Chase Property Investments Pty Limited v Blue Mountains City Council - [2006] NSWLEC 35

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Chase Property Investments Pty Limited v Blue Mountains City Council & Anor [2006] NSWLEC 35

PARTIES:
APPLICANT
Chase Property Investments Pty Limited

FIRST RESPONDENT
Blue Mountains City Council

SECOND RESPONDENT
Residents Against Improper Development Incorporated

CASE NUMBER: 10720 of 2005

CATCH WORDS: Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 - Development Standards
Blue Mountains Local Environmental Plan 1991
Development Control Plan No. 15 - Parklands

CORAM: Bly C

DATES OF HEARING: 27-29/09/2005, 10-13/10/2005, 17/10/2005, 19/10/2005 and 16/11/2005

DECISION DATE: 10/02/2006

LEGAL REPRESENTATIVES

APPLICANT
Ms S. Duggan, barrister
Instructed by Pike Pike & Fenwick

FIRST RESPONDENT
Mr T. Cork, solicitor
of McPhee Kelshaw

SECOND RESPONDENT
Mr T. Robertson, SC
with Ms L. Byrne, barrister
Instructed by Woolf Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
Date 10 February 2006
10720 of 2005 - Chase Property Investments Pty Ltd v Blue Mountains City Council and Residents Against Improper Development Incorporated

JUDGMENT

Introduction

This appeal relates to the deemed refusal of Development Application No X05/0418, which is for the construction of 36 (formerly 39) buildings containing 72 (formerly 78) dwellings for tourist/residential accommodation and "the proposal") on the heritage listed site known as "Parklands" at 132 - 174 Govetts Leap Road, Blackheath ("the site"). Community title subdivision is proposed.

The irregular shaped site is located about one kilometre from the Blackheath town centre. It has an area of about 10.6 hectares with a frontage to Govetts Leap Road of about 390 m and a frontage to Cleopatra Street of about 462 m. It is undulating and generally falls from south to north towards the Popes Glen Reserve. It primarily consists of grassland with large stands of mature, mainly pine trees. These trees are concentrated along the site's boundaries and within copses throughout the site, reflecting to a degree the former use of part of the site as a golf course.

Existing development on the site consists of a manager's residence and three detached tourist accommodation buildings each containing four dwellings. Extensive landscaping exists in and around this development.

Given the very low-density of the development there will be extensive areas of common open space, with each dwelling having its own garden area. Car parking adjacent to each dwelling will be provided.

Only a limited amount of the sewage generated by the development can be disposed of to the existing Sydney Water sewerage system, taking into account the present limited spare capacity of the existing treatment works. Consequently the majority of the generated sewage is proposed to be treated by an on-site sewage treatment plant ("the STP"). Treated effluent from the STP is to be disposed of on various parts of the site by means of a below-ground trickle irrigation system.

The site adjoins the Popes Glen Reserve to the north where the Popes Glen Creek is located. The reserve and the creek have, in the recent past been in a poor condition but this situation has been rectified to a considerable degree by the efforts of the Popes Glen Bushcare Group including the removal of weeds and debris and the planting of appropriate replacement vegetation. Popes Glen Creek is a tributary of the Grose River that flows through the Blue Mountains National Park. Otherwise the site is mainly surrounded by detached dwelling houses and, to the north-west, a caravan park. Govetts Leap Road is a regular tourist road to Govetts Leap.

7 Leave was granted by Pain J on 15 August 2005 for the community organisation: Residents Against Improper Development Incorporated ("RAID"), to be joined as the second respondent.

Statutory provisions

Pursuant to Blue Mountains Local Environmental Plan 1991 ("the LEP") the site is included in the Residential Bushland Conservation Zone ("the RBC zone").

