The Uniting Church in Australia Property Trust (NSW) v Woollahra Municipal Council

Land and Environment Court (NSW)|2018-03-08

Judgment

COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Uniting Church in Australia Property Trust (NSW) (the applicant), against the deemed refusal by Woollahra Municipal Council (the Council) of Development Application DA/160/2018 (the application).
The application proposes a mixed use development of the (former) Rose Bay Uniting Church and Wesley Hall site at Lot 1 Section A DP 4567, being 518A Old South Head Road, Rose Bay (the site).
The site has an area of 1040m² and is located on the south western corner of Old South Head Road and Dover Road with the church fronting Old South Head Road and the hall fronting Dover Road. Dover Lane adjoins to the west.
The single storey church was constructed in 1905, with later additions in 1924, and the two storey hall in 1929. The buildings are connected by a covered pedestrian access comprising part of a 1-2 storey structure at the rear of the hall constructed in the 1970s. The front of the site is landscaped with lawn, a children's play area and a Chinese Juniper tree. The site is outlined in red below (source: Woollahra Municipal Council).
The buildings are no longer used by the applicant. Church services have ceased and the church building and hall most recently used as a day care centre, dance studio and for other community activities.

Planning Considerations

The site is located in the B4 Mixed Use zone under the provisions of the LEP where the proposed development is permissible with consent.
The development complies with the maximum height of 14.5m and floor space ratio (FSR) of 1.5:1 permissible in the LEP. The final amended application had an FSR of 0.9:1.
Neither of the buildings on the site nor the site itself are listed as heritage items in Schedule 5 of the LEP. Nor is the site located in a heritage conservation area (HCA). Therefore, the provisions of cl 5.10 of the LEP, which deal with the assessment of applications involving listed heritage items or development within a HCA, apply.
The site is situated in the Rose Bay South centre (the RBS centre) as designated at s 2.4 of Part D of the Woollahra Development Control Plan 2015 (the DCP).
In the section titled 'Historical development' (of the RBS centre), the DCP states: "The Rose Bay Uniting Church and hall at the corner of Dover Road and Old South Head Road was constructed in 1924."
The following is stated under 'Public parks and community facilities': "The church, adjacent hall and the kindergarten are a focus for community activity."
Finally, at D2.4.2 Desired future character for the RBS centre, the following: "The Uniting Church at 518A Old South Head Road provides a local landmark at the Dover Road intersection".
The buildings on the site are not referred to as 'heritage items' or 'contributory buildings'; terms used in other centres of or sections in the DCP. Nor are there specific DCP controls for the site, notwithstanding the quoted references to the buildings on it.
The development is also subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and, by reference in SEPP 65, the Apartment Design Guide (ADG).
In their joint Expert Report (Ex 3), the planners considered the development, as amended, having regard to the provisions of SEPP 65, the ADG and the DCP. No issues were raised in terms of SEPP 65 or ADG compliance.
The planners agreed that any non-compliances with setbacks and solar access were acceptable as these were a result of retaining the church building and did not give rise to any quantifiable amenity impacts on adjoining neighbours. The fourth level recess and setback facing Dover Lane was supported.
The planners also agreed that recent built form approved and under construction in the area presented as 4 storeys and the proposed building would be consistent with this built form.
However, the Council's planner sought a further setback of the fourth level to provide greater setback to the church building. This was noting that the church is identified as a local landmark in the DCP. She also sought a more curvilinear form of the green wall proposed at the front eastern and corresponding rear northern corners of the new building to reduce the severity of the angular form.
The planners also recommended changes to materials to assist in making the new building more recessive and sympathetic to the church building and in terms of the new fence. It was also agreed that the provision of a well-defined community use within the former school room would replace the hall's social contribution by providing a space for use by the local community. However, the planners did not support this space being shared by residents of the new development and the community given the private balconies of the proposed apartments were sufficient to meet the open space needs of future occupants. The planners therefore agreed that the former school room should only be used by the broader community.
They also agreed that the amended proposal involving the retention of the church retained the local landmark as identified in the DCP.
The amendments recommended by the planners or sought by the Council's planner were agreed to and undertaken by the applicant. These included a curved apex to the green facade proposed on the Dover Road boundary, removal of balconies to apartments immediately adjoining the church, retention of the existing Chinese Juniper tree in the front setback area, and the increased setback of the closest apartment to the church wall, with associated internal reconfiguration of apartments. These amended plans and agreed conditions of consent resolved all of the planning contentions.
Leave was granted during the hearing for the amended plans to comprise the application as amended (Ex B).
The only remaining substantive contention in the proceedings was therefore the impact of the amended application on the heritage values of the site.

Statutory context

The LEP defines a heritage item as an item listed and described in Schedule 5 of the LEP. As indicated, the buildings on the site are not contained in Schedule 5 and are therefore not heritage items for the purposes of how such items are assessed under the LEP. Nor is the site in a HCA.
In this regard, development affecting items that are listed or buildings on sites within a HCA is subject to the heritage conservation provisions at cl 5.10 of the LEP. The objectives of cl 5.10 include to conserve Woollahra's environmental heritage and the heritage significance of listed items and HCAs, including their associated fabric, setting and views. Development consent is required, at cl 5.10(2), for demolishing or altering a heritage item, including its interiors, and for erecting a building on land which contains a heritage item or is within a HCA.
Under cl 5.10(4), before granting consent under cl 5.10(2), the consent authority must consider the effect of the proposed development on the heritage significance of the item or the HCA.

The Planning Proposal to list the site as a heritage item in the LEP NOT IMPLEMENTED: support for w:pict - without v:imagedata

