Land and Environment Court New South Wales Medium Neutral Citation: David Fox v North Sydney Council [2016] NSWLEC 1366 Hearing dates: 22-24 August, 2016 Date of orders: 30 August 2016 Decision date: 30 August 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: permissibility; conservation incentive clause; impacts on amenity of adjoining land. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act Category: Principal judgment Parties: David Fox (Applicant) North Sydney Council (Respondent) Representation: Counsel: Mr I Hemmings SC and Mr S Nash (Applicant) Mr P. Larkin SC and Mr T To (Respondent) Solicitors: Project Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/149869 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 307/15 for the demolition of all existing above ground structures; repair of the existing slipways and construction of a new three storey mixed use building, comprising commercial floor space at the ground floor level with a single dwelling house over two floors constructed over the commercial floor space (the proposal) at 1 Henry Lawson Avenue, McMahons Point (the site) by North Sydney Council (the Council). The appeal was not subjected to a conciliation conference. 2. On 31 May, 2016, the applicant was granted leave by the Court to rely on an amended proposal. Issues 1. The Council's contentions in the matter can be summarised as: * The proposal is prohibited in the zoning table and does not satisfy the pre-conditions to the grant of consent of the heritage incentive clause; * The assessment of heritage significance of the heritage item is inadequate; * The proposal will have an unacceptable adverse impact on the heritage significance of the heritage item; and * The form, bulk and scale of the proposal are contrary to the desired future character for the locality and results in unacceptable amenity impacts on adjoining land. The site and its context 1. The site, at 1 Henry Lawson Avenue, McMahons Point, is legally described as Lot 1 in DP 915829. The site is on the southern side of Henry Lawson Avenue and immediately adjoins Henry Lawson Reserve to the east and west and Sydney Harbour to the south. The site has a unique harbour front location in Lavender Bay, with dramatic views of the Sydney Harbour Bridge, Sydney Harbour and the Opera House. 2. The site has an area of 365.5sqm, with a frontage of 15.24m to Henry Lawson Avenue. 3. The site contains two existing buildings, the western building comprising a two storey rectangular, low gabled two storey building and the eastern building, comprising a small two storey weatherboard building. 4. The site contains two slipways, the western slipway and the eastern slipway. The western slipway consists of a concrete slope with iron rails and a timber boat cradle. The concrete apron and rails extend from the site 20m into the harbour. The eastern slipway is a tidal slipway extending front the harbour into the site and under the eastern building on the site. A stone seawall lines the sides of the dock and joins the Henry Lawson Reserve sea wall. 5. Henry Lawson Reserve is an open grassed area with sandstone sea wall and steps from the harbour. A large Morton Bay Fig tree is located to the immediate west of the site within the Reserve, which partly overhangs the western portion of the site. Resident evidence 1. Four local residents provided evidence at the commencement of the hearing on site. Their concerns in relation to the proposal can be summarised as: * the proposal is seeking to construct a dwelling on a site that has been identified for compulsory acquisition for the purpose of making the foreshore reserve continuous and it is their preference that the site forms part of the foreshore reserve; and * the proposal will obstruct views of the Sydney Harbour Bridge and the Opera House from the public domain. Planning Framework 1. The relevant provisions of the SREP (Sydney Harbour Catchment) 2005 apply to the proposal. 2. The site is zoned RE1 Public Recreation under North Sydney Local Environment Plan 2013 (LEP 2013) and the proposal is prohibited in the zone. The objectives of the RE1 zone are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. • To ensure sufficient public recreation areas are available for the benefit and use of residents of, and visitors to, North Sydney. 1. The zone objectives are subject to the other provisions of the LEP, at sub-cl 2.3(4). 2. A small parcel of the site over the eastern slipway is unzoned land. Clause 2.4 of LEP 2013 Unzoned land, includes the following: (1) Development may be carried out on unzoned land only with development consent. (2) In deciding whether to grant development consent, the consent authority: (a) must consider whether the development will impact on adjoining zoned land and, if so, consider the objectives for development in the zones of the adjoining land, and (b) must be satisfied that the development is appropriate and is compatible with permissible land uses in any such adjoining land. 1. The site is identified as a heritage item (I0453) under Part 1 of Schedule 5 of LEP 2013 and described as 'Slipway and site of former Holmes' residence'. The relevant objectives of the heritage conservation clause at 5.10 of LEP 2013 are: (a) to conserve the environmental heritage of North Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, 1. The consent authority may require the submission of a heritage conservation management plan (CMP) before granting consent, at sub-cl 5.10(6) of LEP 2013. Heritage conservation management plan is defined in the dictionary of LEP 2013 as: heritage conservation management plan means a document prepared in accordance with guidelines prepared by the Public Service agency responsible to the Minister administering the Heritage Act 1977 that documents the heritage significance of an item, place or heritage conservation area and identifies conservation policies and management mechanisms that are appropriate to enable that significance to be retained. 