Rosecorp Pty Ltd v Leichhardt Municipal Council

[1999] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION:

Rosecorp Pty Ltd v Leichhardt Municipal Council & Anor [1999] NSWLEC 114

PARTIES

Applicant:
Rosecorp Pty Ltd

Respondents:
Leichhardt Municipal Council & Anor

NUMBER:

10641 of 1998

CORAM:

Talbot J with Senior Commissioner Jensen

KEY ISSUES:

Development :- heritage considerations - open space dedication - views and streescape - deferred commencement conditions

LEGISLATION CITED:

Heritage Act s 57, s 67, s 76
Environmental Planning and Assessment Act s 91AA

DATES OF HEARING:

05/05/1999; 05/06/1999; 05/07/1999; 05/13/1999

DATE OF JUDGMENT DELIVERY:

05/14/1999

LEGAL REPRESENTATIVES:

Applicant:
Mr I Hemmings (Barrister)
Solicitors:
Norton Smith & Co

First Respondent:
Mr P Schofield (Solicitor)
Solicitors:
Pike Pike and Fenwick

Second Respondent:
Mr A Galasso (Barrister)
Solicitors:
Crown Solicitor

JUDGMENT:

Contents	Paragraphs
The appeal	1 - 3
Legal issues	4 - 21
The site and planning controls	22 - 23
The project	24 - 27
Planning controls	28 - 32
The evidence	33 - -38
Conclusion in relation to planning issues	39 - 58
Proposed conditions of consent	59 - 82
Determination	83 - 84
Orders	85


IN THE LAND AND Matter No. 10641 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES With: Jensen SC
Decision Date: 14 May, 1999


Rosecorp Pty Ltd
Applicant

v
Leichhardt Municipal Council
First Respondent
Heritage Council of New South Wales

Second Respondent

REASONS FOR JUDGMENT

The appeal

1. At the end of June 1998 the applicant Rosecorp Pty Ltd lodged an application with Leichhardt Municipal Council proposing reuse of a site at 2 - 8 Weston Street, Balmain. Lying on this site is an existing office building from the 1960’s facing onto Weston Street and behind it is a stone boatshed listed as a heritage item under the relevant planning instrument. The application proposed adaptive reuse (recycling) of this boat shed through its incorporation into a residential development involving two storey townhouses.

2. Following conventional processes of advertising and the receipt of objections, the matter was reported to the council’s Building and Development Committee in early October 1998. On 27 October 1998, the council resolved to adopt the recommendation of the officers to the building committee that the application be refused for a variety of reasons. These reasons involved the failure to properly develop the heritage item, issues relating to the streetscape design, both in heritage terms and in relation to loss of views of adjoining owners, adequacy of the open space provided along the foreshore and concerns relating to the bulk, scale and modulation of the development in the context of the heritage item.

3. These reasons for refusal were later refined into a Statement of Issues. However, it was apparent that, notwithstanding the refinement undertaken with the assistance of the council’s legal representatives, in essence the issues remained much as advised to the applicant in the letter of refusal of the council sent to the applicant on 22 October 1998.

Legal Issues

4. On 26 February 1999 Interim Conservation Order No. 947 (the ICO) in respect of the property known as Stone Boatshed, 2 - 8 Weston Street, East Balmain situated on the subject land was gazetted pursuant to s 76 of the Heritage Act 1977.

5. Immediately prior to the making of the ICO, amendments had been made to the plans which were then re-advertised.

6. On 8 April 1999 Cowdroy AJ heard argument relating to a preliminary question of law in respect of the jurisdiction of the Court to hear the application because of the effect of s 76 of the Heritage Act. The section provides that an applicant, having a right of appeal under the Environmental Planning and Assessment Act (the EPA Act) arising from the making of a prescribed application must exercise that right by making that appeal to the Minister.

7. On 22 April 1999 Cowdroy AJ delivered a written judgment and found, inter alia, that the jurisdiction of the Court is not affected by the provisions of s 67, s 68, s 76 of the Heritage Act since each section requires a prescribed application to exist within the meaning of s 56.

8. Section 56 defines a prescribed application as an application for the approval of a consent authority under the EPA Act (not being an application relating to integrated development) in respect of the doing or carrying out of an act, matter or thing the doing or carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of the Part in the Act which includes s 57. That section prohibits carrying out of development on land to which an ICO applies except in pursuance of an approval granted by the Heritage Council.

9. The council has lodged a summons for leave to appeal against the decision of Cowdroy AJ in the Court of Appeal.

10. The applicant concedes that in addition to development consent, it needs to obtain an approval pursuant to s 57 of the Heritage Act.

11. At the commencement of the hearing Mr Galasso appeared for the Heritage Council and explained that his client had an interest in the matter to the extent that, if the application before the Court was found to be a prescribed application, as the Heritage Council maintains it is, then the right of appeal must be exercised by making the appeal to the Minister. Although recognising that question will be determined ultimately by the Court of Appeal, he indicated that if the hearing of the appeal to this Court continues, his client wished to be heard on the question of conditions of consent.

12. Neither the applicant nor the council objected to the joining of the Heritage Council as a party in the circumstances. That order was made accordingly, by consent.

