Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276 | Case summary

The child care application The application

This is an appeal against the refusal of an amended s82A application that seeks consent for alterations and additions to the existing building to incorporate a child care centre.
The proposal provides for: alterations and additions to the ground, first floor and external areas, a Plan of Management , operation from 7:30am to 6pm Monday to Thursday and 7am to 3pm on Friday with some events between 6-8pm, such as parent/teacher information evenings and teacher training/staff development, a capacity of 31 children (0-5 years) made up of Playroom 1 for 16 children (0-2 years) and 4 staff, Playroom 2 for 15 children (2-5 years) and 3 staff, and other staff (eg. administration, cook and management) resulting in a total of 9 staff onsite.
The council maintains that the proposed development should be refused because the use of cl 5.10(10) is not appropriate and the use adversely affects the heritage significance of the item and does not facilitate the heritage conservation of the item.
The legislative framework
Clause 5.10(10) states: (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. The evidence
Expert heritage evidence was provided by Mr Collin Brady for the council and Mr James Phillips for the applicant. Mr Phillips is of the opinion that the proposal meets the tests outlined in cl 5.10(10) and provides an appropriate use for the site, and that appropriateness leads to a good heritage outcome. Mr Brady comes to the opposite conclusion.
Each of the sub clauses in cl 5.10(10) were not addressed specifically by the experts as their evidence followed the matters as set out in the councils contentions. Given that cl 5.10(1) is the only means by which approval can be granted; the contentions should have focused on this sub clause. It is necessary to address each of the sub clauses in cl 5.10(10) and I have attempted to separate the evidence of the experts to address each of the sub clauses in cl 5.10(10).
a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and
Mr Phillips states that the building has a number of works that require urgent attention as outlined in the Schedule of Conservation Works (Exhibit J). The building, in terms of these defects and the impact of not having the urgent repairs carried out, cannot be described as being in a good state of repair. He states that the Schedule of Conservation Works outlines specific works required in the following areas: Table 1 deals with "urgent works", all of which will have a beneficial impact on the heritage significance of the item, Table 2 covers "heritage works" that will be beneficial to the significance of the item and includes, in detail, the works outlined in the contentions that are noted as being "unauthorised", and Table 3 looks at "other works" that deal with liability issues and include a conservation maintenance plan and a cyclic maintenance program.
Mr Brady states that the inherent stability of the building has maintained the original fabric of the heritage item. The current use of the building as a synagogue and learning centre has not contributed to the conservation of the building beyond providing an active presence at the building. The synagogue and learning centre have occupied the building for some seven years with minimal maintenance of the building. Evidence of localised fabric deterioration, which would normally be attended to during occupation, includes local weathering of brick pointing, peeling internal painting and corrosion of windows in the synagogue. These and other items appear not to have been attended to during the seven years of current use as a synagogue and learning centre.
In addition to those matters, provision of basic safety and disability access has been minimal and limited to unsympathetic works including installation of plastic mesh about the main stair balustrade and installation of gravel paving with removal of original terra cotta garden edges to pathways approaching tho main entry. These and other aspects of current use have not demonstrated any care for to the significance of the existing fabric of the building.
Mr Brady states that the estimates for conservation works identified by Mr Phillips are, in part advisory or speculative and related to long term maintenance of any building and not just a heritage item. These include potential sub floor works, and replacement of brick ties indicated as required in a future time span. Other matters such as electrical works are not defined as to any association with existing fabric or are proposed to facilitate uses which may generate a return, not necessarily directed to the conservation of the building.
Mr Brady notes that funds provided by the proposed child care centre are not guaranteed to be allocated to sympathetic future maintenance or indeed even assured as being available at some future date. (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and
Mr Phillips states that a heritage management document, as defined in LEP 2012 is as follows: heritage management document means,: a heritage conservation management plan, or a heritage impact statement, or any other document that provides guidelines for the ongoing management and conservation of a heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.
Three heritage management documents for the site and the proposed development. These are:
Conservation Management Strategy, Weir Phillips Heritage, March 2017 (Exhibit H),
Schedule of Conservation Works. Weir Phillips Heritage, March 2017 (Exhibit J), and
Heritage Impact Statement, Weir Phillips Heritage, November 2016 (Exhibit E).
