For the reasons articulated in the preceding, following an assessment under s 4.15 of the EPA Act, I find that for the likely impacts arising from the development on the heritage significance of the site, even when considered against the positive benefits of the development, it warrants the refusal of consent.
[2]
(1) The appeal is dismissed.
(2) Development application X/1436/2021 for the demolition, additions and alterations to an existing residential care facility including landscaping, retaining walls, basement car parking and a new substation at the Ritz Nursing Home at 203-233 Leura Mall, Leura (Lot 20 DP 1076123) is refused.
(3) The exhibits, other than Exhibits B, G and 2 are returned.
Parties
Applicant/Plaintiff:
Skermanic Pty Limited
Respondent/Defendant:
Blue Mountains City Council
Legislation Cited (2)
Planning and Assessment Act 1979
Environment Court Act 1979
Cases Cited (6)
Planning Controls
Relevant to the issues in contention, the following planning controls are applicable.
LEP 2015 applies to the land and zones it R1 General Residential. The development application seeks consent to use the site for the purposes of a 'residential care facility'. A residential care facility is a type of 'seniors housing', a proposed use which is permitted with consent in the zone. The objectives of the zone, to which consideration must be given are:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that building form and design does not unreasonably detract from the amenity of adjacent residents or the existing quality of the environment due to its scale, height, bulk or operation.
• To enhance the traditional streetscape character and gardens that contribute to the attraction of the area for residents and visitors.
• To provide opportunities for the development of a variety of tourist-oriented land uses within a predominantly residential area.
Pursuant to the Height of Buildings Map referred to in cl 4.3(2) of LEP 2015 the maximum permissible height of buildings on the site is 8m. The proposed development relies on a variation to the maximum height standard pursuant to cl 4.6 of LEP 2015. The existing Ritz building currently has a height of 14.96m. The proposed extensions to the south and west of the original Ritz building exceed the 8m height standard by 1.05m (13.1%) to 4m (50%). The Applicant has prepared a written request to vary the standard. The Court is required to be satisfied that the preconditions contained in cl 4.6 of LEP 2015 are met prior to the grant of consent to the development application.
Pursuant to the Floor Space Ratio Map referred to in cl 4.4(2) of LEP 2015 the maximum permissible floor space ratio on the site is 0.4:1. The site has an area of 11,300m2. The existing onsite development has an FSR of 0.31:1. The proposed development seeks an FSR of 0.64:1. The Applicant has prepared a written request to vary the standard. The Court is required to be satisfied that the preconditions contained in cl 4.6 of LEP 2015 are met prior to the grant of consent to the development application.
In addition to being individually listed as a heritage item under LEP 2015, the site is also adjoining the Leura South heritage conservation area (HCA) to the south and the Central Leura HCA to the north.
Further, 2 properties adjoining the site to the south, 24-26 Wascoe Street, are listed as heritage items. The properties at 24-26 Wascoe Street, Leura are deferred matters and remain zoned under the earlier local environmental plan known as Blue Mountains Local Environmental Plan 2005 (rather than LEP 2015). Part 1 of Sch 6 of Blue Mountains Local Environmental Plan 2005 lists "24-26 Wascoe Street "Kanowna" group LA024" under the heading Leura as a heritage item.
The statement of significance for the Leura South HCA is:
"The Leura HCA is of historic, historical associational, aesthetic and representative significance to the local government area of the Blue Mountains. It is also has the potential to be of social and technological/research significance.
The town of Leura is one of the most significant towns in the Blue Mountains. Although one of the last to be established, Leura quickly gained a reputation as an exclusive residential area through the quality of the houses and gardens which were established by affluent families seeking relief from the heat and humidity of Sydney's summer months.
The streetscapes of Leura are notable for their maturity and very high aesthetic quality, most being dominated by the gardens, hedges and towering conifer windbreak trees. Most streets have some street tree planting but the quality and scale of the adjacent gardens mean that in many cases the street trees contribute to the streetscape rather than dominate it. The prevailing aesthetic character of Leura's landscape is a private, secluded one, with many houses largely hidden from casual view by the density of garden and street vegetation.