13. Mr Schofield foreshadowed an application to adjourn the hearing to allow the questions referred to the Court of Appeal to be determined before the issues of merit are agitated in this Court. Mr Hemmings indicated on behalf of the applicant that any application for adjournment would be opposed and further, that if an application was successful, his client would be seeking an order in respect of the costs thrown away as a consequence of the adjournment. Mr Schofield did not pursue the application for the adjournment.

14. After further discussion concerning whether the judgment of Cowdroy AJ addressed all of the requisite questions arising under the Heritage Act in relation to the power of the Court to determine the development application, the Court nonetheless elected to proceed on the basis that it had the necessary power on the understanding that the development application, when lodged, was not a prescribed application and that when the ICO came into force, the application had already been determined by council. The Court not being a consent authority as defined in the EPA Act, the requirements of the definition of a prescribed application in s 56 of the Heritage Act are not satisfied, as Cowdroy AJ found.

15. If it is ultimately found that the determination of the Court is in respect of a prescribed application made since 1 July 1998, then further questions relating to the application of the meaning of integrated development as now defined by s 91 of the EPA Act might arise. In the light of the decision of Cowdroy AJ it is not necessary to address this issue at this time because no further question can arise in regard to the issue of the Court’s jurisdiction to hear the appeal until the Court of Appeal determines otherwise.

16. In final submissions on behalf of the council, Mr Schofield submitted that the Court must refuse to hear and determine the application because:-


(i) Cowdroy AJ was in error in his determination of the question of law and therefore this Court has no jurisdiction to hear the subject application because of s 76 of the Heritage Act;

(ii) Alternatively, having regard to s 67 of the Heritage Act, the Court has no power to approve the application before the Heritage Council’s determination has been notified.


17. He further submitted that, as a matter of discretion, the Court should not determine the application until after the proceedings in the Court of Appeal, or any appeal arising therefrom, have concluded, or at least until the Heritage Council’s determination has been notified.

18. For the reasons given at the outset during opening addresses, the Court is not in a position to cavil with the answers given to the questions of law by Cowdroy AJ in the same proceedings. Cowdroy AJ accepted that the proceedings before the Court did not relate to a prescribed application and accordingly s 76 and s 67 of the Heritage Act have no application. To do otherwise than accept the ruling of his Honour would usurp the role of the Court of Appeal.

19. The Heritage Council made no strong submission that the Court not continue to hear the matter. The Heritage Council was joined as a party on the basis that it wanted to be heard in relation to the conditions of consent. The submission made by Mr Galasso was that a deferred commencement condition, to the effect that the consent should not operate until approval of the Heritage Council is forthcoming, should be imposed.

20. Having heard all of the evidence and being seised of the merit issues, it is appropriate for the Court to deliver a judgment in respect of those issues so that the parties are made fully aware of the Court’s opinion in relation to the merits of the development as determined under the provisions of the EPA Act. A condition that the consent not operate until the Heritage Council’s determination is notified will satisfy the objective of the Heritage Act provision in that respect. If there be any doubt in its mind whether the application is a prescribed application, then presumably the Heritage Council will defer the determination of the application made to it until the Court of Appeal makes its decision.

21. The Court, having heard all of the evidence, exercises its discretion in favour of a determining the appeal.

The site and planning controls

22. The land subject to appeal is in the vicinity of the Darling Street Wharf at East Balmain with a frontage to Weston Street. It also has a common boundary with the historic “Shipwright’s Arms” to the north west and land owned by the State Transit Authority (the STA) to the north east. This STA land is apparently intended for expansion into a turning area for buses. Further it is understood the land is proposed to be developed into some form of public square. This has consequences in that it also serves as the primary access point to the proposed development, requiring some form of easement of access. In addition it is apparent that significant physical work will be required over the STA land to provide this access to the level of the underground garaging proposed for the development.

23. South of the subject land is to be found a substantial area of open space running along the foreshore. Again, this is of considerable significance in that it became apparent during the course of the proceedings that the council had aspirations to extend this area through the subject site. In this regard the Court was informed that a draft plan had been prepared expressing this ambition. This plan is presently with the Department of Urban Affairs and Planning. There is no firm indication of whether the plan will ever be made and, if so, when.

The project

24. As became readily apparent from the drawings presented to the Court, the development involves three two storey townhouses set along the edge of Weston Street with two units, one set above the other, along the water frontage of the lot. These water frontage units are located in close conjunction with the heritage item.

25. The heritage item was originally proposed to be configured as two units, one above the other. In the application before the Court this was changed so that a single two storey unit with internal access would be created within the envelope of the existing stone boatshed.

26. As presented to the Court, the townhouses facing Weston Street were proposed to have hipped slate roofs, with their long axes running at right angles to the street. By contrast the units to the rear of the site adjoining the water were to have flat roofs set up as terraces accessible from the Weston Street housing. This arrangement is made available by the fall of the land which also allows car parking to be introduced below the Weston Street frontage by excavation. In addition to these arrangements, the lowest of the foreshore units is cut into the natural ground slope so that the development would be seen as two storeys from the public accessway along the foreshore or from the waters of Port Jackson.