Mr Brady states that the submitted documents have been the subject of recommendations including the need to separate costs of works associated with the proposed development from those directly associated with identified current and short term maintenance of significant fabric. (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and
Mr Phillips and Mr Brady did not specifically address this sub clause although I understand that Mr Phillips' position is that the three heritage management documents he identified (Exhibits E,H and J) satisfactorily addressed sub section (c) whereas Mr Brady did not accept that these documents were sufficient as the works identified were not detailed enough to conclude that "the proposed development would require that all necessary conservation work identified in the heritage management document is carried out". (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
Mr Phillips states that the proposal does not adversely affect the heritage significance of the site. The proposal is modest and has an acceptable impact on the heritage significance of the site and its surrounds for the following reasons; the works proposed commence with the removal of earlier intrusive works, there are no works proposed to the western and southern elevations save that required to provide access for people with disabilities on the front verandah, works to the northern and eastern elevations remove in fills and re-establish the importance of the cloister, the size of the child care centre is modest, the Impact on the building is therefore far more limited that would otherwise be the case. Internal works are confined to the northern section of the building, the works follow normal heritage practice; where possible with walls that are to be removed retain nibs; removal of original walls is kept to a minimum and the removal is partial, the understanding of the spaces and room relationships of the original chapel are retained, the first floor remains unchanged, by using the existing verandah as a covered play area, external shade structures are not required or at least minimised, the area for parking is confined to the general area of the original garage and kerb crossing and is separated from the main building by extensive landscaping, and fence lines for the children's play area do not interfere with the stone retaining walls and steps.
Mr Phillips states that the proposal conserves the heritage significance of the heritage item including its associated fabric, setting and views by proposing a use and intensity of that use that minimises impact on the principal elevations of the item and through minimal disturbance of original fabric, and its setting in relation to the church and school.
Mr Phillips accepts that the introduction of parking will have a visual impact on the building and its setting however some parking is required for the operation of the proposed development. The area for parking is located where there is currently a garage and a driveway crossing. While the car parking area is visible when viewed from in front of the building on Blair Street, there is a backdrop of a modern residential flat building directly to the east of the car parking area. The fine detail of the original front fence is also retained. The impact of the parking area is mitigated by minimising its size and through the use of extensive landscaping. The two retained banksias mitigate the visual impact of the carpark when viewed from the front of the building towards the east.
Mr Brady states that the proposed parking and turning remove existing turfed areas and replace these with hard paving to be occupied by stack parking, including prevision for a bus. The parking area will be viewed from Blair Street in conjunction with a background of new fencing about the children play area beyond. The combined elements of vehicles and fencing will obscure views of the building and emphasise the car park. Views of the building from Blair Street will be seen as a formal structure with a colonnade opening to green lawn and a peripheral line of trees beyond will no longer be evident from Blair Street.
Mr Brady notes that the proposed use introduces three specific functional occupations -synagogue, learning centre and child care centre which he considers have areas of operational conflict, potentially requiring further alteration and or addition beyond works shown in the application. It is considered that works required to satisfy these operational and legislative requirements will require further internal and potentially external works likely to have a negative impact on the significance of the building its setting and relationship with the historically related St Anne's Shrine and Galilee College/School to the opposite side of Mitchell Street. Such works are not able to be commented on without inclusion in the application. Other works included in the application are annotated as 'to future detail' and this is not considered sufficient information to enable a proper assessment of the impact these work may have on the significance of the site and setting.
In relation to the "setting" and nearby buildings; Mr Phillips notes that the only work proposed to the west and south elevations is to remove later unsympathetic works, and the provision of access for people with disabilities at the front door. This work will improve the heritage significance of the building, and in particular will improve its setting and visual relationship to associated listed structures of St Anne's Shrine and .Galilee College/School on the opposite side of Mitchell Street. The impact of providing access for people with disabilities has been minimised in terms of visual intrusion when seen from the street. (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
Mr Brady states that the proposed use in conjunction with existing uses requires complex and potentially unidentified works to satisfy the functional and legislative requirements of the proposed child care centre. The interface of the competing uses engenders the potential for ongoing works likely to adversely affect the heritage significance of the heritage item.
Recent unapproved works including removal of first floor balustrading from balconies, removal of historic garden edging to pathways and the use of plastic webbing as a safety measure on the central and only stair to the first floor demonstrate the absence of any effective heritage management provisions at the site, This raises doubt as to the likely future completion of all necessary conservation works identified in tine heritage management document being carried out in a timely manner.
