Poppelwell v Wingecarribee Shire Council

[2024] NSWLEC 1239

Land and Environment Court

New South Wales

Medium Neutral Citation:

Poppelwell v Wingecarribee Shire Council [2024] NSWLEC 1239

Hearing dates:

01 May 2024

Date of orders:

09 May 2024

Decision date:

09 May 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No 23/0891 seeking consent for tree removal, demolition of an existing retaining wall and construction of a single storey dwelling house containing 3 bedrooms and an attached carport, resulting in a detached dual occupancy on the site, on the land at 11 Oxley Street, Berrima, is refused.

(3) All exhibits are returned.

Catchwords:

DEVELOPMENT APPLICATION — dual occupancy dwelling house development in R2 zone – subdivision – Berrima Conservation Area -

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34AA

Wingecarribee Local Environmental Plan 2010, Sch 5, cll 2.6, 4.1, 4.2E, 4.2F, 5.10, 7.3

Texts Cited:

Berrima Village Development Control Plan 2021

Planning for Bushfire Protection 2019

Wingecarribee Shire Council Community Participation Plan

Category:

Principal judgment

Parties:

Ann Marie Gabrielle Poppelwell (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
M Langenheim (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Brock Partners (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/302503

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The historic town of Berrima, located in the southern highlands of NSW, around 130km south west of metropolitan Sydney, was first laid out in around 1831.

2. Development is proposed on land located in the north east the township, and within an area of heritage significance.

3. To this end, the Applicant in these proceedings, lodged Development Application No 23/0891 on 13 February 2023 seeking consent for tree removal, demolition of an existing retaining wall and construction of a single storey dwelling house containing 3 bedrooms and an attached carport, resulting in a detached dual occupancy on the site, on the land at 11 Oxley Street, Berrima (the DA).

4. The DA also proposes subdivision of the site into two lots. Proposed Lot 2(a), on which development is proposed, will have an area of 1,000m², and proposed Lot 2(b), on which an existing dwelling stands, will have an area of 1,081m².

5. The DA was notified in accordance with the Wingecarribee Shire Council Community Participation Plan between 28 March 2023 and 11 April 2023, in response to which eleven submissions were received.

6. On 30 June 2022, the DA was refused.

7. On 22 September 2023 the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

8. On 8 February 2024, the Applicant was granted leave to amend the DA and rely upon amended plans and other documents.

9. The appeal was listed for mandatory conciliation on 1 May 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

10. The proceedings commenced on site, at which time the Court, in the company of the legal representatives, experts and Applicant, heard oral submissions from two residents of the area, including the owner of the neighbouring site at No 13 Oxley Street, and a representative of the Berrima Residents Association.

11. Broadly speaking, the concerns expressed by the residents may be summarised firstly as the loss of residential amenity by overlooking and overshadowing, and secondly in terms of adverse impacts on the heritage significance of Berrima.

12. At the conciliation conference convened afterwards, the parties were unable to reach agreement on those matters in contentions. Accordingly, I terminated the conciliation and proceeded forthwith to hearing.

The site and its context

13. The site is an ‘L-shaped’ block to the south of Oxley Street with an area of around 2,089m².

14. A single storey dwelling house, attached garage and driveway access from Schott’s Lane currently occupy the rear of the site, that was itself the result of subdivision approved in April 2016.

15. A survey of the existing site (Exhibit A) shows that the site falls, both southwards from Oxley Street to the rear, and also across the site from a higher point to the east, to levels to the west.

16. The site has two driveways; one over the neighbouring property at No 9 Schott’s Lane, for which a right of way is registered to benefit the subject site, and another providing access from Oxley Street.

17. In addition to the right of way over the land fronting Schott’s Lane, the site also has two easements registered on title that burden the site in respect of services for adjoining and nearby properties; a positive covenant in respect of maintenance of stormwater infrastructure; and three restrictions as to user also burden the site in relation to maintenance of stormwater, landscape and fencing on the site.

18. Development in the immediate area, between the Old Hume Highway to the west of the site and Schott’s Lane to the east of the site, predominantly consists of single storey dwelling houses on large allotments with mature landscaping. East of Schott’s Lane, single storey development is also evident, albeit on smaller allotments.

