Land and Environment Court of New South Wales CITATION : Navarra v Ryde City Council [2006] NSWLEC 275 Applicant: Filippo Navarra PARTIES : Respondent: Ryde City Council FILE NUMBER(S) : 10018 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- heritage impact DATES OF HEARING: 22/05/2006, 23/05/2006, 16/06/2006 and 05/07/2006 DATE OF JUDGMENT: 08/17/2006 Applicant: LEGAL REPRESENTATIVES: Mr C McEwen, SC instructed by Mr M Staunton of Staunton Beattie Respondent: Mr A Pickles, barrister instructed by Mr B Tobin of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 17 August 2006 10018 of 2006 Filippo Navarra v Ryde City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ryde City Council (the council) of a development application to construct a new ballroom and a two-storey car park with ancillary works in the grounds of Curzon Hall, lot 1 DP 703569, known as 53 Agincourt Road, Marsfield. The site 2 The site is just under a hectare, located at the corner of Balaclava and Agincourt Roads. It was originally a much larger estate; however the greater part of the site has now been developed for retirement homes to the east and south. Standing on the site is Curzon Hall, an old private mansion, which now functions as an events venue. The proposal and its history 3 The applicant proposes to erect a ballroom and a two-level carpark on the site and undertake landscaping and ancillary work. 4 In 1983 the council granted consent for the use of the site as a reception centre. The applicant lodged the subject application to extend the floor space available for functions in September 2004. Following negotiations, the applicant submitted amended plans in October 2005. The council referred these to the NSW Heritage Office for comment. The Heritage Office notified the council that it supported the proposal. In December 2005 the council considered a report by its planning staff recommending refusal. The council accepted the recommendation and refused the application. The applicant lodged the appeal in January 2006. Relevant planning legislation 5 The Ryde Planning Scheme Ordinance (the PSO) zones this site 3(b) – Restaurant and Reception Centre. Two clauses of the PSO are relevant, cls 72A(2)(a) and 86(5). The issues 6 The council submitted a Statement of Amended Issues containing seven issues, on all of which the experts had reached agreement. Despite this, the council maintains its position of opposing the proposal on the basis of Issue 1, which states: The proposed development will have an adverse visual impact and detrimental effect on the heritage significance of Curzon Hall. Visual Impact and detrimental effect on heritage significance 7 Clause 86(5) of the PSO requires that the assessment of an application that affects a heritage item must include the consideration of the impact on the heritage significance of the item. Mr H Tanner and Ms M Jones, the applicant's heritage consultants, as well as Mr B McDonald, the council's heritage consultant, have agreed that the impact is acceptable. It is clear therefore that all three experts in the case consider cl 86(5) to be satisfied. 8 However, Mr A Pickles, the council's advocate, submitted that cl 72A(2)(a) sets a higher test than cl 86(5). Clause 72A(2) states: The council shall not grant consent to the carrying out of development to which this clause applies (ie the site of Curzon Hall) if that development: (a) will, in the opinion of the council, detrimentally affect or significantly alter the appearance of the building known as Curzon Hall. (b) not relevant. 9 In Mr Pickles' submission, the proposal does not satisfy cl 72A(2) because it would detrimentally affect and significantly alter the appearance of Curzon Hall. In support of his submission, he tendered three photomontages showing Curzon Hall flanked on one side by the new ballroom. I am required to decide, on the basis of these three photomontages and without the benefit of expert opinion supporting the council's position, whether the proposal meets cl 72A(2)(a). I note that none of the experts specifically addressed this clause, contenting themselves with the satisfaction of cl 86(5), which requires only a consideration of the proposal's heritage impact. Not even Mr McDonald, who was briefed by the council, turned his mind to cl 72A(2)(a). 10 I have before me the three photomontages on which Mr Pickles' submission relies. One shows a view from across Agincourt Road, more or less centrally opposite to Curzon Hall. The new ballroom appears to the left of Curzon Hall, and one can fairly describe it as being in the background and not vying with the main building in any way for the attention of the viewer, thus not significantly altering the appearance. The second photomontage is from the traffic island of the roundabout at the intersection of Balaclava and Agincourt Roads. In this view, the ballroom is almost obscured by fencing, the Curzon Hall sign, and vegetation. The third photomontage is taken from within the site, near the Balaclava and Agincourt corner. This location is about equidistant from Curzon Hall and the ballroom; the latter is clearly visible. The ballroom appears subsidiary to Curzon Hall; it is set back to allow the bay window to be seen from most angles, and its link to the building is hidden from view. No landscaping is shown in front of the ballroom, though there would be landscaping in reality. I shall concentrate on this last photomontage, because it best serves to support Mr Pickles' submission. 