Land and Environment Court of New South Wales CITATION : Australand Industrial No 18 Pty Ltd v Auburn Council [2004] NSWLEC 105 APPLICANT: Australand Industrial No 18 Pty Ltd PARTIES : RESPONDENT: Auburn Council FILE NUMBER(S) : 10147 of 2003 CORAM: Bignold J KEY ISSUES: Development Application :- Stage 1 (Masterplan) application for residential and educational development-whether adequate information provided for stage 1 application-whether heritage precinct suitable for educational use-whether sufficient buildings retained-whether adequate open space provided LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Auburn Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 19-22/08/2003, 25-29/08/2003, 19/09/2003, 30/10/2003, 05/11/2003. DATE OF JUDGMENT: 03/19/2004 APPLICANT: Mr B Preston SC and Ms J Jagot, Barrister SOLICITORS Mallesons Stephen Jacques LEGAL REPRESENTATIVES: RESPONDENT: Mr T Robertson SC SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND Matter No. . 10147 of 2003 ENVIRONMENT COURT Coram: Bignold J OF NEW SOUTH WALES 19 March 2004 AUSTRALAND INDUSTRIAL NO. 18 PTY LTD Applicant v AUBURN COUNCIL Respondent JUDGMENT A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (EP&A Act), against the Council's deemed refusal of a development application for Stage 1 of the planned staged re-development of the site of the former Lidcombe Public Hospital fronting Joseph Street, Lidcombe and comprising an area of 44 hectares (the development site). 2. The Stage 1 development application had sought consent for a masterplan concept for the redevelopment of the entire development site (principally comprising medium density residential development) and in particular for the subdivision of the land into a number of super lots (being the street blocks for future residential subdivision and development) including the provision of subdivisional roads, utility services and open space infrastructure and the demolition of specified buildings existing on the development site being former hospital buildings that do not comprise buildings listed as the heritage group of buildings (the heritage core). Additionally, the Stage 1 application includes site contamination remediation works and the use of the heritage core for educational purposes. 3. The operation of Lidcombe Hospital ceased in 1995/1996 when its existing services were transferred to Bankstown Hospital. Thereafter, control of the site was vested in the Olympic Co-Ordination Authority which in 1997 set in train the planning processes for the future rezoning and redevelopment of the site following its utilisation as the Media Village (providing residential accommodation, principally in temporary demountable buildings, for some 5,000 journalists etc) at the Sydney 2000 Olympic Games. 4. In 2001, the Applicant was the successful tenderer for the planned redevelopment of the development site (tenders having been invited by the Olympic Co-ordination Authority) and in January 2002 the NSW Treasurer publicly announced that the Applicant had entered into a contract with the State for the purchase of the site for the price of $96.9 million to be paid in a series of instalment payments during the period 2003-2007. It appears that the Applicant is contractually bound to obtain development consent for the overall redevelopment of the development site—hence the making of the Stage 1 "Masterplan" development application which contemplated the subsequent staged development of the site over a period of up to 8 years. 5. Well before the tender process the Council also had been vitally involved in the planning changes for the development site, having been advised by the NSW Health Department in May 1995 of its intention to dispose of the site in accordance with the State Government's Property Asset Management Guidelines. To facilitate that process, the Health Department had commissioned a conservation study of the development site which was undertaken by Noel Bell and Ridley Smith which produced a 3 volume Conservation Plan in 1995, recognising the considerable heritage significance of the site. Ultimately the development site was rezoned for residential development by Auburn Local Environmental Plan No 75 which came into force in 1998 or 1999. That residential zoning is perpetuated under the current Auburn Local Environmental Plan 2000 (the LEP) which came into force in October 2000 and which also listed the heritage core group of buildings as a heritage item, having the benefit of the protective provisions of the LEP. 6. Following its entering into the contract to purchase the development site, the Applicant extensively liaised with the Council throughout 2002 and the early part of 2003 in connection with its redevelopment proposals which essentially carry forward and implement the Masterplan proposals outlined in its successful tender. That consultation process included the Council publicly exhibiting a draft Development Control Plan (DCP) prepared in consultation with the Applicant for the development site, together with the Applicant's "Masterplan" Stage 1 development application for that redevelopment and the Applicant's Conservation Management Plan (CMP) (which was subsequently approved by the NSW Heritage Council). This co-operative consultation process continued up to February 2003 when the Council considered, but deferred, a report from its planning servants recommending that the Council adopt the draft DCP and draft CMP and approve the Applicant's Stage 1 development application subject to conditions. The same planning report had contained the opinion that the draft DCP and draft CMP and Stage 1 development application (the "masterplan" proposal) "in general …..implemented the Planning Principles" for the development site that had been adopted by the Council in August 2001 and which had formed part of the tender documents released by the Olympic Co-ordination Authority to tenderers. It was immediately following this decision of the Council that the Applicant filed its present appeal against the Council's deemed refusal of its Stage 1 development application, prompting the decision of the Council to defend the appeal (although it appears that the Council has never formally determined the Stage 1 development application). 7. Although it is not part of the Court's function in determining this appeal to enquire into the circumstances leading to the Council's abandonment of the draft DCP and the unexpected conclusion of the consultation process, the course of that consultation process and the content and outcomes of that process is of some relevance. Firstly, it explains the genesis and development of the Masterplan concept for the development of the development site. Secondly, it may cast light on the reasons for the competing cases presented at the hearing. Finally, it may assist in the proper evaluation of the competing cases. 8. Subsequently, the Council was to publicly exhibit its own significant revisions of the draft DCP in the form of a new draft DCP which was adopted by the Council just a few days before the commencement on 19 August 2003 of the scheduled hearing of the present proceedings. Clearly the Council had accelerated the DCP process with an eye on the hearing of the Applicant's development appeal and with the object of strengthening the Council's case in opposing the development proposal. 9. The hearing of the appeal involving some 10 sitting days including a comprehensive view of the development site, raised a multitude of issues with multitudinous expert reports supplemented by extensive expert conferencing undertaken throughout the hearing process (regrettably very little experts' conferencing had occurred prior to the hearing) and yielding multiple joint expert reports. By this dynamic, albeit flurried process, many issues in dispute were either resolved or considerably narrowed in the course of the hearing leading to adjustments and refinements to the proposed development. Nonetheless, the Council maintained its opposition to the proposal upon planning merit grounds but on a far narrower front criticising the fundamental design philosophy of the Masterplan component of the Stage 1 development application. 10. Additionally, at the end of the hearing, the parties remained in significant dispute on many of the conditions of consent which might appropriately be imposed in the event that the Court determining to uphold the appeal and to grant development consent, including significant dispute on the scope and ambit of deferred commencement conditions. The issues in dispute concerning the conditions had been the subject of extensive written submissions, received by the Court up to 5 November 2003 when that process was concluded. However upon consideration, this has not proved to be an entirely satisfactory method of dealing with this important aspect of the case (which was unavoidably complicated by virtue of the fact that each party has proffered draft conditions that emanate from the competing case on the planning merits it presented at the hearing). 11. In the result, the only comprehensible and manageable way of adjudicating upon these disputed conditions is to first adjudicate upon the issues that remained in dispute on the planning merits as to whether development consent should or should not be granted to the Stage 1 development application. If the decision is that development consent should be granted and that decision does not itself resolve the disputed conditions or provide the basis for their resolution, that discrete question may require a supplementary hearing specifically focussed upon what conditions are appropriate to be imposed upon the grant of development consent. 