Trustees of the Roman Catholic Church for the Archdiocese of Sydney v The Council of the City of Sydney

[2025] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:

Trustees of the Roman Catholic Church for the Archdiocese of Sydney v The Council of the City of Sydney [2025] NSWLEC 1551

Hearing dates:

10-13 June 2025: final submissions 23 June 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) Restrictions 1, 2 and 3 contained in the Section 88E instrument relating to Dealing 3604713 do not apply to the development the subject of Land and Environment Court Proceedings 2024/266232, to the extent necessary to enable the development the subject of the grant of consent to be carried out.

(3) The appeal is upheld.

(4) Development application D/2023/1153 for the demolition of the existing car park, excavation, and construction of a new chancery building comprising offices premises, a bookstore, cafe and community meeting rooms, associated landscaping and fencing to 2 St Mary’s Road is determined by the grant of development consent, subject to conditions of consent at Annexure A.

(5) All exhibits are returned excepts for Exhibits A, B and C.

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation – the effect of the proposed development on heritage significance of an item – whether exhibits design excellence

Legislation Cited:

Charities Act2013 (Cth)

Conveyancing Act 1919 (NSW), s 88E

Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15

Environmental Protection and Biodiversity Conservation Act 1999 (NSW)

Land and Environment Court Act 1979 (NSW), ss 39, 64

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 3.1, 3.2, 3.3, Ch 3

Sydney Local Environmental Plan 2012, cll 4.3, 4.3A, 4.6, 5.10, 6.10, 6.17, 6.19, 6.21C, 7.14, Pt 6, Subd 3, Sch 5

Cases Cited:

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Applicant)
The Council of the City of Sydney (First Respondent)
Heritage Council of New South Wales (Second Respondent)

Representation:

Counsel:
I Hemmings SC with M Staunton (Applicant)
A Singh (Solicitor) (First Respondent)
T To (Second Respondent)

Solicitors:
Dentons (Applicant)
Council of the City of Sydney (First Respondent)
Department of Climate Change, Energy, the Environment and Water (Second Respondent)

File Number(s):

2024/266232

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: St Mary’s Cathedral in Sydney has been a part of the Sydney skyline in some form for more than a century, and a Catholic Church has been a feature of its site since a church of that name was first dedicated in 1836.

2. Put simply, it is a site of significance to the Catholic community in Australia. It is also a site of heritage significance for the built form that stands on the site.

3. St Mary’s Cathedral is the oldest Catholic church in Australia, and the former school building on the site, variously known as Chapter Hall or Chapter House, is the oldest building in the St Mary’s Precinct and possibly the oldest intact Catholic school building in Australia.

4. Together, St Mary’s Cathedral and Chapter Hall are identified as items of State heritage significance, and form part of what is known as the St Mary’s Cathedral Precinct, which is bounded by St Mary’s Road to the north, Cathedral Street to the south, and College Street to the west.

5. For completeness, the St Mary’s Cathedral Precinct also includes a Sacristy building to the immediate west of the site proposed for the development, Cathedral House, and St Mary’s Cathedral College. A large public square and public swimming pool complex collectively known as Cook + Phillip Park lies to the south, outside the St Mary’s Cathedral Precinct.

6. The St Mary’s Cathedral Precinct is a reasonably compact campus of buildings from across eras, ranging from the sandstone heritage informed by European styles of Gothic revival, to more utilitarian buildings in brick and precast concrete evident in Cathedral House and St Mary’s Cathedral College.

7. The Applicant in these proceedings, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (the Archdiocese) proposes a six-storey building to serve as a Chancery to be located to the east of the Cathedral in a space between the Cathedral and Chapter Hall, currently used as a car park.

8. The Chancery is proposed to comprise the following functions:

1. Offices.

2. A bookstore and cafe, and public toilets.

3. Community meeting rooms.

9. Landscaping works are also proposed to the perimeter of the Chancery building, including but not limited to, the replacement of a modern aluminium palisade fence fronting St Mary’s Road with a fence comprising sandstone piers and metalwork.

Evolution of the appeal

10. The Archdiocese set out a chronology of pre-lodgement meetings with state government agencies, the Council, and the Heritage Council from 2021 to 2023. (Exhibit D)

11. According to the Amended Facts and Contentions prepared by the Council (Exhibit 1R-1), the Archdiocese lodged development application D/2023/1153 on 15 December 2023 seeking consent for the following:

1. removal of the existing car park (10 parking spaces);

2. excavation and construction of a six-storey chancery building, comprising office premises, a bookstore, a cafe, and community meeting rooms;

3. extend sandstone piers and metal palisade fencing; and

4. associated landscaping, including the removal and transplanting of existing trees.

12. On 16 May 2024, a meeting was held at Town Hall House, attended by representatives of the Archdiocese, Heritage NSW, the Council of the City of Sydney (the Council), the first Respondent in these proceedings, and the Heritage Council of NSW (the Heritage Council), the second Respondent in these proceedings.

13. On 8 July 2024, correspondence issued by the Council requested the Archdiocese to withdraw or amend the development application.

14. On 19 July 2024, the Archdiocese filed an appeal against the deemed refusal of the development application in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

15. On9 August 2024, the Heritage Council advised the Council that it intended to alter the designation and extent of the heritage item known as St Mary’s Catholic Cathedral and Chapter House so that the curtilage of the heritage items would be consistent with the curtilage of the existing heritage listing under the Sydney Local Environmental Plan 2012 (SLEP) that encompasses the whole of St Mary’s Precinct.

16. I note here that the Heritage Council appears under s 64 of the Land and Environment Court Act 1979, and so may, in accordance with sub s (2) examine witnesses and address the Court with respect to matters relevant to the proceedings.

17. On 27 August 2024, Council refused the development application.

18. The proposal to alter the extent of the curtilage of the existing listing on the State Heritage Register, cited at [15], was publicly exhibited until October 2024.

19. On 19 November 2024, the Minister directed the amendment to the curtilage on the State Heritage Register to not proceed.

20. On 16 April 2025 the Archdiocese was granted leave to amend the development application, and the proposal was notified once again between 17 April 2024 and 2 May 2025.

21. On 28 April 2025, the First Respondent filed an Amended Statement of Facts and Contentions (Exhibit 1R-1), contending for the following:

1. Building height

2. Failure to exhibit design excellence

3. Lack of master planning for the precinct

4. Inappropriate design and unacceptable heritage impacts

5. Poor landscape design

6. Sustainable development not demonstrated

22. On 29 April 2025, the Second Respondent filed its Amended Statement of Facts and Contentions (Exhibit 2R-1), contending for adverse heritage impacts, likely adverse archaeological impacts, and deficiencies in heritage assessment and other documentation.

23. At the commencement of the hearing, the Court granted the Archdiocese leave to rely upon further amended plans and other documents that the parties agreed would benefit from further conferencing of experts. An amended construction methodology prepared by TTW Engineers was marked for identification and the Council was granted leave to rely on structural engineering expert, later identified as Mr Kevin Mongey of SDA Structures, to confer with the expert for the Archdiocese.

24. A joint expert report was filed by the structural experts on the final day of the hearing (Exhibit 1R-9), recording agreement on all aspects.

25. As a result of those amendments, the Council advised that certain aspects of design excellence were now resolved, as were certain aspects initially contended in respect of height.

26. A supplementary joint expert report was prepared following further conferencing of heritage experts, that also included the architect for the Archdiocese, Mr Angelo Candalepas, (Exhibit 1R-8).

27. Those contentions remaining can be summarised as follows:

1. Building height

2. Failure to exhibit design excellence

3. Inappropriate design and unacceptable heritage impacts

4. Deficiencies in heritage assessment (lack of master planning)

5. Public interest

28. On the final day of the hearing, the Archdiocese was granted leave to rely upon the following amended plans and other documents that it accepts represent amendments that are more than minor:

1. Amended Architectural plans (Exhibit C, Tab 1)

2. Amended Landscape plans (Exhibit B, Tab 3)

3. Amended Civil Engineering plans, prepared by TTW (Exhibit A, Tab 9)

4. Amended Stormwater Management Report, prepared by TTW dated 12 June 2025 (Exhibit A, Tab 34)

29. The Council, as the relevant consent authority, approved the amending of the development application by those documents listed at [28], subject to the Archdiocese paying the costs of the Council thrown away as agreed or assessed in accordance with s 8.15(3) of the EPA Act.

The Heritage Significance of St Mary’s Cathedral and Chapter Hall

30. It is commonly held that St Mary’s Cathedral and Chapter Hall, and their setting, are part of one of the most important civic and religious precincts in Australia.

31. The experts agree that both buildings are listed as items of State heritage significance and are identified by a single non-contiguous listing in the State Heritage Register under the Heritage Act1977, being St Mary’s Cathedral on College Street and the Chapter House on St Marys Road.

