Neerim Bowral Pty Ltd v Wingecarribee Shire Council

[2009] NSWLEC 1310

Land and Environment Court

of New South Wales

CITATION:	Neerim Bowral Pty Ltd v Wingecarribee Shire Council [2009] NSWLEC 1310
PARTIES:	APPLICANT Neerim Bowral Pty Ltd RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	10041 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Seniors housing consistency with character of the area and impact on heritage item
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 State Environmental Planning Policy (Housing for Seniors or People with a disability) 2004 Wingecarribee Local Environment Plan 1989 Draft Wingecarribee Local Environmental Plan 2009
DATES OF HEARING:	23 and 24 June 2009
DATE OF JUDGMENT:	23 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor of Pikes Lawyers RESPONDENT Mr P McEwen, SC Solicitors B Bilinsky & Co Solicitors

JUDGMENT:

-

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

23 September 2009

10041 of 2009 Neerim Bowral Pty Ltd v Wingecarribee Shire Council

JUDGMENT

1 This is an appeal against the refusal by Wingecarribee Shire Council (the council) of a development application (LUA 08/0616) under the Environmental Planning and Assessment Act 1979 (the Act) for a seniors housing development at 22 Centennial Road, Bowral (the site).

2 The key issues between the parties are whether the proposal:

(1) would recognise the desirable elements of the locations current character and contribute to the quality and identity of the area (contention 2).
(2) compliments and sensitively harmonises with the heritage item (contention 1).

3 Council also raised contentions in relation to the proposal’s consistency with the planning framework in the draft Local Environmental Plan (contention 3), the extent of tree removal, including the species which are components of the Southern Highland Shale Woodland endangered ecological community (SHSW) and whether a viable SHSW community could be regenerated on the site (contentions 4 and 5). Mr McEwen SC, for the council, submits that these issues, of themselves, are not determinative of the application.

4 Vehicular access to the site is addressed by a condition (contention 6) and further information regarding the provision of a bus service has been provided (contention 7).

The site and its locality

5 The site comprises three allotments being lots 17, 18 and 19 in DP20797 with a combined area of 43649 sqm. Lot 17 contains a heritage listed mansion known as Neerim with landscaped grounds and a driveway access from Centennial Road.

6 Lot 18 and 19 are vacant and contain large trees, particularly around the periphery and a creek that runs east to west across the site. These lots front Centennial Road and are separated by the driveway that leads to Neerim.

7 The site falls from Neerim towards Centennial Road. The southern part of the site is relatively flat with a right of access way and easement for services over the adjoining lot (Lot 16 DP20797) which provides access to Burton Place. Lot 16 and 15 currently form part of the heritage listing of the property but are not part of the application or in the same ownership as the site.

8 The site contains a large number of trees including representatives of the SHSW.

9 The site adjoins 7 residential properties, which are about 4000 sqm or more in size and developed with single dwelling homes.

10 The adjoining property to the east is a convent and Bowral County Golf Course is located opposite on Centennial Road.

11 The surrounding area is predominantly low-density residential development within large landscape gardens. The predominant lot size is about 4000sqm.

12 The site is zoned Residential 2(a1) under the Wingecarribee Local Environment Plan 1989 (LEP 1989). Clause 17 permits a minimum allotment size of 4000 sq m. The objectives of the 2(a1) zone are:

(a) to retain and provide a low density residential character in environmentally sensitive localities, and
(b) to ensure that any development will not have an adverse affect on the landscape and scenic quality of the area or the amenity enjoyed by residents located in the area.

13 The proposal is not permissible within the 2(a1) zone and gains its permissibility under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP). Neerim, house and gardens (Lots 15, 16 and 17 DP20797) are listed as an item of environmental heritage under Schedule 2 of LEP 1989.

14 Draft Wingecarribee Local Environmental Plan 2009 (Draft LEP) is an exhibited instrument, which must be considered under s 79C of the Act. The site is proposed to be zoned R5 Large Lot Residential under the Draft LEP and the 4000sqm minimum lot size is to be retained. Under cl 4(2) of the SEPP large residential allotments are not land that is zoned primarily for urban purposes and therefore is excluded from the SEPP. It is unclear why the site is not now excluded from the SEPP given that it is currently zoned for residential uses on large residential allotments. However, the parties did not raise this and it has not formed part of my consideration of the application. Neerim House and garden (lots 16 and 17, DP 20797) retains its listing as a heritage item under the Draft LEP.

