Land and Environment Court of New South Wales CITATION : North Western Surveys v Baulkham Hills Shire Council [2005] NSWLEC 666 APPLICANT North Western Surveys Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10214 of 2005 CORAM: Brown C KEY ISSUES: Subdivision :- impact on heritage item Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005 Baulkham Hills Local Environmental Plan 1991 DATES OF HEARING: 7-8/11/2005 DATE OF JUDGMENT: 12/23/2005 EX TEMPORE JUDGMENT DATE : 11/08/2005 APPLICANT Ms H Irish, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 23 December 2005 10214 of 2005 North Western Surveys Pty Limited v Baulkham Hills Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the determination of DA1911/2004/ZA by Baulkham Hills Shire Council (the council) for the subdivision of Lot 715 in DP1074014 being 58-68 Wrights Road (formerly 42 Wrights Road, Kellyville) (the site). 2 The appeal relates to the imposition of conditions on an approval granted on 14 December 2004 by the council. The conditions in dispute are Conditions 6, 10, 20, 26, 41 and 42. Relevant planning controls 3 The site is zoned Residential 2(a) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005) although the application was lodged under Baulkham Hills Local Environmental Plan 1991. 4 The objectives for the zone are contained in cl 13. Clause 13(2) provides that consent must not be granted unless the development is consistent with one or more of the aims of the plan and any relevant objectives, and is not contrary to achieving the objectives of the zone. 5 Clause 14 requires subdivision may only be carried out with development consent and cl 15 requires demolition may only be carried out with development consent. 6 Clause 35 provides requirements for protection of heritage items, relics and conservation areas. This clause is relevant as the house on the site is identified in Schedule 1 of LEP 2005 as a heritage item. Schedule 1 identifies the item as a "House". This house was extensively damaged by fire in mid-2003. 7 Baulkham Hills Development Control Plan 10 - Heritage (the Heritage DCP) also applies. Clause 5.2 provides requirements for subdivision and cl 5.12 provides requirements for demolition. Background 8 The background to the application is relevant to the issues raised by the council in the appeal. The development application sought the demolition of the existing fire damaged heritage item and the creation of six vacant residential lots being Lots 901-906, having areas ranging from 453.7 sq m to 660.9 sq m and one vacant residue lot being Lot 907 having area of 2,790 sq m. This lot is to be developed in the future as an integrated housing development but subject to a further development application (see Attachment 1). 9 In considering the demolition of the heritage item the council staff report concluded that "total reconstruction would in all likelihood be necessary and upon reconstruction it would be of little or no heritage value". Conditions requiring a preliminary archaeological assessment and archival recording were required as part of the recommendation for approval. 10 The matter was considered by the elected council on 20 May 2004 and deferred for the applicant to "submit an amended plan of subdivision providing for the form of footprint of the farmhouse to be located on asingle allotment of land" and "the archaeological assessment identified in condition A1 be undertaken by the applicant". 11 The applicant declined to make the changes and on 14 December 2004 approval was granted but with the requirements detailed in the council's deferment on 20 May 2004 together with other matters. 12 In determining the development application the council granted consent to a form of development specifically different to that applied for by the applicant. The plan stamped by the council shows the creation of a subdivision of four lots being Lots 901-904, Lot 905 containing the heritage item, and Lot 906 being the residue lot. Lot 905 is dimensioned as having a width of 15 m and provides for a 1 m setback to the heritage item and rear boundary (see Attachment 2). 13 It was unclear from the approval whether consent had been given to the demolition of the heritage item, although a general reading of all the relevant documents would tend to suggest that the demolition was accepted but that the footprint of the house should be located on one lot rather than straddling a number of lots as proposed in the development application. The issue 14 The council filed a Statement of Issues containing separate issues. The issues were the subject of further discussion between the parties and most were resolved through the rewording or deletion of conditions. The remaining issue centred on whether the footprint of the house should be retained on a single lot. Should the footprint of the house be retained on a single lot? 15 The parties agreed to the appointment of Ms Sheridan Burke as the Court appointed heritage expert and Mr Laurie Winacott as the Court appointed town planning expert. 16 Mr Greg Patch, architect and heritage consultant, provided additional heritage evidence for the applicant. 17 Ms Burke's evidence states: "I consider that a substantial portion of Winslow's foundations and the two chimneys appropriately stabilised and secured, following a heritage engineer's advice, should be conserved and retained with an appropriate curtilage and interpreted with suitable public information available about the history of the house and the landholding". 18 A plan showing the appropriate curtilage was provided by Ms Burke (see Attachment 3). Ms Burke further states that the appropriate curtilage should be "preferably in the context of ongoing management as public open space". This management would require further detailed consideration by the council and possibly a land swap however this was opposed by the council. 19 Mr Ian Nowland of the Hills District Historical Society Inc. provided evidence on site and supported Ms Burke's proposal. 