Land and Environment Court New South Wales Medium Neutral Citation: Fox v North Sydney Council [2020] NSWLEC 1056 Hearing dates: 29-31 October 2019; 11 November 2019 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application DA395/18 is refused. (3) The exhibits are returned with the exception of Exhibits 2 and F. Catchwords: DEVELOPMENT APPLICATION – Construction of a building (boat building and repair facility and dwelling) within public recreation zoned land on Sydney Harbour foreshore – land reservation and acquisition – permissibility via heritage incentive clause – relationship of heritage incentives clause to other controls – reactivation of boat building and repair facility as central to delivery of heritage benefits – uncertainty of delivery of heritage benefits Legislation Cited: Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2013 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: DEM (Australia) Pty Limited v Pittwater Council (2004) 136 LGERA 187; [2004] NSWCA 434 Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276 New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 Texts Cited: Susan Butler (ed), Macquarie Dictionary (online) Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Category: Principal judgment Parties: David Fox (Applicant) North Sydney Council (Respondent) Representation: Counsel: R Lancaster SC (Applicant) M Hall SC (Respondent) Solicitors: Dentons (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/155417 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal by North Sydney Council ('Council') of Development Application No. DA395/18. The development application ('DA') seeks consent for the demolition of the existing building on the currently disused site; repair restoration and conservation of the existing heritage-listed slipway structures and associated conservation initiatives, construction of a new three-level building that will contain a boat building and repair facility and a dwelling, landscaped works and car parking. 2. The land on which the development would be carried is identified as 1 Henry Lawson Avenue, McMahons Point which is legally described as Lot 1 in DP 915829 ('site'). Site and setting 1. I rely on Council's Statement of Facts and Contentions (Ex 2) and the Applicant's Statement in Reply (Ex A) for much of the material in this section of the judgment. 2. Apart from its Henry Lawson Avenue frontage, the site is otherwise bound by Henry Lawson Reserve ('reserve'), generally comprising an open grassed area with sandstone sea-wall to Sydney Harbour ('harbour'). The site's southern boundary, itself, comprises the harbour. Along with the harbour, the site enjoys superb views of the Sydney Harbour Bridge and the Sydney Opera House. 3. There is disagreement about certain dimensions of the site. The dimensions referenced at Ex A are "by survey" and I am assuming the dimensions provided in Ex 2 are from the deposited plan. The differences are minor and, as will be seen, inconsequential for me. The dimensions according to Ex 2 are as follows: site area 365.5m², frontage of 15.24m to Henry Lawson Avenue and the harbour, side boundary length of 24.27m. According to the Applicant's survey, the site falls from RL 4.98 to RL -0.50m. 4. The site comprises two buildings (eastern and western) and both quite dilapidated. The eastern building contains a two-storey structure and is externally clad in timber weatherboard and painted green. The western building is also a two-storey structure that is accessed via an external staircase. The western building is a residence/workshop. 5. The eastern building is best described as the 'slipway' building and comprises a low pitch, metal deck roof that extends over the workshop and storage areas at ground level. In addition to the two buildings, the site contains two slipways and a concrete apron formerly used for boat maintenance and access to the slipways and Sydney Harbour: 1. The western slipway consists of a concrete slip with iron rails and a timber boat cradle. The concrete apron and rails extend from the site some 20 metres into the harbour. 2. The eastern slipway is a tidal slipway extending from the harbour into and under the eastern building on the site. A sandstone seawall lines the sides of the slipway and joins the reserve seawall to the east. 1. The site's side boundaries are fenced with full height timber paling fencing, obscuring the buildings from the reserve. Views into the site are open 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. 2. To the north of the site are primarily residential developments in the form of detached and semi-detached dwellings, as well as some residential flat buildings. The topography of the locality slopes down from North Sydney towards Blues Point. Along the northern side of Henry Lawson Avenue in the site vicinity there is an exposed cliff face of around 13m high. As a result, the residential buildings located to the north of the site are significantly elevated above the site and its structures. Statutory framework 1. Key statutory provisions applying to the proposal are introduced here and addressed relevantly in the consideration of issues. 2. Certain provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ('SREP'), a deemed State Environmental Planning Policy, apply to the proposal, along with the associated Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SREPDCP). 3. The site is zoned for the most part RE1 Public Recreation under North Sydney Local Environmental Plan 2013 ('LEP'). 4. The proposal would be prohibited under the RE1 zoning (cl 2.3(1) and LEP land use tables). However, cl 2.3(4) provides that "this clause is subject to the other provisions of" the LEP, including a heritage incentives clause at cl 5.10(10) which is considered below. 5. An area of land over the eastern slipway comprises unzoned land. In regard to unzoned land, cl 2.4 of LEP provides as follows: (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. It is my understanding that there are no particular factors in dispute in regard to the unzoned land that do not apply to the major (zoned) portion of the site. 1. The site is identified for future acquisition and is indicated in the LEP's Land Reservation Acquisition Map as Regional Open Space (RE1) with, under cl 5.1 of the LEP, and as I understand it, the Planning Minister as the acquiring authority. 2. The site is identified as a heritage item (I0453) of local significance under Schedule 5 of the LEP and described as "Slipway and site of former Holmes' residence" The relevant objectives of the LEP's heritage conservation provisions at cl 5.10 of the LEP 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 proposal relies on a conservation incentive provision at cl 5.10(10) of the LEP, which was a matter of considerable attention in the hearing. 2. The site is also located within the McMahons Point South Conservation Area under Part 2 of Schedule 5 of the LEP. 3. There are a series of further provisions relating to development on land zone RE1 which apply to the proposal, including in regard to jurisdiction. 4. Among of course numerous other provisions, North Sydney Development Control Plan 2013 ('DCP') includes site specific provisions at Part C, clause 9.8.8. Proposal 1. The proposal is introduced at [1] above, but the following further particulars warrant mention (sourced from Joint Expert Planners' Report Ex 6, par 12, plans (Ex B) and certain agreed conditions (Ex N)): 1. Use of the lower ground level and part of the ground level as a "boat building and repair facility" in association with the restored slipways on the site; 2. Residential use of the first floor level and part of the ground level. 