Land and Environment Court of New South Wales CITATION : Buyozo Pty Limited v Mosman Municipal Council [2007] NSWLEC 369 APPLICANT Buyozo Pty Limited PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10548 of 2006 CORAM: Hoffman C KEY ISSUES: Deemed Refusal :- Place a childcare centre into an existing disused church, traffic, heritage, alterations and additions, planning controls, noise Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998 LEGISLATION CITED: Mosman Notifications Development Control Plan Mosman Transport Development Control Plan New South Wales Children's Services Regulation 2004 The Roads and Traffic Act DATES OF HEARING: 12-14/12/2006, 26/02/2007, 28/03/2007, 02/04/2007, 05/04/2007 and 5-6/06/2007 DATE OF JUDGMENT: 2 July 2007 APPLICANT Mr P. McEwen, SC Instructed by: Reid and Versely LEGAL REPRESENTATIVES: RESPONDENT Mr P. Tomasetti, barrister Instructed by Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 2 July 2007 10548 of 2006 Buyozo Pty Limited v Mosman Municipal Council JUDGMENT 1 This is a Class 1 appeal No. 10548 of 2006 between Buyozo Pty Limited v Mosman Municipal Council regarding the deemed refusal of the proposal to put a childcare centre into an existing disused church and hall at No. 613-623 Military Road, Mosman. 2 The proposal as originally before the Court was to use the site and buildings as a part child care centre, part shop and leave the church auditorium vacant. 3 The site and buildings are a heritage item of state significance under the Mosman Local Environmental Plan 1998. The site runs between Military Road and a street called The Crescent in the middle of the Mosman Shopping Centre. The site is about 980 sq m in area and approximately rectangular with frontages of 24.4 m and depth of about 40 m. 4 On the first day of the hearing the evidence of the Respondent's heritage expert indicated that the drawings and the documents did not give sufficient detail to consider the impact of the proposed works on the heritage significance and the fabric of the heritage item. Amongst the difficulties was the lack of drawings on air conditioning, ductwork and ceiling outlets that are part of the proposal. Another lack of detail from the drawings was the important component of the lychgate entry off Military Road that had an inappropriate treatment. The foyer also had physical impacts an important fabric, and to some extent the drawings were inaccurate. 5 An adjournment was sought and granted with directions for a timetable to provide further documentation and attendance at Callover to obtain a date of resumption. A number of Notices of Motion were dealt with subsequently. When the hearing eventually resumed updated plans were tendered in Exhibit "U" and Exhibit "AC" and updated expert reports were also tendered. 6 The proposal at that time could be described in summary as: a. Leaving the auditorium vacant and unused until another use could be found and applied for although some of the Applicant's reports indicated a new church use was likely. b. Using the foyer of the auditorium as the 0-2 year old childcare facility for 20 babies. Ancillary church rooms and toilets off the foyer are to be altered to be part of the childcare use. c. Using the hall and ancillary rooms for the 2-5 year old childcare facility for 70 children with alterations to provide amenities such as kitchen and toilets, play areas etcetera . d. The use of shop was withdrawn and no works were proposed there. e. The area outside the hall and between the lychgate on Military Road and the loggia is to be used as an outdoor play space with acoustic fences placed on the boundaries and other facilities for security to be incorporated. f. The yard area facing The Crescent is to be left untouched except for maintenance. g. Most of the new facilities such as Kitchen, washrooms divisions for play and age groups are proposed in demountable fittings that leave the fabric of the heritage item intact. 7 The issues at the start of the appeal were: This Statement of Issues relates to the following plans: + DA01E - 22.6.06 + DA02C. - 22.6.06 + DA03C - 22.6.06 + DA04B - 30.1.06 + DA05A - 22.6.06 + DA06A - 22.6.06 + Landscape Site Plan Issue B dated 20.6.06 HERITAGE 1 Whether the proposal will have an adverse impact on the heritage item, heritage significance of the site, heritage conservation areas and their settings. PLANNING CONTROLS Mosman LEP 1998 ("LEP 1998") Clauses 2 (h), 32, 33, 38. PROHIBITED USE 2 Whether the proposal demonstrates pursuant to clause 38(1)(b) of LEP 1998 that the conservation of the building depends on the granting of consent for the use of the former sales and reading room as a shop. "Shop" is a prohibited use in the 5(a) community uses zone. CAR PARKING & TRAFFIC 3 (a) Whether the proposal makes adequate provision for the parking of motor