On 18 December 2017, following concerns raised by the local community that the site was being sold, the Council resolved to appoint an independent heritage consultant, Robert Moore, to conduct a heritage significance assessment of the site.
Mr Moore's assessment dated March 2018 and titled Rose Bay Uniting Church and Wesley Hall Group Heritage Significance Assessment (the HSA), concluded that the site met the criteria and threshold required to be listed as a local heritage item "on historical, associational, social and aesthetic values". It stated that the 'church group' (ie church and hall) was representative of the type of property once well represented and common, but now becoming uncommon at a local level.
The following figure extracted from the HSA provides a useful summary of the age and location of the church group in terms of the buildings on the site:
Figure 2: Staged construction of church buildings (Source: Rose Bay Uniting Church and Wesley Hall Group Heritage Significance Assessment)
Heritage Data Forms were prepared for the buildings in support of the HSA. These provide details on the site, a statement of significance, a description of the buildings on the site (including their interiors), and a draft inventory of 'moveable heritage items'.
The findings of the HSA were made available to the applicant and, on 20 April 2018, the applicant lodged the application with the Council.
The application was accompanied by a Statement of Environmental Effects (SEE) dated April 19, 2018 and a Statement of Impact (SOI), also referred to in the document as a Heritage Impact Statement, prepared by Conrad Gargett dated April 2018 (Ex 7). According to the SEE, at p30, the SOI was prepared because, notwithstanding that the site is not identified as an item of environmental heritage or as being within a HCA in the LEP, "it has been recognised that the site possesses some cultural heritage significance within the local and wider Sydney community".
On 24 April 2018, the applicant made submissions to the Council in response to the findings of the HSA supporting the listing of part of the site as a local heritage item but requesting, consistent with the application, that the listing be limited to the original 1905 church and 1924 porch/vestry extensions.
On 21 May 2018, the Council considered the findings of both the HSA and the SOI and resolved to prepare a Planning Proposal to list the site as a local heritage item within the LEP consistent with the findings of the HSA, including both the church and the hall (the Planning Proposal).
On 22 June 2018, the applicant lodged the appeal based on a deemed refusal of the application by the Council.
On 16 July 2018, the Council resolved to reaffirm its decision to progress the Planning Proposal and submitted it to the Department of Planning and Environment (the DPE) on 19 July 2018 for a Gateway Determination.
Given the relevance to the appeal, the following paragraphs summarise the history and progress of the Planning Proposal, largely derived from the public reports and findings of the DPE, summarised in the Gateway Determination Review (GDR) issued by the Independent Planning Commission (IPC) on March 15, 2019.
On 16 August 2018, the Director, Sydney Region East at the DPE, as delegate of the Greater Sydney Commission, determined the Planning Proposal should proceed as it:

"was consistent with the Greater Sydney Region Plan: A Metropolis of Three Cities, the Eastern City District Plan and the relevant section 9.1 Ministerial Directions and State environmental planning policies;
was supported by an independent heritage assessment that identified the Site as having heritage significance; and
will enlist the subject Site as a local heritage item to reinforce the heritage significance of the Site". (GDR p4)

However, given proceedings had commenced in the Court at the time of the Gateway Determination, the delegate conditioned the determination to include a savings provision, being condition 1 of a number of conditions, to enable the consent authority, in this instance the Court, to determine the application as if the Planning Proposal had not been made. Condition 1 states: "1. The Planning Proposal is to be updated to include a reference to a savings provision to apply to any development application lodged but not determined."
Additionally, the delegate did not authorise the Council as the local plan making authority primarily for the following reason: "Authorisation is not considered appropriate as there is disagreement between the landowner and Council in relation to the extent of the heritage listing… Authorisation is also not considered appropriate as the development application is subject to appeal in the Land and Environment Court." (GDR p4)
On 27 September 2018, the Council sought a review of the Gateway Determination including requesting the removal of condition 1. That review was unsuccessful with the DPE submitting their justification report for the determination on 8 February 2019. The Council requested the IPC review this determination.
As part of its considerations, the IPC met separately with the Council, the applicant and the DPE during February and March 2019.
Based on the GDR report (p5), the Council's position was as follows:
The Council had undertaken an appropriate assessment of heritage significance which informed the Planning Proposal. As part of this process, the applicant had been afforded procedural fairness noting that this process commenced well before the application was lodged;
There was no indication that condition 1 would be imposed noting that the DPE, in agreeing to the Planning Proposal, acknowledged the significance of the buildings;
The DPE imposed condition 1 solely on the basis that the Court would determine the heritage matters, specifically the degree of significance;
The Council had a strategic approach to heritage listings (but), based on the advice of the DPE at the time, did not undertake a comprehensive heritage study when transitioning the Woollahra Local Environmental Plan 1995 across to the current LEP; and
The reason for not seeking an Interim Heritage Order (IHO) for the buildings (under the Heritage Act 1977) was that the Planning Proposal would afford appropriate protection.
At the meeting, the Council provided to the IPC a letter from Mills Oakley (the applicant's lawyers) to Wilshire Webb Staunton Beattie (the Council's lawyers) regarding the appeal. The letter includes a request that Council remove from its SFC all reference to heritage (contentions).
The Council's justification for seeking a Gateway Review was that condition 1 had the potential to nullify the purpose of the Planning Proposal. The aim of the listing was to provide ongoing protection and recognition of the heritage significance of the buildings. Condition 1 had the effect of allowing the application to be determined prior to the formal listing without consideration of the heritage conservation provisions contained in cl 5.10 of the LEP.

