Fox v North Sydney Council [2020] NSWLEC 1056 | Case summary

Fox v North Sydney Council [2020] NSWLEC 1056 | Case summary | Zoe

[3]

Statutory framework

Key statutory provisions applying to the proposal are introduced here and addressed relevantly in the consideration of issues.
Certain provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ('SREP'), a deemed State Environmental Planning Policy, apply to the proposal, along with the associated Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SREPDCP).
The site is zoned for the most part RE1 Public Recreation under North Sydney Local Environmental Plan 2013 ('LEP').
The proposal would be prohibited under the RE1 zoning (cl 2.3(1) and LEP land use tables). However, cl 2.3(4) provides that "this clause is subject to the other provisions of" the LEP, including a heritage incentives clause at cl 5.10(10) which is considered below.
An area of land over the eastern slipway comprises unzoned land. In regard to unzoned land, cl 2.4 of LEP provides as follows: (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. It is my understanding that there are no particular factors in dispute in regard to the unzoned land that do not apply to the major (zoned) portion of the site.
The site is identified for future acquisition and is indicated in the LEP's Land Reservation Acquisition Map as Regional Open Space (RE1) with, under cl 5.1 of the LEP, and as I understand it, the Planning Minister as the acquiring authority.
The site is identified as a heritage item (I0453) of local significance under Schedule 5 of the LEP and described as "Slipway and site of former Holmes' residence" The relevant objectives of the LEP's heritage conservation provisions at cl 5.10 of the LEP 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, …
The proposal relies on a conservation incentive provision at cl 5.10(10) of the LEP, which was a matter of considerable attention in the hearing.
The site is also located within the McMahons Point South Conservation Area under Part 2 of Schedule 5 of the LEP.
There are a series of further provisions relating to development on land zone RE1 which apply to the proposal, including in regard to jurisdiction.
Among of course numerous other provisions, North Sydney Development Control Plan 2013 ('DCP') includes site specific provisions at Part C, clause 9.8.8.

[9]

Heritage aspects of cl 5.10(10)

