Land and Environment Court of New South Wales CITATION : North Western Estates Pty Ltd v Blacktown City Council [2009] NSWLEC 1143 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT North Western Estates Pty Ltd PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10952 of 2008 CORAM: Murrell C KEY ISSUES: SECTION 96 MODIFICATION :- to change s88B single storey restriction on dentified lots in approved subdivision; Impact on heritage item and curtilage LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 DATES OF HEARING: 11/02/2009 and 12/02/2009 DATE OF JUDGMENT: 12 May 2009 APPLICANT Ms J. Hewitt, solicitor with D. Le Breton of HWL Ebsworth LEGAL REPRESENTATIVES: RESPONDENT Mr P. Marincowitz, solicitor of DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 12 May 2009 10952 of 2008 North Western Estates Pty Ltd v Blacktown City Council JUDGMENT 1 The applicant in these proceedings is seeking to modify a consent granted by Blacktown City Council (the respondent) for a residential subdivision. This appeal is under section 96(6) of the Environmental Planning and Assessment Act and the modification application is to reduce the number of lots affected by a section 88 B restriction as to user, that has the effect of limiting the height of residential development to a single storey. 2 In December 2007 the respondent granted development consent to a 70 lot residential subdivision on land known as lot 5019 Cavenah Way Kellyville Ridge. This consent contains condition number 86 as follows: Easement/ restrictions A restriction on the use is to be created under section 88 (B) of the Conveyancing Act 1919 in the following terms; The height of any new residential development on proposed allotments 601 to 613 and 620 to 634 opposite Merriville Park Proposed Public Reserve is to be limited to single storey so that the landmark qualities of the ridge top position of Merriville House are maintained and to reduce the visual impact of the new development viewing over the Merriville House/Park precinct. 3 Figure 1 shows the approved subdivision and the subject lots are shaded where the applicant is seeking to remove the one-storey restriction for the erection of residential dwellings. The applicant is seeking the single storey restriction be removed reducing the total number of lots affected by the height restriction to 10 lots. The restriction is not sought to be changed on lots 601-603 and 629-634. 4 Kellyville Ridge suburb has been developing over approximately the last ten years, mainly for dwelling houses but with some integrated medium density developments as serviced lots are placed on the market. To the north-east and north-west of the subject lots there are recently constructed dwelling houses and to the west land is zoned for future urban purposes. 5 To the immediate east of the lots on the opposite side of Glenheath Avenue is Merriville Park - a proposed public reserve. This open space adjoins Merriville House, a heritage item retained on a lot of some 7,800 square metres. Issues 6 The council provided a statement of contentions as follows: 1 The Application for Modification was identified in letter dated 1 July 2008 from Yarraman Developments Pty Limited to the Respondent Council as one made pursuant to section 96(1A) of the Environmental Planning & Assessment Act 1979. The Respondent contends that the proposed modification will not be of minimal environmental impact such that the application for modification could not and cannot as a matter of jurisdiction, be approved by the Council or by this Court on appeal. Particulars The removal of the single storey restriction from Lots 604 to 613, a total of 10 Lots, will not be of or result in minimal environmental impact. 2 The development as sought to be modified will not be substantially the same development as the development for which consent was originally granted. Particulars The proposed residential development will have a restriction upon single storey development that will apply to 9 Lots in proximity to Merriville House and Merriville Park, as opposed to 19 Lots in such proximity in accordance with the development consent as originally granted. 3 The Applicant having accepted the benefit of the development consent sought to be modified, did choose to not appeal under Section 97 of the Environmental Planning & Assessment Act 1979 against the imposition of Condition 86 of the original development consent (DA-07-1621 granted on 12 December 2007). There have relevantly been no change in circumstances after the grant of development consent giving rise to the application for modification. Having regard to the principles in Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236, the appeal, as a matter of discretion, should be dismissed. 4 The proposed modification will result in an adverse impact upon the heritage significance of Merriville House and the setting of Merriville House within Merriville Park. Particulars 4.1 The restriction on the number of storeys to a single storey applicable to dwellings erected upon Lots 604 to 613 mitigates the impact of development on the heritage significance of the Merriville House and the Merriville Park. 4.2 Any reduction in the number of lots affected by the restriction on the number of storeys will undermine the conservation principles espoused in the granting of the original development consent and will seriously reduce the heritage and landscape qualities of the Merriville Park and the curtilage of Merriville House. 