Stanton Dahl Architects v Penrith City Council - [2009] NSWLEC 1204

Land and Environment Court

of New South Wales

CITATION: Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204

PARTIES:
APPLICANT
Stanton Dahl Architects
RESPONDENT
Penrith City Council

FILE NUMBER(S): 10537 of 2008

CORAM: Tuor C - Sullivan AC

KEY ISSUES:
DEVELOPMENT APPLICATION :- heritage incentives clause
whether item of environmental heritage and development permissible
affect on the amenity of the area from on site and traffic noise and impact on rural character
impact on heritage significance and whether conservation of item unlikely
whether offsets adequate for impact on Cumberland Plain Woodland and Cumberland Plain Land Snail
whether traffic works required

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Heritage Act 1977
Threatened Species Conservation Act 1995
Sydney Regional Environmental Plan No 13 - Mulgoa Valley
Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River
Draft Penrith Local Environmental Plan 2008

CASES CITED: Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC106
Currey v Hargraves & (2) Ors [2007] NSWLEC 471
Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662
Mohamed El Dana v Bankstown City Council [2008] NSWLEC 1484
Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173

DATES OF HEARING: 15 - 19 December 2008, 11 - 12 March 2009, further submission on conditions 17 April 2009

DATE OF JUDGMENT:
22 June 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr I Hemmings, barrister
instructed by Ms M Peatman
of Hunt and Hunt

RESPONDENT
Mr J Robson, SC
instructed by Mr P Vergotis
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Sullivan A/C

22 June 2009

10537 of 2008 Stanton Dahl Architects -v- Penrith City Council
JUDGEMENT

1 This is an appeal against the refusal by Penrith City Council (the council) of a development application (07/1627) under the Environmental Planning and Assessment Act 1979 (the EPA Act) for the demolition of the existing rectory, parish hall and toilets, master plan for a primary school, construction of new school buildings and associated road works and facilities at 43-47 and 59-119 St Thomas Road, Mulgoa (the site).

2 The key issues in dispute between the parties are the permissibility of the proposal and whether it will adversely impact on the heritage significance of St Thomas Church, the amenity of the area and the Cumberland Plain Woodland (CPW) and the Cumberland Plain Land Snail (the snail).

The site and its context

3 The site comprises two allotments being lot 1 DP996994 (2.02ha) and lot 1 DP1035490 (12.56ha) which have a combined area of 14.58 ha. The site is located to the north of Mulgoa village. It adjoins Mulgoa Road to the west, St Thomas Road to the east and vacant land to the north (part of Fernhill, Part lot 10 DP615085) and a rural residential lot to the south (121 St Thomas Road).

4 Lot 1 DP996994 contains St Thomas Church and its cemetery (the Church land). There is a disturbed Aboriginal occupation site in the immediate environs of the church and cemetery. Lot 1 DP1035490 comprises the original Glebe land attached to the church (the Glebe land). The northern part of the Glebe land contains some graves, the church gates, the church hall, rectory and toilet block. The southern part of the Glebe land is largely vacant with areas of CPW around the perimeter, a central cleared area, a dam and the archeological remains of the former church rectory. The Glebe land was previously used for agriculture, but has not been used in this way recently.

5 St Thomas Church is located on an elevated part of the site. A ridge runs in a north-south direction across the site.

6 The church has been in use as an Anglican place of worship since 1838. Until recently it served as the main parish church, but it is no longer the centre of parish activity, though it continues to be used for weddings, funerals and services. A rectory, to replace the burnt out rectory associated with St Thomas, has been built at Silverdale. The Church Hall is in a poor state of repair. The site has recently been sold to the Anglican Schools Corporation which has a deed of agreement with the parish for the maintenance of the church, and which allows its continued use by the parish.

7 The locality is predominantly rural residential on large allotments. A preschool is located opposite the site across St Thomas Road (south).

Sydney Regional Environmental Plan No 13 - Mulgoa Valley

8 The site is within Zone No 1 Rural Conservation under Sydney Regional Environmental Plan No 13-Mulgoa Valley (SREP 13). Educational establishments are prohibited within this zone. The parties held different opinions on whether the proposal may gain permissibility through the application of cl 20 of REP 13.

9 Clause 20 of SREP 13 provides:

Conservation incentives for items of environmental heritage

(1) In this clause:

(2) The consent authority shall not grant consent to an application to carry out development referred to in subclause (3) unless it has considered a statement of heritage impact and a statement of economic viability.

(3) The consent authority may grant consent to the use, for any purpose, of a building that is an item of environmental heritage, or of the land on which the building is erected, even though the use would otherwise be prohibited by this plan, if it is satisfied that:

(a) the proposed use would have little or no adverse effect on the amenity of the area, and

(b) the proposed use would not adversely affect the heritage significance of the item of environmental heritage, and

(c) the conservation of the building is unlikely unless the consent authority grants consent as referred to in this clause.

10 SREP 13 defines item of environmental heritage as:

Item of environmental heritage

means those buildings, works, relics or places of historic, scientific, cultural, social, architectural, archaeological, natural or aesthetic significance for the Sydney Region identified on Sheet 2 of the Map.

11 St Thomas Church is identified on Sheet 2 of the map (the Heritage map). The key to the Heritage map identifies a box with a hatched line as indicating Items of Environmental Heritage. Items numbered 1-15 are listed under this key. Item 2 refers to St Thomas Church. The hatched line is shown on the Heritage map around the land covered by both lot 1 DP996994 and lot 1 DP1035490. No lot boundaries are shown. The parties disagree as to whether the heritage listing covers only the Church land or both it and the Glebe land and therefore whether cl 20(3) of SREP 13 applies to the Glebe land.

12 Clause 9(1) of SREP 13 requires development consent for items of environmental heritage. Clause 9(2) provides:

(2) In deciding whether to grant consent for the purposes of subclause (1), the consent authority shall consider:

(a) the significance of the item to the environmental heritage of the Sydney Region,

(b) the impact of the proposed development on the historic, scientific, cultural, social, archaeological, architectural, natural of aesthetic significance of the item of environmental heritage,

(c) in the case of an application to erect or alter a building, its compatibility with either buildings on the site of the item of environmental heritage in terms of roof form, style, size, proportion and position of opening for doors and windows and the colour, texture, style, size and finish of the materials,

(d) the retention of stylistic, horticultural, vegetation, landscape or archaeological features of the setting, and

(e) any elements of danger to the users or occupiers of the item of environmental heritage or to the public.

13 Pursuant to clause 11 of SREP 13, clause 9 does not apply to items of environmental heritage, which are the subject of a Permanent Conservation Order and where consent is required under the Heritage Act 1977 (the Heritage Act).

14 Clause 12 of SREP 13 provides development consent criteria for development. It states:

The consent authority shall not grant consent to an application to carry out development for any purpose:

(a) if any proposed building will be located on ridgetops or if it will intrude into the skyline when viewed from road or other public places,

(b) unless it is satisfied that the proposed development will not adversely affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of any item of environmental heritage in the valley,

(c) if services, in particular arrangements regarding the provision of water and disposal of effluent satisfactory to the requirements of the Water Board, are not adequate or will not be provided in a reasonable time,

(d) unless it is satisfied that the proposed form and sitting of buildings, colours, landscaping, and building materials are appropriate for the rural character of the valley and are consistent with the Design and Management Guidelines or their intent,

(e) if any proposed development will detract from the vistas of an item of environmental heritage as documented in the Design and Management Guidelines,

(f) unless it is satisfied that the development will not be exposed to unacceptable risk from bushfires,

(g) if extensive areas of vegetation will be cleared,

(h) unless it is satisfied that the agricultural viability of holdings and potential of the land will not be adversely affected,

(i) unless it is satisfied that Aboriginal and European archaeological material on the land will not be adversely affected,

(j) unless it is satisfied that the view from Mulgoa Road will not be adversely affected,

(k) unless it is satisfied that the rural setting of Mulgoa village will not be adversely affected,

(l) unless it is satisfied that development and its access will not be exposed to unacceptable risk from flooding,

(m) unless it is satisfied that the development will not adversely affect the hydrology of Mulgoa Creek, and

(n) unless it has considered any Development Control Code prepared pursuant to clause 17,

(o) unless it is satisfied that the proposed development is appropriate for the size and shape of the land to which the development relates,

(p) unless it is satisfied that the proposed bulk, scale, shape, size, height, density, design and external appearance of that development is appropriate for the rural character of the valley,

(q) unless it is satisfied that the proposed development will not adversely affect the amenity of the area, and

(r) unless it is satisfied that adequate provision has been made for the landscaping of the land to which that development relates and it has considered whether any trees or other vegetation on the land should be preserved.

15 Clause 15 of SREP 13 provides:

The consent authority shall not grant consent to an application to carry out development if, in the opinion of the consent authority:

(a) the safety and efficiency of Mulgoa Road will be adversely affected by the design and sitting of the proposed access and by the nature, volume or frequency of vehicles using Mulgoa Road to gain access to the proposed development, and

(b) any upgrading or strengthening of Mulgoa Road required to maintain the safety and efficiency of Mulgoa Road detracts from the present rural character and function of Mulgoa Road.

16 Clause 2 of SREP 13 includes the following aims and objectives:

(1) The general aim of this plan is to ensure that the development of the Mulgoa Valley is guided to maximise the benefits and conservation of its resources in its metropolitan context, especially its rural landscape and heritage resources.

(2) The specific aims of this plan are:

(a) to identify those buildings, works, relics and places of historic, architectural, cultural, scientific, archaeological, aesthetic and natural significance which comprise the environmental heritage of the Mulgoa Valley,

(b) to ensure conservation of items of environmental heritage,

(c) to ensure protection of natural ecological elements within the valley, especially areas of ecological significance,

(d) …..

(e) to conserve the rural landscape of the valley,

(f) …..

(g) to allow orderly and economic development which is compatible with the rural and natural landscape and heritage of the valley,

……

17 Clause 8(3) of SREP 13 provides that:

(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the objectives of the plan and of the zone within which the development is proposed to be carried out.

18 The objectives for the Zone No 1 Rural Conservation are:

(a) to conserve the rural, heritage and natural landscape of the valley,

(b) to provide for the development of agricultural, residential, tourist and recreational land uses which are compatible with the rural and natural landscape and heritage of the valley,

(c) to protect the visual amenity of the valley,

(d) to avoid fragmentation and alienation of prime agricultural land,

(e) to maintain the low density of rural settlement, and

(f) to allow for the development and maintenance of the Warragamba-Prospect water supply facilities.

19 Mr Hemmings, for the applicant, submits that cl 20 would permit development which is not permissible within the zone and that therefore the objectives of the Rural Conservation zone are of little relevance and that this is reinforced by the words except as otherwise provided by this plan in cl 8(3). He submits that the objectives of the plan and the zone are not ignored but that there is no requirement to find a positive finding of consistency with the objectives. Mr Robson appeared to accept this submission referring to it being similar to the way objectives are considered under existing use rights.