Mr Brady takes the view that it has not been identified that the cumulative effects of existing and proposed site population, drop offs and pick up of children, on street parking and increased acoustic impact of the combined uses, particularly when conducted in unison as identified In the plan of management will not have a significant adverse effect on the amenity of the surrounding area.
Findings
Clause 5.10(10) requires that to obtain the benefit of allowing a development that would not normally be allowed in a particular zone that it is necessary for the Court to be "satisfied" that each of sub clauses (a) to (e) are positively addressed. The failure to achieve satisfaction for a single sub clause must see the application refused. Consequently, I will deal with each sub clause individually. (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and
Sub clause (a) requires satisfaction that the conservation of the heritage item is facilitated by the approval. For some guidance, the Macquarie Dictionary defines "facilitate" to mean: 1. to make easier or less difficult, help forward (an action, a process, etc)
Mr Phillips relies on the works identified in the Schedule of Works to identify the works required to conserve the building. While Mr Brady was critical of the works identified by Mr Phillips, I do not accept that any criticism should be levelled at Mr Phillips' Schedule of Works because of the supposed inherent stability of original fabric of the building. The fact that the building has not suffered serious deterioration to date does not mean it will not in the future, unless properly maintained. Clearly, it is easier to maintain a building that is in a more stable condition, than one that is not. Similarly, I do not accept that there should be any criticism of the so-called localised fabric deterioration, that should, according to Mr Brady, should have been attended to during the occupation of the building up to the time the development application was lodged. The examples identified by Mr Brady in the installation of plastic mesh and installation of gravel paving are minor, at best, and do not affect the fabric of the building and can be readily be restored. While Mr Brady expressed doubt that the child care centre could operate without further amendment to the building, it was not clear what these further amendments involved. In any event, if further amendment are needed (and there was no evidence to suggest this was necessary), a further development application would be required and it would be assessed under cl 5.10.
I accept the evidence of Mr Phillips that the estimates for conservation works are not advisory or speculative but educated estimates that, without access to the hidden parts of the building, cannot be accurately estimated. These works include potential sub floor works, replacement of brick ties and electrical works. I note that Mr Brady's evidence did not include any addition works that should be included in the Schedule of Works although I accept his evidence that timeframes should be included in the Schedule of Works to ensure the conservation of the heritage item, in a situation provided by cl 5.10(10), where conservation works may not have been ordinarily available. Tthe Schedule of Works must be amended to identify when the works in this document are to be carried out.
I am satisfied that "the conservation of the heritage item …. is facilitated by the granting of consent" subject to the Schedule of Works being amended to include timeframes for the identified works.
(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and
The Dictionary to LEP 2014 provides the following relevant definition: heritage management document means: (a) a heritage conservation management plan, or (b) a heritage impact statement, or (c) any other document that provides guidelines for the ongoing management and conservation of a heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.
Mr Brady provided the following three heritage management documents for the site:
Conservation Management Strategy, Weir Phillips Heritage, March 2017 (Exhibit H),
Schedule of Conservation Works. Weir Phillips Heritage, March 2017 (Exhibit J), and
Heritage Impact Statement, Weir Phillips Heritage, November 2016 (Exhibit E).
The Court was not taken to any matters of concern to Mr Brady in the Conservation Management Strategy or the Heritage Impact Statement and those matters identified by Mr Brady in the Schedule of Conservation Works have been addressed in the earlier paragraphs. Any concern that these documents had not "been approved by the consent authority" is overcome by s 39(2) of the Land and Environment Court Act 1979 that provides "the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal". (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and
I am satisfied that the Schedule of Conservation Works provided by Mr Phillips, with timeframes for the identified works and a condition of consent requiring compliance, is an appropriate mechanism to ensure "that all necessary conservation work identified in the heritage management document is carried out" (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
I agree with Mr Phillips that the proposal does not adversely affect the heritage significance of the item. I endorse his comments that the proposal is modest and has an acceptable impact on the heritage significance of the item and its surrounds. The proposed works have little, if any impact on to the western and southern elevations and works to the northern and eastern elevations remove in fills and re-establish the importance of the cloister. Internal works are limited to the northern section of the building and the proposed works follow normal heritage practice; in that removal of original walls is kept to a minimum.
