Vella and Anor v Campbelltown City Council [2010] NSWLEC 1121

Land and Environment Court of New South Wales

CITATION : Vella and Anor v Campbelltown City Council [2010] NSWLEC 1121

APPLICANT Gabriel and Betty Vella PARTIES : RESPONDENT Campbelltown City Council

FILE NUMBER(S) : 10086 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- site setbacks, impact on the heritage significance and streetscape

LEGISLATION CITED: Campbelltown Local Environmental Plan

DATES OF HEARING: 12 April 2010

EX TEMPORE JUDGMENT DATE : 12 April 2010

APPLICANT Mr M Cotton, solicitor of Kells The Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton, solicitor of Marsden Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

12 April 2010

10086 of 2010 Vella v Campbelltown City Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal against the refusal by Campbelltown City Council (council) of a development application to construct a dwelling at 22 Macquarie Links Drive, Macquarie Links (site). 2 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by council on 9 March 2009. 3 The key issue between the parties is whether the proposed side setbacks will have an adverse impact on the heritage significance of the adjoining heritage item, Macquarie Fields House and the streetscape. 4 The Court visited the site and heard expert evidence for the council from Mr G Brooks, heritage architect and Mr C Hammersley, town planner. The applicant did not provide expert evidence. 5 Under Campbelltown Local Environmental Plan 112 - Macquarie Fields House (LEP), dwelling houses are permissible with consent. Clause 5 of Campbelltown Development Control Plan 63 - Macquarie Fields House (DCP) requires that development not be approved unless a master plan for the land has been approved. 6 In 2002, council approved an amendment to the approved master plan, which included a thirteen lot residential subdivision with one residual lot. The subdivision adjoins Macquarie Fields House and as part of the assessment a Visual and Heritage Assessment (Assessment) was prepared by Mayne Wilson & Associates which considered the impact of the subdivision on Macquarie Fields House and, in the event that the subdivision was to occur, included recommendations as to the building height and separation required to maintain view corridors to Macquarie Fields House and its rural setting. 7 The approval (G84/2000) included a condition requiring a s 88B instrument which reflected the recommendations of the Assessment including a building envelope and a single storey height limit (condition 18). The approved plan included an indicative building envelope. The s88B instrument includes a restriction on construction within three metres from the boundaries. 8 The site and one other lot remain undeveloped as part of the subdivision. The majority of the lots have been developed in conformity with the covenant. Three properties; lots 12, 13 and 14, have variations to the covenant, although there is evidence that only for one, lot 14, was a variation to the covenant granted. The rationale for the variation to the other lots is not clear. 9 The evidence of both Mr Brooks and Mr Hammersley is that there is no justification to vary of the covenant. The site has no particular constraints or characteristics that would restrict the development of a house of a similar scale to that sought by the applicant. The reduction in the setback will reduce the view corridors of Macquarie Fields House and its setting will be inconsistent with the pattern of spacing between the buildings and open space which exist in the streetscape. 10 Mr Brooks outlined that the purpose of the building envelope included in the covenant is to maintain a degree of visibility through and over the dwellings to Macquarie Fields House, its grounds and trees. In particular he noted that a significant Huon pine tree is located almost on axis with the site. 11 In Mr Brooks opinion the dwellings in the subdivision already have an impact on the cultural landscape as they have urbanised rural land. However he stated that the impact was the implementation of a thorough planning process, which recognised that development would impact on the heritage significance of Macquarie Fields House but sought to mitigate this by providing view corridors. 12 Mr Brooks and Mr Hammersley recognised that the non-compliance of dwellings has had a greater impact than those, which comply with the covenant. They identified particular characteristics which distinguished those approvals from the current application which can be summarised as: