appellant. Appeal upheld; Development Application No. 103/19 approved subject to conditions at Annexure A; exhibits (other than Exhibits 1, A and B) to be returned.
Key principles
The Court preferred and adopted the applicant's heritage expert evidence (Mr Oultram) over the Council's expert (Mr Moore) and concluded the existing building is a modest,...
The draft LEP / planning proposal identifying the site as a heritage item was given no substantive weight beyond the statutory obligation to consider it under s 4.15(1)(a)(ii)...
Pursuant to cl 5.10(4) of the NSLEP 2013, the Court found the proposal would not detrimentally impact the collective heritage significance of the Heritage Conservation Area...
Under cl 28(2) of SEPP 65 the Court was satisfied the design quality of the proposal, assessed against the design quality principles and the Apartment Design Guide, was an...
Issues before the court
Whether the existing building at 3 Parker Street is of local heritage significance such that the proposed additions would unacceptably impact the...
What weight should be given to the planning proposal / draft LEP identifying the site as a heritage item when determining the current DA.
Plain English Summary
The Land and Environment Court allowed Brazete Investments' appeal against North Sydney Council and approved alterations and additions to an Inter‑War flat building in McMahons Point. The Court found the building is not of sufficient local heritage significance to warrant refusal, gave no substantive weight to the draft LEP listing because of uncertainty and limited evidential support, accepted that the design and scale of the proposal suit the high density context and that SEPP 65 design quality requirements were met. The DA was approved subject to conditions.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,816 words · generated 28/06/2026
What happened
Brazete Investments (the appellant) sought approval to alter and add to an existing two‑storey Inter‑War residential flat building at 3 Parker Street, McMahons Point, creating an additional level and new accommodation, including garage/car stacker facilities. The site sits within the McMahons Point South Heritage Conservation Area (HCA). North Sydney Council either deemed the DA refused or otherwise did not grant approval, and the applicant appealed to the Land and Environment Court under s 8.7(1) EPA Act [1].
Whether the proposal's non‑compliance with DCP numerical controls for site coverage and landscaped area, and its bulk and scale, justify refusal.
Whether the proposal meets the design quality requirements of SEPP 65.
Cited legislation
No linked legislation citations have been extracted yet.
The matter proceeded to conciliation before Commissioner O'Neill on 25 February 2020, with an on‑site inspection and oral evidence; conciliation did not resolve the dispute [2]. The planning background was complicated by a planning proposal / draft LEP process initiated by Council to identify the subject property as a potential local heritage item. The Department (as plan‑making authority) had not finalised the amendment and the Council had forwarded the proposal for consideration. The applicant relied on amended drawings and expert heritage and planning evidence. The Council relied on its own heritage and planning experts.
At hearing the key disputes were:
Whether the existing building is of local heritage significance and whether the proposed additions would detrimentally affect the HCA; and
Whether the proposal's site coverage and resultant bulk and scale contravened the DCP objectives such that the proposal should be refused.
The Court conducted on‑site inspections including interior inspections of the apartments and ultimately accepted the applicant's experts and evidence. The appeal was upheld and the DA approved subject to conditions (Annexure A) [Orders].
Why the court decided this way
Three interlinked factual and legal assessments determined the outcome:
Assessment of the heritage significance of the existing building. The Court weighed competing expert testimony. It preferred and adopted the evidence of the applicant's heritage expert, Mr John Oultram, over the Council's expert, Mr Robert Moore. The Court found Mr Oultram persuasive that the building is a modest Inter‑War flat building, reasonably intact, but not meeting the thresholds in the NSW heritage assessment criteria for an individual local heritage listing. Conversely the Court viewed Mr Moore's assessment as partial and influenced by an advocacy purpose, noting the 2017 report was prepared in the context of opposing demolition and that its conclusions lacked comparative studies and independent peer support. The Court therefore concluded the building was a neutral item within the HCA rather than an item of local heritage significance, and that the proposed adaptation and addition would not have a detrimental effect on the collective heritage significance of the HCA (Consideration of the heritage issues; Weight to the planning proposal; Conclusion).
Weight to the draft LEP / planning proposal. The Court applied the statutory requirement under s 4.15(1)(a)(ii) EPA Act to consider proposed instruments but invoked the established principle that the weight to be given depends on the certainty the instrument will be adopted (citing Terrace Towers). The Court identified multiple reasons undermining the certainty of the draft listing: the 2017 assessment's provenance and purpose, absence of a comprehensive municipal heritage review or comparative analysis, lack of State Heritage Inventory documentation, the NSLPP's ambivalence about a 'spot' listing, and that the Department retained plan‑making discretion. Given those factors the Court declined to give substantive weight to the planning proposal beyond the duty to consider it (Weight to the planning proposal).
