VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P458/2023
Permit Application no.PLN22/0579 	
CATCHWORDS	
Section 77 Planning and Environment Act 1987 (Vic); Greater Dandenong Planning Scheme; Neighbourhood Residential Zone; Heritage Overlay; Demolition, Buildings and works; Dwellings; Tree removal; Heritage.	

Applicant	Gavin Keane	

Responsible Authority	Greater Dandenong City Council	

SUBJECT LAND	82-88 Carlton Road
DANDENONG NORTH VIC 3175	

HEARING TYPE	Hearing	

DATEs OF HEARING	27 & 28 November 2023 and 31 January 2024	

DATE OF ORDER	5 March 2024	

CITATION	Keane v Greater Dandenong CC [2024] VCAT 157	

Order
1	In application P458/2023 the decision of the responsible authority is affirmed.
2	In planning permit application PLN22/0579 no permit is granted.

Bill Sibonis
Senior Member			

Appearances
For G Keane	S Neofitou, Town Planner of Planning Vision Pty Ltd.  Evidence was called from:
•	R Riddett, Architectural Historian and Heritage Consultant of Anthemion Consultancies
•	M Reynolds, Arborist of Arbor Survey Pty Ltd
•	M Thomson, Landscape Architect of Habitat Environmental, Landscape, Design Consultants	
For Greater Dandenong City Council	K Richardson, Lawyer of Maddocks Lawyers Pty Ltd.  Evidence was called from:
•	C Dyson, Heritage Consultant of GML Heritage Victoria Pty Ltd	

Information
Description of proposal	Partial demolition of the existing dwelling and garage; demolition of outbuildings and swimming pool; the construction of buildings and works; the construction of eight, two-storey dwellings; and tree removal.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Greater Dandenong Planning Scheme (‘Planning Scheme’)	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1, Neighbourhood Residential Areas (‘NRZ1’)
Heritage Overlay – Schedule 4, Ferring Homestead, 82-88 Carlton Road, Dandenong North (‘HO4’)	
Permit requirements	Cl. 32.09-6 (the construction of a dwelling if there is at least one dwelling existing on the lot; and the construction of two or more dwellings on a lot)
Cl. 43.01-1 (demolition; the construction of a building; the construction and carrying out of works; and tree removal on land in HO4)	
Key scheme policies and provisions	Cl. 11, 12, 15, 16, 21, 22.06, 22.09. 32.09, 43.01, 52.06, 55 and 65	
Land description	The subject land is situated on the south-east corner of Carlton Road and Admirala Avenue in Dandenong North.  It is an irregular lot with a 59.97 metre frontage, a 54.96 metre sideage to Admirala Avenue and an overall site area of 4,276 square metres.  It is occupied by a former farm homestead, outbuildings and swimming pool.  There are a number of mature canopy trees on the land.  Surrounding properties are developed in the form of single detached dwellings.	
Tribunal inspection	An accompanied site inspection was undertaken after the hearing.	

  Reasons
What is this proceeding about?
1	In December 2022, an application was made to the Greater Dandenong City Council (‘Council’) for a planning permit to undertake partial demolition of the existing dwelling and garage; demolish outbuildings and swimming pool; construct alterations to the dwelling; construct eight two-storey dwellings; and remove trees on the subject land.
2	Consistent with the recommendation of the planning officer, the Council’s delegate issued a Notice of Refusal to Grant a Permit.  The grounds of refusal broadly refer to matters of heritage, neighbourhood character; vegetation; landscape; internal amenity; car parking; vehicle access; and non-compliance with selected requirements of clause 55.
3	This is an application to the Tribunal for a review of the Council’s decision.
4	On the basis of the submissions, the key issue in this proceeding is whether the proposal represents an acceptable heritage outcome.
5	Having considered the submissions and evidence, with regard to the relevant policies and provisions of the Planning Scheme, assisted by my inspection, I have determined to affirm the Council’s decision.
what is the relevant planning context
Zoning
6	The land is zoned NRZ1.  The purpose of the zone includes recognising areas of predominantly single and double-storey development; and managing and ensuring that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
7	Decision guidelines at clause 32.09-14 relevantly include the objectives set out in the schedule to the zone; and the objectives, standards and decision guidelines of clause 55.