1. The conservation incentive clause at sub-cl, at 5.10(10) of LEP 2013, is as follows: (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 1. The meaning of 'building' in the dictionary of LEP 2013 is the same as the definition of in the EPA Act, at s 4, which is: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure. 1. Clause 6.7 of LEP 2013 applies to land in the RE1 zone. Development consent must not be granted for development on such land unless the consent authority has considered the following, a sub-cl (2): (a) the need for the proposed development on the land, (b) whether the proposed development is likely to have a detrimental impact on the existing or likely future use of the land, (c) whether the height and bulk of any proposed building or structure has regard to the existing vegetation and topography, (f) in the case of land in Zone RE1 Public Recreation, whether the proposed development will significantly diminish public access to, and use of, that public recreation area. 1. At sub-cl 6.7(3) of LEP 2013, development consent must not be granted for development on land in the RE1 zone unless the consent authority is satisfied of the following: (a) the proposed development is consistent with the objectives of the zone of any adjacent land, and (c) the proposed development is consistent with the most restrictive development standards applying to any adjacent land in the following zones in relation to the height of buildings, floor space ratios and setbacks: 1. The land adjacent to the site is also zoned RE1 under LEP 2013. 2. The site is identified for future acquisition for open space (Land Reservation Acquisition Map Sheet LRA_002 LEP 2013) and the acquiring authority is the Minister Corporations, pursuant to cl 5.1(2) of LEP 2013. The parties agreed that the site has been identified for acquisition for more than 60 years. The objective of cl 5.1A of LEP 2013 is to limit development on certain land to be acquired for a public purpose, at sub-cl (1) and development consent must not be granted for development on the site other than environmental facilities and recreation areas, at sub-cl (3); subject to, Mr Hemmings submits, the other provisions of LEP 2013, namely sub-cl 5.10(10). 3. North Sydney Development Control Plan 2013 (DCP 2013) includes site specific controls at Part C 9.8.8 as follows: 1 Henry Lawson Avenue Diversity P1 To be purchased by the State government to complete the regional public open space network created along the entire southern foreshore of McMahons and Blues Points. P2 The site is redeveloped with cognisance of the former use of the site. P3 Until the site is purchased for public use, the site may continue to be used as a boat building or repair facility with ancillary residential accommodation. No more than 50% of the gross floor area may be used for residential purposes and must be located above the ground floor level. Form, massing and scale P4 Heritage listed slipways and sea walls to be retained. P5 A two to three storey form. Setbacks P6 Front: 1m (minimum). P7 Rear: (to Sydney Harbour): 5.8m minimum. P8 Side: Non-residential component: 0m. Residential component: 1.5m minimum. Colours and materials P9 Development uses muted colours and non-reflective materials, such as brick and timber to ensure that the scenic and environmental qualities are preserved. Expert Evidence 1. Expert evidence was provided by Ms Kerime Danis (heritage), Mr Stuart Harding (planning) and Dr Iain Stuart (marine archaeology) on behalf of the Council and Mr Robert Staas (heritage), Ms Jennie Buchanan (planning) and Mr Chris Lewczac (marine archaeology) on behalf of the applicant. Consideration and findings Heritage significance of the item 1. 'Heritage significance' is defined by the dictionary of LEP 2013 as 'heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.' 2. The NSW Heritage Inventory statement of significance for the item is as follows (exhibit C, tab A): House and slipway associated with prominent North Shore boatbuilding family, enhanced by associations with 'Shark Arm Murder' of the 1930's [sic] which was a prominent and unresolved homicide involving a Holmes family member. Last active small slipway business in this area, once home to many such operations. See also under Blues Point Waterfront Group NSW0677. 