20 We accept Mr Hemmings submission. Clause 8(3) requires consistency with the objectives of the plan and the zone except as otherwise provided by this plan. Clause 20 provides, subject to the satisfaction of certain criteria, the use of land that would otherwise not be permissible within the zone. A finding of consistency with the zone objectives is therefore not required, however, we consider that they, and the objectives of the plan, are relevant to the merit considerations of the application, particularly in assessing the impact on amenity of a development within the Rural Conservation zone.

Sydney Regional Environmental Plan No. 13 - Mulgoa Valley - Design and Management Guidelines.

21 Clause 12 of SREP 13 requires a consideration of the Design and Management Guidelines (the Guidelines) in relation to the form and sitting of buildings, colours, landscaping, and building materials and vistas of an item of environmental heritage.

Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River

22 Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River (SREP 20) applies to the site. Clause 4 requires that the consent authority must consider the general planning considerations (cl 5), and the specific planning policies and recommended strategies (cl 6). These include the cumulative environmental impact of development proposals on the catchment.

Draft Penrith Local Environmental Plan 2008

23 Draft Penrith Local Environmental Plan 2008 (Draft LEP) has been exhibited and is a relevant matter to be considered under s79C. Once gazetted, the draft LEP would repeal SREP 13. The Draft LEP proposes different planning controls for the site. Most notably, the Draft LEP includes only the St Thomas Anglican Church and Cemetery at Lot 1 DP 996994 as a heritage item on Schedule 5 and on the Heritage Map – sheet HER-007. Church Lane and former Mulgoa Road (now St Thomas Road) is proposed to be included as a heritage item. Clause 5.10(10) provides different wording for the criteria for conservation incentives.

24 The Draft Plan is not imminent and certain and although we have considered it, we have given it little weight. There is a degree of inconsistency between some aspects of the plan and the evidence before the Court. In particular, under the Draft Plan the site is zoned Environmental Conservation E2 which seeks to protect areas of high ecological, scientific, cultural or aesthetic value. It permits a very limited range of uses, not including dwelling houses or educational establishments. Fernhill and the Cottage, are associated items of environmental heritage, which together with St Thomas Church and the Glebe land formed part of the original Cox estate. These two items are zoned Environmental Conservation E3 which permits a wider range of uses including dwelling houses and information and education facilities. The lot that forms part of Fernhill adjoining the site is zoned Environmental Conservation E2.

25 The site is not identified as Environmentally Sensitive Land on Sheet ESL-007, although the adjoining land to the west is identified and this is proposed to be zoned Environmental Conservation E3. Council contends that both areas form an important part of CPW.

26 Fernhill, the Cottage and St Thomas are identified on the Scenic and Landscape Values Map – sheet SLV-007 as being land with both scenic and landscape value and as a vista of heritage items. The Glebe land is not included in either category, although council contends that development on the Glebe land would impact on its scenic and landscape quality and the vista of St Thomas Church. We note that the Glebe land is zoned Environmental Conservation E2 whereas the majority of the land around the site, which is identified on the Scenic and Landscape values Map is zoned Environmental Conservation E3.

27 It would appear that the zoning of the Glebe land as Environmental Conservation E2 is inconsistent with the fact that it is not identified as a heritage item, as environmentally sensitive land, as having scenic and landscape value or as a vista of a heritage item. This is particularly the case given that land that is identified with these constraints is within the less restrictive Environmental Conservation E3 zone.

Heritage Act 1977

28 The Church land (Lot 1 DP9966994) was the subject of a Permanent Conservation Order (PCO) 426 under the Heritage Act. Under Schedule 1 - Savings and Transitional Provisions of the Heritage Act, a PCO became a listing on the State Heritage Register (SHR). The reference to a PCO in cl 11 of SREP is taken to be a reference to an item on the SHR.

29 Fernhill and the Cottage were also the subject of PCOs and are now listed on the SHR. The effect of listing on the SHR is that approval under the Heritage Act is required for certain work. The application is integrated development and has been referred to the NSW Heritage Council. The comments of 6 March 2009 in relation to the amended plans included the following:

The Heritage Council considers that modifications to reduce building bulk, scale and the amount of cut and fill, modulations of roof form and wall materials, deletion of the northern carpark area and connecting road through to St Thomas Church are improvements which reduce adverse impacts on the site’s natural and cultural heritage values. The amended proposal has less adverse impacts than the previous proposal.

The Heritage Council considers that some issues previously raised remain relevant to the modified proposal. These include a requirement for proper archaeological testing and monitoring to be undertaken of any demolition of the existing Church Hall and toilet block and installing appropriate protective measures for any construction near the former rectory.

30 The Heritage Council also commented upon additional landscaping to screen the school, security fencing, lighting and signage. These comments have been incorporated into the proposed conditions. Although the draft Heritage Agreement was not available, the Heritage Council indicated in principle support.

31 Part 3B of the Heritage Act enables the Minister to enter into a Heritage Agreement with the owner of an item listed on the SHR. Under cl 40, the Heritage Agreement can provide for matters including:

(a) the conservation of the item,

(b) the financial, technical or other professional advice or assistance required for the conservation of the item,

(c) ……

(d) the restriction on the use of the item or the land on which it is situated,

(e) requirements for the carrying out of specified works or works of a specified kind,

(f) the standards in accordance with which the works are to be carried out,

(g) the restriction on the kind of works that may be carried out,

…..

32 A draft Heritage Agreement has been prepared as part of the application.

33 Division 5 of the Heritage Act includes provisions in relation to minimum standards of maintenance and repair for items listed on the SHR.

Threatened Species Conservation Act 1995

34 Cumberland Plain Woodland is listed an Endangered Ecological Community on Part 3 of Schedule 1 of the Threatened Species Conservation Act 1995 (TSC Act). Meridolum corneovirens, the Cumberland Plain Land Snail is listed as an endangered species on Part 1 of Schedule 1 of the TSC Act.

35 The hearing was conducted on 15-19 December 2008. At the conclusion of the hearing we provided preliminary findings to the parties. We indicated amendments to the plans, which were incorporated into Directions that were issued to the parties on 24 December 2008. These Directions stated that the proposal should be amended as follows:

a) delete or move and reduce in size the multi purpose hall so that it does not visually impact on the church and its setting (perhaps to the area of the playing field).

b) the northern car park is to be reduced in size to accommodate the minimum number of spaces required for the church and to reduce the visual impact on the church and its setting and on the Cumberland Plain Woodland (CPW). If possible, provide access only via the current entrance and not through the school (the car park may be used for overflow parking for the school). The car park should be detailed to be informal with landscaping and minimum hard surfaces.

c) the playing field should be reduced in size and the netball fields moved further to the south to retain more CPW, provide a buffer and greater connectivity of the CPW on the eastern part of the site with the CPW to the west of the site.

d) the southern car park is to be reduced in size, if possible, to accommodate only the minimum number of spaces required for the school.

e) the hard surfaces such as the bus bay, roads and footpaths should be minimise

f) while taking into account the need to provide disabled access, the extent of cut and fill and the use of podiums should be minimised.

g) the size of the buildings should be reduced through measures such as hipped rooves and breaks in the length of wall

h) the inclusion of the demolition of the church hall, rectory and toilet block and the construction of the northern car park as part of Stage 1.

36 The Directions also required further information including background noise monitoring, a draft heritage agreement and a voluntary planning agreement for the retention of CPW and further joint report of the experts on the amended plans and outstanding contentions.

37 The hearing resumed on the 11 March 2009. The Court granted leave for the applicant to rely on amended plans and to reopen the hearing for further evidence on the amended plans.

The proposal

38 The amended proposal is for the staged development of the Mulgoa Anglican Primary School for a maximum of 360 pupils and parking for 90 cars. Stage 1 will be for approximately 90 students and 8 staff with parking for 30 cars. It is anticipated that the stages will be completed over a five year period depending upon demand. St Thomas Church is to be used as a school chapel and be also available for use by the parish for services and ceremonies such as weddings and funerals. Conservation works and ongoing maintenance of the Church are part of the proposal as well as conservation, rehabilitation and regeneration of CPW.

39 The application seeks approval for a masterplan for the site and approval for the construction of Stage 1.

40 Stage 1 includes:

· Demolition of the toilets, hall and rectory associated with the Church.

· Construction of a new church hall and modification of an existing parking area for church parking.

· Construction of an administration and kindergarten module.

· PE court which is to also be used for am and pm parking.

· Playing area

· Driveway, and bus set down and pick up areas and carpark

· Landscaping

41 The masterplan includes:

· Stage 2 classroom module

· Stage 4 classroom module and carpark

· Stage 5 hall with stage and canteen and PE court

· Stage 6 classroom module and carpark.

42 The masterplan also includes a playing field, assembly area and amphitheatre but the staging of these is not specified. A landscape masterplan provides details of landscaping and CPW works. The staging of this work, other than the landscaping associated with Stage 1, is not specified.

The evidence

43 The Court visited the site and heard evidence from a number of residents whose principle concerns were that the proposed school was not permissible in the zone. Further, the school would affect the rural character of the area and was in conflict with the aims of SREP 13, which sought to conserve this character. The scale of the development was considered to be excessive and impacts on flora and fauna and visual and noise pollution were also matters of concern. There were specific concerns about the increased traffic and the necessity for road upgrading which was considered to be not consistent with the rural character of the area.

44 Specific heritage concerns were also raised. In particular Dr James Broadbent, a local resident and the owner of The Cottage, drew attention to the aesthetic and historic importance of the landscape of the original Cox estate (including Fernhill, the Cottage and St Thomas). In his opinion, this landscape was part of a skillfully and consciously designed colonial landscape of the 1830s, and one that provides tangible evidence of the changing history of the area during the colonial period. Dr Broadbent felt that while the land on which the development was proposed was not central to this landscape, it was an integral part of it and that the development would compromise and erode its heritage values.

45 Mr Wilson and Mr Harvey, local residents, provided evidence on behalf of the Mulgoa Progress Association (the Association). Mr Wilson outlined the Association’s involvement in amendments to SREP 13 that increased the prohibited uses and inserted the heritage incentives clause (cl 20). He set out the framework for assessing the application under SREP 13. In his opinion, the proposal did not meet the requirements of SREP 13 as it was inconsistent with the objectives of the plan and the zone and was a use expressly prohibited within the zone. He also considered that the proposal was “urban” development, which did not meet the development consent criteria in cl 12 of SREP 13. Further, he questioned whether the whole site is a heritage item and if cl 20 applies. Even if it does apply it does not operate in isolation of the other clauses in SREP 13 and, in his opinion, the proposal did not meet the tests in cl 20(3). The proposal would insert large scale urban development into a rural area which would adversely impact on the amenity of the area, and the significance of the item, and was not necessary to conserve the item.

