ABC Planning v Sydney City Council

[2007] NSWLEC 631

Land and Environment Court

of New South Wales

CITATION:	ABC Planning v Sydney City Council [2007] NSWLEC 631
PARTIES:	Applicant: ABC Planning Pty Ltd Respondent: Sydney City Council
FILE NUMBER(S):	10515 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- innovative architecture in a heritage environment
DATES OF HEARING:	24/09/2007 and 25/09/2007
DATE OF JUDGMENT:	2 October 2007
LEGAL REPRESENTATIVES:	Applicant: Ms Sandra Duggan, barrister instructed by Mr V Conomos, solicitor of Pike Pike & Fenwick Respondent: Mr S Kondilios, solicitor of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

2 October 2007

10515 of 2007 ABC Planning Pty Ltd v Sydney City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application for renovations and extensions to an existing eight-storey building at 529-531 Elizabeth Street, Surry Hills.

The site and the existing building

2 The site is on the western side of Elizabeth Street between Belvoir and Bedford Streets. The portion of land owned by the applicant is lot DP 126870, which has an area of 291m2. The portion of the land owned by the council is lot 10 DP 833333, which has an area of 88m2. The site is within the Cleveland Gardens Heritage Conservation Area (CA13), of which the boundary runs along the centre of Elizabeth Street. It is also within the Elizabeth Street Heritage Streetscape (HS5).

3 The rear of the site faces Little Buckingham Street. Vehicular access is from the rear. Located on the applicant’s land (Ie lot 1) is an eight-storey building, built in the 1960s, with basement parking. A roof top café was approved in 1994. At the front of the building, located on the council’s land, is a partially enclosed courtyard area. The lease for that space permitted use of the courtyard and associated structure for the purposes of the Building Information Centre, which was a former tenant of the building. The lease has now expired.

4 The building immediately to the north is two to three-storeys. It was also used by the Building Information Centre. The three-storey section is in line with the eight-storey element of the building on the subject site. To the south are two two-storey terrace buildings identified as contributory buildings. Further to the north of the site are several taller and more recent buildings; all of them rated as detracting buildings. The building on the subject site is also rated as detracting in the South Sydney Council Conservation Areas Review 2002.

5 The surrounding area contains a range of different commercial and residential uses. The streetscape of Elizabeth Street is varied and includes Victorian, inter-War and post-War residential, commercial and industrial buildings whose heights vary from single-storey to eight storeys (the subject building and 507-515 Elizabeth Street). The predominant materials are masonry, rendered or face brick. On the western side, several buildings are set back about 6m from the street alignment, others are built to the road alignment and yet others are built to a setback in between.

The proposal and its history

6 The applicant proposes to renovate and extend the existing building. There are four distinct elements of the proposal:

• a new two-storey high but single-storey section on the council’s land in front of the existing eight-storey building;
• new 2m wide balconies to the Elizabeth Street front;
• a prismatic glass curtain wall outside the balconies to the Elizabeth Street front; and
• extension and enclosure of the roof café.

7 The proposal does not change the outside on the southern, western and northern façade, apart from some painting.

8 The applicant lodged the application in March 2007. Following notification, the council received two objections from neighbours in Little Buckingham Street. At the site view, one of the objectors, Mrs Gaye Collett, said that her main concern were the existing noisy air conditioners and the frequency of garbage collection. The applicant assured Mrs Collett that the air conditioners would be moved. The matter of garbage collection would be dealt with, if the proposal were approved, in the conditions of consent.

9 The council has not determined the application, though it has advised the applicant that it will not give owner’s consent in respect of the council’s land. In the circumstances the council cannot determine the application.

Relevant planning controls and policies

10 The South Sydney Local Environmental Plan 1998 (LEP 98) zones the site Zone 10 Mixed Use Zone. Relevantly, the LEP defines gross floor area as excluding balconies.

11 The City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP) applies to heritage conservation areas heritage streetscapes. It provides guidelines for assessing applications in those areas.

12 The South Sydney Development Control Plan 1997 Urban Design Plan (the Urban Design DCP) applies. It also contains guidelines for assessing applications.