vehicles and the loading and unloading of vehicles and whether it is appropriate to allow a dispensation under clause 38 (2) of the LEP in the circumstances of this case. (b) Whether it is appropriate to have the drop off and pick-up zone located on a public road. PLANNING CONTROLS: Mosman Transport Development Control Plan clauses 1.4 (a), (b), (c) & (d), 1.7, 2.1 & 2.2. LEP 1998 - clause 38 (2). COMPLIANCE WITH PROVISIONS OF THE CHILDRENS SERVICES REGULATION 2004 4. Whether the proposed complies with the provisions of the Children's Services Regulation 2004 ("the Regulation") in relation to the following: (a) Available outdoor area (calculated approximately as plans are not to scale) will allow only a maximum of 57 children. (b) Only 60 children may be between 2-6 years - 70 are proposed. (c) There is excessive hard paved outdoor play area and that area is qualitatively inadequate. (d) There are inadequate nappy change areas. (e) Access is not provided in accordance with the Disability Discrimination Act 1992 (Commonwealth). NOISE 5 The noise emissions associated with outdoor play will have a detrimental impact on the amenity of the adjoining residential premises at No.27 The Crescent. The noise emanating from the use of the loggia area by the 0-2 age group is of particular concern. The openings of the loggia are located directly on the common boundary with No. 27 The Crescent and are not enclosed with any material that may prohibit the transmission of noise. (a) LEP 1998 - Clauses 2(j) and 2(k). ISSUES RAISED BY SUBMISSIONS 6 Four submissions have been received raising the following objections: (a) inadequate set down/pick up area. (b) no on-site parking - staff or visitor. (c) impact on traffic in the surrounding area. (d) ninety place centre is excessive for the site. 8 Following the adjournment and directions new drawings were provided in Exhibit R and after the response from the Respondent's Heritage expert revised plans were tendered in Exhibit V. 9 Ultimately during the hearing and the day before resumption further plans with further amendments in accordance with council's heritage expert's comments were provided in Exhibit "AC". These plans were tendered without objection from the respondent. The air-conditioning and mechanical services plans were tendered in Exhibit "U". The plans were: Drawing Nos. D01, D02, D05-D08, D10, D12, D14-16, D18-20, D22, D24, D26, D28, D30, D32-37 all Issue A, and Drawing No D13 and Drawing Nos. D03, D04, D09, D11, D17, D21, D23, D25, D27, D29, D31 all Issue B by Fortney and Grant and Mechanical Drawing Nos 9862-M01 to 3 all Issue P2 by Simpson Kotzman and the landscape plan from Exhibit V. 10 The site is zoned 5(a) Community Uses (Church) under the Mosman Local Environmental Plan 1998. The zoning permits church and church related uses and childcare centres with consent. Other uses are permissible only through cl 38 of the LEP. 11 As mentioned before it is listed as a heritage item of state significance in Schedule 2 of that instrument. The site is located within the "Military Road Conservation Area" and "The Crescent Conservation Area" as listed in Schedule 2 of the same instrument. The property is also noted by the Royal Australian Institute of Architects in its list of Significant 20th Century buildings. 12 The statement of significance prepared for the site in the Mosman Heritage Study 1996 describes the item as: The Christian Science Church complex demonstrates the growth of community services resulting from increase of residential development of Mosman during the inter war period. It's components display very unusual versions of the Inter-War Gothic style of architecture. The church is a dominate element in the streetscape of The Crescent, contributing significantly to its character and, especially by reason of its lowered scale frontispiece complimenting the residential quality of conservation area. The gate way and reading room components which address Military Road contribute positively to the lower scale diversity of that conservation area. 13 The complex was previously owned and occupied by The Third Church of Christ Scientist. The site was sold in 2005 and all buildings within the complex are currently vacant. The locality 14 The surrounding development comprises a mix of community uses, retail uses, commercial uses, residential uses and open space. The north west neighbour of the site is also zoned community uses and contains the Mosman Library building, Mosman Town Hall and public and staff car parks. Development to the north west and south east along Military Road is predominately retail except for the Mosman Fire Station which is located opposite the site. 15 The Mosman Park and the Alan Border Oval are located opposite the site in The Crescent. However, the development to the east of the site in The Crescent is predominately residential, some flats, some detached houses. 