27. The heritage item, which has evidently been significantly altered over the years, would be reinstated to very much its original appearance as a part of the project. In this regard, the recreation of the original stone Dutch gable would take the item from its existing relative insignificance to something of considerable visual prominence. The drawings suggest that the architect had in mind the fostering of this visual dominance by the treatment of the units facing towards the water frontage.

Planning controls

28. At present the land falls under the provisions of Leichhardt Local Environmental Plan No. 20 being zoned 2(b)2. Under this plan, residential flat buildings are a permissible use with consent and accordingly the application is something that the Court has power to deal with subject only to the legal issue which has arisen. The area is also within the Leichhardt Conservation Area.

29. Under Schedule 4 of the instrument, the stone boatshed, described as located at “Fenwick and Co.”, is listed as an item. In this regard conventional clauses dealing with the conservation of items of environmental heritage are contained at cl 16 of the instrument and development in conservation areas is referred to in cl 17. Further, protection of heritage items, where development is intended in their vicinity, is provided for in cl 19 of the instrument.

30. Apart from the statutory instruments, the council also applies Development Control Plan No 1 directed at residential development. These planning controls are organised on a precinctal basis. The subject land falls in the precinct known as “East Balmain”. In this regard the objectives for the future character of this part of Balmain are relevant and provide a background to the dispute that developed before the Court. As it says of the desired future character, it should:-

… retain and enhance the traditional built form and underlying landscape features. To achieve this objective development should conform to a hierarchy of scale with lower smaller scaled and more broken forms on the foreshores and slopes with higher development on the ridges.

31. Specific height controls are also provided with six metres being the general control except for specific exceptions mentioned for this precinct. Also of note in this section of the Development Control Plan are observations in relation to roof form. Again, this presented a problem for the Court to resolve. As the relevant clause says:-

Roof forms should maintain the traditional relationship to the street with balconies or verandahs in keeping with the streetscape. Hipped or gabled roofs are appropriate in most cases, preferred pitch 30 ⁰ - 45 ⁰ . Preferred roofing materials are corrugated iron or equivalent, or slate.

32. As earlier noted, the council is in the process of developing a new local environmental plan for the area. It was adopted on 5 November 1998. One of the ambitions of this new plan is the acquisition of the land the subject of the application before the Court. In this regard, provisions are made for the acquisition of such privately held land, the relevant clause being contained in 6.3. Of interest is the construction of this clause given its reliance on the acquisition of the land by the Department of Urban Affairs and Planning. As it says:-

(a) The owner of any land shown light green on the map may request the relevant public authority to acquire the land. The request must be in writing. On receipt of the request:

(i) The Department of Urban Affairs and Planning must acquire the land

(ii) Council shall program the acquisition in accordance with the priorities in the adopted contributions plan for open space and recreation.

Land identified for acquisition is listed in Schedule 3;

(b) Until the land shown light green on the map is acquired by the public authority concerned, development may be carried out on that land for any purpose with the consent of the Council, where the Council is satisfied that the development will not adversely affect the usefulness of the land for the purpose for which it has been zoned.

(c) The Council is not to grant consent to the carrying out of development of land to be acquired by the State Government unless it obtains the concurrence of the relevant Minister.

(d) Nothing in this clause requires the Council to acquire any land within the Open Space zone that may be required to be dedicated to the Council by the owner of the land as a condition of consent.

The evidence

33. Expert evidence was provided on behalf of the respondent council by Ms Adele Cowie, Council’s Senior Town Planner; Mr Paul Davies, an Architect and Heritage Consultant and Mr Rodney Howard, a Heritage Conservation Architect and Consultant.

34. Evidence from residents and adjoining owners was also provided by Mr Alan Quilliam, Mr Robert Ellis, Mr Garry Saunders, and Mr Warren Fahey.

35. Evidence on behalf of the applicant was provided by Mr Michael George, a Town Planner and Mr David Logan, a Heritage Consultant.

36. As earlier indicated, notwithstanding the array of matters raised in both the recitation of the council’s Reasons for Refusal and the Statement of Issues presented to the Court, in reality the matters for determination focussed on:-

(a) Design of the streetscape to Weston Street in a heritage context;
(b) The impact of the Weston Street facades and roofs on views of neighbours on the other side of Weston Street;
(c) The impact of the development on the heritage item;
(d) The extent of foreshore open space provided as a part of the proposed dedication to council.


37. With regard to these specific items, it is relevant that during the course of the proceedings, the council strongly promoted alternative design treatments of the Weston Street frontages so as to obviate problems of view obstruction. In addition, as a response to the explicit concerns as to conjunction of the proposed development and the heritage item, a number of subtle but significant changes to the design in the vicinity of the stone building were presented by the applicant. To the Court’s eye, these clearly represented improvements but not such as to render the development substantially different to that originally presented to the council in the development application.

38. Apart from the written and oral evidence, the Court took a view of the land and its surroundings including access to the waterway via water taxi. This exercise proved of particular value in the assessment of the extent of impact on views from the adjoining residences and the relationship of the proposed development to the existing boatshed on the foreshore.

