Barana Properties (No. 7) Pty Ltd v Council of the City of Sydney

[2021] NSWLEC 1293

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barana Properties (No. 7) Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1293

Hearing dates:

5-6 May 2021

Date of orders:

27 May 2021

Decision date:

27 May 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The appeal is upheld.
(2) Development Consent No. D/2018/1151 for alterations and additions to the existing building is amended, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than Exhibits 2, A, B, C and G, are returned.

Catchwords:

DEVELOPMENT CONSENT – appeal against conditions of consent and proposed additional works – alterations and additions to an existing building – local heritage item – impact on the heritage significance of the item

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 5.10, 6.21

Texts Cited:

The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 2013

Category:

Principal judgment

Parties:

Barana Properties (No. 7) Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
Z Heger (Respondent)

Solicitors:
Dentons (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2020/83754

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Council of the City of Sydney (the Council) granted Development Consent No. D/2018/1151 (the development consent) for alterations and additions to an existing building, the former Reader’s Digest Building, located at 26-32 Waterloo Street, Surry Hills (Lot 1 in DP 538633) (the site) on 23 September 2019, subject to conditions of consent. This is an appeal, pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), against the imposition of some of those conditions and the applicant seeks approval for additional proposed works.

2. The appeal was subject to conciliation on 4 December 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. The applicant appeals against the following conditions of consent:

1. Condition 2(a) – which requires deletion of two new glazed window panels proposed for the Cooper Street elevation and three new glazed window panels proposed for the Adelaide Street elevation from the architectural plans.

2. Condition 2(b) – which requires deletion of two lay lights located beneath windows on the western elevation from the First Floor architectural plan.

3. Condition 2(c) – which requires deletion of the reference to lay lights on the western elevation from the Ground Floor architectural plan.

4. Condition 3 – which provides that the general repairs and maintenance to the rooftop pergola are not approved.

5. Condition 16(a) – which provides that the Landscape Plan prepared by Design 5 Architects dated May 2019 “Drawing Number 10” is not approved and requires the preparation of a detailed plan addressing the matters contained in Condition 16(a) and submission of that plan to Council for approval.

6. Condition 20 – which approves trees identified in that condition for removal.

4. On 19 February 2021, the Court granted leave to the applicant to rely on amended plans and documents. The applicant seeks approval of the amended plans and documents prepared by Design 5 and dated 4 February 2021 (the amended plans) as follows:

1. Site/ Roof Plan, Drawing no. DA rev 01, Revision G.

2. Plan – Basement, Drawing no. DA rev 02, Revision G.

3. Plan – Ground Floor, Drawing no. DA rev 03, Revision G.

4. Plan – First Floor, Drawing no. DA rev 04, Revision G.

5. Plan – Second Floor, Drawing no. DA-rev-05, Revision G.

6. Elevations – Cooper & Adelaide Streets, Drawing no. DA rev 06, Revision G.

7. Detail Elevations – Cooper & Adelaide Streets, Drawing no. DA rev 07, Revision G.

8. Elevations – Waterloo & Adelaide Place, Drawing no. DA rev 08, Revision G.

9. Detail Plan – Ground Floor Cooper Street & Entry Off Main Foyer, Drawing no. DA rev 09, Revision G.

10. Detail Plan – Ground & First Floor Adelaide Streets, Drawing no. DA rev 10, Revision G.

11. Section BB, AA & Section / Elevation CC, Drawing no. DA rev 11, Rev G

12. Adelaide Street Section BB, Section / Elevation DD & EE, Drawing no. DA rev 12, Revision G.

13. Plan – Second Floor (Landscape), Drawing no. DA rev 13, Revision G,

5. The additional proposed works, shown on the amended plans, include:

Basement:

Replacement of existing garage roller door in the vehicular entry opening on the northern elevation with a timber and glass door to match the approved door in the ground floor loading bay opening.

Ground floor:

New internal partitions adjacent to central ramp;

Demolition works within the loading dock;

Alterations to plant room internal walls; and

New kitchen;

First floor:

Demolition of internal partitions;

Replacement of brick and glazed infill in the opening that was a loading bay on the eastern elevation with a timber and glass door to match the approved door in the ground floor loading bay opening.