16 The site adjoins the heritage item "Omaha House" located at 27 The Crescent. In addition the site is within the vicinity of the following heritage listed items: o Mosman Park, War Memorial and steps, Mosman Art Gallery and Community Centre, Antico Fountain, Leahy Memorial o 581-595 Military Road, o Former Anzac Memorial Hall, 742 Military Road The proposal 17 The proposed operating hours for the childcare centre are 7.00 am to 6.00 pm Monday to Friday. The primary pedestrian access point to the childcare centre is from The Crescent. There is no car parking provided onsite. 18 A vehicular drop off/pick up sign for six (6) cars is proposed adjacent to the site in The Crescent. Such a drop off/pick up zone could not be allocated specifically for the childcare centre in such a busy shopping centre. During the course of the hearing the area was sought to be designated by traffic signs to indicate between a ten (10) minute time limit and those matters were the subject of evidence from the traffic engineers. 19 Access from Military Road is to be permitted in the amended plans via a call button to be erected on a post in the garden via the lychgate. The original wrought iron gates are to remain but inside is to be a clear perspex framed security gate. It would be opened under supervision only since the play area beyond the lychgate would be occupied by children. 20 There is to be no provision for pick-up or drop-off from Military Road, although this might happen if there is a parking space available in front on a casual basis. One of the reasons for the access through the lychgate was for disabled persons because of the level pathway available in that location. 21 The auditorium is to remain vacant. The Sales Room and Reading Room are in the final proposal, to remain vacant. 22 The statutory controls applicable are: o Mosman Local Environmental Planning 1998 o Mosman Notifications Development Control Plan o Mosman Transport Development Control Plan o New South Wales Children's Services Regulation 2004 o The Roads and Traffic Act 23 The Respondent's evidence was heard from: o Mr. J Coady, Consultant Traffic Engineer, and o Professor Mackay, Consultant Heritage Expert, o Ms Dunsford, Council Reporting Officer, o Objectors were heard onsite being Mrs. Brooks of Unit 1, No. 25 The Crescent, Mrs. Norman of 627 Military Road, Mr. & Mrs. Mulligan of No. 27 The Crescent, and D. J. Wood of No. 23 The Crescent, and Ms. A. Brown of No. 19 The Crescent, o There were expert reports in evidence from others who were not called for cross-examination. They were Mr. Gross, Acoustic Expert Consultant, Mr. Beardsmore, Child Care and Accessibility Expert. 24 The Applicant's experts who gave evidence were: o Mr. B. Masson, Consultant Traffic Engineer, o Mr. S. Davies, Consultant Heritage Expert, and o Mr. S. Stephens, Real Estate Agent. o For the Applicants there were reports from other experts in evidence who were not called for cross-examination. They are Mr. Tonin, Consultant Acoustic Expert, Ms. Aghan, Child Care Expert, Mr. N. Ingham, Consultant Town Planner, and Mr. Rappoport, Consultant Heritage Expert. There were also tendered the Air Conditioning and Mechanical Services Plans by Engineers Simpson Kotzman. The Evidence 25 When the hearing resumed on the updated drawings in Exhibit "AC" and Exhibit "U", the principle issues still in contention in my opinion are Issue 1 on Heritage, Issue 2 on Prohibited Use, Issue 3 on Car Parking and Traffic, and Issue 6 the objectors concerns which related to mainly Traffic and Parking demands in The Crescent caused by a child care centre for 90 children. 26 The Respondent and indeed the Objectors are reasonably content that a child care centre is a suitable use. The concerns of the Heritage Experts had largely been abated in regard to physical changes to the fabric of the heritage item. It is mainly those parts of the heritage item to be used, and the affect of the use on the significance of the item that were the subject of evidence, and whether the use of the reading room and sales room on the Military Road frontage for other than Church purposes or Child Care Centre could be justified under cl 38 of the Local Environment Plan. 27 In regard to the traffic and parking matters, I note that Mr Coady said that any parking spaces more than 100m away from the site would be too far to be practical for drop-off and pick-up activity. First of all parents must sign children in and out of a playschool, so they must park and go in. Walking to and from more than 100m would take too long for short-stay parking and be too difficult for a parent with a child or children, plus "nappy bag" etcetera. 