The topography of the town also plays an important role in establishing the aesthetic quality and character of its cultural landscape, with the buildings draped over the rolling hills and valleys and creating very good quality serial views when travelling through the area, particularly along the east-west streets in autumn when the trees have turned colour.
Visual links between the streets of the town and the panoramas to the valleys of the Blue Mountains are generally limited to the outer ring of local roads and semi-formal viewing points. Good distant views can also be enjoyed from higher in the town, where the escarpment effectively terminates streetscape views.
The main period of development was from the late 19th century to the middle of the 20th, and a high proportion of the buildings of Leura provide substantially intact or sympathetically altered evidence of the styles popular with affluent families during this period. Many properties have been extended or altered over the years but in most cases the additions have been made to sit comfortably with the original form and streetscape qualities and the properties continue to demonstrate the heritage values of the town and the community that formed it.
The earlier buildings are characterised by their use of lightweight materials such as timber weatherboard and corrugated iron. This is representative of development throughout the towns and villages of the Blue Mountains.
Most of these properties have survived substantially intact, including their original garden settings. These gardens continue to play an important role in demonstrating the values of Leura's contemporary cultural landscape by establishing the sense of spaciousness and graciousness that is an important characteristic of the town. The Leura South HCA includes many very good examples of more modest cottages and houses, most of which are also set in good gardens and contribute to the aesthetically powerful streetscape. The HCA also includes precincts with houses that date from the mid-late 20th century but which are set in mature gardens that make a positive contribution to the local streetscape and the overall values of the HCA."
The statement of significance for the Central Leura HCA is:
"Criterion (a): Cultural and Natural History
The commercial section of Leura Mall is of State significance because of the integrity of the assemblage of commercial and public service buildings which grew up rapidly after the railway station opened in Leura in 1890. This is also significant, like Katoomba, in having a major church building within the commercial precinct. The roadway itself is of significance because of the difficulties which it presented to the municipal authorities to maintain and beautify.
Criterion (c): Aesthetic
The central Leura Conservation Area retains a substantial number of early twentieth century buildings that combine to give the streetscape a distinctive character. A large number of early shopfronts with their recessed entries, metallic framing, marble and tiled work survive and provide important pedestrian interest. This aspect of the streetscape has been reinforced by mid twentieth century buildings with their chrome shopfronts and curved glass entries. The compactness of the commercial centre reinforces the village atmosphere of the precinct.
Criterion (f): Rarity
Leura Mall is a rare example of a high quality small commercial centre retaining very substantial integrity. Criterion
(g): Representativeness The Central Leura Urban Conservation Area retains the typical character of an early twentieth century commercial centre in a small town.
Criteria a) Historical Significance
The commercial section of Leura Mall is of State significance because of the integrity of the assemblage of commercial and public service buildings which grew up rapidly after the railway station opened in Leura in 1890. This is also significant, like Katoomba, in having a major church building within the commercial precinct. The roadway itself is of significance because of the difficulties which it presented to the municipal authorities to maintain and beautify.
Criteria c) Aesthetic/Technical Significance
The central Leura Conservation Area retains a substantial number of early twentieth century buildings that combine to give the streetscape a distinctive character. A large number of early shopfronts with their recessed entries, metallic framing, marble and tiled work survive and provide important pedestrian interest. This aspect of the streetscape has been reinforced by mid twentieth century buildings with their chrome shopfronts and curved glass entries. The compactness of the commercial centre reinforces the village atmosphere of the precinct.
Criteria f) Rarity
Leura Mall is a rare example of a high quality small commercial centre retaining very substantial integrity.
Criteria g) Representative
The Central Leura Urban Conservation Area retains the typical character of an early twentieth century commercial centre in a small town.