The heritage experts are generally very supportive of the application intentions and their evidence would support the position that the Court should be satisfied in regard to the tests applied at cl 5.10(10) of the LEP. There are significant provisos involved. A series of "enforceable consent conditions" would need to be implemented (Ex 4, par 16). A quite long list of actions, document preparation requirements and/or allocations of responsibility prior to and during the construction stages of the project are nominated for inclusion as conditions of consent. Excerpts from the recommendations are provided below (Ex 4, par 20): "• Results from a program of Phase 2 (contamination) testing and any resulting adjustments to the (Conservation Management Plan) and /or works program to incorporate any requirement for remediation … • Heritage specifications and a detailed plan showing the location and significance of heritage fabric and movable heritage … • Salvage and temporary protection strategy … • Heritage Interpretation Strategy/Plan … • Long-Term Maintenance Plan … • An archival recording of the property…. • The following tasks shall be completed prior to the commencement of work and issue of any Construction Certificate: ○ An archival recording of the property … ○ A heritage consultant and an archaeologist, who is suitably qualified and experienced in heritage conservation and maritime and industrial archaeology, shall be engaged to oversee the implementation of the approved Schedule of Conservation Works, to ensure timely maintenance and repair of the heritage item, based on regular inspection and technically sound and appropriate construction methods. ○ Any surviving original elements should be recorded during the demolition works, and determination regarding the retention of such elements in situ, or for reuse as an interpretive element, or discarding off the site, should be be made by the appointed heritage consultant once such elements are exposed and inspected. ○ Any required excavation permit or 'exception' to that requirement under Section 139 of the Heritage Act, 1977, shall be in place prior to commencement of demolition or excavation works. ○ Should any previously undetected or unexpected Aboriginal Object/s, as defined in the National Parks and Wildlife Act 1974, be uncovered during excavation works, all works in the vicinity of the object/s must stop and advice must be sought from a suitably qualified and experienced archaeologist • Consent for works below the MHWM must be obtained, prior to issue of any Construction Certificate. • The proposed privacy screen (charred timber sleepers in steel framing) to the northern end of the eastern boundary shall be placed exactly as detailed in the elevation drawings and photomontages in the form of permeable screen with voids in order to avoid a blank solid wall towards the reserve. • The heritage consultant and an archaeologist shall monitor works during demolition and construction and must have responsibility and authority to prioritise conservation works following the demolition of the existing structures and prior to the commencement of any works for the new building. • Statements of completion and compliance with the implementation of approved conservation works shall be submitted to the consent authority or delegate by the appointed heritage consultant and archaeologist prior to the issue of any Occupation Certificate."
Mr Hall SC drew out points of legal interpretation to counter this evidence. I understood there to be three. First, he argued that the provisions at cl 5.10(10) are concerned with whether a consent authority is satisfied "now", and are not capable of being deferred to a latter point. He argues it is evident that the heritage experts agree that the information before the Court now is insufficient (Respondent's Outline of Closing Submissions, Ex 15, pars 3-4): "3 The experts agree that the information currently before the Court is insufficient and that "detailed heritage specifications [and] schedules of conservation works" must be provided and accepted, and that it is that later-to-be-agreed schedule that, if carried out, will satisfy: Joint Report (Ex 4), p 12. They do not suggest that the existing CMP (Conservation Management Plan) is sufficient. On that their conclusion is that "the documentation in the application before the Court does not provide sufficient detail to implement desirable conservation works to the site" (Ex 4 p 9). Therefore neither paragraph (a) nor (b) of 5.10(10) is presently satisfied. 4. The experts' proposed solution of an 'iterative' approach controlled by conditions does not address this legal obstacle, and is fraught with practical difficulty. What they propose is not merely a provision to deal with contingencies that may arise once the work begins. It is a complete deferral of the identification of the works. Even the identity of the heritage consultant and archaeologist who will prepare the schedule of works is left for a later decision. The conditions drafted by the parties demonstrate just how much is left to be done. The real or operative CMP is yet to be drafted and therefore cannot be approved on this application. The examples given by Mr Mackay in oral evidence were of cases where a specific plan is approved, but with some flexibility to adjust to deal with what is learnt later. In contrast this proposal is nothing more than a plan to make a plan. The Court does not know what works (if any) will be done under the CMP, but is asked to be satisfied now that clause 5.10(10) is met."
Second, Mr Hall raised the significance of intended works associated with the overall heritage conservation aspects of the project, but which are not part of the application. That is, the works below MHWM, which would be subject to a separate application and consent (Ex 15 [5]): "…It is accepted that a condition can be imposed requiring the present applicant to file such an application, but the Court cannot know whether it will be granted. If consent is obtained, it may be with modifications or amendments which affect the heritage works in ways that cannot be anticipated. If approved, it may never be built. Sub-paragraph (c) of clause 5.10(10) (as well as (a) and (b)) cannot be met because the consent will not and cannot require that all the works proposed by the heritage management document will be carried out: all those below the MHWM remain contingent on another consent and on the will of the applicant."
Third, Mr Hall raised specific concerns in regard to land contamination uncertainties (Ex 15, par 7): "…If the Phase 2 contamination investigation throws up problems inconsistent with the (to be developed) schedule of conservation works then those works will not be able to be carried out."
Mr Lancaster SC emphasised and generally relied on the opinions of the heritage experts in his submissions on the above points. He also argued it was a wrong interpretation of cl 5.10(10) to suggest it inappropriate to include additional requirements in conditions of consent (over and above that provided in the application and the proposed Conservation Management Plan (CMP). He suggested Council sought to "glorify form over substance" in its submissions.