28 Strangely however when Mr Coady did his survey of parking spaces to count his claimed 103 spaces available to general public nearby, his map in Exhibit 10 Annex D, as scaled from the aerial photo in Exhibit 13 Appendix E shows he counted spaces only 50m north-west and 20m south-east along The Crescent from the site. 29 The larger map in Exhibit 9 Fig 3 shows within 100m a considerably greater number of parking spaces. In Myahgah St, The Crescent and Gouldsbury St many spaces are unrestricted to the general public, some are 8am-6pm restricted to permit holders, and some 5 minute parking spots (the latter serving the council's own childcare center in Mosman Park and the other childcare centre off Gouldsbury St). 30 Both traffic experts agreed with the objectors that parking demand is high in the Mosman shopping centre and in The Crescent. But the experts also agree on the surveys that heavy demand does not occur until about 9.30am and eases around 4.30pm week days. This is important due to the drop-off and pick-up times typical of childcare centres. The morning peak drop-off period will be before the general public boost demand. Much of the afternoon pick-up period will be after the general public high demand for parking. 31 Mr Coady says 16 short stay carspaces need to be signposted during the pick-up and drop-off periods. And 9 staff cars will add to the unrestricted carpark spaces demand. Mr Masson says that 6 short stay carspaces during the applicable periods will serve the proposal. His 8-day survey of parking demand versus Mr Coady's 1-day would appear to give greater credibility to Mr Masson's calculations. 32 Mr Masson prepared graphs that compared the pick-up/drop-off parking demand for 2 other 90-child centres with the availability of spare carparks in The Crescent and nearby during the critical periods. This showed that for only periods up to half an hour would there be a demand for more than 6 short stay spaces, and at those times in The Crescent there were spare general public unrestricted spaces that could be used for longer stay or short stay pickup/drop-off. 33 The main criticisms Mr Coady could offer were that: o Some parents would need to stay more than 5 minutes. o If the only spare spaces were more than 100m away they would be impractical. o Mr Masson's surveys show that the average stay is 7 minutes and Mr. Coady said 10 minutes needed in the time limited parking spaces. o A centre for 50 children would give acceptable additional parking demand in The Crescent. 34 The applicants comments on these are: * If the average stay is 7 minutes, then many are less than 7 ie. 5 minutes. * Mr Coady gives no reason why he thinks a 50-child facility is the limit. * Mr Coady agrees after 4.45pm and before 9.30am there are ample carparks within 100m. Those are the periods that most pick-up/drop-off takes place. * Council's own child-care facility has 5 minute parking that the general public could use, but it works for parents as well. * The church auditorium has a capacity of 600 persons. Many planning authorities parking policies for churches is 1 car per 10 persons, so the site has a notional credit of 60 cars that have always had to be parked on-street. Being a heritage item there is no opportunity to put parking on-site now. The council's parking controls in Mosman shopping centre have evolved without considering the site's requirements, and the proposed use will generate less carpark demand than the previous use. 35 The evidence and submissions on parking requirements leads me to the conclusion that the applicant's proposals are reasonable and acceptable. 36 The respondent advised that the rearrangement of parking restrictions in The Crescent to suit the proposal are subject to the unanimous approval of council's traffic committee, or, in the event of not being unanimous, referral to the NSW RTA for decision. The applicant disputed the meaning of the Schedule 4 delegation to the council from the RTA under the Road Transport Act 1999, saying that it did not put that requirement on parking controls. 37 Nevertheless the applicant accepted the draft deferred commencement condition requiring the approval of the RTA to the revised parking restrictions in The Crescent and the erection of the necessary signs. 38 It appears to me that if the delegation does require the RTA approval, then the council when it uses the delegation stands in the shoes of the RTA; and if the council declines to use the delegation the RTA itself makes the decision, so the wording of the condition is appropriate. 39 Turning to the heritage evidence, the principal remaining concern of Prof Mackay is the separation of the Auditorium from the Foyer. He sees the two as linked by function such that if the Foyer is used for child-care, access via the Foyer into the Auditorium is prevented so the heritage significance of the major components of the heritage item's interior cannot be appreciated. 