Integrity/Intactness: High"
The objectives of cl 5.10 of LEP 2015, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of the Blue Mountains and the heritage significance of heritage items and heritage conservation areas, including associated fabric, setting and views, to conserve archaeological sites and to conserve Aboriginal objects and Aboriginal places of heritage significance. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).
Clause 6.19(3) 'Design Excellence' of LEP 2015 imposes a jurisdictional requirement on the consent authority not to grant consent to development to which the clause applies unless it forms the opinion that the proposed development exhibits design excellence. Clause 6.19(4) specifies the mandatory relevant considerations in considering whether the development exhibits design excellence. The list of matters at cl 6.19(4) of LEP 2015, whilst mandatory are not exhaustive: Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117. The Court is required to be satisfied that the precondition contained in cl 6.19 of LEP 2015 is met prior to the grant of consent to the development application.
Clause 7.1 'Development in villages' states that development consent must not be granted for development on land identified in Pt 7 unless the consent authority is satisfied that the development on land is consistent with the objectives of the development. The relevant provision for this development is cl 7.8 (3) 'Leura Precinct' which states:
(3) The objectives for development on land identified as "Leura Precinct R1-LE03" on the Built Character Map are as follows -
(a) to promote the tourism role of Leura village,
(b) to accommodate a diverse mix of dwellings and retail and other business-related services that service the local community as well as visitors,
(c) to maintain and enhance the historically distinctive pattern of detached cottages that are surrounded by gardens and freestanding garages by conserving existing trees that provide visually significant streetscape features and ensuring that landscaping complements and extends the established pattern of tall canopy trees that are located primarily alongside property boundaries,
(d) to promote high levels of residential amenity for both future residents and existing neighbouring properties,
(e) to promote new buildings that are consistent or compatible with the scale, bulk and architectural character of existing houses and cottages,
(f) to encourage restoration of traditional architectural forms and details for existing early 20th century cottages and houses,
(g) to provide on-site parking that does not dominate the street frontage and that is integrated with the design of surrounding garden areas.
Part D of the Blue Mountains Development Control Plan 2015 (DCP 2015) contains controls relevant to Heritage Management. Those controls are discussed as relevant to the evidence in the following.
Submissions
In their written submissions the Applicant emphasises that the heritage experts are agreed that something is urgently needed to protect the site and concordantly its heritage significance. In addition to this overarching agreement the Applicant emphasises the heritage experts also agree that the new work proposed in the development application (comprising the new West wing A, B and new South wing A, B) is acceptable on heritage grounds.
Mr Larkin SC submits that in considering the provisions at cl 5.10(4) of LEP 2015, and the acceptability of the development application on heritage grounds, the Court should consider and balance any detrimental impacts with the positive maintenance, conservation and restoration works proposed within the development application. He argues when this approach is taken the Court should accept the evidence of Mr Oultram, as detailed in the HIA, the joint report and his oral evidence, that the development has an overall positive impact on the heritage significance of the site.
The Applicant's submissions detail the importance of assessment of the heritage impacts and benefits being undertaken against the statement of significance contained in the state heritage inventory (extracted at [8]). Referencing that statement of significance, and the embedded assessment against the heritage criterion, Mr Larkin SC notes the following:
The statement of significance states "most of its interiors were apparently lost in its conversion to a nursing home".
The interiors are not assessed as having "historical", "aesthetic" or any other form of significance.
The recommended management measures noted in the Inventory are:
"Conserve the external forms of the Ritz, it's garden setting and the outbuildings.
Conserve and enhance the gardens through adequate maintenance".
The recommended management focuses on the external form of the building, it does not specify the conservation of the interiors of the heritage item.
Mr Larkin SC submits that the development application is consistent with the rankings of significance in the CMP and the recommended management approach in the Heritage Inventory.