The applicant's challenge to the validity of the heritage contentions

Three days prior to the commencement of the hearing, the applicant filed a Notice of Motion (the motion) seeking that the heritage contentions be struck out of the proceedings. The primary contention sought to be struck out was that the development should be refused as it did not conserve the environmental heritage of Woollahra (contention 4). There were 23 particulars in support of this contention. In addition, the motion sought that associated contentions be also struck out. These raised concerns with the impact of the demolition of Wesley Hall including on the local character (contention 3b) and the lack of justification for the development arising from the adaptive reuse of the church (contention 3f). The motion also sought that no expert heritage evidence could be adduced at the hearing.
The reason for the motion was the decision of the DPE to 'save' the application through condition 1 in the Planning Proposal. The affidavit in support of the motion from the applicant's lawyer, Mills Oakley, references a letter from them to the Council's lawyers, Wilshire Webb Staunton Beattie, dated 22 February, 2019 in which they claim the contentions are based on an assumption that the impact of the proposed development on the 'alleged heritage significance' of the buildings on the site is a relevant consideration. The assumption was flawed and incorrect as the site is not listed as a heritage item in an Environmental Planning Instrument (EPI) nor a draft EPI, is not within a HCA or within the vicinity of heritage items or a HCA, and the application does not require a Heritage Impact Statement as the Planning Proposal had no legal status under s 4.15 of the EPA Act. There was therefore no legitimate statutory basis upon which the Council could raise heritage contentions in the proceedings.
The motion was initially listed for the commencement of the proceedings. However, I instead listed the motion before me the day after it was filed.
In responding to the motion, I indicated that I did not consider it appropriate to deal with a motion to dismiss the majority of the contentions at the start of the hearing, when experts and the parties had been dealing with the heritage issues since the refusal of the application. That is, the heritage issues were and had always been central to the Council's contentions. I did not consider it a reasonable proposition for the applicant to be placing the experts, the Council, or the Court in the position of now proceeding without addressing this contention. The parties and the Court were aware of the Gateway Determination of the Planning Proposal but that did not mean that, whilst cl 5.10 of the LEP may not apply, the heritage values of the site do not need to be addressed.
Mr Patterson, lawyer for the Council, confirmed that the heritage contentionns were a major component of the case, and it would be very difficult for the Court to deal with the matter without the heritage expert Joint Report (not then filed), as that would inform the Court as to what the experts think about the heritage elements in the matter.
Submissions were made by Mr Seymour, counsel for the applicant, in support of the motion, claiming it was case management. Legally, a structure either has heritage significance, or it does not. That is not to say it does not have historical significance for planning purposes, but the word "heritage" attracts certain legal consequences. If something does not have that significance, it does not have those legal consequences. The applicant therefore was not saying that the issue should not be assessed, it should, but it should have its relevant legal context. The involvement of heritage experts pretends that the structures have a legal significance they do not have. Similarly, the Council could not pretend that the buildings have a heritage significance that they do not have.
Mr Seymour argued that the applicant had not sought to strike out the entirety of the Council's case. The issue of historical significance would still properly be assessed. The expert planners had done that within the context of actual relevant controls by referencing the landmark status of the church in the DCP.
I ruled that the heritage contentions were to remain.
I indicated that the applicant needed to make the argument that listing a building as a heritage item is the sole basis on which it has any heritage significance. I also noted the motion sought to strike out contention 3b which makes no reference to the heritage significance of the hall. Mr Seymour agreed however, maintained the contention should be struck out if it was intended by the Council that the hall's value was as a heritage item. He maintained that the Council was treating the buildings as if they had heritage rather than historical significance and hoping for a different outcome in terms of the Gateway Determination.
I agreed that the Gateway Determination set aside consideration of cl 5.10 in dealing with the application and therefore neither the applicant nor the heritage experts had to address the requirements of cl 5.10. However, that did not mean that the heritage value of the buildings, and the basis for the Council's refusal of the application, did not need to be considered and addressed by relevant experts.
The heritage contentions were raised in the refusal of the application, in the SFC and in the amended SFC. They were always core contentions in this appeal.
Further, after the SFC was filed, the applicant sought, and was granted, leave by the Court to rely on the amended application now the subject of the hearing. In support of the amended application, there were a number of documents filed and a number of statements made in terms of the site's heritage values.
The documents included the Curio Projects letter prepared on behalf of the applicant which indicated that the development as amended would result in a far superior heritage outcome for the site than the original application. The letter references heritage impacts, not heritage items or cl 5.10. The applicant chose to amend the application for this reason, not due to the site's listing as a heritage item. The application may have been amended at the time given a concern with the prospect of such a listing but this is the application before the Court, and these are the supporting documents that go with that application.
In this regard, the affidavit states that, if the amendments are granted (as they were), it would reduce the contentions between the parties as the amendments reduced the impacts. There are a number of references to heritage related grounds for the amendments.
This was not said to be done to address the specific requirements of cl 5.10, even if that may have been the intent in case this was required by the Gateway Determination by the time of the hearing. Whilst I understand why that may have been done, the applicant's own heritage expert concedes or acknowledges that there are heritage values to consider.
Further, the church is noted as a landmark building in the DCP and referenced in the historical development of the area. Yet the motion sought to remove all contentions dealing with the heritage or historic value of the site.
Mr Seymour submitted the applicant was only seeking the removal of references to 'heritage significance and values' and the legal connotation of those terms, including the need for heritage impact assessment and conferring a status on the buildings which they did not have.
However, I indicated that I did not read contention 4 as saying that the applicant must comply with the provisions of cl 5.10. Whilst the HSA was undertaken before the application was lodged, and concluded that the buildings should be listed as heritage items, that listing was a separate process with associated statutory consequences in terms of application assessment. The Council was not referencing or relying on the requirements arising from listing in their contentions.
The SFC raised the HSA and the conclusions arising from it in terms of heritage values of the buildings on the site. The applicant had, in support of both the original application and amendments to it, sought and submitted heritage advice. Therefore both the applicant and the Council have had heritage advice that the site has some heritage value.
Further, the DPE was not saying that the site should not be listed for its heritage value but only the application should not be assessed as if the site was listed under cl 5.10. Instead the DPE suggests the Court could and should consider heritage factors in determining the application, whilst not itself dealing with the heritage value of the buildings.
I advised the parties that they needed to separate out the heritage item requirements under cl 5.10 from whether or not a building can still be argued to have local or other heritage value even if it is not listed and therefore exempt from cl 5.10. The experts need to tell the Court what the heritage values of the site and the building are, in their expert opinion. If the contentions were struck out, I queried on what basis such expert evidence could come before the Court?
Mr Seymour submitted that only the DCP referenced values of the site should be considered and it would be legally inappropriate for the buildings to be treated as if they had the same status as listed heritage items under the LEP.
I reiterated that I did not accept that, just because something is not listed as a heritage item in the LEP, did not mean that experts could not agree that it still had heritage value at some level, which is a relevant consideration. I indicated it would be for the parties at the hearing to make submissions as to those values and the weight to be given to that where cl 5.10 does not apply.
I further reiterated that the applicant came to the Court seeking leave for amended plans on the basis they better reflected the historical values of the site and referencing a superior heritage outcome in response to the heritage contentions raised by the Council. That was either the applicant's position and the position of its heritage experts or it was not. If the amended application was no longer considered to be a necessary or positive heritage outcome then the applicant needed to advise the Court that this was the case.
