Land and Environment Court New South Wales Medium Neutral Citation: Rochester Estate Pty Ltd v Wingecarribee Shire Council [2020] NSWLEC 1517 Hearing dates: 15-16 October 2020 Date of orders: 28 October 2020 Decision date: 28 October 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Respondent is granted leave to amend the Statement of Facts and Contentions to raise a contention requiring the provision of a Conservation Management Plan for the draft heritage item. (2) The Applicant is granted leave to amend the application to rely on an amended landscape plan and drainage plan. (3) The appeal is upheld. (4) Development Application No. 20/1139 for a four lot subdivision and associated works at 102-104 Old Wingello Road, Bundanoon, is approved, subject to the conditions of consent at Annexure A. (5) The exhibits, other than Exhibits 1, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION – subdivision – draft heritage item Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Uniform Civil Procedure Rules 2005 Wingecarribee Local Environmental Plan 2010 Cases Cited: Terrace Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 MacDonald v Mosman Municipal Council [1999] NSWLEC 215 Texts Cited: Bundanoon Township Plan Development Control Plan Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals Category: Principal judgment Parties: Rochester Estate Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: J Reid (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2020/229243 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 20/1139 for a four lot subdivision and associated works (the proposal) at 102-104 Old Wingello Road, Bundanoon (the site) by Wingecarribee Shire Council (the Council). The Court's leave is required for the Council to raise a new contention 1. Leave was granted by the Registrar of the Land and Environment Court on 13 October 2020 for the applicant to amend the development application to rely on an amended subdivision plan for a four lot subdivision identified as Revision E and dated 13 August 2020, a landscape plan identified as Revision A and dated 13 August 2020, a Heritage Impact Assessment prepared by Paul Davies and dated 14 August 2020, and a Bushfire Assessment Report prepared by Bushfire Hazard Solutions and dated 14 August 2020. 2. The Registrar made a further order granting leave to the Council to file an amended Statement of Facts and Contentions (Ex 1) the following day, by 12 [noon] on 14 October 2020. The Council filed an amended Statement of Facts and Contentions at 1.46pm on 14 October 2020. 3. The amended Statement of Facts and Contentions included an addition to the first contention, which is titled "Heritage Impact", as follows (addition to the contention shown underlined): "The proposed development including subdivision is likely to have requires a Heritage Conservation Management Plan to ensure that that the heritage significance of the property is recognised and guides development of the site; and that the development avoids a significant negative impact on the heritage significance of the site including 'Rochester Park' house and garden." 1. The parties disagreed on whether the Registrar's order encompassed granting the Council leave to add a requirement for a Conservation Management Plan (CMP) to the first contention. 2. The Registrar's order dated 13 October 2020 is noted on the cover of the file as follows: "Rose (A) Cunningham (R) Motion granted. amendments are minor no orders made under s 8.15(3) Am SOFC: 14.10.20 12PM" 1. The applicant submitted the following, in summary: * The leave granted by the Registrar for the filing of an amended Statement of Facts and Contentions did not contemplate raising a new contention. * The augmented contention does not respond to the amended proposal. The Registrar had intended to limit the amendment of the Statement of Facts and Contentions to be a response to the amended proposal. The amendments made to the Statement of Facts and Contentions needed to flow from the amendments made to the proposal for which leave was granted. * The Council did not seek leave to file an amended Statement of Facts and Contentions. 1. The Council submitted the following, in summary: * It is not open to me to revisit the Registrar's decision, that is a matter for a Judge of the Court on an appeal from the Registrar's decision. * The Registrar granted leave to the Council to file an amended Statement of Facts and Contentions and it is now too late to argue over the contents of the amended Statement of Facts and Contentions. * The requirement for a CMP has only now become apparent because the Council's heritage expert did not contribute to drafting of the original Statement of Facts and Contentions. 1. A review of the Registrar's order may be determined by a Judge of the Court on the application of any party pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005. I am satisfied that the question raised before me over the Council's augmentation of the first contention is not an impermissible review of the Registrar's order but is instead a question of whether the Council requires the Court's leave to augment the first contention. 2. I accept and adopt the applicant's submissions that the Registrar's order did not encompass raising a new requirement for the applicant to provide a CMP and I find that the Council does require the Court's leave to add a requirement for a CMP to contention 1. 