12. Ultimately the Council's opposition to the proposed development has been based upon two fundamental grounds that concern the planning merits of the "masterplan" proposal included in the Stage 1 development application, namely (i) the assertion that the proposal is inconsistent with some of the planning principles that the Council had adopted for the development site in August 2001 (and which, as earlier noted had been included as relevant planning parameters in the tender documents); and (ii) the assertion that the Stage 1 development application was deficient in terms of relevant principles for good urban design, inasmuch as it does not provide sufficient information and detail and in particular that it lacks an adequately formulated built form strategy for the overall residential development of the development site. 13. In relation to the first ground, the Council contends that the proposal is inconsistent with the planning principles it had adopted concerning heritage considerations. In this respect, it is claimed that the proposed educational use of the heritage core (which is located on proposed lot 50 comprising some 7 ha situate in the south-western corner of the development site) will have the adverse effect of significantly enclaving, and hence dissociating, the heritage core from the proposed residential redevelopment of the development site—both in a physical sense and in a sphere of influence sense. 14. In relation to the second ground, it is claimed that good urban design principles and practice require consideration of a detailed built form strategy for the proposed residential development before any sound decision can be made for the creation of the subdivision block layout (involving the distribution throughout the site of the subdivisional roads and open space infrastructure) because the creation of that layout permanently impresses the essential urban design character of the future residential estate, and it is good urban design practice to validate or verify the appropriateness of that layout with the benefit of a comprehensive built form strategy. 15. The two grounds relied upon by the Council are in themselves relevant independent planning principles. Additionally, they are claimed to be relevantly invoked by the provisions of cl 64 of the LEP, which applies special controls relating to "staged development" in respect of the development of each of three specific sites, (which are obviously major and significant sites) namely (a) Lidcombe Hospital Site; (b) Clyde Marshalling Yards; and (c) the RAAF Site. 16. The Applicant's response is that the Council has not substantiated its case against its Stage 1 development application. It claims that its masterplan component of the Stage 1 development application has properly taken into consideration, and generally complies with, the Council's adopted Planning Principles and that the masterplan content of that development application adequately addresses urban design considerations especially in the context of a staged development consent granted conformably to cl 64 of the LEP, where later stages of the development will provide full details of the building forms, types and mixes of the proposed residential development to be carried out in future stages of the development when residential subdivision and residential development of the super lots takes place. As an example of that detail, the Applicant relies upon its Stage 2 development application for the residential subdivision and housing development of proposed Super lot 1 (comprising an area of 0.61 hectares) creating 18 lots. An appeal against the Council's deemed refusal of the Stage 2 development application is pending in this Court (Matter No 1065 of 2003). 17. At first blush, it may appear somewhat surprising that the Council would appeal to the Planning Principles it adopted in August 2001 to support its opposition to the Applicant's development application in view of the current existence of the Council's Development Control Plan for the former Lidcombe Hospital Site (Exhibit 1). This DCP (which was adopted by the Council on 13 August 2003) is a very comprehensive and detailed document comprising some 101 pages. Its relationship to the "Planning Principles" adopted by the Council in August 2001 is not expressly expounded in the text of the DCP. However, in Section 1.11 headed "Staged Development" (where reference is made to cl 64 of the LEP) the following is stated: Council stipulates Planning Principles adopted by Council on 1 August 2001 and this DCP as general considerations under Part 2 of Schedule (U) the last-mentioned reference being intended as a reference to par (1)(u) of Part 2 of Schedule 7 to the LEP which is expressly incorporated in cl 64 of the LEP and which provides: 1. The following matters are to be taken into account in all staged development proposal: ………………… (u) any other matters stipulated as general considerations by the Council 18. In the report submitted to the Council Meeting on 2 July 2003 recommending that the Council adopt a new DCP for the development site it is stated that "Council officers have now developed a new DCP that is consistent with the Planning Principles document that was adopted by the Council". (I take this to be a reference to the Planning Principles adopted by the Council in August 2001). The report does not elaborate on the text that I have quoted. Nor does it expound the differences that may exist between the contents of that draft DCP and the earlier draft DCP (prepared in consultation with the Applicant) that the Council had publicly exhibited at the end of 2002, but had abandoned following the Applicant lodging its present appeal against the Council's deemed refusal of the Stage 1 development application. 19. Doubtless, it was because of the extremely belated and obviously pointed coming into existence of the Council's new DCP that Senior Counsel for the Council in his final submissions conceded, quite properly in my opinion, that this was not a case where the Council could simply rely upon the fact that the proposed development did not comply with the requirements of the new DCP as providing a legitimate foundation for refusing development consent. 20. In adjudicating upon the principal issues raised by the appeal, it should at once be noted that it is common ground that the development site is of considerable heritage significance (historical, social, architectural and landscape) at all levels – local, State and National. In particular, it is recognised that the heritage core group of buildings is of outstanding significance. The significant issue raised by the Council is whether that outstanding significance can be optimised for the benefit of the whole future residential estate—not only in its proper conservation per se via the process of an appropriate adaptive re-use, but also in its presentation and accessibility to the public, and in its pervasive and tonal influence infusing the new residential estate with a distinctive heritage character. This issue raises fairly and squarely the full spectrum of the relationship (static and dynamic) between the conservation of the heritage core and the new residential development planned for the development site. 21. The Council's criticism of the masterplan component of the Applicant's Stage 1 development application is twofold—firstly, the planned adaptive re-use of the heritage core buildings as an educational establishment is not appropriate because it will necessarily create a severance of the heritage core from the residential estate, particularly in the sense of non-accessibility of the public to the heritage core generally and the centrally located village green in particular and secondly (and perhaps consequentially) the sphere of influence of the heritage core on the planned residential estate will be significantly diminished. In a word, the Council's case is that the planned educational use of the heritage core will not effectively integrate the conservation of the heritage core with the development of the new residential estate planned for the bulk of the development site. 22. By virtue of that asserted non-integration, the Council asserts that the continuance of the heritage unity and ambience of the overall development site will be significantly impaired, if not forfeited in the planned development of the development site. 23. The Applicant's competing case is that its "masterplan" redevelopment proposals will achieve a fair and reasonable degree of effective integration of heritage conservation and new residential development in accordance with the residential zoning of the whole of the development site that was deliberately created via a comprehensive process of planning and heritage assessment in respect of the development site that was undertaken once the decision to close Lidcombe Hospital was announced in 1995. 24. The parties' competing cases on this principal planning issue have addressed related contributory or sub-issues eg whether the planned residential development outside the heritage core should involve the retention of more of the existing hospital buildings distributed over much of the site for appropriate adaptive reuses. 