8	The schedule to the zone provides the following neighbourhood character objectives:
To ensure the scale, built form and setbacks of residential development responds to the existing site circumstances by respecting the valued characteristics of the neighbourhood including the predominant built form, façade street patterns and appropriate separation between dwellings.
To provide appropriate front, side and rear setbacks, garden areas and private open space to allow for substantial high quality landscaping, including canopy trees to protect the amenity and outlook of adjoining properties and contribute to the landscape character.
To maximise the opportunities to create high quality landscaping through minimal paving and the use of permeable ground surfaces.
To ensure vehicle accessways and storage facilities do not visually dominate the streetscape.
To ensure that residential development achieves high quality useable private open space outcomes for future residents, including the provision of ground level secluded private open space at the side or rear of each dwelling.
9	The schedule varies the requirements of clause 55 in respect of standards relating to site coverage; permeability; walls on boundaries; landscaping; side and rear setbacks; private open space; and front fence height.
Overlay
10	The subject land is within HO4, which is a site-specific overlay.  The purpose of the Heritage Overlay includes conserving and enhancing heritage places of natural or cultural significance; conserving and enhancing those elements which contribute to the significance of heritage places; and ensuring that development does not adversely affect the significance of heritage places.
11	At clause 43.01-8, the decision guidelines include:
•	...
•	The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
•	Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
•	...
•	Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
•	Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
•	Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
•	Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
•	...
•	Whether the lopping or development will adversely affect the health, appearance or significance of the tree.
•	...
Policy
12	There is no dispute between the parties that the proposal is consistent with policies which address settlement and housing.  These policies encourage increased residential densities in established urban areas to make greater and more efficient use of existing infrastructure.  The policies also seek the provision of housing and housing diversity to accommodate population growth and changing household needs.  I agree that the proposal will contribute to the implementation of such policies and, given the absence of a dispute in respect of these, I will not detail them here.
13	The dispute centres on the proposed built form and vegetation/landscape outcomes.  Relevant policies are set out at clauses 15.01, 15.03, 21.05 and 22.09 of the Planning Policy Framework.
14	The objective of clause 15.01-2S is to achieve building and design outcomes that contribute positively to the local context, enhance the public realm and support environmentally sustainable development.  Related strategies refer to:
•	minimising detrimental impact on neighbouring properties, the public realm and the natural environment;
•	ensuring the form, scale and appearance of development enhances the function and amenity of the public realm;
•	encouraging development to retain existing vegetation; and
•	ensuring development provides landscaping that responds to its site context and enhances the built form.
15	Clause 15.01-5S has the objective of recognising, supporting and protecting neighbourhood character, cultural identity and sense of place.  A strategy is to support development that respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
16	Policy for heritage conservation is provided at clause 15.03-1S, the objective of which is to ensure the conservation of places of heritage significance.  The related strategies include encouraging appropriate development that respects places with identified heritage values; retaining those elements that contribute to the importance of a heritage place; and ensuring an appropriate setting and context for heritage places is maintained or enhanced.
17	At the local level, the Municipal Strategic Statement (‘MSS’) details the objectives and strategies for built form at clause 21.05.  In respect of ‘urban design, character, streetscape and landscapes’, objectives include facilitating high quality building design and architecture; facilitating development which has regard for the surrounding environment and built form; protecting and improving streetscapes; and ensuring landscaping that enhances the built environment.
18	For heritage, the objective is to protect sites of significant cultural and heritage values and those elements which contribute to the significance of heritage places.  The related strategies include:
1.1	Encourage, retention, restoration, maintenance and repair of heritage places in a manner that does not compromise the integrity of the heritage value of the place.
1.2	Encourage landscaping that is compatible with the historic character of the heritage place or precinct.
…
1.4	Encourage the continued use, re-use, internal adaptation and external conservation of places of heritage significance.
