Land and Environment Court of New South Wales CITATION : Colys Investments Pty Ltd v Kiama Council [2008] NSWLEC 1493 APPLICANT Colys Investment Pty Limited PARTIES : RESPONDENT Kiama Council FILE NUMBER(S) : 10367 of 2008 and 10368 of 2008 CORAM: Tuor C Development Application :- Use second floor for accommodation permissibility of use KEY ISSUES: SEPP 1 objection to floor space ratio and height impact on heritage significance of the item public access and access for people with a disability Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Kiama Local Environmental Plan 1996 State Environmental Planning Policy No 1 DATES OF HEARING: 23/10/2008, 24/10/2008 and 02/12/2008 DATE OF JUDGMENT: 19 December 2008 APPLICANT Mr J. Doyle, barrister SOLICITORS Willis & Bowring LEGAL REPRESENTATIVES: RESPONDENT Mr P. Moggach, solicitor of RMB Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 19 December 2008 10367 of 2008 and 10368 of 2008 Colys Investments Pty Ltd v Kiama Municipal Council JUDGMENT 1 COMMISSIONER: Appeal No 10368 of 2008 is against the refusal by Kiama Municipal Council (the council) of a development application (DA10.2007.171.1) under the Environmental Planning and Assessment Act 1979 (the Act) to use the second storey of the former Kiama Infants School Building (former school building) for accommodation at lots 7 and 8, DP 1085635, 2 Minnamurra Street, Kiama (the site). 2 Appeal No 10367 of 2008 is against council's deemed refusal of a building certificate application under s149F of the Act. The building certificate is for works carried out without consent on the second storey of the former school building to provide three accommodation suites, including a mezzanine level. 3 The issues raised by Kiama Municipal Council principally relate to whether the use of the second storey is permissible and whether it would have an acceptable impact on the heritage significance of the building. Council also contends that the use does not provide public access and access for the disabled, which meets the requirements of the Building Code of Australia (BCA). 4 The parties initially agreed that the applications should be considered together and that approval of the building certificate is required prior to approval of the development application for the use. However, as a result of amended plans the parties agreed that a building certificate may no longer be required and that Appeal No 10367 of 2008 could be dismissed. The site and background 5 Lots 7 and 8, DP 1085635 are part of the Kiama Blue Tourist facility (the tourist facility) located on the corner of Minnamurra and Shoalhaven Streets. The lots contain the former school building and common areas for the tourist complex. The former school building comprises three main rooms being the east two storey building (Kemp Building), the central single storey building (Room 2) and the western single storey building (room 3). Lot 8 includes the second storey and stairwell of the Kemp Building. The ground floor the former school building is all within lot 7. 6 The former school building was originally part of Lots 1 and 2 DP 869013. Council approved a stratum subdivision into eight lots on 9 March 2005. These lots include: o lot 2 DP 1085635, the hotel suite building in the west part of the tourist facility o Lot 4 DP 1085635, the bar and restaurant building in the north east part of the tourist facility o Lot 6 DP 1085635, the serviced apartment building in the east part of the tourist facility. 7 These lots have been further strata subdivided. 8 The tourist facility adjoins the South Coast railway line to the south, a public reserve on the opposite side of Shoalhaven Street and residential development on the opposite side of Minnamurra Street. 9 A detailed history of the site and its redevelopment for the tourist facility is in the Statement of Facts and Contentions. Relevantly, council approved a development application (DA 2001.456.1) for the tourist facility on 2 July 2002 (the development consent). The development consent followed the gazettal of Amendment 54 to Kiama Local Environmental Plan 1996 (LEP 1996) which inserted an enabling clause (cl 23A) into LEP 1996 to permit the proposal under certain circumstances. The consent has been modified on a number of occasions. 10 The development consent approves the single storey section of the former school for use as a conference room and an exhibition/function room and the removal of the northern facade of room 2 and infilling of the verandah to provide a pre function room. The internal wall between rooms 2 and 3 is also removed. The two floors of the Kemp Building are approved as art gallery/exhibition/function rooms. A lift is approved to provide access for the disabled to the second floor. Planning controls 11 The site is zoned 3(b) Special Business (Heritage) under LEP 1996. Tourist facilities are not permissible within this zone but are permissible under cl 23A of LEP 1996 which relevantly provides: 23A Tourist and other facilities on land within Zone No 3 (b)—former Kiama Infants School site (1) This clause applies to land within Zone No 3 (b) and situated at the corner of Minnamurra and Shoalhaven Streets, Kiama, being Lots 1 and 2, DP 869103, and known as the former Kiama Infants School site, as shown edged heavy black on the map marked "Kiama Local Environmental Plan 1996 (Amendment No 