3. Conservation works which focus on the slipways and the reactivation of the property as a functioning boat building and repair facility and which include, according to the planners (Ex 6, par 12(a)(vii)): "• the conservation and repair of all of the enclosing sandstone sea walls to both eastern and western slipways; • the replacement of corroded slipway rail girders where necessary for renewed operation; • the repair of the concrete slipways surface; • the removal of the intrusive concrete slab at the northern end of the eastern slipway; • the installation of new winches for safe and reliable operation of both slipways; • the installation of new boat cradles to both the eastern and western slipways; • the removal of the C.1980's dinghy cradle within the eastern slipway; • and the retention, display and interpretation of significant items of moveable heritage on the site." 1. Building openings to adjoining public areas (both from the reserve and Henry Lawson Avenue) to allow viewing into the boat building and repair facility, as well as "signage" and "historical imagery" on the side of the building to "help interpret the maritime history and use of the site". 2. Agreement from the Applicant to certain detailed requests from the heritage experts in regard to ongoing attention to heritage particulars post consent (reference agreed without prejudice conditions at Ex N, in particular Conditions AA2, C1 – C4, C9, G2-G3 – some of these points are outlined at [28]). Lay submissions 1. Lay evidence was provided by seven speakers during the site view. Written submissions to the DA were also tendered (Ex 10). A number of the points raised are dealt with in expert evidence, but briefly here, lay submissions might be summarised as follows: essential that site be acquired for public open space and access continuity due to its exceptional harbour-side location within a park - and there is evidence of intention on the part of the State government to do so; the proposed heritage credentials and associated public benefits are dubious; impact of proposed building in this foreshore location on Sydney Harbour and Opera House experiences (mindful of SREP); boat building will not occur; parking, noise and water pollution problems, impact on fig tree, view loss (and view effects from the foreshore). Issues 1. Council nominates 14 separate contentions at Ex 2. A threshold or jurisdictional issue is evident in regard to permissibility. It will be seen that I find favourable in regard to that, which opens up to an analysis of general merits of the proposal in the context of the planning controls. In my interpretation of evidence and submissions the issues in this matter can be best considered as follows: 1. permissibility and other framing considerations relating to site's: 1. RE1 zoning, 2. status as subject to acquisition intentions, and 3. heritage status; and 1. planning merits in the context of this framing, which need to cover: 1. relevant SREP provisions, 2. the intended heritage benefits of the proposal and include consideration of delivery risks, 3. what I subtitle here for convenience as "character compatibility factors", which in this case take on a reasonably wide ambit as outlined below. Conclusions are then drawn. Expert evidence 1. The heritage and archaeology experts providing evidence at the hearing were: Professor R Mackay AM and Mr D Nutley for the Applicant; and Ms K Danis and Dr I Stuart for the Council. The planning experts were: Mr R Chambers for the Applicant and Mr S Harding for the Council. Permissibility and other framing considerations relating to site's RE1 zoning and status as subject to acquisition intentions 1. The Applicant submits that the proposed development is permissible under cl 5.10(10) of the LEP, which provides 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. It is clear that under this clause a consent authority "may" approve development otherwise not allowed under this plan (such as in the case of this application, [13]). 2. There are five points of satisfaction under cl 5.10(10). The first four points of satisfaction are concerned with heritage conservation and are considered first. Heritage aspects of cl 5.10(10) 1. The heritage experts are generally very supportive of the application intentions and their evidence would support the position that the Court should be satisfied in regard to the tests applied at cl 5.10(10) of the LEP. There are significant provisos involved. A series of "enforceable consent conditions" would need to be implemented (Ex 4, par 16). A quite long list of actions, document preparation requirements and/or allocations of responsibility prior to and during the construction stages of the project are nominated for inclusion as conditions of consent. Excerpts from the recommendations are provided below (Ex 4, par 20): "• Results from a program of Phase 2 (contamination) testing and any resulting adjustments to the (Conservation Management Plan) and /or works program to incorporate any requirement for remediation … • Heritage specifications and a detailed plan showing the location and significance of heritage fabric and movable heritage … • Salvage and temporary protection strategy … • Heritage Interpretation Strategy/Plan … • Long-Term Maintenance Plan … • An archival recording of the property…. • The following tasks shall be completed prior to the commencement of work and issue of any Construction Certificate: ○ An archival recording of the property … ○ A heritage consultant and an archaeologist, who is suitably qualified and experienced in heritage conservation and maritime and industrial archaeology, shall be engaged to oversee the implementation of the approved Schedule of Conservation Works, to ensure timely maintenance and repair of the heritage item, based on regular inspection and technically sound and appropriate construction methods. ○ Any surviving original elements should be recorded during the demolition works, and determination regarding the retention of such elements in situ, or for reuse as an interpretive element, or discarding off the site, should be be made by the appointed heritage consultant once such elements are exposed and inspected. ○ Any required excavation permit or 'exception' to that requirement under Section 139 of the Heritage Act, 1977, shall be in place prior to commencement of demolition or excavation works. ○ Should any previously undetected or unexpected Aboriginal Object/s, as defined in the National Parks and Wildlife Act 1974, be uncovered during excavation works, all works in the vicinity of the object/s must stop and advice must be sought from a suitably qualified and experienced archaeologist • Consent for works below the MHWM must be obtained, prior to issue of any Construction Certificate. • The proposed privacy screen (charred timber sleepers in steel framing) to the northern end of the eastern boundary shall be placed exactly as detailed in the elevation drawings and photomontages in the form of permeable screen with voids in order to avoid a blank solid wall towards the reserve. • The heritage consultant and an archaeologist shall monitor works during demolition and construction and must have responsibility and authority to prioritise conservation works following the demolition of the existing structures and prior to the commencement of any works for the new building. • Statements of completion and compliance with the implementation of approved conservation works shall be submitted to the consent authority or delegate by the appointed heritage consultant and archaeologist prior to the issue of any Occupation Certificate." 