4.3 The proposed reduction in the number of Lots affected by the restriction pursuant to Section 88B of the Conveyancing Act 1919 will impact upon the visual curtilage and setting of the Merriville House. Instrument and controls relevant to this contention (a) Schedule 2 of the Blacktown Local Environmental Plan 1988 (BLEP); (b) Clauses 2(2)(i) and 16A of the BLEP; 5 Council contends that the above matters are not able to be satisfactorily addressed by conditions of development consent. Statutory Planning Framework 7 The Blacktown Local Environmental Plan 1988 applies to the subject site. The objectives of the plan include to protect Blacktown's environmental heritage. 8 The subject lots are zoned Residential 2(a) and the objectives of the zone include: (a) to make general provision to set aside land to be used for the purpose of housing and associated facilities; (b) To identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings; (c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality; (d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy. 9 Clause 16A of the LEP requires the consent authority to assess the impact of the proposed development on the heritage significance of an item where a development is in the vicinity of same. Subclauses 2, 3 and 4 are also relevant and these are as follows: (2) This clause extends to development: (a) that may have an impact on the setting of a heritage item, for example, by affecting a significant view to or from the item or by overshadowing, or (b) that may undermine or otherwise cause physical damage to a heritage item, or (c) that will otherwise have any adverse impact on the heritage significance of a heritage item. (3) The consent authority may refuse to grant any such consent unless it has been considered a heritage impact statement that will help it assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item. (4) The heritage impact statement should include details of the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the heritage significance of the heritage item. 10 Schedule 2 to the LEP includes heritage items and for Kellyville Merriville Lot 11 DP 828440, Vinegar Hill Road, is nominated on the schedule. 11 Merriville House is also on the State Heritage Register and is an item of the Environmental Heritage Schedule 1 REP 19 Rouse Hill House Development Area. Evidence 12 On the first morning of the proceedings the Court met on site and heard from a number of resident objectors and their evidence can be summarised as follows. 13 Ms Murray commented that the single storey restriction should be retained to maintain consistency. Mr Choueiri expressed the same opinion. Mr Lerantages is also of the view that the restriction provides for the mountains in the background to be seen. 14 Ms White previous president of the Hills District Historical Society expressed the opinion that it is inappropriate for two-storey development opposite the park provides a curtilage to the heritage house. In her opinion it is also important to be able to visually see the blue Mountains and two-storey dwelling houses would not allow for the same extent of views and diminish the landscape. 15 Mr Clayton also expressed the view that the single storey requirement should remain. Ms Warren of the Riverstone and District Historical Society and the Historic Committee of the Blacktown Council considers that single storey dwellings would be more visually pleasing allowing a greater view to the Blue Mountains. In her opinion the single storey restriction allows for the community to have a greater understanding of the history of the property. 16 Mr Wade is the owner of Merriville purchased the property in 1993. He advised the court that while the listing refers to it as Merriville the house derives its name from the sheep farm of 2000 acres in 1818 to which it belonged known as Merriville. He provided a history of the developments in the area saying that in 1992 some 60 acres that was previously part of the dwelling was purchased and subdivided with 2 acres providing the parcel for the heritage dwelling. Mr wade said that according to Mr Clive Lucas the original part of the heritage house dates back to about 1843-5 with later extensions. Mr Wade considers that the park at the rear boundary forms part of the curtilage each to the dwelling in understanding its historic relationship with the remnants of farm to represent the rural component that supported the original farm. He considers that the views from the park are an important community asset for people to enjoy the views and vistas and that land. He commented that a previous owner, Landcom, provided the park for the benefit of the whole suburb and not for the owners of the 10 lots opposite the park. 17 On behalf of the council expert evidence was given by Mr Rodney Jensen, a consultant with expertise in architecture planning and heritage. For the applicant evidence was given to the court by Ms Wendy Thorp, a heritage consultant. The experts prepared a joint report and gave concurrent evidence the proceedings. 18 In 2001 on behalf of Landcom as part of its investigation of environmental impacts on the subdivision of land around the curilage of Merriville House, Ms Thorpe prepared a report on the heritage evaluation of the property and its environs in a Statement of Significance. 19 Ms Thorpe quotes her previous 2001 report in her Statement of Evidence to these proceedings. She includes the following quotes: "Merriville House and its environs have regional and local significance for the historical associations of its principal occupants and their contribution to local development" Merriville House and its environs are representative, but now increasingly rare illustrations of the principal influences and events that shaped the area in both the nineteenth and twentieth centuries and contributed to the unique community profile" Merriville House and its environs contain substantial elements of the first and all subsequent periods of occupation and this fabric describes the long and diverse residential and commercial history of the place and provides regional historical landmarks ... This is achieved through open paddocks, the house group and the remnant farm structures and fencing"'. 