25. In hearing the present appeal, I have been greatly assisted by Commissioner Brown whose assistance has been provided pursuant to the Land and Environment Court Act 1979, s 37(1). B. THE DEVELOPMENT SITE AND ITS CONTEXT (i.) Its physical attributes 26. The development site is located on the eastern side of Joseph Street between Weeroona Road and Georges Avenue at Lidcombe. It is bounded by the South Sydney Institute of TAFE and the University of Sydney—Cumberland College Campus to the east and on the opposite side of Joseph Street it is flanked by Canarvon Golf Course. It is situate some 3 kilometres from Auburn town centre and less than 2 kilometres from the railway stations at Lidcombe, Berala and Regents Park. 27. The development site comprises lots 2 and 3 in DP 876565 and lot 56 in DP 1016757 having a frontage to Joseph Street of 618 m and frontage to Weeroona Road of 437.5 m. The total area is 44.04 ha. It is irregular in shape, having a maximum length (on the north/south axis) of a little more than 1 kilometre and a maximum depth (on the east-west axis) of 600 metres. 28. The development site is undulating with a ridge running generally north-south through the centre of the land at RL45 to 47. Vegetation of varying significance is scattered over the development site. 29. A large number of buildings associated with its previous use as a hospital are distributed over the development site with a concentration of older and most significant buildings located in the heritage core situate to the south. Vehicular access is provided from Joseph Street. 30. Since the completion of the Sydney Olympics, the development site has remained vacant. (ii.) Its heritage significance 31. As earlier noted, the heritage significance of the development site is attested by the 1995 Conservation Plan prepared by Noel Bell Ridley Smith and by the 2002 Conservation Management Plan prepared on behalf of the Applicant by Mr David Logan. I am content to adopt the following statement of heritage significance contained in Mr Logan's Statement of Evidence (Exhibit F): 4.1 A detailed assessment of the heritage significance of the former Lidcombe Hospital Site and its elements and features is contained in the Lidcombe Hospital Site CMP, September 2002 prepared by Godden Mackay Logan Heritage Consultants (2002 CMP). This includes a relative ranking of the heritage value of each individual building, landscape element, road etc (see Appendix C). The heritage significance of the site, as identified in the 2002 CM, is summarised in the following paragraphs. 4.2 The Lidcombe Hospital site has been in continual institutional use from the 1880s-1995, evolving from a proposed boys Reformatory with self-sustaining farm, to Asylum for the aged and infirm, into an important State Teaching Hospital specialising in geriatric care and rehabilitation. In the latter half of the twentieth century, Lidcombe Hospital became a leader in geriatric care and rehabilitation practices. The expansion and closure of the hospital reflects changes in State and Commonwealth health care policy over the twentieth century. The Lidcombe Hospital site is associated with innovative medical practitioners and geriatric health care. The place also has association with the 2000 Sydney Olympic Games, providing short-term accommodation for approximately 5,000 visiting journalists in 2000. 4.3 Within the proposed Heritage Precinct, the architectural qualities of the Barnet-designed dormitories (1885-1887, the former Dining Hall (1885), the Superintendent's Residence (1887) and the Vernon-designed wards (1893-1906) arranged around the Village Green, are aesthetically distinctive and harmonious. The buildings demonstrate an intact example of a late-nineteenth and early-twentieth century institution for homeless, destitute and aged men. The nine Vernon-designed wards, individually and collectively, are exceptional examples of bungalow-style buildings that respond to the climate of New South Wales, and are aesthetically significant in their own right. The Recreation Hall and Chapel (1963) designed by Ken Woolley, the No. 1 Nurses Quarters (1910), Herdsman's Cottage (c1885), Boiler House and Chimney (1901) and the later Nos. 2 and 3 Nurses Quarters (1931 and 1939) all contribute to the aesthetic and landmark qualities of the place. 4.4 The earliest roads, including Farm Road, Mance Avenue, Brooks Circuit, Main Avenue, Church Street, Sussex Street, Copeland Road and Peden Lane, demonstrate the pattern of development of the Lidcombe Hospital site and the location of the former farming activities and isolation facilities of the earlier Asylum and hospital periods. 4.5 Landscape plantings, including the hoop pines and phoenix palms, tallowwoods, brushboxes, iron barks, pepper trees and spotted gums, are landmarks that contribute to the aesthetic qualities of the site. The Village Green is an important open space that contributes to the aesthetic and landscape qualities. 4.6 The archaeological resource has the potential to enhance the significance of the Lidcombe Hospital site through its contribution to our understanding of the early modifications of the landscape through farming activities and the development of earl institutional care for the aged, infirm and the destitute. 4.7 The Lidcombe Hospital site is held in high esteem by a number of identifiable groups for its cultural and social values. It is a landmark in the area and contributes to the sense of identity of the local community. 4.8 The former Lidcombe Hospital site fulfils criteria for State and Local heritage listing for its historic, aesthetic and social significance, research potential and rare and representative values relating to its evolution from Asylum to hospital. It is also of significance as the location of the Olympic Media Village for the 2000 Sydney Olympic Games. 4.9 The 2002 CMP (like the 1995 Conservation Plan), identified a Heritage Precinct which contains all those parts of the site considered to be of State heritage significance including the most significant buildings, roads and landscape elements (see Appendix C). A further item of State significance, a grove of mixed eucalypts (Landscape item 56) beyond the Heritage Precinct, was also identified. C. THE PROPOSED DEVELOPMENT 32. The development application for Stage 1 was accompanied by a Statement of Environmental Effects prepared by a Consultant Town Planner comprising some 140 typed pages. It was supported by the following detailed reports (aggregating several hundreds if not thousands of pages): Arboricultural Assessment Tree Removal & Transplanting for Roadway & Verge Construction, Site Regrading & Development of Public Parks for Proposed Redevelopment at Lidcombe Hospital Lidcombe NSW prepared by the Tree Wise Men Australia and dated October, 2002. Arborists Audit for Proposed Redevelopment at Lidcombe Hospital, Lidcombe NSW prepared by The Tree Wise Men Australia and dated May, 2002. Flora and Fauna Assessment Report, Proposed Development, Former Lidcombe Hospital Site Joseph Street Lidcombe prepared by Conacher Travers and dated June, 2002. Former Lidcombe Hospital Site Heritage Impact Statement prepared by Godden Mackay Logan and dated October 2002 Former Lidcombe Hospital Site Landscape Masterplan Report prepared by Tract Consultants and dated October, 2002. Hazardous Materials Survey of Selected Buildings at the Former Lidcombe Hospital Complex, Joseph Street, Lidcombe, NSW. Buildings to be Retained prepared by HLA-Envirosciences and dated 11 July, 2002. Hazardous Materials Survey of Selected Buildings at the Former Lidcombe Hospital Complex, Joseph Street, Lidcombe, NSW. Buildings to be Demolished prepared by HLA-Envirosciences and dated 26 June, 2002. Lidcombe Hospital Site Conservation Management Plan prepared by Godden Mackay Logan and dated September, 2002. Phase 1 and Phase 2 Environmental Site Assessment and Geotechnical Review, Lidcombe Media Village, Joseph Street, Lidcombe, NSW prepared by URS Australia and dated 17 August, 2001. Preliminary Geotechnical Assessment, Olympic Media Village Site prepared by URS Australia and dated 17 July, 2002. Proposed redevelopment of former Lidcombe Hospital site—Environmental Noise Impact Assessment prepared by Renzo Tonin & Associated and dated 15 October 2002. Stormwater Masterplan report—Lidcombe Hospital site prepared by J. Wyndham Prince Pty Ltd dated 2 August 2002 and addendum dated 17 October 2002 Stormwater Masterplan Report, Lidcombe Hospital Site prepared by J Wyndham Prince and dated 2 August, 2002. Traffic Analysis—proposed Lidcombe hospital site redevelopment prepared by Masson Wilson Twiney Pty ltd dated October 2002 Traffic Analysis, Proposed Lidcombe Hospital Site Redevelopment prepared by Masson Wilson Twiney and dated October, 2002. Work method Statement—Proposed demolition of building structures and associated infrastructure at former Lidcombe Hospital complex Joseph Street Lidcombe NSW prepared by j. Wyndham Prince Pty Ltd dated 2 August 2002 and addendum dated 17 October 2002 33. The precise nature of the various components comprising the Stage 1 development is not readily appreciated because of the discursive manner in which they are described in Section 4.2 (comprising 10 or more pages) of the SEE. Additionally, Section 4.3 of the SEE discursively describes the "masterplan" component over an additional 15 pages. For present purposes, it may be sufficient to quote the following description of the Stage 1 development provided in the Executive Summary of the SEE: This stage 1 development application relates to the future use and development of the former Lidcombe Hospital site for