Local policy
19	The Residential Development and Neighbourhood Character Policy at clause 22.09 applies to all residential development requiring a planning permit in, amongst others, the Neighbourhood Residential Zone.  Its objectives refer to:
•	residential development respecting valued characteristics and identified future character;
•	ensuring development is consistent with preferred built form;
•	facilitating high quality residential development and on-site landscaping;
•	promoting a range of housing types; and
•	ensuring development uses innovative, responsive and functional siting and design solutions.
20	Pursuant to this policy, the subject land and its surrounds are in a Limited Change Area.  The identified future character is:
Identified Future Character - The future character of limited change areas will evolve over time to contain a relatively limited number of well designed and site responsive detached and infill residential developments that respect the existing neighbourhood character. Residential development will be a mix of one and two storey dwellings with separation between dwellings, at the upper level at least, with main living areas and private open space at ground level. Generous landscaping will make a significant contribution to the future character of these areas.
Residential development will give particular consideration to providing appropriate setbacks and private open space areas and high quality landscaping, including the planting of canopy trees, to protect the amenity of adjoining dwellings and to contribute to the landscape character.
21	It is policy to ensure new development respects the neighbourhood character of the area and considers the preferred future character; encourage residential development in the form of dual occupancies and single detached dwellings; and encourage well-designed low density infill developments.
22	A series of design principles addressing the preferred housing type, building height, landscaping, car parking, setbacks, front boundary and width, private open space and bulk and built form is provided.  It is policy that these are considered in addition to the design principles that apply to all areas and which address safety, landscaping, car parking, setbacks, front boundary and width, private open space, bulk and built form and site design.
23	Clause 22.09-4 provides the following definition of ‘low density housing’:
•	Low density housing generally means single, detached dwellings on individual blocks. Low density housing is commonly associated with typical suburban residential areas and may include traditional single and two storey houses, two dwellings on a single lot (dual occupancy) and villa units. Private open space areas are located at ground level.
Statement of significance
24	A decision guideline at clause 43.01-8 requires consideration of any applicable statement of significance.  The former farm homestead is known as ‘Ferring’.  The City of Greater Dandenong Heritage Study (‘Heritage Study’) provides a statement of significance (or citation) for the subject land.  It includes a section on the history of the heritage place.  Before proceeding to set out a chronology of ownership and events, it states:
The farm complex now known as Ferring, was located as part of allotments 16/17 and 22/23, Section 72 of Dandenong Parish Plan 2483. The original owner was an A. Smart. Numbers 82-88 Carlton Road were later identified as Section 72. 69 of lodged Plan 1490.18 Today the farm buildings, which are situated on the corner of Admirala Street and Carlton Road, occupy a very large block, which has survived the subdivision of the property during the time it was owned by the Luxton family. A ratebook search has revealed a history of early expansion by wealthy farmers in the area, and then later Subdivision to suburban blocks.
25	The citation notes the following:
•	a house and outbuildings were constructed in 1920 and it is assumed that the current house on the land contains elements of the original structure
•	farms in the area were of a similar size ranging between 10 and 50 acres, with most having houses and resident farmers
•	in the 1930s, there was a pattern of expansion by larger farmers and the farms became tenanted
•	several changes in ownership occurred, and included a former Mayor of the Melbourne City Council.
26	The citation identifies the significance of the heritage place as:
Significance
The Ferring complex is significant to Dandenong:
For its symbolism of the development history of the area, with early expansion by wealthy farmers gradually taken over by suburban growth;
For its close association with locally prominent persons such as Frank Shobbrock, L. L. Smith, Jason Jenkins, Robert J. Scanlon, R. E. McDonald, and James Semple.
For its close association with the locally and regionally prominent Lady Doris Mary Luxton and William Luxton, Mayor of the City of Melbourne who were part of major local events such as their opening of the landmark Armytage Scout Hall in 1933. (Criteria G. 1 and H. 1)
27	The Heritage Study describes the buildings on the subject land as:
Description
The buildings on the Ferring property are timber clad typical of the Edwardian period with high pitched gable end roofs including a large out building [sic] now used as a garage and fronting on to Carlton Road. A high timber fence conceals most of the property, as viewed from the main road. The roofs are clad with corrugated iron. The windows and other openings appear to be generally near original. Some sections of the verandahs fronting on to the main street have been enclosed and altered in detail.