54)". (2) Despite the general objectives for Zone No 3 (b) as set out in the Land Use Table to clause 9, the objectives for the land to which this clause applies are as follows: (a) to allow, with the consent of the Council, the erection of a tourist facility on the land, comprising two buildings, that provide tourist accommodation and related facilities, having: (i) maximum heights of 4.5 and 2.5 storeys, respectively, above ground level, and (ii) a maximum floorspace ratio of 1:1, exclusive of the former school, (b) to encourage the conservation of the former school situated on the land and its conversion to an art gallery, including exhibition, conference and function rooms and associated amenities, (c) to encourage public access, including disabled persons' access, to the land and the former school, …… (3) Despite any other provision of this plan, the Council may consent to the erection of a tourist facility on the land to which this clause applies if the tourist facility provides for: ……. (d) the conservation of the former school and its conversion to an art gallery, including exhibition, conference and function rooms and associated amenities, and (e) public access, including disabled persons' access, to the land and the former school, and (f) a maximum floorspace ratio of 1:1, exclusive of the former school. …… (6) In this clause: the former school means the blue stone building formerly known as the Kiama Infants School. 12 Mr Doyle, for the applicant, submits that the proposed residential use is an "associated amenity" for the art gallery, exhibition, conference and function uses and is therefore permissible. 13 The former school building is listed as a heritage item in Schedule 2 of LEP 1996. Mr Doyle further submits that the application is also permissible under cl 43 of LEP 1996 which relevantly provides: 43 Conservation incentives (1) Nothing in this plan prevents the Council from granting consent to: (a) the use, for any purpose, of a building that is a heritage item or the land on which the building is erected, or …. if it is satisfied that: (c) the proposed use would have little or no adverse effect on the amenity of the area, or (d) the conservation of the building depends on the Council granting consent. 14 Mr Moggach, for the council, submits that the proposal is not an "associated amenity" nor does it satisfy the requirements of cl 43 (1)(c) or (d). 15 Cl 50 of LEP 1996 permits a maximum height of three storeys for the former school building. Council contends that the proposed mezzanine level does not comply with the standard. The applicant has submitted and application under State Environmental Planning Policy No1 (SEPP 1) to cl 50. 16 The council also contends that the proposed mezzanine does not meet the maximum floor space ratio (FSR) of 1:1 specified for the tourist facility under cl 23A. The applicant does not accept this contention on the basis that the former school building is excluded from the FSR calculation. However, a SEPP 1 objection has been submitted. 17 The former school is listed in Schedule 1 of Illawarra Regional Environmental Plan No 1 (REP 1) as a heritage item. The evidence 18 The Court heard expert evidence for the Applicant from: o Mr G Brooks, heritage architect o Mr P Burgess, accredited certifier o Mr L Fletcher, consultant planner o Mr D Dransfield, hotel operator 19 The Court heard expert evidence for the council from: o Mr C Brady, heritage architect o Mr C Fuller, Manager Development Assessment o Mr J Debnam, consultant planner 20 The Court visited the site and heard evidence on 23 October 2008 in Kiama and on 24 October 2008 in Sydney. At the conclusion of the submissions, I handed down preliminary findings and issued directions for amended plans and further information. 21 The preliminary findings addressed the issues of permissibility, heritage impact and disabled access. A summary of these reasons is as follows: Permissibility 22 I am satisfied that the proposal provides for: the conservation of the former school and its conversion to an art gallery, including exhibition, conference and function rooms and associated amenities 23 The ground floor of the former school is proposed to be used as an art gallery including conference and function areas. A Draft Plan of Management (PoM) sets out obligations on the operator of the tourist facility and function centre to ensure that the area is used as an art gallery. These include the requirement that art works be permanently on display in the ground level of the former school building. These art works will be able to be viewed by users of the conference/function centre and the general public. 24 At certain times during the year parts of the ground floor will be made available to community groups free of cost for art exhibitions. 25 A permanent sculpture gallery will be established in the western end of the former school, which will be available to the public. 26 The parties agreed that further detail of the arrangements for public access and use of the art gallery facility by community groups is required. However, subject to this information I am satisfied that the former school building will be used for sufficient periods as an art gallery and therefore satisfies the requirements of cl 23A. 27 In reaching this conclusion I note the existing development consent approves the uses of the Kemp Building as art gallery/exhibition/function area. Condition 152 requires that: The art gallery/exhibition building shall be available at all times for use by community groups and shall be accessible to the general public. 