Planning merits and design quality. The planning experts agreed factual metrics (existing and proposed site coverage and landscaped area) and the Court accepted those figures. Given the unique constraint created by the retention of the existing building and separation requirements to the new building, the Court found the proposed building envelope, setbacks and scale to be appropriate to the high density R4 context and consistent with the 12m height control. On design quality, the Court considered the design verification statement and the Apartment Design Guide as required by cl 28(2) SEPP 65 and found the proposal satisfied the design quality principles. On that combined planning and design assessment, the Court concluded that the proposal did not produce unacceptable bulk or amenity impacts (The planning issues; Conclusion).
Because the critical heritage objection lacked persuasive evidential weight and the proposal was sound on planning and design grounds, the Court allowed the appeal and approved the DA.
Before and after state of the law
Before this decision:
The statutory framework for assessing development in heritage conservation areas and for weighing draft instruments was established. Courts had long given varying weight to draft LEPs according to their certainty (cf Terrace Towers).
After this decision:
The judgment reinforces two practical principles for similar cases in New South Wales:
A draft LEP or planning proposal that seeks to list a building will not automatically dictate the consent outcome for a contemporaneous DA. The Court will test the degree of certainty and the quality of the evidence supporting the draft listing before ascribing weight to it (Weight to the planning proposal).
Intactness alone will not necessarily elevate a modest building to local heritage significance if comparative studies, typology analysis or a comprehensive municipal review do not support listing; expert evidence prepared in a context of advocacy will be scrutinised for objectivity (Consideration of the heritage issues).
The decision emphasises careful scrutiny of expert provenance and the need for robust comparative and documentary research when asserting heritage significance in the context of a contested DA.
This case does not create new statutory law; rather it applies established statutory tests and evidentiary principles to the facts, and so operates as a persuasive authority on assessing draft listings and expert evidence in heritage disputes.
Key passages with plain-English translation
"This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act)..." [1].
Plain English: The applicant appealed the Council's decision (or lack of decision) under the statutory provision that allows a developer to challenge a deemed refusal.
"The appeal was subject to conciliation on 25 February 2020... As agreement was not reached, the conciliation conference was terminated..." [2].
Plain English: The Court tried mediation with all parties and inspected the site; because mediation failed the matter proceeded to hearing.
"I prefer and adopt Mr Oultram's expert evidence. Mr Moore's views ... substantially rest on the intactness of the fabric ... which is a result of the existing flat building remaining in a single ownership..." [Consideration of the heritage issues; quoted at 0].
Plain English: The Court believed the applicant's heritage expert. It did not accept the Council's expert's view that the building must be listed simply because it is intact; intactness can result from long single ownership and does not automatically mean a place is important enough for listing.
"I have not given any weight to the planning proposal, beyond the obligation under s 4.15(1)(a)(ii) of the EPA Act to consider the proposed instrument." [Weight to the planning proposal].
Plain English: The draft LEP proposing to list the property was looked at, but the Court did not let it influence the decision because it was uncertain whether that draft would be adopted.
"Pursuant to cl 5.10(4) of the NSLEP 2013, I am satisfied that the proposal will not detrimentally impact on the collective heritage significance of the HCA..." [Conclusion].
Plain English: Applying the relevant LEP clause, the Court concluded the proposed works did not harm the overall heritage character of the area.
What fact patterns trigger this precedent
This decision will be directly relevant where:
An application proposes alterations/additions to an existing building in a Heritage Conservation Area, and the local council or others point to a contemporaneous planning proposal to list the particular building as a local heritage item.
The draft LEP or heritage listing stems from earlier assessments prepared in the context of an opposing DA, especially where that assessment appears prepared to prevent demolition rather than arising from a comprehensive review.
There is sharply contested expert heritage evidence with one expert having prepared an assessment for advocacy or litigation and another producing peer reviews or alternative assessments.
The project claims that retention plus sensitive additions adaptively reuse the building and that the scale is consistent with a higher density zone.
In those fact patterns the Court will test the certainty of the draft instrument, the objectivity of expert evidence, and whether the design response meets SEPP 65 and DCP objectives.