19. The site is located in an area identified as R2 Low Density Residential zone, according to the Wingecarribee Local Environmental Plan 2010 (WLEP), in which development for the purposes of a dwelling house is permitted with consent, where consistent with the two objectives of the zone:

•  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.

20. It is also relevant to note that the site is within the Berrima Conservation Area (Conservation Area) which is listed as such in Sch 5 of the WLEP, as are a large number of items of heritage significance, including the Berrima Public School located opposite the site, two residential properties adjoining to the rear, and the former Post Office that, it must be said, more addresses the Old Hume Highway than it does Oxley Street.

Subdivision is proposed

21. Subdivision is permitted with consent, subject to the provisions of cl 2.6 of the WLEP.

22. The site is subject to a Minimum Lot Size, according to cl 4.1 of the WLEP, of 2,000m².

23. However, cl 4.2E of the WLEP operates to permit dual occupancy development in R2 zones, with the objective, at subcl (1), being to ensure development for the purposes of dual occupancies is compatible with the character of existing development in the surrounding area.

24. To this end, subcl (3) provides that:

Development consent must not be granted to the erection of a dual occupancy unless the area of the lot on which the dual occupancy will be erected is at least 1,000m².

25. Likewise, subdivision of land is permitted for dual occupancy development in R2 zones, by operation of cl 4.2F of the WLEP, where consistent with the following objectives:

(a)  to ensure development for the purposes of dual occupancies is compatible with the character of existing development in the surrounding area,

(b)  to provide opportunities for housing on smaller lots in suitable locations on land in Zone R2 Low Density Residential and Zone R3 Medium Density Residential,

(c)  to protect the heritage significance of the historic village of Berrima.

26. The relevant controls at cl 4.2F are:

…

(3)  Land on which a dual occupancy is, or will be, erected may be subdivided if the consent authority is satisfied—

(a)  for land that is a corner lot—the lot has an area of at least 1,000m², or

(b)  otherwise—the area of each lot resulting from the subdivision will be—

(i)  at least 50% of the minimum lot size shown for the land on the Lot Size Map, and

(ii)  at least 600m².

(4)  Development consent must not be granted to the subdivision of land under subclause (3) unless the consent authority is satisfied—

(a)  there will be no more than 1 dwelling on each resulting lot, and

(b)  each resulting lot will be serviced by a water reticulation system and sewage reticulation system.

(5)  Subdivision permitted under this clause must not occur before an occupation certificate is issued for each dwelling forming part of the dual occupancy.

…

27. Accordingly, cll 4.2E and 4.2F operate to permit the dual occupancy development on a lot of this size, and permits the subdivision of the same into lots of a size such as those two lots proposed.

Heritage issues

28. The Respondent contends that the proposed development has an unacceptable impact on the heritage significance of the Conservation Area as it does not conserve the heritage significance or appropriately respond to the desired character of development within the Conservation Area, and is contrary to the Berrima Village Development Control Plan (BDCP).

29. The statement of significance for the Conservation Area is as follows:

“Berrima is significant as one of the few intact villages in the State which demonstrate the characteristics of 19th century town development from the period of convict settlement to the end of the Victorian era. Its original layout and town limits are largely intact and the surviving stock of residential, commercial and administrative buildings along with churches and major buildings associated with the Gaol, provide evidence of the role of Berrima as an early administrative centre and a town which served generations of travellers on the South Road. The town is also significant as a collection of largely intact early buildings which are predominantly Georgian in style, the value of which is reinforced by the high quality of the surrounding natural environment and plantings within the town. The heritage attributes of Berrima are recognised by visitors from all parts of Australia who enjoy the character and history of the town which has become a cultural tourism attraction.”

30. The BDCP also identifies the site as being located within what is known as Precinct 3 “Breen and Taylors Inn Precinct”; the character of which is described at Section 13.4.1 of the BDCP.

31. Ms Kate Higgins, heritage expert for the Respondent, considers the character of the Conservation Area to be informed by a subdivision pattern that reflects deep, or long, allotments and large gardens such that houses are typically lower than tree canopies.

32. While the subject site is not an original allotment, it was formed to step around development that is now on adjoining land at No 13 Oxley Street, which maintains the depth of the original allotment and is of sufficient size to support a large garden with large trees.

