NORTH SYDNEY COUNCIL · 2018. 3. 1. · Whiteley’s House and Studio located at 1 Walker St, Lavender Bay on 13 March 2014. This application included a visual curtilage covering

NORTH SYDNEY COUNCIL

Council Chambers 1 March 2018

I wish to inform you that a Meeting of the LEGAL AND PLANNING COMMITTEE will be held in the Supper Room, Council Chambers, North Sydney at 6.30pm on Monday 5 March 2018 when your attendance is requested.

Your attention is directed to the accompanying statement of the business proposed to be transacted at such meeting.

KEN GOULDTHORP GENERAL MANAGER

BUSINESS

1. MinutesConfirmation of Minutes of the previous Meeting held on 16 October 2017.(Circulated)

Legal and Planning Committee – 5/03/18 Page No 2

2. LP01: Current Appeals and Results – March 2018Report of Matthew Pearce, General CounselAttached is a list of current appeal matters as at 23 February 2018 for Council’sinformation.As at 23 February 2018, Council has incurred $ 887,932 on legal fees for the2018 financial year and recovered legal costs in the amount of $ 233,336. Thelegal budget for 2018 financial year is $1,300,000.Recommending:1. THAT the report be received.

3. LP02: State Heritage Nomination for ‘Brett Whiteley House and VisualCurtilage’Report of Lucinda Varley, Conservation PlannerCouncil submitted a nomination to the Heritage Division of the NSWDepartment of Environment & Heritage, for the state heritage listing of BrettWhiteley’s House and Studio located at 1 Walker St, Lavender Bay on 13 March2014. This application included a visual curtilage covering Wendy Whiteley’sSecret Garden, Clark Park, Quibaree Park, land owned by Crown Lands, theState of NSW, Rail Corp and Roads & Maritime Services as well as the watersof Lavender Bay. It is anticipated that an announcement regarding the stateheritage listing will be made by the Minister during February/March 2018.Recommending:1. THAT the report be received.

Legal and Planning Committee – 5/03/18 Page No 3

1. Confirmation of Minutes of the previous Meeting

2. Items for Consideration - see attached reports

Item No. Subject Page LP01 Current Appeals and Results - March 2018 18

LP02 State Heritage Nomination for ‘Brett Whiteley House and Visual Curtilage’

33

3. General Business

DECISION OF 3696th COUNCIL MEETING

HELD ON 30 OCTOBER 2017

364. CoS03: Legal and Planning Committee Minutes –

16 October 2017

Report of Ian Curry, Manager Governance and Committee Services

This report presents the recommendations of the last meeting of the Legal and Planning

Committee held on 16 October 2017 for Council adoption. The Minutes are attached

for information.

Nil.

Recommending:

1. THAT the Current Appeals and Results report be received, with the exception of the

item in the table on page 26 regarding 8 Wonga Road, Cremorne (LP01).

2. THAT Council supports the proposed location for the food truck trial on Miller

Street, subject to approval by RMS via Council’s Traffic Committee (LP02).

3. THAT following approval of the proposed location by Council’s Traffic Committee,

that a 3-month food truck trial commences at this location (LP02).

4. THAT exhibition of the North Sydney CBD Mobile Food Vending Vehicles Trial

Policy occurs concurrently with the trial (LP02).

5. THAT community consultation for the trial and the accompanying North Sydney

CBD Mobile Food Vending Vehicles Trial Policy be undertaken in accordance with

the conditions outlined in the previous Council resolution from 20 February 2017

(LP02).

6. THAT the outcomes of the food truck trial and the accompanying community

consultation be reported back to Council to evaluate the success of the trial and

determine whether to continue with the food truck program (LP02).

7. THAT Council note the commencement of the Masterplan/ Plans of Management

for Tunks Park and Anderson Park (LP03).

8. THAT Council endorse the Community Engagement Strategy for the Tunks Park

and Anderson Park Masterplan/ Plans of Management (LP03).

9. THAT Council endorses the formal appointment of Ms Anita Morandini to the

Design Excellence Panel for 2017-2019 (LP04).

10. THAT the Sydney North Planning Panel – Membership Nomination 2017-2018

item (LP05) be deferred for consideration at the next Council meeting.

11. THAT delegation be given to the General Manager to call for expressions of

interest from residents to be Community Representatives on the future Local Planning

Panel, and to appoint appropriate individuals with a representative and alternate for

each ward (LP06).

12. THAT current delegations to officers be reviewed by the General Manager to align

with the amended legislation and any subsequent practice directions (LP06).

13. THAT Council not delegate a review of Planning Proposals to the State

Government’s mandatory IHAP (LP06).

14. THAT Council write to the Minister with a copy to neighbouring Councils and

NSROC, requesting that amendments be made and adopted to the administrative

arrangements for the operation of panels, as detailed in Council’s submission to the

Department of Planning (LP06).

15. THAT a copy of this report and any subsequent correspondence be sent to the

Precinct Committees, with a briefing note (LP06).

A Motion was moved by Councillor Baker and seconded by Councillor Beregi,

Page 4












(LP02).















each ward (LP06).











16. THAT Council obtain legal advice on public/private nuisance relating to the

increase in the brush turkey population and that such advice consider recent

correspondence to Wollstonecraft Ward Councillors.

The Motion was put and carried.

Voting was as follows: For/Against 9/0

Councillor Yes No Councillor Yes No

Gibson Y Barbour Y

Beregi Y Drummond Y

Keen DoI Gunning Y

Brodie Y Mutton Y

Carr Y Baker Y

RESOLVED:

Page 5












(LP02).















each ward (LP06).











16. THAT Council obtain legal advice on public/private nuisance relating to the

increase in the brush turkey population and that such advice consider recent

correspondence to Wollstonecraft Ward Councillors.

Page 6

ITEM CoS03 REPORTS 30/10/17

N O R T H S Y D N E Y C O U N C I L R E P O R T S

Report to General Manager Attachments:

1. Minutes 16 October 2017

SUBJECT: Legal and Planning Committee Minutes – 16 October 2017

AUTHOR: Ian Curry, Manager Governance and Committee Services

ENDORSED BY: Sandra Moore, Acting Director Corporate Services

EXECUTIVE SUMMARY:


Committee held on 16 October 2017 for Council adoption. The Minutes are attached for

information.

FINANCIAL IMPLICATIONS:

Nil.

RECOMMENDATION:

1. THAT the Current Appeals and Results report be received, with the exception of the item in

the table on page 26 regarding 8 Wonga Road, Cremorne (LP01).

2. THAT Council supports the proposed location for the food truck trial on Miller Street,

subject to approval by RMS via Council’s Traffic Committee (LP02).

3. THAT following approval of the proposed location by Council’s Traffic Committee, that a

3-month food truck trial commences at this location (LP02).

4. THAT exhibition of the North Sydney CBD Mobile Food Vending Vehicles Trial Policy

occurs concurrently with the trial (LP02).