Conclusion in relation to planning issues

Views and streetscape


39. It appears to the Court that in this part of Balmain, it would be a reasonable expectation of residents that two storey buildings would be erected on vacant sites in their vicinity. However, in this regard it is apparent from the terms of the Development Control Plan administered by the council, that there is an expectation that in general, pitched roofs would be provided on buildings with slopes of between 35 degrees and 40 degrees.

40. As became brutally apparent to the Court, in this instance establishing pitched roofs as the preferred design approach is physically inconsistent with the retention of views by those residents that live on the western side of Weston Street. In that regard, the preservation of views for such persons and the creation of two storey housing with pitched roofs is seen as representing an irreconcilable problem which was entirely confirmed by the visit of the Court to view the surroundings.

41. In this context, it is appropriate to note that there should be no expectation of the retention of a view over land not owned by a person complaining of a prospective loss. This position has been consistently taken by the Court, although it is reasonable to say that, where view preservation is possible, it is seen as a not unreasonable ambition.

42. In regard to the development application before the Court, it became apparent that the major contributing factor in this instance to the loss of views was the introduction of three hipped slate covered roofs. In addition, it became quite clear that removal of these elements would not vitiate the design of the development or render the facade treatment as so abhorrent as to be unacceptable in the context of the Balmain Peninsula.

43. It appears to the Court that because of the narrowness of Weston Street on the one hand and the location of the site between the foreshore and the existing terrace housing on the western side of the street, there would be little damage in adopting a flat roofed solution rather than slavishly adopting the pitch roof solution referred to in the council’s Development Control Plan. In passing, it appears to the Court that flat or skillion roofs could not in any case be described as intrinsically uncharacteristic of Balmain.

44. In this context, where it is apparent that the extent of view affectation is significant and could be so easily overcome, then it appears to the Court that such an amendment by removal of the roof structures, is justified. In addition, it appears to the Court that as seen from the water, if anything, the introduction of flat roofs to the proposed development would be beneficial. This is because it would allow the terrace house facades on the western side of the subject land to be seen, rather than being visually obstructed by a modern roofscape to the east.

45. During the course of the proceedings, the respondent council proposed that there be a lowering of the terrace houses in the new development along Weston Street. This, it was said, would be an appropriate method of solving the loss of views to adjoining owners. In short, the Court finds this approach to be unacceptable.

46. The creation of subterranean living spaces adjoining Weston Street could certainly be seen as characteristic of some Victorian terrace housing around metropolitan Sydney. However, notwithstanding such a model, subterranean space is seen by the Court as quite unacceptable in modern development. In addition it is apparent that depression of the foreshore terraces relative to the open space along the waterside is not feasible. With such an arrangement, depressing the Weston Street terraces would result in a misalignment of the ground floors of these buildings and the roof terrace space as presently proposed. This is seen as being an unacceptable design feature and, if it is possible, it should be avoided.

47. The Court concludes that, in this instance, the reconciliation of a desire to preserve views on the one hand, with a desire to achieve an acceptable streetscape in the context of the conservation zone, is adequately met by the amendments contained in Exhibit L.

The extent of open space


48. As proposed in the development, the extent of open space along the foreshore to be dedicated for public access was set at six metres in width. However, in reality the extent of the space in visual terms will appear to be significantly greater. As the drawings make clear, the main bulk of the foreshore terraces is set well behind the foreshore building line which is set at eight metres. It is this latter dimension that the council presses for as an appropriate dedication of land. However there has also been a proposal that, at its southern end, the access space should splay across in a westerly direction to improve the connection to the immediately adjoining open space along the foreshore.

49. With regard to this latter proposal, the Court is of the opinion that this achieves no significant improvement in access. This is because this splayed area terminates in a bank immediately behind a car park at an elevated level. In the Court’s opinion the foreshore is clearly the area where movement would be concentrated and, on this basis, the splay represents an unnecessary adjunct. Beyond that, as became quite clear, such an additional dedication would necessitate a significant redesign of the southern part of the facade of the two level flats. This would have the effect of changing the visually appropriate relationship of the new work with the heritage item which has been achieved in the design as it stands at present. Attempts to avoid the prospect of redesign in final submissions do not result in any worthwhile addition to the open space area.

50. The Court is not persuaded that more than the six metres of space proposed by the applicant is necessary to achieve a reasonable connection between the open space to the south and what is intended as a new Civic Square at the end of Darling Street.

Relation to the heritage item


51. As is apparent from the drawings and described by the experts in the matter, the project is based on the adaptive reuse of the historic Bell’s Boatshed. Notwithstanding the arguments as to whether this item could be seen as having local or regional significance, in the Court’s opinion what has been proposed represents a rational approach to the retention of an interesting old building. In this context it is noteworthy that the development application incorporates proposals to return the Bell’s Boatshed to its original appearance, including the reconstruction of the original stone “Dutch gable” and the removal of fill and a stone wall from the 1960’s located on its southern side.

52. A particular criticism of the design was associated with the capacity of an observer to detect the heritage item as a discrete element detached from the redevelopment as a whole. During the course of the proceedings, a variety of subtle but generally significant detailed amendments were proposed and accepted by the Court. These would have the effect of visually detaching the old stone building from the new structures adjoining.