33. By contrast, the subdivision proposed would set an unfortunate precedent; a sentiment echoed in the BDCP at Section A9.1.2, according to Ms Higgins in the following excerpt:

“Berrima remains an iconic Village, within easy reach of Sydney. Berrima is not a ghost town. Its population is growing and it is subject to continuous development pressure from Sydney. The approach taken by this plan is to encourage the highest quality conservation and new infill work so as to best preserve and enhance the heritage character of Berrima…… the visual character of Berrima cannot afford to have development or planning mistakes. This plan therefore deliberately sets out to avoid a “death by a thousand cuts” for Berrima, of small mistakes in development that would have a disastrous cumulative effect over time.”

34. The existing subdivision pattern of Berrima is described at Section A8.1.1 of the BDCP in the following terms:

“A8.1.1 Existing Subdivision Pattern

The Village of Berrima is laid out as a Georgian village based on a grid pattern of streets with a central focal and open market place of mixed commercial and residential character. Allotments are regular and rectangular in shape leading out into the surrounding rural area. The minimum lot size for R2 Low Density residential land in Berrima is 2,000m² although there is a small pocket of R2 zoned land already subdivided and developed on Mortimer and Lennox Roads (east of Oxley Street) which has a 700m2 minimum lot size. The minimum lot size for R5 Large Lot Residential land is 4,000m².”

35. For development within a heritage context, Section 9.6.1 of the BDCP provides objectives that seek to conserve the subdivision layout in the following relevant terms:

“(a) To conserve the existing original road hierarchy and layout, pedestrian circulation patterns and subdivision layout.

…”

36. Relevant controls in respect of subdivision are:

“(a) Blocks shall retain the visual characteristics of the original development when viewed from the street or adjacent public domain e.g. a single detached building.

…

(i) Maintain existing land use in the Conservation Area shown on Figure A8.9.”

37. The figure to which Control (i) refers is re-produced below, with a legend that states those areas of highlight are locations where potential lies for residential redevelopment. The subject site is not identified.

38. Those allotments to the east of Schott’s Lane highlighted in the figure above, according to Ms Higgins, date from subdivision in the 1950s by Southern Portland Cement Ltd to provide for worker housing (Portland Subdivision) and are not characteristic of the subdivision pattern in Berrima.

39. Mr Ormsby’s evidence is that Oxley Street has experienced significant changes from its original layout, such as Schott’s Lane that was created in the location of a lot or lots formerly laid out, and by the Portland subdivision to the east.

40. Such is the change that only three of the 9 allotments remain in their original form. Put another way, Mr Ormsby notes two-thirds of the sites are not consistent with the original subdivision pattern. He also asserts the subdivision of the subject site will not be perceived from Oxley Street, and so the subdivision pattern will remain unperceived, if not unchanged.

41. Mr Ormsby also assesses the front setbacks to dwellings on allotments in Oxley Street to observe that on five allotments, the dwelling is closer to the street than that proposed, four are set further back, and one is vacant. By the same measure, five allotments present front gardens that are smaller than that proposed, and four are larger. As such, the proposed setback is unlikely to affect the streetscape.

42. The loss of mature trees on the subject site is a concern held by the Respondent.

43. The evidence of the arboricultural experts is that six trees are proposed for removal. While expressed differently elsewhere, Ms Sibone Nadin, arboricultural expert for the Applicant, concludes at par 23 of the expert report (Exhibit 4) that five trees of moderate retention value and one tree of high retention value, are proposed for removal.

44. Ms Higgins believes the removal of trees from the site will have an adverse impact on the streetscape and character of the Conservation Area, and compares the larger size of tree canopy supported by larger allotments with those supported on smaller allotment such as in the Portland Subdivision, once again, east of Schott’s Lane.

45. Mr Ormsby’s evidence is that most of the mature trees will remain and that, on the basis of a ‘Google search’, the proposed setting and size of the garden proposed is consistent with most of the properties in Berrima.

46. Whether the proposal adversely affects the setting of listed heritage items in the vicinity of the subject site is also the subject of disagreement between the heritage experts.

47. According to Ms Higgins, the loss of large trees from the site, in such close proximity to the Berrima Public School and Bramber Cottage (former Post Office) would adversely affect the setting of those heritage items, as would the loss of a long allotment with a deep front garden.

