terms of five separate precincts, as shown in Figure 3.1. The precinct definitions are based on their historic use, their visual relationship to significant elements such as Clydesdale House and the landscape, and their heritage significance. In most cases the indicative precinct boundaries take current land use zoning into account.

The precinct definitions are as follows:

Precinct 1: Homestead Precinct

Precinct 2: Working Precinct

Precinct 3: Northern Paddocks

Precinct 4: Western Paddocks

Precinct 5: Former Woodland”

  1. Figure 3.1 showing the precincts of Clydesdale farm is re-produced below:

  1. Whether the site is located within Precinct 3 or Precinct 5 is disputed.

  2. Precinct 3 is described at Section 3.5 of the CMP in the following terms:

“Precinct 3 includes the open flood plain and paddocks between Richmond Road and the Entrance Drive; grazing land between Little Creek and Precincts 1 and 2; the Entrance Drive itself; Little Creek including both banks, the vegetation therein and the Little Creek Bridge.

…”

  1. A character statement for Precinct 3, at Section 3.5.3 of the CMP, reads as follows:

“Excluding the far-eastern portion of the precinct, which has almost no visual relationship with Precinct 1, this precinct forms the immediate farm setting of the homestead and working area. The gently undulating grassed paddocks, bounded to the north and west by the treeline along Little Creek and sometimes grazed by cattle, provide clear and unfolding views to and from Precinct 1 in particular, and to the surrounding landscape. The Little Creek corridor has a distinct riparian character of its own and views into Precinct 4 are available especially across the Little Creek bridge and at a northern ford. The precinct also includes the Entrance Drive, along which progressively unfolding westward views lead the eye to Precinct 1.

Primary elements contributing to the precinct’s character are:

The flat, low, open grazing land;

Views along and from the entrance avenue;

The treed backdrop of Little Creek;

Views into this precinct from Precincts 1 and 2;

Views across the precinct, especially from Richmond Road and the Entrance Drive, and especially to the Homestead precinct; and

The possible remains of animal pens, cess pits and the original entrance avenue.”

  1. Constraints and opportunities for Precinct 3 are contained in Section 5.0 of the CMP in the following terms:

“This precinct, comprised largely of paddocks, the Entrance and Homestead Drives and the Little Creek riparian corridor, has been graded/ranked as having High significance. It includes remnant native vegetation, Aboriginal archaeological sites, zones of high and medium historical archaeological potential and significant site elements and views. Development within this precinct should be minimised and carefully planned to avoid any adverse heritage impact.” (folio 46)

  1. Precinct 5 is described at Section 3.7 of the CMP as follows:

“Precinct 5 generally represents an area that was remnant woodland until c1960’s, historically forming a treed backdrop to Precinct 2 and the northern flood plains of Precinct 3 in particular. It now consists largely of undulating paddocks bounded to the north by the Entrance Drive, and a western area where industrial farming buildings have been located since c1960’s.

…

Views within, into and from inside the Precinct are considered to have little heritage significance as they were largely non-existent until the original woodland was cleared in the 1960s-1970s. Northward views from the northern boundary of the precinct, that is, from and across the Entrance Drive, are unlikely to have changed greatly since the 19th Century, and have some significance. Due to the distance between Precincts 5 and 1, views between them are and always have been minimal.”

  1. The character statement for Precinct 5, at Section 3.7.3, reads as follows:

“The precinct’s current character is in part that of undulating paddocks with views across the eastern part of Precinct 3 to Richmond Road, and distant north-westward views of the treeline along Little Creek and the barely discernible taller trees in Precinct 1. The character of the western sector is that of a modern industrial estate with minimal rural views. Primary elements contributing to the precinct’s current character are:

Undulating grazing land;

Industrial dairy and poultry buildings and associated roadways; and

Views across Precinct 3 to Richmond Road.”

  1. Constraints and opportunities for Precinct 5 are contained in Section 5.0 of the CMP in the following terms:

“Now consisting largely of paddocks with a group of contemporary sheds and other structures at its west end, this precinct has been graded/ranked as having little heritage significance in itself. However, historically it consisted of woodland forming a visual backdrop to Precincts 2 and 3, and the conservation policies of this CMP call for the effective re-creation of such a visual backdrop. Policies for residential development in part of the rezoned residential land in this precinct are included in Section 6.5.7. (Note that much of Precinct 5 is outside the curtilage of the State listed heritage item but within the locally listed heritage item. (See Section 5.1).”

  1. Conservation policies for the precincts are set out in Section 6.0 of the CMP.

  2. Conservation policies for Precinct 3 are, relevantly:

  1. Policy 6.4.4.1 deals with new structures, and advises that construction within the precinct should be avoided, other than the erection of fencing, signage or minor structures that do not reduce the overall significance of the precinct or of significant site features, or obstruct identified significant views.

  2. Policy 6.4.4.2 provides for future uses, nominated to include grazing of livestock, gardening in small allotments, walking, picnicking, bicycle or horse riding and low impact sporting activities that do not require substantial infrastructure.