3. Paragraph 94 of the Practice Note – Class 1 Development Appeals (3 April 2018) is in the following terms: "Parties require leave of the Court to amend their statement of facts and contentions. Leave to do so consequential on an amended development appeal application may be assumed where leave to amend a development appeal application has been granted and will be subject to directions made at that time. In all other cases, leave is to be sought by notice of motion accompanied by a short affidavit in support explaining the reasons for leave being sought." 1. On 13 October 2020, the Council's representative sought an order for leave to amend the Statement of Facts and Contentions in response to the Registrar's grant of leave for the applicant to amend the application to rely on an amended proposal. It was implied in the granting of leave for the filing of an amended Statement of Facts and Contentions the following day that those amendments would be in response to the amended proposal. Had the Council wished to raise a new issue, the appropriate procedure to do so would have been to seek leave by notice of motion accompanied by a short affidavit in support, explaining the reasons for leave being sought, as per par 94 of the Practice Note for Class 1 Development Appeals. The Council did not do so. 2. The requirement in the first contention of the amended Statement of Facts and Contentions for the provision of a CMP raises a new issue, for the following reasons: * The amendments made to the proposal for which leave was granted on 13 October 2020 by the Registrar reduced the subdivision from 5 lots to 4 lots in response to the agreed evidence of the heritage experts (Ex 4 par 49 and sketch p 14). The amended proposal, as contemplated by the heritage experts, addressed the heritage contention, contention 1, to the satisfaction of those experts, thereby addressing the heritage contention. The added requirement for a CMP was an attempt to keep the heritage contention alive. * The requirement for a CMP was added following the joint conferencing and agreement of the heritage experts on a subdivision layout that was acceptable in terms of its impact on the heritage significance of the site. It is unjustified to frame the new requirement for a CMP as a response to the amended proposal, because the amended proposal narrowed the issues between the parties by satisfying contention 2 regarding the unacceptable subdivision layout which was then deleted and by purportedly satisfying contention 1. * As the site is not a heritage item, cl 5.10(5) of Wingecarribee Local Environmental Plan 2010 (WLEP 2010) is not engaged and the Council cannot "require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item" [Emphasis added]. Nevertheless, the Council could have requested a CMP be provided once the development application had been lodged, on the basis of the planning proposal. A request for a CMP should appropriately be raised by the Council early in the process of assessing a development application because a CMP is a comprehensive document that requires at least several weeks for a heritage expert to prepare. * No evidence was adduced demonstrating that the Council raised the issue of a CMP with the applicant prior to the amended Statement of Facts and Contentions which was filed the day before the hearing. * It is prejudicial to the applicant to raise the issue the day before the hearing in the form of an amended contention, because it is impossible for the applicant to provide a CMP without an adjournment of the hearing. 1. The Council was granted leave to amend the Statement of Facts and Contentions to add a requirement for a CMP to the first contention. 2. The applicant was granted leave to amend the application to rely on an amended landscape plan (Ex B) and drainage plan (Ex M). Issues 1. The Council's contentions at the commencement of the hearing were: * The proposal requires a CMP to ensure that the heritage significance of the property is recognised and guides development of the site; and that the development avoids a significant negative impact on the heritage significance of the site including 'Rochester Park' house and garden. 1. The Council raised the following contentions as able to be resolved by condition: * A restrictive covenant on each lot should be required by condition which constrains the building footprint, maximum height and fencing types on each lot. * The front fence details should be recorded prior to its demolition. 1. The Council raised the following contentions as requiring further information to be provided: * Fencing details as contemplated by the joint report of the heritage experts and a restriction on title to ensure the heritage significance of the property is protected. * Details of the proposed design, construction method and materials for the driveway and front gates. * Details of offset plantings to ensure no net loss of vegetation, including species and numbers on the landscape plan. * Details of proposed palette of colours and materials for the future dwellings and a restriction on title. 1. Following the amendment of the proposal for which leave was granted on 13 October 2020, the Council no longer pressed contention 2 regarding the unacceptable subdivision layout. 2. Following further amendments of the proposal (Exs A, B and M), the Council pressed two contentions: * The proposal requires a CMP to ensure that the heritage significance of the property is recognised and guides development of the site; and that the development avoids a significant negative impact on the heritage significance of the site including 'Rochester Park' house and garden. * A requirement that the external colours for any future dwellings are to be earthy tones is be included in the requirement for a restrictive covenant (condition 56A(c)). 