53. It was perceptible that much of the expert criticism from the council’s heritage witnesses became muted in the face of these new design ideas.

54. As finally presented the Court is generally satisfied that an acceptable relationship between the heritage building and the new residential complex has been achieved. In particular the setback of the ground level study to Unit No 4 appears to achieve an acceptable level of visual detachment. This is associated with a greater setback at the level above. Here a terrace is proposed that would be set back an additional distance of approximately three metres. Thus at the uppermost level, where visual separation is most likely to be apparent, the setback of the roof in the re-entrant space is approximately seven metres. This is seen by the Court as an acceptable dimension and one that is likely to achieve the visual separation advocated by the council’s heritage experts.

55. In particular, in regard to the proposition that the new development would visually overpower or “swamp” the heritage item, the Court believes that an acceptable result has been achieved. In this regard, in other respects, the adaptive reuse of the heritage building seems to be an appropriate means of preserving it for posterity in an active format rather than as some historical artefact to be supported out of the public purse.

General design considerations


56. As presented in the drawings, the project appears to the Court to be a generally desirable use of redundant industrial land. The relationships achieved between the proposed residential development and adjoining open space in the foreshore seem to the Court to be reasonable. Further, given the context of the heritage item to be preserved, the relationship of the new development to the old is also seen as being satisfactory.

57. With regard to the vexed question of view retention as opposed to the achievement of sympathetic streetscape, the Court considers that the modification as now proposed by the applicant involving flat roofs is acceptable under the circumstances.

58. There remains one matter of concern and this is associated with access to the site by the residents. As became apparent from the evidence, the accessway to the subterranean car park assumes that some arrangement with the STA has been achieved so that access over its land can be as indicated in the drawings. It is clear to the Court that this represents a precedent issue that requires determination before the project could proceed. On this basis the orders have been constructed so as to involve a deferred commencement to allow negotiations with the STA to be concluded.

Proposed conditions of consent

59. Apart from some minor drafting differences, any real argument between the parties in regard to the draft conditions submitted by the council is limited to the issues of:


(a) whether the applicant should be required to dedicate a greater area of land for public open space;

(b) the extent of separation to be maintained between the heritage item and the new building and the retention or reuse of materials from existing structures that are to be demolished;

(c) the deferred commencement conditions; and

(d) two other minor issues.
(a) Section 94 contribution for public open space


60. The Section 94 Contributions Plan made by council in 1998 sets a per capita figure of 22 m ² to be used in the basic calculation of either land dedication or monetary contribution for the provision of public open space. Pursuant to the Plan the likely population increase resulting from the development is 21 persons generating a demand of 462 m ² . Based on the average land value and the embellishment cost adopted by the plan, the monetary per capita contribution required is $12320. The plan imposes a levy of $4510 per capita, being a substantial discount on the full amount that could be levied.

61. The applicant proposes to dedicate an area of 235 m ² being generally the six metre wide corridor along the harbour foreshore. According to Ms Cowie, this represents a short fall of 227 m ² .

62. The applicant recognises that it is liable to make a monetary contribution at the per capita rate in respect of the shortfall after dedication of 235 m ² (that is the equivalent of open space required for 10.34 persons levied at $4510 for each person thereby requiring a contribution of $46636).

63. On the other hand, the council, through Ms Cowie would prefer to maximise the dedication of land by providing a corridor or strip 8.3 m wide set back to the foreshore building line, together with a splay at the southern end to enhance the connection with the northern boundary of the adjoining Illoura Reserve. The area that would be dedicated under this proposal is 351 m ² . Ms Cowie recognises that it will require a modification to the south eastern corner of the proposed building. She provided the Court with a sketch plan to demonstrate how the council’s objective might be achieved.

64. The dedication of 235 m ² of prime waterfront land is to be regarded as a significant concession by the applicant. The Court is not satisfied that the dedication of the further area as proposed by council will provide any significant additional benefits in terms of public access along the waterfront or the amenity of the open space. Furthermore, in the Court’s view, the consequential changes to the facade of the building caused by the proposed splay will be detrimental to the relationship between the proposed new building and the heritage boatshed by creating the potential to displace the older building as the focus of attention. The design suggested by Ms Cowie also compromises the amenity of the living area and a bedroom within each of the southern most units.

65. The benefits flowing to the community by the dedication of public open space across the total frontage of this site as proposed by the applicant will be considerable. The effective credit of $4510 per capita, based as it is on the discounted average value of land in the area, is self evidently not a realistic reflection of the true value of this waterfront land. Council officers considered the acquisition cost of the whole site in June 1998 and at that time thought it likely the value of the land was double the nominal acquisition cost of $2080/m ² set for the land in the Schedule of Acquisition and Works incorporated in the Contributions Plan.

66. On balance, it is not desirable to compromise the amenity of the proposed development and the aspect of the heritage item by attempting to increase the area beyond the proposed six metre corridor. Any benefits to flow from the claimed facilitation of access to Illoura Reserve are, in the Court’s view, to a large extent illusory.