46 In response to the amended plans, the Court received three written submissions from residents and the Association who reiterated their previous concerns, particularly the permissibility of the proposal and its inconsistency with the planning controls for Mulgoa, the size and impact of the development on a rural area, particularly traffic and noise and with increased emphasis on fire management problems. A fourth resident, Mrs L Levitt, wrote in support of the proposal on the basis that it would allow continuing use of the Church and its maintenance and conservation.

47 The Court heard expert evidence for the council from:

· Mr Atkins, on acoustic issues

· Mr Wickham, senior planner of Sydney Water on hydrological issues

· Mr N Dickson, on planning issues

· Mr R Moore, on heritage issues

· Dr Wotherspoon, on ecological issues

48 The Court heard expert evidence for the applicant from:

· Mr Fattoreto, on acoustic issues

· Mr R Gruber, on hydrological issues

· Mr N Ingham, on planning issues

· Mr P Davies, on heritage issues

· Mr D Fanning, on ecological issues

49 At the resumption of the hearing, the Court heard evidence on the amended plans and associated matters for the Council and for the applicant from all the expert witnesses except from Mr Wickham and Mr R Gruber.

Permissibility

50 The council initially raised a contention with the adequacy of the statement of heritage impact and statement of economic viability and their consideration under cl 20(2) of SREP 13. Council did not press any issue in relation to the adequacy of these documents or permissibility of the proposal in relation to the satisfaction of cl 20(2). We find that, given the evidence of the experts, the statement of heritage impact and statement of economic viability are adequate.

51 Mr Robson SC, for the council, submits that the proposal does not gain permissibility under cl 20(3) of SREP 13 as the Glebe land is not an item of environmental heritage under SREP 13. In summary, he submits that an aim of SREP 13 is to identify and conserve the environmental heritage of Mulgoa. The definition of an item of environmental heritage includes buildings and places, identified on sheet 2 of the Heritage map. St Thomas Church is identified in the key to the Heritage map. The dashed line, which surrounds both the Church land and the Glebe land, in his submission, does not identify the whole of the place as an item. Mr Robson supports this argument by the reference in cl 11 of SREP 13 to the St Thomas Church PCO 426. The PCO was gazetted in January 1986 and SREP 13, including cl 11, was gazetted in December 1987. In his submission, the listing in SREP 13 would reflect the PCO listing.

52 Mr Robson further submits that the proposal does not gain permissibility under cl 20(3) of SREP 13 as it proposes the erection of a building which is not permitted by the cl 20(3).

53 The “chapeau” to cl 20(3) provides that:

The consent authority may grant consent to the use, for any purpose, of a building that is an item of environmental heritage, or of the land on which the building is erected, even though the use would otherwise be prohibited by this plan, if it is satisfied that….

54 Mr Robson refers to the definition of “development” in s4 of the Act, which includes “the use of land”, “the subdivision of land”, “the erection of a building” and “the carrying out of a work”. He submits that “the use of land” constitutes one of the elements, which comprise the definition of development. It may not be substituted for other elements of the definition. Clause 20(3) refers to use, for any purpose, of a building…. or the land. This, in Mr Robson’s submission, does not permit “the erection of a building” or any other components of the definition of development. If this were the intention the clause would have used the term “development”. Clause 20(3) permits a heritage building or the land on which the building is erected to be used for a purpose, which would otherwise not be permissible under the zoning. It does not permit the “erection of a building” for a use that is not permissible in the zone.

55 Mr Hemmings, for the applicant, submits that the approach to be taken to the interpretation of cl 20 of SREP 13 is described as remedial, beneficial or facultative. He submits that such provisions should be interpreted as widely as the language will allow. In his submission, cl 20(3) facilitates the conservation of the item of environmental heritage by permitting the use of the land for an otherwise prohibited purpose. It is a beneficial and facultative provision and should be read widely.

56 In Mr Hemmings submission, the aims of SREP 13 through cl 20 are to conserve items of environmental heritage, which are identified in SREP 13. The identified item of environmental heritage is shown on the heritage map within the hatched line, this includes both the Church land and the Glebe land, which have different components and different levels of significance but are both part of the item of environmental heritage. The interpretation of “the chapeau” of clause 20(3) should not be limited to the use of the building or the land within the definition of development. Such an interpretation is too restrictive and does not facilitate the conservation of the item of environmental heritage, which may include buildings, graves and landscape elements.

57 Mr Hemmings urged the same beneficial and facultative approach in the interpretation of cl 20(3)(c) of SREP 13, which should not be read as requiring proof that the application is the only way the building will be conserved.

58 Mr Hemmings supported his submission with reference to decisions by Lloyd J in Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC106 and Currey v Hargraves & (2) Ors [2007] NSWLEC 471. In Hallidays Point His Honour considered the interpretation of State Environmental Planning Policy (Seniors Living) 2004 and stated at par 28:

I accept, of course, the remedial and beneficial nature of the Policy and the need to construe it as widely as the language will allow.

59 In Currey Lloyd J at para 20-21 adopted the following approach to the interpretation of a heritage incentives clause:

It is necessary, therefore, to construe the LEP with the flexible and practical approach to construction adopted by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929; [1963] 3 All ER 180, an English building regulation case:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the practical trade or industry … so they ought to be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing of an Act of Parliament.

These comments of Lord Reid have been cited and adopted in interpreting and applying subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; 36 LGRA 159 at 163-164; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 at 53; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 236.

60 Mr Hemmings submits that the Court should not be taking “an overly technical approach to the language of cl 20(3) and giving it the beneficial operation that it does have to facilitate the conservation of the item”.

Findings

61 Both Mr Robson and Mr Hemmings urged a common sense approach to the interpretation of cl 20(3). Neither party, in either the pre trial case management or during the hearing sought to have the interpretation of cl 20(3) determined as a preliminary point of law, despite it being a threshold issue in the case.

62 In adopting a common sense approach based on the facts before us we accept Mr Hemmings submissions.

63 Clause 20 of SREP 13 is a beneficial and facultative clause and should be construed as widely as the words will allow.

64 The Heritage map in SREP 13 identifies both the Church land and the Glebe land as the item of environmental heritage as both are within the hatched line. As we understand, this is no different to the identification of Cox’s Cottage, which includes lots 2, 3 and 4 DP241971 within the hatched line on the map of SREP 13, although the key only refers to Cox’s cottage and the listing on the SHR only includes lots 3 and 4 DP 241971. We do not accept that the term St Thomas Church is a reference only to the Church building but is merely a way of identifying the site in a similar manner to the way Fernhill and Cox’s Cottage are identified. The site, as does Fernhill and Cox’s Cottage, includes items of significance other than the primary building, these include the rural setting of the item.

65 SREP 13 defines item of environmental heritage as:

Item of environmental heritage

66 While the St Thomas Church building is clearly of heritage significance other elements on the site are also of significance, including the cemetery, the gates, the archaeological relics, the rural setting of the place, the historic association of the Glebe land to the Church land and to Fernhill and the Cottage. The heritage experts discussed the varying degrees of significance and concluded that the Glebe land was of heritage significance as some of the physical fabric was located on this part of the site; it had historical significance and provided a rural setting for the church. The experts did not support the removal of the Glebe land as heritage item under the draft LEP.

67 Clause 20(3) refers to …..the use, for any purpose, of a building that is an item of environmental heritage or of the land on which the building is erected….. We find that the land upon which the building that is the item of environmental heritage is erected includes both the Church land and the Glebe land. Both of these lots are identified on the Heritage map and both are of heritage significance for the Sydney Region.

68 As we understand Mr Robson’s submission, development for the purpose of an educational establishment is prohibited in Zone No 1 Rural Conservation. The building that is an item of environmental heritage (St Thomas Church) and the church land may be “used” for the purpose of an educational establishment, subject to meeting the criteria in cl 20(3). However, “the erection of a building” or “ the carrying out of work” for the purpose of an educational establishment would not be permitted as cl 20(3) refers to “use” and not to “development” as defined under s4 of the Act.

69 If Mr Robson’s submission is correct St Thomas Church may be used for the purpose of an educational establishment under cl 20(3) but the carrying out of any work for the purpose of an educational establishment would remain prohibited. Similarly, the land upon which St Thomas is erected may be used for the purpose of an educational establishment but the carrying out of any work or the erection of a building for the purpose of an educational establishment may not. We find this to be a very limited interpretation of the clause that would be inconsistent with its purpose to be a conservation incentive for items of environmental heritage and would not achieve the conservation aims of SREP 13.

70 We accept that cl 20(3) is not clear and that the wording of the incentives clause in the draft LEP refers to development rather than use. While dealing with a different heritage incentives clause the decision of Cowdroy J in Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662 offers some assistance. His Honour concluded that

18 Based upon such interpretation the word “use” contained in cl 50(1) of the LEP is to be interpreted liberally to include “development”. Whilst the council relied upon the definition of “development” as contained in the EP&A Act, the Court is satisfied that the word “use” is not to be construed in accordance with that definition. To do so would result in an interpretation which would be unduly narrow and which would provide negligible scope for the operation of cl 50(2) of the LEP. That is, if cl 50(1) of the LEP only applied to use in the sense submitted by the council, cl 50(2) which provides an additional concession for the development proposed in cl 50(1), would have limited operation, taking into account the nature of that development.

71 His Honour’s decision relied on the relationship between the two parts of cl 50 and is different to this case; however, his opinions about a “unduly narrow interpretation” and “negligible scope for operation” are relevant to the facts of this case. Mr Moore and Mr Davies, while holding different opinions about the merits of this proposal, accepted that the church and the land could potentially be used for a purpose other than what is permissible in the zone, such as a function centre. They both recognised that this may involve the erection of further buildings on the site to facilitate the conservation of the item. They also recognised that such a use would involve works being carried out to the existing building. None of the experts interpreted cl 20(3) as prohibiting the erection of a building or the carrying out of work for a purpose which may not be permissible within the zone. The principle concern was with the merits of the proposal and whether it satisfied the tests in cl 20(3).

72 The parties held different opinions on whether the proposal met the tests in cl 20(3). These tests are:

(a) the proposed use would have little or no adverse effect on the amenity of the area

73 The key amenity effects raised by council relate to the impact of noise from both the school use and traffic and the compatibility of the proposal with the rural character of the area.

Noise

74 The noise impacts of the proposal result from the operation of the school and traffic.

75 In the initial joint report (Ex 9), Mr Atkins accepted the adequacy of the noise monitoring location, background noise levels and the goals for assessing noise levels prepared by Mr Fattoretto. The experts agreed that the noise levels at all residential receivers from onsite activity would comply with the relevant noise goals. The only disagreement between the experts related to the noise level from traffic. This disagreement centered on whether St Thomas Road (south) is classified as a ‘local road’ or a ‘collector road’. If classified as a ‘collector road’, Mr Atkins agreed the proposal met the noise criteria in the Environmental Criteria for Road Traffic Noise (ECRTN).