Further, Mr Larkin SC argues the Court should assess the significance of the interiors consistent with the Court's reasoning in: Bunnings Properties Pty Ltd v Ku-ring-gai Council (No 4) [2017] NSWLEC 1238 and PJM Group Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1170. Mr Larkin SC submits that doing so the Court would conclude the interior fabric of the South and West wings (Buildings A2 and A3) are not of such significance that warrant its retention.
PJM Group Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1170
"[56] The Court is required for the purposes of assessment of the consequences of demolition of a heritage item to undertake an actual assessment of the evidence in relation to the significance of the Heritage Item.
The starting point is the Statement of Significance which needs to be read as a whole.
…"
In addition to the above Mr Larkin SC argues the Court should give weight to the fact that all of the structural engineering, fire engineering, BCA and access experts agree that the proposed development is acceptable. Further, he notes that the structural engineers also agreed that work is urgently needed to avoid further deterioration. In this context, Mr Larkin SC argues the Court would accept that the extent of demolition proposed is necessary and acceptable.
Finally, Mr Larkin SC argues the Court should assess the extent of demolition against the totality of the evidence before the Court including:
The assessment of Ms Grant in the planning joint report that concludes there are no other practical alternative uses for the existing buildings;
The conclusion of the engineers that the structural issues pertaining to the heritage buildings are likely to be consistent regardless of use.
The evidence of the fire experts that alternative uses do not alleviate the need for fire upgrades to the heritage buildings given the expected requirement to bring the building into conformity with the BCA. Further, the use of the building as an aged care facility will require upgrade to Type A construction. They agree that any alternative use would also require such an upgrade and likely the need to incorporate service shafts, lift shafts, and fire isolated stair shafts and the like.
The need to upgrade the interior fabric by the application of "fire check" sheeting would mean the existing walls are no longer visible. This will impact the ongoing heritage significance of this interior fabric.
In their submissions the Applicant emphasises that in cross examination the heritage experts agreed that something is required urgently to protect the site. Further, they note that Ms Holtham gave evidence that the heritage buildings continue to deteriorate and that the rate of deterioration appears to be escalating. In this context they argue that the extent of demolition is necessary to facilitate the redevelopment and repurposing of the heritage item to allow for its conservation, retention and protection.
In response to the submissions of the Respondent, Mr Larkin SC argues the proposed development adopts a cautious approach consistent with the Burra Charter. He submits the proposed development will conserve all elements of exceptional and high significance, involves substantial conservation works including works to the managers residence, the Ritz Hotel (Building A1) and substantial repair works to the both the South and West wings. He argues the proposed demolition of the internal fabric is necessary to address established failures in the primary structure to the South and West wings and allow the buildings to comply with current regulations in regard to fire ratings, structural adequacy and access. In relation to the assessment required by cl 5.10 of LEP 2015 Mr Larkin SC argues it requires the Court to have regard to the impact of the proposed development on heritage significance as a whole. The approach advanced by the Respondent to focus on only one aspect of the development to the exclusion of others in doing this assessment is not correct.
Findings
Clause 5.10(4) of LEP 2012 asks the consent authority to consider the impact of the proposed works on the significance of the heritage item. In these proceedings that item is 'The Ritz and interiors' and encompasses the whole of the site. In undertaking an assessment of impact, the Court considers the totality of the proposed development against the provision, balancing those positive, neutral and detrimental impacts that arise from the development application. The assessment focuses on the statement of significance (see par [8]) and the criteria against which the item was found to be of local significance (see par [9]), those being: historical significance (criterion A), aesthetic significance (criterion C), and rarity (criterion F).
The Court must then balance that assessment of impact as part of the overall assessment of the application under s 4.15 of the EPA Act.
At the conclusion of this process, I find that the development application warrants refusal on two principal grounds. Firstly, the impact of the works proposed in the development application on the significance of the item 'the Ritz and interiors' is significantly detrimental even when balanced against the conservation works proposed in the application. In my view those impacts are sufficient to warrant the refusal of the development application. Secondly, the development application as a whole is inconsistent and uncertain in relation to the outcome that would follow if consent was granted. This uncertainty weighs against the grant of consent for the development application as the likely impacts of the development that would arise from the grant of development consent are unclear.