48. According to Mr Ormsby, as the heritage items cannot be seen from inside the subject site, the reverse is also the case – the subject site is not seen and so cannot affect the heritage items.

49. Development in the vicinity of heritage items is a matter dealt with at Section 9.10 of the BDCP. The objective of these provisions, at Section 9.10.1, relevant to this matter, is to retain heritage values of listed heritage items by ensuring that development in the vicinity is sympathetic with the heritage values of individual items and to the conservation area.

50. The relevant control at Section 9.10.2 of the BDCP provides:

“(g) In considering whether to grant consent to a development proposal in the vicinity of a heritage item or draft heritage item, Council must be satisfied that the proposal:

(i) remains compatible with the average height, bulk and scale of buildings located on adjoining or nearby land and be adequately set back to ensure that heritage items and other significant buildings in the streetscape are not dominated by new or infill development.

(ii) has the same proportion of buildings to open land as surrounding contributory development.”

The front setback

51. The front setback is addressed not only by the heritage experts, but also by the planning experts in their joint expert report (Exhibit 6), in which it agreed that the proposed front setback is in the order of 20m when measured from the front wall to Oxley Street, or around 18m when measured to the front verandah.

52. Mr Jeremy Swan, planning expert for the Respondent, cites the requirement at Part C2.8 of the BDCP, at Control (a), for front setbacks of new residential development to be consistent with those of dwellings immediately adjacent and in the immediate vicinity.

53. The controls at Section C2.8 are in the following terms:

“C2.8.2 Specific Controls

All applications for residential development shall comply with the following controls:

(a) Front setbacks of new residential development shall be consistent with those of the dwellings immediately adjacent to the site and to those in the immediate vicinity.

(b)Where properties immediately adjacent to the proposed development do not feature a consistent front setback, the following guidelines will apply:

(i) If the difference between existing front setbacks is 2 metres or greater, new dwellings shall adopt a setback within the range established by adjacent dwellings.

(ii) If the difference between existing front setbacks is greater than 2 metres, the new dwellings shall adopt an average of the existing setbacks.

(c) In general, subject to site assessment, Council requires the following front setbacks, exclusive of garage setbacks:

Lot size	Minimum front setback
Up to 4,000m2	8.0m
Over 4,000m2	15m

(d) Proposals that seek to vary these front setback controls may do so only if it can be demonstrated to the satisfaction of Council that the proposed variation:

will enhance the quality of the existing streetscape, and

will not compromise the amenity of any proposed or existing dwellings immediately adjacent to the proposed development.

(e) Where it is common practice in the streetscape to have some variation in the alignment of the front setback, new development should complement this pattern.

(f) Secondary setbacks on corner blocks will be the subject of a contextual approach and will generally be half the requirement of the primary setback.”

54. On the basis of the architectural plans, Mr Swan believes the front setback neither complies with the control at (a), nor at (b), and that it requires new development to “adopt a setback within the range established by adjacent dwellings” where those dwellings vary by a dimension greater than 2m.

55. Neither is the proposal, in Mr Swan’s view, consistent with the objectives at Section C2.8 that are to:

“(a) Ensure the front setback of new infill development is consistent with the existing streetscape,

(b) Provide areas for trees and vegetation to enhance the streetscape and provide privacy,

(c) Preserve existing vegetation connections.”

56. Relatedly, Mr Swan points to the impact of the proposal on significant trees, lack of replacement planting and of a landscape plan prepared by someone with appropriate qualifications. The combination of these adversely impacts the amenity currently enjoyed by adjoining properties and the character of the Conservation Area.

56. Mr Mark Pepping, planning expert for the Applicant, observes that front setbacks to properties in the vicinity vary from 8m, east of Schott’s Lane, to 47m at No 13 Oxley Street, and so relies on controls (c) and (d) at Part C2.8 such that an allotment of the size of the subject site is required to have a front setback of 8.0m.

57. Furthermore, Mr Pepping considers it common for older dwellings in Berrima to have shallow front setbacks, while later development, such as Nos 9 and 13 Oxley Street demonstrate deeper setbacks. As such, the deeper setbacks of adjoining properties are anomalous, and not characteristic.

