Metro Donnelly Road Pty Ltd v Willoughby City Council - [2024] NSWLEC 1736 - NSWLEC 2024 case summary — Zoe

NSWNSWLEC

Metro Donnelly Road Pty Ltd v Willoughby City Council

[2024] NSWLEC 1736

Land and Environment Court (NSW)|2024-08-28

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-08-28

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Willoughby Local Planning Panel (Panel) of development application DA-2021/340 (DA), lodged on 9 November 2021, for a mixed use development. The DA relates to property known as 43 Donnelly Road, Naremburn (site). The site is legally comprised of Lot 1 in DP 115889, Lot 1 in DP 320984 and Lot A in DP 341975.
In accordance with s 8.15(4) of the EPA Act, Willoughby City Council (Council) is the respondent in the appeal proceedings, subject to the control and direction of the Panel.

[2]

Site and setting

The site occupies an area of about 5897m2 and is irregular in shape. It has three frontages. The northern frontage is to Merrenburn Avenue (some 45.4 m). The western frontage is to Willoughby Road (76.8 m). The southern frontage is to Donnelly Road (85.3 m). The site topography is quite level.
The site is occupied by a number of buildings. St Leonards Church and the church presbytery (and garage) are located on Lot 1 in DP 115889. These buildings occupy the southern portion of the site. The northern portion of the site is occupied by former school buildings and a car parking area. A two-storey former school building (with classrooms above and a school hall at ground level), constructed in 1932, is located on Lot 1 in DP 320984. A single storey collection of buildings and secondary structures, dated from 1936 and part of the former school, including an annex connecting the two-storey and single storey building, are located on Lot A in DP 341975. For the purposes of distinction, henceforth I will refer to the two-storey structure on Lot 1 in DP 320984 as the school building and the structures on Lot A in DP 341975 as the school annex buildings (when referring to both, I will use the term: school buildings). There are a number of mature trees within the site and along its eastern and northern boundaries in particular. See Figure 1 and Figure 2, with site outlined in red. Figure 1 - Survey plan with site outlined in red (Source: Applicant's site survey documentation reproduced in Council's statement of facts and contentions (SOFC) p 5) Figure 2 - Aerial view (Source: Council's SOFC p 4)

[4]

Statutory context

The site is zoned R3 Medium Density Residential under WLEP and there is no dispute that multi dwelling housing is a permissible use, with consent, in this zone. The objectives of the zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To accommodate development that is compatible with the scale and character of the surrounding residential development. • To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network. • To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.
The site is subject to a maximum building height control of 9m and a maximum floor space ratio (FSR) control of 0.7:1. There is disagreement between the parties in relation to the proposal's compliance or otherwise with the FSR control. There is no dispute in regard to the total gross floor area. The dispute is centred on what should be reasonably adopted as the relevant site area (mindful of cl 4.5(6) of WLEP). While the particulars are a little intricate, it is sufficient to note here that even if the Court were to find in favour of Council's position on site area, the applicant relies on a without prejudice written request under cl 4.6(3) of WLEP (as relevant). The proposal would contravene the maximum building height control under WLEP, a factor also the subject of a written request under cl 4.6(3).
The site is also affected by cl 6.8 of WLEP relating to affordable housing. There is no dispute that the requirements of this clause have been addressed.
It will be seen that a most important provision within WLEP, as far as these proceedings is concerned, is cl 5.10 relating to heritage conservation. I will deal with this provision more directly later.
Further relevant provisions are included in Willoughby Development Control Plan 2023 (WDCP), which I also turn to relevantly, below.