1. The heritage experts agreed that the reference in the statement of significance to the 'Shark Arm Murder' is an error of fact. According to Mr Staas, the remainder of the statement of significance is an accurate summary of the heritage significance of the site. 2. Mr Staas' evidence (exhibit C) in relation to the historical development of the site is that it comprised part of an allotment within the Blues Point Estate, which was purchased by Michael McMahon in 1884 and later subdivided and the allotment which included the site was sold to Alexander MacCormick in 1895. Alexander MacCormick built a two storey, four room house on the site called Redcliffe. Redcliffe is described as being of weatherboard construction with an iron roof. The house was leased to successive tenants, a number of whom had occupations or businesses associated with boating. A 1930s plan shows the footprint of the house with a boat slip constructed on the eastern side of the site and Mr Lewczac notes that the slipways are likely to have been built earlier than the 1930s. The property was sold to Sydney Ferries Limited in 1946 and to William Lloyd Holmes in 1969. The Holmes' family had a long connection with the district and boatbuilding and the site was operated as a boatshed and boat repair service from the ground floor with a residence above. According to Mr Staas, Redcliffe was demolished and replaced with the existing buildings in c.1970. The property was sold in 1985 and again in 2009 to the present owner. 3. Dr Stuart's statement of evidence (exhibit 4) includes some further details on the history of ownership of the allotment bought by McMahon in 1885. According to Dr Stuart, the lack of research on the people and events that actually occurred on the site makes it difficult to fully assess the significance of the site under the NSW heritage assessment criteria ('Assessing heritage significance' NSW Heritage Office exhibit 3, tab 10). Dr Stuart notes that an obvious historical theme in relation to the item is boatbuilding and maintenance in Sydney Harbour. 4. The heritage experts agreed on the following and I accept their agreement: * the eastern building has no heritage value; * the principal area of significance in physical terms is the fabric of the remaining slipways; and * appropriate interpretation of the site will adequately deal with the identified historic and associative heritage values of the place. 1. According to Mr Staas, the fabric of the buildings on the site is of no heritage significance and the principal significance of the site is the remaining physical evidence of its historic use for boat maintenance, which is dealt with by the maritime archaeologists. In Mr Staas' view, any surviving structures from original or early buildings, concealed under the existing buildings, are of little intrinsic heritage significance. In Ms Danis' opinion, some of the components of the existing timber framing remaining on site may have come from the original 1890s building and may be of value. There may also be concealed fabric from the original chimney remaining on site. 2. I prefer and accept Mr Staas' evidence in relation to the heritage significance of the existing western building on the site. As Redcliffe has been comprehensively demolished, any salvaged and reused odd timber noggings cannot bestow the remaining contemporary fabric with any value associated with the original dwelling on the site. One could not argue for the retention of the existing fabric of the buildings on the basis of there being some minor, salvaged materials dating from the 1890s incorporated into the structure, as the value of that original fabric does not warrant such preciousness. Surviving masonry footings are important insofar as they provide evidence of the location and possibly the construction of the original dwelling and once recorded, they too probably have little intrinsic value, although they may contribute to the interpretation of the place. I accept that the contemporary, modest buildings on the site are of no heritage value. 3. The marine archaeologists agreed on the following: * The eastern slipway is not in its original condition and some original fabric appears to have been concealed by recent building work; * The winch associated with the eastern slipway shown in a photograph taken in 2014 by a Council officer is no longer present in the location shown in the photograph; * Part of the eastern slipway is to be retained by the proposal; and * The northern part of the eastern slipway will be impacted by the proposal as the existing eastern slipway extends beneath the proposed ground floor. 1. The CMP prepared for the site by Mr Lewczak is limited to the slipways and identified maritime archaeology potential that exists in the water immediately in front of the site. Dr Stuart is critical of the approach taken by the applicant of "splitting the heritage item into very small component parts" as the CMP, along with the lack of comparative analysis and an inadequate site history that fails to place the history of the site within the wider context of boat building in the locality, provides an inadequate basis for making decisions about the level of intervention, future management and heritage interpretation, in his view. 2. The assessment of significance of the item has been divided into two components, the fabric of the slipways and associated items, which is dealt with by the CMP (exhibit D) and the fabric of the contemporary buildings, which is dealt with by the Statement of Heritage Impact (exhibit C). This division corresponds to the description of the item in the schedule of LEP 2013, which I accept is a logical response by the applicant. 