Issues

6. The parties agreed on the deletion of conditions 2(b), 2(c), 3 and 20 of the development consent and they agreed on a new condition (17) to replace condition 16. The parties agreed on the additional proposed works. The dispute between the parties is the imposition of condition 2(a) on the development consent.

7. The applicant submits that the introduction of windows into the Cooper Street and Adelaide Street elevations, including a lightwell in the Adelaide Street elevation, as shown on the amended plans (the proposal), will significantly improve the internal amenity of the building by providing natural daylight and a strengthened connection with the outside for the ground and first floor commercial office spaces, thereby ensuring the continued use of the building while maintaining and respecting its heritage values. The applicant submits that the windows proposed in the Cooper Street and Adelaide Street elevations are consistent with conserving, maintaining and respecting the heritage significance of the building and the heritage conservation area.

8. The Council’s contentions in reply can be summarised as:

• The proposed window openings to the Cooper Street and Adelaide Street elevations of the building fail to conserve the heritage significance of the heritage item.

• Insufficient information is provided to demonstrate the stated improvements to internal amenity.

• The proposed amendments to the development do not exhibit design excellence.

The site and the former Reader’s Digest Building

9. The site is bounded by Cooper Street to the north, Waterloo Street to the west, Adelaide Street to the south and Adelaide Place to the east. The site falls from the east to the north-west, with the corner of Waterloo and Cooper Streets being the lowest point on the site.

10. The existing building has a basement level for parking and storage in the north-western corner, accessed from Cooper Street; a ground floor accessed via the main entry to the building from Waterloo Street; a first floor; and a second floor around a large central landscaped courtyard.

11. The existing building, the former Reader’s Digest Building, is recognised for its unique representation of post war modern commercial architecture in Australia and is highly regarded for its organic expression of structure and raw natural materials. The building was designed by John James, an architect identified with the Sydney School and noted scholar of Mediaeval building craft, with significant contributions by pioneering landscape architect Bruce Mackenzie, and leading graphic designer, muralist and sculptor, Douglas Annand. The building is a synthesis of architecture, landscape and sculpture and clearly and meticulously encapsulates the architectural philosophy of human scaled design, using naturally occurring mathematical proportions juxtaposed with machine made component and industrial techniques, central to the building’s design. The building is significant for its finished and sculpted concrete form, most evident on the façades, entry foyer and staircase. The organic expression of sculpture manifests in a virtually handcrafted building, and the paired columns of curved planes and interlocking joints, framing singular brick or glazed panels and set upon a solid plinth, connote a sense of Japanese compositional simplicity, and present a visual aesthetic less rigid and monumental than the building’s contemporaries (taken from Ex E, Statement of Cultural Significance, Heritage Impact Statement by Design 5, p 18).

The proposal

12. The alterations and additions are designed by Design 5 Architects.

13. The proposal retains the concrete plinth and paired columns of the façade of the building. The proposed glazing will match the framing and glass colour of the existing glazing.

Cooper Street façade

14. The proposal is to remove two brick panels at the ground floor located below the glazed panels in the centre of the northern façade and to insert glazing in the same plane as the glazing above.

Adelaide Street façade

15. The proposal is to remove three brick infill panels at the first floor immediately below the balcony in the centre of the southern façade, and to create a lightwell that extends to the ground floor, and to place windows in the new setback elevation on the first and ground floors.

The development consent

16. The development application included a Conservation Management Plan (CMP) prepared by Design 5 Architects. The final CMP is dated February 2021 (Ex F).

17. The development consent includes a schedule of [conservation] works (Ex G, tab 3). The schedule of works includes the restoration and installation of the Douglas Annand sculptures retained onsite (as not all of the sculptures intended to adorn the façade were installed at the instruction of the original client); reinstatement of the water features located in front of the western façade and the water feature in the foyer; and repairs to the heritage fabric of the existing building.

18. The works approved by the development consent include fire passage exit through the basement; replacement of the perforated metal roller door on the northern elevation with a new glazed timber door that interprets the original design; trafficable lay lights in the floor of the first floor beneath windows to provide natural light to the ground floor below; and landscaping in the second floor courtyard.