1. The requirement for a CMP is included as Condition 13 in the conditions of consent. It is Council's position that if the Court determines that a CMP is not required prior to the grant of consent, it should be a requirement prior to the issue of a subdivision works certificate. The site and its context 1. The site is a large, irregular shaped residential allotment of 15,000sqm (1.5ha) in area on the southern side of Old Wingello Road and the eastern side of Rochester Drive. The site has a frontage of 58.25m to Old Wingello Road and 167.215m to Rochester Drive and is accessed from Old Wingello Road via an existing driveway. 2. The site is relatively flat with a gentle slope falling north and south from an elevated portion in the middle of the site. 3. The site is occupied by an early 20th century dwelling house, designed in the Arts and Crafts architectural style, and a cottage. The site contains established landscaping and vegetation associated with the existing dwelling comprising a number of large trees, shrubs and landscaping structures such as mazes and ponds. Background and the proposal 1. The development application was lodged on 17 April 2020. The development application as described in the Statement of Environmental Effects and supporting documents sought consent for a 12 lot Torrens title subdivision, removal of trees, construction of a cul-de-sac accessed from Rochester Road and the retention of the existing dwelling. 2. On 6 August 2020, the applicant commenced proceedings appealing the deemed refusal of the development application. 3. On 14 October 2020, the Council refused the development application (Ex O). 4. The proposal, as amended, is for a four lot subdivision as follows: * Lot 1 with an area of 1.112ha containing the existing dwelling located on the southern portion of the site and including the existing driveway from Old Wingello Road; * Lot 2 with an area of 1,203sqm containing the existing cottage located on the south-western portion of the site, accessed via a right of carriageway on the new proposed section of the driveway accessed from Old Wingello Road; * Lot 3 with an area of 1,489sqm on the south-eastern portion of the site to be accessed via a right of carriageway on the new proposed section of the driveway access from Old Wingello Road; * Lot 4 with an area of 1,185sqm on the north-eastern portion of the site to be accessed via a right of carriageway on the new proposed section of the driveway accessed from Old Wingello Road. 1. The proposal, as amended, retains the existing boundary stone wall and gates. The new driveway is to be finished to match the existing driveway using red coloured gravel over a consolidated base. The edging of the driveway is to be recovered where possible and otherwise matched on the new portion to access lots 3 and 4. Drainage pits will be located behind the driveway edging. 2. The proposal, as amended, includes tree removal necessary for the subdivision and removal of dead trees (Ex B). Removal of trees to accommodate future dwellings will be the subject of future development applications. The proposal, as amended, includes the offset planting that would be required under the future development applications so that trees may be planted in the shorter term and consent will not be required in the future from disparate owners. Planning framework 1. Part of the site is identified as being Bushfire Prone Land by the NSW Rural Fire Service (RFS) Bushfire Prone Land Map (Ex 1, par 18). On 1 May 2020, the Council referred the development application to the RFS. On 15 June 2020, the RFS replied with general terms of approval (Condition 5 of the conditions of consent at Annexure A). 2. The site is situated within the Sydney drinking water catchment pursuant to the provisions of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (Ex 1, par 21). On 1 May 2020, the Council referred the development application to Water NSW. On 25 June 2020, Water NSW replied, providing concurrence to the development application subject to conditions (Condition 6 of the conditions of consent at Annexure A). 3. The State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP) applies to the site at cl 5 and Sch 1. Condition 10 of the conditions of consent at Annexure A imposes requirements on the development consent in relation to the provisions of the Koala SEPP. 4. The site is zoned R2 Low Density Residential under the WLEP 2010. The objectives of the R2 zone, to which regard must be had, are • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The relevant aims of WLEP 2010 are to conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of Wingecarribee; and to retain the critical natural, rural and built environmental landscape elements that make up the scenic and cultural heritage value of Wingecarribee. 2. Development consent is required for the subdivision of land, under cl 2.6 of WLEP 2010. 3. The minimum subdivision lot size for the site is 700sqm (Lot Size Map – Sheet LSZ_008A of WLEP 2010). The objectives of the minimum subdivision lot size clause, at cl 4.1 of WLEP 2010, are: (a) to identify minimum lot sizes, (b) to ensure that the subdivision of land to create new lots is compatible with the character of the surrounding land and does not compromise existing development or amenity. 