David Fox v North Sydney Council

The site and its context

1. The site, at 1 Henry Lawson Avenue, McMahons Point, is legally described as Lot 1 in DP 915829. The site is on the southern side of Henry Lawson Avenue and immediately adjoins Henry Lawson Reserve to the east and west and Sydney Harbour to the south. The site has a unique harbour front location in Lavender Bay, with dramatic views of the Sydney Harbour Bridge, Sydney Harbour and the Opera House.
2. The site has an area of 365.5sqm, with a frontage of 15.24m to Henry Lawson Avenue.
3. The site contains two existing buildings, the western building comprising a two storey rectangular, low gabled two storey building and the eastern building, comprising a small two storey weatherboard building.
4. The site contains two slipways, the western slipway and the eastern slipway. The western slipway consists of a concrete slope with iron rails and a timber boat cradle. The concrete apron and rails extend from the site 20m into the harbour. The eastern slipway is a tidal slipway extending front the harbour into the site and under the eastern building on the site. A stone seawall lines the sides of the dock and joins the Henry Lawson Reserve sea wall.
5. Henry Lawson Reserve is an open grassed area with sandstone sea wall and steps from the harbour. A large Morton Bay Fig tree is located to the immediate west of the site within the Reserve, which partly overhangs the western portion of the site.

Resident evidence

1. Four local residents provided evidence at the commencement of the hearing on site. Their concerns in relation to the proposal can be summarised as:

• the proposal is seeking to construct a dwelling on a site that has been identified for compulsory acquisition for the purpose of making the foreshore reserve continuous and it is their preference that the site forms part of the foreshore reserve; and
• the proposal will obstruct views of the Sydney Harbour Bridge and the Opera House from the public domain.

Planning Framework

1. The relevant provisions of the SREP (Sydney Harbour Catchment) 2005 apply to the proposal.
2. The site is zoned RE1 Public Recreation under North Sydney Local Environment Plan 2013 (LEP 2013) and the proposal is prohibited in the zone. The objectives of the RE1 zone are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. • To ensure sufficient public recreation areas are available for the benefit and use of residents of, and visitors to, North Sydney.
3. The zone objectives are subject to the other provisions of the LEP, at sub-cl 2.3(4).
4. A small parcel of the site over the eastern slipway is unzoned land. Clause 2.4 of LEP 2013 Unzoned land, includes the following: (1) Development may be carried out on unzoned land only with development consent. (2) In deciding whether to grant development consent, the consent authority: (a) must consider whether the development will impact on adjoining zoned land and, if so, consider the objectives for development in the zones of the adjoining land, and (b) must be satisfied that the development is appropriate and is compatible with permissible land uses in any such adjoining land.
5. The site is identified as a heritage item (I0453) under Part 1 of Schedule 5 of LEP 2013 and described as 'Slipway and site of former Holmes' residence'. The relevant objectives of the heritage conservation clause at 5.10 of LEP 2013 are: (a) to conserve the environmental heritage of North Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites,
6. The consent authority may require the submission of a heritage conservation management plan (CMP) before granting consent, at sub-cl 5.10(6) of LEP 2013. Heritage conservation management plan is defined in the dictionary of LEP 2013 as: heritage conservation management plan means a document prepared in accordance with guidelines prepared by the Public Service agency responsible to the Minister administering the Heritage Act 1977 that documents the heritage significance of an item, place or heritage conservation area and identifies conservation policies and management mechanisms that are appropriate to enable that significance to be retained.
7. The conservation incentive clause at sub-cl, at 5.10(10) of LEP 2013, is as follows: (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
8. The meaning of 'building' in the dictionary of LEP 2013 is the same as the definition of in the EPA Act, at s 4, which is: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.
9. Clause 6.7 of LEP 2013 applies to land in the RE1 zone. Development consent must not be granted for development on such land unless the consent authority has considered the following, a sub-cl (2): (a) the need for the proposed development on the land, (b) whether the proposed development is likely to have a detrimental impact on the existing or likely future use of the land, (c) whether the height and bulk of any proposed building or structure has regard to the existing vegetation and topography, (f) in the case of land in Zone RE1 Public Recreation, whether the proposed development will significantly diminish public access to, and use of, that public recreation area.
10. At sub-cl 6.7(3) of LEP 2013, development consent must not be granted for development on land in the RE1 zone unless the consent authority is satisfied of the following: (a) the proposed development is consistent with the objectives of the zone of any adjacent land, and (c) the proposed development is consistent with the most restrictive development standards applying to any adjacent land in the following zones in relation to the height of buildings, floor space ratios and setbacks:
11. The land adjacent to the site is also zoned RE1 under LEP 2013.
12. The site is identified for future acquisition for open space (Land Reservation Acquisition Map Sheet LRA_002 LEP 2013) and the acquiring authority is the Minister Corporations, pursuant to cl 5.1(2) of LEP 2013. The parties agreed that the site has been identified for acquisition for more than 60 years. The objective of cl 5.1A of LEP 2013 is to limit development on certain land to be acquired for a public purpose, at sub-cl (1) and development consent must not be granted for development on the site other than environmental facilities and recreation areas, at sub-cl (3); subject to, Mr Hemmings submits, the other provisions of LEP 2013, namely sub-cl 5.10(10).
13. North Sydney Development Control Plan 2013 (DCP 2013) includes site specific controls at Part C 9.8.8 as follows: 1 Henry Lawson Avenue Diversity P1 To be purchased by the State government to complete the regional public open space network created along the entire southern foreshore of McMahons and Blues Points. P2 The site is redeveloped with cognisance of the former use of the site. P3 Until the site is purchased for public use, the site may continue to be used as a boat building or repair facility with ancillary residential accommodation. No more than 50% of the gross floor area may be used for residential purposes and must be located above the ground floor level. Form, massing and scale P4 Heritage listed slipways and sea walls to be retained. P5 A two to three storey form. Setbacks P6 Front: 1m (minimum). P7 Rear: (to Sydney Harbour): 5.8m minimum. P8 Side: Non-residential component: 0m. Residential component: 1.5m minimum. Colours and materials P9 Development uses muted colours and non-reflective materials, such as brick and timber to ensure that the scenic and environmental qualities are preserved.