[10]

Consideration

In cl 5.10(10)(a), I only need to satisfied that conservation "is facilitated" by the granting of consent. The Macquarie Dictionary defines the term as follows [1] : verb (t) (facilitated, facilitating) 1. to make easier or less difficult; help forward (an action, a process, etc.) In my view, granting consent would make easier and help forward the delivery of the heritage benefits outlined in the application. This does not require confrontation with the question of whether delivery would actually occur. I do not see any legal difficulty in the Applicant's submissions on this particular subclause.
The next three provisions are more complex. Clause 5.10(10)(b) is concerned with the alignment of the development to a heritage management document approved by the consent authority. Clause 5.10(10)(c) is concerned with ensuring the carrying out of conservation works included in the document. Both of these clauses are in a sense procedural. Clause 5.10(10)(d) is then concerned with the evaluation of effect (or impact) on the heritage significance of the (existing) heritage item.
Mr Hall's submissions in regard to cl 5.10(10)(b) and (c) acknowledge that the experts merely say that the proposal "could" meet the cl 5.10(10) tests if the listed additional requirements are met (Ex 4, par 16). His point, among others, was that it follows that there should be certain doubts on the delivery of the claimed benefits, which should temper the "satisfaction" of a consent authority.
I appreciate the point that is made. However, the purpose of cl 5.10(10) is of opening up opportunity for flexibility in regard to other provisions of the LEP, with the general ambition of bringing about some kind of actions towards the delivery of heritage conservation benefits. It seems to me cl 5.10(10) can be interpreted to fall into "the category of remedial or beneficial provisions which should be construed to afford 'the fullest relief which the fair meaning of its language will allow" as referenced by McColl JA in DEM (Australia) Pty Limited v Pittwater Council (2004) 136 LGERA 187; [2004] NSWCA 434 at [47]. It would follow that the interpretation and use of cl 5.10(10) "be approached in a facultative fashion rather than in a restrictive" (as adjudicated by Moore J in Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 at [79]). There is more consideration of this below but for me the "fair meaning" of the provisions, in particular through the reference to the auxiliary verb "may" in the phrase "may grant consent" at cl 5.10(10), in regard to remedial or beneficial intentions, are limited to opening the gate for a more or less regular merits assessment of the application.
In regard to cl 5.10(10)(b) and issues relating to documentation, the heritage experts were not troubled with the inclusion of additional material (at [28]), often the particulars of which are currently unresolved, as a supplement to the CMP. What I take from this shared evidence is that the principles are clear enough to the experts, and there is a good degree of confidence about the delivery of final documentation.
Included in this shared confidence and of relevance to both cl 5.10(10)(b) (- ie documentation), and cl 5.10(10)(c) (- ie works), there was also a shared view that the procedural concerns in regard to contamination (a part explanation for the incompleteness of the documentation) were in part unavoidable (the site's heritage status meant that Phase 2 contamination investigations could not be undertaken until certain approvals were secured). In coming to their conclusions, the heritage experts believed any contamination remediation works more likely than not to be other than major. The experts considered the likelihood of contamination type for the historical use and drew conclusions on implications in regard to heritage conservation.
In passing, but not insignificantly as it relates to jurisdiction, I agree with Mr Lancaster that: (1) cl 7(1)(a) of State Environmental Planning Policy No 55 - Remediation of Land has been satisfied as there has been consideration of contamination; (2) cl 7(1)(b) does not arise as there is no finding that the land is contaminated; and (3) cl 7(1)(c) is covered by way of agreed conditions.
Further, in regard to cl 5.10(10)(c) (ie works), the question of works below MHWM (central to the overall proposal and CMP but which are not part of the current application as there is a different consent process) raises separate considerations. There are two particular points important to me here. First is that there is again agreed evidence from the experts which suggest they are confident that approval would follow for the element of the work below MHWM given their practical experience in the field and the various relational requirements itemised above at [28]. Second is the particular necessity for the approval of development below MHWM to be secured to trigger the DA works (proposed Condition A2 requires evidence of approval from RMS for works below MHWM prior to the issue of a construction certificate (CC)). This second reason requires further explanation. When cl 5.10(10)(c) establishes the requirement for a consent authority to be satisfied that: "the consent … would require that all necessary conservation work identified in the heritage management document is carried out"; it is not requiring satisfaction that the construction of the work would be physical carried out. It is merely saying, in my opinion, that if development occurs then all required works would be physically carried out. Like any similar consent condition, proposed Condition A2 is establishing a prerequisite that something occur before the CC is issued and any works proceed.
The evidence in regard to cl 5.10(10)(d) points to what I see as the most contentious aspect of the proposal which is dealt with in the merits examination below. The heritage experts agree that "the proposed new building would have an acceptable impact in relation to heritage considerations because of the balance that the proposal before the Court strikes between conservation of the heritage item and reactivation of its working status" (Ex 4, par 13). Of direct concern to cl 5.10(10)(d), the experts are concerned about whether the development would adversely affect the heritage significance of the existing heritage item, and suggest an appropriate "balance" would be achieved provided there is reactivation of the prior working status. There is thus a further proviso on the part of the heritage experts that reactivation of working status occur.
There are uncertainties in regard to each of the cl 5.10(10)(b), (c) and (d) provisions, as made clear by Mr Hall. However, I have evidence from experts, jointly, that suggest I should be satisfied. First that the heritage conservation management documentation can be finalised, once the baseline approval is secured, by way of a supplement to the CMP, and that the principles of this supplement are clear. Second that the required conservation works will follow, with supervision in accordance with agreed quite detailed conditions. Third that an appropriate balance can be achieved with regard to future work and the existing heritage item. While I note the risks raised by Mr Hall, it seems to me respectfully that his view is too strict given what I am interpreting as the remedial and beneficial intentions behind the clause. The submissions of the experts in regard to cl 5.10(10)(a)-(d), and the facultative presumption which goes with cl 5.10(10) tips the balance towards the application.