15 The parties disagreed on the weight to be given to the Draft LEP, which following the hearing, was adopted by council and forwarded to the Department of Planning to be made. As I have not upheld the appeal it is not necessary for me to adjudicate on this matter.

16 SHSW is listed as an Endangered Ecological Community under Part 3, Schedule 1 of the Threatened Species Conservation Act 1995 (TSC Act).

The proposal and its background

17 The proposal is for seniors housing with 54 self contained dwellings within one and two storey detached and semi detached buildings. 37 dwellings in 16 buildings are located on the site to the north of Neerim. These buildings step down the slope in four tiers accessed off 3 access ways, which connect to either side of the driveway. 15 dwellings in 9 buildings are located on the site to the south of Neerim. These are off a cental access way, which runs east west and connects to the driveway to Burton Place over the ROW.

18 Alterations and additions are proposed to Neerim for use as a club house and management. The rear of Neerim and the existing garage are to be converted to self contained dwellings. The original gardens of Neerim are to be retained within a curtilage of about 4000sqm.

19 Construction of a new indoor swimming pool to the east of the water tower and upgrading of the existing tennis courts is proposed. The ground level of the water tower is to be converted to change rooms.

20 The proposal includes extensive tree planting and landscaping, including a 40m wide riparian zone adjoining the creek which is to be planted with SHSW.

21 The development is to be undertaken in stages with the conservation works to Neerim undertaken in Stage 1.

22 Council approved a development application (LUA 06/0401) by Notice of Determination dated 21 May 2008 for subdivision of the site into 8 allotments. The consent included a condition (condition 19), which required a Section 88B instrument that requires details and placed restrictions on the design of future dwellings and other structures on the site and the landscaping.

Evidence

23 The Court visited the site and heard from residents whose principle concern was that the proposal is inconsistent with the character of the area. The residents were also concerned about traffic impacts and the increase in demand on services, particularly hospital and ambulance, which they felt were already stretched. The adjoining residents at 5 Burton Place, were also concerned about the direct impact on the outlook and amenity of their properties.

24 The Court heard expert evidence from:

For council
• Dr P Kabaila, heritage consultant
• Mr P Malloy, planner
• Mr P D’Hondt, arborist
For the applicants
• Mr R Staas, heritage consultant
• Mr R Fleming, planner
• Mr D Ford, arborist
• Ms N Sonter, landscape consultant
• Ms G Hafee, consultant ecologist

25 Clause 32 of the SEPP provides:

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

26 The principles set out in Division 2 include the design principles in cl 33(a) and cl 33(b) which provide that

The proposed development should:
(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environment plan, and

27 The key dispute between the parties was whether the proposal demonstrates that adequate regard had been given to these principles.

Character

28 Mr Malloy and Mr Fleming agreed that the area was not undergoing transition and that a desirable element of the location’s current character is dwellings in large landscape settings. Mr Malloy and Mr Fleming stated that:

the location’s current character is a low density residential / semi rural character with detached dwelling houses predominantly on 4,000 sqm lots, within established landscape gardens, with dwelling house footprints being an average of between 150 and 250 square metres, with the remainder of each allotment being predominantly established landscaped garden area setting.

29 Mr Malloy considered this resulted in a character where the landscape dominates built form. The experts agreed that the density of the development was about 1 dwelling per 800sqm (to the north of Neerim) and 1 dwelling per 500sqm (to the south of Neerim). The building footprint of the proposal (excluding roads) is about 17.5%. Mr Malloy noted that the building footprint of existing development in the area as about 5%.

30 Mr Malloy and Mr Flemming disagreed on whether the proposal would contribute to the character and identity of the area.

31 Mr Fleming stated that the proposal recognised the desirable elements of the existing area and would contribute to the character and identity by the streetscape presentation to Centennial Road, the overall development is within a landscape setting and Neerim and its gardens are conserved.

32 Mr Fleming acknowledged that the character of large blocks with single dwellings would change but did not consider this to be the test in cl 33(a). Rather, he contends that:

The combination of building setbacks, spatial relationship to neighbouring developments and the retention of established landscape features including the details of the future landscape outcome as proposed results in outcomes that are not antipathetic to the established character of the locality.