1. Mr Hall SC drew out points of legal interpretation to counter this evidence. I understood there to be three. First, he argued that the provisions at cl 5.10(10) are concerned with whether a consent authority is satisfied "now", and are not capable of being deferred to a latter point. He argues it is evident that the heritage experts agree that the information before the Court now is insufficient (Respondent's Outline of Closing Submissions, Ex 15, pars 3-4): "3 The experts agree that the information currently before the Court is insufficient and that "detailed heritage specifications [and] schedules of conservation works" must be provided and accepted, and that it is that later-to-be-agreed schedule that, if carried out, will satisfy: Joint Report (Ex 4), p 12. They do not suggest that the existing CMP (Conservation Management Plan) is sufficient. On that their conclusion is that "the documentation in the application before the Court does not provide sufficient detail to implement desirable conservation works to the site" (Ex 4 p 9). Therefore neither paragraph (a) nor (b) of 5.10(10) is presently satisfied. 4. The experts' proposed solution of an 'iterative' approach controlled by conditions does not address this legal obstacle, and is fraught with practical difficulty. What they propose is not merely a provision to deal with contingencies that may arise once the work begins. It is a complete deferral of the identification of the works. Even the identity of the heritage consultant and archaeologist who will prepare the schedule of works is left for a later decision. The conditions drafted by the parties demonstrate just how much is left to be done. The real or operative CMP is yet to be drafted and therefore cannot be approved on this application. The examples given by Mr Mackay in oral evidence were of cases where a specific plan is approved, but with some flexibility to adjust to deal with what is learnt later. In contrast this proposal is nothing more than a plan to make a plan. The Court does not know what works (if any) will be done under the CMP, but is asked to be satisfied now that clause 5.10(10) is met." 1. Second, Mr Hall raised the significance of intended works associated with the overall heritage conservation aspects of the project, but which are not part of the application. That is, the works below MHWM, which would be subject to a separate application and consent (Ex 15 [5]): "…It is accepted that a condition can be imposed requiring the present applicant to file such an application, but the Court cannot know whether it will be granted. If consent is obtained, it may be with modifications or amendments which affect the heritage works in ways that cannot be anticipated. If approved, it may never be built. Sub-paragraph (c) of clause 5.10(10) (as well as (a) and (b)) cannot be met because the consent will not and cannot require that all the works proposed by the heritage management document will be carried out: all those below the MHWM remain contingent on another consent and on the will of the applicant." 1. Third, Mr Hall raised specific concerns in regard to land contamination uncertainties (Ex 15, par 7): "…If the Phase 2 contamination investigation throws up problems inconsistent with the (to be developed) schedule of conservation works then those works will not be able to be carried out." 1. Mr Lancaster SC emphasised and generally relied on the opinions of the heritage experts in his submissions on the above points. He also argued it was a wrong interpretation of cl 5.10(10) to suggest it inappropriate to include additional requirements in conditions of consent (over and above that provided in the application and the proposed Conservation Management Plan (CMP). He suggested Council sought to "glorify form over substance" in its submissions. Consideration 1. In cl 5.10(10)(a), I only need to satisfied that conservation "is facilitated" by the granting of consent. The Macquarie Dictionary defines the term as follows [1] : verb (t) (facilitated, facilitating) 1. to make easier or less difficult; help forward (an action, a process, etc.) In my view, granting consent would make easier and help forward the delivery of the heritage benefits outlined in the application. This does not require confrontation with the question of whether delivery would actually occur. I do not see any legal difficulty in the Applicant's submissions on this particular subclause. 1. The next three provisions are more complex. Clause 5.10(10)(b) is concerned with the alignment of the development to a heritage management document approved by the consent authority. Clause 5.10(10)(c) is concerned with ensuring the carrying out of conservation works included in the document. Both of these clauses are in a sense procedural. Clause 5.10(10)(d) is then concerned with the evaluation of effect (or impact) on the heritage significance of the (existing) heritage item. 2. Mr Hall's submissions in regard to cl 5.10(10)(b) and (c) acknowledge that the experts merely say that the proposal "could" meet the cl 5.10(10) tests if the listed additional requirements are met (Ex 4, par 16). His point, among others, was that it follows that there should be certain doubts on the delivery of the claimed benefits, which should temper the "satisfaction" of a consent authority. 3. I appreciate the point that is made. However, the purpose of cl 5.10(10) is of opening up opportunity for flexibility in regard to other provisions of the LEP, with the general ambition of bringing about some kind of actions towards the delivery of heritage conservation benefits. It seems to me cl 5.10(10) can be interpreted to fall into "the category of remedial or beneficial provisions which should be construed to afford 'the fullest relief which the fair meaning of its language will allow" as referenced by McColl JA in DEM (Australia) Pty Limited v Pittwater Council (2004) 136 LGERA 187; [2004] NSWCA 434 at [47]. It would follow that the interpretation and use of cl 5.10(10) "be approached in a facultative fashion rather than in a restrictive" (as adjudicated by Moore J in Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 at [79]). There is more consideration of this below but for me the "fair meaning" of the provisions, in particular through the reference to the auxiliary verb "may" in the phrase "may grant consent" at cl 5.10(10), in regard to remedial or beneficial intentions, are limited to opening the gate for a more or less regular merits assessment of the application. 4. In regard to cl 5.10(10)(b) and issues relating to documentation, the heritage experts were not troubled with the inclusion of additional material (at [28]), often the particulars of which are currently unresolved, as a supplement to the CMP. What I take from this shared evidence is that the principles are clear enough to the experts, and there is a good degree of confidence about the delivery of final documentation. 5. Included in this shared confidence and of relevance to both cl 5.10(10)(b) (- ie documentation), and cl 5.10(10)(c) (– ie works), there was also a shared view that the procedural concerns in regard to contamination (a part explanation for the incompleteness of the documentation) were in part unavoidable (the site's heritage status meant that Phase 2 contamination investigations could not be undertaken until certain approvals were secured). In coming to their conclusions, the heritage experts believed any contamination remediation works more likely than not to be other than major. The experts considered the likelihood of contamination type for the historical use and drew conclusions on implications in regard to heritage conservation. 6. In passing, but not insignificantly as it relates to jurisdiction, I agree with Mr Lancaster that: (1) cl 7(1)(a) of State Environmental Planning Policy No 55—Remediation of Land has been satisfied as there has been consideration of contamination; (2) cl 7(1)(b) does not arise as there is no finding that the land is contaminated; and (3) cl 7(1)(c) is covered by way of agreed conditions. 