[11]

Amenity aspect of cl 5.10(10)

As indicated at [25], under cl 5.10(10)(e), a consent authority needs to, in a sense, turn away from heritage factors and be satisfied of a further factor before the incentivising provisions of the clause are triggered. This is that "the proposed development would not have any significant adverse effect on the amenity of the surrounding area".
The expert report of the heritage specialists indicated agreement from these experts that this subclause was also satisfied (Ex, par 16): "…because of the location of the development, especially the cliff to the north, the proposal will not give rise to substantive adverse amenity impacts - the fact that it obstructs currently unavailable foreshore access is not an 'amenity' impact."
There was disagreement on the part of the planning experts. Mr Chambers agreed with the heritage experts and added to this by drawing a comparative analysis before and after, referencing the dilapidated state of the existing structures on site. He believed the effect was positive or neutral in amenity terms. Mr Harding indicated: "In summary, my concerns relate to the interface of the proposed building and compound with the surrounding public domain. The building, as a result of its size and scale, will have a significant adverse presence impact within the public open space."
There can be little doubt that the proposal would not have a significant adverse effect on the amenity of the residential area north of the cliff. The question of whether it would have an adverse effect on the amenity of the surrounding parkland is not so clear. I recognise Mr Harding's point that the building massing, especially from the east would be a negative factor, but there are negative amenity factors as a consequence of the existing building configuration on the site, as indicated by Mr Chambers. On balance, and mindful of: (1) the previously indicated facultative presumption, (2) a question as to whether the potential impacts on use of the reserve do properly link to the term "amenity" and Lloyd J's findings in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, that "(the) concept of "amenity" is wide and flexible" (at [53]), I also find favourably in regard to cl 5.10(10)(e).