residential and educational establishment purposes. The application seeks development consent for: The use of the land in accordance with an overall general plan of development including residential use and use for an educational establishment; A landscape masterplan for the site; Demolition of certain buildings; Land remediation works; General site civil works including provision of service infrastructure to the site and within the site; Subdivision of the site in accordance with the overall general plan of development; Access to the site off Joseph Street and Weeroona Road. In seeking development consent for the above the assessment has also taken into account the conservation of heritage assets within the site in accordance with a conservation management plan. A heritage impact statement has also been prepared as required in Part 2 of Schedule 7 of the Auburn LEP 2000. Separate construction certificate applications would be lodged with Council in relation to all works for which approval is sought under this Stage 1 Development Application. The construction certificate applications would include all detailed design and engineering detail necessary to carry out the construction of the proposed works and activities. Subsequent development applications and construction certificate applications would be submitted on a staged basis for the detailed subdivision and building development of individual allotments and dwellings for the different development precincts. These applications would be lodged in general accordance with the development consent granted for the Stage 1 development application. D. THE RELEVANT PLANNING CONTROLS 34. The development site is zoned 2(b) Residential (Medium Density) under the LEP cl 12 of which states as follows: 12. Zoning controls for Zone No 2(b)-Residential (Medium Density) Zone (1) The objectives of Zone No 2(b) are as follows: (a) to permit multiple dwelling residential development on appropriate sites, (b) to permit residents to work at home where there is no adverse impact on the amenity of the area, (c) to permit appropriate uses in the zone that complement the residential nature and functioning of the zone. (2) Development allowed without consent Exempt development being development of minimal environmental impact that is listed and satisfies the criteria for exempt development relevant to land zoned 2(b) in the Auburn Development Control Plan identified in Schedule 5. (3) Development that requires consent Development for the purpose of: local shops multiple dwellings bed and breakfast accommodation places of public worship child care centres professional consulting rooms community facilities public buildings dwelling houses recreation areas educational establishments recreation facilities exhibition homes site identification signs home industries transitional group homes hospitals utility undertakings Subdivision. Complying development in Zone No 2(b) is any local development that is included above in this subclause and is listed and satisfies the criteria for complying development relevant to land zoned 2(b) in the Auburn Development Control Plan identified in Schedule 5. (4) Development which is prohibited Development not included in subclause (2) or (3) 35. The general objectives of the LEP are found at cl 7 and the specific objectives are found at cl 8. Specific objectives include "the conservation, protection and enhancement of the environmental heritage of the LGA" (cl 8(1)(a)) and "the conservation of those items and localities which contribute to the local environmental and cultural heritage of the LGA" (cl 8(4)(e)). 36. Part 9 of the LEP (Heritage provisions) provides controls relating to heritage and archaeological sites and includes the following clauses— 39 Heritage aims The consent authority is not to grant consent to the carrying out of development on a property that is listed as a heritage item or within a heritage group in Schedule 2, unless it is of the opinion that the proposal is consistent with the following aims: (a) to conserve the environmental heritage of the LGA, (b) to integrate heritage conservation into the planning and development control processes, (c) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage groups and their settings, and distinctive streetscapes, landscapes, and architectural styles which define the character of heritage conservation groups. 40 Restrictions on heritage items and heritage groups The following development may be carried out only with development consent: (a) demolishing, defacing or moving a heritage item or an item within a building within a heritage group, (b) altering a heritage item or a building or relic within a heritage group by making non-structural changes to the detail, fabric, finish or appearance of its exterior, (c) altering a heritage item or a building or relic within a heritage group by making non-structural changes to the detail, fabric, finish or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect the heritage significance of the item or group. (d) moving a relic, or excavating land for the purpose of exposing or moving a relic, (e) erecting a building on land on which a heritage item is located or which is within a heritage group, (f) subdividing land on which a heritage item is located or which is within a heritage group. 41 When development consent is not required Development consent for work on heritage items or within a heritage group is not required if: (a) the Applicant notifies the consent authority in writing of the proposed development, and (b) the consent authority is of the opinion that the development is minor, and (c) the consent authority notifies the Applicant in writing that it is satisfied that the proposed development is minor and that development consent is not required, and (d) development consent for the proposed development is not otherwise required in the zone. 42 Assessment of heritage applications (1) Before granting consent for development involving a heritage item or a heritage group, the consent authority is to be satisfied that: (a) the proposed development will not reduce the heritage significance of the heritage item or heritage group, and (b) the effect of the proposed development on significant structural fabric, on stylistic, horticultural, or archaeological features of the item, on its curtilage and on the contribution the features make to the significance of the item or the site have been considered. (2) Before granting consent for development in a heritage group, the consent authority is to assess: (a) whether the proposed development retains the characteristic features of the heritage group, and (b) whether the following aspects of the proposed development are compatible with the characteristic features of the heritage group, including the height, number of storeys, bulk and scale of buildings within the group: (i) the pitch, form and detail of the roof, (ii) the style, size, proportion and position of openings for windows or doors, (iii) the colour, texture, styles, size and type of finish of the materials to be used on the exterior of the building. 43 Development in the vicinity of heritage items or heritage groups Before granting consent to development on land in the vicinity of a heritage item or heritage group, the consent authority must take into account the likely effect the proposed development will have on the heritage significance of the heritage item or heritage group. 37. The former Lidcombe Hospital site is listed under Schedule 2 to the LEP as the only heritage group comprising 27 buildings and structures. The relevant part of Schedule 2 provides as follows: Heritage Groups Aged care Assessment and Medical Museum Physiotherapy Out Patients Occupational Therapy Speech Pathology Unit Salaries and Finance Section Dormitory Block/Convalescent Wards Former Verminous Patients Bathroom, Toilet Block Sawing Room Former Ablution Facilities Orchid Society Rooms Dermatology Unit Joseph Street (Former Lidcombe Hospital Site Heritage Group) Lidcombe Lot 1 DP 830779, Pt 72 C2338-2030 and Lot 1 DP 598188 Diabetes Centre Medical Ward Opthalmology CMLA Workshop Orchid Society Building Nurses home Old Training School Chaplain Residence Boiler House with Chimney Stack Herdsman's Cottage Recreation Hall Gatehouse Air Raid Shelter Clock Tower 38. Clause 51 of the LEP relates to contaminated land and refers to the controls under the Contaminated Land Management Act 1997 and State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). 39. Clause 52 of the LEP relates to development adjoining an arterial road or a railway line and requires that consent must not be granted unless the Council is satisfied that appropriate noise attenuation measures are employed. The subject site is bounded on its western frontage by Joseph Street, a 6-lane arterial road. The site also adjoins a railway line located on the southern alignment of Weeroona Road and the Chullora Freight Handling Centre and Railway Workshops. Noise impact was not an issue raised by the Council. 