7. Further, in regard to cl 5.10(10)(c) (ie works), the question of works below MHWM (central to the overall proposal and CMP but which are not part of the current application as there is a different consent process) raises separate considerations. There are two particular points important to me here. First is that there is again agreed evidence from the experts which suggest they are confident that approval would follow for the element of the work below MHWM given their practical experience in the field and the various relational requirements itemised above at [28]. Second is the particular necessity for the approval of development below MHWM to be secured to trigger the DA works (proposed Condition A2 requires evidence of approval from RMS for works below MHWM prior to the issue of a construction certificate (CC)). This second reason requires further explanation. When cl 5.10(10)(c) establishes the requirement for a consent authority to be satisfied that: "the consent … would require that all necessary conservation work identified in the heritage management document is carried out"; it is not requiring satisfaction that the construction of the work would be physical carried out. It is merely saying, in my opinion, that if development occurs then all required works would be physically carried out. Like any similar consent condition, proposed Condition A2 is establishing a prerequisite that something occur before the CC is issued and any works proceed. 8. The evidence in regard to cl 5.10(10)(d) points to what I see as the most contentious aspect of the proposal which is dealt with in the merits examination below. The heritage experts agree that "the proposed new building would have an acceptable impact in relation to heritage considerations because of the balance that the proposal before the Court strikes between conservation of the heritage item and reactivation of its working status" (Ex 4, par 13). Of direct concern to cl 5.10(10)(d), the experts are concerned about whether the development would adversely affect the heritage significance of the existing heritage item, and suggest an appropriate "balance" would be achieved provided there is reactivation of the prior working status. There is thus a further proviso on the part of the heritage experts that reactivation of working status occur. 9. There are uncertainties in regard to each of the cl 5.10(10)(b), (c) and (d) provisions, as made clear by Mr Hall. However, I have evidence from experts, jointly, that suggest I should be satisfied. First that the heritage conservation management documentation can be finalised, once the baseline approval is secured, by way of a supplement to the CMP, and that the principles of this supplement are clear. Second that the required conservation works will follow, with supervision in accordance with agreed quite detailed conditions. Third that an appropriate balance can be achieved with regard to future work and the existing heritage item. While I note the risks raised by Mr Hall, it seems to me respectfully that his view is too strict given what I am interpreting as the remedial and beneficial intentions behind the clause. The submissions of the experts in regard to cl 5.10(10)(a)-(d), and the facultative presumption which goes with cl 5.10(10) tips the balance towards the application. Amenity aspect of cl 5.10(10) 1. As indicated at [25], under cl 5.10(10)(e), a consent authority needs to, in a sense, turn away from heritage factors and be satisfied of a further factor before the incentivising provisions of the clause are triggered. This is that "the proposed development would not have any significant adverse effect on the amenity of the surrounding area". 2. The expert report of the heritage specialists indicated agreement from these experts that this subclause was also satisfied (Ex, par 16): "…because of the location of the development, especially the cliff to the north, the proposal will not give rise to substantive adverse amenity impacts – the fact that it obstructs currently unavailable foreshore access is not an 'amenity' impact." 1. There was disagreement on the part of the planning experts. Mr Chambers agreed with the heritage experts and added to this by drawing a comparative analysis before and after, referencing the dilapidated state of the existing structures on site. He believed the effect was positive or neutral in amenity terms. Mr Harding indicated: "In summary, my concerns relate to the interface of the proposed building and compound with the surrounding public domain. The building, as a result of its size and scale, will have a significant adverse presence impact within the public open space." 1. There can be little doubt that the proposal would not have a significant adverse effect on the amenity of the residential area north of the cliff. The question of whether it would have an adverse effect on the amenity of the surrounding parkland is not so clear. I recognise Mr Harding's point that the building massing, especially from the east would be a negative factor, but there are negative amenity factors as a consequence of the existing building configuration on the site, as indicated by Mr Chambers. On balance, and mindful of: (1) the previously indicated facultative presumption, (2) a question as to whether the potential impacts on use of the reserve do properly link to the term "amenity" and Lloyd J's findings in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, that "(the) concept of "amenity" is wide and flexible" (at [53]), I also find favourably in regard to cl 5.10(10)(e). Conclusions with respect to cl 5.10(10) 1. While there are points of doubt in regard to individual subclauses in cl 5.10(10) it seems to me, the points are to be considered individually (rather than cumulatively), and I have found favourably in regard to each taking a facultative presumption. It follows that I am satisfied with respect to the provisions of cl 5.10(10) and there is power to grant consent to the development, with respect to that clause. Relating a positive finding on cl 5.10(10) to other provisions 1. There are also requirements for "satisfaction" on the part of a consent authority with respect to certain other aspects of the application. In particular in regard to factors associated with the site zoning as RE1 Public Recreation, a point related to cl 5.10(10) of the LEP of course, and its status with respect to future acquisition potential. It is necessary now to go to the question of the relationship between a positive determination under cl 5.10(10) and the LEP's other jurisdictional provisions. Introducing RE1 Public Recreation Zone objectives 1. The relevance of LEP provisions relating to the zone objectives were the subject of attention in the hearing. 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. Clause 2.3(2) provides that "the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone". However, and mindful of cl 5.10(10), cl 2.3(4) provides that "(this) clause is subject to the other provisions of this Plan". Introducing clause 6.7 of the LEP: Development in Zone RE1 1. Clause 6.7, in its concern with RE1 zoned land, provides relevantly at cl 6.7(2): Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following— (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. Council's submission was that "consideration" of the issues listed in cl 6.7(2) would identify failings of the proposal as a consequence of the site's RE1 zone. The Applicant's argument was that a positive determination under cl 5.10(10) did more than merely lift the prohibition of the use and had broader implications LEP (Applicant's Outline of Closing Submission, Ex O, par 11): "(A positive determination under cl 5.10(10)) does not only lift any prohibition – it is an express power to approve a development even though the development "would otherwise not be allowed", whether because it is prohibited or because the application of any other aim, objective or clause of the LEP might cause the application to be refused." Consideration 1. The legal argument here is concerned with the extent of leverage over other provisions which might reasonably be thought as generated by a favourable determination in regard to cl 5.10(10); having regard to the natural tension which might be expected in regard to other provisions in the plan associated with zoning. 