[16]

Consideration

The legal argument here is concerned with the extent of leverage over other provisions which might reasonably be thought as generated by a favourable determination in regard to cl 5.10(10); having regard to the natural tension which might be expected in regard to other provisions in the plan associated with zoning.
Mr Hall argued cl 2.3(4) did not negate the need to have regard to zone objectives. But he argued that the situation was clearer in regard to cl 6.7(2). Mr Hall cited cl 6.7(2)(b) as a "mandatory consideration" ("whether the proposed development is likely to have a detrimental impact on… the likely future use of the land") and that there was no reference to the clause being subject to the other provisions of the LEP (Ex 15, par 18). Mr Lancaster argued that a development that is permitted under cl 5.10(10) ought not be treated as prohibited or otherwise impermissible or inappropriate because of an inconsistency with the zone objectives and land use table that apply to the land. Mr Lancaster also suggested that Council's position: (Ex O, par 10): "…ignores the plain words and intended effect of the heritage conservation incentives clause, which expressly provides that a development that satisfies clause 5.10(10)(a)-(e) may be approved "even though" the development would not otherwise be allowed by the LEP"
Both parties called on Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276 to assist their argument. Among Commissioner Brown's findings was (at [56]): "Clause 2.2(3) of LEP 2014 provides that the Court must "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". Given that the proposed use is ordinarily prohibited in the SP2 zone, it could reasonably be expected that there would be some difficulty in achieving a positive relationship with the zone objectives. This being the case, then having had "regard" to the zone objectives, I find that cl 2.3(2) provides no barrier to the approval of the application."
I find similarly in regard to the zone objectives in this case. That is to say, the requirement is only to have regard to them, and having done so, I do not see them as a jurisdictional barrier to approval.
The provisions at cl 6.7(2), as indicated by Mr Hall, have a stronger tenor (requiring "satisfaction"). But the strength is still only concerned with process. It requires "consideration" of the listed matters, only.
It seems to me the LEP is doing nothing to suggest other than the natural obligation on a consent authority to undertake a balancing exercise here. While there is no applicable equivalent of cl 2.3(2), in the "consideration" of the matters at cl 6.7(2) of the LEP, it would also be reasonable and appropriate to have a mind to the intended benefits which are sought to be delivered under cl 5.10(10). This is because cl 6.7 is (in the case before me) entirely concerned with development on land zoned RE1 and under cl 5.10(10) (or at least with a positive determination under it) fundamentally new settings apply in regard to RE1 land.
I also need to refer to cl 6.7(3) which includes requirements for satisfaction of a consent authority. I find as follows: (1) with respect to subclause cl 6.7(3)(a) that a positive finding in regard to cl 5.10(10) reasonably introduces a discretionary aspect to zone consistency; (2) with respect to subclause cl 6.7(3)(b) that the proposed development is not likely to result in adverse impacts for the permissible development on RE1 land; and (3) with respect to subcl 6.7(3)(c) that the development is consistent with the relevant standards given the evidence.

[22]