67. The public interest and the success of the proposed development will be best served by limiting the dedication of open space to 235 m ² and by requiring the applicant to make an additional cash contribution in the sum of $60163.40. This accords with the principles of the Contributions Plan which recognises that there are some sites where the contribution will be made up by both land and money in accordance with council’s Open Space Strategy.

68. Although the council expects dedication of the open space to take place at an earlier time, the Court agrees with the applicant that particularities dictate it is more appropriate for the land to be made available to council prior to occupation of any residence.

(b) Treatment of the heritage item


69. The council foreshadowed a condition precluding the attachment of any new structure to the boatshed building and requiring a minimum of four metres of landscaped space surrounding the heritage item.

70. The changes to the interface between the western and southern walls of the heritage building and the new building proposed by the applicant during the course of the hearing have been largely adopted by the Court, thereby resolving the issue.

71. Rather than dealing with the issue by way of special condition, it is more practical and convenient to incorporate the plans and diagrams generated during the hearing into the set of approved drawings. This approach is now accepted by the council which concedes the condition may be deleted.

72. There is an existing stone retaining wall running across the site subtended in a south easterly wall of the heritage building. The wall appears to be a supporting structure for fill recently placed on the site to facilitate access from the upper level to the waterfront. The general consensus of the evidence of the experts is that the wall is not an inherent part of the original building and that its removal will improve the visual capacity to appreciate the boatshed when viewed across the water form the south east.

73. It is not appropriate to maintain this wall, although reuse of the component sandstone blocks in the landscaping of the public and private open space is a laudable objective.

74. The condition originally proposed but not now pressed by council which required retention of the wall will not be imposed. Nevertheless, there will be a condition providing for reuse of the sandstone blocks on the site where practicable.

(c) Deferred commencement condition


75. There are two issues which the Court considers should be resolved by imposing a deferred commencement condition pursuant to s 91AA of the EPA Act.

76. No formal agreement has been finalised in relation to the treatment of the land to the north of the subject land presently used by the STA as a bus parking area for the service which connects to the ferry which calls at the wharf at the foot of Darling Street. Access to the proposed car park will ultimately be provided across the western section of the STA land.

77. The applicant claims to have entered into an arrangement with the STA whereby it will reconstruct the bus turning circle and gain a permanent right of way from Darling Street. The design of the proposed building does not allow for access from Weston Street or, for that matter any other point except across the STA land.

78. No proof of the detailed design of the reconstruction work has been provided. There is no evidence regarding the nature of the title to be acquired over the land of the STA in order to facilitate access to the development. Obviously all of the works for the turning circle and the means of access will require council approval, or at least should be completed only in a manner satisfactory to council. The Court proposes to impose a deferred commencement condition to ensure that detailed design drawings are approved and formal title established in favour of the subject land before any development consent can operate.

79. There will also be an operational condition requiring permanent vehicular access to be provided to and from Darling Street.

80. The Heritage Council requires a deferred commencement condition to the effect that any development consent will not operate until approval has been obtained from the Heritage Council. In the circumstances already explained and having regard to the unresolved issues in regard to the effect of the Heritage Act, it is reasonable for a deferred commencement condition to be imposed so that the applicant cannot have the benefit of acting on the consent until the approval of the Heritage Council has been obtained.

(d) The Minor Matters


81. During final submissions, the Court indicated it was not satisfied from any evidence that it is within power or reasonable that specifying the source of timber to be used for construction purposes was open to it. The applicant accepts the condition to that effect in the form proposed by the council. Notwithstanding the Court’s doubts, as there is no issued raised by the applicant, the condition will remain.

82. The other minor matter relates to the period of certification and works required to maintain the life of the sea wall. The applicant contends that a period of 10 years is reasonable, whereas the council insists that half the projected life of the wall, estimated at 100 years, is appropriate. On balance the Court accepts the submission by council in this regard notwithstanding that the potential to impose a significant burden on the applicant. It may be regarded as part of the necessary embellishment of the open space and the perpetuation of its utility.

Determination

83. Having carefully considered the whole of the evidence and after taking into account the submissions made on behalf of both parties, and following consultation with Senior Commissioner Jensen, I am satisfied that, provided the development is carried out in a manner which adopts the comprehensive amendments made to critical aspects of the roof line and the relationship between the heritage building and the new residences, the applicant is entitled to a grant of a deferred commencement development consent subject to conditions which, in the Court’s view, will ensure the development takes place in an appropriate manner.

84. The advice and assistance rendered by the Senior Commissioner, particularly in relation to the resolution of planning and heritage issues, is gratefully acknowledged.

Orders

85. The Court makes the following orders:-

1. Development Application lodged with Leichhardt Council on 30 June 1998 for the erection of three two storey town houses and two two bedroom apartments including the adaptive reuse of the existing boatshed on land described as 2 - 8 Weston Street Balmain is determined by granting a deferred commencement consent subject to the deferred commencement conditions 1(a), (b) and (c) and 36 operational conditions attached.