  3. Guidelines are in the following terms:

“Roadways and paths could achieve a “rural estate character” through the use of compacted gravel or pigmented concrete, for example, instead of bitumen or brick paving, retention of existing ground levels and use of swales rather than kerbs and gutters.”

  1. Conservation policies for Precinct 5 are, relevantly:

“Background

Precinct 5 generally represents an area that was remnant woodland until effectively cleared c1960s, serving until then as a treed backdrop to Precincts 2 and the northern flood plain of Precinct 3.

…

Guidelines

The interface of Precincts 5 and 3, that is, along the Entrance Drive, is especially sensitive as a visual backdrop to Precinct 3’s northern flood plain. Careful landscaping will be required to ensure that the any [sic] future level change between the precincts does not read as a “wall” from, for example, Richmond Road.”

  1. Certain views within the CHPPCA are identified as having particular significance, depicted on Figure 3.23 (folio 32). These include views marked as follows:

  • View 3.2: Views south/south-east from Richmond Road, across flood plain/paddocks

  • View 3.4: Views west along the Entrance and Homestead Drives

  • View 3.5: Views east along Entrance and Homestead Drives and north into flood plain/paddocks.

  1. At this point it is helpful to describe the importance of the Entrance Drive in the circumstances of this case.

  2. The Entrance Drive is so named as it formed the driveway from what is now Richmond Road to Clydesdale House. In its analysis of cultural significance of this element of the Clydesdale Farm, the CMP states of the Entrance Driveway:

“The axial alignment of the Entrance Drive and Homestead Drive provides a strong visual focus towards the house as one approaches across the open landscape. The large brick Stables building presents a strong turn-of-the-century functional architectural aesthetic, while the remnant cottage (C6), although in poor condition, is notable for the composition of its chimneys. The Burial Ground with its tall remnant native tree provides a prominent, poignant landmark within the Estate.” (folio 38)

  1. Table 4.1 of the CMP assigns high significance to the “Axial alignment of Entrance Drive/Homestead Drive” and “Entrance Drive as a whole” (folio 40).

  2. Likewise, Section 6.10 of the CMP describes conservation of the Entrance Drive in the following relevant terms:

“The current Entrance Drive (including the Homestead Drive) comprises most of the Estate’s early entrance drive (the eastern section was abandoned c1980s). Its axial alignment and westward(arrival) views along it have thus been graded in this CMP as having High heritage significance. Its fabric, comprising specific physical qualities such as material, width and level, has varied as the road’s use and maintenance have evolved and intensified, and has been graded as having little significance. The Drive as a whole has High heritage significance and it has had a consistent rural character.

…

There is no documentary evidence, and no in situ remnant evidence had been identified, to suggest that the Entrance Drive was at any time lined with trees in the classic “avenue” manner.

Policy 6.10.1 Alignment of the Entrance Drive

The alignment of the Entrance Drive including the Homestead Drive shall be retained.

Policy 6.10.2 Views from the Entrance Drive

Views westward along the Entrance Drive and Homestead Drive and to the north over open paddocks, identified as significant in this CMP, shall be substantially retained.

Policy 6.10.3 Character of the Entrance Drive

The Homestead Drive and the Entrance Drive shall retain their “rural estate character” (see Guidelines below)

…

Guidelines

The “rural estate character” of roadways is contributed to by:

Their relatively narrow width (one or two lanes);

The absence of kerbs, gutters or raised footpaths along their edges; and

Their earthy or gravel colour and texture.”

  1. The location of Entrance Drive is agreed to be in the vicinity of Clydesdale Farm Road, located to the north of the site, and to be in close proximity to the boundary between Precincts 3 and 5 which is nominated at [68] to be “especially sensitive as a visual backdrop to Precinct 3’s northern flood plain”.

  2. Section 6.4.7 of the CMP sets out policies for residential development in Precinct 5.

  3. The background to the section is in the following terms:

“Precinct 5 presently consists of cleared paddocks with industrial buildings at its western end. Until c1960s, however, it formed a woodland backdrop to Precinct 2 and the flood plain of Precinct 3. In its present state it has thus been graded as having Little heritage significance and any development must be subject to the following objectives:

1. identified significant views, in particular those from and across Precincts 2 and 3, are to be protected.

2. the area zoned R2 within the Clydesdale House Precinct Plan Control Area (CHPPCA) defined in Section 6.1 of the Marsden Park Precinct DCP is to have the visual character, insofar as possible, of a ‘treed backdrop” to Precinct 2 and the northern paddocks of Precinct 3.

3. Trees and shrubs on R2 land within the CHPPCA are to be of species indigenous to the location.

4. Buildings and infrastructure within and along the edges of R2 land within the CHPPCA are to be of density, height, form, materials and colours that avoid detracting from the “treed backdrop” as seen from Precincts 2 or 3.