5. THAT community consultation for the trial and the accompanying North Sydney CBD

Mobile Food Vending Vehicles Trial Policy be undertaken in accordance with the conditions

outlined in the previous Council resolution from 20 February 2017 (LP02).

6. THAT the outcomes of the food truck trial and the accompanying community consultation

be reported back to Council to evaluate the success of the trial and determine whether to

continue with the food truck program (LP02).

7. THAT Council note the commencement of the Masterplan/ Plans of Management for Tunks

Park and Anderson Park (LP03).

8. THAT Council endorse the Community Engagement Strategy for the Tunks Park and

Anderson Park Masterplan/ Plans of Management (LP03).

9. THAT Council endorses the formal appointment of Ms Anita Morandini to the Design

Excellence Panel for 2017-2019 (LP04).

10. THAT the Sydney North Planning Panel – Membership Nomination 2017-2018 item

(LP05) be deferred for consideration at the next Council meeting.

Page 7


Re: Legal and Planning Committee – 16 October 2017

(2)

11. THAT delegation be given to the General Manager to call for expressions of interest from

residents to be Community Representatives on the future Local Planning Panel, and to appoint

appropriate individuals with a representative and alternate for each ward (LP06).

12. THAT current delegations to officers be reviewed by the General Manager to align with

the amended legislation and any subsequent practice directions (LP06).

13. THAT Council not delegate a review of Planning Proposals to the State Government’s

mandatory IHAP (LP06).

14. THAT Council write to the Minister with a copy to neighbouring Councils and NSROC,

requesting that amendments be made and adopted to the administrative arrangements for the

operation of panels, as detailed in Council’s submission to the Department of Planning (LP06).

15. THAT a copy of this report and any subsequent correspondence be sent to the Precinct

Committees, with a briefing note (LP06).

Page 8


Re: Legal and Planning Committee – 16 October 2017

(3)

LINK TO DELIVERY PROGRAM

The relationship with the Delivery Program is as follows:

Direction: 5. Our Civic Leadership

Outcome: 5.3 Council is ethical, open, accountable and transparent in its decision making

BACKGROUND

In accordance with Council’s Code of Meeting Principles and Practices:

Clause 50.6 - the minutes of a Committee meeting may only be confirmed and adopted by

resolution of that Committee, passed at a subsequent meeting of that Committee.

Clause 50.7 - the recommendations arising at Committee meetings are to be submitted to the

next available Council meeting for adoption.

CONSULTATION REQUIREMENTS

Community engagement is not required.

SUSTAINABILITY STATEMENT

The sustainability implications are of a minor nature and as such did not warrant a detailed

assessment.

DETAIL


Committee held on 16 October 2017 for Council adoption. The Minutes are attached for

information.

Page 9

Minute Book Page No 8

This is Page No 8 of the Minutes of the Legal and Planning Committee Meeting of the North Sydney Council held on 16 October 2017.

NORTH SYDNEY COUNCIL

REPORT OF LEGAL AND PLANNING COMMITTEE

SUBJECT: PROCEEDINGS OF COMMITTEE AT MEETING HELD IN THE SUPPER ROOM AT THE COUNCIL CHAMBERS, NORTH SYDNEY, ON MONDAY 16 OCTOBER 2017 AT 7.30PM.

PRESENT

The Mayor, Councillor Gibson in the Chair, Councillors Baker, Beregi, Brodie and Mutton.

Staff: Adrian Panuccio, A/General Manager Joseph Hill, Director City Strategy Ross McCreanor, A/Chief Operating Officer Stephen Beattie, Manager Development Services Matthew Pearce, General Counsel Marcelo Occhiuzzi, Manager Strategic Planning Neal McCarry, Team Leader - Policy Mark Yee, Strategic Planning Ian Curry, Manager Governance and Committee Services (Minutes)

Visitors: Nil

Apologies were received from Councillors Barbour, Carr, Drummond and Keen.

At the commencement of business (7.45pm) Councillors present were – The Mayor, Councillor Gibson in the Chair, Councillors Baker, Beregi, Brodie and Mutton.

Declaration of Interest

Cr Baker advised that she had a pecuniary interest in Item LP01, specifically 8 Wonga Rd, Cremorne (see table on page 26) and would not be voting on this matter.

9. Minutes

The Minutes of the previous meeting held on 6 March 2017, copies of which had beenpreviously circulated, were taken as read and confirmed.

The Motion was moved by Councillor Baker and seconded by Councillor Beregi.

ATTACHMENT TO CoS03 - 30/10/17 Page 4Page 10

LEGAL AND PLANNING COMMITTEE – 16/10/17 Page No 9



Councillor Yes No Councillor Yes No Gibson Y Barbour Absent Beregi Y Drummond Absent Keen Absent Gunning Absent Brodie Y Mutton Y Carr Absent Baker Y

10. LP01: Current Appeals and Results – 10 October 2017

Report of Matthew Pearce, Solicitor Attached is a list of current appeal matters as at 10 October 2017 for Council’s information. As at 10 October 2017, Council has incurred $ 351,439.05 on legal fees for the 2017 financial year and recovered legal costs in the amount of $ 115,510.33. The legal budget for 2017 financial year is $700,000. Recommending: 1. THAT the report be received.

A Motion was moved by Cr Baker, seconded by Cr Beregi

1. THAT the report be received, with the exception of the item in the table on page 26 regarding 8 Wonga Rd Cremorne.

Resolved to recommend 1. THAT the report be received, with the exception of the item in the table on page 26 regarding 8 Wonga Rd Cremorne.



Gibson Y Barbour Absent Beregi Y Drummond Absent Keen Absent Gunning Absent Brodie Y Mutton Y Carr Absent Baker Y

11. LP02: North Sydney CBD - Food Truck Trial

Report of Mark Yee, Strategic Planner On 20 February 2017, Council adopted the draft ‘North Sydney CBD Temporary Amenity Improvement Strategy’ (Strategy) and the accompanying ‘North Sydney CBD Mobile Food Vending Vehicles Trial Policy’ for exhibition. These policies were established to address the disruptions the North Sydney CBD (CBD) are experiencing as a result of substantial construction activity. A key outcome of this Strategy was that a food truck trial would occur within the CBD to address the significant reduction of the number of food premises. The trial approach has been proposed to establish and review the suitability and effectiveness of food trucks as an option to provide food and amenity improvements within the CBD. In consultation with Roads and Maritime Services (RMS), Council staff have worked to determine the most appropriate location for the food truck trial. On 24 July 2017, Council resolved that the trial was to occur on western part of Mount Street, subject to the design of 6 new parking bays to accommodate the trial and approval by Council’s Traffic Committee.