2. The exhibits, except Exhibits A, H, L and M may be returned.
CONDITIONS OF CONSENT
LAND AND ENVIRONMENT COURT PROCEEDINGS No. 10641 of 1998
ROSECORP PTY LTD -v- LEICHHARDT COUNCIL

The development consent is a deferred commencement consent granted pursuant to section 91AA of the EPA Act subject to the following deferred commencement conditions:-

1. The development is not to operate until the applicant satisfies the council as to each of the matters specified in this condition as follows:-


(a) The applicant is to submit and obtain approval from council for detailed design drawings for the reconstruction of the bus turning circle at the end of Darling Street, including the driveway access to the proposed basement car park. Plans are to include the interrelation of the bus turning circle to the public wharf, Thornton Park and any private properties affected by the turning circle and driveway access works.

The design drawings are to be accompanied by written approval of the State Transit Authority for:

(A) the use of the turning circle as access to the development;
(B) the design of the turning circle; and
(C) the proposed timetable for construction.
Further, the design must be consistent with Council's East Balmain Foreshore Strategy.

(b) That there is registered on all relevant titles a right of carriageway or other legally sustainable perpetual right of access in terms satisfactory to council benefiting the subject land and burdening the land between the subject land and Darling Street together with all consents required pursuant to the Environmental Planning and Assessment Act for the continuation of the access.

(c) That the applicant has obtained an approval for the works the subject of this development consent from the Heritage Council of New South Wales pursuant to s 57 of the Heritage Act 1977 by the production of a copy of the said approval from the Heritage Council to the Leichhardt Council.


OPERATIONAL CONDITIONS

1. Prior to the release of building approval the applicant is to submit to, and obtain approval from Council for, a Construction Management Plan. This Plan is to detail excavation, grading, construction and traffic management measures to facilitate access to the site. Given the narrowness of Weston Street the Plan should ensure that no construction traffic will obstruct Weston Street and whenever possible access should be via Darling Street. The Plan is to be accompanied by the written consent of the State Transit Authority for any works affecting the Darling Street bus turning circle.

2. The applicant is to submit a dilapidation report with photographic evidence, identifying the structural condition of adjoining property, including “The Shipwrights Arms”, and the retaining wall and bus turning circle at the bottom of Darling Street, prior to the release of building plans.

3. The applicant is to submit a Geo-technical report prepared by a qualified Structural Engineer confirming that the rock excavation on the site will be carried out in a manner to minimise vibration and effects on adjoining property.

4. This approval is to be regarded as being generally in accordance with the particulars and information set out and described in the Development Application registered in Council's records as DA 330 of 1998, and Drawings Numbered 98052/09B, 98052/10C, 98052/11C, 98052/12C, 98052/13B, 98052/14B and 98052/15B dated June 1998 as modified in detail by Drawings Numbered 98052-99505-1, 98052-99505-2, 98052-990505-3 and 98052-990506-1 dated 5 May 1999 except where varied by any or all of the attached conditions.

5. Provision is to be made within the subject property for 14 clearly marked vehicular parking spaces, including 2 visitor spaces, each to be of minimum dimensions 5.5 x 2.5m, in the basement carpark only together with permanent vehicular access to and from Darling Street over the area of the right of carriageway referred to in deferred commencement condition 1(b) to be constructed in accordance with the approval of council.

6. All parking areas and associated driveways are to be paved and drained to the reasonable satisfaction of the Director, Council Operations.

7. The applicant or successor is to bear the cost of providing any driveway, footpath, kerbing, guttering or stormwater drainage reasonably required by Council's Engineer. In this regard the applicant or his successor is required to confer with Council's Engineer with respect to the scope of works required.

8. An overall landscaping plan showing the unbuilt-upon parts of the site, proposed driveways, including gradient to the driveway from Darling Street, and fences, proposals for the rearrangement of the natural land surface, existing trees to be removed or retained, lawn, tree and shrub planting and beautification, is to be submitted for approval of Council's Manager of Building & Development, prior to release of the building application plans.

9. The design and location of the garbage receptacles and letter boxes is to be submitted to Council's Manager Building & Development for approval in conjunction with the landscaping plans.

10. The building application/construction certificate is to be accompanied by details or samples of proposed building materials for the approval of Council's Manager Building & Development.

11. Any clothes line provided is to minimise projection above fences/courtyard walls.

12. Being satisfied that the proposed development will increase the demand for public amenities within the area, the council requires the dedication of 235 m ² of land shown as dedicated on Plan 98052/09B (being the 6 m wide strip of land along the eastern boundary and its northern projection). Dedication is to be made prior to release of the linen plan(s) of subdivision. The council also requires a monetary contribution of $46636 calculated in accordance with the Open Space and Recreation Contributions Plan towards the provision and/or improvement of public open space.

Dedication is to be made prior to occupation of any part of the development for residential purposes.

13. Being satisfied that the proposed development will increase the demand for public amenities within the area, the Council requires a monetary contribution of $18,824.79 calculated in accordance with the Community Facilities & Services Contributions Plan towards the provision and/or improvement of community facilities and services. The Plan can be inspected at 7-15 Wetherill Street, Leichhardt.

14. Being satisfied that the proposed development will increase the demand for public amenities within the area, the Council requires a monetary contribution of $13 002.00 calculated in accordance with the Transport & Access Contributions Plan -Balmain Peninsula - Residential Development towards the provision and/or improvement of public transport and access. The Plan can be inspected at 7-15 Wetherill Street, Leichhardt.