…”

  1. The relevant policies are listed as follows:

“Policy 6.4.7.1 Views

Views from Precincts 2 and 3 toward the R2 area within the CHPPCA should have a woodland backdrop.

Building, fences, roads etc, within the R2 area within the CHPPCA shall not dominate the view or compete with the treed backdrop character.

Creating and maintaining the woodland appearance of the R2 area within the CHPPCA shall take priority over providing views from Precinct 5 to Precincts 2 or 3.

Policy 6.4.7.2 Tree Species

Only trees shown in table 6.1 may be planted within the R2 area within the CHPPCA. These are all native species identified as appropriate to the precinct.”

Table 6.1 is reproduced below:

“

Table 6.1: TREE SPECIES FOR R2 LAND WITHIN CHPPCA

Species

Common name

Mature height

CANOPY TREES

Eucalyptus amplifolia

Cabbage Gum

30m

Eucalyptus fibrosa

Red Ironbark

35m

Eucalyptus moluccana

Grey Box

25m

Eucalyptus tereticornis

Forest Red Gum

50m

SMALL TREES

Bursaria spinosa

Blackthorn, sweet bursaria

10m

Melaleuca decora

White feather, Honeymyrtle

7m

Policy 6.4.7.3 Trees on public land

Tree planting on public land, that is, in streets or parks in the R2 area within the CHPPCA, shall insofar as practicable be maximised in order to create a generally “wooded” character.

Trees shall be planted along roadways along the edge of the R2 area within the CHPPCA so as to provide a screen or backdrop to views from Precincts 2 or 3.

Policy 6.4.7.4 Trees of private land

On every private R2 lot within the CHPPCA at least two canopy trees shall be planted of the species listed in Table 6.1. These trees must be maintained to maturity and, should they die, be replaced with canopy species listed in Table 6.1.

Guidelines

Note that all of the indigenous canopy trees in Table 6.1 have a height at maturity of at least ten metres, sufficient for their canopies to be seen over the roof of the average two storey house.

Policy 6.4.7.5 Building heights

Buildings on R2 land within the CHPPCA shall be maximum two storeys in height.

Policy 6.4.7.6 Building setbacks

Buildings on R2 land within the CHPPCA shall be set back as far as practicable from the northern and western edges of the R2 area. Ancillary structures shall not be built against these edges.

Policy 6.4.7.7 Building materials

Surfaces of buildings on R2 land within the CHPPCA which face north or west shall not be of highly reflective materials such as polished metal cladding, unpainted galvanised steel roofing, white Colorbond, mirror glass, etc.

Policy 6.4.7.8 Building colours

Bright or unobtrusive colours are to be avoided within the R2 area within the CHPPCA.

Policy 6.4.7.9 Roadways

Roadways along the northern or western edges of the R2 area within the CHPPCA, or visible from Precincts 2 or 3 shall, subject to the relevant constraints, have a “rural estate character”.

…

Guidelines

The “rural estate character” of roadways is contributed to by:

Their relatively narrow width (one or two lanes);

The absence of kerbs, gutters or raised footpaths along their edges; and

Their earthy or gravel colour and texture.”

  1. Finally, as the site is part of the Clydesdale Farm heritage item, the provisions of the Central City SEPP at cl 5.10 of Appendix 11, Blacktown Growth Centres Precinct Plan apply. The relevant objectives at subcl (1) are:

(a)  to conserve the environmental heritage of the Blacktown Growth Centres Precinct,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

…

  1. Clause 5.10(4) is in the following terms:

(4) Effect of proposed development on heritage significance. The consent authority must, before granting consent under this section in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subsection applies regardless of whether a heritage management document is prepared under subsection (5) or a heritage conservation management plan is submitted under subsection (6).

  1. The statement of significance contained in the State Heritage Inventory Report for Clydesdale Farm (Exhibit D, folio 261) is in the following terms:

“Clydesdale has State significance as one of a series of pre 1840s homesteads in the Hawkesbury area which contributed substantially to the agricultural and pastoral economy of the region, and the understanding of the historical development of colonial New South Wales and the pastoral era of the Cumberland Plain. Its landscape features remain relatively intact, including significant remnant woodlands, Aboriginal relics, two cemeteries (both resting places for the early pioneers of Clydesdale and the district), and its original entry avenue off Richmond Road. The entrance avenue is still discernible for its individual approach and is an example of colonial landscape design that opposed the principles practised in England during the early 19th century. The house retains its original relationship to its landscape setting and farm and is the only remaining example of the lowland model of homestead siting in the Blacktown area and one of three remaining examples intact on the Cumberland Plain. The site derives additional significance for its use as one of only two Marist seminaries in Australia for training South Sea Islander priests in the 1860s, and as a RAAF convalescent home during the 1940s.”

  1. After considering the manner in which Precincts 3 and 5 are described in the CMP, I find the site is located within Precinct 5. Uncertainty about the precinct in which the site is located is not surprising. The precinct boundaries shown on Figure 3.1 are stated in the explanatory caption to be indicative, and there is no suggestion the lines are plotted by survey.