Expert Evidence

1. Expert evidence was provided by Ms Kerime Danis (heritage), Mr Stuart Harding (planning) and Dr Iain Stuart (marine archaeology) on behalf of the Council and Mr Robert Staas (heritage), Ms Jennie Buchanan (planning) and Mr Chris Lewczac (marine archaeology) on behalf of the applicant.

Heritage significance of the item

1. 'Heritage significance' is defined by the dictionary of LEP 2013 as 'heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.'
2. The NSW Heritage Inventory statement of significance for the item is as follows (exhibit C, tab A): House and slipway associated with prominent North Shore boatbuilding family, enhanced by associations with 'Shark Arm Murder' of the 1930's [sic] which was a prominent and unresolved homicide involving a Holmes family member. Last active small slipway business in this area, once home to many such operations. See also under Blues Point Waterfront Group NSW0677.
3. The heritage experts agreed that the reference in the statement of significance to the 'Shark Arm Murder' is an error of fact. According to Mr Staas, the remainder of the statement of significance is an accurate summary of the heritage significance of the site.
4. Mr Staas' evidence (exhibit C) in relation to the historical development of the site is that it comprised part of an allotment within the Blues Point Estate, which was purchased by Michael McMahon in 1884 and later subdivided and the allotment which included the site was sold to Alexander MacCormick in 1895. Alexander MacCormick built a two storey, four room house on the site called Redcliffe. Redcliffe is described as being of weatherboard construction with an iron roof. The house was leased to successive tenants, a number of whom had occupations or businesses associated with boating. A 1930s plan shows the footprint of the house with a boat slip constructed on the eastern side of the site and Mr Lewczac notes that the slipways are likely to have been built earlier than the 1930s. The property was sold to Sydney Ferries Limited in 1946 and to William Lloyd Holmes in 1969. The Holmes' family had a long connection with the district and boatbuilding and the site was operated as a boatshed and boat repair service from the ground floor with a residence above. According to Mr Staas, Redcliffe was demolished and replaced with the existing buildings in c.1970. The property was sold in 1985 and again in 2009 to the present owner.
5. Dr Stuart's statement of evidence (exhibit 4) includes some further details on the history of ownership of the allotment bought by McMahon in 1885. According to Dr Stuart, the lack of research on the people and events that actually occurred on the site makes it difficult to fully assess the significance of the site under the NSW heritage assessment criteria ('Assessing heritage significance' NSW Heritage Office exhibit 3, tab 10). Dr Stuart notes that an obvious historical theme in relation to the item is boatbuilding and maintenance in Sydney Harbour.
6. The heritage experts agreed on the following and I accept their agreement:

• the eastern building has no heritage value;
• the principal area of significance in physical terms is the fabric of the remaining slipways; and
• appropriate interpretation of the site will adequately deal with the identified historic and associative heritage values of the place.