20 In her report to these proceedings she comments: The "environs" encompass the entire residential subdivision not just the PCO boundary and referred also to the original scale of the property as a Crown grant and the subsequent boundary alterations that derive from the changing fortunes and pursuits of the several owners. Apart from specific values that were attributed to architectural features or plantings or archaeological sites the principal significance of this place was its cumulative value as a cultural landscape. The present curtilage of the house has no historical validity beyond 1982; in fact the curtilage established then excluded one and possibly two buildings sites that were associated with the house and recognized by the 2001 survey. Merriville Park is entirely a product of the 2007 subdivision. 21 Ms Thorpe states that the most desirable heritage outcome has already been substantially undermined and quote: The heritage significance of Merriville House has been severely and substantially compromised by the decision to replace the former rural landscape with residential subdivisions that completely surround the property... With respect to the northern, southern and eastern boundaries of the house single storey dwellings was an absolute requirement in these instances. The development on each of these boundaries is separated by only the width of a street and is on the same visual plane as the house... There is a difference with respect to the lots to the west of the house (Lots 604 - 613). They are separated from the house by the full width of the path and the road at a distance at approximately 100 metres and they are at a very different viewing plane from the house... Sight lines ... demonstrate that two storey dwellings would not be visible from the back of Merriville House. The views are blocked by the out buildings behind the house by the line trees on the boundary, by the separation of the house from these allotments by the park and by the substantial fall of land from the high point from the back of house to the lowest level of the new allotments. 22 Ms Thorpe is of the opinion that Merriville Park has no inherent heritage value in its own right other than it embraces a small fragment of land associated with Merriville House. She further comments that apart from its value as a visual buffer for the house the role of the park is in its demonstration of a small component of the modified pastoral landscape and its inclusion of a few relic's of the farm buildings which once occupied the slopes. In Ms Thorps opinion the construction of single or double storey houses will have no impact on the role of the park and the development is on the fringe of the park. 23 The 2001 Heritage Assessment stated that: the issues of significance may be expressed as conservation objectives as follows: - that as much or sufficient open space should be preserved around the Merriville House precinct as possible to preserve its rural setting and enable the relationship between the residential precinct and the working farm to be interpreted. - that the drive or its alignment should be preserved and interpreted and the world define boundaries of the residential precinct expressed by fences and planting should be preserved and given adequate curtilage to enable their maintenance and interpretation. - that as far as possible the relicts contained within the landscape should be preserved and interpreted as far as conservation issues and public safety requirements permit. - that the visible land mark quality of the Merriville House precinct on the ridge be preserved. 24 The 2001 report under "Positive Outcomes and Heritage Impacts" states: The creation of a park immediately west of the residential precinct will help to maintain an association between the house and the working land, retain some rural identity and create a visual buffer between the house and subdivision to the west. This is reduced through the separation of the park and the residential precinct by a road. 25 The 2001 assessment on "strategies and visual impact" states: - consideration should be given to extending the path to the boundary to the residential precinct. This will require thought with respect to the definition of the boundary between the two to ensure the privacy of the owners of Merriville House and the conservation of the existing fence line. - The height of the residential buildings should be controlled to ensure that the land mark qualities of the rich top position of Merriville House are maintained and to reduce the visual impact of the new roof on the older precinct. It would be appropriate that only single storey residence are permitted at the boundaries of the precinct. 26 Under 'interpretation' the statement states: An interpretation strategy should be prepared for the park which will help to explain the significance of Merriville House, it's history and relationship to this area as well as what ever relicts may be preserved in this place. 27 Ms Thorpe is of the opinion that the area has changed since the original subdivision was approved containing the restrictive provision because there is now development on three sides of a heritage item and this represents the fourth side. She did not consider that the heritage item required the park as its expanded curtilage as previously the whole of the western plain would have provided an expansive conflict to the original rural property. She considers that only in part does the park acts as a buffer and becomes the expanded curtilage for the heritage item. In her opinion the pack only forms a small fragment of the historic relationship. When asked whether there was a relationship between the park and the heritage item she agreed. 