[8]

Background

The site is listed as heritage item 160 in Sch 5 to WLEP. A point of some attention in the course of the hearing was the fact of the only recent expansion of the physical area described as Item 160 to cover the wider site, including the school buildings. This occurred with the making of Amendment No 38 of WLEP in July 2024.
The Respondent's Bundle of Heritage Documents (Ex 5 p 130) outlines a helpful timeline of events. It was on 9 November 2021 that DA-2021/340 (ie the DA the subject of the appeal before me) was lodged. The DA was determined by Council by way of refusal on 26 July 2022. On 13 September 2022 the proceedings before me were initiated as a Class 1 appeal against Council's determination. On 22 May 2023, Council resolved pursuant to s 25(2) of the Heritage Act 1977 (Heritage Act) to make an interim heritage order (IHO) affecting the site. The IHO was published on 26 May 2023 in NSW Government Gazette Number 227. The IHO temporarily (for a period of 12 months) prevented the demolition of those buildings on the site not already heritage listed. At the time of the making of the IHO, WLEP's Sch 5 listing for 43 Donnelly was limited to the following property description: "Part of Lot 1 DP 115889". The item was named as "St Leonards Church (including original interiors)". The then relevant mapping to WLEP generally included that portion of Lot 1 DP 115889 which included St Leonards Church, only.
Council's decision to make the IHO occurred after considering a report making a recommendation to this effect and in consideration of a preliminary heritage assessment prepared by V Holtham, heritage consultant.
An appeal was lodged against the making of the IHO over Lot A in DP 341975 and Lot 1 in DP 320984 (ie the land accommodating the school buildings and its grounds). That applicant did not appeal the making of the IHO over the rest of Lot 1 in DP 115889. That is, the location of the presbytery and garage. The appeal was heard in the Land and Environment Court on 24 and 26 October 2023 and orders were made to dismiss the IHO appeal on 17 January 2024: The Trustees of the Roman Catholic Church for the Diocese of Broken Bay v Willoughby City Council [2024] NSWLEC 101 (Diocese of Broken Bay).
Council engaged Ms Holtham to carry out an assessment of significance of the built elements on the site (Heritage Assessment by Vanessa Holtham dated 22 August 2023 (Holtham Heritage Assessment) Ex 5 Tab 2 folio 59 and following). The Holtham Heritage Assessment used the document: Assessing Heritage Significance: Guidelines for assessing places and objects against the Heritage Council of NSW criteria, published by the Environment and Heritage Group, Department of Planning and Environment in May 2023 (henceforth referenced as the AHS Guideline); and formulated a statement of significance. There are seven criteria used in NSW to establish heritage significance (AHS Guideline p 21). The Holtham Heritage Assessment found that the complex of buildings (ie church, presbytery, and school buildings) was seen to satisfy four of these (historical significance, aesthetic/technical significance, social/cultural significance and representativeness). Subsequently, Council determined to proceed with a Planning Proposal (ie a proposal to amend WLEP) to essentially incorporate the recommendations of the Holtham Heritage Assessment within WLEP.

[9]

Consideration

Generally, I note that the appeal with respect to the IHO investigates a topic considerably different to that before me now. There are a number of points to make on this front. It is important to acknowledge that in Diocese of Broken Bay, the Court undertook a consideration of whether the "place" (which was the subject of the IHO), was of local heritage significance, or was likely to be found on further investigation to be so. Some investigation of policy, peer review reports and expert evidence was undertaken in the course of that exercise. Documentation before the court included a Conservation Management Plan and Interpretation Strategy, essentially or at least somewhat based on an assumption of future development of the site somewhat in accordance with the DA before me. The Court's findings would be clearly seen to confirm, at least, the likelihood of local heritage significance for the site.
However, Diocese of Broken Bay was essentially concerned with whether there should be temporary prevention of demolition works, relevantly, on the site (the effect of the retention of the IHO for a time-limited period). The scope of that appeal was essentially (and importantly) concerned with heritage conservation and management of the risk of the loss of something of importance on that front. But it did not need to engage with the wider questions faced in DA evaluation.
It is a matter of fact now that the whole of the site has been incorporated into the local heritage listing under WLEP. The effect of this is that cl 5.10 of WLEP is triggered, which I will come to below. But I do here acknowledge the argument of the applicant that heritage significance of a heritage item is but one part of the overall analysis required in DA evaluation. As indicated earlier, in this particular DA evaluation, heritage significance effect is a key consideration but its evaluation would need to be balanced against other relevant matters in coming to an evaluative conclusion. While certainly not without its complexity or importance, the question before the Court in Diocese of Broken Bay might be thought of as a more singular topic.