Taking the first ground supporting the determination of the application by way of refusal I accept and prefer the evidence and reasoning of Ms Holtham that the detrimental impact of the proposed development on the heritage item warrants the refusal of the development application. My reasoning follows.
The proposed development will detrimentally impact on the heritage significance of the item 'The Ritz and interiors' through the loss of internal and external fabric and the spaces that are central to its significance. In particular:
The proposed fabric loss in Building A1 is significant, including some internal walls, the original stair and the impact arising from the likely loss or dismantling and rebuilding of the upper level verandah.
I am satisfied that the proposed insertion of a lower ground floor and basement which extends below the South (A2) and West (A3) wing results in a construction and structural stability requirement that requires the removal of internal fabric in its totality. Consent is sought for the removal of that internal fabric. The basement created in these areas provides service spaces such as kitchens, laundries, storerooms and a cinema. At the lower ground level additional aged care rooms are also proposed.
The relevant sections of the preceding judgements cited in the Applicant's written submissions are extracted below:
In conclusion Mr Larkin SC submits the Respondent has unrealistic expectations about what is possible, and those expectations should not stand in the way of a reasonably appropriate and adapted development that would have an overwhelming positive impact on the heritage significance of the item and arrest its further deterioration. On the preceding basis he concludes that the development application should be approved.
In his submissions Mr Seton argues it is not the Respondent's case that the use of the site as a residential care facility is inappropriate. Rather, he argues it is the adverse and unacceptable irreversible impacts arising from the specific development application that warrant the refusal of consent. His submissions supporting this conclusion can be summarised as follows:
It is acknowledged that the site is in a vulnerable state having not been maintained or repaired for several years. However, the granting of development consent to the development application does not ensure conservation or protection of the heritage items as there is no legal obligation to implement the consent. In effect Mr Seton submits that any weight given to the vulnerability of the site and buildings should be tempered by the lack of certainty in the implementation of any conservation or maintenance works post the grant of consent.
The extent of demolition of significant fabric is inconsistent with the cautious approach advanced by the Burra Charter, namely "changing as much as necessary but as little as possible".
That the approach of maintaining only the external fabric of the heritage buildings and demolishing the internal fabric creates irreversible changes by removing an integral part of the item and then replacing that fabric with something else. He concludes that doing so will mean the item is no longer capable of being recognised for its heritage significance.
In addition to the demolition of extensive interior fabric:
1. The development application proposes unsympathetic changes to the external elevations of the South (A2) and West (A3) wings by the introduction of a new, visible level under the historical wings.
2. The demolition of the boiler house chimney referred to in the statement of significance of the item.
That in totality the changes proposed in the development application go well beyond what is necessary to reintroduce an aged care use and conserve the heritage significance of the item.
In addressing the contentions and evidence relating to the internal fabric of the first floor of the South (A2) wing and both levels of the West (A3) wing, Mr Seton emphasises firstly that most of the original fabric remains in place. Secondly in the CMP it is graded as moderate or high and by deduction this fabric contributes to the overall significance of the item.
Mr Seton accepts it is likely some internal wall fabric may need to be moved, or demolished but he concludes the extent proposed in the development application goes beyond the extent necessary. Mr Seton argues:
"44. While some of the walls may need to be moved to meet current accessibility and fire safety requirements for an aged care facility, the oral evidence of the fire engineers and accessibility experts confirmed that it was not necessary to remove all of the walls or rooms.
45. For example, in order to create a wider corridor, the wall on one side of the corridor could be moved leaving the rooms on the other side intact. The structural work required to strengthen the corridors could be achieved by applying ply bracing to 25% of the wall area. Further, any fire resistant material could be laid over existing material on the walls.