Following this report, Council moved into the design and informal consultation with RMS. After review of the parking bay design, RMS stated that they would not support this location due to concerns that the proposed parking bays may not meet some aspects of the relevant Australian Standards. It is therefore recommended that this location no longer be pursued. RMS have stated that they have no objection to the food truck trial occurring at the 3 existing parking spaces outside of the MLC Centre. This location would activate an area which offers good pedestrian amenity with the grassed area outside of the MLC Centre being highly utilised by people during lunch times. It is noted that there is a small number of food premises near this location on the ground level of the MLC Centre. However, given the loss of 19 or more food premises through the demolition of Tower Square, it is considered that Food Trucks in this location would not offer unreasonable competition. In addition, the North Sydney CBD Mobile Food Vending Vehicles Trial Policy’ requires that food trucks will not be permitted to operate within 50m of an existing takeaway food and drink premises that is serving the same or similar food types. There will be no financial implications arising from foregone parking meter revenue in order to facilitate the proposed three-month trial of mobile food vending vehicles. This is due to the three spaces under consideration being designated as a loading zone during the hours of 10am-6pm for which no metre charge is applicable. The proposed occupation of these spaces by food trucks between the hours of 10am-3pm will therefore not result in any foregone revenue. Recommending: 1. THAT Council supports the proposed location for the food truck trial on Miller Street, subject to approval by RMS via Council’s Traffic Committee. 2. THAT following approval of the proposed location by Council’s Traffic Committee, that a 3-month food truck trial commences at this location. 3. THAT exhibition of the North Sydney CBD Mobile Food Vending Vehicles Trial Policy occurs concurrently with the trial. 4. THAT community consultation for the trial and the accompanying North Sydney CBD Mobile Food Vending Vehicles Trial Policy be undertaken in accordance with the conditions outlined in the previous Council resolution from 20 February 2017. 5. THAT the outcomes of the food truck trial and the accompanying community consultation be reported back to Council to evaluate the success of the trial and determine whether to continue with the food truck program.

The Motion was moved by Cr Baker, seconded by Cr Beregi

Resolved to recommend 1. THAT Council supports the proposed location for the food truck trial on Miller Street, subject to approval by RMS via Council’s Traffic Committee. 2. THAT following approval of the proposed location by Council’s Traffic Committee, that a 3-month food truck trial commences at this location. 3. THAT exhibition of the North Sydney CBD Mobile Food Vending Vehicles Trial Policy occurs concurrently with the trial. 4. THAT community consultation for the trial and the accompanying North Sydney CBD Mobile Food Vending Vehicles Trial Policy be undertaken in accordance with the conditions outlined in the previous Council resolution from 20 February 2017. 5. THAT the outcomes of the food truck trial and the accompanying community consultation be reported back to Council to evaluate the success of the trial and determine whether to continue with the food truck program.






12. LP03: Preparation of Plans of Management for Tunks and Anderson Parks

Report of Mark Yee, Strategic Planner and Katerina Papas, Strategic Planner At its meetings on 21 March and 18 April 2016, Council resolved to prepare a Masterplan/ Plan of Management (PoM) for Tunks Park and Anderson Park, respectively. These resolutions arose from a significant level of community interest in the future use and management of both these parks. On 18 July 2016, Council resolved that a consultant team be appointed to undertake the preparation of both Plans. Tenders were called for in early 2017, and a rigorous negotiation process was subsequently undertaken with suitable tenderers to appoint a consultant. A consultant team has now been engaged to prepare both the Tunks Park and Anderson Park Masterplan/ PoMs. Environmental Partnership NSW Pty Ltd will lead a consultant team comprised of, but not limited to, highly experienced transport and traffic engineering, acoustic engineering, ecology and community engagement specialists (Straight Talk). Work is underway familiarising the consultants with each park, surrounding neighbourhood and issues. Comprehensive community and stakeholder consultations will be the basis for ensuring these projects are underpinned by broad based community and stakeholder input. A Community Engagement Strategy has been prepared by Straight Talk in consultation with Council (refer to Attachments 1 and 2). This strategy has been prepared in accordance with Council’s Community Engagement Protocol. The strategy involves 4 phases of consultation and includes a range of online and face-to-face engagement activities such as workshops, surveys, online discussion forums, polls and drop-in sessions within the parks. Phase 1 has commenced. This phase primarily involves making stakeholders aware of the commencement of the project and encouraging them to participate in future engagement opportunities. At this stage, it is envisaged that phase 2 (scoping and options development) activities will run between November - December 2017 and Phase 3 (options testing and preparation of Draft Masterplan/ PoM) activities will run between February - March to 2018. Funding of $150,000 has been allocated in the 2016/17 budget for the preparation of each Masterplan and Plan of Management. Recommending: 1. THAT Council note the commencement of the Masterplan/ Plans of Management for Tunks Park and Anderson Park. 2. THAT Council endorse the Community Engagement Strategy for the Tunks Park and Anderson Park Masterplan/ Plans of Management.

The Motion was moved by Cr Beregi, seconded by Cr Baker

Resolved to recommend 1. THAT Council note the commencement of the Masterplan/ Plans of Management for Tunks Park and Anderson Park.




2. THAT Council endorse the Community Engagement Strategy for the Tunks Park and Anderson Park Masterplan/ Plans of Management.




13. LP04: Finalisation of Design Excellence Panel Membership

Report of Yi Ho, Strategic Planner - Urban Design North Sydney Council encourages high quality urban design in the North Sydney local government area. This is achieved, in part, by seeking the independent advice of the Design Excellence Panel (DEP), established under North Sydney Council’s Design Panel Policy. The Design Excellence Panel Charter states the Design Excellence Panel will comprise six panel members. The Panel currently has 5 regular panel members. Ms Anita Morandini was appointed as a casual DEP panel member. This report seeks endorsement for the formalisation of Ms Morandini as a regular panellist of the DEP. Nil. Recommending: 1. THAT Council endorses the formal appointment of Ms Anita Morandini to the Design Excellence Panel for 2017-2019.

The Motion was moved by Cr Baker, seconded by Cr Beregi

Resolved to recommend 1. THAT Council endorses the formal appointment of Ms Anita Morandini to the Design Excellence Panel for 2017-2019.




14. LP05: Sydney North Planning Panel - Membership Nomination 2017-2018

Report of Vera Xia, Student Strategic Planner On 19 September 2016, Council considered a report regarding the nomination of members to the Joint Regional Planning Panel (JRPP) for the 2016-2017 period. Council resolved to renominate Councillors Reymond and Marchandeau to represent North Sydney Council on the JRPP, with Councillor Barbour nominated as the alternate member. On 21 November 2016, the two JRPPs were replaced by six (6) Sydney Planning Panels. North Sydney Council now forms part of the Sydney North Planning Panel.