[10]

Heritage-related policy and guidelines

Clause 5.10 of WLEP is concerned with heritage conservation. Subclauses (1), (2) and (4) arose particularly in evidence and submissions and selected provisions are reproduced below: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Willoughby, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, … ... (4) Effect of proposed development on heritage significance 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).
Mindful of cl 5.10(4) of WLEP, there is a direct requirement for a consent authority to, before granting consent in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item. In the matter before me here there is therefore a requirement to: (1) understand the heritage significance of the item (this complex of buildings and its surrounds), and then (2) consider the effect of the proposed development on the heritage significance of the item.
WDCP also includes provisions relating to heritage conservation at its Part H, which need to be taken into consideration. Of direct pertinence to the matter at hand is Clause 1.4 of Part H of WDCP which relates to "demolition". The objectives and requirements are reproduced below. Objectives 1. conserve individually listed heritage items and the general building stock that contributes to the significance of a heritage conservation area 2. ensure that, if approval is granted, any replacement development enhances the significance of the heritage conservation area. Requirements Council does not support demolition of a heritage item or a contributory building in a heritage conservation area, and any application will only be considered where the building is not capable of retention and/or restoration. Applications for the total or partial demolition of buildings, or works that are listed heritage items or on sites in heritage conservation areas, Willoughby City Council will assess: a. the heritage significance of the building or work, including its contribution to the streetscape in heritage conservation areas b. the opportunities for adaptation and whether the building or work would be incapable of reasonable or economic use c. if the building or work constitutes a danger to its users or occupiers or to the public d. whether the proposed redevelopment is compatible with the heritage conservation area.
The applicant argues that the provisions of Clause 1.4 of Part H of WDCP, where the phrase "council does not support the demolition of a heritage item ..." is used, would be overtaken by the provisions of cl 5.10(2)(a)(i) of WLEP which do contemplate the demolition of heritage items. I accept that such phrasing (in WDCP) has no effect to the extent that it might be inconsistent or incompatible with cl 5.10(2)(a)(i) of WLEP. However, it is clear enough that Clause 1.4 of itself should not be seen as a blanket indicator that all applications for demolition of heritage items would be refused. That is clear from its terms, where the possibility of, and factors going into the assessment of, demolition are outlined. The provisions at Clause 1.4 are an indication of Council policy with respect to the demolition of a heritage items and, other than a literal interpretation of the phrasing indicated above (to infer that demolition would never be supported), are a factor in the evaluation of the DA.
There are other non-statutory documents that assist in interpreting heritage significance, and in the consideration of the effect on heritage significance, which arose in the evidence and which I refer to relevantly below.

[13]

Holtham statement of significance

The Holtham Heritage Assessment can be understood as a significant precursor to Council's Planning Proposal and the positive "Gateway Determination" by the Department of Planning which followed and, ultimately, the amendment to WLEP to heritage list the whole of the site. The Holtham Heritage Assessment included a statement of significance, which I quote below: "St Leonard's Church, presbytery and school buildings have local historical significance as a complex for their association with the early development of religious, educational, and supporting accommodation buildings in the area. The building group represents a clear chronology of development occurring in the early twentieth century typical of a growing and expanding religious and/or educational precinct. The complex of buildings is considered a key landmark within the local area and as individual entities, the Church, presbytery and main school building have landmark qualities within different streetscapes. The Church itself has architectural and aesthetic significance and is an extremely fine Late Edwardian period church with a very good interior, which is significantly intact. The church tower's tall spire and the strong architectural elements of the building make it a dominating and contributing feature of the streetscape and it has apparently long been regarded as of the more artistically designed churches on the North Shore. The presbytery is an early Inter-war two-storey domestic style building with Old English and Gothic style influences. A visually prominent and well-maintained building, the presbytery has aesthetic value as a standalone building, notwithstanding its clear physical and social connection to the Church and wider precinct. The garage, which sequentially follows the construction of the Church and fronts Donnelly Road, maintains its 1917 form and location in the south-eastern corner of the site. The 1932 main school building has aesthetic qualities as a prominent and attractive element within the Willoughby Road streetscape and as a foreground to the Church when approaching from the north. Whilst it is to some extent utilitarian in nature, the two-storey building is highly intact externally and substantially intact internally with only simple measures required to remove later accretions. The 1936 single storey classroom building is reasonably intact and has a pleasant but less imposing presence as a school building. It appears to have been constructed of materials salvaged from an earlier and more decorative building, which is of interest to the group. This group of buildings has social significance for the Naremburn and Diocesan Catholic community, for the long-term use of the site for a school and as a place for public worship. The buildings are representative of the symbiotic operation of religious and educational functions contained within a single precinct, supported, and complemented by the accommodation offered by the presbytery. The Church itself has been previously noted as a rare item in the local area. As a collection, the buildings retain a high degree of integrity in terms of their arrangement, form and setting. Each building retains a high degree of original fabric, except for the singe storey classroom building, which has undergone internal changes and the classroom link, which is an intrusive addition. Notwithstanding this, the school buildings also provide a visual and physical conduit between this group and the adjacent Sisters of St Joseph's building and St Cuthbert's Church on Merrenburn Avenue, and the former Naremburn Public School on the opposite side of Willoughby Road."
Other evidence in these proceedings did call into question aspects of this statement of significance. I note instances of this below.