40. Clause 64 deals with staged development and contains specific references to the development site. Relevantly it states:— 64 Staged development (1) The consent authority must not grant consent for development of the whole or any part of a parcel of land described in Part 1 of Schedule 7 unless the consent authority is satisfied that the proposed development will form part of staged development in which: (a) the first stage, to the greatest extent practicable, has regard to all of the matters required by Part 2 of Schedule 7 to be taken into account in staged development proposals and such additional matters as the consent authority may require in relation to the parcel, and (b) each subsequent stage has regard to the first stage. (2) Subclause (1) does not apply if: (a) the development concerned is for the purpose of landscaping, servicing, remediation or demolition, or (b) the development is, in the opinion of the consent authority, of a minor nature, or (c) in the opinion of the consent authority, consent has been granted for all development of the parcel that will be carried out as staged development. (3) Consent must not be granted to staged development of the parcel of land identified in Part 1 of Schedule 7 as the Lidcombe Hospital Site unless the total number of dwellings to be erected on the land does not exceed the number calculated in accordance with the following formula: Area MP — (area R + Area POS) 330 For the purposes of this subclause: Area MP means the area in square metres of the site which is the subject of the staged development proposal. Area R means the area in square metres of the land to be used as roadways Area POS means the area in square metres of the land to be used as public open space. (4) ………. 41. Part 1 of Schedule 7 provides as follows:— Schedule 7 Staged development Part 1 Land to which this Schedule applies This Schedule applies to the following parcels of land each of which is shown by distinctive colouring and edged black on the map: (a) Lidcombe Hospital Site, (b) Clyde Marshalling Yards, (c) Royal Australian Air Force (RAAF) Site. 42. Part 2 of Schedule 7 sets out the requirements for staged development, namely:— 1. The following matters are to be taken into account in all staged development proposals: (a) details of all proposed stages of development, (b) distribution of land uses, (c) general building envelopes, building heights and built form requirements, (d) pedestrian, cycle and vehicular access, and circulation networks, including whether there is adequate provision for wheelchairs, (e) parking provision, (f) a heritage impact statement prepared by an appropriately qualified heritage adviser supported by evidence of consultation with the Heritage Office, (g) infrastructure needs and design principles, (h) guidelines for the location, maintenance, ownership and other requirements for open space and landscaping, and for access to open space, (i) ecologically sustainable development principles, (j) managing the total water cycle, including effluent and stormwater treatment and re-use, (k) passive and active energy conservation, (l) integration of land use and transport planning by satisfactory parking provision, (m) optimising public transport accessibility, (n) reducing greenhouse gas emissions, (o) implementing the waste management hierarchy specified in section 3 of the Waste Minimisation and Management Act 1995, (p) preventing or mitigating all adverse environmental impacts, (q) mitigating noise impacts from sources both internal and external to the site, (r) appropriate levels of access and amenity for existing uses on the site, including the issues of vehicular access, security, fencing and location of open space, (s) effective erosion and sedimentation controls, (t) requirements relating to remediation of land made by State Environmental Planning Policy No 55—Remediation of Land, (u) any other matters stipulated as general considerations by Council. 2. The following additional matter is to be taken into account in the staged development of the Lidcombe Hospital Site: whether appropriate levels of access and amenity for Ferguson Lodge will be provided, including adequate vehicular access, security fencing and well located open space. 3. ………. 4. ………. Nothing in this clause affects the operation of State Environmental Planning Policy No 55-Remediation of Land. 43. The DCP applying exclusively to the development site (that was adopted the Council in August 2003) embodies detailed site planning principles (Part 2), Precincts and Precinct Character (Part 3), Heritage (Part 4), Landscape principles, objectives and design controls (Part 5), Roads and Access controls (Part 6), Site Planning controls (Part 7), Residential Development and subdivision controls (Part 8) and Ecologically Sustainable Development requirements (Part 9). The stated purpose of the DCP is to provide detailed controls to supplement and particularise the provisions of the LEP as they apply to the development site. 44. Since, as I have earlier noted, the Council's case placed greater reliance upon the Planning Principles it adopted in August 2001 (than upon the provisions of the new DCP), I should note in particular the relevant contents of the August 2001 Planning Principles (Exhibit 3) which is a document in a tabulated format. The relevant passages are as follows: ISSUE PLANNING PRINCIPLE OUTCOME A) The protection and enhancement of the heritage buildings is important. 11) Heritage: A group of the old hospital buildings are protected from demolition by Auburn LEP 2000. B) The conservation of the heritage buildings and cultural landscapes are to be integrated into the planning of the redevelopment of the site. A comprehensive heritage assessment and conservation policy for the buildings and landscape has already been done by NBRS&P Architects February 1995 and is on Council files. Proposals for conservation, demolition or adaptive-re use of these items must be made with reference to the Conservation Policy. A mixed-use function of the heritage precinct, with its transport links and village green will form an attractive, dynamic and financially viable heart for the development C) The large number and substantial size of these buildings, their layout and condition is an opportunity to create a precinct without compromising their heritage significance. The precinct should have a distinct heritage character and with possible sympathetic additions and alterations, be suitable for a variety of uses including commercial, laboratory research, retail, hospitality and residential. This variety of uses encouraged will help integrate the precinct with the new development as well as be an incentive for adaptive reuse of the heritage buildings. D) The financial feasibility of retaining and reusing heritage buildings should not be assessed on a stand-alone basis but integrated with the design, feasibility and phasing of the whole project. 14) Public open space D) Open space should also be designed to provide focal points for the community and assist in providing acoustic privacy to the development. Particularly the grassed area in the centre of the former hospital building heritage group. This area should become the village green, a focus of a mixed-use heritage precinct and the core of the development. Public open space that will meet the range of needs of the future population of the development and be linked with adjoining areas. E. PLANNING EVALUATION OF THE PROPOSED DEVELOPMENT 45. As a preliminary comment to the evaluation of the development application required by the EP&A Act, s 79C, I should say that the Masterplan component of the Stage 1 development application had been the subject of a vast and rigorous planning and heritage assessment process well before those matters were re-addressed in the course of the hearing of the present proceedings with the meticulous scrutiny provided by a multitude of expert testimony and a greater volume of expert documentary materials. 46. Indeed, the development site had been subjected to a prior rigorous planning and heritage assessment process which had resulted in the rezoning of the site for residential purposes after the hospital use ceased in the mid 1990s. Coinciding with that rezoning outcome was the listing as a building group of the heritage core. 47. This concurrence (but not congruence) of planning and heritage controls which were applied to the development site while control of it was still vested in the Olympic Coordination Authority has from the outset of the current planning history inevitably impressed the future re-development of the site with the dual characteristic or quality of the opportunity to create a substantial new residential suburb for 2,000 to 3,000 residents coupled with the duty to conserve significant heritage items. 48. This was the scenario which was addressed by the Applicant in submitting its tender outlining its Masterplan proposal for the redevelopment of the development site, and after its tender had been accepted and it had contracted to purchase the development site, the Applicant worked co-operatively with the Council (and its planning staff) in refining the Masterplan proposal and converting it into the Stage 1 development application and in supplementing it with a draft DCP and CMP (the latter also having received significant input from the Heritage Council of NSW). 49. It is obvious, speaking generally, that to strike the right and harmonious balance in a given case between legitimate conservation and redevelopment imperatives, is no easy matter both conceptually and in the fine tuning. There may be room for legitimate difference of informed opinion with any given outcome, particularly at the edge of the conservation/re-development interface. 