11 I turn to the first part of cl 72A(2)(a), namely the question whether the proposal detrimentally affects the appearance of the building. In my opinion, most people would not find that it does. This value judgment is necessarily subjective, since I am aware that some people cannot tolerate any kind of contemporary building near an old one. I do not think that the three experts would have come to an agreement on the acceptability of the proposal if even one of them thought that it damages the appearance of Curzon Hall. 12 The second part of the clause requires that the proposal should not significantly alter the appearance of Curzon Hall. The answer to that question depends on interpretation. Taken at its most literal, the clause prohibits any significant change in the existing view of the building from any point. I do not think that this could have been intended, unless the word "significant" is given a wide meaning. Taken in the narrowest sense, the clause means that the appearance of the building itself must not change significantly, for example one cannot replace the timber windows with aluminium frames. I note that the clause does not contain the term "must not significantly alter views of the building", nor does it prohibit additional buildings on the site. 13 In my opinion, the proposal meets cl 72A(2)(a), when that clause is interpreted in a commonsensical way that can be applied to a mansion in Marsfield, which is not a museum but used as a reception centre. To interpret it in any other way would lead to the absurd position of freezing Curzon Hall and its site in its existing form forever. Only buildings like the Parthenon are given that sort of protection. In that regard, I note that Curzon Hall is not on the State Heritage Register. 14 I am strengthened in the above interpretation by the fact that, at a time when cl 72A was in existence, the council consented to the development of the greater part of what was then the Curzon Hall site for retirement housing. Views of Curzon Hall from the east and south would have changed drastically as a result. Re-opening the case 15 I read out the above findings as an extempore judgment at the conclusion of the hearing on 22 and 23 May 2006 and made orders to uphold the appeal. However, before my orders were entered, the council filed a notice of motion seeking leave to re-open the case. The Council claimed that part of the land on which the Applicant located the proposed temporary parking was zoned Special Uses – Seminary, thus prohibiting temporary parking. On 16 June 2006 I granted leave to the Council to reopen its case and made directions for the filing of further evidence on this new issue. 16 The Applicant filed a submission that the temporary parking could be approved by operation of cl 91 of the PSO. Clause 19 of RPSO provides: The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which a heritage item if erected, even though the use would otherwise not be allowed by this plan, if: (a) it is satisfied that the retention of the building or item depends on the granting of consent, and; (b) the proposed use is in accordance with a conservation management plan which has been approved by the consent authority, and (c) the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and (d) the proposed use would not adversely affect the heritage significance of the heritage item of its setting, and (e) the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent." 17 In support of its submission, the applicant relies upon a letter from its accountant Sergio P Laurent of LCI Partners Pty Limited, a memorandum from Tanner Architects dated 19 June 2006 responding to clause 91 of RPSO and an elemental conservation works schedule for Curzon Hall prepared by Tanner Architects which sets out the proposed conservation works. 18 The Council does not object to the Applicant's relying on cl 91 or its evidence in support of that application, provided conservation works are carried out in accordance with a conservation management plan prepared in accordance with the Heritage Office Guidelines and as approved by Council. The Council requires a deferred commencement condition requiring the applicant to provide a conservation management plan consistent with its submission identifying the conservation works to be undertaken to Curzon Hall, the time frame in which those works will be undertaken, as well as a general condition of consent requiring the implementation of the conservation management plan. The applicant accepts the condition. 19 I have considered the applicant's submission on clause 91 and I am satisfied that the provisions of clause 91 of RPSO have been met and consequently the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to construct a new ballroom and a two-storey car park with ancillary works in the grounds of Curzon Hall, lot 1 DP 703569, known as 53 Agincourt Road, Marsfield is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 7 and A. ______________________ Dr John Roseth Senior Commissioner 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.