76 Although he accepted the adequacy of the noise monitoring, during cross examination, Mr Atkins expressed the opinion that the background noise levels may be different away from the noise monitoring location and Mulgoa Road.

77 The Directions issued on 24 December 2008 required further monitoring to be undertaken away from Mulgoa Road. Mr Fattoretto undertook monitoring in a further two locations; near St Thomas Church and in the south east part of the site. Mr Fattoretto also undertook further modeling of different scenarios for use of the outdoor play areas of the site. The modeling compared the expected noise emissions from the fully developed school (360 children) with the existing background noise levels. Mr Fattoretto stated that:

This generally provided a conservative assessment of noise impacts because as the school develops over time (particularly in developing areas such as Mulgoa) background noise levels would be expected to increase. This assessment assumes that the background level remains at the current level.

78 The experts prepared a further joint report (Ex BB) in which Mr Atkins agreed that the ECRTN was the appropriate goal for assessing vehicle noise and that the goal for assessing on site noise was the Industrial Noise Policy (INP).

· Road noise

79 The ECRTN provides noise goals for generated traffic noise at residential facades. The daytime goal (7am – 10pm) for collector roads is 60LAeq(1hr) and for local roads the goal is 55LAeq(1hr). The ECRTN guidelines also permit an increase of up to 2dB(A) where it is not feasible or reasonable to reduce noise levels to the noise goals.

80 In the joint report, the experts agreed that if St Thomas Road (south) were classified as a collector road, the traffic noise levels would comply with the ECRTN noise goals at all receivers. Mr Atkins maintained his opinion that the road was classified as a local road although he acknowledged that it served a collector road type function. Therefore as a local road, it did not meet the goal in ECRTN. Further, he questioned the appropriateness of the ECRTN goals given that the school use was not permissible in the zone and the test in cl 20(3)(a) was that the proposed use would have little or no adverse effect on the amenity of the area. Instead, he examined the increase in noise levels above the existing background noise. This approach was different to the approach he had taken in the first joint report where he accepted the standard in the ECRTN.

81 Mr Fattoretto stated that, based on the evidence of Mr Varga, the road was functionally a collector road and that the proposal therefore complied with the goals in the ECRTN and would therefore not adversely impact on the surrounding receivers. He stated that the existing noise levels were irrelevant to the determination of functional category of a road under the ECRTN.

82 Mr Varga’s evidence is that any road not classified by the Roads and Traffic Authority (RTA) is a local road. Therefore, for the purpose of classification, St Thomas Road (south) is a local road. However, functionally Mr Varga considered St Thomas Road (south) to be a collector road as it links Mulgoa Road with the Northern Road, which are both sub-arterial roads. Further the ECRTN guidelines include the following functional categories of roads for the purpose of establishing noise goals:

Collector road, which connect the sub-arterial roads to the local road system in developed areas.

Local roads, which are the subdivisional roads within a particular area. These are used solely as local access roads.

83 St Thomas Road (south) is not used solely as a local access road and therefore Mr Varga and Mr Fattoretto considered the ECRTN goal for a collector road was the appropriate noise goal.

· On site noise

84 The INP specifies a noise goal in rural areas of background plus 5 dB(A) at the residential boundaries (or 30m from the dwelling where the boundary is more than 30m from the dwelling). Mr Fattoretto stated that the purpose of the control was to ensure no adverse noise impacts at the dwelling and within a 30m distance from the dwelling.

85 In the absence of any specific controls for schools, Mr Fattoretto adopted the goals in the INP but he stated that the INP related to industrial noise and that schools and similar facilities should not be assessed in the same way as a factory. He referred to the Association of Australian Acoustical Consultants (AAAC) Child Care Centre Noise Assessment technical guideline, which provides a background plus 10dB(A) assessment objective where external play is limited to 2 hours per day. In his opinion, this criterion was also applicable to outdoor play in schools. Nonetheless, the noise modeling of the proposal met the more stringent control in the INP of background plus 5dB(A) when measured 30m from a dwelling, which is where noise level is measured for rural properties under the criteria.

86 Mr Atkins acknowledged that he had adopted the AAAC approach in his assessment of other schools such as in the appeal Mohamed El Dana v Bankstown City Council [2008] NSWLEC 1484, but distinguished his different approach on the basis that the school in Mohamed El Dana was permissible within the zone whereas the proposal relies on the incentive clause and a positive finding of little or no adverse impact. Mr Fattoretto stated that noise criteria seek to ensure no adverse impact on residential properties.

87 Mr Atkins also raised concern that some of the modeling only just complied with the INP noise goal and that if more children were outside than modeled the noise levels would increase. Further he noted that in some cases the property boundary is greater than 30m from the dwelling (receivers 3 and 6), and the noise levels at these boundaries did not meet the INP noise goal.

88 The experts agreed that noise barriers and mounds would reduce noise by about 1-2dB(A). In Mr Fattoretto’s opinion these were not required. The school would not have the number of children modeled until Stage 4 of the development, at which stage a further assessment of background noise and levels could be undertaken to assess whether measures such as screens or limitations on numbers of children playing outside and periods of outdoor play were required.

Rural character

89 Mr Dickson considered that the proposal would impact on residential amenity by changing the rural character of the area. He raised concerns about the visibility of the original proposal from outside the site, particularly the entrance driveway along St Thomas Road. He accepted that the amended proposal would not generally be visible from outside the site, other than filtered views through the CPW along St Thomas Road and at the entrance driveway to the site.

90 Mr Dickson’s principle concern was the impact on rural amenity from within the site. In summary, he considered the school to be too large and to involve changes to the site. In particular he was concerned about the extent of excavation and the podium, the pitch and resultant size of the roofs and the scale of buildings.

91 Mr Ingham stated that the size of the school was not large being the standard size for a primary school. The extent of excavation and changes to the site were minimal and what was required to provide disabled access to all parts of the school and for it to function effectively. The size of the buildings and the pitch of the roofs were not dissimilar to residential buildings in the area. In Mr Ingham’s opinion the school would not be apparent from the surrounding area and it would have little or no impact on the amenity of the area.

92 Mr Ingham considered the proposal conformed to the requirements of the Guidelines. Mr Dickson raised issues of compliance with the Guidelines but did not demonstrate that the requirements were not satisfied.

Findings

93 Clause 20(3)(a) requires an assessment of whether the proposed use would have little or no adverse effect on the amenity of the area. Only if the consent authority is satisfied that the proposal would have little or no adverse effect on the amenity of the area can it grant consent to a use that would otherwise not be permissible.

94 The test does not require a finding that there will be no effect or change in amenity. A change or effect may result that is not necessarily adverse or there may be an adverse effect, which is assessed as being of little consequence. The test also requires that the adverse effect be on the area, which is not limited to the site itself or its immediate vicinity.

95 Mr Robson submits that in applying this test a cautious approach is required and that the test does not seek mere compliance with the criteria normally employed to assess matters such as noise. He draws a distinction between the assessment required under cl 20(3)(a) and that required under cl 12 of SREP 13.

96 The test in cl 20(3)(a) requires an assessment of whether an effect is adverse. The established criteria are the appropriate method to determine the extent of effect. We accept Mr Fattoretto’s evidence that the purpose of noise criteria is to limit adverse effects on residential amenity as a result of noise. This does not mean that there will be no effect but if there is compliance with the criteria it will not be adverse.

· On site noise

97 The proposal complies with the ACCC guidelines and the more stringent INP criteria. We note that the noise assessment goals for noise from the school are based on background noise. In a rural environment the background noise will generally be less and therefore the criteria is sensitive to the nature of the area.

98 The noise generated by the school at full capacity from children using the outdoor areas will not exceed background plus 5dB(A) within 30m of a dwelling. At those property boundaries which are greater than 30m from the dwelling the noise is under the ACCC criteria of background plus 10dB(A) for 2 hours. Due to the distance of the properties from the school and the intermittent use of the outdoor areas during the week and during the year, we accept Mr Fattoretto’s evidence that there will be no adverse effect on the use of the dwelling and its surrounding area. There will be some adverse effect closer to the property boundary of receivers 3 and 6 but this effect is not sufficient to constitute more than a little adverse impact on these properties or an adverse effect on the area.

99 Mr Atkins concerns in relation to greater numbers of children playing outside would not arise until Stage 4 of the development, if at all, and can be dealt with through management of children numbers and periods of play and screening.

100 We accept that there is no requirement to provide noise barriers. However, noise should be monitored before the construction certificate for Stage 4 is issued to determine whether any noise mitigation or management measures are required. We note that the horizon for development of the school is over a number of years and that the noise environment may change over this period. The noise assessment is a conservative approach based on the full capacity of the school and the existing noise environment in an area where it is not unreasonable to expect that background noise levels may increase.

· Road noise

101 We accept that Mulgoa Road (south) serves the function of a collector road as it joins two sub-arterial roads; Mulgoa Road and Northern Road. The proposal therefore complies with the noise goals in ECRTN. There will be an increase in noise levels along St Thomas Road (south) between Mulgoa Road and the school entrance (a distance of approximately 100m) as a result of the increase in traffic numbers during the am and pm peak. There will also be a decrease in the speed of cars using this section of the road due to the school zone which will mitigate to some extent the noise increase. Two houses (receivers 1 and 5) and the child care centre (receiver 2) are along this part of Mulgoa Road (south). We accept that even though the proposal complies with the ECRTN goal there will be an adverse impact on these properties but this effect is not sufficient to constitute more than a little adverse impact on these properties or an adverse effect on the area. Again we note that the increase is based on full operation of the school which will occur over a number of years and that the traffic numbers may also increase during this period independent of the school.

· Rural character

102 The proposal is located centrally in the Glebe lands and is set back significantly from the church, the adjoining house and the roads. It will not be viewed from Mulgoa Road and there will only be glimpses of the school from St Thomas Road (south). The proposal will remove the existing rectory, hall and toilet block and thereby improve the outlook from St Thomas Church. The proposal will not change the rural character of the immediate vicinity of the site or the area and therefore not adversely effect the amenity of the area.

103 The concerns raised by Mr Dickson in relation to the internal impacts of the proposal would also not constitute an adverse effect on the amenity of the area. The proposal meets the functional requirements of a school and we are satisfied is of appropriate form, sitting, colours, landscaping and materials for the rural character of the valley and is consistent with the Guidelines as required by cl 12(d) of SREP 13. The concerns raised by Mr Dickson would not warrant refusal of the application or amendments to the proposal.

104 We find that the proposal meets the test in cl 20(3)(a) as it would result in little or no adverse impact on the amenity of the area. The extent of adverse effect would not, in our opinion, be sufficient to mean that consent could not be granted to the use of the site for an educational establishment, even though the use would otherwise be prohibited by the plan.