28	The ‘external condition and integrity’ refers to the buildings appearing to be generally original and retaining their original integrity, but noting that further inspection is required.  The context is described as:
The building is set in a suburban setting. The original grounds of the property have been reduced. The high fence acts as a buffer between the property and its context.
29	The extent of the heritage place is nominated as:
The listed building, trees with a trunk diameter over 500mm, measured 1.5m from the ground, and title land, with emphasis on fabric from the building construction period and sufficient land within the title to protect the root ball, canopy of the trees.
will the development represent an acceptable heritage outcome?
Demolition
30	A decision guideline at clause 43.01-8 is whether the proposed demolition, removal or external alteration will adversely affect the significance of the heritage place.  The proposed demolition of outbuildings and swimming pool is not opposed by the Council, or by either of the heritage experts.  The dispute lies in the extent of demolition of the former farm homestead.
31	What is proposed is the retention of a central portion of the structure, understood to include the original form of the former farm homestead at the time of its construction in 1920.  It is a section equivalent to four rooms and central hall.  Parts of the building on all sides of this central portion, understood to be later additions, are proposed to be demolished or removed.  The large section to the rear (south) was damaged by fire in 2015.  The photographs and inspection confirmed the extensive nature of the damage caused.
32	Ms Riddett’s evidence is that the extent of demolition proposed is acceptable having regard to the fire damage, the subsequent weathering and vandalism and confinement to non-original building fabric, or fabric which is of no heritage value.  In her opinion, approximately half of the former farm homestead building is unsalvageable.
33	Ms Riddett supports the demolition of what she describes as the most severely damaged portion and the later additions which are not original.  Her evidence states:
40.	The Ferring Homestead was set on fire on 20 August, 2015. As a consequence the homestead was severely damaged and approximately one half is beyond repair and needs to be demolished. Subsequently to the original damage the building has deteriorated further due to weathering and more recently due to vandalism. As a consequence of the latter, points of entry i.e. glazed walls, windows and doors, have been sheeted over.
41.	There are glazed additions around most of the north elevation and approximately half of the east elevation which are not original and which have no heritage value. There are also some sundry or weatherboard additions which are of no heritage interest. As it is, what appears to be the older part of the dwelling is less damaged than what appears to be another addition at the rear. The proposal is to demolish the unsalvageable part of the dwelling, i.e. the south wing, the glazed verandah additions, rear additions and a pergola and to repair and renovate the salvageable portion of the dwelling and to subdivide the site. It is also proposed to demolish a sundry shed (Studio) on the rear boundary and a swimming pool. 
34	Dr Dyson holds a different opinion.  She is not satisfied that Ms Riddett’s description of part of the former farm homestead as a later addition is correct, and observed that there is no structural engineer’s report supporting Ms Riddett’s position that a section of the building to be demolished is unsalvageable.  Further Dr Dyson does not agree with Ms Riddett that a later part or additions to the former farm homestead are necessarily not significant.  Dr Dyson noted that the significance of the heritage place encompasses development patterns and historical associations from the 1920s, 1930s and 1950s.
35	This issue has not been satisfactorily addressed to enable a finding on whether the extent of demolition is acceptable.  There is insufficient information and evidence to confirm the extent of the original building fabric.  While the photographic material and the inspection confirmed that the rear section of the dwelling has experienced what appears to be significant fire damage, whether any part of this section contains original fabric and, if so, whether that fabric is salvageable, has not been determined.  Further, the other sections which are proposed to be demolished similarly have not been investigated to determine the existence or otherwise of any original building fabric.
36	That said, having regard to the citation and the reasons it provides for the site’s heritage significance, I have not been persuaded that any later additions contribute to this significance.  The statement notes the dwelling’s Edwardian origins and identifies selected modifications which have been made over time.