32. That is, the two buildings are listed together as a single item of heritage, but they do not occupy the same site.

33. By contrast, the listing of the two buildings in Sch 5 of the SLEP is "St Mary’s Cathedral and Chapter House group including interiors, grounds and fences".

34. Relevantly, it is the space between the two buildings that is the site for the proposed development.

35. In addition to the site being identified for its heritage significance at a local level, it is also located within what is known as the Governors Domain and Civic Precinct National Heritage Place (the Governor’s Domain), which encompasses an area of land depicted on the National Heritage List to include land to the immediate south of the Sydney Opera House, to the south of Hyde Park, and from the well known Obelisk in Macquarie Place to its western most extent, to the eastern edge of the Domain to the east. (Exhibit 1R-2, Folio 599)

36. As such it is listed on the National Heritage List under the Environmental Protection and Biodiversity Conservation Act 1999. For completeness, the area also includes a number of sub-precincts including the Hyde Park Barracks (which is also World Heritage listed), the Former Registrar General’s Building, the Royal Botanic Gardens, and the College Street sub-precinct comprising “St Marys Cathedral, grounds and school”.

37. It follows that the site is within the vicinity of heritage items including, but not exhaustively; Hyde Park, the Archibald Fountain, Busby’s Bore Fountain, Former Registrar General’s Building, The Domain, Hyde Park Barracks and Mint Building.

38. The site is also within an area designated Central Sydney in Section 5.1 of the Sydney Development Control Plan 2012 (SDCP), and more specifically is located within the College Street/Hyde Park Special Character Area.

39. Council controls as to heritage items and special character areas are contained in Section 5.1.3 of the SDCP, with objectives in the following terms:

"(a) To conserve heritage items in their entirety.

(b) To conserve and enhance former warehouses and provide for their appropriate use in a manner that retains significant courtyards, cartways and other historic features.

(c) To conserve and enhance significant features within the public domain of Special Character Areas.

(d) To ensure appropriate height transitions between development and heritage items as required by Clause 6.16 of Sydney LEP 2012.

(e) To enhance existing public views and vistas to heritage items.

(f) To conserve the setting of heritage items by ensuring that new development respects and reinforces the significant scale, form, modulation, articulation, proportions, street alignment, materials and finishes of heritage items in the vicinity"

40. As the proposal is adjacent to items of heritage significance, the provisions at Section 5.1.3.2 of the SDCP are relevant and provide as follows:

"5.1.3.2 Development adjacent to heritage items

(1) New development adjacent to a heritage item should respect and reinforce the historic scale, form, modulation, articulation, proportions, street alignment, materials and finishes that contribute to the heritage significance of the adjacent heritage item.

(2) Consideration must be given to the impact of adjacent development on the significance, setting, curtilage, landmark values and ability to view and appreciate the heritage item from Public Places."

41. There are also general provisions in respect of development in the vicinity of heritage items at Section 3.9.5 of the SDCP, such as:

"3.9.5 Heritage items

Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant views to and from the property.

Objective

(a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.

Provisions relevantly provide:

…

(3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the:

(a) building envelope;

(b) proportions;

(c) materials, colours and finishes; and

(d) building and street alignment.

(4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by:

(a) providing an adequate area around the building to allow interpretation of the heritage item;

(b) retaining original or significant landscaping (including plantings with direct links or association with the heritage item);

(c) protecting, where possible and allowing the interpretation of archaeological features; and

(d) Retaining and respecting significant views to and from the heritage item."

42. A Heritage Impact Statement prepared by Urbis dated 4 April 2025 (HIS) (Exhibit B, Tab 6) includes a Statement of Significance sourced from a Conservation Management Plan prepared by Urbis and dated 3 May 2025 (Exhibit 2, Tab 18). The Statement of Significance is as follows:

"The Cathedral site is the oldest place maintaining its use as a place of worship for the Catholic community in Australia. It is the site of the original St Mary's Cathedral, the first Catholic church in Australia which was officially dedicated in 1836 and destroyed by fire in 1865. The site is significant for being the first land granted to the Catholic Church in Australia. Being the site where Governor Macquarie laid the foundation stone of the first St Mary’s, it symbolises the reconciliation of the Catholic Church and the Australian State. The site of St Mary’s Cathedral is also significant as the oldest permanent place of residence of the Catholic clergy in Australia.

St Mary’s Cathedral and Chapter Hall are associated with significant figures in the history of the Catholic Church in Australia notably with Father Therry, Archbishops Polding and Vaughan, Cardinal Moran and Archbishop Kelly all of whom are buried in the Cathedral’s crypt. St Mary’s Cathedral and Chapter Hall are also associated with important persons of the 19th and 20th centuries including Governors Macquarie and Bourke and the architects Pugin, Wardell and Hennessy.

The Cathedral is the place where the International Eucharistic Congresses of 1928 and National Eucharistic Congresses of 1954 were celebrated and where the first Pope to visit Australia celebrated mass in 1970 and, through its organists, choir masters and bell ringers has played an important role in the musical history of Sydney.

St Mary’s Cathedral is significant as a landmark building with the city of Sydney occupying a prominent position along a ridge running north-south on the eastern edge of the central area of the city, projecting a dominant and inspiring presence. The Cathedral’s external elements, such as stairs, fences, retaining walls, light fittings and statues, add to its aesthetic significance by providing it with an appropriate visual setting at ground level. The refinement and scholarship of its composition and its details are of the highest rank. The Cathedral also demonstrates excellent high quality of craftsmanship, including the terrazzo and mosaic floors in the Cathedral and Crypt executed by the Melocco Brothers. The aesthetic significance of the Cathedral is further enhanced by the collection of artworks which it houses. It is a repository of many items of considerable aesthetic significance: from the stained-glass windows to the altars and statues, from the vestments and liturgical objects to the paintings and mosaics. It is also important for being a venue of musical events and has a considerable role in the practice of bell ringing in Australia.

Chapter Hall is the oldest building extant on the site erected in 1844. It is possibly the oldest surviving Catholic school building in Australia and was built to an amended designed [sic] by A.W.Pugin. Chapter Hall is a fine and early example of the Victorian Academic Gothic style applied to an ecclesiastical building. The use of the Chapter Hall as a school and general purpose hall has been continuous since erection and its role as an early public meeting place is highly significant.

The Cathedral is of major architectural significance as the largest 19th century ecclesiastical building in the English Gothic style anywhere in the world. The Cathedral Chapter Hall located to the east is significant as the oldest building extant on the site, possibly the oldest surviving Catholic School building in Australia and evidence to suggest an important direct involvement in its design by Pugin. (State Projects, 1995)."

Building height, bulk and scale

43. In the first instance, the Council contends that consent for development on the site is constrained because the proposal exceeds the height control – a fact that is unable to be remedied under cl 4.6 of the SLEP.

The application of the height standard on the site

44. The Council submits that the height controls applicable to the site preclude any structure or building on the site with a height greater than the structure or building that was on the site at the time the SLEP commenced on 14 December 2012.

44. As the only structure or building on the site at that time was the car park and certain retaining walls, development consent cannot be granted to anything greater in height than what was extant at that time.

45. While cl 4.3 of the SLEP commonly designates a height of building standard to land within the local government area, the St Mary’s Cathedral Precinct is somewhat unique in that no numerical height standard applies. Rather, the area is delineated by a bright green border on the relevant map, designated "Area 1".

46. This designation is particularly relevant to the terms of the provision at cl 4.3(2A) which provides:

(2A) Despite any other provision of this Plan, the maximum height of a building on land shown as Area 1 or Area 2 on the Height of Buildings Map is the height of the building on the land as at the commencement of this Plan.

48. The site shares its designation with other locations that are, in Council’s submission, also of great public interest including the Sydney Opera House, Sydney Town Hall, Queen Victoria Building, and some of the former state government sandstone buildings on Bridge Street.

49. The Council argues that it defies planning logic to encourage taller buildings in those special areas designated Area 1 and Area 2.

50. Mr Li’s written evidence is that such a provision was exercised in the consent granted at the Capella Hotel at 35-39 Bridge Street (the Capella Hotel). In that case, an existing part of the building was relied on for compliance with the identical provision, which according to Mr Li demonstrates that compliance is to be achieved by reference to the highest point of an existing building. In the case of the Capella Hotel, the site is occupied by one building whereas the subject site is one lot within a precinct occupied by multiple buildings.

51. To the extent Mr Cirillo’s written evidence also cites alterations and additions to the Sydney Eye Hospital and the State Library of NSW, Mr Li regards these to be unhelpful as that land is shown as Area 2, and not Area 1.

52. The Council also submits the provision at cl 4.3(2A) is not facultative or beneficial but serves to cap height on the land, and for which dispensation under cl 4.6 is not available. As such, the only conclusion to draw from the provision is that building heights in areas designated Area 1 or 2 are frozen as at the date of 14 December 2012.