105 Further, the proposal meets the development criteria in cl12 (d), (j), (k), (p) and (q) which were raised as contentions by council.

(b) the proposed use would not adversely affect the heritage significance of the item of environmental heritage

106 St Thomas church was built in 1838 on land, which was part of the Cox family holdings, given to the Anglican Church for the erection of a church, a rectory and a school. The Cox family was significant early settlers in the area and the church and graveyard comprise part of the historic Mulgoa group of properties, which also includes the colonial residence of Fernhill and the Cottage. The three properties are listed on the State Heritage Register. The church is an exceptionally fine and important colonial building and the church in its setting has important aesthetic and historic values. The graveyard contains significant gravesites associated with the history of the district. The significance of the Church and its setting have been recognized for a long time, as indicated by its listing on the Register of the National Estate and of the National Trust and by the placing of an early Permanent Conservation Order on it. The alignment of St Thomas's Road is also of heritage significance. The northern part of the road retains much of its original appearance and significance and the whole road is proposed for listing in the draft Plan.

107 Mr Moore and Mr Davies generally agreed on the heritage significance of St Thomas Church and the Glebe lands. Although Mr Davies gave more importance to the use of the item as a church and its social significance and Mr Moore considered the aesthetic and historic values of the church and its setting to be its prime significance. The experts therefore disagreed on the impact of the proposal on its significance.

108 The Court agrees with the heritage experts that the area of heritage significance extends over the areas encompassed by the previous Cox's estate, including The Cottage, Fernhill, St Thomas's Church and Cemetery, and the Glebe land. Heritage significance is not confined to the buildings but extends to the cultural landscape of the original estate.

109 The proposed land use must be considered in relation to this cultural landscape and in particular, the proposed development has the potential to affect the Church land and the Glebe land. The Glebe land, apart from its historic association with the Church contains part of the Cemetery and the archaeological remains of the original rectory. The formal gate leading up to the church appears to be on the boundary of the two lots.

110 Mr Moore and Mr Davies accept the Statement of Significance in the Conservation Plan written by Robert Irving and Christopher Pratten in September 1998 (the Conservation Plan) as a good summary of the elements of significance of the item. It states:

St Thomas' is one of a handful of surviving Anglican churches in New South Wales dating from the early decades of the 19th century.

The church is the first to be erected in the colony following the introduction of Governor Bourke's 1836' Church act' which made government subsidies available for the election of churches and parsonages.

St Thomas' Church and graveyard is a relatively intact example of the 19th-century concept of parish church and churchyard.

The Church and its surrounding graveyard, located on a relatively unspoilt site in the historic Mulgoa Valley, has great aesthetic appeal, and its setting has the ability to demonstrate the atmosphere associated with an important country church and burial ground of the mid-19th-century.

The church is an interesting idiosyncratically designed ecclesiastical example of Tudor architecture, and is believed to be the only known work of the architect James Chadley.

The church is the earliest known Australian example of hammer-beam roof construction, so strangely designed that it appears almost experimental.

The use of tall poles to support the bell inside the stone tower is a very rare example of this form of construction, and is possibly unique at a state or national level.

The church possesses a small organ which is a fine example of the work of the eminent English organ builders, J. W. Walker &Co.

The graveyard contains a wide range of iron grave surrounds, and several individual monuments which display a high degree of skill in their design and execution.

The historic disposition of the land set aside for church and parsonage in the early 1800s have been largely retained, and can readily be interpreted because of the present layout of nearby roads.

Due to the relative low scale of development within the Mulgoa Valley, the church and graveyard retain important historical and physical associations with several early colonial homesteads -- Fernhill, Glenmore, the Cottage and Winbourne.

The church has been used continuously for public worship according to the rites of the Church of England for almost 160 years, and is today the parish church of a lively Anglican congregation.

111 The elements of significance outlined in the Statement of Significance remain essentially the same except that the church is no longer the centre of a lively Anglican congregation, though it is still used for Anglican religious services.

112 In considering these varied elements of significance, Mr. Davies and Mr. Moore differed in the emphasis they placed on them. For Mr. Moore, the paramount significance of the item rested in its historic and aesthetic value, and particularly the extent to which it retains an air of 'rurality' and isolation. Mr. Moore quoted the Conservation Plan to support his view:

The historical physical setting of the building as a substantial parish church is highly distinctive, if not unique, particularly for its pleasing rurality and intactness. The place characterises a charming integration of building and site. These qualities though endearing and precious, may be regarded as fragile unless fully appreciated.

113 Mr. Davies fully acknowledged these values, but felt that the continuity of use as an Anglican Church over 160 years and the ability of this to continue into the future were paramount in heritage conservation terms:

The principal heritage significance of the place is as an operating Anglican Church and uses for the site that allow this are preferred.

114 Because of this difference of emphasis, Mr. Moore's view was that the proposal had the potential for a serious adverse impact on the place, by threatening the important aesthetic qualities and by affecting both the immediate setting and the larger setting of the heritage group. Mr. Davies, on the other hand, was of the view that the proposal would not adversely affect the significance of the Church in its setting, and that it had the potential to conserve and enhance the significance of the item by providing the opportunity for assurance of ongoing maintenance and use for Anglican worship.

115 From the evidence, it is possible to draw conclusions about the potential positive and negative effects of the proposal on the heritage value of the item. This is relevant in determining whether the proposal would adversely affect the significance of the place as an item of environmental heritage.

116 The proposal will have the potential to enhance or contribute to securing the conservation of the heritage values of the item in the following ways:

· funding for current necessary repairs to the church and graveyard, and of ongoing maintenance and necessary major repairs into the future,

· an approved regime of maintenance and care for the church and Cemetery,

· provision of security and care - taking facilities,

· removal of elements which according to the conservation plan presently significantly affect the historic and aesthetic values of the church and Cemetery, including the toilet block, the burnt out Rectory, and the present church hall, and the removal of cars from their haphazard parking positions in the immediate vicinity of the Church (on a disturbed Aboriginal site),

· enhancement of the social value of the item by the security of an ongoing long term traditional use of the church for Anglican worship, both by parishioners and by the school students,

· security of church furnishings and internal fit out, and provision for their upkeep, and

· maintenance of the historic Glebe land as one parcel, in the same ownership, with that ownership associated with the church.

117 Conversely, the proposal has the potential to adversely affect the heritage significance of the item in the following ways:

· the scale and proximity of the development may adversely affect the setting and appreciation of the heritage values of the church and Cemetery and their landscape.

· In particular, the visual and aural impact of the development may mean that the current experience of the Church and Cemetery in a rural and peaceful setting would be affected.

118 Mr. Moore raised a number of other issues, including the effect on the relationship between the Church and the Cottage and Fernhill, and the fact that the use of the church as a school chapel has the potential to both disturb the ambience and perhaps have an unacceptable impact on the fabric. Mr Moore also considered it possible that the northern part of St Thomas Road, which has acknowledged heritage value would be affected by traffic associated with the development.

119 It does not appear that the relationship of the Church, the Cottage and Fernhill would be materially affected, for two reasons. First, the view lines between these elements of the Cox estate are not impacted by the development, and in any case these view lines have been lessened by CPW regrowth, and various changes to the setting, especially with reference to Fernhill. The designed, park like landscape of the original Cox estate no longer exists.

120 Second, the use of the Church as a school chapel, if well managed, would not have an unacceptable impact on the fabric. The actual use by children of the church for worship, while perhaps disturbing the quiet and tranquil ambience on a temporary basis, has advantages with reference to the continuation of traditional use. It also appears that though the church and its bushland setting are now in a tranquil and undisturbed environment, this tranquility and peace would have been disturbed frequently in the past by lively parish activities and by the regular attendance of churchgoers from a thriving parish. The proposed development will make the noise of children, and some faint traffic noise audible at the Church on some occasions, but we do not find this to be inconsistent with its historic use and it will still retain its present tranquility for much of the time.

121 The heritage experts agree that:

The alignment of St Thomas Road is of historic heritage significance as an early alignment of Mulgoa Road but that in contrast to the northern part of the road which retains its rural character without major upgrade, the southern portion of the road has been reformed and upgraded reflecting its level of use as a link road from Mulgoa Road to Northern Road. It was further agreed that protection of the northern part of the road was warranted.

122 The experts did not raise any issues with the work proposed to St Thomas Road (south). St Thomas Road (north) will maintain its historic connections and its rural character in structure and formation. On the evidence it does not seem likely that increased traffic flow will affect the northern part of this road and there are no proposals for its upgrading or widening as a result of the application. The draft LEP acknowledges the significance of the alignment of St Thomas Road, which is not affected by the proposal. We note that the experts consider the northern portion of the road warrants protection due to its rural character.

123 The heritage significance of the Glebe land on which the development is proposed to be situated also needs consideration. In the draft LEP, the Glebe land is excluded from the proposed listing of St Thomas's Church as a heritage item, presumably indicating that the Council is not at this stage convinced of its significance. However, this land is part of the area agreed by the experts to have heritage significance. It has archaeological remains, incorporates part of the cemetery, has historic association with the Church and is part of its setting. The Court therefore accepts the significance of this land.

124 The proposal will change the use of the Glebe land and will place development where there is currently none. However, it will not impact on any fabric or archaeological remains and will not adversely impact on its significance or the setting of the Church. We note that a number of experts and objectors were not opposed to a school on the Glebe land, but considered the proposal to be too large. We accept that a smaller, more scattered proposal may have a lesser impact on the significance of the Glebe land but acknowledge that the school is not large when compared to other schools and the constraints of a school limit its design and arrangement on the site.

125 Importantly, the proposed use will continue the historic association between the Church and the Glebe estate, with a use that will support this connection. The important historic connections between elements of the whole area of significance (the Church and Glebe lands) can continue to be readily appreciated and understood. This would not be the case if other development options, such as subdivision, were pursued.

126 In summary, the original proposal had some clear advantages for heritage conservation, especially the opportunity for continued appropriate use and the security of a good level of future maintenance for the church. On the other hand the original proposal had some effect on the heritage values of the item, in particular, a degree of visual intrusion on the church and its setting caused by the scale and size of the assembly hall, the oval and the northern car park. These intrusions may have offset the enhancement in aesthetic value achieved by the removal of the rectory, the toilet block, and the present church hall, and the regularisation of parking.

127 Thus in the form initially presented the development had the potential to adversely affect heritage values, especially through visual impact and effect upon aesthetic value. For this reason the Court directed that a number of changes to the proposal be undertaken.

128 In considering the amended proposal, the heritage experts maintained their fundamental difference of opinion on the permissibility and desirability in heritage terms of the development on the Glebe lands. Mr Moore, while acknowledging significant improvements in the revised proposal, remained concerned at the impact of a school of this size upon the aesthetic values of the church and graveyard and their appreciation and the manner in which the proposal departs from the established community intent for the locality. Mr Davies concluded that the amendments improve a scheme which is already acceptable and supportable and which is within the scope and intended statutory planning scheme for the area.