46. The engineers produced a written document in a very short period of time during the course of the hearing at the direction of the Court setting out the minimum scope of works that would need to be carried out assuming the brief was to maintain as much of the existing internal fabric and configuration is possible on the first floor of the South Wing on the ground and first floor of the West wing. The scope of works was recorded in Exhibit H.
47. It is plain from Exhibit H that it would not be necessary to undertake a complete demolition and removal of internal fabric within the first floor of the South Wing on the ground and first floor of the West wing to upgrade those things to current standards in terms of structural integrity, accessibility or fire safety."
(Respondent's written submissions dated 15 December 2023)
Mr Seton concludes that it's clear, by reference to Exhibit H, and the oral evidence of the structural engineers, fire engineers, BCA and access experts, that the upgrading requirements to comply with the BCA and achieve structural stability can be achieved by retaining substantial portions of the internal heritage fabric of the South (A2) and West (A3) wings. He argues that the proposed demolition and removal of internal fabric in these portions of the heritage buildings is clearly more than minor demolition and is not conservation as defined by the Burra Charter.
Further, Mr Seton emphasises the non-compliance of the application with the heritage objectives and controls in DCP 2015, in particular Part D 1.19. Those controls state:
Objective 02:
"To ensure that the maximum possible heritage fabric is retained during upgrading processes for access, fire safety and bushfire protection measures".
Control C3:
"Alternative solutions, deemed to satisfy provisions and negotiated agreements with fire safety and access experts are to be applied wherever possible to maximise positive heritage outcomes".
Mr Seton argues that when the Court gives weight to the specific heritage controls in DCP 2015, it should prefer the evidence of Ms Holtham about the detrimental impact of the insertion of development below the South (A2) and West (A3) wings. He submits that the evidence is clear that the alterations being made to the original elevations of the principal building forms of the South and West wings go well beyond what is necessary for restoration and reconstruction. He references the development controls in Part D 1.9.3 of DCP 2015 which state:
Objective 01:
"To retain the original built form characteristics of significant items as the predominant elements when viewed from all angles …"
Control C1:
"Alterations and additions are not to significantly alter the appearance of principle and significant façades, except to remove detracting elements".
Mr Seton concludes that the proposed development relies on a variation to the controls in DCP 2015 as it is not compliant with them (as it significantly alters the appearance of principle façades) and applying s 4.15(3A) of the EPA Act, the development application is not an alternative that meets the objective of the control.
In conclusion, Mr Seton argues in determining the application the Court should give significant weight to two matters. Firstly, the fact the proposed development is contrary to specific heritage controls and objectives in Part D of DCP 2015 and secondly, the evidence of Ms Holtham that the development will have a detrimental impact on the significance of the item 'The Ritz and interiors'. In doing so he submits the Court would conclude that the likely heritage impacts of the development are sufficiently detrimental to warrant the refusal of the development application.
The replacement of the fenestration on the eastern façade of the South (A2) wing is a change to a key public facing façade that detracts from its heritage significance. These works are proposed in combination with the demolition and reinstatement of the original fabric of the verandah in this location. Further, as noted at [62], the architectural plans nominate the original bay windows on the western façade of this South wing are to be retained "where possible". These façade works represent a notable detrimental impact to key building façades.
Finally, I note my findings at [128]-[131] about the likely further fabric removal and impacts to original fabric beyond that assessed in the heritage documents accompanying the development application and detailed in the architectural plans.
Further, I accept the evidence of Ms Holtham that the proposed insertion of the basement and lower ground floor under the West (A3) wing is unacceptable for two additional reasons. Firstly, doing so changes a principal elevation of the heritage building in a way that is detrimental to its proportion and architectural presentation. Secondly, the works associated with constructing the lower ground and basement levels have concordant detrimental impacts arising from the need to stabilise, underpin, and brace the retained fabric. These impacts arise, in my view, principally from the desire to build under the heritage wing. In considering the acceptability of these impacts I have given weight to the fact the heritage item listing includes "the interiors" and the development as a whole represents a variation to the FSR control.