40 The respondent's submission goes further to say that the auditorium is a unique space with a sloping floor and only minor, almost emergency, exit lobby's apart from the loggia and foyer entry. Also the foyer has the toilets/anterooms associated with any auditorium use especially the foreshadowed "church use" referred to by the applicant in its Statement of Environmental Effects and expert reports. 41 To find a user, it needs the loggia and foyer as the entry for people to arrive, be received, use amenities and be admitted to the auditorium. The foyer also serves as a breakout area during an event in, or intermission from the auditorium. That type of use enables the heritage significance of the interior to be retained and used and appreciated, the Respondent says. 42 Mr Davies evidence and the applicant's submissions are that the Burra Charter has not particularly sought the retention of the same use as originally, or the same functional arrangement internally, of heritage items. The heritage assessments of all the experts listed the Foyer separately to the Auditorium, and the aspect of them having to remain together functionally has not been raised before in reports. The emphasis of heritage experts has been on conservation, preservation and maintenance of the fabric of the item; and that any alterations must damage or change the fabric as little as possible, so that it can in the future it can be restored to the same as original, and so that the original can be perceived even with the changes. 43 Whilst the respondent's wish may be desireable, the applicant said it has tried and not found a tenant for the Auditorium. The proposed tenant will ensure the restoration and maintenance of the heritage item, and that is a major benefit to the item and the community. 44 The Burra Charter does require that options for re-use of a heritage item be investigated to find the most appropriate use and tenant to suit the item. The respondent questioned Mr Stephens, the estate agent who sought lessees in March 2006. He said he was instructed to find a "church tenant" for the Auditorium. The development application was lodged prior to this time in February 2006, so the Foyer was not included in any lease for the Auditorium. 45 The church groups he contacted had shown interest previously in bidding for the site at the auction. He had some site inspections in March/April 2006. None since. He was asked about the rent sought. He said he gave the owners (applicants) a summary of Mosman commercial rents, and realising that the site was not zoned commercial and had the heritage listing, the owners discounted the rent to about 50% of commercial, and set it at $80,000 per year for the auditorium. He was shown a document that suggested $50,000 per year for the Auditorium. He said he did not set the rental, the owner did. However he asked each group to make an offer if the $80,000 was unacceptable to them – none did. 46 Asked what he thought the rent should be, he said it is a difficult site due to the zoning that permits church and church related uses and child-care. He could not advise, that is why he invited offers. Asked who he invited offers from, he replied the local Catholic and Anglican parishes and the regional Hillsong church at Oxford Falls. He had not contacted the property offices of the church groups. He had not advertised the auditorium for lease via the media or other channels. He had telephoned his contacts, he had not shown them plans of the building. 47 Mr Stephens had asked his contacts if they might want the "shop" on the Military Rd frontage. They did not. When taken to the plans he indicated it was only the Sales Room that he had put to contacts, a room 4m x 4m with the glass entry off the street. The much larger Reading Room was not included. 48 Mr Stephens was asked if he had assumed commercial tenants may be possible due to the cl 38(1)(b) legislation in the LEP allowing any use to be approved if the conservation of the heritage item depended on it. He had not. 49 Asked how long he had spent on the investigation, he said about 15 minutes per contact group. 50 Based on this evidence it is clear to me that the investigation of options for other tenants than the child-care was superficial to say the least. 51 Messrs Davies and Mackay gave concurrent oral evidence. It was put to Mr Davies that the hall and book shop were built in 1932-33,and the auditorium and Foyer were in 1940-42, so the designer must have intended the auditorium and foyer to work together. He said there is a doorway connection to the hall so all three could work together. 