Mr Patterson also submitted that both the applicant and the Council had agreed that the church and the hall had some heritage significance and the Council was concerned if this was no longer the case.
In ruling that the heritage contentions remain, I summarised the reasons. The parties indicated that they did not need me to provide reasons in detail, albeit I indicated I was in a position to do so. However, the applicant requested written reasons be provided in this judgment, as I have just done.
I also indicated the matter could be the subject of further submissions at the hearing given counsel for the Council was not able to be in attendance to respond to the motion and on the basis that the expert heritage Joint Report had yet to be filed.
At the commencement of the hearing, Mr Hemmings SC, for the applicant again raised the heritage contentions as to their relevance given the site was not heritage listed in the LEP and so cl 5.10 did not apply. He therefore questioned on what basis, under s 4.15 of the EPA Act, heritage could be a relevant consideration having regard to the Chief Judge's decision as to the application of s 4.15 in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158? The Planning Proposal had not progressed to the status of an EPI nor a draft EPI as required to be considered in evaluating the application for the purposes of subss 4.15(1)(a)(i) and (ii) of the EPA Act. The heritage provisions in an EPI were the relevant consideration under s 4.15. Using the public interest consideration at s 4.15 was inappropriate as heritage factors were addressed through EPI provisions which did not apply to this application.
Mr Clay SC, counsel for the Council took the Court to the decision of the Senior Commissioner in considering the heritage value of the Metropolitan Remand Centre (MRC) in Vision Land Glebe Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1593 (Vision Land) where she stated at [95]: "I have adopted Mr Davies approach to the question of determining the significance of the MRC. The starting point being whether there is sufficient heritage significance to warrant local listing. While the fact that it is not locally listed does not necessarily mean that it is not of significance, its status in that regard is a relevant consideration to be weighted with all other evidence."
Mr Clay also submitted that cl 5.10 of the LEP does not indicate how heritage values are determined in order for items to be added to Schedule 5 but they sometimes are added. Therefore a site can still have heritage values even without an LEP heritage listing. The impacts of the development on the heritage values of the site therefore remained valid contentions.
In considering the parties' submissions, I had already addressed the status of the Planning Proposal and ruled that, whilst it has been the subject of a Gateway Determination, the results of which are in evidence, as it had yet to be notified, it was not an EPI nor a draft EPI required to be considered in evaluating the application for the purposes of s 4.15.
However, for the purposes of evaluating the application, I nevertheless considered that it was appropriate for the Court to take into consideration the following other matters for consideration that are relevant at s 4.15: 1. Section 4.15(1)(a)(iii), being 'any development control plan', given the reference to the site in the DCP including as part of the historical development informing the character statement for the Rose Bay South centre, being a focus for community activity, and the designation of the church as a landmark building when considering the desired future character of the Rose Bay South centre. Such DCP references need to be the subject of evidence and submissions as to what those references mean; 2. Section 4.15(1)(b) being 'the likely impacts of the development including environmental impacts on both the natural and built environments and social and economic impacts on the locality'. In my view, impacts on built environments include on the heritage values of the buildings including the social heritage values argued by the local community; 3. Section 4.15(1)(c) being 'the suitability of the site for the development' given those values; 4. Section 4.15(1)(d) being 'any submissions made in accordance with the Act', noting that a number of such submissions had been made raising concerns with the loss of the buildings on the site and their social and heritage value to the community; and 5. Section 4.15(1)(e) 'public interest' for all the above reasons but also for reasons which I now turn to.
As indicated, the DPE's Gateway Determination of the Planning Proposal was conditional upon the Council inserting condition 1 having the effect of saving the application the subject of the proceedings from having to have regard to the listing of the site as a heritage item in the LEP and therefore having to comply with the requirements of cl 5.10 of the LEP. The reason the Planning Proposal has not progressed to notification, and therefore can not be considered as a draft EPI, is only because the Council opposes the inclusion of this condition, not because the DPE does not accept that the site may have heritage values warranting its listing.
It is therefore a matter of public interest why the Planning Proposal has not progressed evident from the history of it comprising part of the Council's bundle at Ex 1 (Tab 18). I have already quoted some of the findings of the DPE but they include the existence of the application and this appeal and, given the Planning Proposal could directly affect the outcomes of the Court case, condition 1 was added to "ensure the Court process can continue and make an independent determination on the extent of the heritage of the site"
I again queried how the Court could do that if heritage considerations were not the subject of any evidence in the proceedings?
I reiterated the DPE's statement that: "The Land and Environment Court still has the opportunity to support and recognise the heritage of the buildings to determine what impact the proposed development pursuant to the development application will have on any heritage significance and whether the partial demolition of the buildings on the site is suitable… "
The DPE references the application as seeking to adaptively reuse and retain the 1905 church building and the 1924 front entry porch and that: "The development application recognises that whilst the site is not included in the LEP as a local heritage listing and is not in the New South Wales State Heritage register it has cultural significance that is recognised by the local community…"
The DPE identified that there are conflicting opinions between the applicant and the Council relating to the extent of heritage listing. In particular, that there are conflicting heritage impact statements from the Council and the applicant and in terms of the degree of required retained buildings under the application. The DPE concluded that "it is clear however that both parties recognise the heritage significance of the original 1905 church building". This is stated in the Gateway Determination report.
Therefore, the DPE formed the view that the proposal to list the site as a heritage item was not in dispute rather the degree to which all or some of the buildings should be included in the listing was in dispute.
The status and outcome of both the Planning Proposal and the application are in the public interest as they both seek to recognise and retain heritage aspects of the site albeit to different degrees. The DPE indicated that condition 1 was imposed on the basis of procedural fairness given the application preceded the initiation of the Planning Proposal. However, the DPE is seeking that the Court determine the acceptability of the application having regard to the heritage values of the site.
I also noted that the DPE is of the view that the retention of only some aspects of the buildings may not undermine the LEP heritage listing. This is based on their, and the Court's, (initial) understanding that the applicant supported the site's heritage listing. Condition 1 therefore assumed that the application would be determined by the Court on its merits having regard to the heritage impacts in this context.
Had the DPE believed that the applicant was (now) of the view that the site had no heritage value warranting listing, and the Court should therefore have no regard to the impact of the development on those heritage values, I consider their determination may have been very different.
I also agreed with Mr Clay that cl 5.10 of the LEP does not indicate how heritage values are determined or items added to Schedule 5. Planning Proposals can and do include adding heritage items to LEPs based on new assessments over time. It would be a perverse outcome if regard could not be had to the heritage value of a site in order that it could be added to the LEP schedule because, if it wasn't in the schedule already, it must not have any heritage value.
In Vision Land, whilst I accept those proceedings related to a building in a HCA, and therefore subject to cl 5.10 unlike these proceedings, that was not the basis on which the Senior Commissioner made her comments at [95] that the fact a building is not a listed heritage item in the LEP does not necessarily mean that it is not of heritage significance.
In summary, and as previously outlined: the application included commentary on, and documentation addressing, heritage values; the applicant's heritage consultants agreed the buildings on the site had heritage value; the Court had granted leave to amend the application in response to the applicant's submissions that the amendments would result in significantly improved heritage outcomes for the site; and heritage experts appointed by both parties had since filed their expert heritage Joint Report for the Court's consideration with differing views on the heritage values of the buildings on the site.
For all of those reasons, I again ruled that there was a need for heritage evidence and to consider the Council's heritage contentions.