Matters in contention

13 The council submitted its Statement of Contentions containing seven matters. I paraphrase the salient matters as follows:

• The existing building is a detracting item in the heritage conservation area; the proposal increases, rather than reduces its detracting attributes.
• The two-storey element on the council’s land should be deleted and the building should be set back 6.5m from the street alignment (ie to the line of the existing building).
• The proposal increases the FSR of the existing building, which is already much higher than the permissible.
• The proposal’s height and bulk are excessive and do not fit into the context.
• The impact on the Cleveland Gardens Heritage Conservation Area and the Elizabeth Street Streetscape is unacceptable.

14 It is useful to consider the above contentions for each of the four major elements of the proposal as identified above, namely

• a new two-storey section on the council’s land in front of the existing eight-storey building;
• new balconies to the Elizabeth Street front;
• a prismatic glass curtain wall outside the balconies to the Elizabeth Street front; and
• extension and enclosure of the roof café.

15 I note that in oral evidence and submissions little emphasis was placed on the last element, the extension and enclosure of the roof café. This suggests that the enclosure of the roof café is not a major issue for the council.

The experts

16 The experts in this case were:

• For the council: Mr Anthony Smith, a heritage and urban design architect, and Ms Claire Elek, a town planner, both in the employment of the council.
• For the applicant: Mr Ian Stapleton, a heritage architect; Mr Rohan Dickson, an urban design architect; and Mr Anthony Betros, a town-planning consultant. Mr Julian Benchley, an architect and the designer of the proposal provided explanation, though not opinion evidence.
The retail element on council’s land
The evidence

17 There is currently a partially enclosed area in front of the existing six-storey building that is referred to as a courtyard. The enclosure is wholly on the council’s land. The application proposes a two-storey high retail element on this land, though with only one floor level at the ground. As mentioned above, the council has refused owner’s consent to the application. The application is therefore not valid unless the Court steps into the council’s shoes pursuant to s39(2) of the Land and Environment Court Act 1979 and gives owner’s consent.

18 It was common ground between the parties that the Court has the power to grant owner’s consent and that it must do so in order to assess the application. Without assessing the application the Court cannot come to a reasoned decision, so it is imperative that it grant owner’s consent. However, the granting of owner’s consent does not indicate that the use of the council’s land is appropriate. It is merely a necessary step to assessing whether it is appropriate.

19 The council’s ownership of the land is a result of a proposal, dating back more than half a century, for widening the carriageway of Elizabeth Street. The proposal has neither been implemented nor formally abandoned. However, I take judicial notice of the fact that fifty years is a long time for not implementing a street widening project. Moreover, the widening of carriageways through the inner suburbs no longer reflects contemporary planning thought. It is therefore extremely unlikely that the council’s land will ever be required for a widening of the carriageway of Elizabeth Street.

20 In the council’s experts’ opinion, however, the council’s land should be used for the widening of the footpath. The applicant points out that a consistently widened footpath is not possible since numerous contributory buildings are set back only about 1m from the street alignment. The council considers that, even without a consistent widening of the footpath, occasional widening, where it is possible, is of public benefit.

21 Mr Smith, who believes that the retail element proposed on the council’s land should not be part of the proposal, does not base his argument on the road widening. Rather, he maintains that the proposed element adds to the bulk of the building. In addition, Mr Smith considers that the retail element obscures the southern neighbouring buildings, which are contributory items and are set back 1m from the road alignment.

22 Mr Smith points out that in traditional Victorian areas, corner buildings were often built to the street alignment, while mid-block buildings were set back. He therefore rejects the use of the nearest corner building, the Sydney Tap Centre, as a precedent. He also rejects the use as precedent of the northern neighbour, No 523-527, which is also built to the alignment and is a detracting item in the conservation area.

23 Mr Dickson defends the retail element on the council’s land mainly on two grounds. He points to several examples in the street where a two-storey element projects to the street alignment in front of a taller building. He finds this form of development satisfactory and believes it should be repeated. Second, he considers that, where setbacks in the street have been created (for example, at 507-515), those setbacks are “poorly utilised”. To support this opinion, he has included in his report a photograph of No 507-515 with no people in it. Given that the photo was taken when the setback was in shade, I do not think that this proves that setbacks in Elizabeth Street are not used.