28 Mr Jensen considers that while the park does not form the entire curtilage it is part of the remnants curtilage which makes it even more important. He is of the opinion that the primary role of the park is for the interpretation of the heritage item as well as the relics within the park and there is no way that is not part of the heritage but rather the park forms part of the heritage curtilage. He considers the park is part of the expanded curtilage and is important for the heritage item of Merriville. 29 Mr Jensen considers that two-storey development would provide for a different scale and the relationship to the park and the park to the heritage item. While from different locations within the park the views towards the mountains would still be retained over the roofs the bulk of two-storey dwellings would interrupt the views for pedestrians from the perimeter road and the edge of the park. 30 Ms Thorpe is of the opinion that the issue is to preserve views not dictate style of housing. Mr Jensen considers that the sense of rural quality would be diminished with two-storey dwellings as opposed to single storey. On the other hand Ms Thorpe says that the rural quality is lost whether it be one or two storeys. 31 Mr Jensen states that single storey dwellings would be better because one would experience distant and middle ground views more. With the two-storey dwellings these would be a more dominant element and single storey would provide more of a transition. In his opinion the visual landscape is an important component of the heritage experience and in terms of the streetscape. 32 Mr Jensen highlights a number of comments contained in the 2001 Thorp report that suggests some methods of mitigating the impact of future subdivision by limiting the height of buildings bordering the park to one storey. In his opinion "this approach is completely valid and clearly explains the heritage planning purpose of the restriction of height on the subject lots". 33 Mr Jensen further comments that "it can be conceded that a height limit alone is far from perfect as a solution because it leaves the design and appearance of future houses undecided. But it nevertheless is an important mitigating part of the 'subdivision strategy'. Since the Thorp report was originally written, it appears that little has changed to support a relaxation of the height limit. On the contrary there is a great deal of evidence to show that development has occurred pretty much as anticipated. The establishment of the public park on the west side of Merriville has been one extremely positive outcome of the planning work which preceded the subject development application and it definitely goes part way to safeguarding the curtilage and prominent hilltop location of the house. In the case for relaxation… there appear to be at great inconsistency between this and the earlier views and recommendations contained in the Thorp report which suggests that it would be appropriate that only single storey residences are permitted at the boundaries of the precinct". 34 Mr Jensen provided a number of sight lines taken from different positions within the park. Figure 3 is the position of the fence line within the park and in his opinion he considers a height control is strongly justified for both heritage and urban design reasons. He states that a significant issue which seems to have been overlooked is that the park itself is part of the curtilage of Merriville and is also important from the point of view of safeguarding visual impact both from a heritage perspective and an urban design and streetscape perspective. 35 The heritage officer of Council provided comments on the modification application as follows: Firstly, the Heritage Consultant has reviewed the need for the single storey restriction with regard to cultural context. The consultant has concluded that the issue of building height being one or two storeys is no longer relevant, as the entire rural landscape has been or will be lost to residential development. The original Heritage Assessment shows evidence that they were aware of the intention to subdivide the area surrounding Merriville House and considered it appropriate to recommend height restrictions to the surrounding lots. While the report refers specifically to the east, north and south of the heritage item (see Section 7.1 of the Heritage Assessment) the assessment encompassed land on all sides of Merriville House and the approved plan clearly shows the intended residential subdivision layout to the west of Merriville House and Merriville Park. Therefore at the time of undertaking the Heritage Assessment, the consultant would have been aware of the implications and impacts of residential development surrounding Merriville House. The consultant would have been able to provide recommendations based on the fact that Merriville House was now to exist in a residential context, and not in a rural context as it had been. The approved subdivision plan under DA-07-1621 does not deviate significantly from the intended plan shown with the Heritage Assessment. For the Heritage Consultant to now say that the single storey restriction to the west will not mitigate any of the impact of the loss of cultural context is unjustified. The cultural context was always going to be lost to some extent by the development of the surrounding land. Neither single or double storey development will reduce the impacts of the loss of cultural context, but single storey will surely have less of an impact than double storey. Secondly, the applicants Heritage Consultant reviewed the visual impacts of new development on the house and its landmark values. The original