Previous opportunistic DAs that tried to use LEP Clause 2.8 ‘Temporary Use of Land’ to get approval for prohibited function centres in RU1 zones were refused after the Forum advised Council of the Marshall Land & Environment Court case that ruled there must be an absence of adverse impact on the amenity of the neighbourhood.
But planners are now utilising Clause 5.10(10) ‘Conservation Incentives’.
This clause permits development that is otherwise prohibited, if it will make possible the conservation of a heritage item on the relevant land.
The clause is intended to assist owners of properties with heritage items, who cannot afford the costs of conservation, by allowing them to create an income stream from a prohibited use. Use of the clause requires a Conservation Management Plan and proof of the economic necessity of the prohibited use to enable restoration of the heritage item.
The proposed development must not adversely affect the heritage significance of the heritage item, including its setting and must not have any significant adverse effect on the amenity of the surrounding area.
Current DAs Using Clause 5.10(10)
The Committee has been contacted by a significant number of property owners who are very concerned about what they believe to be misuse of the Clause.
Two similar applications have been made for prohibited wedding/function event facilities – on 7 August DA20/1779 was lodged for 1180 Bolong Rd, and on 10 November DA20/2172 was lodged for 8 Homestead Lane.
Mananga, 8 Homestead Lane
The application is for use of the shed & silo as a function centre to be used fifty times a year from 10am until 11pm. It will cater for 100 guests who will travel by mini-bus (no onsite parking). The application states –
- Use of the site as a place for public events is essential to its survival.
- The owners are compelled to introduce commercial activities (to fund) the cost of running and maintaining the estate – $145,000 pa.
- The income stream will be used for the ongoing conservation of the residence and grounds.
However, the applicant’s Heritage report states – “No specific conservation work is required. The maintenance required to Mananga is consistent with the care necessary for any residence, but particularly a building of this age”
The $145,000 pa ongoing costs include gardening, lawn mowing, hedge trimming, tree pruning, painting, roof & gutter cleaning and silo maintenance.
There is also no mention of the tourist accommodation commercial activity under construction that, based on similar properties in the area, is likely to provide an income stream in the region of $300,000 pa (at 60% occupancy).
See submission from residents’ planner and from Berry Historical Society.
1180 Bolong Road
The application is for use of the old school building and a marquee as a function centre to operate Wednesdays to Sundays from 9am to 11pm. It will cater for 80-120 guests, who will travel by bus as there are only ten parking spaces.
No conservation works have been itemised within the heritage management document and contradictory advice is given: ‘no restoration or reconstruction works are proposed’; ‘a schedule of conservation works will be implemented’.
An income stream is provided through use of the old schoolmaster’s residence for tourist accommodation.
Forum Committee Concerns
Given the high bar that set by the Court in the Marshall case, the Committee believes that Council must strongly challenge the economic necessity of any development application purporting to require conservation incentives.
Income generated by a commercial activity must be commensurate with the genuine ongoing cost of conservation. If the income obtained from the prohibited land use is greatly in excess of conservation costs, an application must be refused. This is also the case where there are no genuine conservation costs that relate to the heritage items.
Objections to Mananga DA