Delivery of heritage benefits including associated risks

The heritage experts believe the CMP's statement of significance provides an appropriate basis for "(understanding) the heritage values of the site and to consider potential impact on cultural significance" (Ex 4, par 7). Below I provide an excerpt from this statement to assist a reader to grasp this significance (Ex F, Tab 23, p 64): "The property, including its slipways, is a rare surviving representative of the maritime history of the McMahons Point and its environs and of Blues Bay in particular. The site is the last remaining evidence of industrial activity that developed along the adjacent foreshore from the late nineteenth century. In the broader context of Sydney Harbour, it is also representative of Sydney's past history as the principal ship and boatbuilding centre of the colony of New South Wales from 1820 and, from Federation to the 1970s, as one of the more important centres in the Commonwealth. While the remains of other slipways still exist in Berry's Bay and Lavender Bay, there has been a cumulative loss of these facilities around Sydney Harbour in the path of foreshore development. Along the Henry Lawson Avenue foreshore, the subject property is the earliest and last surviving evidence of maritime industry."
The heritage conservation benefits which are intended with this proposal are significant - all the heritage experts and the Applicant's planning expert see substantial public interest in their delivery. The particulars are summarised at [21]. At pars 11-13 of their joint report (Ex 4), the heritage experts point to what is more and less important: "11. The eastern building has no heritage value; the principal area of significance in physical terms is the fabric of the remaining slipways. 12. The eastern slipway is not in its original condition and some original fabric appears to have been concealed by recent building work. The eastern slipway would be retained and returned to operation if the proposal before the Court were to be approved and implemented. 13. The proposed new building would have an acceptable impact in relation to heritage considerations because of the balance that the proposal before the Court strikes between conservation of the heritage item and reactivation of its working status. The proposal before the Court is acceptable in heritage terms, provided that the conditions of consent suggested below, including the additional documentation, are applied, enforced and implemented to the satisfaction of the consent authority or its delegate."
In his oral evidence and with general endorsement from other experts, Professor Mackay confirmed the significance of remnant small scale boat building/repair at this site and the appropriateness of the proposal for the restoration and continuation of that purpose, suggesting this proposal as an example of the raison d'être of LEP heritage conservation incentives clauses as a public interest-centred policy approach.
But a point of significant attention in the cross examination of the experts by Mr Hall, related to the significance of the delivery of a functioning boat building or boat repair facility with the proposal, and its likelihood. Professor Mackay, Ms Danis and Dr Stuart confirmed in oral evidence that if the intended boat building/repair function did not occur or the operation was vacant then a major aspect of the heritage conservation benefits intended from the proposal would not be achieved. Mr Nutley indicated in oral evidence that the heritage objectives of the proposal would be achieved even if no boat building/repair were to occur.
Ms Danis indicated that the main intention of the proposal in heritage terms "was to activate boat building". Professor Mackay indicated that the presumption of the proposal was to enable the return of boat building and then in accordance with Ex 4, par 13 that if no "reactivation" of boat building occurred then the "balance" would not be achieved, as there would not be able to be the same level of interpretation for a lay person viewing into the site. Professor Mackay also indicated that there would be "substantial incremental improvement" in heritage terms even without repair/building activity. Dr Stuart noted there were lots of houses with slipways, but there was a marked difference from a house and an active working site and that one would be able to immediately observe if a site was active or static. Professor Mackay noted that a passer-by in the street could read the interpretation panels on the wall of the building to enable appreciation, but agreed on questioning from Mr Hall that without building/repair activity the site would look like a home for someone viewing from the water. Ms Danis emphasised the provisions in the DCP which in her view indicated that the primary function of the site should be boat building with residential only ancillary to this primary use (see DCP Part C, clause 9.8.8).
While there were limits to the heritage experts' expertise in such matters, there seemed to be agreement that there was no capacity for a consent to "compel" the actual boat building/repair to occur on the site.
The planners considered the same question in their deliberations on the question of compatibility between the two uses. Mr Chambers argued that joint use has been part of the historic use of the site, and was factored into the DCP at Part C, clause 9.8.8. There would be insulation to reduce noise from the workshop. The Applicant's case in regard to this question of actuating a working boat building/repair use was supported by a report dated November 2, 2018 prepared by Richard Wood of Timber Boat Services and the design of the workshop as shown on the DA drawing is informed by the shipwright's comments at Annexure C (Ex 6, par 108). On the contrary, Mr Harding raised concerns in regard to privacy and acoustics "given that key work areas are located adjacent to living spaces and bedrooms of the residential component".

[23]