37	Part of the site’s heritage significance arises from its status as a remnant of the locality’s farming origins and the erosion of this by suburban development.  However, this would not necessarily be reflected by any later additions to the dwelling.  What is important is that the original form of the dwelling is maintained and restored to demonstrate its history as a farm homestead and, in doing so, enable an understanding of the site’s origin as part of a farming property.
38	Detailed investigation is required to ascertain the original form of the former farm homestead, and the existing heritage fabric, in order to determine whether the proposed demolition will ensure that these are not lost or compromised.  Related to this are the proposed works to that part of the former farm homestead which is to be retained.  I consider this in the following section.
Works to the retained section of the dwelling
39	While the applicant’s submissions, and Ms Riddett’s evidence, confirm that works to the retained section of the former farm homestead are proposed, the location and nature of these works are not disclosed on the plans.  It is unknown what is intended to be done to the building following the proposed demolition.  This was raised as a criticism of the proposal by both the Council and Dr Dyson.
40	Ms Riddett’s position is that details of any such works can be required as a condition of permit, as they will be ‘straightforward’.  She was not able to identify or provide an explanation of what works are intended to be undertaken, but considers that it is ‘self-evident what needs to be repaired’.
41	In response to a question from the Council, Ms Riddett confirmed that she did not ask for plans detailing the ‘refurbishment’ as it was obvious on site what will occur.  Ms Riddett said that if there was heritage policy in the Planning Scheme, she would have gone to another level of detail, but no such policy exists.
42	In her evidence, Ms Riddett noted that the former farm homestead is not identified as being of architectural or aesthetic significance and this is a further reason why any proposed works could be considered by way of a permit condition.  In her opinion, the details of roof, restoration, doors and windows etc can be the subject of a permit condition without seeing these now to determine whether they will have any impact on the heritage significance of the place.
43	The provisions of clause 43.01-1 require that a planning permit be obtained to:
•	construct a building or to construct or carry out works
•	externally alter a building by structural work, rendering, sandblasting or in any other way.
44	Without knowing what works or changes are proposed to the retained portion of the dwelling, it is not possible to determine whether these would represent an acceptable heritage outcome.  There is no basis on which to grant a permit for these.  There is no information which would enable me to assess whether the works to the retained building would meet the purpose of the Heritage Overlay or the decision guidelines at clause 43.01-8.  It is not a matter that should be left to a permit condition.  It informs whether a permit should be issued.
Setting
45	A concern of the Council is that, with the extent and siting of new development proposed, a suitable setting for the retained heritage buildings will not be provided.  The submission referred to the contribution made to the significance of the heritage place by the garden and the mature canopy trees.
46	As a consequence of the proposed development, the heritage buildings will be on a substantially reduced curtilage, which the Council considers will detract from the site’s heritage significance.  This significance arises from its history as part of a large (former) farming property which has been incrementally reduced in size over time by suburban residential subdivision.  It was said to be the last remaining such property in the municipality.  Its substantial size and tree canopy cover notably distinguish it from its surrounding context.
47	Dr Dyson’s evidence describes the site as comprising buildings with a large mature garden setting which retains large trees, shrubs and traces of an earlier layout.  She observes that the heritage place is distinct in the local context in part by its size and its garden.  In her opinion, the proposal will result in a very small garden setting for the former farm homestead and, consequently, the ability to understand the heritage place as part of a former farming area is diminished.
48	Dr Dyson noted that HO4 includes tree removal controls and expressed concerns regarding the number of trees to be removed and the replacement planting regime.  Her evidence is that the heritage significance of the place includes the trees which are of generous size, height and canopy spread, and that the resultant small garden spaces do not allow for planting of large trees.  In this way, Dr Dyson considers that the proposal does not conserve or enhance the heritage place and, further, that the impacts on the heritage significance have not been mitigated or an appropriate setting maintained.  In support of this position, Dr Dyson noted that the statement of significance gives weight to the site as a whole through its reference to the ‘title land’.
49	The evidence states:
…
109	As a result of the substantial reduction to its setting, loss of most of the garden, and tree loss, it is my view that the subdivision would result in development that would adversely affect the significance, character and appearance of the heritage place.