[14]

Statement of heritage impact (SHI)

The SHI makes its own assessment of significance at section 4.3 and finds the site of historic, aesthetic, social and representativeness significance under the NSW criteria. In my interpretation, this work links the school buildings (ie the elements of the site which would be subject to demolition) particularly to historic and social criterion.
The SHI introduces NSW Office of Environment & Heritage "guidelines for the preparation of Statements of Heritage Impact", where direct commentary in relation to demolition of a heritage is provided (SHI p 44):
Having regard to the evidence and having found that the required benchmarks had been reached for the site for a designation of social and historic significance at a local level (setting aside aesthetic significance now), the SHI found "this was not of sufficient significance to warrant the retention of the school buildings", according to the SHI (p 47). The reasoning nominated included the following: "... There is no primary evidence that the single storey school building, constitutes fabric from the erstwhile 1894 shop. Additionally, the subject buildings are not, in our opinion, rare. The reason for this is that the buildings had been extensively altered. As such, Heritage 21 is of the opinion that the demolition of the school buildings would not have a material impact insofar as the heritage significance of the subject site. The proposal would retain the buildings of high heritage significance including the church and presbytery at the subject site."
In respect to the OEH guidelines question, above, "if demolition is proposed, why is it necessary", there is reference to the proposed townhouse development but the SHI also indicates that the development (including the demolition of the school) would "ensure the continued historic use of the site with the retention of the church" and "would ensure continued community engagement with the St Leonard's Catholic Church congregation including the construction of a new Parish Hall" (p 61). These two points were for me a representation of what might be thought of, at least by the authors of the SHI, as heritage-related benefits of the proposal.

[15]