Consideration

I note that much of the evidence from the experts on the importance of activation of a boat building/repair use, and whether it would or would not be achieved, was concerned with the satisfaction of the requirements of cl 5.10(10), and was located in that section of the expert reports. I have interpreted the statutory framework for the assessment of this application as requiring a balancing out of issues, with heritage conservation considerations certainly an important issue, but one of a number. So notwithstanding my interpretation and finding in regard to cl 5.10(10), it seems to me not at all unreasonable to consider the expert evidence and submissions in regard to cl 5.10(10) in my broader analysis of the overall merits of the proposal. In doing so, and mindful of the fact that the proposal is only permissible via a heritage incentives clause, it might naturally follow that if the agreed "balance" is not achieved in regard to heritage considerations, that is to say a neutral or negative heritage effect is anticipated, then the passage to approval on the basis of overall merits would be significantly more challenging.
As indicated with regard to cl 5.10(10)(a), heritage benefits are facilitated by the proposal. However, the experts mostly agree that the essential heritage benefit which is required to be delivered (rather than merely 'facilitated') is associated with reactivation of boat building/repair use of the site. In their experience, the experts did not see a way that a consent could ensure that this occur. Beyond the experts' evidence there were no particular submissions from the Applicant on how the delivery of what I would believe on the basis as the most essential heritage benefit (an operational boat building/repair facility) might occur. While useful from a heritage to appreciate the site heritage context and what type of works might occur in boat building/repair operations, I did not find the evidence in the letter from Mr P Watts AM at Ex G or, respectively, the photographs at Ex H as providing sufficient support to the challenge of delivery of a working facility on the site.
Mr Lancaster's submission was that the matter of occupation and use of the boat building/repair operation: (1) was not a proper planning consideration, and (2) had not been raised in contentions. However, I do not find these arguments sufficiently convincing. In regard to (1), there are entirely different circumstances at play here when compared say to the non-requirement for a development application for a dwelling to provide evidence on a future tenant. There are very unusual circumstances at play in this matter. First is that the heritage benefits which underpin the positive opinions of the heritage experts are dependent on the delivery of a working boat building/repair operation. Second is in relation to siting. It would be inappropriate for the Court to not acknowledge the unusual or what might be termed "trophy" aspects of the site for a new residential dwelling - harbour side with superb views of Sydney Harbour Bridge and Opera House and easy access to CBD. On this point, I note that Council's contentions included concerns in regard to incompatibility of the uses. The concern was in regard to an adverse impact on the residents of the dwelling from the operation of the boat building/repair operation. Mr Harding raised compatibility implications in regard to privacy and acoustics "given key work areas are located adjacent to living spaces and bedrooms of the residential component" (Ex 6, par 115 and in oral evidence). The objectors also raised concerns of the possibility that there would not be any delivery of the boat building/repair operation on the site at all.
It seems to me quite reasonable to expect as a common sense position that, all other things being equal, there would be aspirations for high standards in regard to acoustic and visual privacy amenity for the residents of the proposed dwelling in this "spectacular location" (Ex G). I agree with Mr Harding in regard to noise and visual privacy impact potential, given the adjacency of the two uses. It would seem reasonable to find that even noise in accordance with standard noise controls such as applied in the conditions, or activity in the boat building area which impinges on the visual privacy of residents of the adjacent dwelling would be annoying to the residents of this dwelling in this prime location. When I say "all other things being equal", it is clear that historically a different setting applied, with the property valued as evidence of maritime industry in the locality [67] and while there is evidence in the CMP that occupation for residential purposes occurred, there was primacy to the boat building/repair operations with the historical use (see for example CMP, p25 in regard to William Lloyd Holmes occupation). This is factored into the DCP provisions with its reference to the residence as "ancillary" to the boat building or repair operation (see below).
With the heritage experts making clear in their expert report that there was an essential requirement for reactivation of the boat building/repair operation, the question of the risks of this occurring were reasonable points of inquiry by the Council in the hearing, especially when there were accompanying submissions raising doubt about the practicalities of this, given what I see as a natural primacy of what I have called a trophy residence, on this most unusual harbour-side "development" site, over a kind of maritime light industrial use - a setting where incompatibility of aspirations are reasonably seen as likely.
It seems to me necessary, in this setting, for the Applicant to make the case that the essential heritage benefit which underpins the proposal would be delivered, or, in this exercise of balancing merits, at least that reasonable efforts were made in regard to the its delivery. I am not aware of any suggestion of the intended boat building/repair operation being in a position of control in regard to such matters. It seems to me there is little evidence available to evince the reactivation of the site for boat building/repair, and the maintenance of this use over time, in the face of an anticipated tension between it and the amenity enjoyed (and expected) from residents of a home reasonably expected to be worth many millions of dollars. There seems to me to be significant doubt about the reactivation of the site as a boat building/repair operation and were it to activate, its continuation over time.
I also note there are other uncertainties in regard to the proposal delivery including: (1) reliance on further approval for significant works below MHWM and (2) need for further studies and potentially excavation works associated with contamination and remediation. These uncertainties do not assist the proposal, however would not be reasonably seen as determinative of themselves.