…
125	In my opinion, the cumulative impacts from loss of mature large trees and the substantial loss of the garden setting on the heritage place would not be consistent with the listed purpose of Clause 43.01.
50	In contrast, Ms Riddett’s evidence is that the site is historically significant for its symbolism of development in the area and its association with certain people, with no reference in the citation to the garden or the provision of a setting for the heritage buildings, other than the trees.  Notwithstanding this, she considers that the proposal has proceeded on the basis that the garden is important, and the important contributors are being retained.  In her view, there is not a substantial reduction in the setting of the heritage building.
51	The evidence states:
44.	Notwithstanding that the setting of the homestead i.e. the garden, has not been mentioned as being significant in the place citation, care has also been taken to ensure that the retained portion of the homestead is not completely hemmed in by new development …
…
49.	Apart from the historical note that “Today the farm buildings which are situated at the corner of Admirala Avenue and Carlton Road occupy a very large block which has survived the subdivision of the property during the time it was owned by the Luxton family” nothing else has been stated about its size, or its size being significant. The History section of the place citation notes also that the size of the property has changed variously over time and the Context section acknowledges that “The building is set in a suburban setting. The original grounds of the property have been reduced”. This reduction in size has been acknowledged in the Statement of Significance which states that the Ferring Homestead is significant to Dandenong “For its symbolism of the development history of the area with early expansion by wealthy farmers gradually taken over by suburban growth”. and for its association with prominent local and Melbourne identities. Subdivision of the site is not negated by the Statement of Significance or the place citation. Progressive reduction in the size of the curtilage is acknowledged as part of the site’s history. In this regard what is proposed is not contrary to the stated significance of the place. As such the proposal will not adversely affect the natural or cultural heritage significance of the place and is acceptable with regard to the place citation in the Greater Dandenong Heritage Study. This Study does not include any conservation policies. 
52	The plans include a site plan that shows the layout of the proposed development, including building footprints, private open space areas, secluded private open space areas, driveways and common garden areas.  That plan also identifies the curtilage proposed to be allocated to each of the dwellings.  The retained heritage buildings, together with the associated private open space and secluded private open space areas are to occupy an area of 494.53 square metres.  This equates to 11.5% of the total area of the subject land.
53	It is proposed to locate three of the dwellings in the area proximate to the retained buildings, flanking these heritage structures to the east, south and west.  Dwelling 1 is positioned 3.30 metres to the south of the garage and 7.10 metres to the west of the former farm homestead.  Dwelling 4 is positioned 7.0 metres to the south the former farm homestead.  Dwelling 8 is positioned 3.0 metres and 4.30 metres to the west of the former farm homestead.
54	When considered in the context of curtilage proposed to be allocated to these retained buildings, the development substantially erodes their setting.  I agree with the Council and accept Dr Dyson’s evidence that the siting of the new buildings adversely affects the significance, character and appearance of the heritage place.
55	As a remnant site, reflecting the pattern of settlement where large farm properties were progressively subdivided to form residential suburbs, the unique size and vegetated character of the subject land play an important role in the understanding of its heritage significance.  The setting, in concert with the retained heritage buildings, provides meaningful expression to the subject land’s heritage value, noting that it is within a site-specific Heritage Overlay, and not within a broader precinct.
56	I accept the evidence that, in order to allow for an understanding of the site’s history, there is a need to retain enough of the heritage fabric and its setting to allow this to occur.  The development does not do this, and I cannot agree with the evidence that the proposed change to the setting will not have an adverse impact on the heritage significance of the property as it is already reduced to one acre.  This is a not a reason to further reduce the area around the heritage buildings to a size smaller that the residential properties which typify this neighbourhood and place new development so proximate that it will visually impose on the appearance and appreciation of the retained heritage fabric.  What is proposed will effectively erode the context of the site to the extent that its significance as a remnant of the historical farming property will no longer be legible or evident.  It will no longer display the symbolism of the development history of the area, with early expansion by farmers gradually taken over by suburban growth, as cited in the Statement of Significance.