The Sydney Planning Panels have the same functions as the previous JRPPs. They are responsible for: Determining regionally significant development applications within the Greater Sydney Region with a capital investment value more than $20 million; and Considering Rezoning Reviews, through which proponents can request a review if not supported by council, or if a council determination is not made within 90 days. On 31 October 2016, Council resolved to nominate its then JRPP nominees to the Sydney North Planning Panel. Council also resolved to review the Panel membership in 12 months’ time. Two (2) of Council’s local appointed members to the Sydney North Planning Panel were not re-elected during the 9 September 2017 Local Government elections, resulting in Council having insufficient local representatives on the Panel. This report seeks a decision regarding Council’s Planning Panel membership for the coming year in accordance with its resolution of 31 October 2016. It is recommended that Council endorses two Councillors as members on the Panel and an additional Councillor as an alternate, with their membership reviewed in 12 months’ time. Nil. Recommending: 1. THAT Council nominate two (2) Councillors with at least one (1) further Councillor nominated as an alternative to represent North Sydney Council on the Sydney North Planning Panel. 2. THAT the Panel membership be reviewed in 12 months’ time.

A Motion was moved by Cr Baker, seconded by Cr Beregi

1.THAT this matter be deferred for consideration at the next Council meeting

Resolved to recommend 1.THAT this matter be deferred for consideration at the next Council meeting




15. LP06: State Mandated Local Planning Panels

Report of Stephen Beattie, Manager Development Services At its meeting of 27 May 2013 Council considered a Notice of Motion No. 16/13 by Councillor Reymond and resolved: 1. THAT Council establish its own Independent Hearing and Assessment Panel (IHAP) for a trial period of 12 months with a character based on the guidelines recommended in the report to Council’s Planning and Development Committee meeting held on 5 November 2012. 2. THAT Council notify the Precinct Committees about the 12-month trial of the panel. The North Sydney Independent Planning Panel (NSIPP) was voluntarily established by Council and has been operating with much success for the past four years. Recently, gazetted legislation has made the utilisation of Independent Planning Panels compulsory for metropolitan Councils and Wollongong City Council. The panels have been established in such a way, that determination of Local Development Applications




can now only occur through either; the local planning panel, a regional planning panel or under officer delegation. There is now no provision for any application to be determined by the elected Council. This report explores the nature of the Legislative Changes and their implications for Council. This is addressed in detail in the report. Recommending: 1. THAT delegation be given to the General Manager to call for expressions of interest from residents to be Community Representatives on the future Local Planning Panel, and to appoint appropriate individuals with a representative and alternate for each ward. 2. THAT current delegations to officers be reviewed by the General Manager to align with the amended legislation and any subsequent practice directions.

A Motion was moved by Cr Baker, seconded by Cr Beregi 1. THAT delegation be given to the General Manager to call for expressions of interest from residents to be Community Representatives on the future Local Planning Panel, and to appoint appropriate individuals with a representative and alternate for each ward. 2. THAT current delegations to officers be reviewed by the General Manager to align with the amended legislation and any subsequent practice directions. 3.THAT Council not delegate a review of Planning Proposals to the State Government’s mandatory IHAP. 4.THAT Council write to Minister with a copy to neighbouring Councils and NSROC, requesting that amendments be made and adopted to the administrative arrangements for the operation of panels, as detailed in Council’s submission to the Department of Planning. 5.THAT a copy of this report and any subsequent correspondence be sent to to the Precinct Committees, with a briefing note. Resolved to recommend 1. THAT delegation be given to the General Manager to call for expressions of interest from residents to be Community Representatives on the future Local Planning Panel, and to appoint appropriate individuals with a representative and alternate for each ward. 2. THAT current delegations to officers be reviewed by the General Manager to align with the amended legislation and any subsequent practice directions. 3.THAT Council not delegate a review of Planning Proposals to the State Government’s mandatory IHAP. 4.THAT Council write to Minister with a copy to neighbouring Councils and NSROC, requesting that amendments be made and adopted to the administrative arrangements for the operation of panels, as detailed in Council’s submission to the Department of Planning. 5.THAT a copy of this report and any subsequent correspondence be sent to to the Precinct Committees, with a briefing note.






16. Matter of General Business

Councillor Baker raised the matter of the increase in complaints to Ward councillors about the proliferation of brush turkeys in the area. Councillor Baker requested that legal advice be obtained regarding Council’s role and ability to control this nuisance on public and private land. Cr Baker retired from the meeting at 8.18pm.The meeting lapsed for want of a quorum The remaining Councillors unanimously noted the balance of Item LP01, following the declaration of interest by Councillor Baker in 8 Wonga Rd Cremorne (table, page 26). The meeting closed at 8.19pm

____________________________ _______________________ CHAIRPERSON A/GENERAL MANAGER


Item LP01 Legal and Planning Committee 5/03/18 N O R T H S Y D N E Y C O U N C I L

Report to General Manager

Attachments: 1. Current Appeal Matters List - LEC

2. Current Appeal Matters List – Others 3. Local Court Matters List

SUBJECT: Current Appeals and Results – March 2018 AUTHOR: Matthew Pearce, General Counsel ENDORSED BY: Adrian Panuccio, Chief Operating Officer EXECUTIVE SUMMARY: Attached is a list of current appeal matters as at 23 February 2018 for Council’s information. As at 23 February 2018, Council has incurred $ 887,932 on legal fees for the 2018 financial year and recovered legal costs in the amount of $ 233,336. The legal budget for 2018 financial year is $1,300,000. RECOMMENDATION: 1. THAT the report be received.

Page 18

Report of Matthew Pearce, General Counsel Re: Current Appeals and Results – February 2018 (2)

LINK TO DELIVERY PROGRAM The relationship with the Delivery Program is as follows: Direction: 5. Our Civic Leadership Outcome: 5.3 Council is ethical, open, accountable and transparent in its decision making

BACKGROUND The Current Appeal and Results list was previously reported to the Legal and Planning Committee meeting of 16 October 2017. SUSTAINABILITY STATEMENT The sustainability implications were considered and reported during the assessment of each particular application.

DETAIL Council is aware that the defence of appeals lodged by applicants as well as the enforcement of compliance outcomes represents a major ongoing expense for Council. The attached list provides a summary of each current legal proceedings (including fees incurred) as at 23 February 2018.

Page 19

1

CURRENT MATTERS LIST – LAND & ENVIRONMENT COURT – Attachment1 As at 23 February 2018

Property DA No. Appeal No. Date of Appeal (DOA)

Applicant/ Other party Nature of Appeal Council Officer

responsible Status

Fees Estimate ($) Fees Billed ($) Disb. ($) Officer Recommendation Council decision

Result

Land and Environment Court Challenge to Council Amalgamations (No:2) LEC 358777/16 DOA: 06/01/17 MF

Delegate Minister and NSW Department of Premier and Cabinet

Class 4 proceedings in the Land and Environment Court seeking judicial review of Revised Report by Delegate

Matthew Pearce

Letters sent to Respondents seeking procedural fairness and raising apprehended bias concerning revised report by Delegate. Proceedings commenced on 28 November 2016 with return date of 3 February 2017. Respondents file a Notice of Motion seeking expedition. Expedition granted with hearing listed for 23 March 2017 and 29 March 2017 with joinder with Strathfield and Hunters Hill Councils merger litigation. Matter adjourned part heard and adjourned to 26 June 2017, 24 July 2017, 8 September 2017, 3 October 2017,10 November 2017 and 23 November 2017. Matter discontinued with each party bearing their own costs. Matter closed.

