Land and Environment Court of New South Wales CITATION : Nabatu Pty Ltd v Kempsey Shire Council [2006] NSWLEC 254 APPLICANT Nabatu Pty Ltd PARTIES : RESPONDENT Kempsey Shire Council FILE NUMBER(S) : 11378 and 11487 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Removal, relocation and reuse of church, building, heritage, tourism LEGISLATION CITED: Kempsey Local Environmental Plan 1987 Draft Kempsey Local Environmental Plan DATES OF HEARING: 30-31/03/2006 EX TEMPORE JUDGMENT DATE : 03/31/2006 APPLICANT Mr A Whealy, solicitor SOLICITORS LEGAL REPRESENTATIVES: Gadens Lawyers RESPONDENT Mr G Underwood, barrister JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 31 March 2006 11378 of 2005 Nabatu Pty Limited v Kemsey Shire Council 11487 of 2005 JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication. 1 These appeals relate to two development applications involving the removal and relocation of a building formerly used as a church from its present site at Lot 1, DP919686 in Sherwood Road, Sherwood, to a new location at Lot 13, DP803019 in Point Plomer Road, south of Crescent Head. The Point Plomer Road site comprises an existing tourist facility comprising holiday dwellings and recreation facilities. The relocation proposal involves an application to amend an existing development consent (No. T6-02-122) so as to allow the relocated building to be positioned on the site replacing an approved but presently non-existent dwelling. 2 The conversion of the building to a dwelling involves renovation and extension comprising a bathroom. Subject to the Court's approval of development application No. T6-05-480 for the removal of the church building the council does not oppose the application to amend the existing consent subject to a number of conditions which are accepted by the applicant. 3 I have inspected the site of the relocation and having considered the heritage evidence agree that subject to consent being granted for the relocation that this would be an appropriate reuse of the building both practically and from a heritage point of view. In particular I note that this arrangement would ensure the maintenance of the building, which would be able to interpreted as a former church. I also note that the existing development on this site comprises other relocated building that display a high degree of success in heritage fabric terms. 4 The present owners purchased the property on 27 June 2005 and understanding that there were no heritage restrictions made preparations for the relocation of the building including lifting it off its foundation. No consent was sought or given for this work, which has as a result of a council order ceased. In deciding to acquire the property for the purpose of re-using the church building at Crescent Head the owners took into account the following statement in the draft community based heritage study ("the draft heritage study") to which I will refer later. This charming little building was to be sold and moved to Sherwood Winery but this sale has been withdrawn. The church will now be advertised and sold. If a conservation area were placed over this part of Sherwood it would be advisable to restrict building on this site ensuring an open space rather than a building of dubious acceptance. An open space would not affect the aesthetic value of the area. Alternatively, if the church were to be used as a residence advice could be given as to any alterations which may be necessary. The last service at the church was on 12 February 2005 and the furnishings which were previously donated have been returned to the donors. 5 The building was constructed in 1903 and is situated in the very small rural village of Sherwood, which is some 10 km to the west of Kempsey. The village comprises a loose collection of eight scattered houses as well as a number of institutional buildings including another church, a school, a public hall and a school master's house. The church formerly the Sherwood Anglican Church and known as the Church of St John the Divine has been deconsecrated and as I have indicated the final service was held on 12 February 2005. 6 The Sherwood Road site is situated in the 1(A3) Rural Agricultural Protection zone under Kempsey Local Environmental Plan 1987. The proposed removal of the building from the site comprises demolition for the purposes of the LEP and development consent is required. Whilst the LEP contains provisions relating to conservation areas and heritage items the site is not in a conservation area and the church building is not a heritage item. Whilst there has been prepared a draft heritage study there is no draft local environmental plan that would constitute Sherwood as a conservation area or list the church as a heritage item. 7 In relation to the church building the thematic history section of the draft heritage study does no more than identify it as having being built in 1903. Whilst other similarly identified buildings in Sherwood such as the community hall built in 1911 are mentioned, the hamlet attracts no particular attention as such. The heritage study proposes that the church building and several other buildings in Sherwood should have individual heritage listing. The heritage inventory suggests that the church has historical and social significance reflecting family values when Sunday church services in the country were an important part of the life of the community. It has over 100 years of family and district historical records and is representative of the few bush churches left in the Shire. 8 Both of the applications were notified and no submissions were received. The relocation application was refused by council by notice of determination dated 21 November 2005 for the following reasons: 1. The building is of local heritage significance and forms a key part of the heritage fabric of the Sherwood village. 2. Removal of the building from its original context will destroy its heritage value. 3. Removal of the building will cause the loss of physical evidence of local history, which will be a loss to the community that can never be replaced. 4. Removal of the building will impact on the future potential for heritage based tourism to the Shire. 9 Council also decided that the applicant be invited to make an application with the council for a grant from the New South Wales Heritage Office to assist in the building's restoration on its current site. In addition the applicant was encouraged to investigate the adaptive re-use of the building. 10 The tendered Statement of Issues identifies the following matters for determination: 1. Is the building of local historical significance at Sherwood? 2. Would the retention of the building form a key part of the heritage fabric of the Sherwood village? 3. Will the retention of the building enhance tourism for the benefit of the local community? 4. Will the removal of the building destroy its heritage value. 11 Expert written heritage evidence was provided by the Court-appointed expert, Mr S Davies who accompanied the Court during the on site hearing and who provided additional oral evidence. Additional written heritage evidence was provided by Mr R Staas on behalf of the applicant and Mr Booker on behalf of the council. These two experts were not available at the hearing. 