2. Mr Hall argued cl 2.3(4) did not negate the need to have regard to zone objectives. But he argued that the situation was clearer in regard to cl 6.7(2). Mr Hall cited cl 6.7(2)(b) as a "mandatory consideration" ("whether the proposed development is likely to have a detrimental impact on… the likely future use of the land") and that there was no reference to the clause being subject to the other provisions of the LEP (Ex 15, par 18). Mr Lancaster argued that a development that is permitted under cl 5.10(10) ought not be treated as prohibited or otherwise impermissible or inappropriate because of an inconsistency with the zone objectives and land use table that apply to the land. Mr Lancaster also suggested that Council's position: (Ex O, par 10): "…ignores the plain words and intended effect of the heritage conservation incentives clause, which expressly provides that a development that satisfies clause 5.10(10)(a)-(e) may be approved "even though" the development would not otherwise be allowed by the LEP" 1. Both parties called on Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276 to assist their argument. Among Commissioner Brown's findings was (at [56]): "Clause 2.2(3) of LEP 2014 provides that the Court must "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". Given that the proposed use is ordinarily prohibited in the SP2 zone, it could reasonably be expected that there would be some difficulty in achieving a positive relationship with the zone objectives. This being the case, then having had "regard" to the zone objectives, I find that cl 2.3(2) provides no barrier to the approval of the application." 1. I find similarly in regard to the zone objectives in this case. That is to say, the requirement is only to have regard to them, and having done so, I do not see them as a jurisdictional barrier to approval. 2. The provisions at cl 6.7(2), as indicated by Mr Hall, have a stronger tenor (requiring "satisfaction"). But the strength is still only concerned with process. It requires "consideration" of the listed matters, only. 3. It seems to me the LEP is doing nothing to suggest other than the natural obligation on a consent authority to undertake a balancing exercise here. While there is no applicable equivalent of cl 2.3(2), in the "consideration" of the matters at cl 6.7(2) of the LEP, it would also be reasonable and appropriate to have a mind to the intended benefits which are sought to be delivered under cl 5.10(10). This is because cl 6.7 is (in the case before me) entirely concerned with development on land zoned RE1 and under cl 5.10(10) (or at least with a positive determination under it) fundamentally new settings apply in regard to RE1 land. 4. I also need to refer to cl 6.7(3) which includes requirements for satisfaction of a consent authority. I find as follows: (1) with respect to subclause cl 6.7(3)(a) that a positive finding in regard to cl 5.10(10) reasonably introduces a discretionary aspect to zone consistency; (2) with respect to subclause cl 6.7(3)(b) that the proposed development is not likely to result in adverse impacts for the permissible development on RE1 land; and (3) with respect to subcl 6.7(3)(c) that the development is consistent with the relevant standards given the evidence. Concerns in regard to LEP clause 5.1A "Development on land intended to be acquired for public purposes" 1. Clause 5.1A of the LEP is triggered as the site is identified in the LEP's Land Reservation Acquisition Map, and as such is intended to be acquired for regional open space. Under cl 5.1A, consent must not be granted to any development on the site other than for the following identified purposes: "environmental facilities" and "recreation areas". Council submits that acquisition steps have been initiated, including quite recent action, and that approval of the proposed development would "undermine the achievement of regional open space policy and improved public access to the Sydney Harbour" (Ex 2, Contention 2). The Applicant's case is that the prospect of a future acquisition is speculative and in the circumstances it is not a proper planning consideration. Consideration 1. The "new settings" for RE1 land, which apply following a positive determination under cl 5.10(10) of the LEP I refer to [57] above, would also reasonably apply in regard to cl 5.1A. That is to say a consent authority should be open to the possibility that development under cl 5.10(10) of the LEP would provide an outcome which is in the public interest due to its heritage conservation benefits, notwithstanding the site's status as subject to acquisition. In this instance, the provisions of cl 5.1A would not restrict the consideration of this application on merits. Summary finding on framing considerations relating to site's RE1 zoning, and status as subject to acquisition intentions 1. As Mr Lancaster's submissions suggested to me, I have considered how far the use of the phrasing "… even though development for that purpose would otherwise not be allowed by this Plan" in cl 5.10(10) might go beyond merely lifting the land use table prohibition. The phrasing "even though" and "otherwise not be allowed" might be interpreted as meaning a positive determination under cl 5.10(10) might prevail over other controls affecting whether a proposal might be "allowed". Such an interpretation gives too much weight to cl 5.10(10), given the raft of considerations that may arise in regard to environmental assessment even with a positive determination with respect to a heritage incentives clause. The use of the auxiliary verb "may" at the commencement of cl 5.10(10) supports my view on this. 2. So my position is that the heritage incentives clause is concerned with opening up to the delivery of heritage conservation benefits, but not at all in a limitless fashion. The term quid quo pro was used in the hearing and usefully in my view. That is to say, in this case (and once the door is opened via cl 5.10(10) of the LEP through its conditional provisions), the evaluation of the DA involves weighing up the quality and extent of heritage conservation benefits to be delivered against the otherwise planning settings which apply to the site. Considering planning controls and merits 1. While the conclusions I draw above establish that there is jurisdiction available, the question of whether the Court "should" grant consent to the development is now considered further. SREP and Sydney Opera House effects 1. The SREP introduces certain specific heritage provisions which need to be considered with this proposal. The site is within the Sydney Opera House buffer zone. Clause 58B requires that four identified matters be considered with respect to the protection of the world heritage values of Sydney Opera House, including in regard to preserving views and vistas between the Sydney Opera House and other public spaces, and avoiding diminution of the visual prominence of the Sydney Opera House when viewed from public spaces. I agree with the opinions expressed by Professor Mackay and Ms Danis that the proposal would not raise concerns with respect to the considerations under cl 58B. 2. The SREP's other pertinent considerations have some alignment with other policy provisions and are considered with these other provisions below. Delivery of heritage benefits including associated risks 1. The heritage experts believe the CMP's statement of significance provides an appropriate basis for "(understanding) the heritage values of the site and to consider potential impact on cultural significance" (Ex 4, par 7). Below I provide an excerpt from this statement to assist a reader to grasp this significance (Ex F, Tab 23, p 64): "The property, including its slipways, is a rare surviving representative of the maritime history of the McMahons Point and its environs and of Blues Bay in particular. The site is the last remaining evidence of industrial activity that developed along the adjacent foreshore from the late nineteenth century. In the broader context of Sydney Harbour, it is also representative of Sydney's past history as the principal ship and boatbuilding centre of the colony of New South Wales from 1820 and, from Federation to the 1970s, as one of the more important centres in the Commonwealth. While the remains of other slipways still exist in Berry's Bay and Lavender Bay, there has been a cumulative loss of these facilities around Sydney Harbour in the path of foreshore development. Along the Henry Lawson Avenue foreshore, the subject property is the earliest and last surviving evidence of maritime industry." 