Submission to Sydney Harbour Federation Trust
10 December 2013
by Linda Bergin OAM
Reproduced with permission
Re: Comment on 1. Draft Management Plan and 2. Proposed Development
This is a submission on the Draft Management Plan for Middle Head Precinct (Amendment 1) and the Proposed Development – Residential Care Facility, which the Sydney Harbour Federation Trust has posted for public comment.
I am the Coordinator of “Save Middle Head” (www.savemiddlehead.org), which is a group of concerned citizens who oppose the Proposed Development and the associated Management Plan Amendments. I was one the founders of the Headland Preservation Group, Inc., which was formed in 1996 to oppose the sale of surplus Defence land on Sydney Harbour.
The Howard Government established the Sydney Harbour Federation Trust in 1998 to convert this land into a national park for all Australians saying “... that the maximum advantage be derived in open space and recreational purposes...” These same sentiments are found in the preamble to the SHFT Act, which states: “The Parliament intends to conserve and preserve the land in the Sydney Harbour regions for the benefit of present and future generations of Australians...Suitable land with significant environmental and heritage values will be returned to the people of Australia.”
I object in the strongest possible terms to the present proposal, which is totally contrary to the vision of former Prime Minister Howard and the Objects of the Sydney Harbour Federation Trust Act.
The scale, form and type of development are exactly what the Trust was set up to prevent.
I would respectfully ask the Trust and the Minister to
- Not approve the present aged-care proposal or a scaled-down version.
- Establish a new fully-open and transparent process to consider the fate of the sensitive “10 Terminal” site.
- Fully involve the community in this new process, including the establishment of a special purpose “10 Terminal” community consultative committee.
Residential occupation of public land
Sensitive commercial uses presently on Trust land are not seen as proprietorial, i.e. they are not full-time users operating 24/7. All present uses align with the Objects of the Trust. However, a full-time residential care facility would be seen as “squatting” on public land and asserting proprietorial rights over what is regarded as belonging to the community as a whole. A 25-year lease would reinforce that perception.
This residential accommodation would be used by people towards the end of their lives. The residents would be expected to pay bonds in excess of $550,000 to be able to reside in the proposed development. We could safely say that there would be considerable pressure placed on the Trust at the end of the 25-year lease to extend the term of that lease because of the impact of moving vulnerable, elderly people from their accommodation, and the scale of the investment (over $30 million) by the developer. Therefore this proposal is clearly inappropriate on public land.
There is no genuine public element in a residential aged-care use.
Scale and Form
The size of the development “site” is large, between 30,000 and 40,000 SM, or 7 ½ to 10 acres (not 11,000 SM as stated by the proponent). The development essentially covers this entire area, when you include the increased footprints, the enclosed gardens, and the parking lots.
It is located on the ridgeline, and will be visible from Sydney Harbour.
This is large-scale new development not adaptive-reuse of built heritage. Presently the only buildings on the site with significant heritage value are the red-brick “10 Terminal” complex.
The proposed development aims to replace and expand non-heritage buildings and parking lots. Therefore this is in fact a LOSS of potential open space. There would be an increase in gross floor area from approximately 4,200 SM to 7,500 SM, the vast majority being new floor space. The application also includes 122 car spaces. The cost of the works is over $30 million.
Some demolition and adaptation of existing buildings has occurred in the past, but there has been nothing on Middle Head of the scale of the proposed development. That the proposed development would restrict access to the existing buildings is not the issue – that is often to be expected with many types of adaptive reuse and lease of buildings that are otherwise considered to be acceptable. What is different about this proposal is that extensive new buildings are to be constructed over land that could become open space. Also, the landscaped areas around those buildings will not be accessible open space. Therefore there is a loss of potential public open space.
Public Consultation
On June 18, 2013 the Trust Board resolved to proceed with the Middle Head Healthcare Pty Ltd proposal, and we assume the proponent started the detailed planning process at that time. The proponent Teelia Peploe states that they first approached the Trust in early 2012; however Middle Head Healthcare was not incorporated at that time.
The proposal was also mentioned mid-2013 (no Minutes appear to be available) at a meeting of the Community Advisory Committee, which we understand included around 20 persons from that Committee. However we are told that it was brief and at the end of a 2 hour meeting relating mostly to North Head and Cockatoo Island.
The vast majority of the local public were not aware whatsoever of this proposal until November 14 by way of a news story in the Mosman Daily. Although the Trust had previously placed a relatively small ad in the Mosman Daily on October 31, this was not generally seen (page 34 in Lifestyle section). Deadline for submissions was December 4.
Sometime in the first week of November the Trust letterboxed residents closest to Middle Head about the upcoming Trust Information Session. However I am not sure how many.
It was primarily because of the publicity provided by the Save Middle Head group that around 160 people attended the Trust’s Information Session on November 26 and the proposal became more widely known.
The deadline for submissions was extended to December 11.
Another public meeting by our group Save Middle Head was held on December 5 and attended by well over 100 people.
The proposal is very complex and the plans, while completely available on the Trust’s website, would be hard going for most people.
Legal
I have sought legal opinion from Jennifer Hughes, Partner, Baker & McKenzie. Summarised from that opinion as follows:
2.2 In our opinion, the Draft Amendment and the Development Application are both inconsistent with the objects of the SHFT Act and the objects of the Sydney Harbour Federation Trust ('Trust') and the Trust would not be acting in accordance with its functions if it were to make the Draft Amendment or approve the Development Application.
2.3 Further, the Development Application is not consistent with the Sydney Harbour Federation Trust Comprehensive Plan ('Comprehensive Plan'). Nor is it consistent with the Sydney Harbour Federation Trust Management Plan - Mosman No. 7 - Middle Head ('Middle Head Management Plan'), even if that plan were to be amended by the Draft Amendment.
2.4 As a result, it is our opinion that:
(a) the Trust does not have the power to make the Draft Amendment or to approve the Development Application;
(b) the Trust would be acting ultra vires if it were to make the Draft Amendment or to approve the Development Application; and
(c) any such decision of the Trust would be appealable in Court.
2.5 It is also our opinion that the Minister must approve the proposed activity under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') before the activity may commence.
Yours truly,
Linda Bergin OAM (0498-744-299)
Coordinator, Save Middle Head
www.savemiddlehead.org
savemiddlehead@gmail.com