How later courts have treated it
(As this is a 2020 decision, subsequent treatment will depend on later reported cases. Practitioners should search databases for citations to Brazete Investments Pty Ltd v North Sydney Council [2020] NSWLEC 1544 to determine whether it has been followed, distinguished or criticised. The judgment itself cites Terrace Towers for the established test on weight to draft instruments; Brazete applies that test in a fact‑sensitive way. The decision is likely to be cited as persuasive authority where courts consider the reliability of heritage assessments prepared in the context of opposing developments and the weight to afford draft LEP listings.)
Still-open questions
Degree of evidentiary threshold for draft LEP weight: The Court declined to give substantive weight to the draft listing on the facts here. But the precise tipping point, what combination of departmental endorsement, peer review, comparative studies, or a State Heritage Inventory form would convert a draft listing from 'uncertain' to 'weighty', remains case specific, and litigants must still identify the documentary threshold that produces certainty in each case.
Expert witness objectivity standards: The Court criticised an expert for perceived advocacy and lack of objectivity. Future cases will refine how Courts assess expert independence where experts are retained by parties to address heritage significance, including whether specific disclosures, methodological steps or peer engagement are necessary to preserve credibility.
Interaction between design quality principles and heritage constraints: The judgment accepted a contemporary addition where the building was retained. Future disputes will continue to test how SEPP 65 design quality requirements are balanced against heritage conservation obligations under local LEPs, especially where a building is on the margins of heritage significance.
Role of comprehensive municipal heritage reviews: The Court expressed preference for comprehensive reviews over 'spot' listings. What processes councils should follow and the timing of plan‑making relative to development applications will be an area of policy and legal interest, particularly where councils initiate spot listings in response to active DAs.
Practical takeaways for practitioners:
Do not assume a draft LEP listing decides a DA; assess and, where necessary, challenge the factual and methodological basis of proposed listings.
Prepare heritage evidence with comparative analysis, typology studies and, where possible, independent peer review to establish robustness.
When proposing adaptive additions in HCAs, demonstrate how the design meets SEPP 65 principles and DCP objectives, and address how retention and additions will not harm collective heritage significance.
Judgment (16 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 103/19 for alterations and additions to an existing two storey residential flat building to create a three storey residential flat building containing four dwellings, four car parking spaces within a new garage and landscaping works (the proposal) at 3 Parker Street, McMahons Point (the site) by North Sydney Council (the Council).
The appeal was subject to conciliation on 25 February 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. The conciliation conference commenced onsite and I heard evidence from resident objectors and viewed the site, in the company of the parties and their experts, from the public domain and from several dwellings surrounding the site. As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 26 August 2020 for the applicant to amend the application by relying on amended drawings, subject to an order for costs pursuant to s 8.15(3) of the EPA Act.
The hearing commenced onsite and I viewed the site and the interior of the four apartments within the existing building on the site in the company of the parties and their heritage experts. The hearing was then conducted via Microsoft Teams.
[2]
Issues
The Council's contentions pressed in the hearing can be summarised as:
The property is proceeding to be listed as a local heritage item and the proposal will have an unacceptable impact on the identified heritage significance of the existing building; and
The site coverage of the proposal exceeds the control and results in a building with excessive bulk and scale.
[3]
The site and its context
The site is on the southern side of Parker Street, on the south-eastern corner of Middle Street, McMahons Point, and is rectangular with an area of 431.1sqm.
The site contains a two storey Interwar face brick residential flat building with a pitched tiled roof. The building contains four 1 bedroom units around a centralised common staircase. The western portion of the site is occupied by a two brick structures with pitched and tiled roofs, containing garages for four vehicles and positioned close to the street boundary.
Development in the vicinity of the site comprises a mix of residential flat buildings and dwelling houses of various architectural styles and character.
14 East Crescent Street is to the north of the site and is a large, 3 storey rendered brick residential flat building. 12 East Crescent Street is to the east of the site and is a part 3 and part 4 storey brick residential flat building with a pitched roof.
[4]
Background and the proposal
A development application (DA 257/17) for the demolition of the existing building and construction of a new residential flat building on the site was lodged in July 2017. The development application was referred to Robert Moore as an independent heritage consultant because the site is within a heritage conservation area. In his assessment, Robert Moore identified that the existing residential flat building had the potential to be listed as a local heritage item (Ex 6, f 43).
Robert Moore's Heritage Assessment Report dated 10 October 2017 regarding DA 257/17 is included as an appendix to the planning proposal (Ex 7, tab 52).
The application the subject of this appeal was lodged on 23 April 2019 (Ex 6, tab 7).