1. The heritage conservation benefits which are intended with this proposal are significant – all the heritage experts and the Applicant's planning expert see substantial public interest in their delivery. The particulars are summarised at [21]. At pars 11-13 of their joint report (Ex 4), the heritage experts point to what is more and less important: "11. The eastern building has no heritage value; the principal area of significance in physical terms is the fabric of the remaining slipways. 12. The eastern slipway is not in its original condition and some original fabric appears to have been concealed by recent building work. The eastern slipway would be retained and returned to operation if the proposal before the Court were to be approved and implemented. 13. The proposed new building would have an acceptable impact in relation to heritage considerations because of the balance that the proposal before the Court strikes between conservation of the heritage item and reactivation of its working status. The proposal before the Court is acceptable in heritage terms, provided that the conditions of consent suggested below, including the additional documentation, are applied, enforced and implemented to the satisfaction of the consent authority or its delegate." 1. In his oral evidence and with general endorsement from other experts, Professor Mackay confirmed the significance of remnant small scale boat building/repair at this site and the appropriateness of the proposal for the restoration and continuation of that purpose, suggesting this proposal as an example of the raison d'être of LEP heritage conservation incentives clauses as a public interest-centred policy approach. 2. But a point of significant attention in the cross examination of the experts by Mr Hall, related to the significance of the delivery of a functioning boat building or boat repair facility with the proposal, and its likelihood. Professor Mackay, Ms Danis and Dr Stuart confirmed in oral evidence that if the intended boat building/repair function did not occur or the operation was vacant then a major aspect of the heritage conservation benefits intended from the proposal would not be achieved. Mr Nutley indicated in oral evidence that the heritage objectives of the proposal would be achieved even if no boat building/repair were to occur. 3. Ms Danis indicated that the main intention of the proposal in heritage terms "was to activate boat building". Professor Mackay indicated that the presumption of the proposal was to enable the return of boat building and then in accordance with Ex 4, par 13 that if no "reactivation" of boat building occurred then the "balance" would not be achieved, as there would not be able to be the same level of interpretation for a lay person viewing into the site. Professor Mackay also indicated that there would be "substantial incremental improvement" in heritage terms even without repair/building activity. Dr Stuart noted there were lots of houses with slipways, but there was a marked difference from a house and an active working site and that one would be able to immediately observe if a site was active or static. Professor Mackay noted that a passer-by in the street could read the interpretation panels on the wall of the building to enable appreciation, but agreed on questioning from Mr Hall that without building/repair activity the site would look like a home for someone viewing from the water. Ms Danis emphasised the provisions in the DCP which in her view indicated that the primary function of the site should be boat building with residential only ancillary to this primary use (see DCP Part C, clause 9.8.8). 4. While there were limits to the heritage experts' expertise in such matters, there seemed to be agreement that there was no capacity for a consent to "compel" the actual boat building/repair to occur on the site. 5. The planners considered the same question in their deliberations on the question of compatibility between the two uses. Mr Chambers argued that joint use has been part of the historic use of the site, and was factored into the DCP at Part C, clause 9.8.8. There would be insulation to reduce noise from the workshop. The Applicant's case in regard to this question of actuating a working boat building/repair use was supported by a report dated November 2, 2018 prepared by Richard Wood of Timber Boat Services and the design of the workshop as shown on the DA drawing is informed by the shipwright's comments at Annexure C (Ex 6, par 108). On the contrary, Mr Harding raised concerns in regard to privacy and acoustics "given that key work areas are located adjacent to living spaces and bedrooms of the residential component". Consideration 1. I note that much of the evidence from the experts on the importance of activation of a boat building/repair use, and whether it would or would not be achieved, was concerned with the satisfaction of the requirements of cl 5.10(10), and was located in that section of the expert reports. I have interpreted the statutory framework for the assessment of this application as requiring a balancing out of issues, with heritage conservation considerations certainly an important issue, but one of a number. So notwithstanding my interpretation and finding in regard to cl 5.10(10), it seems to me not at all unreasonable to consider the expert evidence and submissions in regard to cl 5.10(10) in my broader analysis of the overall merits of the proposal. In doing so, and mindful of the fact that the proposal is only permissible via a heritage incentives clause, it might naturally follow that if the agreed "balance" is not achieved in regard to heritage considerations, that is to say a neutral or negative heritage effect is anticipated, then the passage to approval on the basis of overall merits would be significantly more challenging. 