15. The monetary contributions required in conditions 12, 13 and 14 are to be paid before release of building approval and stamped plans.

16. The applicant is advised that any application for a construction zone to be provided on a public street during the period of construction, should be made in writing at least two (2) months prior to the commencement of work.

17. A detailed drainage concept plan is to be submitted to the Director, Environmental Management with the building application/construction certificate providing for the collection and disposal of all roof water, sub-soil water and surface water and approval obtained prior to commencement of such work. This plan is to include details including location of the Gross Pollutant Trap.

18. To reduce both summer heat gain and winter heat loss, the proposed residential building(s) is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided;

R1.5 for roofs and ceilings (combined value)
R1.0 for walls

Details are to be included in the specification submitted with the building application/construction certificate.

Note: Refer to Energy Efficiency Information Sheet No 1 - Insulation

19. To prevent overheating, summer sun penetration to the north, east and west facing walls of the proposed residential buildings are to be minimised by the use of solar shading devices such as awnings, external Venetians, eaves, overhangs or other similar devices.

20. On north facing walls, shading devices are to be at least 0.45 times the height of the glazed area, measured from the bottom of the glass to be shaded. Horizontal shading devices are to extend past the edges of the glass, for at least the same distance as the width of the device.

Details are to be submitted with the building application/construction certificate.

21. To reduce CO2 emissions into the atmosphere, reduce energy consumption, and reduce reliance upon fossil fuels, a solar water heater is to be installed. The solar collector panels and storage tanks are to be located in a manner to minimise their visual impact, by installing the heater below the ridge line of the roof and away from street frontages.

Details are to be submitted with the building application/construction certificate.

22. To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings.

The building application/construction certificate is to specify the timbers proposed to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.

23. Wherever practical all sandstone blocks demolished or excavated on the site are to be reused on the site, including being used in visible locations in the landscaping of the open space (public or private), details, including method of dismantling, to accompany the building application/construction certificate.

24. The public open space is to be embellished at a rate equivalent to $60 m2 details to accompany the landscape design drawings. All landscaping and other embellishment is to have been finalised to Council's satisfaction prior to dedication of the land.

25. An application must be made to Council for the construction of all vehicular crossings and, where applicable, closure of redundant crossings. Upon receipt of advice from Council of estimated cost of construction, pre-payment of same must be made in sufficient time to enable Council to implement construction prior to completion of building. Under normal circumstances, four weeks is sufficient time.

26. Application must be made to Council's Engineer for the issue of a Certificate fixing levels at the property alignment prior to commencement of building work to ensure that the finished floor levels of new structures or land adjoining the roadway satisfy Council's roadway design requirements. If in doubt, contact Council's Operations Division, telephone [phone], to avoid being required to carry out later rectification work.

27. Prior to the release of the building approval or construction certificate the applicant is to submit an arborists report identifying what measures will be taken to ensure the survival in good health of the mature trees bordering the property, and located on Council's Illoura Reserve.

28. Prior to the release of the building approval or construction certificate the applicant is to submit a 1:20 design plan of the proposed driveway access ramp into the basement car park, achieving compliance with A.S 2890.1.

29. The restoration and adaptation of the heritage item must be documented, including but not limited to thorough photograph records made of the heritage item prior to any adaptation or works, and supervised by a heritage architect, who is to be approved by Council. The documentation is to be lodged with Council prior to release of the building approval or construction certificate.

30. All new work to the interior of the heritage item is to be reversible where possible in order that it may be readily removed at a later date.

31. Prior to release of the building approval or construction certificate the applicant is to submit to council's satisfaction a Demolition Plan. This plan is to specify what existing structures on site, including structures forming part of the heritage item and sandstone walls adjoining it, are proposed to be demolished.

32. Prior to the release of a building approval or construction certificate the applicant is to provide the following:


_ a structural engineers report into the existing condition of the sea wall identifying any works needed to ensure a continued safe condition for a minimum 50 year life span to the satisfaction of Council, with any works identified as necessary being undertaken by the applicant or developer at no cost to Council, prior to dedication of the public open space.

_ detail plans to the reasonable satisfaction of Council identifying any proposed works to the sea wall.

33. The applicant is to submit with the building application an accredited arborist's report detailing:

(A) the condition of all trees in Illoura Reserve within 8 metres of its boundary with the subject site; and
(B) the method of protecting any trees in Illoura Reserve may be affected by the works on the site.


34. All demolition, excavation, construction and landscaping work within 10 metres of the boundary with Illoura Reserve is to be supervised by an accredited arborist to ensure that the survival of all trees to be retained within Illoura Reserve.

35. The Applicant shall lodge a $50,000 bond with Council prior the commencement of any work on the site and in any event prior to the release of the building application plans to ensure the protection of the trees to be retained in Illoura Reserve. Council will claim upon the bond for any and all damage done to the trees in Illoura Reserve.

36. On completion of all work on the site, and prior to the release of any strata plans, the Applicant is to provide to Council a certificate from the accredited arborist as to the condition of the trees in Illoura Reserve certifying that no damage has been done to the trees and their longevity has not been affected by the development and building work.