  2. However, Precinct 3 is described as the floodplain between Richmond Road and Entrance Drive, and including Entrance Drive which is agreed to be located to the north of Clydesdale Farm Road.

  3. By contrast, Precinct 5 is described as the site of the former woodland, which I take to be a reference to that woodland shown in aerial photographs taken between 1947 and 1965 on folio 11 of the CMP to the south of Entrance Drive, and so not in Precinct 3.

  4. The interface between Precincts 3 and 5 is said, at [68], to be along Entrance Drive. Again, this is to the north of Clydesdale Farm Road.

  5. Construction in Precinct 3 should be avoided (see [67(1)]), future uses include grazing (see [67(2)]), and roads and paths should have a rural estate character (see [67(3)]).

  6. Again, in contrast, future uses in Precinct 5 include residential development, for which guidance is provided at [76].

  7. Much, but not all, of Precinct 5 is outside the curtilage of the Clydesdale Farm heritage item. That which is within the precinct, captures the north of the subject site, in which the car park is located.

  8. Those views set out at [69] are predominantly about views from, into and across Precinct 3 while views within, into and from inside Precinct 5 are said to be of little significance.

Scale, built form and character

  1. The Respondent contends the scale and bulk of the proposal is excessive, and the built form and mass represents an over development of the site that is inconsistent with the future desired streetscape and character of the surrounding residential area when the objectives and controls of the following are considered:

  • The aims of the Central City SEPP, and Appendix 11 ‘Blacktown Growth Centres Precinct Plan’ (Appendix 11 of the Precinct Plan);

  • Certain objectives of the R2 zone set out in Appendix 11 of the Precinct Plan;

  • Part 4.4 of the Growth Centres Development Control Plan, and clause 6.21 of Schedule 6 Marsden Park of the Growth Centres DCP; and

  • Those aspects of the Child Care Planning Guidelines summarised at [45].

  1. In addressing whether the proposal is similar to the bulk, scale, height and siting of surrounding buildings, as required by Section 4.4.1.3(9) of the Blacktown Precinct DCP, or is compatible with the local character and surrounding streetscape, which is the objective at C5 of the CCPG, Mr Haskew, planning expert for the Applicant, considers an understanding must be had of the desire for low density development along Clydesdale Farm Road.

  2. The building footprint, front and side setbacks and site coverage intended by the indicative layout at Figure 6-2 (Exhibit 2, folio 211), somewhat reflected in the 88B instrument (Exhibit D, Tab 19), depicts a built form with which the proposal differs.

  3. However, Mr Haskew observes that any test of compatibility entertains a degree of difference as distinct from sameness.

  4. Mr Haskew provides an overlay of the built form of the sort depicted in Figure 6-2, and the 88B Instrument, with that of the proposed development in the joint expert report (town planning) (Exhibit 6, p 50). To the extent the proposal differs from the indicative layout shown on Figure 6-2, it is both a lower density proposal than would otherwise be achieved, and more consistent with the desire of the CMP for development to be setback ‘as far as practicable’ from northern edges of the R2 land.

  5. According to Ms Walker, planning expert for the Respondent, as the setback proposed to Clydesdale Farm Road is more than that shown in Figure 6-2, it is inconsistent with the front setback control of the Blacktown Precinct DCP, and that is evident by the residential development in the street. Furthermore, the proposed setback is created by a car park that imposes a large area of hardstand likely to be occupied by vehicles, and both the hardstand and vehicles will be highly visible.

  6. I note here that Ms Polkinghorne shares a concern that the car park and its vehicles will be visible to motorists travelling along Richmond Road, including from the viewpoint of significance, shown in Figure 3.23 (Exhibit 3, folio 32).

  7. Ms Walker re-produces Fig 6-2 on p 14 of the joint expert report (town planning) as a guide to the desired character of residential development along Clydesdale Farm Road. However, as noted by the Court, recent development now evident does not accord with the indicative layout depicted in Fig 6-2. Side setbacks are not 3m as indicated on Fig 6-2, but 1.5m.

  8. The dwellings are not consistent with the Indicative Layout on Fig 6-2, as they are required to be by Section 6.1(3) of Schedule 6 of the Blacktown Precinct DCP. Instead, those dwelling appear consistent with the building envelope plan the subject of covenant Nos 5 and 6 (Exhibit D, folio 496).

  9. The difference places dwellings closer together than the Indicative Layout at Fig 6-2, on which Ms Walker relies. As the side setbacks are reduced from those shown in Fig 6-2, the built frontage of dwellings widens accordingly, to a dimension agreed to be around 14m.

  10. Mr Haskew accounts for the variation from Fig 6-2 inherent in the building envelope plan in his analysis at pp 48-51 of the joint expert report (town planning), including figures overlaying the proposed building envelope on those conforming to the building envelope plan.

