120 Smith Pty Ltd v Campbelltown City Council [2021] NSWLEC 1086

120 Smith Pty Ltd v Campbelltown City Council [2021] NSWLEC 1086

The appeal was dismissed because the proposal failed to adequately identify and respond to the site's heritage constraints and would have an unacceptable impact on the heritage significance of the local heritage item. The row housing form, inadequate heritage curtilage, failure to conserve and respond to the house, barn, driveway, remnant garden, significant trees, views and setting, and inadequate site analysis meant the proposal was contrary to cl 5.10(1)(b) of Campbelltown Local Environmental Plan 2015. The Court was not satisfied that deleting individual dwellings or imposing deferred conditions could retrospectively cure those fundamental deficiencies, and the density had been...

Jurisdiction
Australia
Judgment Date
19 February 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 4457/2018/da M / Principal Judgment After Hearing
Outcome
The appeal is dismissed and Development Application No. 4457/2018/DA-M is refused.
Legal Topics
['multi Dwelling Housing Development' 'local Heritage Item' 'heritage Curtilage' 'r2 Low Density Residential Zone' 'site Analysis' 'development Control Plan' 'deferred Commencement Conditions']
['environmental and Planning Law' 'development Consent' 'heritage Conservation' 'land and Environment Court Procedure'] ['multi Dwelling Housing Development' 'local Heritage Item' 'heritage Curtilage' 'r2 Low Density Residential Zone' 'site Analysis' 'development Control Plan' 'deferred Commencement Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 4457/2018/da M / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Development Application No. 4457/2018/DA-M should be granted consent for a multi dwelling housing development, associated site works and alterations and additions to the existing house at 50 Badgally Road, Claymore.' "Whether the proposal would have an unacceptable impact on the site's heritage significance, including the house, barn, entry driveway, remnant garden and trees, views and historic connections." 'Whether the proposal adequately identified and responded to the constraints and opportunities of the site, including an appropriate heritage curtilage.' 'Whether deletion of individual dwellings and deferred conditions could cure the deficiencies in the proposal.' 'Whether the proposal achieved a low density residential environment within the R2 Low Density Residential zone.' 'What weight, if any, should be given to Campbelltown Local Environmental Plan 2015 (Amendment No 17), which removed multi dwelling housing as a permissible use in the R2 zone.']

Ratio Decidendi

The appeal was dismissed because the proposal failed to adequately identify and respond to the site's heritage constraints and would have an unacceptable impact on the heritage significance of the local heritage item. The row housing form, inadequate heritage curtilage, failure to conserve and respond to the house, barn, driveway, remnant garden, significant trees, views and setting, and inadequate site analysis meant the proposal was contrary to cl 5.10(1)(b) of Campbelltown Local Environmental Plan 2015. The Court was not satisfied that deleting individual dwellings or imposing deferred conditions could retrospectively cure those fundamental deficiencies, and the density had been...

Court Disposition

The appeal is dismissed and Development Application No. 4457/2018/DA-M is refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 4457/2018/DA-M for the construction of a multi dwelling housing development, associated site works and alterations and additions to the existing house, at 50 Badgally Road, Claymore, is refused.' 'The exhibits, other than Exhibits 1, A, B and C, are returned.']