53. In applying the provision to the land that is proposed for the development, the land is properly understood to be that land on which the building is proposed to be erected. This is a subset of the St Mary’s Cathedral Precinct, and is not the whole of that precinct.

54. In the alternative, the Archdiocese submits that the exercise to be undertaken is an exercise in statutory interpretation, which starts with the text of the provision, understood in context.

55. The relevant height map at cl 4.3(2) of the SLEP does not identify a numerical height standard, but rather establishes a height standard by reference to the Area 1 designation, and also, by virtue of a grey hatch over a large portion of the map, as land affected by cll 6.17 and 6.19 of the SLEP which deals with public view protection planes.

56. The land shown as Area 1 or Area 2 is the land so designated by the delineation of a bright green border that encapsulates the St Mary’s Cathedral Precinct, on which the maximum building height is the height of the building on the land so designated. It is not some other land.

57. In the case of the St Mary’s Cathedral Precinct, being the land delineated on the relevant map, the maximum building height is the height of St Mary’s Cathedral. Specifically, it is the topmost point of the cathedral spires that establishes the maximum building height on the land.

58. To understand the land as other than that shown as Area 1 or Area 2 is to define the land not as that delineated and designated on the relevant map, but by some other means. The Archdiocese submits that the Council substitutes the development site in place of the land shown as Area 1 or Area 2 in the provision.

59. Next, the Archdiocese submits that at no point prior to the appeal proceedings has the Council, or the Heritage Council, maintained that a prohibition on a building on the site was in force. Instead:

1. The Heritage Council advised on 25 August 2022 that consideration could be given to a one-storey building on the site. (Exhibit 2R-2, folio 8)

2. On 18 July 2023, the Heritage Council merely seeks the removal of the uppermost floor (Exhibit 2R-1, par 7).

3. On 16 May 2024, the Council and the Heritage Council advise the Archdiocese to reconsider the height by reference to the datum of the Sacristy building to the west, with no reference to cl 4.3(2A) as now proffered by the Council.

60. To the extent the Council cites the objectives of the height standard at cl 4.3 of the SLEP, the Archdiocese submits firstly that there is no operative purpose required of the objectives, and no satisfaction required to be derived by reference to them.

61. Instead, the building height for the site must accord with the height control designated by the relevant height of buildings map, and not objectives of cl 4.3 of the SLEP.

62. That said, the Archdiocese sets out reasons by which the objectives may be said to be achieved.

63. It is not necessary to set out these reasons as I agree with and adopt the submissions of the Archdiocese on the proper application of cl 4.3(2A) to the site. The land shown as Area 1 is not limited to the site itself, but encompasses all of the land within the St Mary’s Cathedral Precinct.

64. As a matter of construction, when the text and context of the provision is understood, the land shown as Area 1 is not otherwise limited by the text of the provision.

65. A reference in the provision to "the height of the building on the land" can be understood as a reference to the height of buildings on the land, and the provision should be capable of operating whether the land shown as Area 1 or Area 2 is a single lot of land, or comprises many lots.

66. For the Council’s preferred reading of the provision to apply to the site only, and not to the land shown as Area 1 requires the reading of additional words into the provision so as to identify that to which the provision refers is not land shown as Area 1 or Area 2, but is land within the area shown Area 1 of Area 2.

67. Next, to the extent Mr Li seeks, at [50], to distinguish the example of the Capella Hotel from the subject site, it would appear to only support the Archdiocese’s position that the provision does not freeze the height of a building or structure, but rather seeks to establish permissible height by reference to that which is present, or that which was present as at December 2012.

68. Likewise, Mr Li’s dismissal of the Eye Hospital as a relevant example is on the basis it is land shown as Area 2 and not Area 1. However, the example appears apt as the Sydney Eye Hospital is on land shown as Area 1 or Area 2, and on land comprising multiple lots within the area so designated.

69. As such, I do not understand the controls at cl 4.3(2A) to act as a prohibition on the height of the proposed building on the land.

70. For it to do so, the Council’s argument would have the result of also prohibiting the proposed sandstone piers and metalwork fencing fronting St Mary’s Road, that would appear to be located on Lot 1 in DP 119119. That portion of fencing, which I note is supported by Council and its experts, is higher than the aluminium palisade fencing that – whether present in December 2012 or not – is lower than the fencing now proposed.

71. That said, the Council and the Heritage Council both contend that the height of the building, and its bulk and scale, are inappropriate for the site because of the adverse impacts that would result.

Height, bulk and scale

72. While the Council’s primary contention in respect of height is substantially dealt with at [44]-[69], the Council also contends that the height, bulk and scale of the proposal adversely impact the heritage significance of St Marys Cathedral and Chapter Hall, and that the proposal fails to exhibit design excellence for reasons that include failure to adequately address the bulk, massing and modulation of the building envelope in a manner required by cl 6.21C(2)(d)(v) of the SLEP.

73. As a result, the proposed building envelope adversely impacts on view corridors to and from the St Mary’s Cathedral and the Chapter Hall, contrary to clause 6.21C(2)(c) of the SLEP.

74. In similar terms, the Heritage Council contends that the height, bulk and scale of the proposal dominates and competes architecturally with St Mary’s Cathedral and Chapter Hall. As such it fails to:

1. ensure that St Mary’s Cathedral is continued to be experienced "in-the-round";

2. respect the significant heritage values of the precinct, including views to and from public spaces, the setting, nature and scale of the extremely important heritage listed buildings; and

3. recognise the predominant scale of the adjacent heritage items and does not respond sympathetically to the adjacent heritage items or in a manner that is subservient and discreet within the northern elevation.

75. While height is a primary concern of the Respondent parties, the planning and heritage experts engaged on their behalf agreed that it was preferable for the ground floor of the proposal to be set at the same reduced level (RL) as the northern forecourt, and not 800mm below as was proposed in the April Amendment.

76. The relevant experts agree that the amended plans at [28(1)] resolve this concern by raising the ground floor level. However, a consequence of raising the building for this purpose, also results in an increased in the topmost RL of the roof.

77. The planning experts also agree that the height and massing of the proposed development does not impact the eastern windows of the Cathedral after 8 am in midwinter, and has only minor loss of direct sunlight to the southernmost, east facing window of the Sacristy between 7-7.15am that would appear to serve utility areas.

78. However, concerns remain at the height, bulk and scale of the proposal when understood in its setting.

79. While directions were made prior to the hearing for experts in planning, heritage and landscape to confer and prepare joint expert reports, the parties agreed that only the oral evidence of the heritage experts was required.

80. The Court was assisted in considering those matters of heritage contended for prior to the hearing by the evidence of the following experts who conferred in the preparation of a joint expert report on heritage (Exhibit 1R-3):

1. Dr Richard Mackay AM for the Archdiocese,

2. Mr Paul Davies for the Council, and

3. Ms Gillian Sally Barnes for the Heritage Council.

81. The additional conferencing at [23] also included the architect for the Archdiocese, Mr Angelo Candalepas. Together, those four experts in heritage and architecture prepared a joint expert report at the close of the first day of the hearing (Exhibit 1R-8).

82. In considering the evidence of the heritage experts in these proceedings, it is necessary at this point to record that in case management prior to the hearing, and again during the course of the hearing, the Court noted the curriculum vitae at Appendix C of the joint expert report on heritage identified the heritage expert for the Heritage Council, Ms Sally Barnes, as the Chair of the Heritage Council, and the second Respondent in these proceedings. As such, Ms Barnes’ role to assist the Court in an impartial manner as set out in the Court’s Conference of Expert Witnesses Policy was the subject of submissions.

83. The Archdiocese also submits that, in terms cited at [15] and [18]-[19], the Heritage Council sought to amend the heritage listing of St Mary’s Cathedral and Chapter Hall during the course of these proceedings.

84. In addition to the position held by Ms Barnes as Chair of the Heritage Council, the Archdiocese cross examined Ms Barnes on her curriculum vitae for the reason that it also reveals no qualifications in built environment, heritage or related fields, but in arts (behavioural science and education), a diploma in education and a graduate diploma of librarianship/information management.

85. Ms Barnes describes her occupation as “a retired public servant” and relies on her experience as a CEO, board member or chair of organisations whose "bread and butter" is or was the strategic management of, or decision making in respect of, places of cultural heritage significance, supported by expertise that is or was either in-house or externally sourced. While such experience has not involved the preparation of Heritage Impact Statements or Conservation Management Plans by her, it regularly involves the commissioning and review of such heritage management documents.

86. When asked if she was familiar with the provisions of cl 5.10 of the Standard Instrument, which deals with heritage conservation, Ms Barnes answered, to the effect, that while she would have read it, she was unable to recall the provision.

87. The Heritage Council submits that Ms Barnes’ qualified support for a four-storey building on the site is evidence of her impartiality in that it varies from the position of the Heritage Council at [59(1)].