Applicant's objection to the Council's heritage expert

In dealing with the heritage contentions, the applicant raised concerns that expert heritage evidence was being provided for the Council by Robert Moore, the consultant who had prepared the HSA for the site for the Council. Mr Moore then prepared the expert heritage Joint Report with the applicant's heritage expert, Mr Phillips filed in the proceedings (Ex 6). The applicant sought that Mr Moore be precluded from giving evidence as he was not an independent expert.
Mr Hemmings submitted that Mr Moore did not meet the requirements for an expert set out in the Uniform Civil Procedures Rules 2005 (the UCPR), including having regard to the Expert Witness Code of Conduct at Schedule 3, nor did he meet the expert witness requirements in the Court's Practice Note - Class 1 Development Appeals (the Practice Note).
In particular, Mr Hemmings argued that the Practice Note required an expert witness to identify any pre-existing relationship between the witness, or their firm, and a party to the proceedings. Expert Joint Reports are to then deal with the contentions as raised by the parties.
However, Mr Hemmings submitted that, as Mr Moore had prepared the HSA, he was already expressing his expert opinion on heritage matters. He also had an existing relationship with the Council and was therefore not independent in terms of providing evidence to the Court. The HSA was a form of expert report on which Mr Moore sought to rely. However, it had not been prepared in accordance with the Court's requirements for expert reports. Either the HSA or the expert Joint Report involving Mr Moore could be entered as expert evidence, but not both.
Mr Hemmings referenced Justice Jago's decision in Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 (Ray Fitzpatrick) where the Judge did not accept an expert's evidence as the expert had not, amongst other things, met the Court's required Code of Conduct in preparing his expert report and the underlying facts and assumptions behind his evidence could not be adequately exposed to scrutiny.
Mr Clay argued that Mr Moore had been commissioned by the Council before the proceedings commenced as an independent heritage consultant to prepare the HSA. That assessment was a historical document in the proceeding like documents of other experts and was a reference document for the parties. Mr Moore was subsequently separately appointed as an expert by the Council for the proceedings. That was very different from the situation in Ray Fitzpatrick where the validity and accuracy of the expert report filed in those proceedings was in question and the expert filing his expert report in the proceedings had not complied with the Court's Code of Conduct.
I ruled that Mr Moore was able to provide expert evidence and be the Council's heritage expert in the proceedings, and gave detailed reasons. As requested by the applicant, those reasons are explained in this judgment.
Firstly, in terms of the UCPR, the HSA prepared by Mr Moore was not provided as an 'expert report' produced for the proceedings as that term is defined in r 3.18. He was giving opinions as evidence in the proceedings through the expert Joint Report (Ex 6) and oral evidence under r 31.18. Mr Moore's 'report' to which the heritage contentions refer is in fact the HSA. The HSA was prepared in March last year. It was not filed in the proceedings as an expert report in terms of the requirements at r 31.27. It did not detail the expert's qualification on the issue the subject of the report, the facts on which 'the opinions' of the report are based, and so on in the form required by the UCPR, albeit the HSA does detail heritage significance findings by Mr Moore.
Rather, the expert Joint Report arising from the conference between Mr Moore and Mr Phillips is the 'expert report' filed under r 31.27 (Ex 6). This report addresses the matters and opinions required of both experts to assist the Court in these proceedings. This does not mean that the parties or their experts, including Mr Moore, cannot refer to his HSA as a background document. In fact it is an important document being the only heritage assessment undertaken of the site using the cultural heritage criteria issued by the OEH. However, it is not the expert report prepared for and relied upon as such by the Council in the proceedings.
Secondly, I cited r 31.23 Code of Conduct (of experts) which requires, at (3), that, unless the Court otherwise orders, an 'expert report' may not be admitted in evidence unless that report contains an acknowledgement by the expert witness by whom it was prepared that the expert has read the Code of Conduct and agrees to be bound by it. Clearly such an acknowledgement does not exist in the HSA nor would it, because, as I've already indicated, it was not prepared as an expert report for these proceedings.
The HSA prepared in 2018 by Mr Moore was one of the appendices to the Planning Proposal which was in evidence (part of the Council's bundle, Ex 1). Other appendices included the draft Heritage Data Sheets also previously prepared by Mr Moore and the Conrad Garggett SOI on heritage matters prepared for the applicant in support of the application. These are, like the HSA, relevant background documents prepared by experts.
I did not agree that the findings in Ray Fitzpatrick provide a basis for Mr Moore being precluded from being an expert in the proceedings. Part of the reason for Justice Jago not accepting the expert witness in that instance was because the evidence of the witness was in dispute as were all the underlying facts and assumptions behind it. These needed to be adequately exposed to scrutiny but were not, as a review of the disputed evidence made clear at [9]. She further held, at [10], that there was a real risk of significant prejudice to the applicant should the 'disputed evidence' be admitted because of the way the evidence was originally created, and that prejudice was not capable of rectification. She also concluded that the expert's evidence was inadmissible including by reference to such basic requirements as authorship and disclosure of underlying reasons and it was against that background that she dealt with the disputed evidence.