Fee Estimate: $50,000 Fees: $10,885.39

Discontinued by consent.

16-18 Illiliwa Street, Cremorne DA 460/16 LEC 70971/17 DOA: 07/03/17 HDO

Connoisseur Property Holdings Pty Ltd

Class 1 Appeal against a deemed refusal of an apartment building

George Youhanna

Council served with Class 1 Appeal. Listed for mention on 4 April 2017. Matter set down for s34 conciliation conference on 19 July 2017. Conciliation conference terminated and matter listed for mention on 9 August 2007. Listed for hearing on 5 & 6 December 2017. Applicant files motion seeking leave to rely upon amend plans and listed for 13 October 2017. Judgment reserved. Judgment on 4 January 2018 with appeal upheld. Matter closed.

Fee Estimate: $100,000 Fees: $91,556.28 Recommendation: NA Decision: Deemed Refusal

Appeal upheld with amendments to the proposal and conditions of consent. Council awarded s97B costs.

225 Miller Street North Sydney LEC 301331/16 DOA 10/10/16 In house with Council Solicitor

Karimbla Properties (No.7) Pty Limited (Meriton)

Class 3 Appeal to change rating categories of land

Sharon Mills

Class 3 Appeal commenced with matter listed for mention on 8 November 2016. Pre Trial Directions hearing on 20 March 2017. Hearing on 28 March 2017 to 30 March 2017 concurrently with Class 3 Appeals by City of Sydney and BaySide Councils. Judgment handed down upholding the Applicants change to rating category and refund of monies. Mention to finalise the Orders listed for 2 August 2017 with interlocutory hearing on 19 October 2017.Judgment reserved. Final judgment handed down on 25 January 2018 with Orders entered on 14 February 2018. Matter closed but subject to appeal.

Fee Estimate: $200,000 Fees: $41,800.00 Recommendation: N/A Decision: N/A

Judgment in favour of Applicant pending final orders. Further judgment on final orders. Council to pay Applicant $260,466.92 but undertaking to repay if successful on appeal.

Page 20

2



responsible Status


Result

80 Arthur Street North Sydney LEC 247263/17 DOA 14/08/17 In house with Council Solicitor


Class 3 Appeal to change rating categories of land

Sharon Mills

Class 3 Appeal commenced with matter listed for mention on 12 September 2017. Listed for conciliation conference on 9 November 2017. Conference terminated. Matter adjourned to 16 February 2018 and now to 20 April 2018.

Fee Estimate: $150,000 Fees: $12.210 Recommendation: N/A Decision: N/A

Pending but subject to outcome of Karimbla (No. 7) proceedings in Court of Appeal.

90-92 Willoughby Road, Crows Nest LEC 49523/18 DOA 14/02/18 H & H

Argus

Class 3 Appeal objecting against amount of compensation

Matthew Pearce

Council served with Class 3 with matter listed for mention on 16 March 2018.

Fee Estimate: TBA Fees: $ 0 Recommendation: N/A Decision: N/A

Pending

275 Alfred Street, North Sydney DA 40/17 LEC 108602/17 DOA 13/04/17 HWL

Legge Class 1 Appeal against a deemed refusal for signage.

David Hoy

Council served with Class 1 Appeal with matter listed for mention on 11 May 2017. Adjourned to 26 May 2016 for directions. Hearing has been vacated by motion. Matter relisted before the Registrar on 22 September 2017 and now 28 February 2018.


Pending

275 Alfred Street, North Sydney DA 163/16/3 LEC 258638/17 DOA 25/08/17 HWL

Legge (No 2) Class 1 Appeal against a deemed refusal to modify signage.

David Hoy

Council served with Class 1 Appeal with matter listed for mention on 22 September 2017. Listed for a s34 conciliation conference on 21 February 2018. Conciliation terminated and listed for mention on 28 February 2018.


Pending

24 Cranbrook Avenue, Cremorne DA 75/17 LEC 142730/17 DOA 17/05/17 MDK

Modog Pty Limited

Class 1 Appeal against a refusal of an 11 storey residential apartment building.

Luke Donovan

Council served with Class 1 Appeal with matter listed for mention on 9 June 2017. Matter listed for conciliation conference on 27 September 2017. Conciliation conference vacated by way of Motion. Matter relisted for mention on 4 October 2017. Listed for hearing on 28 & 29 March 2018.

Fee Estimate: $60,000 Fees: $34,502.60 Recommendation: Refusal Decision: Refusal

Pending

Page 21

3



responsible Status


Result

6 Thrupp Street, Neutral Bay DA 50/17 LEC 150988/17 DOA 24/05/17 H & W

Modog Pty Limited

Class 1 Appeal against a deemed refusal of the demolition and construction of a three storey residential apartment.

Luke Donovan

Council served with Class 1 Appeal with the matter listed for mention on 20 June 2017. Council files a Motion on question of law. Conciliation conference listed for 13 October 2017. Motion dismissed – question of fact to be determined at conference or hearing. Council ordered to pay Applicants cost of Motion. Conciliation conference terminated. Motion listed on 10 November 2017 with applicant seeking to rely upon amended plans but subject to s97B costs. Matter listed for hearing on 10 & 11 January 2018. Judgment reserved.


Pending. Section 97B costs awarded for and against Council to be agreed or assessed.

75-77 Shellcove Road, Neutral Bay DA 33/16 LEC 169815/17 DOA 13/06/17 MDK

Inspire Operations Pty Limited

Class 1 Appeal against a refusal of an afterschool and vacation care centre within church grounds.

Luke Donovan

Council served with Class 1 Appeal with matter listed for mention on 5 July 2017. Listed for conciliation conference on 17 October 2017. Conciliation conference terminated. Listed for hearing on 13 & 14 March 2018. Motion to seek leave to rely upon amended plans granted with s97B costs awarded to Council.


Pending. Section 97B costs of $10,000 and paid.

14,16,16A & 16B Thrupp Street, Neutral Bay. DA 177/17 LEC 262685/17 DOA 29/08/17 HWL

RebelMH Neutral Bay Pty Limited

Class 1 Appeal against a deemed refusal of a residential flat building.

Luke Donovan

Council served with Class 1 Appeal with matter listed for mention on 26 September 2017 Listed for conciliation conference on 2 February 2018. Conference terminated. Listed for hearing on 26 & 27 June 2018.


Pending

133 Carabella Avenue, Kirribilli LEC 196077/17 DOA 04/07/17 In house with Council Solicitor

Roberts Class 1 Appeal against an Order ceasing use of property.

Corey Myers

Council served with Class 1 appeal with matter listed for mention on 28 July 2017. Listed for a conciliation conference on 28 November 2017. Matter discontinued with consent issued for use. Each party to pay own costs. Matter closed.