  11. Mr Haskew’s analysis compares the aggregate area of footprint (m2) and floor space ratio of the dwellings assumed in the building envelope plan with that of the proposed, and the extent to which the proposed footprint extends beyond the footprints anticipated by the building envelope plan. Noting that where departures occur, those departures are set back behind the footprint permitted by the building envelope plan, other than the car park proposed in the northern setback of the site.

The carpark

  1. As stated earlier, the carpark is located in the northern portion of the site. Vehicle entry is via Bakehouse Avenue, and vehicle exit is via Coromandel Street.

  2. The driveway is annotated on the architectural plans, and landscape plans, to be stamped or stencilled concrete. The surface of parking bays is formed by a permeable concrete paving, that allows turf or other organic material to grow between.

  3. Anvest submits that the car park is a large open area forming a substantial setback of buildings, fences and other structures from the northern edge of the R2 land, in accordance with the direction of CMP Policy 6.4.7.6 to do so.

  4. Furthermore, the car park is screened by canopy trees and understorey planting that provides a woodland backdrop when the site is viewed from Precincts 2 and 3, and does not dominate or compete in the manner described by CMP Policy 6.4.7.1.

  5. Ms Walker believes the amalgamation of four lots for the proposed development fails to protect the residential character of the area. The original subdivision pattern was intentional, and varying the subdivision pattern by consolidating lots fails to respect the limits placed on density at subdivision. The result is a site with three frontages, a long and unbroken built form and a concentration of car parking.

  6. To the extent that provision is made for car parking in the front setback of dwellings to the west of the site, it is not of the same concentration in terms of vehicle numbers. Nor does a domestic driveway represent the proportion of hardstand in the front setback of 70% as agreed by Mr Haskew to be the case in the proposal.

  7. In granting General Terms of Approval (Exhibit 2, Tab 8), Heritage NSW stipulated two amendments be conditioned that are directed to carpark and landscape design. They are:

“Six of the assigned car spaces are to be repurposed for landscaped area; two spaces at each end (1 and 2 and 16 and 17) to reinforce the corners, and any two contiguous spaces in the central zone. A suitable canopy tree is to be planted in association with shrub and groundcovers in each of these three areas.

The general arrangement of the trees along the site frontage is to be more irregular, and the monoculture hedge is to be replaced with an assortment of at least three different species of similar size and openings aligned with the breaks in the carparking.

Reason: To mitigate the visual impact of the proposed car parking while creating a landscape that responds to the rural estate character and is visually permeable.”

  1. The parties dispute whether these amendments have been satisfactorily adopted in the plans now before the Court.

  2. Anvest further amended the development application on the final day of the hearing by amending the landscape plans, and sought leave, unopposed, for still further amendments to be adopted accommodating a request from the Respondent, which was granted.

  3. The Respondent agreed to the amendment, as the relevant consent authority, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000, and agreed that the amendments were not more than minor for the purposes of s 8.15(3) of the EPA Act.

Fencing

  1. A further element of the proposal that the Respondent contends is inconsistent with the character of the area is the fencing to the perimeter of the outdoor play areas that predominantly address Coromandel Street and Bakehouse Avenue.

  2. The proposed fencing may be described as a kit of parts comprising various elements, varying according to the need for acoustic attenuation at points around the perimeter of the proposal. The elements comprise:

  1. Firstly, a 1200mm high ‘open style’ timber palisade fence.

  2. Secondly, behind the timber fence, a 1800mm high acoustic screen of ‘plexiglass’ fixed between steel posts.

  3. Thirdly, an inclined portion of ‘plexiglass’ is also fixed between steel posts at varying lengths, up to a maximum of 1800mm in length.

  1. The particular arrangement of these elements at the perimeter of the outdoor play areas is determined by a plan at Figure 4 of the Child Care Centre – Noise Impact Assessment, prepared by Noise and Sound Services Pty Ltd dated October 2022 (Acoustic Plan) (Exhibit D, Tab 9).

  2. Ms Walker is of the opinion that the height and top cantilever arrangement of the acoustic fencing required by the development is not consistent with the residential character of the area, and directly adjoins neighbouring residential dwellings.

  3. Relevantly, the maximum length of cantilever is proposed to portions of the fence on the boundary with properties to the south of the proposal, within the depth of the front setback of those properties. Drawing A402 identifies the vertical height of this portion of fencing to be 3,078mm.

  4. The fencing to the west includes a cantilever of 700mm above the 1800mm high plexiglass acoustic screen.

  5. Such an arrangement is also inconsistent with the materials and finishes palette in Figure 6-3 of the Blacktown Precinct DCP, and with the terms of the 88B Instrument which, in part, limits the design to open and transparent construction, and materials to timber or masonry.

