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: lot 12 is an open veranda with an awning over that is set back significantly from the building line and still allows views through the lot. Lots 13 and 14 are separated to a large extent from the rest of the subdivision by the area of open space. 13 While these developments had an impact on the view corridor, in Mr Brooks' and Mr Hammersley's opinion it was not as great as the impact that would result from the proposal. 14 In the absence of any expert evidence to the contrary, I accept the evidence of Mr Brooks and Mr Hammersley. I note that Campbelltown Sustainable City Development Control Plan requires setbacks of only 0.9 metres for single storey residential development, however the site is part of a subdivision of a significant heritage item. The subdivision approvals and master plan have endeavoured to minimise the impact on the significance of the item and a covenant which provides a building envelope for development has been prepared as part of the conditions of consent. 15 No cogent reason has been provided why the side setbacks in the building envelope should be varied. A smaller setback will clearly reduce the view corridors into Macquarie Fields House and its grounds and further impact on its significance. It will be different to the development of the other lots in the subdivision and the character of the streetscape. For these reasons the application must fail. Orders 16 The orders of the Court are: 1. The appeal is dismissed. 2. The development application to construct a dwelling at 22 Macquarie Links Drive, Macquarie Links is refused. 3. The exhibits, except exhibit 3, may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr 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.