88. As for Ms Barnes’ qualifications, the Heritage Council submits that the Court should accept that “decades of experience in reviewing, understanding, evaluating and approving heritage assessments” grant Ms Barnes a specialised knowledge in matters of heritage.

89. While I accept the Heritage council submissions that Ms Barnes’ evidence departs from advice provided by the Heritage Council in 2022, suggesting a degree of impartiality, I reject the submissions that the roles described in Ms Barne’s CV represent anything more than experience in governance and organisational oversight, and in no way stand proxy for the degree of technical expertise reasonably expected by the Court in matters of heritage and the built environment.

90. To the extent the argument is made that Ms Barnes’ experience and expertise flows from her critical assessment of the expertise of others in order to make decisions, or form the terms of a recommendation prepared for a decision maker, this is not the task of an expert in this Court. Instead, an expert brings their own expertise and not a synthesis or critique of the advice of others.

91. In my view, the contribution made by Ms Barnes in the supplementary joint expert report at par 58 demonstrates the limitations in Ms Barnes evidence. Ms Barnes explains her view that the proposal is inconsistent with certain polices found in the Conservation Management Plan prepared by Urbis, dated 3 May 2023 (CMP) ((Exhibit 1R-2, Tab 18) by merely restating the precise terms of the policies.

92. Given the notable deficit in Ms Barnes’ professional qualifications and the acute limitations in technical proficiency in built environment and heritage, I give Ms Barnes’ evidence little weight.

93. In essence, the experts for the Respondent parties, Mr Davies and Ms Barnes identify three viewpoints along St Mary’s Road, or the Domain opposite, from which the proposal is said to obstruct an appreciation of the heritage values of adjoining buildings:

1. Firstly, from the north-east where the proposal obstructs the current views to the eastern elevation of St Mary’s Cathedral.

2. Secondly, from directly in front of the site and from the Domain where the proposal fails to transition appropriately in its scale from the Sacristy to Chater Hall.

3. Thirdly, from the north-west where the proposal will obscure the western elevation of Chapter Hall that has historically been visible.

94. The Court was taken to those vantage points during the onsite view, from where the form of Chapter Hall was said to be either wholly or partly obscured by the proposal, and from where it is agreed a southern portion of the eastern elevation of the Sacristy will be obscured.

95. Significant views to and from St Mary’s Cathedral and Chapter Hall are identified in the CMP.

96. As stated briefly at [91], the CMP also contains policies to guide the conservation and management of the Cathedral and Chapter Hall, in which views are also dealt with.

97. The heritage experts agree that five policies contained within the CMP are of particular relevance to these proceedings. Those five policies are as follows:

• Policy 100 – new additions to the site (including vertical additions to the elements of little significance) are to be subservient to the Cathedral and sympathetic to Chapter Hall in terms of scale

• Policy 101 – the massing of buildings should be determined by their location on the site and the identified significant views

• Policy 102 – new buildings should be designed to appropriately respond to the design and materials of the significant buildings. Well designed contemporary buildings are encouraged

• Policy 103 – new buildings should maintain setbacks from the Cathedral and Chapter Hall which ensure the significant views identified in this report remain appreciable

• Policy 104 – construction of new buildings is to have no physical impacts on the structural integrity of the significant forms.

98. Mr Davies and Ms Barnes’ evidence is that the proposal is not subservient to the significant buildings on the site, dominates Chapter Hall, and is not sited to protect significant views. As such, the proposal compromises the setting and heritage values of the site and the adjoining significant buildings.

99. Policies 100, 101 and 103 are identified by Mr Davies and Ms Barnes as those which the proposal fails to satisfy.

100. Mr Davies’ evidence is that the proposal may be subservient to the Cathedral due to its form and scale, but it is not subservient to the Sacristy and to the extent the terms of Policy 100 differentiates the Cathedral from Chapter Hall by seeking development that is sympathetic rather than subservient, Mr Davies queries whether such a distinction is appropriate. In any event, he concludes the proposal is inconsistent with Policy 100.

101. Mr Davies believes the height, bulk and scale of the proposal has an adverse impact on the setting of Chapter Hall when viewed from the north-east. The adverse impact arises not because of an obscuring of Chapter Hall, as the concern may have been expressed at the onsite view, but by occupying the space currently occupied by the car park, which provides open space to Chapter Hall.

102. Mr Davies agrees that the significant views to which Policy 101 refers are those identified in the CMP – most relevantly the view identified as View 7, re-produced below:

103. A photomontage including the proposed development is included in the Visual Impact Assessment, re-produced below:

104. The Heritage Council also identifies other views within the CMP that are considered a significant view, such as View 3, re-produced below.

105. A view similar, but not identical, to that at View 3 is contained in the Visual Impact Assessment, re-produced below:

106. It was noted by some of the heritage experts that the degree of visibility is somewhat determined by the canopy cover that varies according to season. Professor Mackay observes that as the onsite view occurred close to midwinter, the Court has the benefit of greater transparency in foliage, and so a greater appreciation of the visual impact of the built form when viewed from this location that at other times of the year.

107. The Heritage Council also submits that as the author of the CMP does not state otherwise, there may be other views that are significant beyond those identified as significant views by the CMP, which may be obtained in an arc between View 3 and View 7.

108. Professor Mackay agrees that any views within such an arc are likely to be enjoyed while walking and so varying degrees of obscuring depends on the precise location of the viewer. However, such views of the Cathedral are not significant views when compared with those identified in the CMP, such as the orthogonal views of the southern, western or northern facades, which are all identified in the CMP as significant.

106. This is partly due to the orthogonal views being those views to which visitors or viewers are likely to be drawn. In colloquial terms, these are the "hero shots" where the form and features of the Cathedral may be best appreciated, in contrast to those views along St Mary’s Road that are somewhat obstructed by deciduous tree canopies and the like.

107. While not expressly invoked by the Heritage Council in its submissions, a view that falls within the "arc" described by the Heritage Council includes what may be termed the "direct view" cited by the Respondents’ experts at [93(2)].

108. Such a view is depicted in the Visual Impact Assessment. Views generated "before" and "after" development are re-produced below.

112. In respect of the view of Chapter Hall taken from the north west, Professor Mackay’s evidence is that the obscuring of the western elevation is of lesser impact on the appreciation of the heritage values of Chapter Hall, while the significant view cited at [102] is wholly retained. Regardless, the western elevation of Chapter Hall will remain visible to passers by due to the side setback and north-eastern "cut out".

113. Ms Barnes believes the Visual Impact Assessment does not adequately consider or assess views from the footpath along St Mary’s Road and the eastern forecourt of St Mary’s Cathedral.

114. Mr Davies maintains his position that the proposal is simply too close to Chapter Hall to do other than obscure and detract from its heritage values. That said, I note a sketch prepared by Mr Davies at par 57 of the supplementary joint report entertains a "possible push out at upper levels" that would adopt the setback of that proposed, subject to the front setback being positioned behind the northern façade of Chapter Hall.

115. This uncomfortable proximity is also said by the Respondents’ experts to be experienced on the eastern side of the proposal as well, in the vicinity of three large wooden doors leading from the eastern transept of the Cathedral to a terrace that is elevated above the site of the proposed development.

116. During the onsite view, the central of the three doors was described as a door used only on certain occasions and was roped off from use. Access from the eastern transept to the northern-most of the three doors was impeded by pews arranged to prevent use. The southern of the three doors was open and described as a door for daily use.

117. Mr Davies’ evidence is that the proposal will dominate the view from these three eastern doors, although there appears agreement that the slot views currently available from this location to parts of Potts Point beyond, framed by Cathedral House and Chapter Hall, are unaffected.

118. The Heritage Council, in closing submissions, argues that the view of Chapter Hall from this location will be lost except for a sliver of the southern-most portion of the western wall, and "roof-mounted ornaments".

119. The heritage experts do agree that a building may be appropriate on the site.

120. The experts also agree that sandstone is an appropriate external material for the proposed new building, and that any new building should present as contemporary, on the proviso that it feature some design elements and detailing which reflect the form and visual character of the surrounding church precinct.

121. That said, the support for sandstone as a material is somewhat qualified by Mr Davies and Ms Barnes. While acknowledged to be a sympathetic material on the one hand, a concern set out in the initial joint report is that sandstone adds to the bulk of the proposed building, resulting in a form that is "over-scaled".

122. As I understand Mr Li’s written evidence, he considers the arched elements evident on the northern façade to be overly-elaborate such that they compete with the intricacy of heritage fabric on Chapter Hall, while the unelaborated facades of the proposal are blank and fail to be adequately articulated.

123. While Mr Davies’ oral evidence is that he was initially unable to form a "strong sense of how the building will look", further discussion with Mr Candalepas provided sufficient clarity for Mr Davies to conclude that, should the Court be minded to grant consent, a high standard of design quality would now result.