33 Mr Malloy states that:

The proposed footprints and “walls” of buildings ….results in landscaping being dominated by built form, which is not in character with the locality, and the development’s height, scale, form and fill, the four tiers of buildings when viewed from the north, the visual impact from Burton Place, siting and vegetation removal issues impact on the site’s landscape setting and impact upon the low density residential character of the area.

34 Mr Malloy considered that the building would appear as a “wall” as buildings extend 75-80m punctuated by two 5m wide landscaped areas and 50m punctuated by 2m wide landscape areas. In his opinion the size of the landscape area was insufficient to enable the buildings to read as separate elements or provide a landscape setting. Mr Flemming did not agree and considered the buildings had adequate separation and that they would be screened by landscaping. In particular the dwellings fronting Centennial Road were set back some 40m and would be screened by the replanted riparian zone.

35 Mr Malloy and Mr Flemming generally agreed on the visibility of the proposal but disagreed on whether the visual impact was acceptable. The first tier of dwellings (and part of the second tier through gaps) would be visible from Centennial Road but would be screened by vegetation. There would be “glimpses” of the northern part of the development from the Golf Course and Boronia Road and the southern part would be visible from Burton Street. The development would be visible from within the site itself and adjoining properties but this would be screened and the impact would be reduced due to the curving nature of the driveway.

Findings

36 I accept Mr Malloy’s opinion. The desirable element of the locations current character is that buildings are subsidiary elements to the rural landscape. While there are large houses, these are generally some distance from other dwellings and within landscaped settings. The proposal will provide a large amount of open space and considerable landscaping but this is largely through the retention of the Neerim’s gardens, the establishment of a riparian zone and the retention and reinforcement of perimeter planting around the site. These are positive features of the proposal and I accept Mr Fleming’s evidence that the development as a whole will be within a landscape setting. However, the size of the individual buildings, which contain up to four dwellings and the minimal space and separation between dwellings will result in them appearing as a “wall” of building when viewed from sections within the site, particularly from the driveway and along the access roads.

37 Seniors housing is required to be accessible and this has resulted in changes to the landform including considerable excavation and areas of fill. While other dwellings in the area are large and some have altered the landform through cut and fill, this is not a desirable element of the character of the area that should be emulated by the development. The retention of the heritage driveway at its existing grade, which is a positive feature, also places constraints on the development and has necessitated changes to the landform.

38 The density and footprint of the development is not large but is considerably greater than existing development in the area. Of itself. this does not indicate that the development is unacceptable, however, the size, arrangement and number of buildings on the site results in a development which does not contribute to the character and identity of the area.

39 There was very little information provided to the Court on how the development would be viewed from the surrounding area, adjoining properties and within the development. The expert evidence in this regard was also inconclusive due to the available information. I accept that the development will largely be screened by vegetation but there will undoubtedly be locations such as the Golf Course and Burton Street where it will be seen. From within the development and along the driveway leading up to Neerim the development will be visible.

40 It is not a requirement of the SEPP that the development not be seen or be screened by landscaping for it to contribute to the character and identity of the area. On the contrary, one of the desirable elements of the existing character is the ability to see dwellings within their landscaped settings. This character is one where an individual dwelling is perceived within a large amount of space and a landscaped setting. The proposal will not be consistent with this character as landscaping largely screens the buildings from outside the site. Where buildings are visible they will not be separated by large landscape settings.

41 It is also not a requirement that the development be the same as existing development in the area. However, it must demonstrate that adequate regard has been given to the desirable elements of the location’s current character so that new buildings contribute to the quality and identity of the area. I am not satisfied that this has been achieved and for this reason the application must fail.

42 In reaching this conclusion I consider that the proposal has a number of positive elements but that the constraints of providing seniors living within an area of large lot residential development and in the vicinity of a heritage item is a very difficult task. I note Mr Malloy’s evidence that the approved subdivision is in his opinion an appropriate development of the site and that the number of dwellings on each lot could possibly be increased. I also note that cluster housing is permissible within the zone, which would potentially enable a greater number of dwellings that the number envisaged in the subdivision approval.

Heritage

43 Neerim House and gardens are listed as a heritage item on LEP 1989. There is a separate inventory number and inventory sheet for the house (W10536) and the garden (W10535). Neither includes a statement of significance of the house or the garden.