20 Mr Patch stated that the heritage value of the building has been so diminished that its removal is supportable providing a record is maintained by council to the extent of the existing information. This conclusion is based on his assessment that even though the property has some historical value it is somewhat obscure and mitigated by its present fire damaged condition. Additionally, and with the exception of some windows, some joinery items and the basic frame of the building, there is little apparent original fabric left. 21 Mr Winacott's evidence was predicated on the Court's acceptance or not of Ms Burke's evidence. In the event that the Court accepted Ms Burke's evidence then the appeal should be dismissed. In the event that the Court 22 came to the opposite conclusion Mr Winacott stated that there were no planning reasons for the refusal of the subdivision. 23 In considering the evidence, the Court has three separate proposals. These are: + The application as submitted to council by the applicant – Attachment 1, + The amendment proposed by the council allowing the demolition of the heritage item but requiring the footprint to be placed on one lot – Attachment 2, + The amendment proposed by Ms Burke that extends the lot containing the heritage item and seeks the refurbishment of the chimneys and footings – Attachment 3. 24 It was accepted that there was no evidence to support the second proposal, i.e., Attachment 2. Mr Patch and Ms Burke agreed that this proposal achieved little if any benefits from a heritage viewpoint. 25 The issue now becomes whether the demolition of the heritage item is appropriate. 26 Clause 35(4) of LEP 2005 requires the Court to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. The assessment must include a suitable heritage impact statement and address a minimum of specific matters found in cl 35(7). DCP 10 provides further requirements for consideration. Clause 5.2 provides for specific requirements for subdivision and cl 15.12 provides specific requirements for demolition. The objective for cl 5.12 is to "to ensure that adequate consideration is given to the significance of a heritage building and any alternate options where demolition of a heritage building is proposed". 27 This section contains development controls and states that demolition will only be considered where: 1. all alternatives have been investigated and ruled out, 2. the building does not satisfy the criteria for listing established under the New South Wales Heritage Office Guidelines, or 3. the building is not capable of repair. 28 On the question of demolition I accept the conclusions of Mr Patch. He provided the statement of heritage impact that satisfied the submission requirements in DCP 10, including the assessment of the house under the New South Wales Heritage Office Guidelines. The council's 1993/94 Heritage Study describes the significance as "a small agricultural landholding and its dwelling house demonstrating use of land since late 19th century". Mr Patch came to a similar conclusion to the council's 1993/94 Heritage Study in that the house has local historical significance and a representative degree of significance. It has no aesthetic, social, scientific or other heritage significance. 29 As I understand, Ms Burke's proposal to provide a curtilage and maintain the chimneys and footings is a reflection of the significance she places on the association of the house and its setting with the rural activities of the area in the past. In her view this is supported by a number of council planning documents that reinforce this association. I did not understand Mr Patch to dispute this association but not to give it the same significance as Ms Burke, particularly considering the fire damage, condition of the building and its lack of original fabric. 30 Even though DCP 10 acknowledges that a building does not have to be completely intact or in good condition for it to have heritage significance, the retention of only the chimneys and footings must clearly limit the value of a house as a heritage item and the understanding of its association with the previous agricultural use of the land. I would acknowledge that many of the early planning documents support the rural association with the area however these have been diluted through the more recent detailed planning particularly with the recent council decision to reduce the size of the adjoining open space area. When this is combined with the level of significance in the 1993/94 Heritage Study and the lack of original fabric, then I accept that the demolition is acceptable subject to the recording of the details as suggested by Mr Patch. 31 In coming to this conclusion I acknowledge the existence of correspondence from the New South Wales Heritage office that was generated by the decision of the council to defer the consideration of the application in May 2004. In my view the response is not definitive and it is unclear whether it was based on a view of the site. For these reasons the response should not be given any significant weight in these proceedings and certainly should not be preferred above the evidence available to the Court from Ms Burke and Mr Patch whose evidence could be tested in cross-examination. 32 For these reasons I find that the proposal complies with the requirements in cl 12(2) of LEP 2005, the impact on the heritage significance of the heritage item required by cl 35(4) and (7) and the requirements in cl 5.12 of DCP 10. 33 On this basis I find that the proposed subdivision satisfies the requirements in cl 13(2) and I agree with the evidence of Mr Winnacott that there are no reasons why development consent should not be granted. 34 The parties were directed to confer on the conditions that reflected the findings in the judgement on 8 November 2005 and file the conditions by 15 November 2005 with liberty to restore within 48 hours notice if there is disagreement on any of the conditions. The conditions were filed on 13 December 2005 after the parties were directed to attend a Mention. Orders 35 The Orders of the Court are: 1) The appeal is upheld. 2) DA1911/2004/ZA for the subdivision of Lot 715 in DP1074014 being 58-68 Wrights Road (formerly 42 Wrights Road, Kellyville) is approved subject to the conditions in Annexure A 3) The exhibits are returned. ___________________ G T Brown Commissioner of the Court 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.