1. The Bundanoon Township Development Control Plan (DCP) applies to the site (A1.3). Part A applies to all land in Bundanoon (A1.4). The planning proposal 1. The Council has placed a Planning Proposal on exhibition that seeks to include the site, "Rochester Park house and garden", as a local heritage item under Sch 5 to the WLEP 2010 and increase the minimum lot size to 1ha. 2. On the 22 February 2019, the Council made an Interim Heritage Order over the site operating for a period of 6 months. 3. On 14 August 2019, the Council considered a report prepared in relation to the potential heritage listing of the site as a heritage item, and resolved that the Council supported the proposed heritage listing of Rochester Park house and garden and the change in minimum lot size of Rochester Park from 700sqm to 1ha. The agenda for the Council meeting on 14 August 2019 included a proposed statement of significance for the proposed item (Ex 2, f 232). 4. A planning proposal was prepared to amend WLEP 2010. On 20 August 2020, the Council forwarded the Planning Proposal to the Department of Planning, Industry and Environment, in accordance with its resolution of 14 August 2019, for Gateway determination. 5. On 17 September 2020 the NSW Department of Planning, Industry and Environment issued a Gateway Determination (Ex 3, f 247) to proceed with the amendment of WLEP 2010 by adding the site as a heritage item to Sch 5 and increasing the applicable minimum lot size controls. The Gateway determination states that the proposal should proceed subject to the following: "Prior to public exhibition, the planning proposal is to be updated to include a reference to a savings provision to apply to any development application lodged prior to the date of this Gateway determination but not yet determined." 1. On 14 October 2020, the planning proposal (Ex 3, tab 1) was placed on public exhibition for the period 14 October to 13 November 2020. Submissions 1. The applicant submitted that the Court should give little weight to the planning proposal because it is uncertain, being in an early stage of the process; and is infected with fundamental errors, including lacking a reference to the savings provision as required by the Gateway determination and the minimum lot size is erroneously shown on the map as 2ha. 2. The Council submitted that there is a high degree of certainty that the proposed instrument will be made, because the proposed instrument is relatively simple and there is no dispute that the site has local heritage significance. Weight to the planning proposal 1. Pursuant to s 4.15(1)(a)(ii) of the EPA Act, the consent authority, or the Court exercising the functions of the consent authority, is to consider any proposed instrument that is or has been the subject of public consultation under the EPA Act, if it is of relevance to the development the subject of a development application in determining that development application. 2. I accept the Council's submission that there is a high degree of certainty that the proposed instrument will be made (Terrace Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at p 199), because the planning proposal is confined to the heritage listing of the site and there is broad agreement that the site is of local heritage significance. Expert evidence 1. The applicant relied on the expert evidence of Mr Paul Davies (heritage) and Ms Lyndall Wynne (planning). The Council relied on the expert evidence of Mr Stephen Davies (heritage) and Mr Jeremy Swan (planning). 2. The joint report of the heritage experts was admitted into evidence as Ex 4 and the joint report of the planning experts was admitted into evidence as Ex 5. The heritage experts gave oral evidence. Submissions 1. The Council submits that cl 5.10 of WLEP 2010 permits the consent authority to require a CMP before granting consent to development that subdivides land on which a heritage item is located and that a CMP is necessary to ensure that the draft heritage item will be maintained and protected after any consent to the subdivision. Consideration A Conservation Management Plan is not necessary as a pre-condition to the grant of development consent or as a condition of consent 1. The heritage experts agreed that Rochester Park, including the house and its garden, has local heritage significance. The heritage experts agreed that the form of the subdivision in the proposal, as amended (Exs A, B and M), is appropriate and retains the identified heritage significance of the site. The heritage experts agreed that a filtered screen of vegetation between the existing dwelling on proposed Lot 1 and the future dwelling on proposed Lot 3 is appropriate to preserve the setting and outlook of the existing dwelling and that the existing shrubbery and proposed offset planting will achieve a filtered screen of vegetation (Ex B, L 02). I accept their agreement. 2. The proposed Lot 1 containing the existing dwelling has an area of 1.112ha. I am satisfied that this configuration is consistent with the planning proposal, because the focus of the proposed heritage listing is the Arts and Crafts styled dwelling, and the dwelling is to be retained in a generous garden setting, including the entry gates and the tree-lined driveway, within a site area that is consistent with the proposed minimum lot area of 1ha of the planning proposal. 