2. As indicated with regard to cl 5.10(10)(a), heritage benefits are facilitated by the proposal. However, the experts mostly agree that the essential heritage benefit which is required to be delivered (rather than merely 'facilitated') is associated with reactivation of boat building/repair use of the site. In their experience, the experts did not see a way that a consent could ensure that this occur. Beyond the experts' evidence there were no particular submissions from the Applicant on how the delivery of what I would believe on the basis as the most essential heritage benefit (an operational boat building/repair facility) might occur. While useful from a heritage to appreciate the site heritage context and what type of works might occur in boat building/repair operations, I did not find the evidence in the letter from Mr P Watts AM at Ex G or, respectively, the photographs at Ex H as providing sufficient support to the challenge of delivery of a working facility on the site. 3. Mr Lancaster's submission was that the matter of occupation and use of the boat building/repair operation: (1) was not a proper planning consideration, and (2) had not been raised in contentions. However, I do not find these arguments sufficiently convincing. In regard to (1), there are entirely different circumstances at play here when compared say to the non-requirement for a development application for a dwelling to provide evidence on a future tenant. There are very unusual circumstances at play in this matter. First is that the heritage benefits which underpin the positive opinions of the heritage experts are dependent on the delivery of a working boat building/repair operation. Second is in relation to siting. It would be inappropriate for the Court to not acknowledge the unusual or what might be termed "trophy" aspects of the site for a new residential dwelling – harbour side with superb views of Sydney Harbour Bridge and Opera House and easy access to CBD. On this point, I note that Council's contentions included concerns in regard to incompatibility of the uses. The concern was in regard to an adverse impact on the residents of the dwelling from the operation of the boat building/repair operation. Mr Harding raised compatibility implications in regard to privacy and acoustics "given key work areas are located adjacent to living spaces and bedrooms of the residential component" (Ex 6, par 115 and in oral evidence). The objectors also raised concerns of the possibility that there would not be any delivery of the boat building/repair operation on the site at all. 4. It seems to me quite reasonable to expect as a common sense position that, all other things being equal, there would be aspirations for high standards in regard to acoustic and visual privacy amenity for the residents of the proposed dwelling in this "spectacular location" (Ex G). I agree with Mr Harding in regard to noise and visual privacy impact potential, given the adjacency of the two uses. It would seem reasonable to find that even noise in accordance with standard noise controls such as applied in the conditions, or activity in the boat building area which impinges on the visual privacy of residents of the adjacent dwelling would be annoying to the residents of this dwelling in this prime location. When I say "all other things being equal", it is clear that historically a different setting applied, with the property valued as evidence of maritime industry in the locality [67] and while there is evidence in the CMP that occupation for residential purposes occurred, there was primacy to the boat building/repair operations with the historical use (see for example CMP, p25 in regard to William Lloyd Holmes occupation). This is factored into the DCP provisions with its reference to the residence as "ancillary" to the boat building or repair operation (see below). 5. With the heritage experts making clear in their expert report that there was an essential requirement for reactivation of the boat building/repair operation, the question of the risks of this occurring were reasonable points of inquiry by the Council in the hearing, especially when there were accompanying submissions raising doubt about the practicalities of this, given what I see as a natural primacy of what I have called a trophy residence, on this most unusual harbour-side "development" site, over a kind of maritime light industrial use - a setting where incompatibility of aspirations are reasonably seen as likely. 6. It seems to me necessary, in this setting, for the Applicant to make the case that the essential heritage benefit which underpins the proposal would be delivered, or, in this exercise of balancing merits, at least that reasonable efforts were made in regard to the its delivery. I am not aware of any suggestion of the intended boat building/repair operation being in a position of control in regard to such matters. It seems to me there is little evidence available to evince the reactivation of the site for boat building/repair, and the maintenance of this use over time, in the face of an anticipated tension between it and the amenity enjoyed (and expected) from residents of a home reasonably expected to be worth many millions of dollars. There seems to me to be significant doubt about the reactivation of the site as a boat building/repair operation and were it to activate, its continuation over time. 7. I also note there are other uncertainties in regard to the proposal delivery including: (1) reliance on further approval for significant works below MHWM and (2) need for further studies and potentially excavation works associated with contamination and remediation. These uncertainties do not assist the proposal, however would not be reasonably seen as determinative of themselves. Character compatibility 1. Under this heading I intend to consider the evidence in relation to the proposed building characteristics aside from its heritage benefits. Here I can join up a number of factors originating from the following: (1) SREP provisions at cl 22 and SREPDCP provisions at cll 5.2 and 5.11, (2) objectives of RE1 zone, (3) provisions of cl 6.7(2), (4) DCP provisions. I will first consider the site specific DCP provisions at Section C, clause 9.8.8 as a single item, then the other aspects in a more integrated manner. Site specific DCP provisions (Part C clause 9.8.8 of the DCP) 1. As referenced previously Part C clause 9.8.8 of the DCP applies directly to the subject site. It is produced in full below. Figure 1 - Site specific DCP Controls (Source: North Sydney DCP 2013, Part C clause 9.8.8) 1. The controls contained in the DCP which were points of attention in the evidence were: 1. No more than 50% of the gross floor area to be used for residential purposes: The argument on the part of the experts in regard to this standard was on a point of relatively fine precision (around the 50% measure) which was unnecessary given the need to be to be flexible in applying such standards under s 4.15(3A)(b) of the EPA Act. The gross floor area split is seen as satisfactory in terms of the DCP provisions. 2. Residential development must be located above the ground level: Mr Chambers submitted that the lower of the two residential levels was marginally above the street level. However the lower level residential component of the development would appear for all intents and purposes to include floor area at what would be interpreted as ground level. 3. Two to three storey form: The Applicant's argument was that the proposed building massing was satisfactory (including in regard to visual impact) as it was "two to three storey form". I agree with the alternative argument that, the phrasing "two to three storey" opens the proposal up to some degree of merits arguments in regard to where and how the building height in storeys might be resolved with respect to context and other particulars, as suggested by Mr Harding in oral evidence and at Ex 6 par [67]. 