  6. For completeness, the relevant terms of the 88B Instrument (Exhibit D, Tab 18) in respect of fencing are as follows:

“e) Any building or fencing erected on the land utilises the following Dulux colour palette (or equivalent) as follows: Walls – Bilby PG2-B6, Baton P12-D6, Carriage P13-B7, Detailing – Yarwood PG2-A7, Burnished Bark P05-D8 Aegina PG2-H8, Fencing – Briar PG1-D8, Noble Brown PG2-B8, Roof – Raku PG2-C7, Aegina PG2-H8.

f) Any fencing erected on the land forward of the approved building line is of an open & transparent construction and limited in height to 900mm above the finished surface of the land.

g) Any fencing on the land is constructed of timber or masonry materials and not metal materials.”

  1. When the architectural plans and landscape plans are read together, the proposed fencing to Bakehouse Avenue and Coromandel Street comprises those components itemised at [114112], and a 1m wide planted buffer. The planting schedule denotes plant species to be generally 1m in height.

  2. To the south, having regard to the boundary fence depicted in Exhibit J, the proposed fencing would be substantially concealed by the existing 1800mm high Colourbond fence, with only the clear plexiglass cantilever extending beyond, and even then, on an angle that would likely conceal the cantilever from a ground floor viewpoint, except in the front setback of No 31 Bakehouse Avenue where the boundary fence tapers to a lower height.

  1. The upper portion of the fence would be seen by a person travelling north up Bakehouse Avenue, however as that portion is substantially clear plexiglass, I regard this acceptable.

  2. To the west, the elevation, re-produced in part below, depicts a fence of 1800mm high, with around two-thirds of that length also including an additional 700mm cantilever. Common to all is the 1200mm high open style timber palisade fence and 1m high planting (regardless of the taller planting shown in elevation).

  1. I am of the view that the proposed fencing, when all of its components are properly understood, is likely to present primarily as an assembly of timber and landscaping planting to the perimeter of the site. The plexiglass acoustic screen, by virtue of the 1800mm spacing between steel structural supports, and transparency of the plexiglass material, will read as a secondary element.

  2. No reference is made to timber in the finishes referred to in Figure 6-3 of the Blacktown Precinct DCP. However, specific reference, by way of express preference, is made to timber in the 88B Instrument. That said, no guidance is provided as to the species, tone or finish of timber, or for that matter, masonry, when used in fencing.

  3. I have considered the Conservation Policy 6.4.7 in the CMP for residential development in Precinct 5, which expresses a preference for materials and finishes to avoid detracting from the ‘treed backdrop’, (at [76]). As the ‘dark timber finish’ referred to on Drawing A402 conforms, in my view, to the preference found in the CMP, I consider the proposed finish acceptable.

Findings

  1. I accept the Applicant’s submission that a priority for development in Precinct 5 is to provide a treed backdrop to Precinct 3’s northern flood plain when viewed from the north of Precinct 3, at locations such as Richmond Road, as this was the function provided by the woodland that became deforested between 1947-1965.

  2. It is my conclusion, having considered the evidence before me, that the setback provided by the proposed carpark, the location of vehicle access, and the landscape planting proposed within the northern portion of the site will contribute to a treed backdrop.

  3. I do not share the concerns of the Respondents’ experts that the car park surface material, or vehicles parked in the proposed car park, would be visible, let alone visually intrusive, when viewed from the distance of Richmond Road. At such a distance, and behind layers of landscape planting on the northern side of Clydesdale Farm Road, and the proposed landscaping on the site, stationary vehicles are likely to be either indiscernible or so obscured by plantings as to be heavily camouflaged.

  4. While Anvest acknowledges five, and not six, car parking spaces have been removed in response to the General Terms of Approval (GTA) issued by Heritage NSW, I have formed the view that the design of the car park, and the landscape within the northern portion of the site, are considered and appropriate responses to the desire expressed by Policy 6.4.7.6 of the CMP for greater setbacks to the north of lots within the R2 zone.

  5. Anvest proposes nine canopy trees within the northern setback of the site, which is triple the number of canopy trees required by the Heritage NSW GTA’s, and a more than fourfold increase on the number required by Policy 6.4.7.4 applicable to the lots fronting Clydesdale Farm Road. Those trees vary in species, but eight of which are consistent with those identified in Table 6.1, at [77], ranging in mature height from 25m to 50m.

  6. While the proposal exceeds the front setback of 6m nominated in Section 4.4.2.3 of the Blacktown Precinct DCP, the greater setback is appropriate in circumstances where this portion of the site is located within the curtilage of the Clydesdale Farm, and where the additional setback achieves a ‘treed’ or wooded backdrop that is repeatedly desired by the terms of the CMP, with tree species selected from those identified in Table 6.1 of the CMP.

  7. Furthermore, when regard is had to the objectives of Section 4.4.1.1 of the Blacktown Precinct DCP, I am of the view that the relevant objectives are achieved. The additional setback to the north, and its landscape setting, appropriately minimises adverse effects of non-residential development on surrounding residential development by providing a substantial landscape setting in a streetscape currently lacking in that respect.