50. The present case exemplifies how opinions legitimately can differ with respect to the suggested balanced solution both conceptually and in the fine tuning. This is not a surprising result, especially given the fact that the development site is obviously a very large and valuable land resource, having the benefit of a residential zoning permitting medium density development with a maximum dwelling density prescribed by the formula contained in cl 64 of the LEP of some 800 dwellings, which formula prima facie takes no account of the heritage significance of the site except for the implications of the requirement of Schedule 7 that a heritage impact statement support staged development proposals (a matter to which I shall presently return). 51. The Council's criticism of the Masterplan proposal that the heritage core be used for the purposes of a school accepts in a presuppositional sense, that any such use must necessarily involve the positive conservation of the heritage group of buildings (eg the buildings will have to be repaired and re-adapted (no doubt at great expense) before they can be so used). Rather, the criticism is directed to the fact that the proposed adaptive re-use as a private school will necessarily isolate the heritage core from the planned residential estate and by virtue of that exclusive private school use will render the heritage core effectively inaccessible to the residents of the planned residential estate and to the public generally (other than children who will attend the school). It was submitted that the flow-on consequence of this state of affairs will inevitably impair the capacity of the heritage core to pervade its beneficial influence into the residential estate. 52. These criticisms are not lacking in substance and they are supported by the planning principles concerning heritage considerations adopted by the Council in August 2001 that I have earlier recited. (Those same principles are now given sharper and more specific focus and operation in the new DCP). 53. However, ultimately, my overall evaluation of the planning merits of the Masterplan component of the Stage 1 development application has led me to conclude that the Masterplan proposal achieves a reasonable balance between the legitimate dictates for residential re-development and heritage conservation of the development site. 54. In so concluding, I accept Mr Logan's well reasoned opinions (Exhibit F) that the Stage 1 development application (i) "retains the key heritage values of the site" (he is here referring to "the buildings, landscape features and heritage roads of major heritage significance"—see exhibit F par 7); (ii) "provides an opportunity for an outstanding Heritage Precinct as a centrepiece for the proposed sympathetically scaled and located residential development"; and (iii) "strikes a very reasonable balance between heritage and development objectives and is both appropriate and reasonable from a heritage viewpoint": vide par 7.7 Exhibit F. 55. A plan incorporated in his CMP and annexed to his statement of evidence defining the "heritage precinct curtilage boundary" demonstrates, in my opinion, the considerable spatial impact and relational influence of the heritage core on the overall development site. A copy of the plan is annexed hereto and marked "A".. That defined curtilage needs to be expanded to include buildings numbered 34, 35 and 36 shown on the plan which the Applicant now agrees to retain, taking up the suggestion that had been made by the Heritage Council in its written advice to the Council (Exhibit 13) which included the following comments in response to the referral to it of the Applicant's Stage 1 development application: 2. The heritage impact of the Masterplan development application is generally considered to be acceptable. In particular the proposed adaptive reuse of the heritage precinct for school purposes is considered to be a suitable use to minimise intervention with significant fabric of the buildings. 3. The Masterplan development application should be clearly conditioned to prohibit the occupation of the heritage buildings for school purposes until a more detailed development application is submitted and approved. This application should be accompanied by Specific Element Conservation Policies for the individual heritage buildings and annexed to the conservation management plan. The subsequent application should also be accompanied by a thorough assessment of the parking demand of the proposed school and demonstration that the proposed parking provision is acceptable in terms of heritage impact. 4. Further negotiations between the Council and the applicant are encouraged to facilitate the retention of additional buildings from the inter-war period, particularly buildings 34, 35 and 36 and the adjacent road to the south west. 56. The inclusion within the "heritage precinct curtilage boundary" of the central park traversing the north/south ridge is in my opinion legitimate because of its physical and visual proximity and relationship to the heritage core. In this respect, the central park (400 m in length and 3 ha in area) has a planned double character, it being the planned dominant urban design feature of the Masterplan concept for the residential re-development of the development site linking the central park to the heritage core. 57. In so concluding, I would emphasise the operation of two important aspects of the relevant legal matrix governing my planning evaluation, namely cl 64 of the LEP and s 80(5) of the EP&A Act. 58. Clause 64 relevantly limits the power to grant development consent in respect of development of the development site to a development that "will form part of staged development". 59. The Dictionary to the LEP includes the following definition: Staged development means development subject to a condition of development consent referred to in section 80(5) of the Act. 60. The EP&A Act, ss 80(4) and (5) under the heading "Staged development" provide as follows: (4) Staged development A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent. 61. Conformably to that legal matrix it is entirely appropriate (if not legally necessary) that any development consent that may be granted to the Stage 1 development application be subject to an appropriate condition pursuant to s 80(5). More particularly, in the case of any development consent granted to the proposed school use of the heritage core, it is appropriate that a condition be imposed requiring that another development consent be granted in respect of that use and in respect of building works that are necessary to render the heritage core fit and suitable for that use. The Heritage Council's advice to the Council that I have earlier recited adequately addresses that future need. 62. In the context of cl 64 of the LEP and in the light of the appropriateness of a condition being imposed pursuant to the EP&A Act, s 80(5) requiring a further development consent in respect of a school use of the heritage core, it necessarily follows that any development consent granted for a generic school use of the heritage core (and that is all that the Applicant seeks in the present case) is appropriately founded on a decision that such a use is, in principle, a suitable use. 63. But that is not to say that it be the only or exclusive suitable use and this leaves open the future possibility of some different adaptive re-use being proposed for the heritage core to achieve the positive conservation of the heritage core. 64. These views do not represent a retreat from the conclusion that I have reached that a school use of the heritage core is, in principle, a suitable use (subject to the grant of the requisite further development consent pursuant to a condition imposed under the EP&A Act, s 80(5)). 65. Rather, it is only to recognise that other adaptive re-uses for the heritage core (including those suggested by the Council's adopted Planning Principles and more recently adopted DCP) remain possible alternative uses to the school use, subject of course to proper heritage assessment. In this last-mentioned respect, it is to be noted that the NSW Heritage Office criticised the heritage provisions of the DCP in its letter to the Council dated 1 August 2003 (Exhibit 13). 66. In the context of the present proceedings, the issue debated has focussed upon a comparison of the merits or demerits of a school use (as proposed by the Applicant) or a mixed use (including commercial/retail activity) as preferred by the Council. Although the weight of heritage opinion evidence adduced in this case supports an emphatic preference for the proposed school use, and I am satisfied that a school use is an appropriate use (subject to the imposition of the requirement that a further development consent be obtained for such a use and for the associated building works necessary to facilitate such use) it by no means follows that the sanctioning of the school use (subject to the requirement for further development consent for that use to be obtained) rules out the possibility of some alternative adaptive re-use of the heritage core being promoted and adopted. The consequent (and what I would regard as being desirable in the interests of achieving a positive conservation outcome) flexibility in the approach which I intend to take conformably to s 80(5) is not, in my opinion, in any way jeopardised by the requirement of cl 64(1)(b) of the LEP that "each subsequent stage has regard to the first stage". 67. For all the foregoing reasons, I am satisfied that the Masterplan component of the Stage 1 development application, for the "in principle" school use of the heritage core, justifies the grant of development consent on the planning merits along the lines I have outlined. 