Back and Riggs Architects v Sydney City Council

[2005] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION:

Back & Riggs Architects v Sydney City Council [2005] NSWLEC 214

PARTIES:

APPLICANT
Back & Riggs Architects

RESPONDENT
Sydney City Council

FILE NUMBER(S):

11484 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Consent :- To amend existing development consent -alterations and additions to existing hotel - heritage and streetscape - hours of operation

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979; s 96
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997

DATES OF HEARING:

14 - 15/04/2005

EX TEMPORE JUDGMENT DATE:

04/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

RESPONDENT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 April 2005

11484 of 2004 Back & Riggs Architects v
Sydney City Council
JUDGMENT

1 On 20 August 2004 the City of Sydney granted deferred commencement consent D2003/765 (“the consent”) for alterations and additions to the existing six storey hotel known as the Kings Cross Hotel at 248 William Street, Kings Cross. The consent contains deferred commencement conditions that require significant changes to the proposal.

2 As described in the statement of basic facts the aspect of the development, particularly relevant to this case comprises the demolition of an existing one storey glazed enclosure on the Darlinghurst Road façade and its replacement with a two level addition with a roof terrace.

3 At the ground level the proposed extension comprises a lounge bar. At the first floor level it provides for terrace dining associated with the restaurant, and at the second floor level it comprises a roof terrace associated with a function area. Other alterations include the enclosure of the building’s rooftop and the refurbishment of the entire building fabric. Some significant internal fabric is to be reinstated.

4 The renovated building is to be used as a twenty four hour, seven days a week, trading hotel with bar, restaurant, function room and nightclub.

5 The applicant subsequently lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify the consent by the deletion of a number of conditions. At the hearing a number of the conditions sought to be amended or deleted were withdrawn by the applicant. The remaining conditions, the subject of the appeal, are: deferred commencement conditions 1(a) and (b) and 4(a) (b) and (c).

6 Condition 1, in effect, requires that amended plans be submitted to the council providing for the deletion of the two upper levels of the proposed extension to the building and the re-design of the ground floor level.

7 Condition 4 sets the hours of operation for the hotel, to be between 8 am and 11 pm, Mondays to Saturdays and 10 am to 10 pm on Sundays, but provides for a one year trial period for unrestricted hours.

8 The site consists of an irregular shaped lot comprising two titles. It has an area of 354 sq m, and is bounded by Brougham Lane, Darlinghurst Road and William Street. The site is visually prominent as it is located at the intersection of William Street and Darlinghurst Road at the entry point to the Kings Cross Urban Village/Entertainment Precinct.

9 The area in which the hotel is located includes a mix of retail, commercial and residential development. It adjoins an eight storey residential building to the west known as the Broughton Apartments.

10 The site is zoned, Business 3 under South Sydney Local Environmental Plan 1998, (“the LEP”) in which zone the proposal is permissible with development consent.

11 According to the council officer’s report the use is consistent with the applicable zone objectives. Also applicable is South Sydney Development Control Plan 1997 (“the DCP”).

12 Draft amendment 9 to the LEP (“amendment 9”) will insert a significant number of new heritage items into the heritage schedule, insert new heritage conservations areas, and new heritage streetscape areas. Relevant to this proposal amendment 9 will also extend heritage streetscape area HS14 that applies to Victoria Street so as to include the subject site therein.

13 The draft LEP has been notified and is therefore a relevant matter for consideration under s 79(c) of the Act, however, there is no suggestion that its making is certain or imminent.

14 Expert heritage evidence was provided by the Court appointed expert, Mr D Logan. Additional expert evidence was provided on behalf of the respondent by Mr J Poulton, and on behalf of the applicant by Mr P Robinson. Expert town planning evidence was provided on behalf of the respondent by Miss S Foster, a council town planner, and on behalf of the applicant by Mr A Martin. The architect responsible for the proposal, Mr N Back, also provided evidence.

15 As a result of the applicant’s withdrawal of its appeal against a number of conditions, the remaining issues in this case are twofold:

1. Whether the removal of the existing extension to the front of the building and its replacement with a new two/three level glassed enclosure would be appropriate in terms of its effect on the existing building and on the streetscape, taking into account the heritage value of the building and the nearby designated streetscape areas, including the change likely to be effected by amendment 9.

2. Whether the hotel should be allowed to operate twenty four hours per day, seven days per week.

16 The heritage impact statement that accompanied the application summarises the significance of the Kings Cross Hotel building as follows:

The building has streetscape significance as a landmark building on the corner of William Street with regards to entry towards Sydney and entry into the Kings Cross area. It is also a good example of the Federation free style of architecture. The building also represents the history of William Street from the time of the first major changes to the streetscape.

17 More particularly, the analysis contained in the Heritage Impact Statement notes that in terms of historic significance, this building distinctly demonstrates the widening of William Street and represents the former intersection quality prior to more recent infrastructure works in the area.