I do not share the concerns of Mr Brady over the prominence of the proposed parking area as the area for parking is confined to the general area of the original garage and kerb crossing and is separated from the main building by landscaping. In my view, the provision of a car parking area is a minor concession in allowing a use that will facilitate the conservation of the building and would likely be required for any commercial use of the site.
Given the minimal changes to the exterior of the building; there can be little valid argument over any impact on the "setting" of the item, particularly the nearby St Anne's Shrine and Galilee College/School on the opposite side of Mitchell Street.
I am satisfied that "proposed development would not adversely affect the heritage significance of the heritage item, including its setting, ….", (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
The amenity impacts identified by the council and local residents related to noise, additional traffic and parking and hours of operation. Expert acoustic evidence was provided by Mr Ken Scannell for the applicant and Dr Renzo Tonin for the council.
Mr Scannell and Dr Tonin provided a joint report on both applications. They conclude in their joint report that the areas in dispute or need additional information relate to noise impact from children at play in the child care centre, use of the eastern landscaped area, noise impact inside the classrooms of Reddam House School, and mechanical plant noise. With further details in relation to limiting use of the landscaped areas, conditions on mechanical plant noise and the effectiveness of the proposed acoustic fence, Mr Scannell and Dr Tonin accept that there are no acoustic issues still in dispute beyond confirming the acoustic qualities of the windows in the classrooms of Reddam House School.
Expert town planning evidence was provided by Dr Gary Shiels for the applicant and Mr Stuart McDonald for the council. On the question of parking and traffic, Dr Shiels and Mr McDonald addressed a number of options for the layout and operation of car parking on the site. Options 1 and 2 were provided by the experts and Option 3 was developed during the hearing. While the different options provided different positives and negatives, the experts expressed a mild preference for Option 3 (SK01C). This option provided 4 spaces (including a larger bus space) with a further 2 spaces in the form of a pick-up and drop-off area in a circular driveway for separate ingress and egress and some landscaping at the street frontage. Dr Shiels and Mr McDonald agreed that Option 3 satisfies the council's car parking requirements, provides the loss of only one existing on-street car parking space and negates the need for time limited parking along Blair Street near the entry to the building.
Based on the conclusions of the acoustic and town planning experts, I am satisfied that "the proposed development would not have any significant adverse effect on the amenity of the surrounding area".
Having found that I am "satisfied" that each of sub clauses (a) to (e) are positively addressed, the applicant is able to make use of the heritage incentive provisions in cl 5.10(10). Consequently, the Court may grant consent to the proposed development notwithstanding that it is not a permissible use in the SP2 Educational Establishment & Place of Public Worship zone. In deciding whether to grant consent, the Court must also consider the provisions of s79C(1) of the Environmental Planning and Assessment Act 1979 and specifically: any other relevant provision of LEP 2014, and any relevant provision of DCP 2012. LEP 2014
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.
Clause 5.10(4) states: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
As submitted by Mr Pickles, the tests in cl 5.10(10) set a higher threshold than those imposed by cl 5.10(4) because of the greater scope of the matters in cl 5.10(10) although it is still necessary to consider cl 5.10(4). Having regard to the heritage evidence of Mr Brady and Mr Phillips, I accept that the proposal does not adversely affect the heritage significance of the item for those reasons stated by Mr Phillips (see par 25 - 27). DCP 2012
Part F3 of DCP 2012 addresses child care centres with Location and Siting (pt 3.1), Built Form (pt 3.2) Traffic, car parking and pedestrian safety (pt 3.3) and Management (pt 3.4). The council maintained that the proposed development did not satisfactorily address the location and use of surrounding buildings as well as creating unacceptable amenity impacts (control (c), pt 3.1, objectives (a) and (d), pt 3.1, control (a), pt 3.2.2 and objective (c), pt 3.2).
Dr Shiels and Mr McDonald thoroughly addressed the potential amenity aspects of the proposed development and this is set out earlier in the judgment. In my reading, there is nothing in Part F3 of DCP 2012 that is not addressed in their evidence. Consequently, I repeat my previous comments that I am satisfied that "the proposed development would not have any significant adverse effect on the amenity of the surrounding area".
For the reasons in the preceding paragraphs, there is no reason why the proposed child care centre cannot operate in an acceptable manner on the site, subject to appropriate conditions of consent.

Jewish Learning Centre Limited v Waverley Council

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cited By (2)