Conservation management plan (CMP) and interpretation strategy

The CMP, prepared by the same consultancy as the SHI, also included the following noteworthy content. There was the acceptance of historic associated significance in relation to the involvement of the Sisters of St Joseph. There was disagreement with the Holtham Heritage Assessment in regard to the extent of intactness of the school building with reference may to "multiple alterations and additions", including to exteriors. When considering aesthetic/technical significance, it was found that the school buildings "do not demonstrate any unique creative or technical excellence, innovation or achievement" (p 124). Importantly, the CMP included a consideration of the heritage significance of the different components of the site. Using "Table 5" from the "NSW Heritage Manual guide to Assessing Heritage Significance" (CMP p130), reproduced below, for this purpose.
Below I reproduce plans from the CMP which indicate gradings of significance for individual building elements and spatial settings, firstly in relation to the site and secondly in relation to the school buildings. Figure 3 - CMP findings on gradings of significance of buildings and areas of the site (Source: CMP Ex E Tab 7 Fig 214) Figure 4 - CMP findings on gradings of significance of the school buildings (Source: CMP Ex E Tab 7 Fig 220)
This can be compared with the Holtham Heritage Assessment findings on level of significance (reproduced at Figure 5). Of note is the "high" level of significance for the (two storey) school building and moderate level for the single storey building. Figure 5 Holtham findings on gradings of significance (Source: Holtham Heritage Assessment, p 63 Ex 5 Tab 2, folio 121)
Particularly noteworthy for me, in terms of points of disagreement, is Holtham's findings of high significance for the school building compared to the CMP's finding of moderate significance for the larger portion of this building.
When Table 5 is examined (at [41]), it makes clear enough that building fabric and relationships that are graded of "moderate" levels of significance (as per the CMP), while supportive of the overall heritage significance, "do not make an important or key contribution to the identified heritage values of the place". Table 5 goes on to indicate "adaptation and alteration is permissible". As observed by Council, "demolition" (as compared to "adaptation and alteration") is notable for its omission there. The table also suggests that building fabric and relationships that are graded of "high" levels of significance (as per Holtham's grading for the school building) "should generally be retained, restored and conserved in situ" with only minor interventions in accordance with the Burra Charter (referenced at p 159 of the CMP as: Australia ICOMOS, The Burra Charter: The Australian ICOMOS Charter for Places of Cultural Significance, 2013).
Section 8 of the CMP then documents a series of conservation policies indicating that ongoing conservation and development should be carried out in accordance with the principles of the Burra Charter. The proposed development would retain, of course, the church and presbytery buildings. The significant fabric of these buildings would be conserved and restored. Among the recommendations is preparation of an interpretation strategy (CMP p 151).
The same consultancy practice prepared an interpretation strategy. The school buildings were a point of particular significance here. The interpretation strategy would "ensure that the history of the school and its significance is interpreted within the proposed new development" (interpretation strategy p 74). The interpretation strategy would involve printing, framing and installing historical photos along pedestrian pathways to allow visitors to the site to understand the history. Other aspects included: (1) interpretation at the entrance to the eastern walkway, (2) installation of an historical timeline along this walkway (along the shared boundary with the convent site), (3) salvaging material from the school buildings for paving and flooring purposes and (4) various interpretation elements within the new parish hall and within the grounds (salvaging of existing timber sprung floor, a memorabilia wall, interpretation panels, etc).

[16]

Demolition

Mr Oultram, while acknowledging the current listing, did not agree with the Holtham Heritage Assessment findings in regard to the heritage significance of the northern section of the site, and the school buildings, or the implications of demolition of these buildings for the rest of the site's heritage significance. A selection of points raised by Mr Oultram, which seemed to me to be of particular significance, included the following (Ex 9 selected from pars 5.12 - 5.60).

"Having significance under the assessment of significance guidelines does not automatically indicate that a place must be conserved.
Combined Catholic church/school sites are commonplace, with teaching provided by the religious order (nuns and brothers) and liturgical services provided by the church.
It is more reasonable to look to the "especial qualities of a place rather than the commonplace and use terms such as important, strong or special, high degree of creative or technical achievement, uncommon rare not the term typical" (Ex 9 par 5.26). There is nothing particular at the subject site that would raise historical significance above the commonplace.
The site today is an accretion of individual sites rather than a purpose bought site for the construction of the three elements. The school was built nearly twenty years after the church and there is no evidence that the school site was earmarked for such a development when the church site was purchased.
Disagrees that, as a group the buildings, the site represents a historically connected complex. The buildings are moreso connected by their proximity and lack of fencing.
Not convinced that the school annex building was built using materials from the preceding school building in Market Street.
School ceased operation nearly 30 years ago. This loss of historic use of school buildings diminishes historic and historic associated significance. The association can be readily interpreted, based on the proposed interpretation strategy which could include reuse of building materials and "the sprung floor to the hall".
The association with the Sisters of St Joseph would remain in a tangible form as their convent abuts the site and the sisters continue to occupy it.
Mindful of the lag in construction periods in any event, demolition of the school will not diminish significance of church and presbytery, given the retention of "an established curtilage formed by the parish at the time of construction" which would be "retained along with their historic curtilage and immediate setting".
In relation to aesthetic significance, the school is a very modest and mundane appearance. No architect was appointed to design the school which was apparently built to the plans of a Father Rohan (then the parish priest)".