28 There are no other conditions or a PoM that specify the details for the use of the art gallery by community groups, such as cost or hours of operation. Nor are there any details of how the conference and functions centre use and the art gallery would operate concurrently. The condition does not provide the degree certainty that the proposed conditions and the PoM in the current application provide. 29 The three accommodation uses proposed for the second storey of the Kemp Building are only to be used in association with the art gallery, function centre or conference use. An example being that a wedding party using the function centre could stay in the accommodation. I am satisfied that this limited accommodation use would provide an "associated amenity" and meet the requirements of cl 23A. 30 If I am wrong in my interpretation of cl 23A, I accept that the proposed use would meet the requirements of cl 43(c) as the proposed use would have little or no adverse effect on the amenity of the area. Mr Fletcher and Mr Debnam agreed that the proposed accommodation would not impact on the amenity of the area in terms of matters such as traffic, noise, overshadowing etc. However, Mr Debman considered that the amenity of the area includes the amenity of the building itself and the general public's ability to appreciate the building. In his opinion the conversion to accommodation would "privatise" the upper level and prevent access to the upper level by persons with a disability, which will impact on the amenity of the area. 31 I do not accept Mr Debnam's evidence. Even if amenity of the area includes the building itself and public access to it, I am satisfied that this is achieved. I do not think it is necessary that every part of the former school is publicly available to all sectors of the community at all times. The accommodation use will enable the upper storey be used and appreciated, albeit only for a commercial fee, however, the current consent made no arrangement that the building would be available for community use free of cost. The exterior of the building will be able to be appreciated from numerous vantage points both within and outside the site and the interior of the ground floor of the building will be available for use by community groups free of cost on a number of occasions during the year. The applicant has also agreed that the second storey will be available to be viewed on some occasions. The proposal use will therefore have little or no adverse effect on the amenity of the area and satisfies cl 43(c). 32 As cl 43(c) is satisfied there is no requirement for cl 43(d) to be met. However, for completeness, I find that the conservation of the former school does not depend on the use of the second floor for accommodation. The conservation of the building was required by Amendment 54 to LEP 1996 and by the development consent. These place an obligation on the applicant to conserve the building, which is satisfied regardless of the proposal. Even if certain aspects of this proposal, such as the retention of the northern façade, may achieve a better conservation outcome they are not required to conserve the building. Heritage impact 33 The principal concern of Mr Brady was the introduction of a mezzanine level and ceiling over the hallway on the second storey. He considered that this altered the volume of the space, with high ceilings emphasised by the tall windows, and adversely impacted on its significance. While he would prefer that the floor remain as a single space for use as an art gallery, he did not object to its use for accommodation and its division into two or three rooms, as there is historical precedent for such division. 34 Mr Brooks agreed that the mezzanine and ceiling over the hall impacted on the appreciation of the space but considered that the impact was acceptable given that it is reversible and that the proposal needs to be considered in the context of the significant benefits to be provided by retaining the northern wall, the wall between Rooms 2 and 3 and the removal of intrusive fabric which covers parts of the building. Mr Brady agreed that these were positive aspects of the proposal but they did not eliminate his concerns about the mezzanine. 35 I accept Mr Brady's evidence and find the mezzanine and ceiling over the hall will adversely impact on the significance of the item. While this change could be achieved by a condition, I accept Mr Moggach's submission that amended plans are required to ensure that the impact on the item is acceptable and that the requirements of the BCA are met. 36 The removal of the mezzanine will remove any non compliance with height and FSR controls in LEP 1996 and the requirement for a SEPP 1 objection. Access 37 The current consent proposes a lift to provide access to the second storey. Policy 4 of the Conservation Management Plan (CMP) prepared as part of the original application acknowledged that adverse affects such as a lift may be acceptable to conserve the future use of the building. Both Mr Brooks and Mr Brady agreed that if a lift was required, the approved location was acceptable. However, both experts expressed