58. The proposed setback does not impact established vegetation, which is retained so as to provide a ‘green screen’. While six trees are proposed for removal on the subject site, none are affected on adjoining properties that derive amenity from their own mature plantings.

59. This may be the case, however the terms of the General Terms of Approval (GTA) issued by the NSW Rural Fire Services on 30 May 2023 (RFS) (Exhibit 7, Tab 8) contain requirements that would appear to require the entire site to be managed as an inner protection area (IPA) in accordance with the requirements of Appendix 4 of Planning for Bushfire Protection 2019 that are then listed. A non-exhaustive list of those requirements is as follows:

“Tree canopy cover should be less than 15% at maturity;

Trees at maturity should not touch or overhang the building;

Lower limbs should be removed up to a height of 2m above the ground;

Tree canopies should be separated by 2 to 5m;

…”

61. The RFS GTA also includes, under the heading ‘Landscape Assessment’ the following (again, non-exhaustive):

“Planting does not provide a continuous canopy to the building (i.e. trees or shrubs are isolated or located in small clusters);

Landscape species are chosen to ensure tree canopy cover is less than 15% (IPA), and less than 30% (OPA) at maturity and trees do not touch or overhang buildings;

Use smooth bark species of tree species which generally do not carry a fire up to the bark into the crown;

Avoid planting of deciduous species that may increase fuel at surface/ground level (i.e. leaf litter);

…

Low flammability vegetation species are used.”

62. The Arboricultural experts agree that the landscape plan accompanying the DA, as amended, prepared by Studio G Design, lacks detail reasonably expected of it, such as plant selections and compliance with RFS GTA, or the recommendations set out in the Bushfire Hazard Assessment prepared in support of the DA, as amended.

63. The experts agree that a landscape plan must be prepared by a qualified person that addresses the objectives and controls of Part 7.2 of the BDCP, and the RFS GTA, and that a Tree Protection Plan is also required.

64. At the commencement of the second day, the Applicant advised that a landscape plan of the kind required is unable to be prepared given the numerous requirements of the RFS GTA and the Bushfire Hazard Assessment, and that foreshadowed a deferred commencement condition requiring its preparation.

65. Furthermore, Ms Nadin acknowledges the cut and fill plan does not provide levels of the proposed driveway, even where it comes into close proximity with Tree T3. However, such is the likely impact of the driveway on T3 that the driveway must be realigned from that proposed.

66. Part A9.12 of the BDCP deals with what is termed ‘Unity of Built Form’ in the following terms:

“A9.12.1 Objectives

(a) To conserve the unity of built form within the streetscape by ensuring that all buildings and their additions reflect and complement the scale, form, and materials of the original Georgian style cottages of the conservation area.

(b) To minimise the visual impact of future commercial development by the articulation of external walls and roofs into small-scale units.

A9.12.2 Controls

(a) Two-storey development is not permitted. Single storey development predominates in the vicinity, sometimes with an attic incorporated within the roof line. No building shall exceed one storey plus pitched roof with dormer windows (often referred to as one and a half storeys).

(b) The level (RL) of the ridgeline or highest roof point of any development shall not exceed the level of the ridgeline or highest roof point of the original building (or in the case of a new development the nearest heritage listed dwelling).

(c) The height from natural ground to the eaves of any new building shall not exceed 3.6m.

(d) Additions shall have a finished floor level not in excess of 600mm above natural ground level.

(e) The roof form, roof pitch, wall and roof materials, eaves overhang and height-to-width ratio of windows within any new construction visible from the street or adjacent public domain shall complement the architectural character of the original dwellings in the conservation area.

(f) The form of any roof projection or opening, where permitted, shall complement the original roof form and architectural character of the original dwelling or nearest original dwelling.

(g) Buildings may include attics provided they are contained within the roofline and do not have the appearance of a second storey form the exterior.

(h) Alterations and additions shall be sited to retain the visual characteristics of the original development when viewed from the street of adjacent public domain i.e. single detached building.

(i) Buildings may include below ground basements provided they are not apparent from the exterior.

(j) Buildings should follow natural ground levels and should step to follow natural topography, without above ground platforms or banks. As a concession for sloping sites, a maximum cut of one metre may be considered.”