18 In terms of aesthetic significance, it notes that the building has a high degree of significance, being a prominent built element in the area that defines a key corner in the Kings Cross townscape, with landmark qualities.

19 The statement concludes that absent more extensive investigations, the building is unlikely to have any social significance of importance to the local community. As for technical or research significance, the building has not been assessed, and it is therefore not known as to whether it demonstrates any rare, unique, interesting, or unusual technological values.

20 The statement notes that the building has a high level of integrity, with the exception of the existing additions to the front of the building and notes that this condition is reversible. The building is an excellent representative example of a class of building from 1910, and in terms of rarity, is not that common throughout Sydney.

21 Despite extensive consideration of heritage matters, as evidenced in amendment 9, the building the subject of this appeal, has not been listed as a heritage item, although it is now included in the Victoria Street heritage streetscape. These circumstances provide at least an indication that the building does not have the level of heritage significance to warrant its inclusion as a heritage item. Mr Robinson agreed that the building does have some heritage value and significance for the reasons given in the heritage impact statement, but was of the opinion that this was not sufficient to warrant listing as a heritage item.

22 Mr Poulton does not in any of his reports suggest that the building should be so listed. In his heritage referral report he notes that the building is a good representative example of a Federation free classical style hotel displaying many of the key elements of the style. He points out that it is associated with Tooheys Brewery and prominent architect, E Lindsay Thomson, who designed a number of hotels in the Federation and inter-war period. Like the other experts, he points out that the hotel is a landmark building.

23 Mr Logan recommends in his report that the building should be listed as a heritage item, relying in part on Mr Robinson’s analysis in the Heritage Impact Statement. However, whilst I agree that the building has heritage significance, perhaps even considerable heritage significance, the materials before me are not sufficiently persuasive to conclude that it should be dealt with as if it were a listed heritage item.

24 I thus accept the evidence of Mr Logan, that the hotel has heritage importance and this should be taken into consideration when dealing with the proposal, together with its categorisation as a landmark building in an important townscape location. Here I note the evidence of Miss Foster, who believed that the building is significant within the streetscape and presents, as a prominent anchor point in Victoria Street at its intersection with Darlinghurst Road.

25 The statutory framework imposed by the LEP in terms of heritage conservation areas and streetscape areas, is, in terms of this site, unhelpful. Amendment 9 will include the building in the Victoria Street streetscape area, but Mr Logan was of the opinion that it would be more appropriate to include it in an extended Darlinghurst Road streetscape.

26 Having contemplated this whilst inspecting the area I cannot but agree with Mr Logan that the hotel makes a significant contribution to the Darlinghurst Road streetscape and that this contribution is greater than the contribution it makes to Victoria Street.

27 I would also agree that the building is an important element in the Bayswater Road streetscape being a dominant feature when viewed westward from this road.

28 Taking the heritage and aesthetic significance of the hotel into account and noting that it is located approximately at the intersection of seven different streets, and is at the gateway to the Kings Cross Urban Village/Entertainment Precinct, any extensions to the building need to be carried out in a particularly sensitive manner.

29 Mr Poulton was of the opinion that the proposed front addition of the proposal was not an appropriate response to the heritage values of both the existing building on the site and to the draft Victoria Street heritage streetscape. He generally supported the conclusions of Mr Logan as did Miss Foster.

30 She expressed the opinion that the proposed addition divorces the original building from the streetscape and adjoining buildings and reduces any potential positive contribution that the building would otherwise have to the streetscape. She agreed that the proposal brings a number of benefits to the public domain and streetscape presentation. However the size and nature of the addition would defeat these benefits. She did not accept that the addition provides a building with appropriate presence and identity within the streetscape, commenting that the original building and its landmark characteristics provides sufficient identity without the need for an addition. The building addition would detract from the presentation of the building within the streetscape.

31 Mr Logan was of the opinion that the proposed addition would be inappropriate in terms of its form, bulk and character. More particularly he explained that there are no unifying elements, materials, or fenestration patterns, to achieve a suitable relationship. This was of great concern to him, given that the new structure is prominently positioned in front of the existing building. Moreover, given that what is proposed is an addition to a building having historic significance, there needs to be a better relationship through form, scale, character and materials. This is not evident.

32 Mr Logan recognised that, depending on the time of day and internal lighting, the glazed façades would have varying degrees of transparency and reflectivity, thus at certain times facilitating views of the existing building behind the extension. However at other times of the day the glazing would appear almost opaque, thus preventing views of the building beyond. He also pointed out that the proposed solid concrete floors and the depth of the structure, would mean that some presently available sight lines of the existing building would be denied or, at best, reduced from many viewing angles and positions, particularly in Darlinghurst Road. Whilst views of one of the Juliet balconies will be revealed, another will be significantly hidden.

