Rochester Estate Pty Ltd v Wingecarribee Shire Council [2020] NSWLEC 1517

Rochester Estate Pty Ltd v Wingecarribee Shire Council [2020] NSWLEC 1517

The amended four lot subdivision was acceptable because the heritage experts agreed that it retained the identified heritage significance of Rochester Park, the existing dwelling would remain on a substantial lot consistent with the planning proposal, and the conditions of consent adequately constrained future...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 October 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 20/1139 / Principal Judgment After Hearing
Outcome
Appeal upheld; Development Application No. 20/1139 approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application Refusal Appeal' 'four Lot Subdivision' 'draft Heritage Item' 'conservation Management Plan' 'planning Proposal' 'restrictive Covenant' 'conditions of Consent']
['planning and Environment' 'development Consent' 'heritage' 'subdivision'] ['development Application Refusal Appeal' 'four Lot Subdivision' 'draft Heritage Item' 'conservation Management Plan' 'planning Proposal' 'restrictive Covenant' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 20/1139 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Respondent required leave to amend the Statement of Facts and Contentions to raise a requirement for a Conservation Management Plan.' 'What weight should be given to the planning proposal to heritage list the site and increase the minimum lot size.' 'Whether a Conservation Management Plan was necessary before the grant of consent or as a condition of consent.' 'Whether a restriction on title should require external colours for future dwellings to be comprised of earthy tones.' 'Whether Development Application No. 20/1139, as amended, should be approved.']

Ratio Decidendi

The amended four lot subdivision was acceptable because the heritage experts agreed that it retained the identified heritage significance of Rochester Park, the existing dwelling would remain on a substantial lot consistent with the planning proposal, and the conditions of consent adequately constrained future development. A Conservation Management Plan was not required before consent or as a condition because the proposal did not involve works to the existing dwelling or cottage and a CMP would not inform the subdivision consent. A restriction requiring earthy tones for future dwellings was unnecessary because future development applications should be assessed under the applicable...

Court Disposition

Appeal upheld; Development Application No. 20/1139 approved subject to conditions of consent at Annexure A.

Orders

  • ['The Respondent is granted leave to amend the Statement of Facts and Contentions to raise a contention requiring the provision of a Conservation Management Plan for the draft heritage item.' 'The Applicant is granted leave to amend the application to rely on an amended landscape plan and drainage plan.' 'The appeal...