3. The CMP includes individual statements of significance for the seawall, the western and eastern slipway cradles and the remains of the winches. The statements of significance in the CMP for the seawall, the western and eastern slipway cradles and the remains of the winches are as follows: The seawall was built as part of the construction of the slipways on the property and is a common construction method at the time. The seawall itself is not considered to be a heritage item, however, they are considered to be a continuation of the aesthetic characteristics of the local area. For this reason, and only this reason, the sandstone seawall present on the site is considered to be of local significance. The remains of the eastern and western cradles present on the property relate to the maritime activities that took place on the property. The larger cradle on the western slipway was designed to lift motor vessels and was likely installed with the double purchase crab which during upgrades of the slipways when taken over by Sydney Ferries Limited in 1951 or the Holmes family in 1969. The use of the cradles in maritime industries in the 19th and 20th centuries was not uncommon and the types of cradles present on the site are not considered to be uncommon, rare or unique. The history of these items are as elements of the site but are not considered to be heritage items on their own. For this reason the eastern and western cradles have been assessed as not having heritage significance. The remains of the electric double purchase crab winch, the snubbing winch and SKP wheel present on the property relate to the maritime activities that took place on the property. The electric double purchase crab winch located at the northern end of the western slipway is likely associated with the upgrade of the slipways when taken over by Sydney Ferries Limited in 1951 or the Holmes family in 1969. The snubbing winch and the SKP wheel are likely to have been used on the site, however, their exact locating and use is unknown as they are being stored in a corner of the site. The uses [sic] of winches in maritime industries in the 19th and 20th centuries are not uncommon and the types of winches that are present on the site are not considered to be uncommon, rare or unique. The history of these items are elements of the site but are not considered to be heritage items on their own. For this reason the electric double purchase crab winch, the snubbing winch and SKP wheel have not been assessed as having heritage significance. 1. In Mr Lewczak summary of the value of the site in the CMP, he concludes that the slipways are of local significance and the significant elements of the slipways are the sandstone walls and flooring, which are of high significance. The seabed in front of the property has local significance based on its potential to yield information relating to the historic use of the slipways. No items of moveable cultural heritage have been identified on the site by Mr Lewczac. 2. Dr Stuart notes that the seawalls were first constructed in c.1880 to reclaim the land that is now Henry Lawson Reserve and the site; and that the eastern seawall on the site is likely to be contemporary construction. 3. The conservation policies in the CMP for the seawall and slipways include retaining the physical fabric of these elements and limiting any alterations and continuing to use the slipways for their intended purpose; the sandstone walls are to appropriately maintained as required; and any impacts to the seabed in front of the site should be limited so as to retain any archaeological relics insitu. 4. While I accept Dr Stuart's criticism that dividing up the components in the analysis undertaken in the CMP is illogical, as the movable maritime items are an essential functional element of each slipway and that the overall significance of the slipways as an item of technology should have been undertaken; I am satisfied that the information, so presented, is at least adequate for establishing the heritage significance of the item for the purpose development assessment of the proposal. I concur with Dr Stuart's opinion that the conclusion reached in the CMP, that the neither the seawall nor the cradles of winches meet any criterion for heritage significance, is most likely a result of the approach taken of considering each element independently, because it diminishes their significance by ignoring the relationship of all the elements of the place. The CMP appears to deal primarily with the rarity of the moveable items; however the focus should be on the relationship between the items and their interpretive value in understanding the use of the slipways. I accept Dr Stuart's opinion that the approach taken in the CMP suggests it is not based on a proper understanding of the place. The comparative analysis in the Statement of Heritage Impact (exhibit C) identifies the five other heritage listed slipways in Sydney Harbour and includes a description of each and comparison with the site, although Dr Stuart notes that each of these slipways are derelict and abandoned and do not include items such as the cradles and winches present on the site's slipways. 5. Interpretation means all the ways of presenting the cultural significance of a place (article 1.17 of the Burra Charter). A future interpretative strategy for the site would need to address any remaining inadequacies identified by Dr Stuart in the contextualisation of the site's history and a holistic approach to the fabric of the slipways and the movable items, as this approach and level of detail would be required to properly interpret the remaining fabric, including the movable items and the historical use of the site. 6. Dr Stuart is critical of the lack of detail concerning the conservation options for the future use of the site in the CMP, as he is of the view that it should have addressed the feasibility of various options for the future use of the site and their viability. In his opinion, the CMP also should have addressed the impact of the existing concrete slab over the northern end of the eastern slipway and he is critical of the lack of detail in the CMP regarding the future maintenance of the seawall and repair of the slipways. 7. The assessments of heritage significance for the site prepared by Mr Staas and Mr Lewczac conclude that the remaining tangible elements on the site that embody the item's heritage significance are the slipways and sandstone seawalls. The CMP includes the following policies for the conservation of the sea wall and slipways (exhibit D, tab A, 6.3.1): The conservation of the seawall and two slipways can be achieved by limiting alterations and development directly these items [sic], in particular to the sandstone block work that forms part of the walls and/or floor of the slipway and outer seawall. Continued use of the functionality of the slipways can also contribute to the slipways long term conservation as it continued operation is less likely to contribute to the items falling into disrepair. Retention of the seawall will ensure that the aesthetic characterises [sic] of the local foreshore area are retained. The significant fabric of the seawall and slipways are specifically the sandstone used in the walls and also present on the floor of and under the concrete skin currently present on the slipways. Repairs and alterations have previously been undertaken to the sandstone block work, particularly with the use of concrete repointing. Any repair works should be undertaken under the guidelines prepared by the NSW Heritage Council "How to carry out work on heritage buildings and sites". This may include the removal of previous repair work. The concrete aggregate skin flooring on both slipways has been a later repair addition that is likely to be covering sandstone block work flooring immediately underneath. The condition of this sandstone is unknown and is not likely to be in good condition given the presence of this concrete repair work. If the floor of either slipway is to be repaired in the future, an [sic] appropriate flooring should be put down that will allow any future use of the slipway(s) that also protects the existing exposed sandstone block work on the walls of the slipways. The iron rails on both slipways are believed to have been replaced previously. In the event that that the rails need to be replaced in the future, no further heritage or archaeological work is required if any foundations required for the in water installation of the railing system do not impact on the maritime archaeological potential that is present in the area immediately in front of the property (as defined in figure 58 [which extends the site's side boundaries into the water to the extent of the piles]). This is because 1) the works are documented and recorded as to the date the new rails were installed on the site; and 2) the installation of the new railing system would not adversely impact on the existing extant sandstone block work. No other fixings or ties are present on the walls or floor of the slipways. In the event that additional mooring or bollards are required for the potential continued use of the slipway, all such items should be installed in the outside of the slipway area, such as in the area between the two slipways or in front of (northern side) of the slipway. 1. The CMP includes a brief maintenance schedule (exhibit D, tab A, 6.5) for the slipway sandstone blocks, seawall sandstone blocks and the iron rails which can be summarised as retain and maintain the sandstone blocks; then repair or replace sandstone with new sandstone as required and replace the rails when necessary. Permissibility 1. The application is made pursuant to sub-cl 5.10(10) of LEP 2013 ("the conservation incentive clause") to overcome the prohibition of the proposal in the RE1 zone. There are five pre-conditions that must each be satisfied in order to enliven the discretion, as follows: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 1. Conservation is not defined in LEP 2013. The Australia ICOMOS Charter for Places of Cultural Significance (the Burra Charter, exhibit 3, tab 1) defines conservation as, 'Conservation means all the processes of looking after a place so as to retain its cultural significance.' 2. The applicant submits that the proposal includes 'repairing' the fabric identified as being of heritage significance on the site, being the slipways and the seawalls. Repair is distinguished from maintenance by the Burra Charter, and may involve either restoration or reconstruction. 3. Facilitating conservation requires a higher threshold than just ensuring the proposal does not adversely impact on the identified heritage significance of an item. In order to facilitate the conservation of the heritage item, the proposal must assist in retaining its cultural significance, such as by revealing and interpreting the heritage significance of the item. 4. For conservation works, schedules of repairs are commonly prepared for each element on the basis of a fabric survey and condition report in a CMP. An archaeological watching brief may also be proposed or required. Adequate documentation allows the specific works and replacement materials required to repair the item to be identified, prioritised and costed. It is insufficient to simply articulate the policies and not comprehensively tie them to actions, priorities and timing. The proposal does not include a schedule of works or documentation of any proposed maintenance and repair works showing how the extant valuable fabric on the site is to be conserved. The documentation included in the proposal fails to demonstrate how the conservation of the heritage item is facilitated by the proposal, as it does not commit the proposal to any conservation works. For this reason, I am not satisfied that the proposal fulfils either pre-conditions (a) or (c) of the heritage incentive clause. 