68. As earlier noted, the other principal Council planning criticism of the Masterplan component of the Stage 1 development concerns the alleged absence from the documentation supporting the application of a built form strategy. This criticism generated considerable debate at the hearing, and notwithstanding the several agreements reached between the parties' experts in their joint conferences, this particular issue remained a live issue between them and the parties at the end of the hearing. Without intending any disrespect to parties or their experts, I think that the significance of the issue was exaggerated. In the context of the surfeit of expert materials both supporting and scrutinising the Masterplan proposal the suggestion that there was some information deficiency appeared to me to be fanciful or at least seriously misdirected. In fact, I think it was misdirected in the sense that what it was seeking to forensically elucidate was how the residential development could be achieved employing the maximum permissible density. 69. In my judgment, the SEE supporting the Stage 1 development application contained sufficient detail of the information that is required by cl 64 and Schedule 7 of the LEP to accompany the staged development proposal. Similarly, I am of the opinion that the Stage 1 development application and its supporting materials has relevantly "to the greatest extent practicable, had regard to all of the matters required by Part 2 of Schedule 7….." within the meaning of cl 64 of the LEP. 70. However, in my opinion, the real issue lying behind the Council's criticism of the absence of a built form strategy from the plethora of supporting materials has been the deliberate failure of the Applicant to demonstrate that a residential development of up to 750 dwellings (see section 4.3.7 of the SEE which includes the statement that the "proposed development plan allows for a dwelling yield of 860 dwellings") can be reasonably achieved on the development site (excluding the proposed heritage core lot comprising 7 hectares), which results in a compatible integration of redevelopment and heritage conservation. 71. Throughout the hearing, the Council probed this issue and the Applicant studiously avoided taking up the challenge with the result that there is simply no adequate basis in the evidence for the Court to grant development consent for up to 750 dwellings to be developed on the residential estate. Indeed, upon the basis of what little the evidence revealed on this issue, it is improbable that anything like a yield of 750 dwellings is a realistic density. One reason for adopting a cautious response to the maximum density permitted by the formula contained in cl 64 of the LEP is the fact that the density formula includes the heritage core land in the calculation of the available area of land, by reference to which the maximum density of one dwelling per 330 m2 of land area is to be calculated. 72. It is apparent that this formula does not readily accommodate to a discrete development of the heritage core for non-residential purposes (such as is proposed in the Stage 1 development application). 73. Moreover, even if it is legitimate to include within the development site the area of the heritage core for the purposes of calculating maximum residential density it is apparent that the density thereby yielded will have to be physically accommodated within a much reduced site area (ie by ignoring the 7 ha comprising the heritage core) with obvious consequences for the ultimate built form and character of the residential estate. 74. In making these almost self-evident observations, I do not intend to say anything definitive about what may be the final residential density yielded by the development of the development site. That is a matter that must await the subsequent stages of the development. As those stages unfold, it may be that a component of residential flat buildings may be sanctioned by an appropriate change to the present zoning controls applying to the development site. This has been a real possibility acknowledged by both parties since the possibility was first recognised in the Council's Planning Principles adopted in August 2001. 75. Once it is recognised that any development consent granted to the Stage 1 development application conformably to cl 64 of the LEP and the EP&A Act, s 80(5) cannot create a result of 750 dwellings being developed on the development site (or justify the creation of that result), the dispute concerning the absence of built form strategy falls away or is of no more than academic interest. 76. Moreover, the proper perspective on this issue is profoundly influenced by the staged development aspect of any development consent that may be granted because it is obvious that the future residential development of each of the super lots will require further development consent pursuant to the EP&A Act, s 80(5). 77. In this respect, the existence of the pending appeal in respect of the residential subdivision and development of proposed super lot 1 amply demonstrates the need for further development consent for such specific development if development consent for Stage 1 is granted. It also provides an illustration of the considerable detail (including precise details of the proposed dwellings) required of such development applications for subsequent stages of the development. 78. Moreover, in the light of all of the evidence supporting the Masterplan component of the Stage 1 development application, I am entirely satisfied that a proper and informed decision can be made, as sought in the Stage 1 development application, in respect of the subdivisional roads and open space infrastructure for the future residential development of the development site. 79. In a case such as the present, where it is known that the future development will be in the form of medium density housing involving a mix of housing types (including attached and detached housing), there is no real mystery concerning the nature and character of that future development that requires any illumination that may be provided by a built form strategy before a sound planning decision can be made on the essential residential infrastructural components of the future residential development. As I have noted, the only mystery concerns the residential density yield and that is a matter that properly must await future development applications for future stages of the overall development. 80. As a result of the extensive conferencing of the relevant experts, I did not understand there to be any real qualms on the part of the Council's experts as to the appropriateness of the layout of subdivisional roads and open spaces throughout the development site. That layout has been sensitively planned to achieve a harmonious balance between residential re-development and heritage conservation on the development site. 81. That layout, which was ultimately modified to reflect all agreements that were reached by the several sets of expert witnesses during the extensive rounds of expert conferencing throughout the hearing, is shown in Exhibit FF a copy of which is annexed hereto and marked "B". 82. In my opinion, that ultimately modified subdivisional layout represents a very reasonable accommodation by the Applicant of all matters raised by the Council concerning (i) maintaining existing historic roads; (ii) creating new road alignments and levels; (iii) creating public open spaces; and (iv) retaining tree and vegetation of heritage value. Accordingly, it warrants in my judgment, the grant of development consent and does not require any further refinement based upon any continuing dispute among the relevant experts. 83. Although one of the joint expert reports on urban design considerations formulated conditions of consent that might be imposed seeking to secure built form outcomes, upon further reflection I do not think it is appropriate to adopt that approach. This is principally because of the limited nature of any development consent granted to Stage 1 and the ultimate reliance upon future applications for the staged development. The Council's new DCP contains detailed provisions relevant to these matters which doubtless will be considered in each subsequent development stage. 84. In so concluding, I should note that there remained in dispute questions as to the adequacy of the overall quantity of public open space provided in the subdivision shown on the modified layout and as to the quality of some of the public open space, namely that flanking Joseph Street and Main Avenue, and that serving the dual purpose of passive recreation and drainage detention basins. 85. In my judgment the public open space proposed is generally acceptable, at least from the perspective of consideration of the Stage 1 development application. However, whether it is numerically adequate (in terms of the adopted formula 2.83 ha/1000 persons) ultimately depends upon the residential density yield actually achieved. Since for the reasons I have earlier given the development consent for Stage 1 carries no warrant for any particular residential density yield, and since the public open space has been calculated by the Applicant on an assumed yield of 750 dwellings (see s 4.5.1 of the SEE) I am entirely satisfied at this point of time that sufficient (and possibly more than sufficient) public open space is proposed. Again, the matter will necessarily have to be reviewed in the light of the outcomes of the subsequent stages of the overall development. 