Clause 9.3 of the LEP provides that:
Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the council has considered the objectives of this plan and the objectives of the zone and of any protected area in which the land is situated, and is of the opinion that the carrying out of the development complies with the objectives that are relevant to that development.
Section 6.3 of the LEP contains the objectives of the RBC zone as follows:
(a) To ensure that all development including subdivision is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the Blue Mountains.
(b) To utilise best practice water management techniques:
to protect, and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zone; and
to protect, and where practicable to improve, water quality; and
to maintain pre-development downstream flow patterns; and
to promote ecologically sustainable water and land management practices.
(c) To establish an appropriate landscape character by encouraging the preservation, regeneration and re-establishment of native bushland, where practicable.
(d) To ensure that the form and siting of development, and the building materials, colours, and landscaping utilised in that development, are each appropriate for, and harmonise with, the bushland character of the area in which the development is to take place.
(e) To ensure bush fire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts.
The site is also included in Schedule 1 of the LEP: Development for Additional Purposes, such inclusion having been effected by the amending Blue Mountains Local Environmental Plan 1991 Amendment No 5 ("Amendment No 5"). The aim of Amendment No 5 is to protect the heritage significance and landscape features of the land by requiring that consideration only be given to integrated development. This has the effect of allowing integrated housing and subdivision development on the site with development consent. Such development is defined in Schedule 1 as:
Development in the course of which a subdivision is carried out and buildings, private and public open space, roads, pathways and landscaping are designed and constructed, as an entity, except that development as an entity is not required where the density does not exceed two dwellings per hectare:
Guesthouse;
Hotel;
Recreation facility;
Refreshment room;
Resort;
Tourist accommodation.
Amendment No 5 also includes the site in Schedule 2 as a heritage item as follows:
BH58 Grounds – “Parklands” 132 – 174 Govetts Leap Road, Lot 63 DP 751627.
Hence, cl 10.7 (Heritage) and cll 25.1 and 25.3 (Heritage Conservation), of the LEP relevantly require that consent shall not be granted to any development unless an assessment has been made of the impact of the proposal on the heritage significance of the site. In this context I am satisfied that the evidence provided forms a sufficient basis for such assessment.

Clause10.5 (Environmental Impact) of the LEP relevantly provides that:
(a) The Council shall not consent to development unless the development -
(v) incorporates best practice water management techniques to protect the surface and groundwater regimes and water quality for the site.
(c) The Council shall not consent to subdivision, unless the bushfire protection measures required to protect the land to be subdivided are contained within a perimeter road or the boundaries of the property to be subdivided, and do not have any adverse environmental impact on any water supply catchment area or any development excluded land.
(ca) The Council shall not consent to development, other than subdivision, unless the development:
(i) incorporates effective measures, within the boundaries of the lot concerned, and satisfactory to the Council, to protect the development from bushfire; and
(ii) mitigates the adverse environmental impacts of those measures to the maximum extent practicable.
(da) The Council shall not consent to development for the purpose of a dwelling house, or to development ordinarily incidental and ancillary to a dwelling house, on any lot created otherwise than in accordance with clause 34.1(c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no significant adverse environmental impact on:
(i) any environmentally sensitive vegetation unit (as listed in Schedule 3); and
(ii) any rare or threatened species of flora or fauna or its habitat and any unusual plant community; and
(iii) the hydrological aspect of the locality; and
(iv) any, lake, lagoon, or perennial or non-perennial watercourse; and
(v) any significant natural feature, including rock outcrops, rock ledges and cliffs.
(db) The Council shall not consent to development, other than development referred to in clause 10.5(da), on any lot created otherwise than in accordance with clause 34.1(c), unless the development incorporates effective measures, satisfactory to the Council, to ensure that the development has no adverse environmental impact on any development excluded land.
Schedule 4 relevantly defines development excluded land as being any part of a lot:
(c) on which any Schedule 3 environmentally sensitive vegetation unit is located, together with any buffers required to protect that unit; or
(f) that comprises a watercourse or any buffers required by the Council to protect that watercourse; or
(h) comprising any significant landscape or special feature, such as rock outcrops and escarpments, which in the opinion of the Council is worthy of preservation.
Whilst Mr Hawse noted that the site comprises development excluded land he did not raise any particular concerns in this regard. Despite this 10.5(db) continues to be relevant.