That is not the case in these proceedings. There is nothing that suggests Mr Moore's evidence, nor the underlying facts and assumptions he relies upon to support it contained in the HSA, have been inadequately exposed to scrutiny nor deliberately inaccurate, albeit some of the findings of the HSA are not agreed with. Mr Moore followed an accepted process to assess the heritage values of the site based on guidelines issued by the OEH. The applicant's experts had not indicated that any different assessment process should be undertaken nor that they do not understand the underlying facts or assumptions that support it, albeit Mr Phillips did not agree with Mr Moore's findings supporting a heritage listing in the LEP. Further, the applicant knew of Mr Moore's role in preparing the HSA, and his findings in it, prior to lodging the application.
In Ray Fitzpatrick, Justice Jago was particularly concerned that the expert had no regard to the Court's Code of Conduct for experts in preparing his evidence. By contrast, in the expert Joint Report, Mr Moore has indicated he is bound by the Code and understands his duty to the Court accordingly, and I accept that. In Ray Fitzpatrick, at [20], the starting point was that expert reports prepared without any cognisance of the Code were inadmissible. The expert Joint Report in these proceedings was not prepared on that basis.
Mr Moore was commissioned by the Council as an independent heritage consultant prior to the proceedings commencing to determine if the site had heritage value not to justify on behalf of the Council that the site had heritage values.
I did not accept an inference that Mr Moore would come to another expert conclusion than the one he came to following due process of heritage assessment of the site with a different client. This calls into question his professional standing and ethics which I do not accept and which I do not believe was suggested by the applicant.
It was for the applicant to determine what of Mr Moore's evidence was in dispute in terms of his reliance on his HSA, and the applicant was assisted in that regard by Mr Phillips as the applicant's heritage expert in the proceedings.
I considered that there was no prejudice to the applicant should Mr Moore's evidence be considered given it was based on his prior heritage assessment which had been not only made available to the applicant but was provided to the applicant well in advance of these proceedings.
Mr Moore was nominated as the Council's expert on heritage matters from the outset. As directed by the Court, he participated in joint conferral with the applicant's heritage expert, Mr Phillips prior to the hearing. In this regard, an issue in Ray Fitzpatrick, at [12], was the potential difficulties of dealing with admissibility questions in advance of the hearing and the parties had agreed that the dispute about the admissibility of expert reports should be resolved immediately. If deferred until the hearing the uncertainty about admissibility would unreasonably affect further preparation for proceedings. Similarly, any concern about Mr Moore, his evidence or his ability to be an expert in these proceedings could and should have been raised much earlier given his role in undertaking the HSA, on which he relied, was known before the application was even lodged.
Nevertheless, as requested, I specifically considered the appropriateness of Mr Moore to give evidence. That he had previously undertaken the HSA for the Council as his client did not, in my opinion, mean he could not then be appointed as the Council's expert in the proceedings. Many experts in this Court give expert evidence or file expert reports on a similar basis, namely based on their opinion expressed in prior reports prepared for a party (usually the applicant in support of the applicant's proposal). These prior reports are not generally filed as 'expert reports' in proceedings as that term is defined by the UCPR but support such expert reports which are subsequently filed.
It is not uncommon, for example, for traffic engineers, on behalf of applicants, to prepare their expert reports or give evidence in proceedings on, say the required parking or access for a development, based on their prior assessment of what is appropriate in that regard for the application. Similarly, acoustic experts prepare their evidence on the basis of their background reports and assessments produced for the applicant prior to the proceedings. The same is true of arborists, view loss impact assessment experts and the like. The other party (typically the Council) provides an expert to dispute such prior findings or assessments.
At least in this instance, the applicant has had the benefit of many months of access to Mr Moore's HSA and, as I indicated in my reasons for the heritage contentions remaining, the applicant responded to this assessment by engaging heritage consultants, who agreed the site had some heritage values, and by amending the application and seeking the leave of the Court to that amended application on the basis that it had a superior heritage outcome.
In terms of the Court's Practice Note, at [22], before the first directions hearing, the parties are to discuss and endeavour to agree upon, a statement of the disciplines in respect of which they propose to call expert evidence and the names of those experts. At [25], the parties must apply for Court directions permitting the adducing of expert evidence. No objection is recorded by the applicant to Mr Moore being the Council's expert in the knowledge he had previously prepared the HSA.
I therefore ruled that, not only should the HSA of Mr Moore be referenced and in evidence (and could be relied upon by the Council), but that Mr Moore could give evidence as an expert given the circumstances of the case. However, the applicant could make submissions on the relevance and weight that should be given to his evidence, relative to that of their own expert, Mr Phillips, in terms of the HSA and the heritage impacts of the proposal.