The Council resolved on 22 July 2019 to request the Minister for Heritage to impose an Interim Heritage Order (IHO) over the site (Ex 6, tab 7). On 5 December 2018, the Council received a formal response from the (then) Office of Environment and Heritage on behalf of the Minister stating that an IHO would not be issued over the site (Ex 6, tab 46).
The proposal is for alterations and additions to the existing residential flat building, designed by Antoniades Architects (Ex B). The proposal is for five units and off-street parking spaces within a tri-level car-stacker, and includes the following accommodation:
Ground Floor: retention of the existing two 1 bedroom units, units 1 and 2, demolition of the rear fire stair and replacement with balconies. Demolition of the two single storey garages and construction of a new building containing car stackers accessed from Middle Street, the lower level of a new unit, unit 3, and a connecting element between the two buildings containing a lobby and lift.
First Floor: alterations and additions to the existing two apartments to create a single 2 bedroom unit, unit 4, with sunrooms and a rear balcony. The upper level of unit 3 in the new building. Lift and foyer access to both apartments.
Second Floor: 3 bedroom unit, unit 5, within an additional floor to the existing building and within the new building. Lift and foyer access. Extension of the central stair in the existing building to the new upper level.
Pitched roof with a central roof terrace of 18sqm accessed via an internal stair from unit 5. The application does not include any structures, such as a pergola, associated with the roof terrace.
[5]
Planning framework
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4. The design verification statement was admitted into evidence (Ex D). The consent authority, or the Court exercising the functions of the consent authority, is to take into consideration any advice obtained from the design review panel; the design quality of the development when evaluated in accordance with the design quality principles; and the Apartment Design Guide (ADG), at cl 28(2) of SEPP 65. No contentions are raised in relation to the provisions of SEPP 65.
The site is zoned R4 High Density Residential pursuant to North Sydney Local Environmental Plan 2013 (NSLEP 2013) and residential flat buildings are a nominate permissible use in the R4 zone. The objectives of the R4 zone, to which regard must be had, are:
• To provide for the housing needs of the community within a high density residential environment.
• To provide a variety of housing types within a high density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
• To ensure that a reasonably high level of residential amenity is achieved and maintained.
The height of buildings development standard for the site is 12m (cl 4.3 and Height of Buildings Map - Sheet HOB_002 of NSLEP 2013). The proposal complies with the height of buildings development standard for the site.
There is no floor space ratio (FSR) development standard for the site. The Council submitted that the controls in the North Sydney Development Control Plan 2013 (NSDCP 2013), including site coverage, landscaped area and setbacks, are intended to control the scale and bulk of development.
The site is within the McMahons Point South Heritage Conservation Area identified as CA14 (HCA) (Sch 5, Pt 2 to NSLEP 2013 and Heritage Map - Sheet HER_002) and is identified as a neutral item within the HCA (section 13.6 of NSDCP 2013). The adjoining property to the east of the site, 12 East Crescent Street, is identified as a local heritage item ("Flat Building" Item 465). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the HCA, pursuant to cl 5.10(4) of NSLEP 2013.
[6]
The North Sydney LEP Review 2019 (Ex 7, tab 52)
The Council resolved on 25 November 2019 to support a planning proposal to amend the NSLEP 2013. The intention of the planning proposal was "to incorporate a number of minor housekeeping amendments to ensure that NSWLEP 2013 [NSLEP 2013] remains a clear, transparent and contemporary planning instrument" (Ex 6, tab 9). The planning proposal includes identifying the site as a new heritage item (Ex 6, tab 9, p 2).
The response of the North Sydney Local Planning Panel (NSLPP) to the proposed local heritage listing of the site and the NSLPP's recommendation to Council on the planning proposal was noted in a report prepared by a council officer dated 28 November 2019 (Ex 6, tab 50), as follows:
"The NSLPP did not object to the proposed heritage listing on 3 Parker Street, based on the independent heritage assessment that had been undertaken. However, the NSLPP had noted that that the proposed listing had arisen from the assessment of a development application on the site and an unsuccessful request to impose an interim heritage order over the property. Furthermore, it was considered that there are other potential items, perhaps with even greater heritage value that 3 Parker Street, that have not been recognised. This lead [sic] the Panel's determination that a comprehensive review of potential items of heritage in the municipality needs to be undertaken.