Clause 10.8 (Services) of the LEP relevantly provides that:
(e) The Council shall not consent to the subdivision of land to create additional lots or to the carrying out of development the Council considers is significant in the Residential Bushland Conservation zone unless -
(i) each of the lots to be created which will require effluent disposal or the site on which the development will be carried out is to be serviced by a reticulated sewerage system; and
(ii) the Water Board has previously provided certification to the Council that the sewage treatment plant serving the area concerned has the capacity to accommodate the additional development.
Clause 10.8 (e) of the LEP comprises a development standard applicable to subdivision and requires that new lots should be serviced by a reticulated sewerage system. By utilising on site treatment of sewage and on-site disposal of treated effluent, the proposal does not comply with this requirement and as a consequence an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") has been provided.

Clause 30 of the LEP relevantly requires that development must take place within a maximum Principal Development Area of 5000 sq m. The proposal involves a significant exceedence of this development standard and an objection under SEPP 1 has been provided.

Development Control Plan No 15 – Parklands ("DCP 15") is a development control plan specifically prepared for this site. The objectives of DCP 15 are:
3.1 To identify and protect the existing man-made landscape features of the site, and to incorporate and embellish these features in any development proposal;
3.2 To identify and preserve any watercourse, dams, natural vegetation and swamps located on the site;
3.3 To preserve the streetscape character of Govetts Leap Road, Cleopatra Street and Lakeview Avenue, by protecting the boundary trees and shrubs around the periphery of the site;
3.4 To conserve the heritage significance of the site;
3.5 To identify and minimise any adverse effects and future development proposals may have on adjoining and nearby residences and streets.
The development controls in clause 6 of DCP 15 require the maintenance of existing tree stands and shrubs on the site and allow development only in cleared areas. Only one vehicle access to Govetts Leap Road and two vehicle accesses to Cleopatra Street will be permitted.

Also applicable is Development Control Plan No 22 - Use of Heritage Items.

Public notification

The development application was advertised during May and June 2005 and as a result some 93 submissions together with a petition containing 32 signatures were received objecting to the proposal. The matters of concern raised in these objections include the following:
detrimental impact on existing businesses in Blackheath,
contrary to the applicable planning controls,
failure to address the site's heritage and archaeological values,
adverse environmental impacts on the Popes Glen ecology,
out of character with the surrounding area,
insufficient information in relation to the STP and effluent disposal,
adverse traffic impacts on the locality,
overdevelopment of the site and excessive height of buildings.

The evidence

In addition to the information obtained during the extensive site inspection, the Court was provided with a considerable amount of documentary evidence, comprising more than 90 exhibits. Whilst on site the Court also had the benefit of the evidence of a number of resident objectors who explained in some detail their written objections.

On behalf of the respondent Council expert evidence was given by:
Mr G. Smith - environmental scientist
Mr V Hawse - town planner
Ms D Freidwald – horticulturalist
Ms F Nagel - environmental scientist
Mr D Durie - environmental scientist
Dr P Bacon - agricultural scientist
On behalf of the second respondent expert evidence was given by:
Dr R. Lamb - visual analysis consultant
Dr G Grohman – environmental scientist
Dr A Clements – plant ecologist
Mrs C Hird – agricultural scientist
Dr J Murtagh - agricultural scientist
On behalf of the applicant expert evidence was given by:
Miss N Sonter - landscape consultant
Mr N. Dickson - urban design and landscape consultant
Mr I Stapleton - heritage consultant
Mr D Draper - arborist
Mr D Peterson - environmental scientist
Dr D Martens - environmental engineer
Mr A Betros – town planner
In addition evidence was given by the Court appointed expert, Mr J. Whitehead an environmental consultant.