67. The Respondent contends the proposal exceeds the height at Control (b), (c) and (d) when careful regard is had to the survey levels on Exhibit 1, and to the reduced levels provided on amended elevations at Exhibit H. I note here the height of the roof, as amended on the second day, is 580mm lower.

68. However, the parties agree the eaves height is 4.31m above the existing ground level, and so exceeds the control at C9.12.2 of the BDCP at control (c). The Respondent submits the relevance of this is that the building height, and the windows to the western elevation, are those windows said by the owner of No 13 Oxley Street to be the source of overlooking.

69. There are ten allotments on the southern side of Oxley Street between Old Hume Highway to the west, and Quarry Street to the east.

70. While I accept that Mr Ormsby’s observation that all ten allotments comprise a visual catchment, I prefer Ms Higgins’ evidence that the allotments east of Schott’s Lane are so different from those west of Schott’s Lane that comparison invites distinction.

71. On the basis of Ms Higgins’ evidence, and that of the onsite view, I accept that the dwellings on allotments east of Schott’s Lane are both highly visible from Oxley Street, unlike those west of Schott’s Lane, and are located closer together with reduced side setbacks; presumably as a function of being smaller allotments. They are also distinct in that the more shallow front setbacks of the properties clearly lack the mature trees evident in every allotment west of Schott’s Lane, other than No 17, being the vacant lot.

72. Furthermore, when the allotments to the east of Schott’s Lane are so described, and the former Post Office at the corner of the Old Hume Highway and Oxley Street is likewise discounted on the basis of it addressing the Old Hume Highway more than it does Oxley Street, it has to be said that the five remaining allotments present a virtually identical, and so highly consistent, pattern to Oxley Street.

73. Finally, Schott’s Lane itself provides a demarcation that further amplifies the change in character as it presents to Oxley Street.

74. As such, I don’t accept Mr Pepping’s argument that the shallow front setbacks to properties east of Schott’s Lane are a reasonable benchmark for the subject site. Instead, I accept that the setback of Nos 9 and 13 are the appropriate setbacks to be averaged, if that is the exercise intended by Section C2.8.2(b) of the BDCP. The wording of the provision at (b) invokes the front setback of “properties immediately adjacent”, being Nos 9 and 13.

75. Adopting such an approach would also then presumably follow Mr Pepping’s logic that shallow setbacks apply to older dwellings, while deeper setbacks are, and so presumably should be, reserved for newer dwellings such as that proposed.

76. That said, a front setback that seeks to average the setback of Nos 9 and 13 would appear difficult to achieve as this is where the subject site narrows to around 11 or 12m (the plan of subdivision at Dwg A1.2, Exhibit C, does not provide a dimension).

77. To do otherwise, and considering the loss of trees required to accommodate the proposed dwelling and, additionally, the loss of canopy to those trees that may be retained, and other landscape planting required by the RFS GTA, would likely open up the dwelling proposed towards the frontage of the site to a view from the heritage item opposite, contrary to Mr Ormsby’s observation at [48] that the circumstance today is one where neither can be seen from the other.

78. While the design of the proposed dwelling does adopt some aspects reminiscent of a Georgian cottage, I accept Ms Higgins’ evidence that a new dwelling located with the setback proposed would be the only dwelling visible from Oxley Street and Berrima Public School between the Old Hume Highway and Schott’s Lane.

79. This is a function not only of the dimension of the front setback, but also one of topography. Nos 13 and 15, to the west of the subject site, are not only setback a greater distance from Oxley Street, but are, by virtue of that setback, also located on lower lying land set below the level of Oxley Street. The levels on the survey at Exhibit A show the highest point of the dwelling at No 13 Oxley Street, the ridgeline, is the same or similar level as the natural ground level at the north east frontage of the subject site.

80. Again, by way of illustration, the proposed dwelling is located closer to the street and land that is elevated and with a ridgeline that is, according to the amended plans at Exhibit C, at RL 674.485, more than 3m above that of the ridgeline of No 13 Oxley Street.

81. As such, I am not convinced that the proposal is compatible with the average height, bulk and scale of buildings located on adjoining or nearby land, nor is it adequately set back to ensure that heritage items and other significant buildings in the streetscape are not dominated by new or infill development, that is the focus of Section 9.10.2, Control (g).