Panel Recommendation to Council:
The Council's Officer's Report is endorsed and the Panel recommends to the Council that it proceed to a Gateway Determination and exhibition of the proposal. The panel makes the following observations:
For the proposed listing of number 3 Parker Street, the Panel notes that while there has been an independent heritage review recommending the listing of the site, this appears to have been initiated by submission of a development application and the request for an Interim Heritage Order. While the Panel does not disagree with the listing being exhibited in the draft plan, at the same time the Panel notes that there are other potential items, perhaps of even greater heritage value that currently have not been recognised due to the need for a comprehensive review of potential items of heritage in the municipality."
The Council is not the plan-making authority for the planning proposal under s 3.36 of EPA Act (Ex E). The Council resolved on 24 August 2020 to forward the planning proposal, as amended by the Council, to the Department of Planning, Industry and Environment (the Department) with a request that the LEP be made to give effect to the planning proposal as amended (Ex 6, tab 8).
[7]
Submissions
The parties agreed that the amendment of NSLEP 2013 is not imminent. The parties disagreed on whether the local heritage listing of the site is certain.
The applicant submitted that the listing of the site as a local heritage item, based on the latest information from the Department (Exs E and 8), is not certain. The applicant submitted that the proposed listing of the site as a local heritage item arose in response to the 2017 development application to demolish the existing building and is not supported by two peer reviews of Mr Moore's assessment, prepared by John Oultram Heritage and Design and Urbis (Ex F).
The Council submitted that the planning proposal is certain because the Council has resolved to forward the planning proposal to the Department with a request that the LEP be made to give effect to the planning proposal.
[8]
Weight to the planning proposal
Pursuant to s 4.15(1)(a)(ii) of the EPA Act, the consent authority, or the Court exercising the functions of the consent authority, is to consider any proposed instrument that is or has been the subject of public consultation under the EPA Act, if it is of relevance to the development the subject of a development application in determining that development application.
The greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft (Terrace Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at 199).
I accept the applicant's submission that while there is a high degree of certainty that the proposed instrument will be made in some form, it is uncertain as to whether the site will be listed as a local heritage item. The uncertainty regarding the heritage listing of the site arises from the following:
The identification of the site as a potential local heritage item is based on the Heritage Assessment Report prepared by Robert Moore dated 10 October 2017, which was prepared as part of the assessment of a development application for the demolition of the existing building. This assessment is an appendix to the planning proposal (Ex 7, tab 52). The 2017 Heritage Assessment Report states, "The existing flat building is not heritage-listed, but its impending loss raises the question of whether or not a case can be made for its retention, arising from the impacts perceived." The assessment was prepared with the aim of 'making a case' for the retention of the building to defeat its proposed demolition and is therefore not necessarily an entirely dispassionate assessment of the heritage significance of the existing building.
The conclusions of the assessment are not based on any comparative studies. The identification of the site as a potential heritage item does not form part of a comprehensive review of heritage items and potential heritage items in the municipality, or of a typology, or of an era, or of the work of an architect or group of architects. The 2017 Heritage Assessment Report is based on the author's "opinion", cited multiple times in the assessment, and by his own admission, "further inquiry is required…", "no investigation has been carried out…", "it is possible to argue…". I mean no criticism of the assessment, because it fulfilled its original purpose; but the assessment is likely to be found to be insufficient as the only basis for a local heritage listing.
[9]
Public submissions
The concerns of the resident objectors can be summarised as:
The stairs to Parker Street from the rear of the apartment building at 12 East Crescent Street will be removed by the proposal;
The proposal will result in additional cars being parked on the street;
The bulk and height of the proposal will obstruct views from apartments at 12 and 14 East Crescent Street and impact on amenity;
The site coverage of the proposal is excessive, and the setbacks are minimal;
The proposal is contrary to the heritage character of the precinct;
The roof top terrace will compromise the amenity of surrounding properties.
[10]
Expert evidence
The applicant relied on the expert evidence of John Oultram (heritage) and Yvette Middleton (planning). The Council relied on the expert evidence of Robert Moore (heritage) and George Youhanna (planning).
[11]
The heritage significance of the existing building
The heritage experts agreed that they are diametrically opposed in terms of their assessment of the heritage significance of the existing building and that this is the focus of the dispute between the parties. Following is a summary of their evidence and assessments of the existing building under the heritage significance criteria (Assessing Heritage Significance NSW Heritage Office publication and part of the NSW Heritage Manual).
In Mr Oultram's opinion, the existing building does not meet any of the criteria for identifying it as a place of local heritage significance.
In Mr Moore's opinion, the existing building on the site is an item of local heritage significance worthy of listing as an item of heritage in Council's LEP.
"Historic significance
Criterion (a) of the heritage significance criteria: An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area)."