Fee Estimate: $ 10,000 Fees: $0 Recommendation: N/A Decision: N/A

Discontinued

3 Baden Road, Kurraba Point DA 131/17 LEC 195867/17 DOA 05/07/17 In house with Council Solicitor

Wavish Class 1 Appeal against a deemed refusal of a new lightweight carport

Luke Donovan

Council served with Class 1 Appeal with matter listed for mention on 21 July 2017. Listed for hearing on 23 and 24 November 2017. However, agreement reached with reduction in bulk of dwelling and scale of carport. Listed for s34 Agreement on 10 November 2017.Parties entered into s34 Agreement. Matter closed.

Fee Estimate: $ 10,000 Fees: $0 Recommendation: Refusal Decision: Refusal

Section 34 Agreement with bulk of dwelling and scale of carport reduced.

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responsible Status


Result

7 King Street, Waverton DA 67/17 LEC 206667/17 DOA 07/07/17 In house with Council Solicitor

Mullaly

Class 1 Appeal against a refusal of alterations and additions to a residential house.

David Hoy

Council served with Class 1 Appeal with matter listed for mention on 28 July 2017. Listed for hearing on 14 & 15 November 2017. Motion to amend plans with leave granted and Applicant ordered to pay s97B costs. Parties enter into s34 Agreement. Matter closed.

Fee Estimate: $ 35,000 Fees: $26,848.40 Recommendation: Refusal Decision: Refusal

Section 34 Agreement with bulk and scale of dwelling reduced. Section 97B costs awarded in amount of $ 2,500.00 paid.

7-13 Parraween Street, Cremorne LEC 236519/17 DOA 03/08/17 H&W

Cook Class 1 Appeal against a Fire Order Long Huynh

Council served with Class 1 Appeal with matter listed for mention on 31 August 2017. Listed for s34 conciliation conference on 11 December 2017. Conciliation conference adjourned to 15 January 2018 but terminated. Matter listed for mention on 15 February 2018 and now 1 March 2018.


Pending

35 Myrtle Street, North Sydney DA 61/17 LEC 250690/17 DOA 21/08/17 In house with Council Solicitor

Modog Pty Limited

Class 1 Appeal against a deemed refusal of an adaptive reuse of an existing building.

George Youhanna

Council served with Class 1 Appeal with matter listed for mention on 14 September 2017. Listed for s34 conciliation conference on 19 February 2018. Conciliation terminated and matter listed for mention on 27 February 2018.


Pending

8 Wonga Road, Cremorne DA 252/09/8 LEC 288351/17 DOA 22/09/17 MF

Tisch

Class 1 Appeal against a deemed refusal to modify consent to a residential building.

Kim Rothe

Council served with Class 1 Appeal with matter listed for mention on 17 October 2017. Listed for conciliation conference and hearing on 22 January 2018. Section 34 Agreement between parties. Matter closed.


Section 34 Agreement with amendments and conditions.

317 Pacific Highway, Cremorne DA 421/16/2 LEC 292653/17 DOA 27/09/17 HDO

Modog

Class 1 Appeal against a refusal to modify consent for the proposed relocation of banners to the side of the building,

Aloma Moriarty

Council served with Class 1 Appeal with matter listed for mention on 26 October 2017. Listed for conciliation conference on 4 December 2017. Conciliation conference adjourned to 21 December 2017 with Section 34 Agreement. Matter closed.

Fee Estimate: $10,000 Fees: $17,270.39 Recommendation: N/A Decision: Rejected by DRP

Section 34 Agreement

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responsible Status


Result

37-39 Murdoch Street, Cremorne DA 221/16 LEC 294857/17 DOA 29/09/17 SH

Active Kids Pre School Centre of Excellence Pty Ltd t/as Active Kids Group

Class 1 Appeal against the refusal of alterations and additions to an existing dwelling, and the increase in capacity of a child care centre.

Kim Rothe Council served with Class 1 Appeal with matter listed for mention on 31 October 2017. Listed for a conciliation conference on 23 March 2018

Fee Estimate: $35,000 Fees: $26,705.17 Recommendation: N/A Decision: Delegated Refused

Pending

19 Waverton Avenue, Waverton DA 297/16 LEC 324035/17 DOA 26/10/17 H&W

Wen Li Wang

Class 1 Appeal against the refusal of alterations and additions to an existing dwelling and construction of a swimming pool.

George Youhanna

Council served with Class 1 Appeal with matter listed for mention on 16 November 2017. Listed for s34AA conciliation and hearing on 26 & 27 April 2018.

Fee Estimate: $6,000 Fees: $0 Recommendation: Refusal Decision: Refusal

Pending

55 Lavender Street, Milsons Point DA 92/05/5 LEC 337865/17 DOA 08/11/17 SH

First Neon (Lavender St) Pty Ltd

Class 1 Appeal against a deemed refusal of a s96 modification to a time limit condition of consent for Signage.

Susanna Cheng Council served with Class 1 Appeal with matter listed for mention on 6 December 2017. Listed for conciliation conference on 2 May 2018.


Pending

40 Brightmore Street, Cremorne DA 333/17 LEC 345473/17 DOA 13/11/17 MF

Modog Class 1 Appeal against a refusal of proposed residential flat building.

George Youhanna

Council served with Class 1 Appeal with matter listed for mention on 13 December 2017. Listed for conciliation conference on 4 May 2018 and hearing on 7 and 8 June 2018.


Pending

26 Cremorne Road, Cremorne DA 205/15/2 LEC 338919/17 DOA 23/11/17 In house with Council Solicitor

Mosman Finance No.5 Pty Limited

Class 1 appeal against a deemed refusal of a modification to an application for additions and alterations to a residential flat building.

George Youhanna

Council served with Class 1 Appeal with matter listed on 20 December 2017. Listed for conciliation conference on 8 June 2018.

Fee Estimate: $25,000 Fees: $0 Recommendation: N/A Decision: N/A

Pending

84-90 Atchison Street, Crows Nest DA 413/16 LEC 363831/17 DOA 01/12/17 MDK

86 Dunning Avenue Pty Limited

Class 1 Appeal against a refusal of demolition and construction of a residential flat building.

George Youhanna

Council served with Class 1 Appeal with matter listed for mention on 24 January 2018. Matter listed for conciliation conference on 1 June 2018.


Pending

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responsible Status


Result

34 East Crescent Street, McMahons Point DA 408/14/4 LEC 387950/17 DOA 27/12/17 In house with Council Solicitor

Highbury Group Pty Ltd

Class 1 Appeal in respect of a s96 (8) modification seeking roof top terrace.

Susanna Cheng Council served with Class 1 Appeal with matter listed for mention on 14 February 2018. Matter listed for conciliation conference on 3 July 2018.


Pending

1 Lower Bent Street, Neutral Bay DA 404/17 LEC 19113/18 DOA 24/01/18 In house with Council Solicitor

Rebel MH Bent Pty Ltd

Class 1 Appeal in respect of a deemed refusal of a multi dwelling housing structure.