The issues

The principal issue for the respondent council involves the proposed on-site sewage treatment works and on-site effluent disposal. Of particular concern is the risk of adverse environmental impacts off site especially for Popes Glen Creek. In these circumstances and taking into account cl10.8 (e) (reticulated sewerage) of the LEP it is argued that the development of the site as proposed would be premature and the associated SEPP 1 objection should not be upheld-

The second respondent raises two principal issues, the first being essentially the same issue as that raised by the council and the second involving adverse impacts on the heritage significance of the site.

The other lesser, but nevertheless relevant issue, involves the SEPP 1 objection dealing with the development standard in cl 30 of the LEP relating to the principal development area requirement.

The town planners have considered the two (as now amended) objections and taking into account an agreement reached by Dr Martens, Dr Bacon and Mr Durie they agree that the objections are well founded and can be upheld. Taking into account this agreement and their overall consideration of the application they are satisfied that no town planning issues of contention remain and that the proposal is worthy of approval.
Having considered the two objections and the associated evidence and taking into account what I have decided in relation to the on-site treatment of sewage and on-site disposal of effluent, I am satisfied that they are well founded and that the development application is consistent with the aims of the policy. Hence the non-compliance with the two development standards is no longer an impediment to the granting of development consent.

Sewage treatment and effluent disposal

In dealing with the question of sewage treatment and effluent disposal it is relevant to note that the proposal will be required to be connected to the proposed Upper Blue Mountains Sewerage Scheme that is due for completion in late 2008 (subject to planning and funding approvals). Until this time and as earlier noted, only a limited amount of the sewage generated by the development can be disposed to the existing sewerage system. As a consequence the majority of the generated sewage is proposed to be treated and disposed of on-site.

The catchment in which the site is located extends to the west as far as the Blackheath town centre and is substantially developed for urban purposes, mainly residential. Not all of the properties within the catchment are connected to reticulated sewerage. Despite this there can be no doubt that protecting the catchment and the river system that it drains into from sediment and other polluting discharges is an important consideration for this application.

Prior to and during the course of the proceedings and as the evidence unfolded and further (soil, water and contaminant) modelling undertaken, a number of significant changes were made to the proposal. These changes include the deletion of three buildings and, more relevant to the issue of sewage treatment and effluent disposal, the upgrading of the STP, the extension of the effluent irrigation areas across the site and effluent re-use. These changes were made notwithstanding that Dr Martens was of the opinion that at least some of them were unnecessary. Given that these changes have now been incorporated into the proposal (by changes to the design and the applicant's acceptance of associated conditions of consent) it is appropriate for the Court to consider the application in its now amended form.
The STP and the effluent irrigation areas now comprise:
A larger irrigation area of 2.183 hectares
A larger effluent holding tank of 600kl
A 120kl reactor tank
A 60kl sludge digester tank
A 30kl SPS/equalisation basin
A shed containing chlorine and alum dosing pumps, filters and uv units.
A bund wall/wetland system around the STP.
In relation to the disposal of treated effluent by way of on site irrigation, Dr Grohman explained how viruses that might survive the sewage treatment process could continue to survive in the soil. If this were to happen and with inevitable human contact, potential outbreaks of disease could occur. Because the proposal will not prohibit human access to the irrigation areas, great care is required in the design of the STP. Hence a multi-barrier approach is required to prevent the introduction of such viruses into the soil. This approach comprises a “treatment train” that can include chemical dosing, biological and nitrogen removal, filtration, ultrafiltration/microfiltration and disinfection. This "treatment train" needs to be properly monitored to ensure that if any part of the process is interrupted immediate action is taken to rectify any problems and quickly bring the STP back to full effectiveness.

In response to these concerns and despite Dr Martens’ evidence that the STP meets the NSW EPA Guidelines for irrigation with uncontrolled public access, the revised STP now incorporates the multi-barrier approach. It is also relevant to note the extensive and comprehensive management plan requirements in the proposed conditions of consent.
Both Dr Murtagh and Miss Hird were of the opinion that the originally proposed 300kl effluent holding tank would not provide adequate wet weather storage capacity. This is based on their understanding of relevant water modelling for this site taking into account likely water usage as well as effluent reuse. Dr Martens disagreed arguing that on his analysis 300kl would be adequate but nevertheless, on a precautionary basis, agreed to double the size of the storage tank to 600kl. As a consequence, the changes to the proposal now provide a higher order of treatment and capacity by comparison with sewage treatment plants approved by the council and Sydney Water similar to that proposed but without the now incorporated microfiltration.