According to Mr Oultram, the existing building is an example of an Inter War flat building. The existing building was part of the trend for apartments in the Inter War years when there was rapid economic growth in Sydney during the 1920s and flats were constructed in response to legislative incentives for residential flat buildings. The existing building marked the ongoing change in McMahons Point to a more intensely settled community. In Mr Oultram's view, the existing building has connections with historically important activities and processes but not to the point where it would merit individual heritage listing.
In Mr Moore's opinion, it is possible to argue that the existing building is an important element and exemplar in the significant fabric of the HCA, for its demonstration of the early 20th century process of urbanisation in North Sydney and McMahons Point, which underpins the character and heritage significance of the HCA. According to Mr Moore, the existing building meets all three guideline points for inclusion under this criterion, and this is emphasised by its intact condition.
"Historical associations
Criterion (b) of the heritage significance criteria: An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area)."
[12]
Impact of the proposal on the heritage significance of the existing building
According to Mr Moore, adding a new level to the existing building is not acceptable because it removes the roof fabric and changes the proportions of the existing building. In his opinion, none of the gestures of the proposal to the existing building, such as the differentiation of materials between the old and the new, in any way mitigate the damage caused by the proposal to the integrity of the existing building. Mr Moore took some comfort from the schedule prepared by Mr Oultram identifying fabric to be retained (Ex C) and a condition offered by the applicant to retain the nib walls in the ground floor apartments, but the schedule and the added condition did not, in his view, amount to meaningful mitigation.
Mr Moore accepted that the separation between the existing building and the new building in the location of the existing garages is acceptable, but noted that the design of the new building is not compatible with the existing building and it should be limited to two storeys as a reference to the existing building to the west of the site. In Mr Moore's opinion, the setbacks to Middle Street are acceptable and consistent with the form of development in the context of the site.
In Mr Oultram's opinion, the proposal is an acceptable alteration and addition to upgrade an existing neutral item within the HCA. He noted that the fire stair at the rear of the building is being demolished because it is crude in detail and blocks views from the units. In Mr Oultram's view, the treatment of the new fabric, to be clearly identified as an addition to the existing, is a conventional approach consistent with agreed heritage methodology, because there is then no confusion between the new fabric and the retained elements. According to Mr Oultram, the new building in the location of the existing garages is an appropriate response to the constraints of the site and three storeys is acceptable.
[13]
Consideration of the heritage issues
I prefer and adopt Mr Oultram's expert evidence. Mr Moore's views regarding the local heritage significance of the existing building substantially rest on the intactness of the fabric externally and internally, which is a result of the existing flat building remaining in a single ownership and being used for rental income. The existing building's substantial intactness does not elevate its architectural value. Mr Moore's opinion that this very modest building is potentially of local heritage significance under every criterion of the heritage assessment criteria, while testament to his enthusiasm to save this building from demolition, is evidence of his lack of objectivity in the assessment. Of course a modest building can be of local heritage significance, however, it is unlikely that this very modest building, which has been overlooked as worthy of listing as a local heritage item in two comprehensive heritage studies of the local government area, would be found to be worthy of local heritage significance under every criterion of the heritage assessment criteria.
I agree with Mr Oultram that the existing building is a modest example of an Inter War flat building that is reasonably intact in form, layout and detail. I agree with Mr Oultram that the existing building and the adjoining heritage item are not a pair, as they are architecturally disparate and their association is merely incidental. I agree with Mr Oultram that the architect Frederick Winn, and the developer and music teacher Louis Grist, are not persons of importance within the meaning of the heritage assessment criterion (b). I accept Mr Oultram's evidence that the heritage assessment criteria place emphasis on heritage items being important; or having strong or special associations with persons of importance; or having a high degree of creative or technical achievement. I am not satisfied, based on the evidence before me, that the existing building reaches these thresholds for local heritage listing under any of the heritage assessment criteria.
I am satisfied that the proposal is an acceptable adaptation of the existing building, as a neutral item within the HCA, and results in a development that is appropriately detailed and scaled within the immediate context of the site and the HCA.
[14]
The planning issues
The planning experts agreed on the following facts:
the existing landscaped area of the site is 16% and the proposed landscaped area is 29%;
the existing site coverage is 57% and the proposed site coverage is 61%.
According to Mr Youhanna in oral evidence, the proposal has an appropriate bulk and scale and the setbacks are appropriate in the context of the setbacks established by existing development on the three corners of the intersection of Parker and Middle Streets.