[25]

Site specific DCP provisions (Part C clause 9.8.8 of the DCP)

As referenced previously Part C clause 9.8.8 of the DCP applies directly to the subject site. It is produced in full below. Figure 1 - Site specific DCP Controls (Source: North Sydney DCP 2013, Part C clause 9.8.8)
The controls contained in the DCP which were points of attention in the evidence were: 1. No more than 50% of the gross floor area to be used for residential purposes: The argument on the part of the experts in regard to this standard was on a point of relatively fine precision (around the 50% measure) which was unnecessary given the need to be to be flexible in applying such standards under s 4.15(3A)(b) of the EPA Act. The gross floor area split is seen as satisfactory in terms of the DCP provisions. 2. Residential development must be located above the ground level: Mr Chambers submitted that the lower of the two residential levels was marginally above the street level. However the lower level residential component of the development would appear for all intents and purposes to include floor area at what would be interpreted as ground level. 3. Two to three storey form: The Applicant's argument was that the proposed building massing was satisfactory (including in regard to visual impact) as it was "two to three storey form". I agree with the alternative argument that, the phrasing "two to three storey" opens the proposal up to some degree of merits arguments in regard to where and how the building height in storeys might be resolved with respect to context and other particulars, as suggested by Mr Harding in oral evidence and at Ex 6 par [67].
Ms Daris (in oral evidence - when arguing the importance of the primacy of the boat building/repair operation) and Mr Harding (Ex 5, p5 - in relation to visual factors) both raised the provision within P3 of the DCP clause that "residential accommodation" was to be ancillary to the "boat building or repair facility". I interpret the use of the term ancillary in the DCP as its common meaning ("accessory; auxiliary": Macquarie Dictionary). This provides an explanation to me of how the DCP saw the problem of incompatibility between the two uses should be addressed to assure delivery of the intended heritage benefits.

[31]

Conclusion

The key planning reason which might allow the development of the proposed building in this location (on harbour foreshore land, with an RE1 zone and surrounded by a public reserve and with some prospects at least for acquisition itself for regional open space) is the reactivation of a boat building/repair operation on the site in accordance with agreed heritage conservation parameters. I am not satisfied that this would be assured with an approval of the subject application.
In the balancing exercise involved in this merits evaluation (ie a step beyond the facultative exercise in relation to conservation remediation involved in the test with the LEP's cl 5.10(10)), and without good confidence of delivery of the essential heritage benefit of reactivation of the boat building/repair operation on the site, the scales would tip substantially against the proposal for the following reasons: 1. Risk of adverse effect on existing heritage item which goes with reactivation not occurring, as evidenced in oral examination of the heritage experts in regard to Ex 4, par 13. 2. Likelihood of detrimental impact on existing and likely future use of the land. The reservation of the land for acquisition purposes is concerned with delivering the social benefit of, in this case, a continuous area of regional open space along the harbour foreshore. Approval of the development, and more private construction at the harbour side (without assurances of the essential heritage benefits) would undermine and add difficulties to site acquisition for public purposes, and bring negative effects in regard to prospects for site acquisition. 3. Visual impact of a larger private building from within the reserve and from the harbour. The (assured) heritage benefits associated with suggested conservation works (alone) and non-heritage related benefits do not offset these potential negative effects.
The Court orders: 1. The appeal is dismissed. 2. Development application DA395/18 is refused. 3. The exhibits are returned with the exception of Exhibits 2 and F.

Fox v North Sydney Council

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Parties

Cases Cited (6)

Cited By (3)