1. Ms Daris (in oral evidence – when arguing the importance of the primacy of the boat building/repair operation) and Mr Harding (Ex 5, p5 – in relation to visual factors) both raised the provision within P3 of the DCP clause that "residential accommodation" was to be ancillary to the "boat building or repair facility". I interpret the use of the term ancillary in the DCP as its common meaning ("accessory; auxiliary": Macquarie Dictionary). This provides an explanation to me of how the DCP saw the problem of incompatibility between the two uses should be addressed to assure delivery of the intended heritage benefits. Public access to the foreshores and waterways and public recreation areas generally (cl 22 of SREP, clauses 5.2 and 5.11 of the SREPDCP, and cl 6.7(2)(f) of the LEP) 1. Mr Chambers noted that there was no public foreshore access now across the site and it would not be suitable to provide access across the redeveloped site as an active boat building/repair facility. There would be a new opportunity for the public to view a working boat building/repair operation. Mr Chambers also saw the potential for the site to "extend to uses, such as a coffee shop or restaurant, as distinct from a private residence". Mr Harding saw the proposal as acting against such, more publicly accessible, land uses occupying the site into the future. Impact on existing or likely future use of the land (cl 6.7(2)(b) of the LEP) 1. I have previously acknowledged and disagreed with the suggestion that the provisions of cl 6.7(2)(b) of the LEP might in a sense be trumped by a positive determination under cl 5.10(10), and rather have concluded that the exercise is one of balance. Council's submissions that approval of the subject development would inhibit its future use for public open space, is something warranting consideration in this balancing (mindful of cl 6.7(2)(b) of the LEP). This could be accepted as part of a quid quo pro, provided a satisfactory trade-off is involved as is facilitated under cl 5.10(10). I have also already acknowledged as a possibility of some concern that approval of the development eventuates in partial delivery of the overall proposal; in particular, the use of the land for a substantial harbour-side residence without delivery of the intended heritage benefits (see discussion above at [77]). Here I do not discard the possibility that a building such as that proposed to be constructed might one day be used as a community facility or restaurant, that is, following acquisition (should that occur in due course), as suggested by Mr Lancaster. View loss (cl 26(a) and (b) of SREP 1. Clause 26(a) and (b) of the SREP are concerned with maintaining and enhancing views (including night views) to and from Sydney Harbour, and minimising adverse impacts on views and vistas to and from public places, landmarks and heritage items. Mr Harding referred in his oral evidence to view loss to the Sydney Harbour Bridge as a consequence of development. The view which would be lost would principally be from a car or bus travelling east along Henry Lawson Avenue. I agree with Dr Lamb that this is not a significant viewing perspective. There was also the suggestion of view loss to Sydney Harbour Bridge from the pedestrian path on Henry Lawson Avenue, although my recall was that this view was principally to part of the northern approach, rather than what might be commonly thought of as the Sydney Harbour Bridge itself. Generally I do not see the proposal as unreasonable in view loss terms. Visual impact 1. One concern here was in regard to visual impact from the harbour. I agree with alternative opinions of the experts that the development of a large private residence with slipway in the middle of a park would not be a good outcome in visual impact terms from the harbour, and, that a recognisable and operating boat building/repair facility would provide visual interest and a positive impact when viewed from the harbour. 2. Other evidence in regard to visual impact was mostly centred on the response to cl 5.10(10)(e) and its concern in regard to adverse effect on the amenity of the surrounding area. For the same reasons as indicated at [74], I use the arguments put in relation to cl 5.10(10)(e) as pertinent to the analysis of visual impact and the analysis of merits more generally. The most pertinent factor here, as raised by Mr Harding, was the increased height and mass of building when viewed from the east, within the reserve near to the foreshore edge (a viewer position from which a photomontage was prepared). I agree with Mr Harding that a development of the scale proposed would involve a negative effect on the experience when using the park. I disagree that this would be offset entirely by the physical change from fenced derelict site (as existing) to the development as proposed. Notwithstanding the intended viewing into the site from open fencing and the like, the massing of a (larger) private building, with in effect an additional storey for much of the eastern side would impinge on the sense of open public land from this side of the park. Planners evidence on public benefits of heritage conservation components 1. Expert planners play a generalist role in development assessment. I queried these experts in regard to the public interest benefits associated with the delivery of the intended heritage conservation centred benefits. Mr Chambers, for the Applicant, referred to heritage as a baseline public interest factor and its references in the LEP as examples of this, noting the evidence from the heritage experts. He also saw the project (the opportunity for which was opened up by its heritage credentials) as a platform for delivery of other benefits. These included benefits to the local visual environment with the replacement of a dilapidated building with one of increased visual interest, increased building setbacks, socio-economic benefits associated with the facilitation of boat building/repair, and improved natural surveillance of public areas. 2. Mr Harding, for the Council, believed the public interest would be seeking a maritime heritage outcome and instead saw a significant private compound with adverse impact in the public domain. He was concerned that the public are not seeing too much in return for what is being given away. Conclusion 1. The key planning reason which might allow the development of the proposed building in this location (on harbour foreshore land, with an RE1 zone and surrounded by a public reserve and with some prospects at least for acquisition itself for regional open space) is the reactivation of a boat building/repair operation on the site in accordance with agreed heritage conservation parameters. I am not satisfied that this would be assured with an approval of the subject application. 2. In the balancing exercise involved in this merits evaluation (ie a step beyond the facultative exercise in relation to conservation remediation involved in the test with the LEP's cl 5.10(10)), and without good confidence of delivery of the essential heritage benefit of reactivation of the boat building/repair operation on the site, the scales would tip substantially against the proposal for the following reasons: 1. Risk of adverse effect on existing heritage item which goes with reactivation not occurring, as evidenced in oral examination of the heritage experts in regard to Ex 4, par 13. 2. Likelihood of detrimental impact on existing and likely future use of the land. The reservation of the land for acquisition purposes is concerned with delivering the social benefit of, in this case, a continuous area of regional open space along the harbour foreshore. Approval of the development, and more private construction at the harbour side (without assurances of the essential heritage benefits) would undermine and add difficulties to site acquisition for public purposes, and bring negative effects in regard to prospects for site acquisition. 3. Visual impact of a larger private building from within the reserve and from the harbour. The (assured) heritage benefits associated with suggested conservation works (alone) and non-heritage related benefits do not offset these potential negative effects. 1. The Court orders: 1. The appeal is dismissed. 2. Development application DA395/18 is refused. 3. The exhibits are returned with the exception of Exhibits 2 and F. ……………………….. P Walsh Commissioner of the Court Endnote 1. Susan Butler (ed), Macquarie Dictionary (online ed, at 16 January 2020) 'Facilitate'. 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: 12 February 2020