I accept the agreements of the planning experts and I am satisfied that the building envelope of the proposal is appropriate to the site and the context. The retention of the existing building and the requirement for the new building to be separated from the existing building has created a unique constraint for the development of the site and the proposal results in an appropriately scaled development which is consistent with the height of buildings development standard of 12m; the established and future character of the R4 High Density Residential zone; and the relevant objectives for site coverage and landscaped area within the NSDCP 2013.
Conclusion
Pursuant to cl 5.10(4) of the NSLEP 2013, I am satisfied that the proposal will not detrimentally impact on the collective heritage significance of the HCA because the existing building is being adapted and added to and the scale of the proposal is consistent with the high density residential character of the zone.
Pursuant to cl 28(2) of SEPP 65, I have considered the design verification statement (Ex D) and I am satisfied that the design quality of the proposal, when evaluated in accordance with the design quality principles (Sch 1 to SEPP 65), is an appropriate response to the opportunities and constraints of the site and is acceptable.
[15]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 103/19 for alterations and additions to an existing residential flat building at 3 Parker Street, McMahons Point, is approved, subject to the conditions of consent at Annexure A.
3. The exhibits, other than exhibits 1, A and B, are returned.
[16]
Amendments
03 December 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.17, the slip rule, the Court amends paragraph 58 of the judgment to insert the word "not" in the last sentence.
03 December 2020 - Replaced "is likely to" to "would" at [57].
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.
Decision last updated: 03 December 2020
Appeal upheld; Development Application No. 103/19 approved subject to conditions at Annexure A; exhibits (other than Exhibits 1, A and B) to be returned.
The maximum site coverage control for a residential flat building is 45% (Table B-1.6 of section 1.5.5 of NSDCP 2013). The objectives for the control are:
"1.5.5 Site Coverage
Objectives
O1 To ensure that development is balanced and in keeping with the optimum capacity of the site with no over development.
O2 To ensure that development promotes the existing or desired future character of the neighbourhood.
O3 To control site density.
O4 To limit the building footprint so as to ensure adequate provision is made for landscaped area and private open space."
The minimum landscaped area control is 40% and the maximum unbuilt upon area control is 15% (Table B-1.7 of section 1.5.6 of NSDCP 2013). The objectives for the landscaped area control are:
"1.5.6 Landscape Area
Objectives
O1 The specific objectives of the landscaped area controls are to:
(a) promote the character of the neighbourhood;
(b) provide useable private open space for the enjoyment of residents;
(c) provide a landscaped buffer between adjoining properties;
(d) maximise retention and absorption of surface drainage water on site;
(e) minimise obstruction to the underground flow of water;
(f) promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover;
(g) control site density;
(h) minimise site disturbance;
(i) contributes to streetscape and amenity;
(j) allows light to penetrate between buildings;
(k) encourage the provision of space for biodiversity conservation and ecological processes; and
(l) provide a buffer between bushland areas and development."
The Department responded on 15 October 2020 to an email inquiry in relation to the progress of the planning proposal directed to the Senior Planning Officer, North District, of the Department, by the lawyer acting for the applicant, as follows:
"As discussed over the phone the Department is still assessing North Sydney Council's request to finalise its comprehensive LEP amendment which includes the consideration of the draft heritage listing for the property at 3 Park Street, McMahons Point.
The Department will not be making a decision on this matter prior to the appeal for a development application on the site being heard, as it is still considering a range of options for the heritage listing as part of the plan making process for the wider LEP amendment."
There is no supporting peer review of the 2017 Heritage Assessment Report.
The existing building was not identified as a potential heritage item in the 1993 Heritage Review or the 2007 Heritage Review of the North Sydney municipality. The existing building was not identified as contributory to the heritage conservation area in the 2007 Heritage Review. Mr Oultram noted that the specific aim of the 2007 Heritage Review was to consider the ranking of buildings in conservation areas and whether their status (contributory, neutral or uncharacteristic) should be maintained, downgraded or upgraded. Mr Oultram carried out the assessment of the site for the 2007 Heritage Review and he considered that its maintenance as a neutral status was appropriate. The existing building is prominent when viewed from the street, so it is unlikely it was an omission that it was not identified by the earlier heritage study.
The two peer reviews of the assessment of heritage significance prepared on behalf of the applicant by John Oultram Heritage & Design (June 2020) and Urbis Heritage (4 May 2020) (Ex F) do not support the proposed local heritage listing of the existing building.
The ambivalence of the NSLPP regarding the proposed local heritage listing of the existing building; particularly as a "spot" heritage listing and not as part of a comprehensive review of potential items of heritage in the municipality.