129 In the event that the Court did not accept his primary position that development of a school of the size proposed should not occur on the Glebe land, Mr Moore provided comments on the amended plans. Both he and Mr Davies agreed that the proposed multipurpose hall had been usefully and helpfully reduced in size and scale and hence in visibility. The northern car park had been reduced to an acceptable scale and intent (being now proposed solely for church use), the amended grouping of the school buildings appears to have beneficially reduced the amount of hard surfaces and cut/fill, and a more uniform hip roofed character of the building is considered to be a beneficial design move, especially if complemented by a recessive colour palette which would usefully compact the buildings in a visual sense. The bringing forward of the demolition of the church hall, rectory and toilet block, and the building of a new church hall to Stage 1 of the development was also supported.

130 The heritage experts considered that the redesigned northern car park could be improved further by arranging it along, rather than across the contours and that the surface finish should be as low-key as possible using stabilised earth or gravel, and that there should be a more liberal interpolation of trees, with bays irregularly omitted to achieve this. These changes would reduce visibility of the car park. They also suggested that a subtle adjustment of the proposed church hall siting and the deletion of the proposed road connecting to the former Rectory driveway would assist the conservation of the setting of the church and its landscape,

131 Mr Moore was also of the opinion that the proposed ridge/vent skylight shown on the roof of the Stage 6 classroom module is anomalous and should be removed or replaced with skylights or roof windows that fit in with the overall roof form. Mr Davies was sympathetic to this approach but considered that the present configuration would have minimal visual impacts on heritage values.

132 The experts reviewed the draft Heritage Agreement and agreed that it is appropriate for the project. They reiterated their previous recommendation that a new conservation management plan for the church and cemetery be prepared, which would in particular direct the management of the church building and its immediate setting in the context of the proposed school use.

133 We endorse all the additional suggestions for improvement of the scheme brought forward by the heritage experts. We have considered the revised plans and the heritage experts’ advice about further alterations and improvements and reached the conclusion that, with these relatively minor changes, the proposal is now acceptable in heritage terms. Under the amended plans there is now only negligible visual impact on the church and its aesthetic values from the development. At the most, distant, filtered views of a part of the school would be the only visual impact, and this is much less than the present aesthetic impact of the rectory and toilet block. This negligible visible impact is more than outweighed by the advantages to heritage conservation of the proposal, outlined above.

134 We find that the school, given its location in the centre of the Glebe land, the extent of open space, its distance from the church, the conservation of fabric and archaeological remains and the maintenance of views has an acceptable impact on the heritage significance of the item, being the Church and the Glebe lands.

135 In considering these complex and potentially conflicting issues, the Court, as well as considering relevant planning instruments, has had particular regard to the relevant elements of the Burra Charter. In the Burra Charter emphasis is given to finding a conservation solution that respects all the heritage values of a place. In the case of St Thomas, the aesthetic and historic value of the Church and its setting, and its continued use as an Anglican church and a centre of church activity over a long period of time, giving it current social value, are equally important elements of its cultural significance.

136 We have also considered the draft Heritage Agreement, which establishes a fund for the ongoing maintenance and conservation of the item listed under the SHR. We note that the agreement is ultimately between the Minister and the owner, however, it should also include the requirement to comply with the Conservation Plan and an ongoing commitment to the continued use of St Thomas as a school chapel and for parish services. The use of St Thomas as a church is a fundamental element of its significance and a principle reason why we have found that the impact on the heritage significance to be acceptable.

137 The amended proposal ensures continued traditional use, maintenance and upkeep of the Church and its setting, without adversely affecting the other heritage values of the item of environmental heritage. On balance it enhances the heritage significance of the item and meets the test in cl 20(2)(b) of SREP 13. The proposal also meets the considerations in cl 9 and cl 12(b), (e) and (i) of SREP 13.

(c) the conservation of the building is unlikely unless the consent authority grants consent as referred to in this clause

138 The Court interprets the phrase conservation of the building in a wide sense, to mean conservation of all the elements of heritage significance which the Church and its setting possess. This is in accordance with the evidence of both heritage experts and with Burra Charter practice.

139 The present situation is that the parish cannot provide for the upkeep of the church, cemetery and its grounds. Mr Davies's evidence indicates that the church is no longer the official parish church, the centre of parish activity has moved elsewhere, and adequate funds are not available for its upkeep from parish resources, including the funding available from a bequest (the Davey Fund). There is no funding to rebuild the parish hall and the donations to the parish are not sufficient to support the stipend for the parish priest. Vandalism is already a problem. Conservation of the building is therefore unlikely if the site is to be used solely as a parish church. There is no evidence that funding by the Anglican Church Property Trust Diocese of Sydney, the previous owner of the site, will support the ongoing conservation of the building.

140 The church has been sold to the Anglican Schools Corporation, which has an agreement with the parish for upkeep of the Church and its continued use. In the event that the proposal for the school is not approved the Anglican Schools Corporation has indicated that it would not retain the site and its agreement with the parish would cease. Conservation of the building is therefore unlikely if the application is not approved unless there are likely alternate proposals.

141 The Court questioned whether the Heritage Act could be of use in ensuring the conservation of the heritage item. Under Division 5 of the Heritage Act, minimum standards of maintenance and repair may be imposed on the owners of an item listed on the SHR to prevent demolition or significant damage by neglect. These standards may relate to the protection of the building from weather and from fire, security to prevent vandalism, and essential maintenance and repair to prevent serious or irreparable damage or deterioration. However this clause does not guarantee effective long-term conservation and maintenance and would ensure only a minimum amount of low level maintenance and other measures which will over a relatively short time be likely to result in gradual deterioration of fabric and loss of traditional use.

142 Another option would be to find an alternative use for the church such as a function centre or dwelling, Mr. Moore considers this to be a regrettable but a more desirable outcome for the conservation of aesthetic significance than the effects of the proposed development. But this course of action is uncertain, and would in the opinion of the Court have an undoubted significant impact on other elements of significance especially historic significance, intactness of church interiors and furnishings and in particular social and spiritual values associated with continued use. Under this scenario, the church would no longer be a consecrated Anglican place of worship.

143 An earlier option canvassed for the conservation of the Church was to subdivide the Glebe land and to use the proceeds from the sale of these parcels to establish a fund for the upkeep of the church and graveyard in its bushland setting. This was previously proposed and as we understand, given initial favourable consideration by council. However the ownership of the Church and Glebe land has now changed, the minimum size of an allotment for a dwelling house under SREP 13 is 20ha and dwelling houses are not permissible on the site under the draft LEP. Council's current attitude to such a future proposal, should it arise, is unknown, and was not presented at the hearing. Such a solution in any case would be unlikely to guarantee the church's security, or continued use by the Anglican Church.

144 Additionally, the effect of such a subdivision on the heritage values of the Glebe land would be to lessen its historic significance. Residential subdivision of the Glebe land would mean a separation of the Church from this land, both in terms of use and landscape, with the Glebe land divided by fences, gardens and residential buildings of differing styles. The Church and the cemetery are historically strongly associated with the Glebe lands, and the archaeological remains of the rectory. These important historic connections between elements of the whole area of significance (the Church and Glebe lands) would not be so readily appreciated and understood under such a proposal. The effect on the significance of the Church and cemetery would be considerable, and would not ensure long term heritage management of the site.

145 On balance therefore it appears that the conservation of all the elements of significance which the building and its setting now possess would be unlikely unless the proposal proceeds. The proposal therefore meets the test in cl 20(3)(c) of SREP 13.

Impact on Cumberland Plain Woodland and Cumberland Plain Land Snail

146 Dr Wotherspoon raised concerns about the adequacy of the survey information to determine whether there is a significant effect on CPW and the snail for the purposes of s5A of the EPA Act. Although under cross examination in relation to the original proposal, he agreed that the level of detail in the survey material was adequate for him to be able to express an opinion.

147 Dr Wotherspoon and Mr Fanning agreed that the site contained CPW, which provides a habitat for a viable local population of the snail. However, they disagreed on what comprises CPW, the area of CPW affected by the development and an appropriate offset. They had similar disagreement in relation to the snail.

148 On the basis of his criteria of CPW, Dr Wotherspoon concluded that there was about 1.5ha of CPW that would be either removed or impacted upon by the development and the APZ such that it would require an offset. Further, he considered that the offsets proposed on site for conserving, rehabilitating or regenerating CPW were not adequate. In his opinion, the development did not remove the threat from these areas and it was therefore inappropriate that they be included as offsets. He stated that the development would impact on the areas to be retained, as it was a large development in the centre of the site, which would have edge effects. He acknowledged that the in principle Vegetation and Fauna Management Plan (VFMP) was adequate and would mitigate effects of the development and the occupation of the site. Nonetheless in his opinion the proposal would result in a net loss of the ecological value of the site and an offsite offset should be provided.

149 Dr Wotherspoon considered that the importance of offsetting the impact of the development was increased by the recent preliminary determination of the NSW Scientific Committee for CPW in the Sydney basin bioregion as a proposed critically endangered ecological community. Further, he considered the area of CPW on the site gained increased importance due to its connectivity with other areas of CPW to the west, across Mulgoa Road.

150 In Mr Fanning’s opinion, the area of CPW to be removed was about 0.41ha with a further area of about 0.32 ha of CPW to be managed as APZ. Mr Fanning considered that the CPW to be managed as APZ would retain some ecological value through the retention of trees and a degree of ground cover. In his opinion the conservation of 4.61ha of core CPW, the rehabilitation of 2.23ha of degraded CPW and the regeneration of 0.72 ha of cleared pastureland as CPW would more than offset the loss of CPW. He stated that the VFMP and the Voluntary Planning Agreement (VPA) provided sufficient safeguards to ensure that the onsite offset would be appropriately managed to retain its ecological value.

151 The experts agreed that CPW provides a habitat for the snail. Consequently, if this habitat is removed, an appropriate offset should be provided through the conservation of CPW.

152 Both experts agreed that it would not be appropriate to use the Biobanking process to establish an appropriate offset, although Dr Wotherspoon considered the Biobanking calculator to be a valuable tool that could provide guidance about the nature of any offset.

Findings

153 The evidence of Dr Wotherspoon and Mr Fanning did not greatly assist the Court as the basis of their assumptions differed widely, making it difficult to objectively interpret the differences in their opinions and conclusions.

154 Mr Robson’s primary submission is that there is inadequate information to determine the impact of the proposal on the CPW and the snail, although he conceded that the implications related to the extent of offset. Council did not contend that a Species Impact Statement (SIS) was required.