52 I note however that the entry to the Hall was from the courtyard in 1933, and it received a porch in 1940-42 (Rappoport Heritage Impact Statement p.18). It seems the auditorium and the hall could work independently. The door and corridor from the foyer into the administration area and thence into the hall is a narrow access and could well have been only for officials and helpers to access the auditorium and hall from the administration area. 53 Mr Davies agreed the auditorium had its major entry from the foyer (through 3 double door sets). Asked about his investigation of alternative uses he said he only took instructions on "church and child-care" uses on the basis that the building had a child-care tenant, and it was the left-over spaces that would have other uses of a church nature. The client had investigated other lessees, so his attention was focussed on achieving acceptable impact on the fabric and external appearance of the heritage item. 54 On the instructions given to him, the Foyer and associated rooms were always to be part of the child-care centre. Asked if the Sales Room and Reading Room could be used for 0-2 year olds in lieu of the foyer, he said Ms Aghan is the specialist on that and she said it was unsuitable. Mr Davies thought having the shopfront to Military Rd, it is better suited to, say, retail. 55 Put to him that the shop rental for retail could not be enough for the conservation of the whole heritage item to "depend" on it as in cl 38(1)(b); he said there are two sides to that, the financial and the cultural. Using the shop for retail used it for a purpose similar to the Sales Room for church books etc and continued that history. He only commented on this "cultural" aspect. 56 Asked, did it not concern him there is no use for the Auditorium? He said he would like to see it used, but it is not necessary if the proposal secures the conservation of the heritage item. 57 Asked the purpose of disgarded parts of the application that were putting a level floor instead of a sloped one in the Auditorium and putting a deck in the driveway off Military Rd, he said probably they were only to facilitate options for tenancy. 58 Asked about the State Significance classification of the heritage item, Mr Davies said that the classification is only in the Mosman LEP, the site is not on the State Register of heritage items, although in his opinion it is worthy of it. 59 Put to him that without the foyer the auditorium is unlikely to find a user; he said it can remain vacant so long as the child-care use enables its conservation. The changes to the foyer are reversible, he does not see any problem. 60 The State Heritage Office did not oppose the application. The officer there had the plans, the heritage report and the Statement of Environmental effects and saw no problem either. Mr Davies thought that if the Heritage Office had doubts about the proposal, its officers would have visited the site but they did not. 61 Returning to the cl 38 statute, he was taken to his report saying the 5(a) zoning is very restrictive. Put to him that it is not restrictive and allows approval of anything that conserves the heritage item. He agreed it is not necessarily restrictive. He said examples of other uses that retain the heritage significance with substantially different uses to the historical use are the Woolloomooloo Finger Wharf, and The Darling Harbour Pump House. 62 Prof Mackay said that a heritage item of State significance requires sensitive consideration of why it is important. The site is important for its architecture and its function and its relevance to the evolution of the Christian Science church movement. The interior of the major room, being the auditorium, is important even if not quite as important as the exterior. To experience and conserve that significance any common sense appraisal of the interior shows that the auditorium needs the foyer as part of its architectural design. The foyer functions as an arrival/departure sequence and breakout area, and for amenities such as toilets essential to the use of the auditorium. 63 To suggest that the two small exit lobbies with one set of doors each on The Crescent end of the auditorium could serve as its entrance and retain the significance of the church space is not plausible. The robing rooms and 2 single toilets at the same end of the auditorium are too small and pokey to be used. 64 Prof Mackay said the child-care should be located in the hall and Sales and Reading Rooms, and the auditorium and foyer kept together for an alternative future use be it church or otherwise. He had read Ms Aghan's report on the Sales and Reading Rooms and had the opinion she did not say there was no possibility of use for 0-2 year olds, only that it would be for fewer than 20 babies. 