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Facilitating Conservation of a Heritage Item in Development Proposals

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The Sydney Morning Herald recently reported (Heritage win as court blocks harbourside ‘trophy’ home development: 16th February 2020) that a development proposal had been rejected, for a second time, by the NSW Land and Environment Court.

Businessman David Fox, who acquired the property in 2009, was proposing to turn two dilapidated waterfront buildings at Sydney’s McMahons Point, into a luxury residence with attached boat-building facilities. However, North Sydney Council refused the development application for a second time, as it had done in 2016, endorsed by the Court on both occasions.

The First Rejected Proposal and Appeal

The heritage site in question at McMahons Point includes 365 meters of waterfront in the Henry Lawson Reserve, a public park, with views to the Harbour Bridge and Opera House. In 2015, Mr Fox submitted plans proposing a $1.75 million renovation project. This involved demolishing existing buildings and constructing a three-story mixed-use building with commercial operations on the ground floor and two levels of residential use above.

The development application to the Council was declined. At the subsequent appeal, the Land and Environment Court were told that the “site is the last remaining evidence of industrial activity along the adjacent foreshore from the late 19th century”. The Court denied Mr Fox’s appeal (David Fox v North Sydney Council [2016] NSWLEC 1366). The Court accepted that there was minimal historical significance to the house. However, the boathouse slipways were considered valuable, and the property was subject to the Council’s preconditions of use. These site-specific controls included the following:

Until the site is purchased for public use, the site may continue to be used as a boat building or repair facility with ancillary residential accommodation.... while...No more than 50% of the gross floor area may be used for residential purposes and must be located above the ground floor level. 

Objections by both locals and the Council cited heritage concerns and blocking views from public land. The Council also argued that the slipways adjoining the buildings provided boat access to the harbour and were of historical significance, notwithstanding that the development proposal did involve some restoration.

The Second Rejected Proposal and Appeal

In 2019, Mr Fox appealed a further refusal by the Council to approve his development proposal in Fox v North Sydney Council [2020] NSWLEC 1056.

The Court noted in the previous appeal that the relevant objectives of the Local Environment Plan’s conservation provisions (clause 5.10) are:

  • to conserve the environmental heritage of North Sydney,
  • to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
  • to conserve archaeological sites.

Under clause 5.10(10) of the Plan, regarding conservation incentives, the consent authority may consent to development for any purpose even though the development for that purpose would otherwise not be allowed by the Plan if the consent authority is satisfied that:

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant effect on the amenity of the surrounding area.

The Court noted that the key reason which might allow the development to proceed was the reactivation of the boat building and repair operation on the site within agreed heritage conservation parameters. However, in declining the appeal, it was felt that the balance was “tipped” against the proposal because (at para 93):

  • the risk of an adverse effect on the existing heritage item if the reactivation does not occur;
  • the likelihood of a detrimental impact on the existing and likely future use of the land, i.e. the acquisition for public purposes would be more difficult and would also have adverse effects regarding prospects for the site acquisition; and
  • the visual impact of the large new private building from within the reserve and from the harbour.

What does it mean?

The policy initiative which underlies the conservation provisions in Local Environment Plans has the intention of facilitating the conservation and maintenance of heritage items, while also permitting the owners of these heritage items development opportunities which might otherwise be prohibited.

As to the question of whether the conservation of the heritage item is “facilitated by the granting of consent” as set out in subclause (a), the Court had previously set out it's reasoning in its 2016 judgment (at para 47):

Facilitating conservation requires a higher threshold than just ensuring the proposal does not adversely impact on the identified heritage significance of an item. In order to facilitate the conservation of the heritage item, the proposal must assist in retaining its cultural significance, such as by revealing and interpreting the heritage significance of the item.

In this case, the heritage site had been identified for compulsory acquisition over 40 years ago. If purchased this would then complete the public open space between Mc Mahons and Blues Points. To date, this has not yet been acted upon though this may now be back on the table. The Council is reportedly considering due diligence with a view to making an offer for the property. If an offer is made, the parties have six months to agree on the terms or a compulsory purchase notice will be issued.

Contact our Land and Environment Court Lawyers, Sydney, NSW

The Land and Environment Court continues to hear environmental, development, building and planning disputes while responding to the practical challenges posed by COVID-19. Szabo & Associates Solicitors are experienced practitioners in all Land and Environment Courtmatters. Please call us on 02 9281 5088 or complete our online contact form.

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