Posted on February 11, 2020 by Katie Mortimer and Megan Hawley
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Conservation Incentives: The LEC interprets cl5.10(10) of the Standard LEP
The Land and Environment Court recently considered the operation of cl5.10(10), a compulsory provision in all LEPs. That clause permits some development that is not otherwise allowed by a LEP, if the development will facilitate the conservation of a heritage item on the relevant land and meet other detailed requirements.
Clause 5.10(10) relevantly states:
‘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 …’
This threshold must apply before the consent authority goes on to consider if it is satisfied of the matters specified in cl5.10(10)(a) – (e).
Facts
In this case, the Applicant sought to subdivide a split zoned site pursuant to the Community Land Development Act 1989 (CLD Act), in order to create six community title allotments. Two local heritage items were located on the site.
The subdivision was prohibited by the Shellharbour Local Environmental Plan 2013 (LEP) as it breached cl4.1AA, which prescribes minimum subdivision lot sizes for community title schemes, and clause 4.6 did not apply to enable a breach of the lot size development standards to be permitted. Because of this the Applicant sought to rely on cl5.10(10) to carry out the subdivision.
Council’s contention in the proceedings was whether the community title subdivision was ‘development for any purpose‘ pursuant to cl5.10(10).
The Court determined this as a separate question and was most concerned with the opening words of cl5.10(10): ‘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…’
Competing interpretations
The Council relied on established authority that a subdivision does not involve any ‘use’ of land, and that in planning law, a use must be for a purpose (per Wehbe v Pittwater Council [2007] NSWLEC 827 and Chamwell v Strathfield Council [2007] NSWLEC 114). In the absence of any ‘use’ there could be no purpose. Because the proposed subdivision lacked a ‘purpose’ it was not ‘development for a purpose’ and could not rely on cl5.10(10).
The Applicant made a number of arguments in response. His position was that whilst subdivision is not a use of land, having regard to the context of cl5.10(10) the proposed subdivision had a planning purpose, and was therefore capable of approval. The Applicant made 4 arguments why this was the case:
- ‘development for any purpose’ in cl5.10(10) is not limited to a purpose identified in the Land Use Table of the LEP,
- the LEP contains textual indicators that suggest the subdivision of land must be for a purpose. Several development standards that apply to the proposed subdivision refer to ‘purpose’ when controlling the sizes of lots,
- it was implicit in the concept of community title subdivision that the land will be subdivided for further development, and it would be contrary to cl4.1AA of the LEP and the CLD Act to suggest that the subdivision can have no purpose,
- the proposed subdivision included earthworks, which had a clearly stated purpose (being the creation of a building entitlement envelope).
Development ‘for any purpose’
The Court agreed with the authority cited by the Council, and held that the words ‘development for any purpose’ in cl 5.10(10) did not include the proposed subdivision.
Moore J agreed with the Applicant’s argument that the concept of ‘development for any purpose’ in cl5.10(10) is unconstrained by the Land Use Table or any other provision of the LEP. However he rejected the Applicants other arguments, finding that:
- the subdivision-related provisions in the LEP did not contain any notion of purpose,
- the further development contemplated by cl4.1AA of the LEP and the CLD Act was development that needed to be subject to a subsequent DA (not the subdivision DA), and
- the earthworks were not part of some other development, but part of the proposed subdivision. Because the subdivision was not development for a purpose, it could not benefit from cl5.10(10).
Implications
The argument accepted by the Court demonstrates that cl5.10(10) is concerned with the purpose of development.
In order to benefit from the clause, and carry out otherwise impermissible development, an applicant must be proposing development for any purpose of a building that is a heritage item, or development for any purpose of the land on which a heritage item is located, and that purpose would otherwise not be allowed.
It also reinforces the accepted case law that subdivision of land is not for any particular purpose.
Read the case here: Williams v Shellharbour City Council [2020] NSWLEC 3
If you want to discuss this post, please contact Megan Hawley on 8235 9703 or Katie Mortimer on 8235 9716.
Asa a heritage architect with 30 years experience as well as PhD research specifically focused on heritage incentives, I am an advocate of the liberal interpretation of the words (for any purpose) because I have come to realise that being an owner of a heritage listed item/ building/ place, is an onerous situation to be in – especially in light of the double bind of having limitations placed on development as well as the obvious restrictions in development options on heritage properties including the high cost of heritage development/ conservation/ maintenance works. Because of such restrictions and onerous conditions, councils ought to view the heritage owner as an afflicted party i.e. one who suffers because of the restrictions discussed above. Accordingly, when interpreting “for any purpose” I would say that the Court should be mindful of the restrictions facing owners of heritage buildings and therefore, take a liberal view i.e. a wider array / a flexible view/ an ability to see the bigger picture as opposed to taking the narrow view which omits a consideration of the heritage owner’s plight/ limited options.
I am always annoyed and frustrated when I see the Court’s decision being so narrow minded and conservative because it fails to observe the heritage owners’ predicament. This is my position and I feel that in the Shellharbour case was an opportunity missed. I really believe that the Court should be going in the opposite direction i.e. a liberal interpretation of ” for any purpose”.
I am involved as architect and lead consultant in several DA’s where those applications rely substantially on the “incentive” provisions of cl 5.10.10 to enable conservation of listed heritage items and for which Paul Rappoport is the heritage consultant. Like Paul have been frustrated that Council’s have not in the past considered the wider interpretation of cl 5.10.10 to enable the often substantial cost of carrying out conservation works on heritage items ( including adaptive re-use ) to allow the conservation of the heritage item by giving the item an economic future. However notwithstanding that Walsh P dismissed this appeal for the reasons setout in paragraphs 92 to 94 ( to which in the circumstances of the proposal I humbly agree ), I am nonetheless very encouraged by other findings in this case, including those contained at paragraphs 47 to 61 ( particularly 47 ? ) which in my opinion provide compelling reasons why a consent authority should assess such applications “on merit” and grant consent ( a ) notwithstanding non-compliance with other planning requirements ( b ) where consent facilitates conservation of the heritage item ( c ) and where the proposal does not does not have any significant adverse effect on the amenity of the surrounding area ( as required by cl. 5.10.10 ( e ) ). Both of my clients in the two applications currently being assessed by Sydney Council’s are likewise encouraged by the findings of Walsh P in Fox v North Sydney Council [2020] NSWLEC 105 and I have no doubt both will come before the L&E for further assessment and determination of the heritage incentive provisions contained in cl 5.10.10 should either Council’s not determine these applications on their merits.