When considered collectively the level of fabric removal proposed by the development application results in the removal of spaces which contributed to the historical significance of the site and its use. I accept the evidence of Ms Holtham that in listing the site and its buildings as a heritage item the spaces and their use have a significance that is beyond the fabric through which those spaces are enclosed. The heritage significance of the site, and its buildings, is more than skin deep. Demolishing everything but the external fabric of a building removes all evidence of how a building was used, its layout and arrangement, and the methods and materials of its construction - many of the things that made that building or place significant.
However, in preferring her evidence it is my view Ms Holtham places too little weight on the conservation works proposed to the Managers Residence and the Education building in her conclusions. There are significant positive benefits to the conservation works proposed to the Managers Residence and the Education Centre. Accordingly, in determining the overall impact of the development on the significance of the item I have given weight to the conservation works proposed in these two buildings as well as those proposed in the Ritz and the heritage wings themselves. Further, the development application incorporates commitments to maintenance and repair work which are clearly positive in reinforcing and ensuring the ongoing significance of the heritage item.
It is clear that the implementation of a development consent that incorporated repairs, reconstruction and conservation would have a positive impact on the significance of the heritage item. I have given these works weight in my assessment.
However, I accept the submission of Mr Seton that there is no certainty that any consent granted by the court will be implemented. While these matters are relevant, lack of certainty affects the weight I can give this consideration.
Overall, subject to Condition 12A which requires the reinstatement of the ground floor verandah and the addition of a condition of consent that required the retention of the original stair, the works proposed to Building A1 (the Ritz Hotel) are, in my assessment, supportable. The removal of detracting elements such as the semi-circular extension to the dining room, the conservation works proposed and the securing of an adaptive reuse of the building are positive outcomes for the site that will assist in securing its heritage significance. Further, the conservation works proposed to reinstate the gardens, conserve and restore the Managers Residence and the Education Centre are positive heritage elements of the development application. However, it is the direct impacts that arise from the proposed insertion of a basement and lower ground floor level below the South (A2) and West (A3) wings that in my assessment have an unacceptable heritage impact on the significance of the site. These impacts are material and expansive. This detrimental impact is exacerbated by the uncertainty of the extent of interference to original fabric that will arise from the methodology proposed to stabilise and brace these wings during demolition, excavation and construction. This matter is further discussed below.
When these positive and detrimental impacts are assessed collectively, I find the likely impacts of the development warrant refusal of the application. It is my assessment that the development application fails to adequately conserve the heritage significance of the item. I am satisfied that the detrimental impact on the heritage significance of the item is sufficient to warrant refusal under s 4.15(1) of the EPA Act.
Taking the second ground supporting the determination of the application by way of refusal it is important to review the totality of the documents that form the development application to determine what development consent is sought for. Having done so I find a number of inconsistencies between the architectural plans, the CMP, the schedule of conservation works, the structural feasibility report and the proposed construction methodology. I have noted a number of these inconsistencies in the judgement but the following specific inconsistencies bear noting:
When read in totality, the architectural plans leave open that consent is granted to the demolition of the original stair in Building A1 'the Ritz Hotel'. Refer pars [43, 44].
There is uncertainty whether the original verandah fabric at the first floor of Building A1 'the Ritz Hotel' is retained in situ, or dismantled and reinstalled. Refer par [49].
I accept the evidence of Ms Holtham that many of the notations on the architectural plans are uncertain or ambiguous, or both. Refer pars [55, 62, 64].
The structural feasibility report proposes two distinct approaches to the construction of the proposed development, including the insertion of the basement. Neither the statement of environmental effects, or the various heritage assessments, nor the agreed conditions delineate which approach is to be taken. This is despite the significant difference in approach, and the potential and actual impacts that may arise from the two options advanced by the engineers.