recommendations sought to ensure that new development respected the scale of Merriville House and did not overshadow it. In the review the Heritage Consultant argues that the distance of the width of the park and the existing obstructions to the view such as outbuildings and trees negates the need for height restrictions along the western side-of the park. While the lots in question are separated from Merriville House by the width of Merriville Park, the slope to the west of the house is not as steep as it is to the east and the sight lines would be further obscured by double storey development on the lots in question, as demonstrated by diagrams submitted with the S96 application (enclosure 50F showing the sight lines being obscured by the roof tops). The original Heritage Assessment took into account the mitigating effects of the park and recommended an interpretation strategy in Section 7.4.4 for the park to help explain the significance of Merriville House with regard to pastoral land, its history and relationship to the area. Further to this, double storey development along the boundaries of the park will reduce the open amenity of the park, which is a significant consideration in relation to the rural landscape meaning. of Merriville House. Double storey development along curtilage of the precinct would detract from the intention for the park to mitigate the effects of the removal of the rural setting. Restricting development surrounding the park to single storey will reduce the impact of residential development on the house by retaining a connection to some rural landscape… The restrictions applied to the development that exists to the north, south and east of Merriville House appear to be functioning well and have reduced the impact of the residential development on Merriville House. It can be assumed that the existing restrictions will have positive outcomes to the west as well. Given the conservation objectives, the significance if the park in relation to preserving the rural setting and the relationship between the house and the working farm to be interpreted, the park should be given consideration with regard to its treatment in terms of mitigating the effects of development on Merriville House (See Sections 6.3, 7.2.1, 7.4.2 and 7:4.4 of the Heritage Assessment from 2001). All these items relate to the significance of the park in relation to Merriville House therefore single storey development should only be permitted surrounding it to maintain this significance. The circumstances in which the original Heritage Assessment was conducted have not changed significantly therefore the single storey restriction is still considered relevant to mitigating the impact of the residential development on Merriville House and Merriville Park. The loss of cultural context and the visual impacts on Merriville House from the existing residential development should not be used as justification for further detriment to the heritage significance of Merriville House and Merriville Park. Assessment and Findings 36 I have undertaken a merits assessment of the section 96 application to modify the development consent against the planning framework and all the evidence to the court including the site inspection and the experts reports. In summary I have concluded that the single storey restriction should remain in place and as such the modification application fails on a merits assessment as discussed below 37 The applicant has failed to persuade me that the single storey restriction is not necessary. I agree with Mr Jensen's evidence and the council's heritage officer's report that the single storey restriction generally would provide for a less dominant built form on the edge of the extended curtilage to the heritage item. 38 There was a great deal of discussion during the proceedings as to what constitutes the curtilage of Merriville house and the extended curtilage. From the document Heritage Curtilage of the Heritage Office, Department of Urban Affairs and Planning, curtilage does not necessarily coincide with the property boundary. The document states that: In defining the expanded heritage curtilage it is important to identify the prominent observation points from which the significant item can be viewed interpreted and appreciated. Other factors to be considered are: + Views to and from the heritage item + The possible need for a buffer area between the curtilage and the adjoining land + The visual and historical relationship between the item and its environs An expanded heritage curtilage may also be needed to provide a public open space foreground setting to a heritage item or allow it to be viewed 'in the round'. 39 The Heritage office document also refers to the Burra Charter and states: While the Burra Charter also does not use the term curtilage it states that conservation requires the maintenance of an appropriate visual setting … environmental intrusions which adversely affect appreciation or enjoyment of the place should be excluded 40 It is not necessary for me to categorically say whether the open space/park is only part of an extended heritage curtilage or is the extended curtilage. In my assessment it is clear that the cultural heritage of the item and its visual and historic relationship can be appreciated more and understood with the benefit of the open space of the park. 41 In my assessment retention of a single storey limitation will provide a more appropriate visual setting for the heritage item of 'Merriville House' and its curtilage and will be less intrusive and less dominant. I agree with Mr Jensen and the words of council's heritage officer that "just because there has been a loss of cultural context and the visual impacts on Merriville House from the existing residential development this is not justification for further detriment to the significance of Merriville House…". As Mr Jensen states the erosion of significance "makes it even more important to protect what is left". 