Findings

24 In my opinion, it would be a grave planning error to allow this proposal to occupy all of the council’s land. My reasons are as follows:

25 It is clear that the council’s land will not be used for widening the carriageway. It is also clear that the council has no plans, formal or informal, for a continuous widening of the footpath. An unbroken and consistent widening is therefore not possible, or at least not likely. However, unlike a carriageway, a footpath does not need a consistent width in order to provide benefits. The existing footpath in Elizabeth Street already has uneven width. Where buildings have set back in the past (and it appears to be mainly the tall buildings that have set back), the footpath is wide. Where the buildings are on the road alignment, the footpath is narrow. There is no grand avenue effect, but the setbacks, where they occur, provide pedestrian amenity. I do not accept Mr Dickson’s assertion that they are not used or appreciated. The council’s intention to secure a widening of the footpath wherever possible is a worthwhile planning purpose.

26 The fact that the council already owns the land strengthens the above conclusion. Returning this land from public to private ownership would be an unfortunate signal and create a poor precedent. However, I do not think that the setback needs to be exactly 6.5m. That dimension arises only because the council’s land is 6.5m wide. I note that the applicant has offered to set the proposal back by 1m. In my opinion, this is so minor a change that it does not merit consideration. However, it may be possible to reach a compromise somewhere between 1m and 6.5m. It may also be possible to use the funds obtained from selling part of the council’s land to acquire land for widening the footpath when another property is redeveloped.

The FSR

27 The DCP establishes a maximum FSR of 2:1 for the site. The existing building has a FSR of about 6:1. It is common ground that it would be unreasonable to expect the applicant to reduce the existing FSR and it would be equally unreasonable to increase it. Mr Betros and Ms Elek disagree whether or not the proposal increases the FSR.

28 The dispute centres on the question whether the new balconies and the retail element in the front should be counted as additional floor space. In my opinion, the former should not while the latter should. The definition of floor space in LEP 98 excludes balconies. The balconies are clearly not part of the internal building. It would, for example, not be possible to put a desk on them without getting one’s computer and papers wet.

29 The new retail element should be included, since it replaces a courtyard, albeit enclosed. I note that the courtyard is on the council’s land, the lease has expired and the council could require its removal at any time.

30 Given the above, the proposal does increase the existing FSR. I do not think, however, that this alone is fatal to the application, though it is a negative feature for a proposal to renovate a building that is already about three times as big as current controls would permit.

Height, bulk and context

31 The proposal includes glazing the existing spaces on the roof. To that extent the perceived height of the building is increased. However, I do not think that this is a significant problem, since the increased height is of glass rather than masonry. The building is out of scale with its immediate neighbours and inconsistent with the current planning controls; however there are other tall buildings in Elizabeth Street.

32 The council’s experts contend that the proposal increases the apparent bulk of the existing building as a result of the addition of balconies and the nature of unusual prismatic glass cladding to be applied in front of the balconies. In my opinion, this criticism covers two distinct aspects of the proposal that should be discussed separately. First, there is the nature of glass cladding, disregarding for the moment that it is placed about 2m in front of the existing building façade. There is no doubt that it is unusual, and that there is nothing like it in Elizabeth Street and probably in Sydney. The council’s experts believe that it would draw attention to itself, which is not desirable for a detracting item in a conservation area. The applicant’s experts agree that it is unusual but consider it a thing of beauty. In their opinion, if it draws attention to itself, it is not because it is unusual but because it is unusually beautiful.

33 The inspiration for the cladding comes from the Citroën building in Paris at 42 Avenue de Champs-Elysées, of which the applicant tendered a photograph. That building was designed by Manuelle Gautrand following an international design competition. It is the first new building on the Champs-Elysées for more than a quarter of a century. I understand that the three design experts, Mr Stapleton, Mr Dickson and Mr Smith agree that it is a successful design in its context.

34 It is easy to argue, as the council has done, that Elizabeth Street is not the Champs-Elysées. One could extend the argument (though this has not been done during the hearing) that the applicants are not the Citroën company and Mr Benchley is not Mme Gautrand. However, in my opinion, the example does suggest that it is not necessary to restrict the design of this building to the materials and styles already present in Elizabeth Street. If a glass curtain wall can successfully form the façade of a new building on the Champs-Elysées, it can certainly do so in Elizabeth Street. In my opinion, the nature of the glass cladding proposed for the subject building is acceptable, even commendable. (I have included in the judgment illustrations of the proposed cladding and the Citroën building to make the above discussion more understandable.)