124. Ms Barnes’s evidence in the supplementary joint expert report is, most relevantly, that the "diverse range of building elements and treatments on the northern and western façade detracts from the Gothic Revival architectural shapes, forms and designs within the State Heritage Precinct, that should be the dominant elements", and that "the proposed building tries to link the two existing buildings, rather than allow them to appear on their own as much as possible."

125. Ms Barnes does not particularise the elements she regards as the "diverse range of building elements", but references to the north and west suggest the arched façade, and perhaps the tongue and grooved timber panelling.

126. Mr Candalepas explained the design intent behind the arched façade is derived from the "four-centred" form of window opening evident in the Cathedral, Sacristy and Chapter Hall. The elevation of which is derived from the Reduced Level (RL) of the window sills and corbel and gutter of the Sacristy which are notionally extruded east across the site in the manner of "stringlines" to establish the sill and window head of the arched façade. I understand the timber panelling is a direct reference to a similar detail found in the doors of Chapter Hall.

127. A diagram similar to Mr Candalepas’ explanation of the stringlines is contained in the Design Excellence Statement prepared by Angelo Candalepas and Associates (Exhibit B, Tab 3).

128. Notwithstanding the concession made at [123], Mr Davies believes the proposal dominates the site and is located too close to Chapter Hall, presenting an uninterrupted wall of around 21 m in length and 11 m in height, punctuated by windows that are uncharacteristic and which do not respond appropriately to the scale and relative finesse of Chapter Hall.

Archaeology on the Subject site

129. Archaeological remains have been found on the site, including footings from earlier buildings, remains of retaining walls and the like.

130. The remains were found during digs in January 2022, and recorded in the "Historical Archaeological Assessment, Testing and Impact Statement" prepared by Casey and Lowe Archaeology and Heritage (Archaeological Assessment) (Exhibit A, Tab 28).

131. While the Heritage Council initially contended that the proposed development may adversely impact the archaeological significance of the site, the heritage experts agree that the recommendations contained in the Archaeological Assessment demonstrate such features can be retained and conserved.

132. Relevantly then, the Archaeological Assessment recommends an Archaeological Conservation Zone (ACZ) be established in the south-west of the subject site where s 5.2.1 of the Archaeological Assessment rates the potential to find archaeological remains of built fabric from the 1820s to 1866 as low to moderate.

133. An aspect of some concern to the Heritage Council is the potential for excavation associated with infrastructure needed for the proposed Geothermal Heat Exchange (GHE), depicted on an overlay plan prepared by ADP (Exhibit C, Tab 3).

134. The pipework required by the GHE system is depicted wholly outside the ACZ, and without prejudice conditions of consent are agreed between the experts to ensure disturbance of the ACZ is avoided.

The site lacks a masterplan

135. The Council and the Heritage Council contend, in similar terms, that the proposal is proffered without the benefit of a masterplan to inform the present or future development of the St Mary’s Cathedral Precinct.

136. According to the Heritage Council, such a masterplan would be consistent with the encouragement found in Art 3 of the Burra Charter (Exhibit 1R-2, Tab 11) to change as much as necessary but as little as possible. As I understand it, this is because a masterplan will necessarily advance on such a premise.

137. While the planning experts agree that there is no requirement to do so imposed by the SLEP, they are apart on whether a masterplan is necessary.

138. The planning expert for the Council, Mr Li, argues that the Archdiocese relies on an unrealised proposal from 1897 for an Archbishop’s house to justify the location of the proposed development in an area of the St Mary’s Cathedral Precinct that has been open space since 1833.

139. Such a departure on the site necessitates a masterplan to identify relevant heritage curtilages in the wider context of the Governor’s Domain, and within the St Mary’s Cathedral Precinct in order to identify the realistic capacity for the site to cater for future growth, consistent with established design principles.

140. The advantage of such a masterplan is that it would function as a site-specific development control plan.

141. The planning expert for the Archdiocese, Mr Cirillo’s written evidence is that the site is distinct from a conventional development site that may require a masterplan to inform a Concept DA. Here, the site has evolved since the 1830’s, and will continue to evolve, under the ownership of the Archdiocese.

142. Nevertheless, a design report prepared by the architect for the proposal, Angelo Candalepas and Associates, dated November 2023 (Design Report) (Exhibit A, Tab 23) includes Section 4, titled "Master planning" that sets out, in text and graphical terms, what is described as a "Master Plan Study". The Design Report considers the presence, scale and relationship of ancillary facilities in global precedents such as Durham Cathedral, Norwich Cathedral, Wells Cathedral, Salisbury Cathedral and Chester Cathedral, compared with that of St Mary’s Cathedral.

143. Masterplan study options set out no fewer than six options for building forms on the St Mary’s Cathedral Precinct and so considers Cathedral House and St Mary’s Cathedral College, and a potential Chancery. Finally, the Design Report develops design principles across the scale of the St Mary’s Cathedral Precinct, and considers future growth, including the relocation of certain functions off site.

144. The Design Report and its contents would appear to entirely support the evidence of Professor Mackay that whether or not a "masterplan" exists, master planning has certainly been undertaken as part of this development.

The restriction on user and positive covenant

145. It is commonly held that a restriction as to user and positive covenant, under s 88E of the Conveyancing Act 1919, was imposed as part of development consent granted in 1997 (The Covenant) for the purposes of determining a quantum of what is known as heritage floor space.

146. The terms of the restriction as to user, and the positive covenant are found in the record of titles searches contained in Council’s bundle (Exhibit 1, Tab 15).

147. The Council agrees the site is located on part of Lot 1 in Deposited Plan 119119, and parts of Lots 1 and 2 in deposited Plan 782462. (Exhibit 1R-1, par 9). As such, the site proposed for the development is, in part, on a lot of land on which St Mary’s Cathedral, in part, is located and Cathedral House, in part, is also located.

148. "Heritage floor space" is not defined in the dictionary of the SLEP, but is the subject of provisions in Pt 6, Subdiv 3 of the SLEP.

149. While The Deed containing the terms of The Covenant is not in evidence, the Council submits those terms essentially set out a "deal" struck between the parties in respect of heritage floor space from which the Archdiocese now seeks to resile.

150. The Archdiocese submits firstly that the plans attached to the terms of The Covenant defining the land to which The Covenant applies do not include the subject site, but rather land marked as the lower ground and ground level of St Mary’s Cathedral and its immediate surrounds. Secondly, even if The Covenant was taken to apply to the subject site in any way, cl 6.10(2)(e) provides for the expiry of such terms after 25 years, now exceeded. Thirdly, s 8 of the terms of The Deed provides that where the Archdiocese surrenders an amount of heritage floor space, the Council must release the Archdiocese from all obligations imposed by The Covenant.

151. Finally, should the Court be minded to grant consent, the Court, for the purposes of hearing and disposing of an appeal, has all the functions and discretions of the Council (s 39(2) of the Land and Environment Court Act1979) and, exercising such power, can extinguish The Covenant.

152. While the plans attached to The Deed would appear to exclude the subject site, that is of little relevance given terms of The Covenant are cited on the title as Dealing 3604713, and so apply to the site.

The effect of the proposed development on the heritage significance of the item or area concerned

153. I accept that an assessment of heritage impact starts with an understanding of the heritage significance of an item, or items, which includes the relevant setting or curtilage. I also state at the outset that I accept the Heritage Council’s submissions that a proper understanding of the significance of a place is not wholly captured by, or confined to the Statement of Significance. Furthermore, a Statement of Significance is not intended to be read in isolation, but is supported by the assessment against certain criteria published by Heritage NSW, the physical description of certain aspects of the item, and by recommendations and policies developed in recognition of the significance derived from research and analysis.

154. Such recommendations and policies are found in the CMP, which is a heritage management document that assists the Court in its task to consider the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. 

155. Chapter Hall is described as an early example of the Victorian Academic Gothic style notable for dressed stonework to the north and east as distinct from the rougher stonework on the exterior walls to the west and south. There are other such distinctions: a stone plinth is evident to the north and east, as are larger and more ornate window openings articulated in stone tracery whereas only one smaller window and a door appear in the western wall.

156. According to the CMP, such a distinction in design and finish may suggest a historical intention to extend the building on the southern and western sides, as was possibly intended by an L-shaped building proposed originally (Exhibit 1R-2, Tab 18, folio 727).

157. I accept the conclusion of the CMP that a significant view of Chapter Hall is enjoyed when the design and artisanry evident in the northern and eastern elevations are viewed together. It is in this view, represented in View 7 at [102], that the features that best describe the significance of the building and its association with the Catholic Church on the site are appreciable.

158. I accept that a taller building located a close distance from the western elevation of Chapter Hall has the potential to adversely impact the appreciation of Chapter Hall in its setting, and detract from an understanding of it when viewed against St Mary’s Cathedral as a backdrop.