42 In my assessment further erosion of the setting by the intrusion of more dominant two storey built form than single storey dwellings would have a significant impact on the heritage item which is contrary to the provisions of clause 16A of the LEP. As such I have determined that the single storey restriction should remain. While the landscape in which the heritage item sits has been changed with urban growth in the form of residential subdivision the purpose of the condition is still relevant and valid in my assessment. 43 The site view included an inspection of the single storey dwelling houses constructed to the east of 'Merriville House' and other two storey dwellings in the vicinity. From this it could be seen that the single storey elements are more in harmony than the two-storey dwelling houses that tend to dominate the allotments because of their relative bulk on the same size allotments. 44 During the proceedings there was discussion as to whether a single storey restriction could be replaced by specifying relative height limits for each lot. It was submitted on behalf of the applicant that this would be problematic given the grade of each lot and the need for individual surveys and as such this would not be a simple solution as project homes are likely to be erected on the lots after being individually purchased. 45 It could be seen on the site inspection that there is a changing topography from the middle of the road to the rear of the lots and as to where dwelling houses may be sited. I appreciate that specifying a relative height limit for each lot would involve further work and careful assessment. At the same time a blanket removal of the single storey restriction for the subject ten lots would be shortsighted. I recognize that some lots may be capable of accommodating more than a single storey dwelling house given the fall of the land where the rear could be two storeys. However, this would require careful and sympathetic design to ensure such dwellings are not visually intrusive. 46 From my findings above it follows that the modification is not one that is of minimal environmental impact, however this contention raised by the respondent could be cured by an amendment to the application. I accept the submission made on behalf of the applicant that the Court is not prevented from assessing the application under section 96 (2). Therefore this contention would not warrant refusal of the application if on a merits assessment it were satisfactory. The respondent has advertised the application and submissions have been received and evidence provided to allow a full merits assessment. 47 On the issue raised by the respondent that the development sought to be modified will not be substantially the same development I am satisfied on the facts that it is substantially the same development to the application approved and this also would not warrant refusal of the application. Rather having satisfied this threshold question this has allowed me to proceed to carry out a merits assessment and it is on the merits as to why the application fails. 48 Similarly the issue raised by the respondent that "the applicant lodged a modification application as opposed to an appeal under section 97 against the imposition of the condition and the fact that there is no change in circumstances" is not a reason to dismiss the appeal. Applicants have the choice as to whether to appeal under section 97 against a condition of consent or lodge a section 96-modification application. 49 The fourth contention raised by the council that the modification will result in an adverse impact on the heritage significance of Merriville House and its setting is the reason as to why the application fails. During the proceedings there was discussion about streetscape and urban design however this was not directly raised in the contentions and as such my merits assessment has focused on the heritage impacts. 50 The objectives of the Blacktown Local Environmental Plan 1988 include "protection of environmental heritage" and in my assessment deleting the single storey restriction would be contrary to this objective. Clause 16A requires me to assess the impact of development in the vicinity of the heritage item of Merriville House and subclause (2) states that this clause extends to developments that may have an impact on the 'setting' of a heritage item. I have concluded that the proposed modification would have an adverse impact on the heritage significance of Merriville House and its setting and this in itself warrants refusal of the application. 51 In my merits assessment of the application I am also not persuaded that the purpose and circumstances for the imposition of the single storey restriction imposed by condition 86 make the condition unnecessary for the subject lots. That is "the landmark qualities of the ridge top position of Merriville House are maintained and to reduce the visual impact on the new development viewing over the Merriville House/Park precinct". 52 Accordingly, on the basis of my assessment above the formal orders of the Court are: 1. The section 96(6) appeal in respect of lots numbered 604 to 613 inclusive with frontage to Glenheath Way Kellyville Ridge is dismissed. 2. The modification application submitted to Blacktown City Council to delete the one-storey restriction for the above lots is refused. 3. The exhibits are returned to the parties. ___________________ J S Murrell Commissioner of the Court ljr 19/05/2009 - typographical errors - Paragraph(s) 42, 43, 46, 48, 49, 50 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.