The policy initiative underlying the conservation incentive provisions set out in clause 5.10 of the Standard Instrument – Principal LEP, adopted in all Local Environmental Plans, is relatively straightforward. It is intended to facilitate the conservation and maintenance of heritage items while at the same time permitting the owners of such heritage items development opportunities which would otherwise be prohibited. The opportunities presented by the incentive, however, will generally only be available to land owners where it can be established that the proposed development facilitates the retention and interpretation of heritage significance of the item, not simply ensuring that the development will not adversely impact the heritage item. In the decision of George v City of Parramatta Council  NSWLEC 1366, handed down recently, the Land and Environment Court held that the Applicant’s development application – while incorporating extensive and costly conservation works to two heritage items on the development site – failed to engage clause 5.10 of Holroyd Local Environmental Plan 2013 (NSW) (“LEP 2013“) rendering the proposed development prohibited.
The Developer sought approval for the demolition of various structures and the construction of a residential flat building to the rear of two existing heritage items on the combined site, comprising two semi-detached houses at numbers 69 and 71 Boundary Street, Granville.
The existence of the heritage items on the combined site rendered the proposed residential flat building prohibited under the R4 zone. The Developer, in its development application, relied upon the heritage conservations provisions under clause 5.10(10) of Holroyd LEP 2013 to address the permissibility issue.
Clause 5.10(10) permits development that would otherwise be prohibited provided that five threshold requirements (five subclauses) were satisfied in relation to the subject heritage item. Relevantly:
(a) the conservation of the heritage item 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, and
(e) the proposed development would not have any “significant adverse effect” on the amenity of the surrounding area.
Council refused the application on the grounds that, amongst other reasons, the development would result in an unacceptable impact upon the heritage significance of the existing semi-detached dwellings on the site. On that basis, the power under clause 5.10(10) was not enlivened, and the development was prohibited.
George v City of Parramatta Council  NSWLEC 1366
The Court accepted the agreed position that the heritage items were in a very poor structural and cosmetic condition, and that the schedule of works included in the Conservation Management Plan provided by the Developer was sound basis for their repair. What remained in dispute was the impact of the proposed residential flat building on the existing semi-detached dwellings.
The Developer led evidence to the effect that the impact of the new development – the residential flat building – on the significance of the heritage items would be minor. The new building would be at the rear of the site, with limited visibility from Boundary Street. The Developer submitted that the development would not be noticeable in the streetscape and would not overwhelm the heritage items.
The Court disagreed, finding that the proposed development detrimentally impacted the heritage items in the following ways:
- the proximity of the proposed development to the rear of the heritage items, which intrudes into the curtilage of the items;
- the height of the proposed residential flat building, and its site coverage which in combination result in a bulky form that has a detrimental impact on the heritage items by being overbearing; and
- the proposed approach to the architectural design and materiality, that is antipathetic to the simplicity and symmetrical character of the heritage items.
The Court ultimately found that subclauses (a) and (d) of clause 5.10(10) were not satisfied, separately or jointly. The proposed carrying out of extensive conservations works to the heritage items did not, of itself, mean that the conservation of the heritage item was – or would be – facilitated by the granting of consent.
In addressing 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 referred to the reasoning adopted in the decision of David Fox v North Sydney Council  NSWLEC 1366 at [par. 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.
The Court, in accepting the Council’s submissions, held that the appropriate reading of subclause (d) is that any degree of “adverse impact” on the heritage item, or the setting, would remove the Court’s power to approve the application. As the power available under clause 5.10(10) was not engaged in these circumstances, the Court had no power to approve the application.
It would seem clear that the Court’s expansive interpretation of subclause (a) of clause 5.10(10) (whether the conservation of the heritage item is “facilitated by the granting of consent”), renders the test in subclause (d) of limited relevance (whether the proposed development would “not adversely affect the heritage item, including its setting”). In other words, facilitating the conservation of a heritage item, for the purposes of enlivening the significant power available under clause 5.10(10), will involve a range of positive conservation obligations depending upon the circumstances of the heritage item. It is also not directly relevant that, absent the carrying of the development (and the profit generated by that development), the costs associated with the conservation of the heritage item would be unaffordable, as touched upon by the Developer in the present case.
In the judgment at hand, the Court’s inference is clear that any redevelopment plans for the subject site, in reliance upon clause 5.10(10), will require a significantly reduced building form.
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