a preference for no lift. The proposal does not provide a lift. 38 The principle disagreement between Mr Fuller and Mr Burgess related to whether the proposal would satisfy the requirements of the BCA for disabled access. Both experts agreed that if lots 7 and 8 were considered in isolation there would be a requirement for one of the units to be accessible which would require a lift. 39 Mr Burgess considered that the proposal should be assessed as part of the tourist facility as arrangements could be implemented to ensure that comparable alternate accommodation would be provided for people with a disability and would satisfy the BCA. 40 The applicant has agreed to a covenant being placed on the title of lots 7 and 8 and on the title of accessible units within the tourist facility, which would make them available to the users of the exhibition/conference/function centre. While these units may not have the same view or ambience as those within the heritage building, I accept that they are comparable and that the arrangement, in principle, meets the requirements of the BCA. Further details were required to be submitted with the amended plans. The amended plans 41 The hearing resumed on 2 December 2008. Amended plans, PoM, BCA report and conditions were agreed between the parties and tendered. These documents addressed the matters raised in the preliminary findings. In particular, the mezzanine has been deleted and the plans include a schedule of works to be undertaken as agreed by the heritage experts. Although council did not consent to approval of the application, there were no outstanding issues between the parties. 42 The revised PoM includes requirements that the ground floor of the former school be used for the display of local art and available to the general public a times when it is not used for conferences and functions. Room 3 of the former school is to be available for exclusive public use, free of charge, for art exhibitions on 12 occasions per year for 1 day and night and five occasions for one week, plus reasonable setup times. The PoM specifies that the accommodation must only be occupied in association with the other uses of the building. It also requires that the second floor be able to be viewed by the general public at least twice per year. 43 The conditions include the requirement that the school operate in accordance with the PoM. The conditions also specify that a positive covenant be placed on units within the tourist facility that they be made available for accommodation of people with a disability attending exhibitions, functions or conferences in the former school building. 44 A report to council on 18 November 2008 made the following comments in respect of the application and the preliminary findings of the Court: From the applicant's point of view the positive benefit is that the upstairs area can be used for accommodation albeit in a modified form which removes the mezzanine level, reduced the area of the rooms and requires further considerable work to undo what has already been done in so far as the heritage fabric of the building is concerned. From the Council's point of view the findings achieve the following result: Removal of intrusive fabrics covering the building; Removal of the mezzanine levels and enclosed hallways upstairs to open up the special volumes; Importantly, ensuring the retention of the northern wall of the single storey section of the school and the dividing wall between rooms 1 and 3, as recommended by the heritage experts; Most importantly, requiring a structure for the use of the building as an art gallery/function centre/exhibition centre and conference centre. Whilst it might be said that restrictions on public access to the upstairs area is contrary to the original intentions to make the whole school building available to public access, there is appositive trade off in that there will be a fixed management plan approved as part of the consent which identifies and ensures public access to the use of that part of the building proposed as an art gallery/function centre, which thereby provides a means of control by Council. 45 Council approved a s96 application on 16 December 2008, to amend the development consent to ensure consistency with the approval of this application. 46 For the reasons in this judgement, I am satisfied that the use of the second storey of the former School as accommodation will assist in conserving the building and facilitate its use as an art gallery which is available to the general public. Development consent may therefore be granted and Appeal No 10368 of 2008 upheld. With the agreement of the parties, the building certificate is no longer required and Appeal No 10367 of 2008 is therefore dismissed. Orders 47 The Orders of the Court are: 48 In relation to Appeal No 10368 of 2008 1) The appeal is upheld. 2) The development application (DA10.2007.171.1) for alterations and to use the second storey of the former Kiama Infants School Building for three accommodation suites at lots 7 and 8, DP 1085635, 2 Minnamurra Street, Kiama is approved subject to the conditions in Annexure A. 3) The exhibits, except exhibits 2, 10, L and M, are returned. 49 In relation to Appeal No 10367 of 2008 1) The appeal is dismissed. _____________ Annelise Tuor Commissioner of the Court 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.