12 Mr Staas conducted a comprehensive examination of the site, the locality, the building and its history. According to him this timber church is of limited architectural quality and is very similar to a number of other standard timber churches built at that time. Apart from some wood rot it is generally in good condition. In recognising the tradition of relocating small timber buildings in rural Australia and in the light of its redundancy as a church and with the benefits of sympathetic re-use he did not oppose the relocation. Conversely, he did not accept that there was any reasonable likelihood that the building could be successfully re-used in its present location and as a consequence progressive deterioration would be likely. 13 Mr Booker's evidence was essentially a critique of Mr Staas' report concluding that relocation should not take place. The church buildings is one of the key buildings and the village and its removal will limit the interpretability of the place and should be included in a conservation area. He was also concerned to ensure that social significance be properly taken into account when such significance will be lost if the site becomes vacant. Mr Booker also questioned the absence of proper research particularly into the stories of Sherwood and its two churches and three congregations. 14 Mr Davies, the Court-appointed expert, also examined each of the heritage issues in detail. In relation to historical significance he agreed with Mr Staas that the building does not have high social significance despite acknowledging that more work needs to be done in this regard. He accepted that Sherwood is not the most significant heritage village in the Kempsey area having a scattered and unfocused pattern of development. It is certainly not outstanding in comparison to other places that have been well recognised for their heritage and aesthetic attributes. 15 Mr Davies agreed that the building is not rare as a building type on the north coast of New South Wales but is nevertheless representative of small timber churches of the period in the wider district. As for the village itself he thought that it has historical significance to the region but was uncertain as to whether the loss of the church would be critical. 16 As to the tourism question Mr Davies acknowledged that he was not a tourism expert but did not consider that the relocation would change the tourist potential of the area. This is because the overwhelming attraction appears to be the landscape rather than the building, which whilst having some charm did not reach the threshold as a heritage destination. 17 In dealing with the heritage value of the building itself and its contributory role in Sherwood, Mr Davies was satisfied that its value will not be completely lost if it is relocated. Of course its associational value will be lost. Conversely he was concerned as to what might happen to the building if it were left in its original location. Referring to the advice of Mr Staas that he would be concerned for its future in the circumstances taking into account the economics of the situation that suggest that there is a limited potential for any kind apart from residential adaptation as a single dwelling. 18 Finally in acknowledging that this application raises a difficult heritage issue Mr Davies said that: I am clear about the relative local significance of the former church and its contribution to the village of Sherwood. I am not so certain about the long term of the building on its current site in terms of deterioration and suitable alterations and additions. Although all listed buildings undergo this process, the building is not listed and the certainty of the process has not been determined at this time. I am not aware of the timeline for the consideration and potential ratification of the recommendations of the community based heritage study if it occurs at all. Although I have confidence about the owner relocating the building in a sympathetic manner, I consider that the building does make a physical contribution to the local area. And in heritage, philosophical terms it is preferable if it stays where it is. Having regard to the legal planning issues with respect to the fact that it is not listed and not in a conservation area there is the issue of the controls available to ensure that future alterations and additions will be compatible with the building. I consider it highly unlikely that it would not be at least significantly added to give its size. This can be done successfully especially if a pavilion type addition were added to the rear of its former location before it was lifted. The question is whether this will occur in this location. Whatever happens conservation must happen sooner rather than later due to the vulnerability to the structure. It is in a relatively sound condition but won't be for long without the viable use. 19 Having reviewed all of the heritage evidence I have not been persuaded that the church building attracts such significance as to warrant refusal of the application. In reaching this conclusion I have taken into account the fact that it is not a listed heritage item, notwithstanding that it is indicated for such in an incomplete draft heritage study. 20 Plainly the building is not rare, not having any special architectural or scientific significance. Nor does it have any special social significance notwithstanding that many local people will have memories of the church and particular events held in it. In this context I again note that there were no objections to the application for its relocation. 21 Whilst the building is to be relocated it is clear that this is to be done in a fashion that is sensitive to its heritage significance. In its new location it will clearly be valued and appropriately maintained. If it is left on its present site I doubt that this will occur, its future being at best uncertain. Recognising that Sherwood is not included in an existing or proposed conservation area I have also taken into account that the village itself relative to other villages does not attract any great conservation significance. Hence, the loss of this deconsecrated church from the village does not attract such weight as to require the refusal of the application. 22 The orders of the Court are therefore in relation to the removal development application, being matter No. 11378 of 2005: 1. The appeal is upheld. 2. Development application number T6-05-480 for the removal of the existing building from Lot 1 DP 919686 being land in Sherwood Road, Sherwood is determined by the granting of development consent subject to the conditions in annexure A hereto. 3. Exhibit 8 is retained. 23 In relation to the relocation application being matter No. 11487 of 2005: 1. The appeal is upheld. 2. Condition 1 in Development Consent No. T6-02-122 for a tourist development at Lot 3 DP 803019 in Point Plomer Road, Crescent Head is amended to allow the replacement of "the proposed rice barn" with "the former Sherwood Anglican Church building" as reflected in Annexure A hereto. 3. Exhibits 9 and B are retained. ___________________ T A Bly Commissioner of the Court Ljr/rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.