Lindsay Dey Council served with Class 1 Appeal with matter listed for mention on 21 February 2018. Matter listed for conciliation conference on 20 July 2018.


Pending

36 Ellalong Road, Cremorne DA 2/17/3 LEC 19029/18 DOA 24/01/18 HDO

Wiesener

Class 1 Appeal in respect of a deemed refusal of a modification application for alterations and additions to a dwelling.

Luke Donovan

Council served with Class 1 Appeal with matter listed for mention on 20 February 2018. Matter listed for conciliation conference and hearing on 6 and 9 July 2018.

Fee Estimate: TBA Fees: $0 Recommendation: N/A Decision: N/A

Pending

6 The Boulevarde, Cammeray DA 392/17 LEC 40927/18 DOA 09/02/18 H&W

Platino Properties Pty Limited

Class 1 in respect of a demolition of existing dwelling and construction of a four level duplex.

Lindsay Dey Council served with Class 1 Appeal with matter listed for mention on 28 February 2018.

Fee Estimate: TBA Fees: $0 Recommendation: N/A Decision: N/A

Pending

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7

CURRENT MATTERS LIST – OTHER (SUPREME COURT/DISTRICT COURT) – Attachment 2 As at 23 February 2018



responsible Status


Result

53 Brightmore Street, Cremorne Supreme Court SC 371758/16 DOA: 12/12/16 SH

Caroline Spring

Supreme Court seeking orders for easement on Council Community Land

Matthew Pearce

Summons served on Council seeking s88K easement on community land. Matter listed for mention on 10 February 2017, 3 March 2017, 2 June 2017, 21 July 2017, 8 September 2017 and now adjourned to 3 November 2017.Parties have filed and served evidence. Matter to be set down for hearing on 7,8 and 9 May 2018.


Pending

Supreme Court of NSW Court of Appeal Challenge to Council Amalgamations SC 305665/16 DOA: 19/10/16 MF


Appeal against part of decision of Land and Environment Court judgment pursuant to s58 of Land and Environment Court Act 1979

Matthew Pearce

Council files a Notice of Intention to Appeal on 19 October 2016 to reserve the right to formally Appeal to 19 December 2016. Council files Notice of Appeal and matter to be concurrently heard with Mosman Council’s appeal. Notice of Motion seeking joinder of Strathfield and Hunters Hill merger litigation listed for 13 February 2017. Strathfield and Hunters Hill joined with appeals listed for 3,4,5 and 6 April 2017. Judgment handed down on 31 July 2017. However, motion filed to seek review of Court orders. Listed for mention on 21 August 2017. Timetable set down for written submissions with matter listed for further mention on 25 September 2017. Judgment listed for 12 October 2017.Judgment with Notice of Motion dismissed. Matter closed.


Appeal dismissed with costs ordered against Council.

Supreme Court of NSW Costs Assessment of Land and Environment Court Challenge DOA: 01/03/17 MF


Supreme Court Costs Assessment Application

Matthew Pearce

Supreme Court Costs Assessment Application served on Costs Respondents on 1 March 2017. Costs Respondents fails to respond to the Application. Application filed in Court seeking costs of $500,000. The Court has now appointed a Costs Assessor to determine the Application. Costs Assessment currently being undertaken by Assessor. Costs Assessment completed with a certificate as to costs issued in the amount of $ 411,379.79. Minister appeals costs assessment.

Fee Estimate: $ 60,000 Fees: $12,680.25

Costs assessed and determined at $ 411,379.79, but subject to appeal review.

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responsible Status


Result

225 Miller Street North Sydney Appeal LEC 301331/16 DOA 26/07/17 In house with Council Solicitor


Notice of Appeal against Land & Environment judgment

Matthew Pearce

Notice of Intention to Appeal filed and served on 26 July 2017. Matter closed.


Finalised as to the Council’s intention to appeal.

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9

LOCAL COURT MATTERS LIST – Attachment 3 As at 23 February 2018



responsible Status


Result

Local Court Matter Shop 1 Ground Floor 2 Eden Street, North Sydney SG

Choi trading as “North Sydney Massage”

Local Court prosecution in respect of an unauthorised brothel

Brett Mania

Court Attendance Notice issued. Listed for mention on 10 July 2017 and now on 24 July 2017. Matter listed for a defendant hearing on 28 August 2017, but adjourned with defendant ordered to pay costs of $2,500. Matter now listed for hearing on 23 November 2017. Plea of Guilty. Sentenced and convicted. Matter closed.


Convicted and fined $5,000 and ordered to pay costs of $5,000.

Local Court Matter 319-321 Pacific Highway, North Sydney DA 156/15 DOA: 31/05/17 In house with Council Solicitor

Pindan Capital Eden Lane North Sydney Pty Limited

Local Court prosecution in respect breaches of consent

Corey Myers

Court Attendance Notices issued. Listed for mention on 28 August 2017. Defendant enters “not guilty” plea with matter listed for further mention on 16 October 2017. Brief Served. Further adjournment to 13 November 2017. Prosecution withdrawn. Matter closed.

Fee Estimate: $10,000 Fees: $186

Prosecution withdrawn.

Local Court Matter 255-265 Miller Street, North Sydney DA 431/16 SSD: 6952 In house with Council Solicitor

Kane Constructions Pty Limited

Local Court prosecution in respect breaches of condition

Shane Thomas

Court election PIN. Listed for mention on 4 September 2017. Defendant requests particulars of the offence with matter listed for further mention on 16 October 2017. Fined and convicted $ 6,000 and ordered to pay costs of $800. Matter closed.


Convicted and fined $6,000 and ordered to pay costs of $800.00.

Local Court Matter 255-265 Miller Street, North Sydney DA 431/16 SSD: 6952 In house with Council Solicitor

Kane Constructions Pty Limited

Local Court prosecution in respect breaches of condition

Shane Thomas

Court election PIN. Listed for mention on 16 October 2017. Defendant requests particulars of the offence. Fined and convicted $7,500 and ordered to pay costs of $1,000.00 Matter closed.


Convicted and fined $7,500 and ordered to pay costs of $1,000.00

Local Court Matter 17 Grosvenor Street, Neutral Bay DOA: 19/09/17 In house with Council Solicitor

Wild Basket Neutral Bay Pty Limited.

Local Court prosecution in respect of a breach of conditions of consent

Brett Maina

Court election PIN. Listed for mention on 19 September 2017. Adjourned to 23 October 2017 for plea/mention. Not guilty plea entered. Matter listed for hearing on 8 February 2018. Matter now withdrawn. Matter closed.


Prosecution withdrawn.

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responsible Status


Result

Local Court Matter 16 Wilson Street, Cammeray DOA: 31/10/17 In house with Council Solicitor

Murad

Local Court prosecution in respect of noncompliance with consent.

Robinson Toro

Court election PIN. Listed for mention on 31 October 2017, 12 December 2017,18 December 2017 and now 26 February 2018. Guilty plea entered. Listed for sentencing.