44 Mr Staas prepared a Statement of Heritage Impact for Neerim (SHI) and Taylor Brammer Landscape Architects Pty Ltd prepared a Landscape Heritage Report (Landscape Report) as part of the development Application.

45 Mr Kabaila and Mr Staas did not raise issues in relation to the changes to Neerim house, its garage, water tank or its immediate garden. The key disagreement related to the impact of the proposed development on the setting of Neerim.

46 The landscape report identified the landscape significance of the site as being:

The subject site contains a fine representation of an Inter War highlands garden, providing a suitable curtilage for a grand country residence that the house Neerim represents.

The long entry drive flanked by an existing hedge and adjacent open paddocks, which are understood to have supported a Pinus radiata forest, provides a strong sense of enclosure before revealing the house Neerim on the southern side of the circular driveway in its immediate landscape setting.

The strong lines of boundary planting along the western and eastern site boundaries provide a visual setting of a suitable scale and type to complement the architectural style and scale of the house.

47 The landscape report identified the house and its immediate gardens and drive way as being of high significance. The northern paddocks (part lot 17 and lots 18 and 19) and the southern paddocks (part lot 17) are identified as being of moderate significance.

48 Mr Kabaila considered the setting to include the “paddocks” within lot 17 to the north and south of the house and the “paddocks” in lot 18 and 19, which are not part of the heritage item but are in the vicinity of the heritage item and therefore a consideration under cl 31A of LEP 1989. In his opinion the size, design and detail of the houses and their density and the changes to the landform adversely impacted on the setting of Neerim. In particular, he considered that the significance of Neerim included the sense of arrival along the driveway and that this would be adversely impacted upon by the houses, which would be clearly visible along the access roads. Mr Kabaila held a similar opinion to Mr Malloy that the houses would appear as a “wall” with little separation between them. He recognised that development could occur on the paddocks but considered the houses should be single storey (with attics), smaller, fewer in number with greater separation and landscaping and less change to the landform.

49 Mr Staas considered that the significant elements of Neerim and a significant garden curtilage had been retained. The proposed houses were consistent with the scale of other houses in the area and were appropriately scaled in relation to Neerim with substantial landscape corridors that would largely screen the houses from within and outside the development. In his opinion the proposal would not adversely impact on the heritage significance of Neerim or its setting and was necessary to conserve the house and its gardens. He referred to the use of heritage incentives to conserve other heritage items. However, the application does not seek to rely on a heritage incentives clause and no evidence was provided in relation to the financial costs resulting from the conservation of the item to justify the proposal or to demonstrate that these would not be met by the existing subdivision of the site.

Findings

50 The primary significance of Neerim is the house, its immediate garden and the driveway. As a rural property the openness provided by the “paddocks” to the north and south of the house is also an important part of its setting and significance. Both heritage experts agreed that development could occur in these areas but disagreed on the extent.

51 I accept Mr Kabaila’s evidence that the design and density of the proposal would adversely impact on the setting of Neerim. Houses would be clearly visible from the driveway approach to Neerim and from the views to and from the house and garden. While planting, in a similar manner to the existing windbreak to the south of Neerim, could screen these vistas this would not be consistent with the open character of the site.

52 Due to the degree of separation and the slope of the site the majority of dwellings to the north would not be clearly visible from the house and its immediate gardens. The house itself is not generally visible from the driveway, which in Mr Kabaila’s opinion adds to the drama of the approach. However, a significant view of the house from the driveway approach would be in the context of the closest dwellings. These dwellings would also be visible from the garden and would intrude into its setting. Similarly, dwellings to the south, not screened by the windbreak, would impact on views to and from the house. The number and size of the proposed dwellings do not retain, complement and sensitively harmonise with Neerim and its setting.

53 The proposed development does not demonstrate that adequate regard has been given to the design principles in cl 33(a) and cl 33(b) of the SEPP. The application must fail and the appeal be dismissed. It is therefore not necessary to address the other issues in contention between the parties.

54 The orders of the Court are:

1. The appeal is dismissed.
2. The development application (LUA 08/0616) for a seniors housing development at 22 Centennial Road, Bowral, is refused.
3. The exhibits, except Exhibit 3, are returned.

___________________

Annelise Tuor
Commissioner of the Court