The heritage expert evidence

Mr Phillips had not undertaken any heritage assessment of the buildings on the site (the church group) but he had had regard to the HSA prepared by Mr Moore as well as to the Curio Project report. He ultimately agreed that the church should be retained.
However, Mr Phillips was of the view that the church group did not meet the threshold for listing under the LEP noting that listing the buildings would not, in any event, foolproof the site from development or preclude demolition of the hall.
Mr Phillips argued that, in a municipality known for the thoroughness of its heritage listings, the site has never been listed even though the existence of the church was noted in a 1984 study of buildings in the Woollahra LGA as a precursor to Schedule 5 listings (the Hughes Truman Study). Historically, the church group represented the Methodist congregation that once existed in the locality which has now moved elsewhere. The Uniting Church sees no reason for the retention of all the buildings in order to maintain an understanding of their historical association with the site. He argued the church was a modest example of work of McCredie & Sons with the hall an even more modest and a relatively minor example of the work of Byera Hadley.
In his view, the church is the primary building on the site architecturally and in terms of association with the Methodist Church. It was the more architecturally distinguished of the two buildings and the focus of view corridors towards the site. The hall is simpler in expression and addresses a secondary street being a support utilitarian building. The church and its early additions are being retained. Removal of the more modest hall would provide for new works which would in turn facilitate the conservation and continuing adaptive reuse of the church.
In Mr Phillips' view, the social significance of the church group had diminished significantly in the absence of the congregation and the use of the buildings by other groups was of limited value and could occur in other buildings.
In his view, the hall was representative of many adjoining churches in Australia and it had lost its social significance with the local community when the church uses ceased. He considered the aesthetic significance of the site lay primarily in its streetscape presence but otherwise the buildings consist of a modest church group.
Mr Phillips argued that the bulk and scale of the new building would not overly dominate the church because the proposal was simple in form and detail and in the context of buildings that are currently approved and under construction in the vicinity. It is recessive and forms a simple backdrop to the church.
The new development was setback 27m from Old South Head Road behind the church building with the church left substantially intact except for internal works proposed as part of an adaptive reuse. It would present as one storey above the ridgeline of the church, would not be visible in viewlines from Old South Head Road, and would not obstruct view corridors to the church which would remain clearly visible from the public domain and fully identifiable as a building of its era. The bulk and scale would be further reduced by the use of a green wall as a recessive element in existing mature street tree planting.
Mr Phillips argued that the church would retain its dominance at the corner and therefore maintain a contribution to a sense of place and identity as a distinctive character element in the surrounding area and would read as a freestanding building located on the corner. In his view the hall, located to the rear, made far less contribution to the character of the area as it was set away from the corner and behind the church building.
Mr Moore disagreed with Mr Phillips. He claimed that the Council, in seeking the heritage listing of the site, was responding to evolving community interest in heritage of all periods at a time of increasing rapid change and development pressure. He noted that the Uniting Church may not place as much social heritage value upon the site as the local community for whom it still has a significant physical and aesthetic presence. His recommendation for the listing of the church group was multi-faceted based on his assessment.
Both experts agreed that the schedules of listed heritage items in many LEPs included items that should not be there and excluded heritage buildings that could be included. Further, that it was appropriate that items could be added through due assessment and process.
However, Mr Hemmings was critical that Mr Moore had prepared the HSA in only 3 weeks, his recommendations were in a draft form, and he had limited access to the site. The assessment had yet to be referred to OEH for their assessment and had not been publicly notified.
Mr Moore accepted these criticisms but nevertheless stood by his assessment and advised that it is usual practice for recommendations to be draft until the assessment is notified and feedback can be obtained including from the OEH. He understood that what he had prepared may not be accepted but it was a starting point.
Mr Moore was concerned that the bulk and scale of the proposed new building, together with its form, detail and immediate proximity, would dominate the site whereas the church currently commands the site. Furthermore, the existing hall is a substantial building but skilfully designed to complement the church in scale, bulk and proportion. He considered the new development dismissive of the church being virtually against it. In his view, other buildings in the vicinity do not lend any supporting argument to what is proposed on the site as an important site specific relationship is required between a local landmark building and a new building. In his view, materials and finishes would not be capable of ameliorating the misfit of the proposed new building with the existing church.
Mr Moore also did not accept dismissal of Wesley Hall as a modest building and he considered its adaptive reuse should be considered.
Mr Phillips argued reuse of the hall would be difficult. There was no disabled access to the upper level and, with limited foyer space, installation of a lift and fire stairs would require substantial building modifications. Further, the roof would need to be replaced. Such works would require considerable expense with no viable alternate use for the building or income for its maintenance. This would be an unreasonable burden on the Uniting Church which is acknowledging its contribution to the Rose Bay community through retention of the church building.
Mr Moore did not agree that the hall was locally minor or that it was incapable of appropriate alteration, as was common for many heritage halls. This should be investigated. He agreed a viable ongoing use would need to be found however, demolition should not be the first resort.
Mr Moore also considered that the proposed conservation works to the church had been poorly defined and documented. Mr Phillips agreed with this and that a schedule of conservation works was an appropriate condition.
In terms of moveable heritage, Mr Moore was concerned that this would be lost. However, Mr Phillips argued this material belonged to the Uniting Church to reuse as they could.
In summary, Mr Phillips argued that the proposal enhanced, retained and restored the landmark church through conservation works and enabled the balance of the site to be developed with a recessive building and for a purpose that would fund the church's ongoing maintenance. Mr Moore argued that the church's setting would be compromised by the large development proposed on the site and by the loss of Wesley Hall.
In closing submissions, Mr Hemmings reiterated great care needed to be taken in assessing the impact of the development on the existing buildings to ensure a more rigorous assessment was not undertaken of the site's heritage values that would occur were it heritage listed in the LEP. What was proposed was an adaptive reuse of the church in recognition of its landmark value. He noted the fact of listing would of itself not prevent the demolition of the hall or require adaptive reuse of the church.
Mr Hemmings submitted that I should give little weight to the heritage values of the church group given the lack of listing and that the Planning Proposal was not even a draft for the purposes of the EPA Act. He maintained that there was difficulty in not undertaking a formal route to assessment and leaving it to the Court to have to do that assessment. There was no guarantee the Planning Proposal would even proceed. It was a political process and still had to be the subject of submissions.
In his view, the Court would have great difficulty in protecting all of the buildings simply on the opinion of Mr Moore expressed in a draft document particularly given he was engaged by the Council, accepted he would have liked more time, and noted a number of limitations in the assessment and in the draft Heritage Data Forms. The process to list the buildings has therefore only just started.
Further, the Council could have tried to list the buildings earlier or sought an IHO on the site which would have precluded the Court from considering the appeal. The Court was placed in a difficult position with limited assessment of the buildings to consider, in fact in an impossible situation.
Mr Hemmings concluded that it was relevant that the applicant is proposing to retain the church. Whilst the site is not listed as a key corner site in the DCP, the church is listed as a local landmark. The application retains this landmark and provides community space for the community space that is lost. The planners agreed that all of the relevant planning controls had been met and that the development was acceptable in its amended form. Mr Moore's evidence did not indicate why the development was unacceptable given the new building was proposed behind the retained church. The applicant had also accepted conditions including undertaking conservation works.
Finally, it was difficult for the Court to have to determine the difference between heritage significance and landmark status. However, I could be satisfied that the demolition of the hall, and its replacement with something appropriate having regard to the planning controls and with no neighbour impacts, was an appropriate outcome for the site.
Mr Clay submitted that the role of the Court was to assess the heritage significance of the church group and identify the implications of this in terms of the impact of the proposal on that significance to determine the acceptability or otherwise of the application. The proposal involved demolishing Wesley Hall and replacing it with a new building as well as adaptive reuse of the church.
He did not consider it appropriate to give the heritage values little weight notwithstanding the site was not listed in the LEP. The DPE clearly considered that the Court would look at the impact of the development on the site's heritage values and historical significance.
Mr Clay noted that the only heritage evidence before the Court was the HSA prepared by Mr Moore as an independent heritage consultant at the time to the Council. The applicant had not undertaken its own heritage assessment but had accepted the listing of the church and the 1924 extensions. Mr Phillips had also agreed that the church should be retained.
Mr Moore's conclusion was that Wesley Hall was significant but he was the only one who has done the assessment of it and this was prior to the application to demolish it. The hall had been designed by a notable architect and was of historical significance with a social value that will be lost with its demolition. There was no answer as to why the hall could not be kept and adapted other than financial considerations.
The Court also needs to be satisfied that the replacement building has an appropriate relationship between old and new in terms of what is retained. There is minimal separation between the proposed new building and the retained church. The Council maintained the proposed building would be overbearing and dominant whereas the existing hall complements the church in built form and proportion.
Mr Clay also submitted that, whilst the planners agreed on a range of matters, they deferred to the heritage experts in terms of impact on the historical significance of the church group not just as a landmark item. Further, the Court should be comfortable in the knowledge that the Planning Proposal to pursue the site's listing in the LEP would likely go to at least public exhibition.