  8. I note here that the requirement for two canopy trees does not stipulate those trees be located in the front setback of properties, which further suggests the intent is directed at a treed backdrop to Precinct 3, and not a treed streetscape to Clydesdale Farm Road. The proposal would appear to achieve both. Furthermore, the combination of varied height and planting location is, in my view, sufficiently varied to avoid a landscaped ‘monoculture’ of concern to Heritage NSW.

  9. A centre-base child care facility is a permissible use in the R2 zone. Specific controls at Section 4.4.2.3 of the Blacktown Precinct DCP anticipate the consolidation of lots by nominating a minimum lot size of 900m2 for such uses, however no guidance is provided as to the desired building envelope plan for a site other than 600m2 in size, and other than a single detached dwelling.

  10. I do not accept Ms Walker’s assertion that the mere consolidation of lots fails to respect the character of surrounding development for two reasons. Firstly, the consolidation of lots achieves the interface preferred by Section 4.4.2.4(3) of the Blacktown Precinct DCP by minimising common boundaries with residential neighbours. Secondly, as the planning principle set out in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191, at [26], has shown:

“For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment…The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping.”

  1. The height and bulk of the proposal is within the range of surrounding development. It is, in my view, similar to the single storey pitched roof language of the dwellings on Clydesdale Farm Road. Where it is two (2) storey, the proposal continues the language of pitched roofs, valleys and hips, evident in surrounding dwellings other than No 31 Bakehouse Avenue that appears to depart from the desired character in a number of arresting respects.

  2. The scale of the development proposed on the consolidated lots is a function of its proportional relationship to the area of the site. I accept the Applicant’s argument, supported by Mr Haskew’s analysis at [93] that, while the proposed building envelope presents a longer frontage to Clydesdale Farm Road and Coromandel Street, when viewed in context with the site, is not greater in scale or density than would be expected in an R2 zone.

  3. I accept Mr Haskew’s assessment that, for the reasons set out at [97]-[98], the existing dwellings to the west of the subject site read as a wall of development, and do not provide the separation of a sort suggested by Ms Walker at par 25 of the joint report. Such a presentation is only exacerbated by a stark front setback common to all dwellings, absent canopy trees or other apparent regard for the benefits landscaping can bring.

  4. I also accept Mr Haskew’s opinion that the proposal achieves a compatible, if not a consistent, built form with surrounding residential development by reason of two devices:

  1. Firstly, while the built form addressing Clydesdale Farm Road is in the order of 30m in length, this approximates a frontage width equivalent to two dwellings located to the west of the site. At two locations along this frontage, the proposal incorporates localised insets. In the case of the entry, this approximates the width of separation between dwellings to the west. The result is an approximation of two dwellings, with a separation similar to that evident in the dwellings to the west.

  2. Secondly, the built form presents gable roof forms to each of the three street frontages and, relevantly, two gable roof forms present to Clydesdale Farm Road. Again, the result is an approximation of two dwellings, each presenting a gable form as evident in dwellings to the west.

  1. Accordingly, when the effect of the proposed development on the Clydesdale Farm heritage item is understood, pursuant to cl 5.10 of Appendix 11 of the Central City SEPP, I accept the Applicant’s submission that the proposal facilitates the conservation of the heritage item in terms set out in a CMP endorsed by the Heritage Council. On this basis, the proposal will not adversely affect the heritage significance of the heritage item or its setting.

  2. In arriving at this conclusion, I have taken into consideration the extent to which the proposal would affect the significance of Clydesdale Farm, and the terms of the CMP, pursuant to s 62 of the Heritage Act.

The 88B Instrument

  1. For the reasons set out at [136]-[139], I find the building envelope acceptable. For the reasons at [127]-[133], I find the carpark design and vehicle access acceptable. For the reasons at [123]-[125], I find the fencing design, its materials and finishes, acceptable.

  2. Accordingly, I accept Anvest’s submission that the terms of the 88B Instrument should be suspended.

  3. The relevant terms of the 88B Instrument have been summarised earlier in this judgment, but are directed, in summary, to the building envelope, access for vehicles, fencing, materials and finishes.

  4. At the conclusion of the hearing, the Court directed parties to confer in order to agree, as far as possible, conditions of consent and a form of words in respect of the 88B Instrument, should the Court be minded to grant consent, and accede to Anvest’s invitation to suspend the terms of the 88B Instrument.

  5. The timetable agreed to by parties was exceeded, necessitating extensions of time that culminated with conditions of consent filed 14 March 2023, at which time, it became clear that parties had failed to comply with the Court’s directions.

  6. Absent the conferral directed, the Court relisted the matter for short submissions that were heard 17 March 2023.

  7. The parties agree that the Court has power under both s 39(2) of the Land and Environment Court Act 1979, and s 8.14(1) of the EPA Act to stand in the shoes of the Respondent and effect the release of the 88B Instrument for the development the subject of the development application.

  8. However, the parties differ as to how such an order should be phrased, should the Court be minded to grant consent.

  9. The Respondent relies on the wording of an order made in Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135, to the effect that the release or variation of the restriction as to user was described by Stein J as “an incident of granting building approval”.