1. According to Mr Staas, the fabric of the buildings on the site is of no heritage significance and the principal significance of the site is the remaining physical evidence of its historic use for boat maintenance, which is dealt with by the maritime archaeologists. In Mr Staas' view, any surviving structures from original or early buildings, concealed under the existing buildings, are of little intrinsic heritage significance. In Ms Danis' opinion, some of the components of the existing timber framing remaining on site may have come from the original 1890s building and may be of value. There may also be concealed fabric from the original chimney remaining on site.
2. I prefer and accept Mr Staas' evidence in relation to the heritage significance of the existing western building on the site. As Redcliffe has been comprehensively demolished, any salvaged and reused odd timber noggings cannot bestow the remaining contemporary fabric with any value associated with the original dwelling on the site. One could not argue for the retention of the existing fabric of the buildings on the basis of there being some minor, salvaged materials dating from the 1890s incorporated into the structure, as the value of that original fabric does not warrant such preciousness. Surviving masonry footings are important insofar as they provide evidence of the location and possibly the construction of the original dwelling and once recorded, they too probably have little intrinsic value, although they may contribute to the interpretation of the place. I accept that the contemporary, modest buildings on the site are of no heritage value.
3. The marine archaeologists agreed on the following:

• The eastern slipway is not in its original condition and some original fabric appears to have been concealed by recent building work;
• The winch associated with the eastern slipway shown in a photograph taken in 2014 by a Council officer is no longer present in the location shown in the photograph;
• Part of the eastern slipway is to be retained by the proposal; and
• The northern part of the eastern slipway will be impacted by the proposal as the existing eastern slipway extends beneath the proposed ground floor.

1. The CMP prepared for the site by Mr Lewczak is limited to the slipways and identified maritime archaeology potential that exists in the water immediately in front of the site. Dr Stuart is critical of the approach taken by the applicant of "splitting the heritage item into very small component parts" as the CMP, along with the lack of comparative analysis and an inadequate site history that fails to place the history of the site within the wider context of boat building in the locality, provides an inadequate basis for making decisions about the level of intervention, future management and heritage interpretation, in his view.
2. The assessment of significance of the item has been divided into two components, the fabric of the slipways and associated items, which is dealt with by the CMP (exhibit D) and the fabric of the contemporary buildings, which is dealt with by the Statement of Heritage Impact (exhibit C). This division corresponds to the description of the item in the schedule of LEP 2013, which I accept is a logical response by the applicant.
3. The CMP includes individual statements of significance for the seawall, the western and eastern slipway cradles and the remains of the winches. The statements of significance in the CMP for the seawall, the western and eastern slipway cradles and the remains of the winches are as follows: The seawall was built as part of the construction of the slipways on the property and is a common construction method at the time. The seawall itself is not considered to be a heritage item, however, they are considered to be a continuation of the aesthetic characteristics of the local area. For this reason, and only this reason, the sandstone seawall present on the site is considered to be of local significance. The remains of the eastern and western cradles present on the property relate to the maritime activities that took place on the property. The larger cradle on the western slipway was designed to lift motor vessels and was likely installed with the double purchase crab which during upgrades of the slipways when taken over by Sydney Ferries Limited in 1951 or the Holmes family in 1969. The use of the cradles in maritime industries in the 19th and 20th centuries was not uncommon and the types of cradles present on the site are not considered to be uncommon, rare or unique. The history of these items are as elements of the site but are not considered to be heritage items on their own. For this reason the eastern and western cradles have been assessed as not having heritage significance. The remains of the electric double purchase crab winch, the snubbing winch and SKP wheel present on the property relate to the maritime activities that took place on the property. The electric double purchase crab winch located at the northern end of the western slipway is likely associated with the upgrade of the slipways when taken over by Sydney Ferries Limited in 1951 or the Holmes family in 1969. The snubbing winch and the SKP wheel are likely to have been used on the site, however, their exact locating and use is unknown as they are being stored in a corner of the site. The uses [sic] of winches in maritime industries in the 19th and 20th centuries are not uncommon and the types of winches that are present on the site are not considered to be uncommon, rare or unique. The history of these items are elements of the site but are not considered to be heritage items on their own. For this reason the electric double purchase crab winch, the snubbing winch and SKP wheel have not been assessed as having heritage significance.

