The Land and Environment Court has recently refused a development application for the construction of a ninety-bed residential aged care facility on the land at 34 Sturt Street, Campbelltown.
The site of the proposed aged care facility is immediately adjacent to the St Johns Church and cemetery, which are (combined) Heritage Items of State Significance. The case was close to the heart of solicitor Adam Seton, who represented Campbelltown Council in the proceedings, because the cemetery is the final resting place for the late John Marsden.
A plan of the site, extracted from the Court’s judgment, together with an image of the St Johns Church on the adjoining site, are shown below.
Site of the proposal (34 Sturt Street, Campbelltown):
Historic “St Johns Church” adjacent to the development site:
The subject site together with the adjoining St John’s Church and cemetery land (“the St Johns Church Group”), is zoned “SP2 Cemetery Church and Seniors Housing”. However, the subject site is not part of the land to which the “State Heritage” listing applies, i.e. the St Johns Church Group. The proposed aged care facility is a permissible form of development on the site (the use is characterised as “seniors housing”).
The ‘usual’ planning controls that would ordinarily apply to development (and guide the determining authority) do not apply to the site or the adjoining St Johns Church Group. In that regard, neither a maximum building height nor maximum floor space ratio control applies to the site under the Campbelltown Local Environmental Plan (LEP).
At the time of the hearing, the real issues in dispute related to heritage conservation and urban design. The Court identified the contested issues between the parties as follows:
- heritage conservation – essentially in regard to suggested adverse effects of the proposal on the heritage significance of the St Johns Church Group
- urban design – centred on the proposal’s compatibility with surrounding land uses and streetscape character.
Heritage and urban design experts gave evidence at the hearing for the Applicant and the Council.
In relation to the heritage conservation issues, the Commissioner who heard and determined the Appeal (Commissioner Gray) examined the available material with respect to the heritage significance of the St Johns Church Group, particularly the State Heritage Register and Statement of Significance. While the subject site is wholly outside the defined boundary of the land the subject of the St Johns Church Group heritage listing, a consideration of the effect of the proposed development on the heritage significance of the St Johns Church Group was required. The Commissioner identified that a consideration of this “effect” requires attention to two main points:
- "Effect of the proposal on the outlook from the St John’s Church forecourt area as a factor in the heritage setting of the item.
- Effect of the proposal on the views to the St Johns Church Group (from outside).”
The Commissioner at first instance, determined that the proposal was satisfactory in regard to the impacts on the ‘significance’ of the St Johns Church Group in terms of views to it from outside the site.
However, the Commissioner was not convinced that the proposal was acceptable when considering the effect of the proposal on the outlook from the Church. The Commissioner indicated that “consideration here can be separated into two aspects. First is the extent of the loss of the view. The second is the significance of this loss. Consistent with the evidence, the point of attention needs to be the outlook from the Church surrounds, but particularly looking to north-west”.
The Commissioner noted that the relevant views from the St Johns Church to the township and beyond, were historically significant and formed an important aspect of the siting of the Church. As noted by the Council’s heritage expert, Mr Logan, the views were described as:
“Near and expansive views from the Church to the north-west across the open park-like grassed surrounds to the town centre and landscape beyond.”
The Commissioner extracted photos from the heritage expert evidence filed in the proceedings to demonstrate the context of the view loss:
Picture 1: Existing view from the St Johns Church looking north west.
Picture 2: View from the St Johns Church (looking north west) with proposal in sight.
While the Commissioner concluded that “the “hilltop setting” of the Church itself, as viewed from outside the St Johns Church Group, would not be unreasonably affected by the proposal” she found as follows in relation to the impact of the proposal on views from the Church:
“51 In my opinion, the proposal would take away significantly from the setting through its obstruction of the “historic” expansive view open to the north-west, still obvious and available from the Church surrounds and a clear factor in the heritage significance of the St Johns Church Group. I agree with Mr Logan that the current setting of the Church allows it to evoke an important historic ambience, which would be seriously and unreasonably impaired by the massing of the proposal generally, as a new foreground element, but particularly the top storey of the development which is the most affecting aspect in regard to the obstruction of the expansive nature of the view.”
The Commissioner then turned to the urban design matters, and summarised these as follows:
- Excessive and unacceptable building height
- Compatibility with surrounding land uses
- Compatibility with existing low density residential streetscape character of Sturt and Innes Streets
The Commissioner noted that her findings in relation to the adverse impact of the proposal caused by the obstruction of the “historic expansive” view to the north west from the St Johns Church, were directly related to the excessive and unacceptable building height.
The Commissioner then carefully considered the compatibility of the proposed building with the surrounding land uses together with the existing residential streetscape and character. The Commissioner found that while heritage conservation is a “most important component part of the NSW planning system”, it does “compete with other equally important environmental planning objectives”. The Commissioner further noted that “planning objectives relating to providing for seniors housing (in this case in the form of a residential aged care facility) as an element of community infrastructure, are important considerations, with this Site identified for that purpose under its SP2 zoning”.
The Commissioner ultimately concluded that the fact the zoning of the site permits the proposed development does not “bring irresistible weight” to the application. In the present case, approval of the proposal would result in unacceptable environmental impacts which were summarised by the Commissioner as follows:
“The central impact of concern is in regard to the effect of the proposed development on the heritage significance of the St Johns Church Group. The statement of significance relating to the local listing of the St Johns Church Group makes clear that the “setting on a hilltop overlooking the City of Campbelltown” is a factor in this listing … It indicates that the setting is “exceptional”…. The Burra Charter indicates that conservation “requires the retention of an appropriate setting”, and that “(new) construction that would adversely affect the setting or relationships (is) not appropriate.”
In conclusion the Commissioner found that while approval of the proposal may bring certain environmental planning benefits (notably, the provision of seniors housing infrastructure), in its current form the application would have a “severe and unreasonable effect on the heritage significance of the St Johns Church Group. The development application was therefore refused by the Court, in what our firm saw as a “win” for the memory of the late John Marsden.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