65 Ms Aghan was not called for cross-examination. Her report said it looked at suitability of the Sales and Reading Rooms for 0-5 year olds. The report says to connect the rooms with the hall for ease of access by parents and staff would require demolition of the walls between the hall and the rooms, and a new access into the courtyard. Unless there is demolition, the rooms would have to function separately with parents using the doors to Military Rd, staff could use existing access from the hall. But that would mean parents with more than one child (depending on the ages using the rooms) having to access one age group via Military Rd and another via The Crescent. 66 Even then it would only provide for an extra 5 children internally and 3 externally assuming the driveway is used for that. Although her report gives no detail on use of the rooms only for babies 0-2 year old who presumably may need less space per child, in the respondent bringing no contrary evidence, Ms Aghan's report must be accepted. 67 In considering all the evidence, it seems that the heritage significance ascribed to the site by the respondent necessitates the re-use of the auditorium AS an auditorium. Otherwise it may not need the foyer and the amenities located there. No doubt the sloping floor of the auditorium limits its use for other purposes, but that is not part of this appeal since the auditorium is to be left vacant. As the applicant says, if it had a tenant for it, the application would propose the use. 68 The Sales Room and Reading Room are also to remain vacant under this amended application, which disposes of the issue under Issue 2 and cl 38(1)(b). 69 Both heritage experts agreed the site and buildings are of State significance. That places a higher order of consideration to proposal and its impacts on both fabric of the buildings and their significance. The impacts on the fabric are acceptable, and the need for parking for the proposed use is acceptable, that leaves the impact on the significance as the remaining determinative issue. 70 Whilst the combined use of the auditorium and the foyer is desirable and perhaps would facilitate its leasing as a lecture hall, recital hall, place of public worship, secular weddings and funerals, or place of assembly, it is the evidence that the conservation of the heritage item is secure via an approval of the child-care centre use in the foyer and the hall. 71 The evidence from Mr Staas, Mr Fraser, Mr Davies, Mr Rappoport and the Heritage Council all are heritage experts, and they have no issue with the proposal, and that support came before Exhibit AC that vastly reduced the impact on the fabric/materials of the building, and elicited from Prof Mackay his agreement that the fabric of the item would be conserved. 72 The evidence of repair, conservation and maintenance of the heritage item comes in Exhibit H, the Conservation Management Plan that must be part of any conditions of consent. Exhibit H needs to be updated to co-ordinate with the plans in Exhibit AC and U and the described works in Exhibit X as part of the deferred Commencement Consent. 73 Overall I have come to the conclusion that although the retention of the auditorium and Foyer as a functional unit is desirable, it is not essential to the conservation of the heritage item. In a way, that would mean the building is to be almost a museum and that would require a different means of financing and maintaining the building into the future. Several other heritage items of Listed State Significance have had new uses that preserve the fabric, but change the function of the building and the internal spaces as mentioned by Mr Davies; the Woolloomooloo finger Wharf being one. Perceived from that perspective, one can appreciate that the proposal is reasonable from a heritage point of view and the other issues have been shown to be properly addressed to the point that any impacts are acceptable. 74 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted to the conservation of the heritage item and landscaping at Nos. 613 - 623 Military Road, Mosman by the use, of the Loggia, Foyer and Sunday School Hall and associated spaces plus the yard area between the Military Road lychgate and the Loggia, for a child-care centre as shown in the drawings listed in Annexure A hereto, all as amended by and built in accordance with the conditions in Annexure A hereto. 3. The Auditorium and vestry rooms at The Crescent end of the building, and the Reading Room and Sales Room do not form part of the approved areas for use. But, the conservation works and maintenance included in the Conservation Management Plan in Exhibit H of this appeal for those areas are approved, also subject to the drawings and conditions referred to in Order 2. above. 4. The exhibits are returned to the parties except Exhibits H, U, AC, AD, AE, 3, 4, 23, 24 and the landscape plan from Exhibit V and Exhibits G, H and X. ___________________ K G Hoffman Commissioner of the Court Ljr/Ak 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.