57	Significantly more space, and a consequential larger setting, is required to be provided around the retained heritage buildings.  This will require a re-design of the proposed layout to provide greater separation between the retained buildings and the proposed new dwellings.  Further landscaping which reflects the substantial vegetation existing on the land will also need to be included, noting that selected specimens will need to be removed for arboricultural reasons.
58	The location of trees with a high protection value to the east and south of the heritage buildings limit the extent to which the proposed dwellings can be repositioned and constrain the scope to accommodate new development in these areas.  In addition to ensuring sufficient space is provided around the heritage buildings, careful attention will need to be given to the siting of development to ensure that the ongoing health, structural stability and viability of the trees is not adversely affected.  Without making any findings, there is some doubt that dwellings of the size proposed can be accommodated in these locations whilst seeking to achieve the combined outcomes of space around the heritage buildings, meaningful landscaping and protection of trees.
59	The cypress trees adjacent to the southern boundary are remnants of a former windrow, which was a feature of the site’s farming origins.  These trees were described as overmature and have experienced branch failure and have split in parts of trunk and branches.  According to the evidence, they are beyond remediation from an arboricultural perspective, and are at a high risk of failure in a storm event.  They are not worthy of retention and should be removed.  The evidence states:
9.1.4	It is important to note that some trees (such as the Monterey Cypress along the rear boundary (trees numbered 25 to 28) are note worthy of retention long term. These trees are no longer suitable in residential zoned area as they have splits in the lower stems … and have other significant structural issues, such as torsional fractures along the lateral branches. There is also evidence of major branch failure in all of the trees ... These trees are beyond pruning works to reduce risk and should not be retained regardless of any future proposed development.
60	At a height of 28 metres and 30 metres the cypress trees are the tallest trees on the subject land.  The only other tree of an equivalent height, at 28 metres, is a Sydney Blue Gum, which is proposed to be retained.  The removal of the cypress trees will manifest as a significant loss in tree canopy on the property.  While not opposing the removal of the cypress trees, given their structural defects, the Council considers that they should be replaced with a more appropriate species in the same location to re-establish the tree canopy in this part of the site.  The Council submitted that this would allow the reference to the historic windrow, and the role this plays in the heritage context, to be maintained.
61	I have not been persuaded that this is necessary in order to ensure retention of the heritage character.  The relationship between the heritage buildings and the historic role of the cypress trees as a windbreak on the former farming property will not be legible by virtue of the proposed intervening contemporary dwellings.  Contextually, any connection between these particular trees and the heritage buildings will no longer exist.  What is important, however, is that, as referred to earlier, an appropriate setting is maintained for the heritage buildings.  More broadly, tree planting throughout the site, including proximate to the southern boundary, should contribute to the landscape character of the site.
62	The provisions of HO4 include tree controls.  Accordingly, pursuant to clause 43.01-1, a permit is required to remove any trees from the land.  An assessment of the trees in respect of their contribution to the site’s heritage significance has not been undertaken.  I make no findings in respect of this issue.  This matter should be considered and addressed as part of any future proposal for the subject land.
Conclusion
63	The proposal does not meet the purpose of HO4.  It will not conserve or enhance the heritage place or those elements which contribute to the significance of the heritage place.  It does not ensure that the development will not adversely affect the significance of the heritage place.
64	On the information available, I am unable to be satisfied that the nature and extent of the proposed demolition is acceptable.  Further, in the absence of any details of proposed works to the retained building fabric, it is not possible to determine whether any such works would achieve an acceptable heritage outcome.  An assessment of trees’ heritage significance has not been undertaken.  The siting of the proposed dwellings proximate to the heritage buildings unacceptably erodes the setting of these existing structures and impacts unacceptably on the property’s heritage significance as remnant of area’s farming origins.
65	This is sufficient basis for the Council’s decision to be affirmed.
66	I will not make any findings in respect of the other considerations which were addressed in both submissions and evidence.  There is no utility in doing so.  A different design response is required, including a different site layout for new development.  An assessment of all relevant considerations will need to be undertaken in that context.
67	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Bill Sibonis
Senior Member