3. According to Mr Stephen Davies, he would prefer a CMP be provided prior to the grant of consent as it would provide policies for the retention of the heritage significance of the property and a point of reference for the heritage impact statements for the future development applications for dwellings on the new lots. In his opinion, a CMP would provide an opportunity for schedules of conservation works that could be imposed as a commitment on the development consent. 4. According to Mr Paul Davies, a CMP prior to the grant of consent for the proposal is not necessary, because the proposal does not include any works to the existing dwelling. In his view, a CMP can be requested in the future when a development application is made for the existing dwelling and it cannot add anything useful to this application because it will not inform the subdivision. In his opinion, the heritage listing of the site will give Council a high level of control over the future development of the new lots. 5. I accept the applicant's submissions and evidence that a CMP is not required prior to the grant of consent for the proposal, nor is it required as a condition of consent. 6. The proposal before me does not include any works to the existing dwelling, or the cottage, and the heritage experts have now agreed that the form of the subdivision in the amended proposal is acceptable in terms of its impact on the identified heritage significance of Rochester Park. 7. There was no dispute in the heritage experts' joint report regarding the provision of a CMP. Mr Stephen Davies was able to come to a conclusion that the 4 lot subdivision was acceptable and resulted in a proposal that had an acceptable impact on the agreed heritage significance of the site, without requiring a CMP. The heritage experts have thoroughly considered the heritage significance of the site and the opportunities and constraints for the subdivision of the site and, after a number of iterations of the proposal, they have agreed that the form of the subdivision in Ex A is acceptable and retains the heritage significance of the site. 8. I understand and appreciate Mr Stephen Davies' desire to tie the conservation works of the existing dwelling, cottage and landscape elements in the form of a schedule of works to the grant of consent for the subdivision, however, this possibility should have been raised early in the process of the assessment of the development application and could have been used as a bargaining chip in the negotiations to secure an outcome that included a commitment to carry out conservation works. It is untenable to raise this option after the subdivision configuration has been accepted by the Council and their experts and on the day before the hearing. It is now a missed opportunity. 9. There is nothing to be gained by requiring a CMP to be prepared as a condition of the consent because it will not inform the development consent. I am satisfied that the conditions of consent in Annexure A adequately address the necessary constraints for the proposal and the future development of the new lots and that the development consent is sufficiently certain (Condition 56A in Annexure A). A restriction on title limiting the external colours of future dwellings to be comprised of earthy tones is not required 1. In Condition 56A(c) (Ex 6), the Council seeks a requirement for a restriction on title to limit the external colour scheme for any future dwelling to be comprised of earthy tones. 2. The applicant submitted that this condition should not be imposed on the consent because it should properly be part of the s 4.15(1) of the EPA Act assessment of any future development application and not imposed as an enduring covenant, citing Lloyd J's decision in MacDonald v Mosman Municipal Council [1999] NSWLEC 215. 3. I accept the applicant's submissions and I adopt his Honour's reasoning in MacDonald v Mosman Municipal Council [1999] NSWLEC 215 at [14]. Following the heritage listing of the site, the development of the new lots will require a development application within the meaning of s 1.4 of the EPA Act (cl 1.17A(1)(d)(iii) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008). The assessment of future development applications should appropriately be tested against the planning regime under Pt 4 of the EPA Act, or equivalent, at that time. Conclusion 1. I am satisfied, based on all of the evidence before me, that the proposed lot sizes meet the objectives for the R2 zone and respect the identified heritage significance of the existing dwelling, its garden and setting. The proposed lot sizes are considerably greater than the minimum lot size development standard for the site and retain the existing dwelling on a substantial lot that is consistent with the proposed minimum lot size of the planning proposal. Orders 1. The orders of the Court are: 1. The Respondent is granted leave to amend the Statement of Facts and Contentions to raise a contention requiring the provision of a Conservation Management Plan for the draft heritage item. 2. The Applicant is granted leave to amend the application to rely on an amended landscape plan and drainage plan. 3. The appeal is upheld. 4. Development Application No. 20/1139 for a four lot subdivision and associated civil works at 102-104 Old Wingello Road, Bundanoon, is approved, subject to the conditions of consent at Annexure A. 5. The exhibits, other than Exhibits 1, A and B, are returned. ____________ Susan O'Neill Commissioner of the Court Annexure A (331479, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2020