159. I also accept Professor Mackay’s evidence that the proposal changes the setting of St Mary’s Cathedral and Chapter Hall, and that some views will be restricted, but that the overall effect will not be greatly consequential.

160. When considering this view, I note the north-eastern cut out on the proposed development results in a setback of 4.8 m from the north-western corner of Chapter Hall, narrowing to 3 m further to the south. When the images at [103], and those on p 6 of the Design Excellence Statement, re-produced below, are considered, I regard these clearances sufficient. Furthermore, as the eastern elevation of the proposal is unadorned by the intricate detail evident on the north and western elevations, I accept this interface is respectful to the western elevation of Chapter Hall Hall that it addresses.

161. It is also from the north-east location that the new fence will be seen. That fence, detailed on architectural drawing DA-1102, is proposed to replace an existing green aluminium palisade fence, having the effect of improving the setting of Chapter Hall.

162. In respect of the view identified by the CMP as View 3, and accounting for the deciduous species of street tree that occludes the site in the photomontage at [105], I find no reason to question the selection of this vantage point as one that might be considered a significant view, given the location affords an almost elevational view of the grand pointed stained glass arched window that terminates the north-south nave of St Mary’s Cathedral. This window would not only appear to be the largest on the Cathedral, but also one of the more significant given its location on axis with the nave, and behind the altar.

163. As is identified in the Statement of Significance at [42], part of the significance of St Mary’s Cathedral is that it occupies “a prominent position along a ridge running north-south on the eastern edge of the central area of the city”. What follows from this prominent position on the ridge is that the land to the east of View 3 slopes downward and away from the viewer. The prominence of the subject site, and Chapter Hall beyond, are likewise secondary and it is logical, in my view, that the location at View 3 would be described as significant for this relationship of viewer to the hierarchy of built form and topography.

164. While I also consider it to be a reasonable enquiry to consider the proposal from the "direct view" observed during the onsite view, I give greater weight to those views identified as significant views in the CMP.

165. The weight is ascribed, in part, because the CMP is not the subject of dispute or contest anywhere in the Amended Statement of Facts and Contentions authored by either the Council or the Heritage Council, but for one reference unrelated to the identification of significant views (Exhibit 2R-1, par 3.1.1)

166. Neither do the experts expressly contest the rigour or integrity of the CMP in either of the joint expert reports.

167. Instead, the Heritage Council submits there may be other views that others may consider significant. The Court accepts the research and analysis underpinning the CMP and the selection of the relevant views at View 3 and View 7.

168. In respect of those views, I accept and prefer Professor Mackay’s evidence. Professor Mackay acknowledges the proposal has an impact on the precinct but notes the impact is on views that are not significant or are of lesser significance.

169. Additionally, when considering the impact of the view of the proposal from the vantage point at View 7, I prefer Mr Candalepas’ explanation of the alignment of the arched façade with existing elements on the Sacristy over the less specific concerns expressed either by Ms Barnes at [124] or the evidence of Mr Davies who appears to accept the degree of thought involved in the design of the arched façade, albeit with residual concern as to bulk and setback.

170. I accept the arched façade demonstrates a respect for the scale, form, modulation, articulation, materials and finishes that contribute to the heritage significance of the St Mary’s Cathedral Precinct consistent with good heritage practice and with Section 5.1.3.2 of the SDCP, and that consideration has been had to the impact of the proposal on the significance, setting, curtilage, landmark values and ability to view and appreciate the heritage item from public places.

171. I do not accept that such respect can be said to be an attempt to "link" St Mary’s Cathedral or its Sacristy to Chapter Hall. Rather, I consider the adoption of certain datum levels, materials, details and other cues, absent mimicry, to be an approach commonly regarded as appropriate heritage practice.

172. The Heritage Council encourages the Court to depart from conclusions reached after careful research, and to instead adopt an argument that matters of heritage significance are "subjective". In doing so, the Court is presented with reference to unspecified views from a "moving arc" somewhere on St Mary’s Road that may, to some minds, also be significant views and which the proposal may render unappreciable, in contradiction to the terms of Policy 103 of the CMP.

161. When the proposal is understood in its context, and in sufficient detail to appreciate the datum levels, setbacks, materials and detailing, I can only conclude that the impact on the heritage significance of St Mary’s Cathedral, which includes the Sacristy within the terms of its identified heritage significance, and Chapter Hall, is acceptable, in the terms set out at cl 5.10(4) of the SLEP.

162. In arriving at such a conclusion, I consider the height, bulk and scale, and setbacks from the existing buildings in the precinct, to be well considered and respectful, and so likely to serve as a unifying element when viewed from St Mary’s Road.

Design excellence

175. As stated at [72]-[73], the Council submits that as the proposed development fails to exhibit design excellence in terms set out at cl 6.21C of the SLEP, the Court must refuse the development application.

176. The Council also contends that only certain aspects of the provision at cl 6.21C of the SLEP are not achieved. Of these, the planning experts agree that the proposal does in fact demonstrate sufficient commitment to sustainable design, achieves the principles of ecologically sustainable development, and acceptably overshadows the Cathedral to satisfy those matters at subcl (2)(d)(vii) and (viii). The planning experts also agree that those access and circulation requirements at subcl (2)(d)(ix) are satisfied, subject to a consolidated traffic management strategy.

177. While the particularising of those matters is unquestionably of assistance to the Court, for the reasons shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone.

178. Instead, cl 6.12C of the SLEP prescribes a framework for deciding whether a development exhibits design excellence (Toga at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga at [75]).

179. In addition to the evidence of its experts, the Archdiocese also relies on a Design Excellence Statement prepared by the architect of the proposal, Mr Angelo Candalepas (Exhibit B, Tab 3).

180. I have considered those matters at cl 6.21C(2), and I accept that the proposal achieves a high standard of architectural design, materials and detailing appropriate to the building type and location (cl 6.21C(2)(a) of the SLEP), for the reasons that follow:

1. The external materials are those of the adjoining State heritage items, being sandstone and tongue-and-grooved timber. The arched façade to the northern and western elevation adopts, but adapts so that it is more than mere mimicry, the four-centred arch geometry of windows and other arched features in St Mary’s Cathedral and Chapter Hall, and locates and details the same by reference to the sill and gutter levels of the adjoining Sacristy building.

2. I accept the statement made on p 4 of the Design Excellence Report that the proposal adopts formal design principles that are appropriate to the building type and location such as repetition and modularity that is common to the Gothic style, and symmetry when viewed on any single elevation.

3. The uppermost portion of glazed clerestory is an agreed resolution between those experts with appropriate qualifications and expertise to inform the Court. I accept and agree with those experts that the setback and degree of transparency in the uppermost glazed form is also an appropriate use of materials and form for the location of the proposal. Notably, care has been taken to avoid openable windows, the framing of which would reduce the degree of transparency. Instead, ventilation is provided to the space at this level via concealed grilles at the sill below the glazing on all elevations – a detail re-produced in section below:

181. In respect of those aspects dealing with the public domain (subcll (2)(b), (d)(x) and (d)(xii)), Mr Li once again cites the sunken subservience of the presentation to St Mary’s Road that is now resolved by achieving a flush interface. The Design Excellence statement, correctly in my view, notes the existing appearance of the site from the public domain includes ad-hoc modern concrete sloped embankments, a kerb crossing, driveway, bollards and boom gate. These visually unsympathetic elements are to be removed – replaced with a north-facing landscaped pedestrian entrance to the site, where two canopy trees are proposed, as is external seating to serve a bookshop and cafe. I also note the removal of the car parking permits and an area for proposed pick up/drop off for 3 vehicles (Exhibit C, Tab 25, p 23), that may be regarded as an improvement to the public domain.

182. In respect of whether the proposed development detrimentally impacts on view corridors (subcl (2)(c)), I have accepted at [164]-[166] that the relevant views are those views identified in the CMP as significant views. The Design Excellence Statement distinguishes the axial, "framed" views from the south, west and north that are unobstructed, from those views along St Mary’s Road that are obstructed, subject to traffic noise and sloping, eastward focus of the Domain in this location. I agree with such an analysis, as I also accept and prefer Professor Mackay’s assessment of views at [108]-[109]. Those significant views are retained and unaffected by the proposal.

183. In respect of the suitability of the land for development (subcl (2)(d)(i)), Mr Li regards the failure to contribute to the amenity and quality of the public domain as a disqualifier. However, the heritage experts agree that the site is suited to a building, and for reasons at [181], I find the amenity and quality of the public domain improved by the proposal such that I do not accept Mr Li’s concerns. Once again I accept the position advanced on p 7 of the Design Excellence Statement that the presence of a two storey car park within the St Mary’s Cathedral Precinct obviates the need for a small car park on the subject site, and that development on the land offers, among other things, a “public frontage” or "front door" for operations to which land site is suited. As such I also regard the proposed mix of uses within the Chancery to be compatible and desirable for co-location with the existing uses within the St Mary’s Cathedral Precinct, consistent with subcl (2)(d)(ii) of the SLEP, supported by heritage interpretation elements identified at points along the through-site link on p 8 of the Design Excellence Statement. Finally, when regard is had to the objectives for development in the SP5 zone, I find no inconsistency.