5. The commercial component of the proposal on the ground floor retains the existing southern end of the eastern slipway and the western slipway. The proposed finished floor level (FFL) is at RL1.39. The existing contemporary concrete slab at the northern end of the eastern slipway is at RL1.95 (exhibit 12). The sandstone retaining walls are retained, some new walls are proposed (western side of the work area) and a glass fence is proposed along the top of the sandstone walls on the eastern and western boundaries. The lift extends to the ground floor and Mr Lewczac acknowledged that the base of the lift and plumbing to wet areas will require excavation that will destroy remaining fabric of the eastern slipway beneath these areas. The dwelling overhangs the slipways, with a setback from the harbour front boundary of 5.8m and the two terraces extend into this setback. 6. I accept Dr Stuart's opinion that the interface between the proposal and the remaining fabric of the northern end of the eastern slipway covered by the concrete slab does not achieve the conservation of the item, as the proposal would destroy a portion of the eastern slipway, resulting in the removal of fabric identified by the CMP as being of heritage value. For this reason, I am not satisfied that the proposal will not adversely affect the heritage significance of the heritage item and the proposal fails to satisfy pre-condition (d) of the heritage incentive clause. 7. The proposed new dwelling on the site does not put the conservation of the heritage significance of the item as the focus, but is instead indifferent to both the extant identified valuable fabric on the site and the identified heritage significance of the item. It is not the case that the identified significant fabric on the site has inspired the design solution and nor is the proposed building inserted in a way that reveals and interprets the slipways or the historic use of the site. The proposal diminishes the setting of the slipways by overhanging a significant portion of the slipways and obstructing views of the slipways from the public domain. For these reasons, I am not satisfied that the proposal assists in retaining the cultural significance of the heritage item and nor am I satisfied that the proposal would not have an adverse impact on the heritage significance of the heritage item. The proposal fails to satisfy pre-conditions (a) or (d) of the heritage incentive clause. Conclusion 1. The purpose of the heritage incentive clause (part of the mandatory heritage conservation provision in the Standard Instrument – Principal Local Environment Plan) is to firstly widen the uses that can be considered for a heritage item so as to find a compatible and viable future use that would otherwise be prohibited by the zoning table and secondly to facilitate the conservation of the heritage item, using measures that seek to retain the cultural significance of the item, which may include financing the works required to achieve its conservation. An application made pursuant to the heritage incentive clause must go beyond minimising its impact on the identified heritage significance of the item to distinguish and demonstrate how the conservation of the item is facilitated by the proposal. Clearly the heritage incentive clause puts the extant valuable fabric on the site as a central focus, but of course is not limited to fabric and the proposal should also achieve the retention of the cultural significance of the heritage item, in order to facilitate its conservation. The level of change appropriate for a heritage item will be related to its identified heritage significance. 2. I am not satisfied that the proposal facilitates the conservation of the heritage item, nor am I satisfied that the proposal would not adversely affect the heritage significance of the heritage item. The documentation included in the proposal fails to demonstrate how the conservation of the heritage item is achieved by the proposal, as it does not commit the proposal to any conservation works. The proposal would destroy a portion of the remaining fabric of the northern end of the eastern slipway covered by the concrete slab and result in the removal of fabric identified by the CMP as being of heritage value. No power to grant consent 1. Development consent must be refused as the pre-conditions to the exercise of power under sub-cl 5.10(10) of LEP 2013 are not satisfied and so the proposal is not permissible in the RE1 zone. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused. 3. The exhibits, other than exhibits 1 and A, are returned. ____________ Susan O'Neill Commissioner of the Court ********** Amendments 31 August 2016 - Correction to represenation 11 October 2016 - Wording correction to para 39 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. Decision last updated: 11 October 2016