82. Absent a landscape plan that integrates the requirements of the RFS GTA, if indeed such an outcome is acceptable or desirable in the Conservation Area, the Court is simply unable to understand the impact of the dwelling in its proposed location.

83. To add to this uncertainty, the Applicant acknowledges that the driveway, its levels and impact on T3 are all subject to change, the outcome of which is also unknown.

84. The earthworks as presently proposed on Dwg A1.3 is strongly suggestive that the degree of excavation required to achieve the levels required of the driveway and carport will alter the existing ground level by more than 600mm. A notation indicates a 570mm cut to the western edge of the drive immediate east of the proposed dwelling. The survey shows the existing ground level continues to rise north-westward of this point, likely increasing the extent of cut required. As such, it would appear reasonable to assume cl 7.3 of the WLEP applies.

85. The Court is required to consider the effect of the proposed development on the existing and likely amenity of adjoining properties resulting from earthworks (subcl 7.3(3)(d)). As Ms Nadin’s evidence is that the levels of the driveway require it to be re-aligned to ensure the continued health of T3, it would appear the excavation currently proposed would have, if consent were granted to the development the subject of the development application, an adverse impact on T3 that provides amenity to the subject site, the adjoining property and the streetscape from where its canopy is visible.

86. While not the subject of detailed submissions, I also take the view that such development, if granted consent, could serve as a precedent for development on, for example, No 17 Oxley Street that is yet to be developed.

87. When the distinction between those allotments west of Schott’s Lane and those east of Schott’s Lane is properly understood, the setback of Nos 9 and 13 is not anomalous as suggested by Mr Ormsby at [58], but instead both are largely consistent with that at No 15. In fact, Nos 13 and 15 are virtually identical. The anomalous setback is that for which consent was granted in 2016 on the subject site.

88. The front setbacks to allotments west of Schott’s Lane are not greatly inconsistent. However, as the front setback to Nos 9 and 13 do vary, I agree with Mr Swan’s reading of the controls at Section C2.8 of the BDCP that the setback for development on the subject site should be, in essence, the average between the two. To adopt the guidance at control (c) as preferred by Mr Pepping would, in my view, introduce an inconsistency in the streetscape west of Schott’s Lane that would only invite others to adopt this departure as a new norm.

89. I also take the view that considering the likelihood of such an eventuality is relevant in the Conservation Area, and in a location where, as in the circumstances of this site, restrictions on title apply to require maintenance of aspects of the land that relate directly to the presentation of built form, such as the growing and maintaining of landscape planting to soften the appearance of built form when viewed from beyond the site, and the erection and maintenance of a fence, the form and style of which is stated with some care, and where any modification of the same requires consent of the Council.

90. For the reasons stated above, I consider the cumulative effects of tree removal, the prominence of the proposed dwelling, and uncertainty in respect of landscape outcome on the site to result in development that is other than sympathetic to the Conservation Area within the terms of cl 5.10(4) of the WLEP.

91. In closing submissions, the Applicant sought time to prepare without prejudice conditions of consent, including deferred commencement conditions in respect of those matters for which information had, by its own admission, been lacking.

92. I directed that such conditions be filed no later than 4pm the following day, cautioning that conditions of consent are not a means to seek additional time for preparation of plans that might have the effect of re-litigating matters for which time had already been allocated, or as a means of relieving the Court of its obligation to take into consideration all matters of relevant to the development the subject of the development application.

93. I have considered whether the Applicant should be granted time to produce a revised landscape plan. However, given the uncertainty involved in the timing and content of this, and the likely requirement for further liaison with the RFS as to the GTA, I conclude it is not in the interest of just, quick or cheap delivery of justice for such uncertainty to be accommodated where the matters have been the subject of contentions, and of expert conferral and evidence.

Orders

94. The Court orders that:

1. The appeal is dismissed.

2. Development Application No 23/0891 seeking consent for tree removal, demolition of an existing retaining wall and construction of a single storey dwelling house containing 3 bedrooms and an attached carport, resulting in a detached dual occupancy on the site, on the land at 11 Oxley Street, Berrima, is refused.

3. All exhibits are returned.

T Horton

Commissioner of the Court

**********

Decision last updated: 09 May 2024