Conditions in dispute

The parties did not agree on the proposed conditions of any consent, in terms of dealing with heritage issues.
The Council sought conditions requiring a Conservation Management Plan (CMP) to be prepared and approved by the Council prior to any application for the first use of the church. The Council also sought a schedule of conservation works within the CMP which also deals with significant fixtures and items of the church with those to be removed, collected and recorded. An assessment is to be undertaken and inventory prepared of all items of movable heritage located in or connected with the church and hall, with these items either retained within the church site and incorporated into the new development or securely stored. Further, a Heritage Interpretation Strategy is to be prepared and heritage interpretation measures incorporated into the design. The conditions also sought that all church windows and door openings remain.
The applicant agreed to conditions requiring a separate application being submitted for the first use of the church (and community space) and to engage an experienced heritage expert to prepare a detailed schedule of conservation works. This expert would guide design decisions to ensure that the new works will not adversely impact upon the historical significance of the church. Further, the stained glass windows in the elevation of the church to Dover Road were to be retained in full or incorporated into door openings. Finally, the applicant agreed to prepare a full archival record of the church group prior to demolition of the hall and alterations to the church. All other 'heritage actions' sought by the Council by way of conditions were opposed.

Findings on the application

The only remaining contention in the proceedings, following amendments to the proposal and agreed conditions, was the heritage significance of the buildings on the site, and their contents, and whether these should be retained or would be unreasonably impacted by the proposal, thus precluding the development.
Much of the background and evidence in the proceedings related to the process for the proposed listing of the buildings on the site (the church group) as heritage items under the LEP, commencing with the preparation of a heritage significance assessment prior to the application being lodged.
Whilst it was agreed that the subsequent Planning Proposal had not progressed, and therefore did not have the status for consideration as an EPI or draft EPI, the DPE had supported continuation of the process for the listing but excluding the application from being required to consider that outcome. However, the DPE did expect and assume that the Court would nevertheless have regard to the heritage values of the site in the belief that both the applicant and the Council acknowledged the site had some heritage value but disagreed on the extent of that value and in particular whether that value extended beyond the church building to include Wesley Hall.
Regrettably, the DPE's decision leaves it to the Court to have to determine the heritage values of the site based only on a draft HSA (not yet notified or reviewed), background heritage documents prepared for the applicant which found the site had heritage values but these findings were not supported by the applicant's heritage expert in the proceedings or by the applicant, and the evidence of the two heritage experts in the proceedings who did not agree on those values.
The heritage experts did agree that heritage items can be added to an LEP over time. Therefore, the fact that a site is not heritage listed in an LEP does not mean that it has no heritage values.
It is the case that the process for LEP listing of the church group was not commenced as the result of a strategic review by the Council of the need to add additional heritage items to its LEP but was rather a response to a concern that the buildings on the site were under threat given they were no longer being utilised for their constructed purpose and the applicant sought an alternative use for the site. However, that is not material to whether or not the site has heritage values warranting LEP listing. That decision is based on a heritage assessment that is then reviewed, assessed and notified through a Planning Proposal process which, in this instance, has yet to be substantially advanced.
The Planning Proposal has not progressed as a result of the Council's opposition to the conditions in the Gateway Determination imposed by the DPE. Consequently, there has not been referral of the proposed listing to the OEH for assessment of the HSA findings by the appropriate State agency and no more detailed or critical analysis of the HSA, acknowledged to be in a draft form, until that was undertaken by Mr Phillips in this appeal, and only to a limited degree. That makes my determination of the heritage values of the site difficult.
Whilst I respect Mr Moore's finding in his draft HSA that there is sufficient heritage value to support listing both the church (and the 1924 additions to it) and Wesley Hall, including their interiors and moveable items, there were and remain no guarantees that, at the end of the Planning Proposal process, including with the OEH review, public submissions and more detailed scrutiny of the heritage values, the listing would be made even if this application failed. Mr Moore acknowledged this.
Based on the evidence, and without undertaking due process associated with new LEP heritage listings, I am unable to conclude that the buildings on the site, including their interiors and contents, have sufficient heritage value to warrant their listing. However, that is not my role. My role is to determine the application before the Court in the statutory context in which it needs to be evaluated and determined.
That determination does not preclude the Planning Proposal process for listing continuing whether consent was granted by the Court or not, albeit I accept that, if consent is granted and the development proceeds, the listing would be in the absence of Wesley Hall.
Further, even if the site, including Wesley Hall, had already been listed there would be nothing to stop a similar application albeit there would be a greater degree of assessment of heritage significance, as required by cl 5.10, but with a more complete understanding, assessment and acceptance of the site's heritage values.
In determining the application, it is therefore in the absence of that complete understanding, but noting that the DPE's Gateway Determination of the (draft) Planning Proposal was based on the Court having regard to the heritage values of the site, with the application 'saved' on that basis.
Even if the preparation of the HSA and the seeking of the heritage listing of the site in the LEP was opportunistic and not strategic, ultimately the Court can only go on the evidence which, in the majority, concluded there are some heritage elements on the site worth retaining. These have been retained in terms of the church and informed the design of the amended application including the ongoing community use of the former school room being part of the 1924 additions to the church.
In this regard, it is relevant that heritage experts for both parties considered that the church group had some heritage value. It was the extent of that value which was in dispute. However, ultimately it was agreed that at least the church, and the 1924 additions to it, including the school room, should be retained and adaptively reused, as the application now proposes.
As I have earlier outlined, it is also relevant that the application before the Court had been amended with the leave of the Court in order to retain and adaptively reuse the church and former school room. The new development proposed behind was amended to respect the heritage values of the retained church building, albeit resulting in demolition of Wesley Hall and its replacement with a modern 4 storey building in close proximity to the church. The applicant chose to amend the application based on expert advice that these amendments would significantly improve the heritage outcomes for the site.
On the evidence before me, I accept that the church group has some heritage value, that also being the conclusion of heritage consultants for both the applicant and the Council and therefore the understanding of the DPE.
The issue therefore is whether or not the application as amended and before the Court is an appropriate development response for a site not given formal heritage recognition by way of listing in the LEP (albeit that outcome may eventuate if the Planning Proposal is progressed) but having some heritage value and containing a building recognised as a local landmark in the DCP.
I find, in the circumstances and based on the evidence before the Court, and noting how the application was amended to respond to heritage considerations, that it is an appropriate response. Consent should be granted to the (amended) application accordingly.
Whilst the demolition of the hall is regrettable, I accept that, without undisputed expert evidence and conclusions as to the heritage value of the hall and the extent of consideration of heritage significance required under cl 5.10, it would be unreasonable to apply more protective status to the hall than would be applied if that significance had been accepted and reflected by heritage listing in the LEP.
I also note the Council has had the opportunity to seek an IHO over the site which would lead to a process whereby more detailed assessment of the buildings on the site could be undertaken and the buildings, at least temporarily, protected. The Council has, to this point, chosen not to do so.
The hall does not have the same presence to the corner of Old South Head Road and Dover Road as is provided by the church. Further, the reference to the church, but not the church and hall, as a landmark building in the local area in the DCP, despite both the church and hall together also being referenced elsewhere in the DCP, indicates that the church building ought to be afforded more protection and consideration in terms of heritage values, than the church hall.
In this context, and on balance, the amended proposal with its adaptive reuse of the church including the 1924 elements and the treatment of the new development behind it in place of the hall is a reasonable outcome. It retains the church as the landmark identified by the DCP and also enables the community to continue to access and use the site as it has in the past. This retains the historical connection between the site and the local community, of importance to that community as reflected in submissions on the application. The existing Chinese juniper tree in front of the church is also to be retained.
The evidence of the planners was that the new development in scale, bulk, height and appearance was appropriate to its context and as envisaged by the planning controls. There are buildings up to 4 storeys adjoining and opposite, the FSR is less than the maximum permissible in the LEP, and the height complies. No compliance issues were contended in terms of SEPP 65 or the ADG. Further, the evidence was that there would be no adverse impacts arising from the new development in terms of amenity impacts on adjoining neighbours.
There are therefore no planning or amenity issues, or issues raised by objectors that have not been addressed, which warrant refusal of the application.
Finally, I note agreed conditions of consent include the requirement for a schedule of conservation works. The schedule is to be prepared prior to any demolition or alteration works.
In terms of the conditions in dispute, I find that those proposed by the applicant should be imposed. In addition to requiring a schedule of conservation works to be undertaken under the supervision of a heritage expert, they require a separate application for use of the church and former school room and protect those church windows that are not required to be removed. I accept that some windows must be removed for access and fire safety reasons associated with the adaptive reuse of the church.
Development consent is granted on the basis of those conditions accordingly. In my view, any more stringent conditions, as sought by the Council, such as requiring a Conservation Management Plan or retention of movable items from the church group buildings cannot reasonably be applied to buildings not listed as heritage items, nor where the assessment of the heritage value of the buildings and moveable items has not been validated by detailed review or due process.

Orders

The orders of the Court are: 1. Leave is granted for the applicant to amend the application to rely on the amended plans comprising Exhibit B to the proceedings. 2. The appeal is upheld. 3. Development Application DA/160/2018 for a mixed use development involving the demolition of Wesley Hall and the adaptive reuse of the Rose Bay Uniting Church is approved subject to the conditions in Annexure "A". 4. The exhibits are returned except Exhibits B, F, and 2.

Jenny Smithson Commissioner of the Court Annexure A

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019

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