In my view there is a fundamental disconnect between the structural feasibility and construction methodology reports and the scope of development assessed in the HIA and the schedule of works in the CMP. I accept the conclusions of the structural report summarised at par [81]. It is clear that the heritage buildings, in particular building A2 and A3 require additional strength and bracing. What is not clear is what is specifically proposed to achieve that outcome, what work is proposed in this development application and how it is to be constructed.
When the structural feasibility and construction methodology are read together in my view the implications of the proposed development are that:
There is a risk that the verandah to the first floor of Building A2 will be structurally unstable due to the existing timber spandrel sizes, large, glazed elements in the column spacing, refer to par [81, 82]. However, I note this element is proposed to be retained in situ when reference is given to the architectural plans in Exhibit G and the schedule of conservation works Exhibit B. The potential impact of the dismantling and reinstallation proposed in the structural feasibility and construction methodology on heritage significance has not been determined or assessed.
According to the structural feasibility and construction methodology to facilitate the insertion of the proposed basement below the South and West wings (building A2 and building A3 respectively) it is expected, or necessary, for the existing ground and first floor framing, internal walls and existing piers to be dismantled.
The existing roof framing needs to be stabilised by façade bracing. I note that the construction methodology report expects the existing roof fabric to require removal (refer par (81)].
The use of façade bracing requires "substantial connection" to the heritage fabric of the façade, requiring sections of façade fabric to be removed.
The potential impact on heritage significance of the dismantling of existing piers, the removal of roof fabric and the installation of façade bracing has not been quantified or assessed.
Sheet piling rigs will be required to be positioned close to the façades of the heritage building to allow for the underpinning of the structure.
The interaction between the proposed façade bracing and the sheet piling rigs with the retained bay windows (which occupy much of the South (A2) and West (A3) wing western façades on the upper levels) has not been studied or assessed.
The insertion of new structural transfer beams in the South and West wings is required to allow for excavation to occur below these wings and the construction of the basement. However, any impact on the retained fabric from the insertion of these beams has not been quantified or assessed.
In circumstances where the development application incorporates a structural report, structural feasibility assessment and a construction methodology to detail the implementation of what is proposed in the architectural plans and the supporting heritage documents it is appropriate to give these documents weight. In effect they demonstrate the means by which the proposed buildings will be realised. The items particularised in the preceding paragraph are likely to result in greater impact to the heritage fabric than is documented or assessed in the HIA, CMP or discussed in the joint report. Isolating just the requirement for façade retention structures, which is necessary in both the options advanced in the structural feasibility report, the likely impact on the retained heritage façades of the South (A2) and West (A3) wing will be significant. The report itself notes:
"The façade retention structures will require substantial connection to the façade framing, necessitating the removal of sections of the internal and external wall finishes of these façades. Connection of façade support structures will require removal of the lower portion of the internal and external wall finishes."
(Exhibit B)
The focus of s 4.15 of the EPA Act is on an assessment of the development application in terms of what development is sought, focusing on the use of the land, the erection of buildings, the carrying out of works, demolition of buildings et cetera. As noted by Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [5], in determining a development application, a consent authority is required to consider the matters of relevance to "the development the subject of the development application" (see s 4.15(1)). The means of construction of the proposed development and how the development application intends to deliver the outcome detailed in it is a key matter of relevance.
Given the inconsistency internal to the development application noted in the preceding, the scope of work for which development consent is sought is unclear and uncertain. The impacts arising from those works is also uncertain. This uncertainty tends away from a determination of the development application by the grant of consent. As held by Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2], an Applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the Council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information that details the extent and form of development as well as arguments that relevant environmental impacts can be satisfactorily addressed.
In circumstances where the development application proposes demolition and work on a heritage listed site such uncertainty weighs against the grant of development consent for the development application. In my view this is particularly the case in circumstances where the retention of existing fabric is uncertain given the listing is founded, in part, on the criterion of aesthetic significance and rarity.
I find the Applicant has not discharged a persuasive burden of proof and the uncertainty and inconsistency within the development application supports a determination of the application by way of refusal.