33 Mr Logan also explained that the extension would appear as a much larger element by comparison with the existing addition, notwithstanding the extensive use of glass. This, coupled with its depth and height above the existing structure points to an excessive building bulk that in turn will adversely affect the character and streetscape contribution of this building, as well as the heritage streetscape.

34 Mr Martin provided an extensive analysis of the extension in his report. He recognised that a positive relationship with the public domain is of extreme importance for any development within this precinct, pointing out that this development will allow casual, passive, surveillance of the street. It will also provide improved vitality and vibrancy of the area. He did not accept that the scale and composition of the addition would dominate the Darlinghurst Road façade, and the majority of this would remain visible.

35 Mr Martin was of the opinion that the proposal would reinforce the character of the area by establishing a positive contribution to the streetscape. The identity of the existing building will be retained and indeed reinforced by this northern addition that activates and interacts with the footpath. Also it will, by its simplicity, be architecturally neutral and would not dominate the original façade being of lightweight construction.

36 Mr Robinson was of the opinion that the proposed addition should be approved because it represents an appropriate outcome, managing as it does, change, in a sensible manner within the heritage context and within the heritage streetscape. Indeed it would be good for the hotel building, respecting as it does, the heritage significance. More particularly he explained that with the more lightweight and transparent structure in front of the hotel, by comparison with the present structure, would be a positive factor. This, together with bringing the hotel back to a better condition and improving the space in front of the building, plus the increase in the amount of front façade being visible, are important considerations. He also pointed out that the building has evolved, over time, with various modifications.

37 I am satisfied that in terms of streetscape the Kings Cross Hotel building has a high degree of aesthetic significance and makes an important contribution, indeed makes a greater contribution than many of its undistinguished neighbours. I am also satisfied that the building has sufficient aesthetic and heritage significance to require that these matters be given particular emphasis. Despite the adverse impacts associated with the existing front extension, these two matters require that any new extension to the building be undertaken with great care.

38 Whilst I recognise that the architect has in his own way sought to do this, and I do not know what demands were placed on him in terms of additional floor space, I have decided that the design now before the Court does not warrant approval. I acknowledge the considerable benefit to the community that would result from the restoration of this building, especially in terms of its presentation to the public domain, but this does not overcome the fundamental concerns that I have in relation to the proposed extension.

39 In principle, I am not greatly concerned at the architectural form, style, and use of materials involved with the extension, although I do agree with Mr Logan that the design would have been assisted by including more unifying elements and providing a better relationship with the fenestration patterns of the existing building. However I agree with Mr Logan that the extension’s scale and bulk relative to that of the hotel itself, is excessive and will seriously detract from the building and change its landmark characteristics. This is of particular concern given that the hotel is positioned on a key corner in the Kings Cross townscape.

40 I do not accept that the simplicity of the architecture of the extension would be neutral because it would as a result of its bulk and scale produce a strong distraction from the original façade. Similarly and just as importantly, I am concerned that the proposal will, despite the extensive use of glass, obscure an excessive amount of the building than is warranted, given its importance as a landmark building in the streetscape.

41 Indeed, overall the structure will obscure more of the building from many viewpoints than does the existing extension and as a consequence will unacceptably dominate it to a greater degree.

42 In reaching these conclusions I have taken into account the glazed nature of the extension and the fact of its transparency and reflectivity, together with the opaque aspects of the structure, particularly the concrete floor slabs. These matters contribute towards its bulk and restrict views of the building’s façade to an excessive degree. The fact that the building is partly obscured by existing trees is of some relevance, but this is by no means determinative.

43 I was especially concerned at the impact of the proposal on the presentation of the building towards Darlinghurst Road where the extension would be most evident, this being one of the more critical situations where the proposal and the existing building are read together. I accept that the Darlinghurst streetscape is important, for the reason I have already given.

44 Finally, I believe that a modern extension to the building in the location proposed could be designed perhaps something along the lines suggested by Mr Logan and which would meet the requirements of the council, but I am not in a position, absent any details, to comment on such an arrangement.

45 For these reasons and despite the qualities attributed to the extension by Mr Martin and Mr Robinson, I have decided that the appeal in relation to Condition 1 should be dismissed.

46 As for the matter of the hours of operation of the hotel, I have decided that because the hotel is presently able to operate twenty four hours a day, seven days a week, and that these hours are common in this locality, that this arrangement can continue and the requirement for a trial period is not warranted.

47 The orders of the Court will therefore be that:

1. The appeal is upheld in part.

2. Deferred development consent No. D2003/765 for alterations and additions to the existing hotel at 248 William Street, Kings Cross, is amended by the deletion of condition 4(a), (b) and (c).

3. Exhibits 1 and H are retained.

_____________
T A Bly
Commissioner of the Court
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