155 A number of studies and experts have examined the ecological constraints on the site. A Flora and Fauna Assessment Final Report October 2007 prepared by Bangalay Botanical Surveys (Bangalay Report) formed part of the Statement of Environmental Effects, which accompanied the Application. This document included an assessment under Part 5A of the EPA Act and concluded that:

it is unlikely that the proposed development on the subject site will create a “significant effect” upon any areas of Cumberland Plane Woodland” ….Consequently, a Species Impact Statement is not required..

156 The Bangalay Report reached the same conclusion in relation to the impact of the proposal on the snail.

157 The council assessment report and Dr Wotherspoon raised concerns about the adequacy of the information in the Bangalay Report, particularly the accuracy of the survey data in relation to the snail and the quadrant details for the percentage of native or other grasses in the mown areas. However, Dr Wotherspoon accepted that he had adequate information to assess the impact of the proposal.

158 The proposal has been amended to reduce the impact on CPW. An in principal VFMP has been agreed by Dr Wotherspoon and Mr Fanning and a draft VPA has been prepared which conserves about 4.6ha of core CPW and rehabilitates or regenerates a further 2.95 ha outside the APZ.

159 Mr Hemmings referred in some detail to the judgment of Preston CJ in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 where His Honour accepted an offset on site for the loss of some 0.4 ha of modified Litteral Rainforest, an endangered ecological community.

160 His Honour stated:

65 One of the principles of ecologically sustainable development is that the conservation of biological diversity and ecological integrity should be a fundamental consideration. Biological diversity refers to diversity at three levels: genetic, species and ecosystem diversity.

66 An endangered ecological community is an assemblage of species occupying a particular area, which is listed under the Threatened Species Conservation Act 1997 as endangered. The conservation of vegetation comprising endangered ecological communities needs to be a fundamental consideration in determining applications for development of land that might remove or modify such vegetation. However, this does not mean that decisions can never be made which would have the effect of removing or modifying vegetation comprising an endangered ecological community. Parliament has not legislated to prohibit the removal or modification of vegetation comprising endangered ecological communities. To the contrary, various authorisations can be obtained under legislation such as the Threatened Species Conservation Act 1997 and the Environmental Planning and Assessment Act 1979 to remove or modify vegetation comprising endangered ecological communities.

67 Further, the use of offsets (both other vegetated areas set aside for conservation and compensatory plantings) is an approach to address the loss of vegetation involving threatened species, populations or ecological communities through the development of vegetated land. It is an approach that saw Part 7A included in the Threatened Species Conservation Act 1995, and by reference in the Environmental Planning and Assessment Act 1979, to provide for the establishment of a biodiversity banking and offsets scheme. As I understand, the approach of offsets was not opposed by any of the experts, only that Dr Bali and Ms James did not see it as suitable in this case.

161 Mr Fanning or Dr Wotherspoon did not oppose the approach of using offsets to address the loss of vegetation involving threatened species and an ecological community. They disagreed only on the extent of loss, the amount of offset and whether this should be offsite.

162 Mr Fanning contends that the ratio of an offset for core CPW removed (0.41ha) to core CPW to be conserved (4.61ha), degraded CPW to be rehabilitated (2.23ha) and cleared pasture to be regenerated as CPW (0.72ha) would be 1:18.43.

163 Whereas if Dr Wotherspoon’s figures are accepted some 1.5ha of CPW will be impacted upon by the development either through removal or through the APZ. Dr Wotherspoon accepted that an offset could be provided for the loss of CPW but gave little guidance as to the ratios to estimate the extent of offset other than it should be offsite and that the Biobanking calculator could provide assistance in determining the nature of an offset. He gave no recognition to the area of CPW to be retained, regenerated or rehabilitated on site as, in his opinion, it was not removed from threat.

164 Even on Dr Wotherspoon’s evidence, the 1.5ha comprises CPW of different ecological value, which will be exposed to different impacts. In simplest terms, according to Dr Wotherspoon, there is approx 0.5ha of core CPW that will be removed by the proposal and a further 1ha managed within the APZ.

165 There is 4.61ha of core CPW that will be retained within a conservation area. While there may be some edge effects within this conservation area, we do not accept Dr Wotherspoon’s evidence that it cannot comprise part of an offset, if treated properly. Dr Wotherspoon did not identify this area as being CPW that would be impacted upon by the development such that it would require an offset; it therefore follows that its ecological value is being conserved and that it may be included as part of an offset for areas being removed or impacted upon.

166 Through the VPA the conservation area is to be retained in perpetuity, will be fenced to exclude access (except for management, monitoring and/or educational purposes) and will optimise habitat for the snail. The VFMP will minimize edge effects and assist in retaining the ecological value of the area. The ratio of the area of core CPW removed (0.5ha) to the area core CPW conserved (4.61ha) would be 1:9.2. We accept that this is reasonable given the similar ecological value of the area removed to that retained.

167 On Dr Wotherspoon’s evidence a further 1ha of CPW would be impacted upon by the development. The offset proposal includes areas outside the building area and APZ where CPW will be rehabilitated (2.23 ha) and regenerated (0.72ha). The VFMP identifies the rehabilitation area as forming part of an area to be conserved. Access to the area will be restricted and specific activities will include a weed removal and monitoring program and a hand slashing regime to mimic natural grazing and facilitate understorey species. The regeneration areas will involve natural regeneration and supplementary planting to regenerate or create CPW in existing areas of mown or slashed pasture. Both these areas will provide a suitable habitat for the snail.

168 The applicant has agreed that the regeneration area can be increased. However, figures on the increased area were not provided. Based on the original figure, the ratio of the area impacted upon (1ha) to that regenerated and rehabilitated would be 1:2.95. We accept that this is reasonable given the ecological value of the area impacted upon (being largely cleared CPW within the APZ) and the greater ecological value of the areas to be rehabilitated and regenerated outside the APZ. Again we do not accept Dr Wotherspoon’s evidence that none of this area can be considered as part of an offset due to edge effects. If properly managed in accordance with the VFMP this area will be largely removed from threat and its ecological value improved.

169 Dr Wotherspoon’s main concern was that an offset on site was inappropriate, as the proposal would not remove the area of retained CPW from threat. We do not accept this proposition and in the absence of any alternate proposal from Dr Wotherspoon we accept that the offset proposal is reasonable, even based on Dr Wotherspoon’s larger areas that may be impacted upon by the proposal.

170 In reaching this conclusion we are mindful that the proposal has been largely located in an area of the site, which both experts agree does not contain CPW. The proposal has been amended to reduce the impact on CPW. A VPA and VFMP are proposed to further mitigate impacts of the proposal and conserve areas of CPW on the site and include an appropriate maintenance and monitoring programme, which will also provide a habitat for the snail. While Mulgoa Road separates the site from adjacent CPW, its connectivity with CPW to the west will be maintained. For these reason we accept that there will not be a net loss of the ecological value of the site and the proposal is acceptable.

171 We note that the offset and VFMP do not include the area of CPW within the Church lands which will also be retained and managed. The management of CPW on the Church lands needs to be considered within the context of the significance of the site as a cultural landscape and should be addressed as part of the amendments to the conservation plan and a VFMP for the Church lands.

172 Mr Harvey on behalf of the Association in relation to the amended proposal questioned the use of the area of land between the APZ to the west of the school and Mulgoa Road which is not identified in Figure 1 as an area to be rehabilitated or regenerated as CPW. The area has been cleared and may not be suitable for regeneration; however, if it is suitable it should be identified as such. In any case, its future use and management should be stated in the VFMP and Figure 1.

173 The Association also questioned the proposed internal access road, which connects the school with the church as it divides the area of CPW. This is proposed to be used for emergency access only and is to be of the same construction as the church driveway. However, we are not satisfied that this connection, other than as a pedestrian connection is required. Further the connection of the school to the existing access road to St Thomas Road (north) for emergency access and service vehicles is also questioned given that this also divides the CPW and provides an opportunity for vehicles to access St Thomas Road (north). A condition should be incorporated which deletes these access roads, unless it can be justified that they are required for emergency access.

174 We note that the VPA and the VFMP have not been finalised. These documents are fundamental to any approval. It is therefore appropriate that the VPA be amended to require conservation in perpetuity and to incorporate the comments of Mr Fanning and Dr Wotherspoon in Exhibit Y A condition that the applicant enter into the VPA is also required. Further amendments to the VPA, VFMP and Figure 1 should be undertaken to ensure consistency.

175 Clause 12(c) of SREP 13 provides that the consent shall not be granted to a development

if services, in particular arrangements regarding the provision of water and disposal of effluent satisfactory to the requirements of the Water Board, are not adequate or will not be provided in a reasonable time,

176 Mr Gruber and Mr Wickham agreed that adequate water could be provided within a reasonable time. The provision of waste water services would require approval from the Minister for Planning to modify the boundaries of the Mulgoa sewer system. The experts outlined the process that would be required to obtain such an approval, including an assessment of the capacity of the entire Mulgoa system. Neither Mr Gruber nor Mr Wickham expressed concern about the capacity of the system being inadequate to accommodate the proposal or that it would not be feasible to connect to the sewer.

Findings

177 A compliance certificate under s 73 of the Sydney Water Act 1994 is required which cannot be obtained until conditional approval of the development application is obtained. The parties have agreed to a deferred commencement condition, which requires a s73 compliance certificate to be obtained within 12 months. Given that there is no evidence, which indicates that the s73 certificate will not be granted and in the event that if it were not granted the development would not commence, we are satisfied that cl 12(c) of SREP 13 is met.

178 The main traffic issue between the parties related to the requirements of the Roads and Traffic Authority (RTA) in its letter dated 22 September 2008 which states:

1. Left Turn Treatment

The traffic generated by the proposed development will result in a significant number of left turn vehicular movements from Mulgoa Road into the southern intersection with St Thomas Road in a 60km/hr speed zoned rural road environment and will increase the risk of rear end accident. The intersection is immediately adjacent to an 80km/hr speed zone and it is likely that a percentage of road users would be travelling faster than the posted speed limit past this intersection. It should be noted that at present there are 3 movements per hour in the AM peal hour undertaking this left turn movement and with the proposed development, will be increased to 55 movements.

In accordance with Ausroads “Guide to Traffic Engineering Paractice Part 5 – Intersections at Grade”, a left turn lane needs to be to be provided into the southern intersection of St Thomas Road from Mulgoa Road. In this regard, it should be noted that the volume of left turning traffic into St Thomas Road meets the warrant threshold (as a result of the proposed development) for a left turn deceleration lane.

…..

2. Right Turn Treatment

The proposed development will result in a significant increase in the number of right turn vehicular movements from Mulgoa Road into St Thomas Road and if no upgrade of the intersection is undertaken to address this issue, road safety will be compromised at this intersection. In this regard, it should be noted that the traffic generated by the proposed development will result in the volume of right turning traffic from Mulgoa Road into the southern intersection with St Thomas Road increasing to 155 movements from an existing 93 (71% increase).

In order to ensure that road safety is not compromised at this intersection and in accordance with Figure 6.41 of Ausroads “Guide to Traffic Engineering Paractice Part 5 – Intersections at Grade”, a Type ‘CHR’ intersection treatment needs to be provided on Mulgoa Road at at the St Thomas Road southern intersection.

179 Neither council nor the RTA provided evidence. Mr Varga provided traffic evidence for the applicant. He stated that:

Whilst it is acknowledged that the RTA warrant suggest that a turning treatment is required if turning volumes exceed 10vph, those warrants are already exceeded by the existing traffic volumes of up to 90vph turning right from Mulgoa Road into St Thomas Road south. The additional turning volumes expected to be generated by the proposed school will therefore not change the existing situation in respect of the warrants for turning lanes.

Mulgoa Road in the vicinity of Thomas Road south has a straight alignment with good visibility in both directions, and comprises 2 through-traffic lanes with sealed road shoulders on both sides of the road.

In addition, a detailed capacity analysis study of the Mulgoa Road/St Thomas Road (south) intersection has found that the intersection will continue to operate at Level of Service “A” and with minimal delays under the projected additional traffic flows expected to be generated by the maximum development potential of the completed school (ie with 360 students).

Accordingly, it is not necessary to upgrade Mulgoa Road in order to maintain safety and efficiency.

180 The warrant is required by the Guide to Traffic Generating Developments (the Guide) prepared by the RTA. Mr Robson’s submission is that the requirements of the RTA should be met. Whereas, Mr Hemmings submission is that the Guide is only a guide and is not a mandatory requirement. Further, he submits that if a condition is to be imposed that requires upgrading of the Mulgoa Road intersection, this should not be until Stage 2, which Mr Hemmings submits is when a significant part of the school will be operating and is consistent with earlier advice of the RTA.

Findings

181 Based on Mr Varga’s Figures 3 and 4 in his Statement of Evidence, the number of cars turning right off Mulgoa Road into St Thomas Road (south) will increase from 93vph to 159vph in the am peak. The number of vehicles turning left from Mulgoa Road into St Thomas Road (south) will increase from 3vph to 55vph in the am peak. While it is correct that the warrant is already exceeded for the right turn movement, this is not the case for the left turn movement.

182 While the increased traffic will only occur on weekdays and not during school holidays and the intersection will continue to operate at Level of Service “A” there will be an increase in cars turning into St Thomas Road south) which are directly attributable to the development. The increase in cars turning left is above the number which would warrant an intersection treatment. The existing number of cars turning right already requires an intersection treatment without the development. However, the development will increase this number and of itself would require an intersection treatment. We therefore accept that the works required by the RTA are reasonable but acknowledge Mr Hemmings submission in regard to timing of the works. Condition 84 should be retained but amended so that the works are not required to be carried out until Stage 2 of the development.

183 The residents also raised concerns about noise impacts from the increase in traffic, which are discussed above. They were also concerned about the increase in traffic and changes to the roads, which would change the rural character of the area. Mr Varga’s evidence is that there would be no increase in traffic through Mulgoa Village and:

The only increase in traffic flows expected to be generated by the school will occur in the short section of St Thomas Road between Mulgoa Road and the school entrance, and to a much lesser extent, in Farm Road and in Kings Hill Road .

184 In Mr Varga’s opinion, St Thomas Road (south) serves the function of a ‘collector road” and in his opinion the proposal will not have any unacceptable traffic effects or impacts on residential amenity.

185 In addition to the changes to the intersection of Mulgoa Road and St Thomas Road (south), the proposal includes widening of St Thomas Road (south) adjoining the entry to the school. There will be no increase in traffic using St Thomas Road (north) and no changes are proposed. Neither the planning or heritage experts raised material concerns about the changes to the roads.

186 While the impact of increased traffic on the rural setting of Mulgoa Village was initially raised by council as a contention, no expert evidence was provided other than in relation to noise, which is discussed above, and the issues was not pressed by council.

187 We do not consider that the increase in traffic or the works to either Mulgoa Road or to St Thomas Road (south) will change the existing character of these roads in an unacceptable manner that would impact on the rural character or amenity of the area. The proposal therefore satisfies the requirements of cl 12(k) and (q) and cl 15 of SREP 13 in relation to traffic.

Other issues

188 The objectors, particularly the representatives of the Association considered the proposal to be inconsistent with the planning framework for Mulgoa Valley. They noted that the framework had been developed over a long period of time and that the Association has been involved in the preparation of SREP 13 in 1987 and its amendments in 1997, including the introduction of cl 20. In their opinion an educational establishment was expressly prohibited in the rural conservation zone and not envisaged under cl 20 of SREP 13. The approval of such an “urban” use was inconsistent with the objectives of the plan and the Rural Conservation zone and would undermine the planning framework for the valley.

189 Educational establishments are a prohibited use within the Rural Conservation zone. The heritage incentives clause in cl 20 of SREP 13 enables consent to be granted to a use which is otherwise prohibited provided certain criteria including those in cl 20(3) are satisfied. For the reasons in the judgment we find that these criteria are met and that the proposal is therefore permissible. A finding of consistency with the objectives of the plan and the zone is not required. Nonetheless, we have considered these objectives and do not consider that they are offended by the proposal. The proposal also meets the other requirements of SREP 13, including cl 9, cl 12 and cl 15 and does not undermine the planning framework established by SREP 13.

190 The proposal will ensure the conservation of an important heritage item and will not adversely affect the amenity of the area. The proposal will also conserve, rehabilitate and regenerate areas of CPW and the habitat for the snail, in perpetuity. In balancing the issues in the case we find the proposal is worthy of approval. However, given the importance of the Heritage Agreement, VPA, VFMP and conditions we require the amendments be carried out prior to approval being granted.

191 In reaching this conclusion we note that some objectors and experts did not oppose a school use of the site but considered the proposal to be too large. We have considered whether a reduction in the school should be required and accept the evidence of Mr Ingham that the school is not large for a primary school and the size is necessary to meet the requirements of the Anglican Schools Trust. However, we consider it to be the maximum size that can be accommodated on the site while maintaining the rural character and amenity and of the area.

192 In relation to the other contentions raised by the objectors or council we find that these would not warrant refusal of the application. Some issues raised by objectors such as lighting and fences and the requirements of the Rural Fire Service are incorporated into conditions of approval.

Conditions

193 The following conditions remain in dispute between the parties:

194 Condition 40 - limits the extent of cut and fill to no more than 2m. Mr Hemmings submits that this would not enable the amphitheatre to be built and that the extent of cut and fill should be in accordance with the approved plans. Council submits that there is insufficient information to determine the extent of cut and fill.

195 The application seeks approval for the masterplan and for the construction of Stage 1 only. Further development applications will be required for each stage, which will enable further details to be provided. Condition 40 should be amended to indicate that the cut and fill should generally be in accordance with the approved masterplan but that details of the extent of cut and fill are to provided in the Development Application for each stage and should not exceed 2m, where feasible.

Conditions 45 and 46 -

196 Condition 84 - the works required to Mulgoa Road. For the reasons in this judgment this condition is to remain but should be amended so that the works are not required to be carried out until Stage 2 of the development. Conditions 67 and 70 will also need to be amended to be consistent with condition 84.

197 Conditions 101 and 102 - RTA advice requiring directional signage. Condition 34 requires an application for any signage. This should be amended to require a signage strategy for the site, which is consistent with the amended conservation management plan. Condition 101 and 102 should be deleted and the requirements considered as part of the overall signage strategy.

198 Condition 111 - provision of a flora and fauna offset. For the reasons in this judgment an offsite offset is not required and the condition should be deleted.

199 Condition 116 - covenant restricting the extent of buildings on the land. For the reasons in this judgment we find that the extent of buildings is the maximum that can be reasonably accommodated on the site. However, it is not appropriate to require a restrictive covenant. An amended conservation management plan for the Glebe land and the Church land, the Heritage Agreement and the Voluntary Planning Agreement effectively limit any further development potential of the site.

200 Other changes to the conditions are also required as discussed in the Judgment.

201 The following additional conditions are required prior to any approval being granted:

· a schedule of works to be carried out in each stage, which clarifies the staging of the playing field, assembly area, amphitheatre and landscaping. The CPW conservation, rehabilitation and regeneration works are to be completed prior to the occupation of Stage 1 of the development.

· consolidation of lot 1 DP996994 and lot 1 DP1035490 prior to the issue of an occupation certificate for Stage 1.

· the applicant is to enter into the voluntary planning agreement to retain CPW in perpetuity. Include appropriate time frame to enter into agreement.

· revised landscape masterplan to be approved by Council prior to issue of Construction Certificate for Stage 1 and to be consistent with revised CMP, VFMP and VPA.

· require deletion of proposed ridge vent/skylight on roof of Stage 6 classroom module (exhibit X).

· require archaeological testing and monitoring to be undertaken prior to demolition of Church Hall, Rectory and toilet block (exhibit 29).

· a number of conditions require matters to be completed prior to a construction certificate or an occupation certificate is issued for the development. It should be clarified that this refers to the construction certificate or occupation certificate for Stage 1 of the development. If a different stage is meant this should be stated.

Directions

202 By 24 June 2009, the parties are to provide an agreed timetable for changes to the Heritage Agreement, Vegetation and Fauna Management Plan, Voluntary Planning Agreement and conditions to address the findings in this judgment.

______________________ ______________________

Annelise Tuor Sharon Sullivan

Commissioner of the Court A/Commissioner of the Court

CITATION:	Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204
PARTIES:	APPLICANT Stanton Dahl Architects RESPONDENT Penrith City Council
FILE NUMBER(S):	10537 of 2008
CORAM:	Tuor C - Sullivan AC
KEY ISSUES:	DEVELOPMENT APPLICATION :- heritage incentives clause whether item of environmental heritage and development permissible affect on the amenity of the area from on site and traffic noise and impact on rural character impact on heritage significance and whether conservation of item unlikely whether offsets adequate for impact on Cumberland Plain Woodland and Cumberland Plain Land Snail whether traffic works required
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Threatened Species Conservation Act 1995 Sydney Regional Environmental Plan No 13 - Mulgoa Valley Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River Draft Penrith Local Environmental Plan 2008
CASES CITED:	Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC106 Currey v Hargraves & (2) Ors [2007] NSWLEC 471 Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662 Mohamed El Dana v Bankstown City Council [2008] NSWLEC 1484 Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173
DATES OF HEARING:	15 - 19 December 2008, 11 - 12 March 2009, further submission on conditions 17 April 2009
DATE OF JUDGMENT:	22 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister instructed by Ms M Peatman of Hunt and Hunt RESPONDENT Mr J Robson, SC instructed by Mr P Vergotis of DLA Phillips Fox