86. In concluding in my planning evaluation of the proposed development that both the Masterplan component and the subdivisional layout component merit the grant of development consent conformably to cl 64 of the LEP and the EP&A Act, s 80(5), I would again emphasise the importance I attach to the imposition of conditions pursuant to s 80(5) requiring further development consents in respect of (i) the school use of the heritage core; and (ii) the residential subdivision and residential development of the super lots identified in the Masterplan for residential development. 87. The imposition of the conditions pursuant to s 80(5) puts into proper perspective a number of the issues debated at the hearing. That perspective is that a number of the matters debated, especially those pertaining to the built form and character of the future residential development, must necessarily be properly left for appraisal when development applications are made in respect of future stages. As I have earlier noted, the operation of cl 64(1)(b) of the LEP does not undermine the integrity of that future process or pre-empt the proper outcomes of that future process. 88. A number of other planning matters of less significance to those already discussed in my evaluation of the Stage 1 development application were raised at the hearing and were the subject of expert testimony (including joint reports prepared by the relevant experts). Such matters included the following social dimensions of the proposed future staged development— (i) whether local retail and commercial services should be incorporated in the residential estate to serve the anticipated 2000-3000 residents; (ii) whether affordable housing should be provided in the development; (iii) whether low cost hostel accommodation should be provided in the development. 89. In my opinion, these important social considerations can properly be postponed to be addressed in later stages of the development, but I would think that some provision of convenience shopping is a reasonable minimal social expectation in this case which should be accommodated by the Applicant. 90. This by no means is to consign them to oblivion. Rather, it recognises the greater appropriateness of consideration of them in the course of subsequent stages of the development. 91. Other matters debated on the periphery of the case concerned principles of environmental sustainable development including the following particular matters— (i) the energy efficiency of the design of buildings; (ii) recycling of demolition waste; (iii) passive and active energy conservation; and (iv) greenhouse gas emissions. 92. In my opinion, these important matters likewise can be properly addressed in subsequent stages of the development except where desired outcomes can relevantly be postulated at the Stage 1 application stage, via the imposition of appropriate conditions (a matter I am confident the parties can resolve). 93. Having dealt with the Masterplan component and subdivisional layout component of the Stage 1 development application by invoking the power conferred by the EP&A Act, s 80(5) to impose conditions requiring the grant of further development consents in respect of (i) the school use of the heritage core; and (ii) the residential subdivision and residential development of the super lots identified in the Master Plan for residential development it remains for me to consider the other aspects of the overall development proposed by the Stage 1 development application, namely: (i) the demolition of existing buildings; (ii) contaminated land remediation works; (iii) civil site works including provision of infrastructural services; and (iv) separate site access via Joseph Street and Weeroona Road. 94. In my opinion, these specific aspects of the proposed Stage 1 development merit the grant of development consent, conformably with the grant of development consent to the (i) Masterplan component; and (ii) subdivisional layout component of the development. It is to be noted that buildings numbered 34, 35 and 3 are not to be demolished but are to be retained. 95. However, unlike the consent granted in respect of those two aspects which necessitate or justify the imposition of a condition pursuant to the EP&A Act, s 80(5) requiring further development consents to be granted, there is no need for such a condition to be imposed in respect of these other aspects of the Stage 1 development. 96. For all of the foregoing reasons, I have concluded that development consent should be granted. Such consent will be granted, subject to appropriate conditions (in addition to the conditions to be imposed pursuant to the EP&A Act, s 80(5)). 97. It remains for me to consider what other conditions are appropriate to be imposed. F. APPROPRIATE CONDITIONS OF DEVELOPMENT CONSENT 98. In paragraphs 10 and 11 I noted the somewhat unsatisfactory manner in which the question of appropriate conditions of development consent had been addressed at the hearing. 99. Having concluded that the Stage 1 development application should be approved on the planning merits, I find that it is not now possible to unravel the disputes between the parties concerning appropriate conditions without the benefit of some substantial re-consideration by them of their respective positions. (This implies no criticism of the parties in advancing their respective cases on the question of appropriate conditions, because their cases were naturally based upon their respective cases on the principal question raised by the appeal namely whether or not development consent should be granted). 100. In respect of that complication, it can be expected that my planning evaluation of the proposal will significantly clarify and define the legitimate scope of conditions to be imposed on the grant of the development consent. Thus, to risk stating the obvious, conditions that advance a position or result that is contrary to my planning evaluation (and the relevant findings made in that behalf) will not be appropriate. 101. Moreover, the approach that I have taken to cl 64 of the LEP in combination with the conditions that I propose to impose pursuant to the EP&A Act, s 80(5) in arriving at my planning evaluation, will also clarify the legitimate scope of conditions to be imposed, because as I have earlier noted, many matters are more properly left to the appraisal processes of subsequent stages of the development. 102. For the foregoing reasons, I propose to defer the question of what conditions are appropriate to be imposed on the grant of development consent in this case. In the first instance, I shall invite the parties to review the whole question of what conditions are appropriate in the light of my planning evaluation in the present case. To further assist them in that review process, I shall formulate some guidelines and principles. 103. Thereafter, I shall direct the parties to bring in agreed short minutes that may finally dispose of the appeal including the question of conditions of development consent. 104. In the event that the parties cannot agree on the appropriate conditions, they shall be directed to file and serve their preferred version of appropriate conditions. If necessary there will be liberty to restore the matter to the Court for any required adjudication on the appropriate conditions to be imposed. 105. The guidelines or principles to inform the formulation of the appropriate conditions are as follows: (i) a condition will be imposed pursuant to the EP&A Act, s 80(5) requiring further development consent to be obtained for the school use of the heritage core; (ii) a condition will be imposed pursuant to the EP&A Act, s 80(5) requiring further development consent to be obtained to the subdivision and residential development of the super lots identified in the Masterplan for residential development; (iii) there is no need for deferred commencement conditions to be imposed—all matters may relevantly be dealt with by ordinary conditions of development consent; (iv) it is appropriate that conditions be imposed to ensure the positive conservation of the heritage core in a timely and effective manner—preferably in connection with an intended and approved adaptive re-use of the heritage core; and (v) the conditions need not address matters that are more appropriately left for planning appraisal of subsequent stages of the development. G. CONCLUSIONS AND ORDERS 106. For all of the foregoing reasons, I have determined that the appeal should be upheld and development consent be granted, subject to appropriate conditions to be imposed following the parties' review of their respective positions on the question of conditions in accordance with my reasons for judgment. Such conditions are to include conditions imposed pursuant to the EP&A Act, s 80(5) in respect of the components of the approved development that I have earlier identified in these reasons. 107. The parties are invited to bring in short minutes for the final disposal of the proceedings in accordance with my reasons for judgment. In the event that it is necessary to obtain an adjudication on any dispute as to content of appropriate conditions, the parties shall have liberty to restore on 3 days' notice in which event the parties are directed to file their preferred version of the conditions, together with a brief supporting statement. 108. The exhibits (except for Exhibit FF) may be returned. 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.