Planning framework

19. The site is zoned B4 Mixed Use pursuant to the Sydney Local Environmental Plan 2012 (LEP 2012). The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

20. The former Reader’s Digest building is listed as a local heritage item under Sch 5 to LEP 2012 (item 1488). The description of the item is “Former Reader’s Digest building including interior and landscaping”. The site is located within the Little Riley Street Heritage Conservation Area (C65) (Pt 2, Sch 5 and Heritage Map – Sheet HER_016 of LEP 2012) (HCA). The site is within the vicinity of local heritage items.

21. The consent authority, or the Court exercising the functions of the consent authority, must, before granting consent under cl 5.10 of LEP 2012, consider the effect of the proposed development on the heritage significance of the item or the area concerned, pursuant to cl 5.10(4) of LEP 2012.

22. The heritage inventory sheet for the former Reader’s Digest Building (Ex 1, ff 170-191) includes a statement of significance.

23. The former Reader’s Digest building is listed on the following non-statutory heritage registers:

• The Australian Institute of Architects NSW Chapter Register of Significant Architecture, Item number 4702885;

• The Australian Institute of Architects List of Nationally Significant 20^th Century Architecture;

• Docomomo Australia, NSW Register; and

• The National Trust of Australia (NSW) Register, Item number S11466.

24. The design excellence clause, cl 6.21 of LEP 2012, applies to the proposal at (2). The objective of the clause, at (1), is to deliver the highest standard of architectural, urban and landscape design. Development consent must not be granted to development to which cl 6.21 applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence, at (3). In considering whether development to which the clause applies exhibits design excellence, the consent authority must have regard to how the proposed development addresses any heritage issues, at (4)(d)(iii).

Public submissions

25. Two objectors gave evidence at the commencement of the hearing onsite. Dr John James OAM, the architect of the Reader’s Digest Building, objects to the proposal to alter the façade of the building, because the proposal is contrary to the architectural concept informing the design and the proposed lightwell on the southern elevation will serve as a receptacle for rubbish. Dr James’ objection to the proposal is documented in his letter of objection (Ex 1, ff 26(i)-26(vii)). Mr Peter Lonergan, an architect and local resident, also objects to the proposal because it will undermine the architectural concept of the design.

Expert evidence

26. The applicant relied on the expert evidence of Alan Croker (architecture and planning), Professor Richard Mackay (heritage) and Peter Watts AM (landscaping).

27. The Council relied on the expert evidence of Shannon Rickersey (planning), Michele Grande (heritage) and Kate Yates (landscaping).

28. The architectural/planning and heritage experts prepared a joint report (Ex 3). The landscaping experts prepared a joint report (Ex 4). The architectural/planning and heritage experts gave oral evidence.

Consideration

29. The experts agreed that the question of design excellence in relation to the issues under consideration is a question of heritage impact; if the heritage outcome is acceptable, then the necessary threshold of cl 6.21 of LEP 2012 are met.

30. Mr Rickersey and Mr Coker agreed that Dr James’ opinion of the proposal is a relevant matter.

The recommendations of the heritage inventory sheet

31. The architectural/planning and heritage experts agreed that the former Reader’s Digest Building meets the NSW Heritage Assessment Criteria at a ‘State’ level, although the building is not listed on the NSW State Heritage Register.

32. The parties’ experts differed on the weight that should be given to the heritage inventory sheet in determining the appeal (Ex H, tab 8). According to Mr Grande, the heritage inventory sheet’s recommendations and the CMP policies should be given the same weight. Professor Mackay was of the view that the CMP and its policies, including its assessment of significance, relative gradings of significance, tolerance for change principles and conservation policies should be preferred over the brief ‘Management recommendations’ statement in the heritage inventory sheet.

33. Mr Grande acknowledged that the heritage inventory sheet was amended and augmented by Council’s staff following the lodging of the development application the subject of this appeal.

34. Professor Mackay noted that heritage inventory sheets are often not comprehensive and should be regarded as a general guide only.