Mr Oultram's evidence gave, albeit indicated as limited, consideration to the possibility of adaptive reuse of the school building site and environs. He indicated an area north of the main school building and a smaller area to the south of the school annex building as potential development areas. He thought this would provide development opportunity for "four, three storey townhouses". If the school hall were retained for parish purposes, then the upper floor classrooms may provide for two residential units. The school annex building may provide for another two units. No underground parking would be available. Mr Oultram indicated that (Ex 9 par 5.68): "The design would not lead to the improvement in the amenity of the hall that is proposed in the development application and would certainly not meet the aspirations of the Parish for a more comprehensive development at the site."
Ms Trueman's evidence endorsed and directly supported the findings in the Holtham Report and did not support the demolition of the school buildings on heritage grounds. She believed that opportunity exists to adaptively re-use the school buildings and that moreover this was a requirement of Section 1.4 of WDCP (Ex 9 par 5.102): "The retention of the school buildings would allow for the ongoing interpretation of the original use and association with the Church, providing past students with connections to their history and future generations with an understanding of the history and significance of a landmark site."

[18]

Substantial detrimental effect on the heritage significance of the heritage item

I prefer the arguments of the Holtham Heritage Assessment and the sworn evidence of Ms Trueman over the arguments in the SHI, CMP (including having regard to the proposed interpretation strategy) and sworn evidence of Mr Oultram.
I agree with Mr Oultram that a heritage listing does not "automatically indicate that a place must be conserved". However, I was not convinced by the case put in support of demolition in this instance. The reasoning for this can be captured by three points, after which I will make some further overview points, including in regard to the question of potential adaptive re-use.
First, is in relation to historical and historic associative significance. I found the arguments to suggest a disassociation between the school buildings and the church, in heritage conservation terms, unconvincing (eg "accretion of sites rather than purpose bought site"). The particulars of the land acquisition and ownership and the timelines for construction of different items are, for me, overtaken by what eventuated as a strong historic and associative significance between the church, school and convent for a significant period during the 20th century. This marks the item (ie the historically and physically connected complex of buildings), rather than just the church and presbytery, as important to the cultural history of the local area.
Second, is in relation to aesthetic and/or technical significance. I was more convinced of the arguments put in the Holtham Heritage Assessment that the site together, including the main school building, was recognised as a key landmark (eg rather than say something "commonplace") locally (Ex 5 folio 119). The school's function was subsidiary to the church but it remains nonetheless "prominent" as a foreground to and connection the church. I was not of the view that, whether or not, the school buildings contained fabric of earlier buildings was of great significance on that front. I was also more convinced, on the basis of the site inspection, that the main school building was quite intact. Holtham's arguments that it had Its "utilitarian" functional role within the larger landmark was for me not disturbed by the fact that it was not architecturally designed and, while not related to this specific criterion, were it designed by the local priest may add otherwise to the story of the place.
On my third point, there seems to be no disagreement that the site is of social and cultural significance for the Naremburn and Diocesan Catholic community "as the site was used for a school and as a place for public worship for a long time" (SHI p 39). The fact of the funding and construction of the school by the parish are important markers for this aspect of significance.
On the evidence, it seems to me that demolition of the main school building, an essential aspect of the proposal before me, would bring a substantial detrimental effect on the heritage significance of the heritage item. It would very significantly diminish the sense of a representative "symbiotic" operation of religious and educational functions contained within a single spatial precinct, as identified in the Holtham Report. While noting the school closure, the opportunity for earlier generations of students and parents to walk by and around and think about significant times for them, and for the current community to understand this symbiotic operation, would be significantly diminished. In my assessment, the physical relational setting of the main school building and church, along (the well-used movement corridor) Willoughby Road, sits at a high level when considering gradings of significance and intervention possibilities mindful of Table 5 (see [41]). While the interpretation strategy is a positive factor, it does not compare with the actual conservation of buildings in this case.
The reasons behind the demolition of the school buildings were not convincing in this case (see [38] "why is it necessary"). Direct consideration was given to this question in SHI (p 56). The nominated reasons included: extent of alterations to fabric to school building already, and that demolition would allow construction of the new parish hall which would "increase the amenity of St Leonards Church". I also note various other commentary in regard to how a new hall might improve things for the parish. The oral submission on behalf of the parish indicating financial hardship were recognisable. But the non-feasibility of an adaptive reuse alternative for the school building was not well presented by way of examinable evidence. It was notable that another parishioner, who had been involved at least historically in parish finances spoke against the proposal.
The missing part of the evidence, relating to opportunities for adaptive reuse of the school building(s), potentially bringing a lesser and more acceptable impact on the heritage significance of the item, was notable. For what it may be worth (and perhaps not so misaligned with one particular area of the Holtham Heritage Assessment), it seemed to me that the main school building and school building annex can be differentiated in terms of the established heritage criteria. That is to say, loss of the physical and visual connection between the main school building and church, as a landmark along Willoughby Road, is the most important loss with the proposed scheme. This is significantly more important than retention of the school building annex, in any adaptive re-use scheme. An adaptive reuse scheme might also argue for concessions, in terms of other standard policy requirements, to facilitate heritage conservation benefits (including in relation to parking perhaps). Without persuasive evidence to the contrary, it does not seem entirely implausible that adaptive re-use options might be available to assist the parish with its financial concerns.