Permissibility

1. The application is made pursuant to sub-cl 5.10(10) of LEP 2013 ("the conservation incentive clause") to overcome the prohibition of the proposal in the RE1 zone. There are five pre-conditions that must each be satisfied in order to enliven the discretion, as follows: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
2. Conservation is not defined in LEP 2013. The Australia ICOMOS Charter for Places of Cultural Significance (the Burra Charter, exhibit 3, tab 1) defines conservation as, 'Conservation means all the processes of looking after a place so as to retain its cultural significance.'
3. The applicant submits that the proposal includes 'repairing' the fabric identified as being of heritage significance on the site, being the slipways and the seawalls. Repair is distinguished from maintenance by the Burra Charter, and may involve either restoration or reconstruction.
4. Facilitating conservation requires a higher threshold than just ensuring the proposal does not adversely impact on the identified heritage significance of an item. In order to facilitate the conservation of the heritage item, the proposal must assist in retaining its cultural significance, such as by revealing and interpreting the heritage significance of the item.
5. For conservation works, schedules of repairs are commonly prepared for each element on the basis of a fabric survey and condition report in a CMP. An archaeological watching brief may also be proposed or required. Adequate documentation allows the specific works and replacement materials required to repair the item to be identified, prioritised and costed. It is insufficient to simply articulate the policies and not comprehensively tie them to actions, priorities and timing. The proposal does not include a schedule of works or documentation of any proposed maintenance and repair works showing how the extant valuable fabric on the site is to be conserved. The documentation included in the proposal fails to demonstrate how the conservation of the heritage item is facilitated by the proposal, as it does not commit the proposal to any conservation works. For this reason, I am not satisfied that the proposal fulfils either pre-conditions (a) or (c) of the heritage incentive clause.
6. The commercial component of the proposal on the ground floor retains the existing southern end of the eastern slipway and the western slipway. The proposed finished floor level (FFL) is at RL1.39. The existing contemporary concrete slab at the northern end of the eastern slipway is at RL1.95 (exhibit 12). The sandstone retaining walls are retained, some new walls are proposed (western side of the work area) and a glass fence is proposed along the top of the sandstone walls on the eastern and western boundaries. The lift extends to the ground floor and Mr Lewczac acknowledged that the base of the lift and plumbing to wet areas will require excavation that will destroy remaining fabric of the eastern slipway beneath these areas. The dwelling overhangs the slipways, with a setback from the harbour front boundary of 5.8m and the two terraces extend into this setback.
7. I accept Dr Stuart's opinion that the interface between the proposal and the remaining fabric of the northern end of the eastern slipway covered by the concrete slab does not achieve the conservation of the item, as the proposal would destroy a portion of the eastern slipway, resulting in the removal of fabric identified by the CMP as being of heritage value. For this reason, I am not satisfied that the proposal will not adversely affect the heritage significance of the heritage item and the proposal fails to satisfy pre-condition (d) of the heritage incentive clause.
8. The proposed new dwelling on the site does not put the conservation of the heritage significance of the item as the focus, but is instead indifferent to both the extant identified valuable fabric on the site and the identified heritage significance of the item. It is not the case that the identified significant fabric on the site has inspired the design solution and nor is the proposed building inserted in a way that reveals and interprets the slipways or the historic use of the site. The proposal diminishes the setting of the slipways by overhanging a significant portion of the slipways and obstructing views of the slipways from the public domain. For these reasons, I am not satisfied that the proposal assists in retaining the cultural significance of the heritage item and nor am I satisfied that the proposal would not have an adverse impact on the heritage significance of the heritage item. The proposal fails to satisfy pre-conditions (a) or (d) of the heritage incentive clause.

Conclusion

1. The purpose of the heritage incentive clause (part of the mandatory heritage conservation provision in the Standard Instrument - Principal Local Environment Plan) is to firstly widen the uses that can be considered for a heritage item so as to find a compatible and viable future use that would otherwise be prohibited by the zoning table and secondly to facilitate the conservation of the heritage item, using measures that seek to retain the cultural significance of the item, which may include financing the works required to achieve its conservation. An application made pursuant to the heritage incentive clause must go beyond minimising its impact on the identified heritage significance of the item to distinguish and demonstrate how the conservation of the item is facilitated by the proposal. Clearly the heritage incentive clause puts the extant valuable fabric on the site as a central focus, but of course is not limited to fabric and the proposal should also achieve the retention of the cultural significance of the heritage item, in order to facilitate its conservation. The level of change appropriate for a heritage item will be related to its identified heritage significance.
2. I am not satisfied that the proposal facilitates the conservation of the heritage item, nor am I satisfied that the proposal would not adversely affect the heritage significance of the heritage item. The documentation included in the proposal fails to demonstrate how the conservation of the heritage item is achieved by the proposal, as it does not commit the proposal to any conservation works. The proposal would destroy a portion of the remaining fabric of the northern end of the eastern slipway covered by the concrete slab and result in the removal of fabric identified by the CMP as being of heritage value.

No power to grant consent

1. Development consent must be refused as the pre-conditions to the exercise of power under sub-cl 5.10(10) of LEP 2013 are not satisfied and so the proposal is not permissible in the RE1 zone.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused. 3. The exhibits, other than exhibits 1 and A, are returned.

Susan O'Neill Commissioner of the Court

Amendments 31 August 2016 - Correction to represenation 11 October 2016 - Wording correction to para 39 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: 11 October 2016