  10. As such, there is no need for any instrument to be executed if the Court makes an order and agrees to suspend or otherwise not apply the terms of restrictions 5, 6, 7 and 19 that currently apply to the site.

  11. The Applicant submits that the Court should be guided by s 88E of the Conveyancing Act 1919 (Conveyancing Act) which provides for the release or variation of a restriction by a deed of release or deed of variation in terms set out at subs 88E(7).

  12. The Court, therefore, exercising the functions and discretions of the Respondent, should do no more than exercise the role of the governing body of the Respondent as defined in s 223 of the Local Government Act 1993 (LG Act), by directing the General Manager, whose functions are defined in s 335 of the LG Act, to ensure that the deed of release or variation be registered in accordance with subs 88E(7) of the Conveyancing Act.

  13. While not the subject of submissions, s 1.9A of the Central City SEPP provides that a covenant or other similar instrument that restricts the carrying out of development for which consent is granted, does not apply to the extent necessary to serve that purpose. However, the suspension of such a covenant or other similar instrument does not apply where that covenant is imposed by the Council, as in this case.

  14. Accordingly, I accept it is appropriate for the Court to make orders as to those restrictions relevant to the development the subject of the development application that are required to be varied, should the Court be minded to grant consent.

  15. While the Court’s power to determine the development application the subject of these proceedings derives from s 4.16(1) of the EPA Act, I am not convinced that that power includes the power to direct a particular person in the employ of the Respondent to perform administrative functions subsequent to the Court’s determination of the matters in dispute.

  16. This is because, to the extent the Court may exercise all the functions and discretions of a consent authority under s 8.14 of the EPA Act, this power is for the purpose of hearing and disposing of an appeal, which does not appear to me to extend to the administrative functions that follow the determination of an appeal, such as the means by which a memorandum or deed is to be registered.

  17. Accordingly, the Respondent’s preferred wording is adopted. I also note Condition 12.15.3.1 of the conditions of consent provides, firstly, for the nomination of the Respondent as the authority to release, vary or modify the restrictions and, secondly, for the format of any covenant that may apply to be in a format acceptable to Land Registry Services.

Jurisdictional preconditions

  1. Clause 6.1 of Appendix 11 of the Central City SEPP requires the consent authority, or the Court on appeal, to be satisfied in respect of public utility infrastructure, identified at subcl (3) to include water, electricity, and sewage. On the basis of the survey prepared by Aspect Development & Survey (Exhibit E, Tab 7), I am satisfied that the utilities identified at subcl (3) are in the vicinity of the site and, on the basis of the conditions of consent, will be available when required.

  2. I have considered whether the land is contaminated, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, and I accept the statements made in the Statement of Environmental Effects, prepared by HDC dated 10 December 2021 that the site is located within a subdivision to which a condition to remediate applied.

Conclusion   

  1. For the reasons set out in this judgment, I find the proposal deserving of the grant of consent in accordance with s 4.16 of the EPA Act. However, that consent is subject to conditions of consent that are not wholly agreed between the parties.

  2. At the close of the hearing, parties were directed to confer in respect of without prejudice conditions of consent and, if possible, agree or else file a set of conditions with differences marked, and to file no later than 7 days after the close of the hearing.

  3. On 1 March 2023, the parties sought an extension to the filing of conditions, that were provided to the Court on 14 March 2023, with disputed conditions so marked.

  4. On the basis of my findings at [142]-[143], I accept the form of words proposed by Anvest in respect of Condition 2.4.1.

  5. Anvest seek the deletion of the terms of Condition 2.6.1, paragraph 2 on the basis that the items excluded from the terms of the consent are not proposed, and so the condition is otiose. As the site is within the curtilage of Clydesdale Farm, I accept the Respondent’s condition serves a purpose to provide explicit assistance to those completing the task of documenting and constructing the development, should the consent be acted upon, so as to remove any doubt as to the acceptability, or otherwise, of extraneous elements within the northern setback of the site.

  6. For the reasons set out at [129]-[131], I accept the submission of Anvest that the terms of Condition 2.6.1, paragraph 3 are not required.

  7. The Court also corrects the reference made to landscape drawings in Condition 2.5.1 so as to align with the updated landscape plans cited in Condition 2.1.1.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Restrictions 5, 6, 7 and 19 contained in the section 88B instrument relating to DP1254249 do not apply to the development the subject of Land and Environment Court Proceedings 2022/101518, to the extent necessary to enable the development the subject of the grant of consent to be carried out.

  3. Development application DA-22-00049 for proposed lot amalgamation and construction of a centre-based child care facility with associated landscaping and carparking is determined by the grant of consent, subject to conditions of consent at Annexure A

  4. All Exhibits are returned, except for Exhibits D and E.

T Horton

Commissioner of the Court

(Annexure A) (322666, pdf)

**********

Decision last updated: 05 April 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

11

Project Venture Developments v Pittwater Council [2005] NSWLEC 191