Pending.

Local Court Matter Shop 6, 38-46 Albany Street, St Leonards Annulment Application In house with Council Solicitor

Lam Local Court Annulment in respect of conviction and fine.

Brett Maina Court Annulment Application. Listed for 21 November 2017. Granted and defendant convicted, sentenced and fined. Matter closed.


Convicted and fined $ 4,000 and ordered to pay costs of $750.00

Local Court Matter Shop 27, 332-346 Military Road, Cremorne DOA: 20/11/17 In house with Council Solicitor

Konishi Trading as Kibune Japanese Restaurant

Local Court Prosecution in respect of breaches of Food Act.

Gareth Munro

Court Attendance Notices issued (x2). Matter listed for mention/plea on 18 December 2017.Guilty plea entered and convicted, sentenced and fined. Matter Closed.

Fee Estimate: $5,000 Fees: $186.00

Convicted and fined $ 3,000 and ordered to pay costs of $750.00

Page 29

Item LP02 Legal and Planning Committee 5/03/18

N O R T H S Y D N E Y C O U N C I L R E P O R T S

Report to General Manager Attachments:

1. Curtilage Map -State Heritage Nomination - 1 Walker Street, Lavender Bay

SUBJECT: State Heritage Nomination for ‘Brett Whiteley House and Visual Curtilage’ AUTHOR: Lucinda Varley, Conservation Planner ENDORSED BY: Joseph Hill, Director City Strategy EXECUTIVE SUMMARY: Council submitted a nomination to the Heritage Division of the NSW Department of Environment & Heritage, for the state heritage listing of Brett Whiteley’s House and Studio located at 1 Walker St, Lavender Bay on 13 March 2014. This application included a visual curtilage covering Wendy Whiteley’s Secret Garden, Clark Park, Quibaree Park, land owned by Crown Lands, the State of NSW, Rail Corp and Roads & Maritime Services as well as the waters of Lavender Bay. It is anticipated that an announcement regarding the state heritage listing will be made by the Minister during February/March 2018. FINANCIAL IMPLICATIONS: Nil. RECOMMENDATION: 1. THAT the report be received.

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Report of Lucinda Varley, Conservation Planner Re: State Heritage Nomination for ‘Brett Whiteley House and Visual Curtilage’

(2)

LINK TO COMMUNITY STRATEGIC PLAN The relationship with the Community Strategic Plan is as follows: Direction: 2. Our Built Environment Outcome: 2.1 Infrastructure, assets and facilities that meet community needs 2.4 North Sydney's heritage is preserved and valued

BACKGROUND At North Sydney Council’s Meeting No 3349, held on 19 April 2004, Council resolved: THAT Council nominate the property (1 Walker Street, Lavender Bay) and its extended curtilage for listing under the NSW Heritage Division Register of Heritage Items to ensure its future conservation.’ An application prepared by Council’s planning consultant Kim Ketelbey in September 2005 lapsed as it did not meet the former requirements for State Listing. A second nomination was made in March 2014 after the requirements for State Listing were amended by the Heritage Division with support of the property owner, Ms Wendy Whiteley. The application has subsequently been assessed by the Heritage Division, including the undertaking of community consultation with stakeholders. CONSULTATION REQUIREMENTS Community engagement is not required. Community engagement has been undertaken by the NSW Heritage Division. SUSTAINABILITY STATEMENT The sustainability implications are of a minor nature and did not warrant a detailed assessment. DETAIL The property No 1 Walker Street, Lavender Bay was a source of inspiration for internationally acclaimed artist Brett Whiteley. The unique Federation era dwelling, its views and harbourside setting were a constant feature in many of his award-winning artworks including The Balcony 2 (1975), Interior with Time Past (1976) and Jacaranda Tree (1977). The property is comparable in significance to other State-listed properties associated with Norman Lindsay (The Norman Lindsay Gallery & Museum, Faulconbridge) and May Gibbs (Nutcote, Neutral Bay). In a manner similar to the work of Norman Lindsay and May Gibbs, Brett Whiteley is considered to have influenced an evolving national Australian identity, altering our own perception of the Australian landscape of Sydney Harbour, its bays and peninsulas with the blend of exotic

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plantings and rugged bushland. His accolades include two Archibald Prizes, two Wynne Prizes and the Sir John Sulman Prize. Much of his famous and award-winning artwork was painted in the studio at 1Walker Street and included abstractions of the house and its Lavender Bay setting. The property is further enhanced and reinforced by the adjacent public garden subsequently created by Wendy Whiteley, known as “Wendy Whiteley’s Secret Garden”. After the failure of the 2005 nomination application, Council’s Conservation Planner and the Director of Open Space & Environmental Services undertook consultation with the NSW Heritage Division, Rail Corp and Wendy Whiteley. The Conservation Planner prepared and submitted a second nomination for State Heritage Listing in March 2014 which included a visual curtilage including Wendy Whiteley’s Secret Garden, Clark Park, Quibaree Park as well as land owned by Crown Lands, State of NSW, Rail Corp and Roads & Maritime Services. The application was considered unusual by the Heritage Division as the listing included a large visual curtilage defined by a body of artwork that extended over many properties and the waters of Lavender Bay. (See Attachment 1) Upon receipt of the nomination, the NSW Heritage Division undertook further negotiations with affected land owners, including Wendy Whiteley, Rail Corp and the railway operators Transport for NSW. The application was stalled by ongoing concerns from Rail Corp due to the possible loss of development potential for their properties and from Transport for NSW due to concerns about adverse impacts to railways operations. The NSW Heritage Division has since resolved the issues raised by affected land owners. Site specific exemptions have been developed that allow for the ongoing functioning and day-to-day efficient management of the properties without the requirement for a development application. This is consistent with other state-listed properties with complex infrastructure and multiple properties such as Central Railway Station. A presentation of the nomination was made by Wendy Whiteley to the NSW Heritage Council on 1 April 2015 with the Heritage Council resolving to engage a consultant, Geoffrey Britton, to review the heritage nomination involving No. 1 Walker Street and further define the view catchment. This further report prepared by the NSW Heritage Division was submitted to the Heritage Listings Committee on 4 October 2017 supporting the state nomination. Correspondence received at Council on 17 January 2018 has advised that the State Heritage nomination for ‘Brett Whiteley House and Visual Curtilage’ has since progressed to the NSW Minister for Heritage for signing. Whilst Council has no influence as to the timing of the announcement, the Heritage Division has verbally advised that it is nevertheless likely to occur sometime in either February or March 2018. Councillors will be advised of further action through the Councillor Bulletin.

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ATTACHMENT 1 Curtilage Map for the State Heritage Nomination of 1 Walker Street, Lavender Bay

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Documents

NORTH SYDNEY COUNCIL · 2018. 3. 1. · Whiteley’s House and Studio located at 1 Walker St, Lavender Bay on 13 March 2014. This application included a visual curtilage covering