There is no New South Wales State Heritage Inventory Form prepared and annexed to the planning proposal.
I do not accept the Council's submission that the planning proposal is certain because the Council has resolved to forward the planning proposal to the Department with a request that the LEP be made to give effect to the planning proposal. The ball is resting in the Department's court as the plan making authority and the forwarding of the planning proposal to the Department has not guaranteed the final content of the LEP amendment. The fact that the Council has merely annexed the 2017 Heritage Assessment Report to the planning proposal, without any further explanation and without obtaining a second opinion, or an updated report based on additional research including comparative studies, or prepare a NSW State Heritage Inventory Form; suggests that the Council now shares the NSLPP's ambivalence regarding the listing of the existing building on the site as a local heritage item.
For these reasons, I have not given any weight to the planning proposal, beyond the obligation under s 4.15(1)(a)(ii) of the EPA Act to consider the proposed instrument.
I have disregarded the Minister's delegate's refusal to make the IHO following Council's request to do so, because nothing turns on the Minister's decision not to make the IHO.
The existing building on the site was designed by the architect Frederick Winn in 1926, whose family lived in East Crescent Street. 12 East Crescent Street was designed by the architect ER Orchard in the Federation Academic Classical style and constructed in 1918. Both buildings were developed by Louis Grist (born Sidney Herchimer Grist Wartman in 1865), a music teacher and local developer (Ex 4, Addendum A).
According to Mr Oultram, Frederick Winn is not noted in Apperley et als. Identifying Australian Architecture as a recognised practitioner in any architectural style. In his view, the two residential flat buildings are not a pair and merely share this interesting historical fact of being built by the same developer speculatively for an income. Mr Oultram noted that Louis Grist's musical events were reported in newspaper articles at the time, but this does not elevate him to be a person of historical note and the association of the existing building with Grist and Winn does is not worthy of a finding of local heritage significance under this criterion.
According to Mr Moore, the two buildings are stylistically similar and have a close relationship. Mr Moore disagrees that Grist is not a person of note. He was a local small property developer and he sponsored the design and construction of one, and arguable two, buildings of architectural merit by two architects of established competence and success. That Winn's work is not well known may simply be the result of an absence of inquiry.
"Aesthetic significance
Criterion (c) of the heritage significance criteria: An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area)."
According to Mr Oultram, the existing building is a modest example of an Inter War flat building that is reasonably intact in form, layout and detail. The building is designed in no particular architectural style, though it has some details of the Inter War Olde English style in its window treatments. The two garages to the west of the existing flat building are of a different style and are utilitarian buildings of little merit.
According to Mr Moore, the existing building is an aesthetically distinctive and it exemplifies a particular taste, style or technology in its architectural design. He noted that the exterior and interior fabric of the building is highly intact, and the roof is an integral part of the form of the building. Mr Moore identified the integrity of the existing building.
"Social significance
Criterion (d) of the heritage assessment criteria: An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons."
According to Mr Oultram, the existing building has had many occupants and owners but has no special associations with any particular community group.
According to Mr Moore, no investigation has been carried out to ascertain if the building has social value, and the most obvious indicator of such value would be the lodgement of objections to redevelopment.
"Technical significance
Criterion (e) of the heritage assessment criteria: An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area)."
According to Mr Oultram, there is no evidence of previous buildings on the site and the place has no archaeological significance. The existing building is of no technical significance.
According to Mr Moore, the existing building is an important benchmark or reference site and type in the area because of its distinctive qualities of design and state of intactness.
"Rarity
Criterion (f) of the heritage assessment criteria: An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area)."
In Mr Oultram's opinion, this building type is not rare in the wider area and apartment buildings of this scale and detail are common in McMahons Point. Mr Oultram included photographs of examples of small scale Inter War apartments in the locality (Ex F, p 21).
According to Mr Moore, the existing building is rare, uncommon and endangered in its context as an exceptional example of design, type and purpose; exceptional for the qualities of its design and for its intactness and integrity, which underscore its heritage values. In his opinion, there are no similar apartment buildings in the locality.
"Representativeness
Criterion (g) of the heritage assessment criteria: An item is important in demonstrating the principal characteristics of a class of NSW's
• cultural or natural places; or
• cultural or natural environments.
(or a class of the local area's
• cultural or natural places; or
• cultural or natural environments.)"
In Mr Moore's opinion, the existing building meets all seven guideline points for inclusion as significant against this criterion. It is a particularly fine and distinctive example of its type, being the smaller residential flat building and is of unusual integrity.