[19]

Whether other aspects of the proposal can outweigh the detrimental effect on the heritage significance of the heritage item

The above analysis finds negatively in regard to the heritage impacts of the proposal. However, DA evaluation requires the weighing up of positive and negative impacts. It can be accepted that the development would bring benefits to the parish. A lessening of the financial burden of running things at St Leonards would seem likely. This seems to me to align somewhat with the evidence that the proposal would "ensure the continued historic use of the site with the retention of the church" (see [40]). Although I also note that there was evidence that at least some parishioners were unconvinced of these benefits, when compared to the losses. A further suggested benefit was related to the proposal ensuring "continued community engagement with the St Leonard's Catholic Church congregation including the construction of a new Parish Hall" (see [40]).The particulars of why the proposed new two-storey hall fits in with parish needs, or how it would relate to or "ensure" continued community engagement between parish and church was unclear, in the material I was taken to at least. A new parish hall will certainly be more modern. But how the parish would relates in the future to it over, say, an adaptive reuse of the old school hall is something I am not clear on.
The proposal can also be understood to positively respond to a number of the specific objectives of WLEP's R3 Medium Density Residential zone. Here I note in particular the first two zone objectives: - To provide for the housing needs of the community within a medium density residential environment. - To provide a variety of housing types within a medium density residential environment.
For the purposes of this analysis, I will accept the applicant's arguments that there is power available to the Court to grant consent to the application. That is to say, I can readily assume that the building height and FSR aspects of the proposal are capable of approval, if necessary, through the provisions of cl 4.6(2) of WLEP. But even so, Council raised a series of serious design concerns in regard to the merits of the scheme adopted with the proposal, including in regard to reduced sightlines to the church. Such design concerns may have resulted in a reduced yield. At least, there are no prospects for an increased housing yield in this proposal, which is the point of attention in this section of the judgement, as I look for positive aspects of the development.
Opportunities for adaptive reuse of the parts of the site now proposed for demolition have not been part of the evaluative material, before me at least. This would seem to be a reasonable requirement when considering demolition of a heritage item (and is nominated as a factor for consideration in section 6.1.3 of OEH Guidelines (see [38]) and at Clause 1.4 of Part H of WDCP (see [30]).
On the basis of the material before me, I am not convinced that the heritage interpretation strategy, the parish-related benefits and the provision of this level of housing (11 townhouses) could be weighted sufficiently to overcome the substantial effect of the proposal on the heritage significance of the heritage item occupying the site. This heritage item, based on what I find to be legitimately identified heritage significance, needs to be recognised as a special landmark in the story of the local area. Demolition of the school buildings would affect the significance of the item in an important way.

Metro Donnelly Road Pty Ltd v Willoughby City Council

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (1)

Cited By (1)