Dr Martens was of the opinion that the technology that is now to be utilised in the STP is well proven, although he acknowledged that it requires appropriate management, monitoring and maintenance. In this context it is relevant to note that the STP will need to be licensed on an annual basis. Also the conditions of consent provide for the preparation and approval of the following:
A site safety plan to protect against unauthorised entry, the provision of all weather access and the storage of chemicals etc.
An emergency contingency plan to specify: responses to noncompliant reclaimed water standard values; emergency holding and cleanup procedures; emergency supplies and equipment including alarm systems; and training of personnel etc.
Operation and maintenance plans which include monitoring, reporting and maintenance schedules as well as contact details for relevant professionals in emergencies.
A water quality monitoring plan for ongoing testing of water in Popes Glen Creek, ground and surface water.
A contingency plan for appropriate response should any failure occur to avoid adverse environmental impacts
Taking into account the final amendments to the proposed STP and on-site disposal of effluent, Dr Martens Dr Bacon and Mr Durie met and reached an agreement that:
With draft consent conditions 12 and 59 to 90/91, relating to the treatment and disposal of waste water on-site at "Parklands", Govetts leap Road, Blackheath, that this component of the overall development is, in our view as experts, appropriate for approval of the Court. The imposition of these conditions would satisfy our concerns, within our respective areas of expertise, that all relevant issues in the proceedings have been addressed.
The conditions referred to in the above agreement are now incorporated into the proposed conditions of consent and are accepted by the applicant.

The conditions now provide for the STP to be progressively commissioned over a 3-month period consistent with the four stages of occupancy of the development. During this period the performance of the STP is to be reported to the Council on a weekly basis. Council’s final approval is required as to the suitability of the treated effluent for irrigation. Alternatively the proposal can utilize "sewer mining", comprising the extraction of sewage from Sydney Water mains and its treatment in the STP to prove the effectiveness of the plant as part of the commissioning process. This would also occur over four separate stages and in either case, progression beyond each stage will not occur until the STP is performing appropriately. I accept that this will provide a considerable degree of certainty and is likely to eliminate many of the concerns associated with the effectiveness of the STP.

Despite all of the treatment processes and safeguards the Court was invited to consider a “worst case” scenario that included a complete failure of the STP including any backup systems coinciding with the peak occupation of the development and an extended period of wet weather. In this context, concerns were expressed that the STP and the effluent irrigation areas might not operate in an entirely satisfactory manner as has occurred with similar systems elsewhere in the region.
According to Dr Martens the STP design now significantly exceeds the requirements of the development even taking into account that the associated calculations assume maximum occupancy of the development. In my view this is an appropriate approach especially given winter weather conditions in this locality when evaporation from the soil and transpiration through plants is at its lowest.

Mr Smith was concerned that should there be a plant failure resulting in discharges from the STP into Popes Glen Creek, this would have adverse consequences. He pointed to the long-term impact on instream flora and fauna as a result of the release of effluent containing elevated nutrients over time.

However in all of the circumstances I am satisfied that the STP design including the proposed safeguards and the conditions of consent are such that the likelihood of failure with consequential significant adverse environmental impacts of any significance are unlikely.
More particularly I accept that if an overflow were to occur from the STP the wetland bunding system should provide a sufficient timeframe in which to respond. Moreover, given the relevant safeguards, including alarm systems, backup generators and the on-site manager, an uncontrolled discharge would be unlikely to occur for a sufficiently long period to cause any significant or irreversible harm. In addition should the STP for whatever reason become inoperable arrangements can be made to pump out the sewage and/or the treated effluent.