35 I now turn to the addition of the balconies. The main effect of the balconies is to push the glass cladding out from the existing façade by about 2m. (I say about 2m because the distance varies as a result of the prismatic shape of the cladding.) In my opinion, this is undesirable, as it increases the apparent bulk of a building that everyone agrees is already too bulky. The applicant has offered to reduce the projection to the minimum distance of 1.1m, which, according to Mr Benchley is required by building regulations.

From an urban design point of view it would be desirable to place the glass cladding as close as possible to the existing façade. I note that the cladding on the Citroën building is in line with the established building line on the Champs-Elysées. Mr Benchley said that the existing structure could not support the new cladding. Consequently new columns are required. It may be possible to locate the new columns on the face of the building. In any case, I note from the plans of the proposal that the new columns do not rise from the ground but appear suddenly at level 2 of the building. This aspect was not fully explored during the hearing, so I can only state the general principle that the glass cladding should project the minimum distance from the building that is structurally feasible. It is relevant in this context that the council allows 450mm projections from the face of buildings.

Impact on the heritage conservation area and heritage streetscape

36 It was common ground that the council has received a report from its consultant that recommends that the Cleveland Gardens Heritage Conservation Area and the Elizabeth Street Heritage Streetscape be removed from this classification. No action has occurred on the recommendation. For my consideration, the recommendation remains just that. It does not alter the fact that, for the moment at least, the site is in a heritage conservation area and a heritage streetscape.

37 LEP 98, the Urban Design DCP and the Heritage DCP all contain provisions that are relevant to this proposal. Since they duplicate each other, it appears necessary only to refer to the Heritage DCP, which is the most relevant in a heritage conservation area and heritage streetscape.

38 Section 4 of the Heritage DCP deals with heritage conservation areas and heritage streetscapes. Section 4.1 contains the relevant objectives:

The objectives of these provisions are to ensure that development within heritage conservation areas and heritage streetscapes:
(ii) enhances the character and heritage significance of the heritage
conservation area or heritage streetscape by:
(c) improving the contribution of detracting buildings to the area or streetscape.

39 Section 4.2 contains the following relevant provision:

(2) Development should not project in front of the established building line towards the street.

40 Section 4.5 deals with detracting buildings.

Detracting buildings are intrusive to the streetscape because of inappropriate scale, bulk, setbacks, setting or materials. Sites containing detracting buildings are often suited to redevelopment and provide an opportunity for development to reinforce the context of the area. They are defined as buildings, which are:
(i) new detracting development; or
(ii) other detracting development.
(1) Development on sites containing detracting buildings is to improve the contextual design and visual impact of the site within the heritage conservation area or heritage streetscape.

(2) Alterations and additions to detracting buildings are to:
(a) remove inappropriate elements or features that are intrusive to the heritage significance of the heritage conservation area or heritage streetscape; and
(b) respect the prevailing character of the area and street in terms of bulk, form, scale and height.

41 The following two guiding principles arise out of the above provisions:

• Alterations and additions to detracting buildings should reduce those aspects of the building that make it detracting.
• Alterations and additions to buildings should enhance the character and heritage significance of the heritage conservation area and heritage streetscape.

42 The two aspects of the existing building that make it a detracting item in the heritage conservation area are its bulk and its brutal windowless appearance to Elizabeth Street. It seems to me that the proposal succeeds in improving the building’s appearance to Elizabeth Street but at the same time it increases the building’s bulk, both real and apparent. The worst offending element on bulk is the retail element on the council’s land. The second worst are the balconies, which push the new cladding about 2m forward of the existing building. The extension of the cladding over the roof has only minor impact and may be justified on the grounds of integrity of design.

43 In my opinion, the additional bulk makes this application inconsistent with the provisions of the Heritage DCP. The appeal is dismissed.

Orders
1. The appeal is dismissed.

2. Development application for renovations and extensions to an existing eight-storey building at 529-531 Elizabeth Street, Surry Hills is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner