The Benevolent Society v Waverley Council [2010] NSWLEC 1367

Land and Environment Court of New South Wales

CITATION : The Benevolent Society v Waverley Council [2010] NSWLEC 1367

APPLICANT The Benevolent Society PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10613 of 2010

CORAM: Brown C

KEY ISSUES: APPEAL :- application to modify a consent granted for the demolition of existing structures and the construction of housing for seniors or people with a disability - impact on heritage significance of heritage item - view loss.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Waverley Local Environmental Plan 1996

CASES CITED: J Manzie v Willoughby Council, 10683 of 1995, 14 February 1996, unreported Tenacity Consulting v Warringah [2004] NSW LEC 140

DATES OF HEARING: 8, 9 December 2010

EX TEMPORE JUDGMENT DATE : 10 December 2010

APPLICANT Mr C Leggat SC SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen SC SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

10 December 2010

10613 of 2010 The Benevolent Society v Waverley Council JUDGMENT 1 COMMISSIONER: This is an application to modify a consent granted by the Court under s 96(8) of the Environmental Planning and Assessment Act 1979, granted on 14 April 2010 (The Benevolent Society v Waverley Council [2010] NSW LEC 1082) for the demolition of a number of existing structures, and the construction of three new buildings, and alterations and addition to an existing heritage item (Scarba Home) at 8-22 Ocean Street and 30 Wellington Street Bondi (the site) for a seniors or people with a disability housing development. The approval was considered under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Seniors SEPP) including the use of a site compatibility certificate. 2 The zoning of the site, the context and the applicable planning controls are set out in the previous judgment, and it is not necessary to repeat them except where they may impinge on the contentions raised by the council in this modification application. The contentions 3 The councils contentions relate to two distinct areas; firstly the unacceptable impact on the significance of the heritage item, Scarba Home, and its grounds by the construction of an additional level on the adjoining approved four storey building in the north-east corner of the site; and secondly the unacceptable loss of views from units 23, 27 and 28 of 26-30 Ocean Street, brought about by the proposed additional two units proposed to be constructed on levels 4 and 5 of the Wellington Street building. Heritage The heritage significance and assessment context 4 Scarba House is identified in Schedule 5 to Waverley Local Environmental Plan 1996 (LEP 1996) as a heritage item. The New South Wales Heritage Branch has two separate listings for the site. The first is, "Scarba Home", where the statement of significance states: Outstanding late Victorian 'boom style' mansion, integrity good despite additions and some replacement of original fabric. One of Waverley's best surviving Victorian villas. One of the few to retain its original grounds and settings. Local significance. 5 Based on the State Heritage Register Criteria, the item has historical and cultural significance (Criteria (a)), architectural, aesthetic and streetscape/landscape significance (Criteria (c)) and social significance (Criteria (d)). 6 The second listing is "Scarba Home and Remnant Garden" and the statement of significance states: Outstanding late Victorian 'boom style' mansion, integrity good despite additions and some replacement of original fabric. One of the Waverley Council area's best surviving Victorian mansions. One of the few to retain its original grounds and setting. Conserves period Victorian garden elements and subsequent cultural planting. Part of the larger period precinct with school and church groupings. Historical interest for its change to institutional use, and continuing association with the Benevolent Society. Regional significance. 7 Based on the State Heritage Register Criteria, the item has streetscape/landscaping significance (Criteria (c)). 8 Clause 33(b) of the Seniors SEPP, states that proposed developments should: ( b) retain, complement and sensitively harmonise with any relevant heritage items that are identified in a local environmental plan. 9 LEP 1996 applies only where there is no inconsistency with the provisions of the Seniors SEPP. Part 4 of LEP 1996 provides heritage provisions. Clause 45(3) provides that when determining a development application, the Court must "take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item…." Clause 49 requires that the Court must take into consideration "the likely effect of the proposed development on the heritage significance of a heritage item…."