Given its significant urban character the Popes Glen Creek catchment cannot be described as pristine. In this context, I do not accept that the downstream environment including Popes Glen Creek would be highly sensitive to an inadvertent discharge of treated effluent or untreated or partially treated sewage that serious damage would result. As for the so called “worst case” scenario, I am satisfied that the likelihood such a situation occurring with a coincidence of events resulting in an overflow of treated or untreated sewage finding its way beyond the site is very low. By comparison and in the event of complete plant failure, because effluent can be pumped out, this is, as Dr Martens explained, an improvement on the Sydney water model, which in similar circumstances allows overflows to occur into receiving waters.
In these circumstances and taking this into account the proposed design features and safety measures I have been persuaded that the likelihood of adverse consequences associated with the proposed STP for lands beyond the site are low and certainly not such as to comprise a fatal flaw in the application. In reaching this conclusion I have taken into account and accept the general thrust of the Preliminary Risk Management Plan as well as Mr Whitehead's comment that whilst design of sewage treatment systems is risk-based, the proposed design is robust, incorporating best management practice and presents an acceptably low risk of impact to Popes Glen Creek and other sensitive receptors.

Clearly it would be preferable for the development to be immediately connected to a reticulated sewerage system, particularly as the site's climate, soils and vegetation are not best suited to the disposal of effluent in general. However this is presently not available and based upon the revised STP and on-site disposal arrangements and taking into account that the site will, in due course, be connected to a reticulated sewerage system, I am satisfied that there will be no unreasonable associated risk of adverse impacts on the site or the catchment.
In all of the circumstances I have decided that the proposed STP and on-site disposal of effluent can be operated in such a manner that there will be no significant risk to the residents of the development or to the site itself or the environment beyond the site. Therefore this issue does not constitute a reason for the refusal of the application.

Heritage significance

As indicated above the issue relating to the heritage significance of the site was raised by the second respondent and not by the respondent Council.

According to the Blue Mountains Heritage Inventory, Parklands has historical and aesthetic significance notwithstanding that its integrity/intactness is impaired. Its aesthetic significance is described as:
The gardens and grounds of Parklands are of historic significance at the local level for their association with John Pope, a wealthy businessman who appreciated gardens and who promoted the use of floral decoration throughout his partnership in Farmers, a distinguished Sydney store. The private golf course established by Parke Pope is also of high local significance and is still legible. The gardens are of historic significance for their association with the prominent gardeners and landscapers Thomas Kerslake, Paul Sorensen and Richard Ratcliffe.
Its historical significance is described as:
The gardens and grounds of Parklands are of aesthetic significance at the local level for their collection of mature trees particularly the to cupressus macrocarpa, the mature acer palmatum, oaks, pinus radiata boundary plantings and other conifers and their disposition which defined the early gardens, and for the landmark qualities of the upper storey forms of the plantings and a contribution to the visual experience of Govetts Leap Road.
Parklands was formerly the grounds of a house known as Karraweera built in the late 19th century. The nine-hole golf course was established around 1904. The house no longer exists.

Since that time a number of development consents have been granted including most recently (1994) a consent for a guesthouse development now reflected by the existing homestead residence and three guesthouse buildings. The site has been substantially improved in recent years.

As described above the grounds of Parklands comprise a listed heritage item. Accompanying the 1994 development application was a heritage landscape conservation study that considered the heritage significance of Parklands in some detail. That study identified items of exceptional heritage significance as comprising the streetscape of radiata pines along Govetts Leap Road and stands of cypress pine plantings variously on both sides of the entrance driveway off Govetts leap Road. Items of considerable significance include mass plantings of radiata pines as well as radiata pine fairway plantings. Also of considerable heritage significance are groupings of trees near Govetts Leap Road thought to have been positioned or planted by Sorrensen. In the statement of significance the study concludes:
The site has significance because it demonstrates the type of establishment set up by wealthy citizens at the time of the initial development of Blackheath. This significance has been reduced through the loss of the house and the richness of the original garden.
The site has significance because it contains plantings of trees from approximately 100 years ago, which contribute in a dominant manner to the streetscape of Govetts Leap Road.
The site has associations with an important landscape designer through plantings attributed to Paul Sorensen. It has associations with John Pope, prominent businessman and first Mayor of Ashfield.
As described above the site specific DCP 15 is concerned with heritage and character and the objectives relevant to heritage effectively require the conservation heritage significance by the protection of existing man made landscape features of the site and the streetscape. More particularly the development controls require the retention of existing trees and the limitation of development to the existing cleared areas.