184. I have considered the heritage issues and streetscape constraints at [157]-[174], and state here that I consider both matters to be adequately, if not admirably, addressed in answer to subcl (2)(d)(iii) of the SLEP.

185. As the proposal is not for a tower, subcl (2)(d)(iv) is not engaged by the development the subject of the development application. Likewise, as the proposal is setback from St Mary’s Road, consideration of street frontage heights that is the subject of subcl (2)(d)(vi) is also not relevant, nor is it pressed.

186. I have set out how the proposed development addresses the bulk, massing and modulation of both the proposed, and surrounding buildings at [169]-[174], in answer to subcl (2)(d)(v) of the SLEP.

187. In addressing sustainable design (subcl (2)(d)(vii)), that must also, in my view, encompass the achievement of the principles of ecologically sustainable development (subcl (2)(d)(viii)), the proposal is accompanied by the following reports that sufficiently demonstrate both the addressing and achievement of this requirement:

1. A Net Zero Statement prepared by ADP dated 29 April 2025 (Exhibit C, Tab 21) which contains a commitment to fossil fuel free operation and a summary of the technologies and strategies intended to achieve the same. In short, the proposal is designed to achieve a NABERS office base building rating of 5.5 stars plus 25%, verified by a NABERS commitment agreement. Chilled beams and GHE provide the heating and cooling.

2. An assessment against Section J of the National Construction Code prepared by Meinhardt dated 12 June 2025 (Exhibit C, Tab 20).

3. A NABERS Estimation Report prepared by Meinhardt dated 12 June 2025 (Exhibit C, Tab 18) that quantifies the predicted base building energy performance.

4. A NABERS Water Estimation Report prepared by Meinhardt dated 12 June 2025 (Exhibit C, Tab 19) that quantifies the predicted water consumption.

188. Having regard to the environmental impacts of the proposal, I note:

1. An acoustic assessment undertaken by ADP is the subject of the Acoustic DA Report dated 23 April 2025 (Exhibit C, Tab 5), in which noise generated by the development, and to which the development is subjected, is summarised with the conclusion that impacts are acceptable.

2. The view from the sun diagrams for midwinter, re-produced below, demonstrate that overshadowing to the eastern elevation of St Mary’s Cathedral is removed by 8am:

189. The Design Excellence Statement (Pp 14-15) assists me to understand how the proposal maintains pedestrian access across the St Mary’s Cathedral Precinct at the ground floor level of St Mary’s Cathedral, and at the lower ground level while the proposed building is open. End of trip facilities located in the basement support the use of active travel modes such as cycling and walking, and the site remains in close proximity to the two storey car park to the south-west. As such, the matters at cl 6.21C(2)(d)(ix) of the SLEP are satisfactorily addressed.

190. Finally, for reasons set out at [173]-[174], I consider the impact on a special character area such as the Governor’s Domain and so I find the proposal appropriately addresses subcl (2)(d)(xi) of the SLEP.

191. For the reasons set out above, at [175]-[190], I have formed an opinion that the proposed development exhibits design excellence and so accords with the requirements of cl 6.21C of the SLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

192. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).

193. A Detailed Site Investigation undertaken by Douglas Partners dated 22 November 2023 (the 2023 DSI) (Exhibit A, Tab 24) records the results of nine boreholes sunk to depths of between 0.55 m to 14 m, and samples taken from three groundwater monitoring wells.

194. Relatedly, while the site is identified on the relevant map at cl 7.14(2) of the SLEP, within an area marked Class 5 Acid Sulfate Soils (ASS), and to be within 500m of another class of ASS, the 2023 DSI records the nearest occurrence of ASS to be 200 m to the east of the site and, due to the elevation of the site and underlying geology, states the development is unlikely to be affected by ASS.

195. The conclusion of the DSI is that the site is suitable for the development proposed, subject to certain recommendations – reference to which are incorporated in the proposed without prejudice conditions of consent.

196. I also note that a Memorandum authored by Douglas Partners dated 12 May 2025 (Exhibit C, Tab 12) confirms that findings contained in the 2023 DSI are unchanged despite amendments to the proposal.

197. Relatedly, I note a Geotechnical Investigation undertaken by Douglas Partners dated 22 November 2023 (Exhibit A, Tab 26) that likewise relies on the results of boreholes drilled to a depth of RL 15 m AHD. A Memorandum by the same author, dated 12 May 2025 confirms that the amended basement remains up to 2 m above the depth of the borehole investigation undertaken, and so the level of bulk excavation proposed is within the depth investigated.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

198. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map.

199. Section 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) precludes the grant of consent unless the Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

200. The Stormwater Plans cited at [28(3)] depict a 22,000 L onsite detention (OSD) tank fitted with water quality devices. Correspondence between TTW and Sydney Water at Appendix A of the Stormwater Management Report also prepared by TTW dated 12 June 2025 (Exhibit A, Tab 9) confirms impervious area is reduced in the post development scenario, and discharge rates are consistent with those provided by Sydney Water. As such, I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to a neutral or beneficial impact, in accordance with s 6.6(2)(a), and that water flow in or to a natural waterbody will be minimised, pursuant to s 6.6(2)(b) of the Biodiversity SEPP.

201. For similar reasons I have also considered those matters at s 6.7(1) of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and result in no adverse impact on aquatic reserves, or in terms of erosion.

202. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply.

203. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Sustainable Buildings) 2022

204. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) provides standards for non-residential development at Ch 3 with an estimated development cost of $5 m or more (s 3.1(1)(a)).

205. In my view, the material set out at [187], and the Demolition and Construction Waste Management Plan prepared by Waste Audit, dated May 2025 (Exhibit C, Tab 10), demonstrates that the development is designed to enable those matters at s 3.2(1) of the Sustainable Buildings SEPP:

206. An embodied energy report supports the development application, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 3.2(2) of the Sustainable Buildings SEPP.

207. Additionally, when the requirements of s 3.3(1) of the Sustainable Building SEPP are properly understood, whether or not the development answers the description of “large commercial development” as defined in the Dictionary at Sch 4, the development minimises the use of on-site fossil fuels by proposing rooftop solar photovoltaic generation, exceeding the energy performance standards set out in Section 3.6.1 of the SDCP by around 25%, and by proposing an onsite geothermal heat exchange system for space heating and cooling.

Conclusion

208. In concluding the development application, as amended, warrants the grant of consent, I have had regard to the objectives for development in the SP5 zone.

209. I have also had regard to public submissions received in response to the proposal, generally contained within the Council’s bundle (Tab 25), and in written submissions annexed to Exhibit 1R-6.

210. The Botanic Gardens of Sydney, comprising the Domain, expresses concern at the potential for construction traffic to impede access to Art Gallery Road for events in the Domain. I note the Construction Management Plan prepared by Paynter Dixon dated August 2023 (Exhibit A, Tab 19) provides for Traffic Management, including the traffic control procedures to be suitably trained and qualified traffic control persons, and the conditions of consent require the preparation of a Construction Traffic Management Plan that is to be submitted to, and approved by, Council prior to any Construction Certificate.

211. A public submission heard at the onsite view by a person wishing the remain anonymous summarised written submissions that appear in three locations in the Council’s bundle. In summary the submission regards the proposal as unnecessary over-development, the functions of which could otherwise be accommodated on another site owned by the Archdiocese. Next, the removal of car parking will impose greater cost on those accessing the precinct and the proposal is not ecologically sustainable as it claims to be. Finally, genuine stakeholder engagement has been lacking. To the extent relevant, the Court has considered those matters and notes improvements to the public domain and pick up/drop off at [181], and verifiable environmental performance at [187]-[188].

212. Finally, a number of submissions, including some identifying as parishioners, express concern for the potential impact on heritage significance of St Mary’s Cathedral and the area – a matter dealt with at length earlier in this decision.

Conditions of consent

213. The Council’s without prejudice condition of consent were filed with the Court on 28 May 2025 (Exhibit 1R-7), in response to which the Archdiocese filed conditions in reply (Exhibit F).

214. The Court granted parties a short period of time following the close of the hearing to confer and file conditions with short submissions if and where disagreement remained.

215. On 23 June 2025, the Council and Archdiocese provided submissions in relation to the disputed Conditions 14 and 72.

216. The terms of the without prejudice conditions of consent are disputed between the parties in two respects.

Condition 14

217. The terms of Condition 14, as proposed by the Council, requires a monetary contribution towards the provision of affordable housing based on the total floor area (TFA) for non-residential development.