A considerable amount of evidence in relation to the heritage of the site, its aesthetics and the proposal has been provided. This includes the statement of heritage significance prepared by Mr R. Ratcliffe although this statement can be criticised for its failure to address the significance of the golf course.

Mr Stapleton carried out a comprehensive analysis of the history of the site and assessed its significance in accordance with the methodology recommended by the Heritage Office of New South Wales for heritage impact statements. He summarised the significance of the property as:
because of its history as a golf course, parklands retained a parkland type landscape of considerable appeal which is made more attractive by the age of the perimeter radiata pine plantings which are a landmark and contribute to the streetscape of Blackheath. The place is associated with noted Victorian and early 20th century businessman, John and Parke Pope, and contains work by the important landscape designer Paul Sorensen.
In this context Mr Stapleton noted that apart from the trees, little of the early development phase of the site has survived. Surviving elements include: mounding of the ground in the vicinity of trees said to be planted by Sorensen; a brick pathway; and the spring reservoir. He examined the proposal in detail, particularly the location of the proposed buildings (as indicated by the amended proposal) and concluded that it would not have any substantial impacts on the heritage significance of the site. He also recommended that should development consent be granted it be subject to a number of conditions involving protective measures, investigation and recording, landscape designs, and protection of trees. The applicant has agreed to these conditions.

Dr Lamb carried out an assessment of the potential landscape heritage impacts of the proposal taking into account the identified cultural values of the site. He explained that the proposal’s lack of recognition of the significance of a golf course represents a fatal flaw in the application because it does not meet the objectives of DCP 15 in relation to maintaining trees and shrubs and protecting man made landscape features. More particularly he explained that the positioning of buildings would deny opportunities to interpret the significance of the place, its sense of enclosure and linearity between tee and green and openness. The proposal thus fails to meet the heritage significance objectives of Amendment No 5. He was also concerned that there was no comprehensive management program for trees to ensure their survival and replacement in due course so as to maintain the site’s existing character.
Miss Sonter examined the various issues associated with the heritage landscape and landscaping generally in considerable detail, reaching a number of conclusions. First, the on-site disposal of treated effluent will not adversely affect existing or proposed vegetation on or adjacent to the site. This is because any nutrients contained in the effluent can be taken into account in the proposed fertilisation regime for the site. Second, any proposed tree removal including the proposed bushfire protection measures will be limited and will not erode the essential landscape character of the site. Hundreds of mature trees that are features of the natural and cultural landscape will be retained. Third, the pattern of residential development on site will not threaten the retention of the existing landscape character of the site. She also prepared a vegetation management plan that deals with the various phases of the development of the site as well as ongoing maintenance.

Mr Dickson's urban design and landscape architecture evidence is also relevant to the heritage question. It was his opinion that the proposal would embellish the existing landscape character by the appropriate placement of built forms. This would add a new and appropriate layer of complexity to the site. As required by DCP 15 the proposed buildings are located largely in the cleared areas. They generally step with the contours and are partly concealed by existing vegetation and new garden plantings. Hence the main view corridors and sense of openness of the site will be maintained. The landscape plan will provide for appropriate plantings of various heights and densities and will link into the existing landscape character of the site. The proposal is thus appropriately responsive to the site and representative of good urban design.
Mr Hawse, the Council's principal town planner concluded that the development is aesthetically sound.

In relation to the heritage issue I have been persuaded by the evidence marshalled on behalf of the applicant. I agree with the notion that landscapes, including heritage landscapes are never static and in this regard the site's landscape has been subject of much change and evolution over many years. The golf course has been substantially modified since 1993. This proposal will result in further evolution whilst at the same time continuing to facilitate the site's interpretation. In this regard I particularly agree with Mr Dickson's conclusion that the appropriate siting of buildings together with existing and proposed tree plantings will appropriately provide vistas and visual focal points within the site.

I recognise that the proposed vegetation modification including that required for bushfire safety reasons, and the location of development may not strictly comply with DCP 15. However, I am satisfied that what is now proposed is appropriate. I also accept Mr Stapleton’s evidence that the proposal represents a balanced response to the applicable statutory provisions and the various aspects of significance for the site including streetscape, landmark, aesthetic, historical, social and scientific. The streetscape frontages will be maintained as required by DCP 15. Indeed this development will facilitate the long-term management of vegetation on the site in the context of its heritage significance. In the circumstances clause 10.7 of the LEP has been met.
Some concerns were expressed as to the appearance of the proposed STP. Taking into account that the majority of the facility is belowground and given its location on lower part of the site and the landscaping arrangements I have decided that this is not a matter of any determinative significance.

There can be no doubt that, more generally the proposal will change the character of the site but I agree with Mr Stapleton and Mr Dickson as to the acceptability of this change because it will result in a balance between the development of the site in accordance with its zoning and its heritage significance. Therefore this issue does not constitute a reason for the refusal of the application.

Other matters

In 1994, development consents were granted for the staged establishment of a residence and tourist accommodation and associated vehicular access vehicular parking and landscaping of the site. Condition 23 of the consent requires the provision of a paved pedestrian access from Govetts Leap Road and from the day visitors’ car parking area to the display gardens on the site. It was contended on behalf of the second respondent that the proposal would be contrary to this condition.

I am not convinced that the condition has the effect of opening up the site or more particularly the gardens to the general public. The gardens and the golf course have always been private facilities. I also accept that there is no continuing requirement for the owners of this land to make it generally available for public access beyond that effectively facilitated by the 1994 land use consent.

Finally I accept the evidence of Mr Peterson in relation to bushfire matters to the effect that the site including the existing and proposed buildings on it would not be at such a risk as to warrant refusal of this application. In this regard I note that he requires that some trees need to be removed or thinned but as I have already indicated I do not accept that these actions would be significant in the heritage context. I understand that the requirements of the NSW Rural Fire Service have been satisfied.

Conclusions

Having reached the conclusions that I have in relation to heritage and the on-site treatment and disposal of sewage and having considered all of the other evidence in relation to the proposal I am satisfied that it meets the objectives of the LEP and the RBC zone as well as the particular requirements of the LEP and the DCP’s including environmental impact, water quality, water catchment, bushfire and heritage.

More generally I agree with the conclusions reached by Mr Betros and Mr Hawse that the proposal is not indicative of an overdevelopment of the site in terms of density, character and visual impact and that the design and finish of the buildings would be in character with development both on the land and nearby. In addition I have not been persuaded that concerns involving impacts on existing businesses in Blackheath, the character of the development and traffic impacts should attract any determinative weight.

As for the issue of prematurity, given that I have determined the issues in favour of the applicant I have concluded that the proposal is not, using the words of the first respondent, before its time.

I have therefore decided, notwithstanding the large number of residents’ objections, that the appeal against the refusal of the development application should be upheld and conditional development consent granted.
In finalising the conditions comprising Annexure A, I have taken into account the submissions made by the parties.

Orders
It is therefore the decision of the Court that:

1.The appeal is upheld.
2.Development application No X05/0418 for the construction and community title subdivision of 36 buildings containing 72 dwellings for tourist/residential accommodation on the site known as "Parklands" at 132-174 Govetts Leap Road, Blackheath is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3.Exhibit 2 is retained.

___________________
T A Bly
Commissioner of the Court
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Citations

Chase Property Investments Pty Limited v Blue Mountains City Council [2006] NSWLEC 35

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