218. According to Council’s written submissions, the parties are at odds as to the quantum of TFA to be utilised in calculating the affordable housing contribution. The Council submits that the TFA should be 3700.9 m2, when the void space on level one is included, as the Council submits it should.

219. Again, according to the Council, as the calculation of TFA is for a purpose that is distinct from gross floor area (GFA), there is no reason for a void to be excluded from TFA.

220. TFA is defined at cl 7.13(6) of the SLEP in the following terms:

total floor area means the total of the areas of each floor of a building within the outer face of the external enclosing walls and including balconies, but excluding the following—

(a)  columns, fins, sun control devices, awnings and other elements, projections or works outside the general lines of the outer face of the external walls,

(b)  that part of a balcony that exceeds the minimum area required by the consent authority in respect of the balcony,

(c)  ancillary car parking permitted by the consent authority and associated internal vehicular and pedestrian access to that car parking,

(d)  space for the loading and unloading of goods,

(e)  the floor area of a building, including balconies, that is—

(i)  on land in Zone E4 General Industrial, or

(ii)  used to provide affordable housing or public housing, or

(iii)  used for the purpose of community facilities.

221. The Archdiocese argues, in the first instance, that the proposed development is primarily to be used for the purpose of community facilities, being a purpose that is excluded from the area to which contributions for the purpose of affordable housing are excluded.

222. A community facility is defined in the Dictionary of the SLEP as follows:

community facility means a building or place—

(a) owned or controlled by a public authority or non-profit community organisation, and

(b) used for the physical, social, cultural or intellectual development or welfare of the community,

but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.

223. As the Archdiocese is a registered charity, the development would be owned or controlled by a non-profit community organisation. Next, as the functions proposed to be accommodated within the development are functions of the Archdiocese and related entities, the proposal is for the physical, social, cultural or intellectual development or welfare of the community.

224. This submission is supported by reference to s 7 of the Charities Act 2013 (Cth) that considers the advancing of religion to be defined a public purpose.

225. That said, the Archdiocese accepts that the area identified for a cafe and bookshop within the development, being an area of 124 m2, is a retail premises and so is excluded from the definition of a community facility.

226. In the alternative, the Archdiocese submits that a void within a floor is not floor area, and that area shown on level one and annotated "Void below" should be excluded from any calculation of TFA.

227. On the basis of the functions proposes to be accommodated within the development as set out on Pp 6-7 of the Addendum Statement of Environmental Effects (Exhibit B, Tab 1), the proposed development would appear to answer the description of a community facility at [222] that is excluded from the affordable housing contributions at cl 7.13(6)(e)(iii) of the SLEP, but for the retail functions proposed on the ground floor. I accept that as the Catholic Church is a registered charity, it is a non-profit community organisation, and I also accept that the functions provide for the physical, social, cultural or intellectual development or welfare of the community. The functions described in the Addendum Statement of Environmental Effects are:

1. Primarily offices to serve the Catholic Archdiocese of Sydney;

2. Community meeting rooms and facilities for the cathedral clergy and staff to use during normal hours and out of normal business hours;

3. Cafe and bookshop for staff and visitors to use seven days a weeks; and

4. Public toilets for visitors to the cathedral to use seven days a week.

228. Condition 14 is amended to calculate the affordable housing contribution as a proportion of the area of retail.

Condition 72

229. The Council proposes restrictions on the use of high noise emissions plant and equipment during construction, limited to the hours of 9:30 am – 1:00 pm and 2:00 pm – 4:30 pm Monday to Friday, and 9:30 am – 1:30 pm Saturday, and except any public holidays.

230. The proposed condition is directed to plant and equipment that is not listed in Groups B, C, D, E or F of Sch 1 of the City of Sydney Code of Practice for Construction Hours/Noise 1992 and Australian Standard 2436-2010 Guide to Noise Control on Construction, Maintenance and Demolition Sites.

231. The Archdiocese submits that the restrictions should align to those at Condition 70 that permits work during the hours of 7:00 am and 7:00 pm on Mondays to Fridays, inclusive, and 7:00 am and 5:00 pm on Saturdays, but prohibit work to be carried out on Sundays or public holidays.

232. As the buildings in the St Mary’s Cathedral Precinct are within the control of the Archdiocese, including St Mary’s Cathedral and the St Mary’s Cathedral College, it is in the interests of the Archdiocese to manage noise and hours of construction.

233. The St Mary’s Cathedral Precinct is somewhat unique in the reasonable isolation it enjoys from other sites within the city. I note the limitations the Council seeks to impose on the use of high noise emissions plant and equipment during construction may be said to be within school hours. This would appear relevant given the close proximity of the St Mary’s Cathedral College. This alone would appear to be a reason to provide some latitude to the hours in which construction may be permitted, and so the Archdiocese’s preferred form of Condition 70 is adopted.

Documents describing the terms of development consent

234. The development described by the documents comprising the terms of the conditions of consent provided by the parties to the Court on 23 June 2025, at Condition 1, lists 15 architectural drawings, prepared by Candalepas Associates dated 8 and 10 June 2025. No other plans or documents are listed under Condition 1.

235. In the course of considering whether development consent should be granted to the development the subject of the development application, it would appear prudent for the conditions of consent to cite documents on which the consent has been granted, or in which recommendations are contained that are required to be implemented in carrying out the terms of the consent.

236. I note the without prejudice conditions of consent prepared by the Archdiocese at [213] include most, but not all, of the documents necessary to record the development for which consent is sought.

237. Accordingly, Condition 1 is amended to include the following documents that also comprise the consent, in addition to the architectural plans prepared by Candalepas Associates:

Landscape Plans prepared by Jane Irwin Landscape Architecture
LA-000	C	Cover sheet & Drawing List	02.04.2025
LA-001	C	Schedules	02.04.2025
LA-100	B	Tree Plans	03.04.2025
LA-101	C	Landscape Plan – Ground Floor	02.04.2025
LA-102	D	Landscape Plan – First Floor	03.04.2025
LA-202	A	Detail Plans & Sections 1	02.04.2025
LA-203	A	Detail Plans & Sections 2	02.04.2025
LA-204	A	Detail Plans & Sections 3	02.04.2025
Other Plans
1	Geothermal Borehole Diagram prepared by ADP	13.05.2025
Acoustic DA Report dated 23 April 2025 by ADP			23.04.2025
Archaeology Letter prepared by Casey and Lowe Pty Ltd Archaeology and Heritage			16. 05.2025
Letter re: Archaeological investigations, from Heritage NSW			13.05.2025
BCA Amendment 1 Review, prepared by Philip Chun Building Code Consulting			30. 04.2025
DA Infrastructure Report, prepared by ADP			30.04.2025
Demolition and Construction Waste Management Plan, prepared by Waste Audit			May 2025
Design Compliance Review – Access, prepared by Philip Chun Building Code Consulting			01.05.2025
Detailed Site Investigation Remedial Action Plan (Contamination), reference 224894.01, prepared by Douglas Partners			22.11.2025
Detailed Site Investigation Letter, prepared by Douglas Partners			12.05.2025
Embodied Carbon Quantification Letter, prepared by ADP			29.04.2025
ESD Opportunities Report for Development Application, prepared by ADP			23.04.2025
Estimated Development Cost (EDC) Report, prepared by MBMpl Pty Ltd			01.05.2025
Fire Engineering Letter, prepared by Jensen Hughes Fire Testing			09.05.2025
Geotechnical Letter, prepared by Douglas Partners			12.05.2025
NABERS Estimation Report prepared by Meinhardt			12.06.2025
NABERS Water Estimation Report prepared by Meinhardt			12.06.2025
NCC Section J – J1V3 Assessment Report, prepared by Meinhardt			12.06.2025
Net Zero Statement prepared by ADP			29.04.2025
Operational Waste Management Plan, prepared by Waste Audit			May 2025
Public Art Strategy prepared by UAP			May 2025
Statement of Environmental Effects prepared by Planning Lab			08.12.2023
Addendum Statement of environmental Effects prepared by Planning Lab			04.04.2025
Structural DA Report, prepared by TTW			09.05.2025
Updated Traffic Impact Assessment, prepared by TTW			02.05.2025

Orders

238. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. Restrictions 1, 2 and 3 contained in the section 88E instrument relating to Dealing 3604713 do not apply to the development the subject of Land and Environment Court Proceedings 2024/266232, to the extent necessary to enable the development the subject of the grant of consent to be carried out.

3. The appeal is upheld.

4. Development application D/2023/1153 for the demolition of the existing car park, excavation, and construction of a new chancery building comprising offices premises, a bookstore, cafe and community meeting rooms, associated landscaping and fencing to 2 St Mary’s Road is determined by the grant of development consent, subject to conditions of consent at Annexure A.

5. All exhibits are returned excepts for Exhibits A, B and C.

T Horton

Commissioner of the Court

                                                                                                            **********

Annexure A (468 KB, pdf)

Decision last updated: 01 August 2025