35. According to Mr Croker, the phrase, “and no alterations to the façade of the building other than to reinstate original features” in the heritage inventory sheet under “Recommended management” is repeated in a number of heritage inventory sheets for buildings identified as heritage items in the Council’s municipality; including the AMP Building (Ex H, tab 10), the former Knock and Kirby Building (Ex H, tab 11) and the Sydney Opera House (Ex H, tab 12). This is evidence that heritage inventory sheets can be fairly generic and the consent authority, when assessing an application for change to a heritage item, can rely on the compulsory terms of cl 5.10(5) to require a heritage management document be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item.

36. I have had regard to the heritage inventory sheet and its recommendations, the applicant’s CMP and its policies, and the expert and documentary evidence before me, in determining this appeal.

The proposal will improve the internal amenity on the ground floor

37. The original ground floor included the entry foyer accessed from Waterloo Street; the loading dock accessed from Cooper Street; service rooms in the north-eastern corner; the plant room, cafeteria and kitchen in the south-western corner; and the remainder of the floor was used for bulk store (Ex F, p 49).

38. The current use of the ground floor area that was the bulk store is open plan office accommodation. There are no windows in the southern or western façades on the ground floor.

39. Evidence was adduced by the applicant regarding the quantity and quality of natural light afforded by the proposal in comparison to the existing building (Ex H, tab 6, “Daylight Analysis Report”) and an academic literature review on the benefits of daylight inclusion in the workplace (Ex H, tab 7). It is the applicant’s case that the improved internal amenity as a result of the proposal justifies the sympathetic and sensitive alterations to the existing building and it is the Council’s case that the southern lightwell will not significantly improve the internal amenity and does not justify the adverse heritage impact of the proposal.

40. I accept that the Council’s criticism of the Daylight Analysis Report that it does not quantify the difference between what the Council would be willing to approve, being all the works proposed in this appeal excluding the windows on the northern and southern facades, and the proposal the subject of this appeal. There was general consensus between the architectural and planning experts that the proposal will improve the internal amenity of the ground floor, and but for the impact of the proposal on the original fabric of the façade of the building, there would not be an issue as to the benefit of the proposal to the internal amenity of the ground floor.

41. The Council’s experts were sceptical of the benefit of the southern windows and lightwell, on the basis that the lightwell has no real outlook, faces south in a dense urban environment and is shaded by street trees. Their scepticism is a function of weighing the benefit derived from the southern lightwell and windows internally with the impact of the proposal on the heritage significance of the item. The internal amenity afforded by the proposed northern windows was less controversial as Mr Rickersey and Mr Croker agreed that the proposed windows on Cooper Street will provide a high level of amenity internally on the ground floor.

42. I am convinced by the evidence before me that the proposal for the southern facade results in approved internal amenity on the ground floor. Regardless of the lightwell being subterranean and south facing, the introduction of some natural light flooding the lightwell will improve the internal amenity of the ground floor. The question is then whether the proposal is an acceptable intervention in the original fabric of the building, given that the building is a local heritage item.

Changes to the façade of the existing building

43. The experts disagreed on the impact of the proposal on the heritage significance of the item.

44. According to Professor Mackay, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 2013 (the Burra Charter) should be applied holistically, meaning that the way to address compliance with the Burra Charter is that it should be interpreted in relation the overall principles and process of the document, and each article should not be considered and applied in isolation. Professor Mackay noted that the proposal has been determined following a comprehensive CMP, founded on thorough research and assessment of heritage values, followed by analysis of constraints and the development of an appropriate policy approach which addresses the identified constraints and provides for the conservation of the heritage item. In Professor Mackay’s view, the proposed window openings in the façades would have only a minor impact on the heritage item, predominantly related to removal of original fabric, rather than compromising the design integrity or streetscape presence of the item. The design of the proposal is respectful to the overall design intent and does not interrupt significant views of the building. The works conserve the building through adaptation, providing appropriate amenity. The changes do not fundamentally affect the cultural significance of the building and they retain the attributes that are highlighted in the statement of significance in the CMP. Furthermore, the entirety of the works for which consent is sought through the appeal include a range of reconstruction and interpretative works that enhance the heritage significance of the item.

43. Mr Croker’s evidence is that the proposed window openings will remove isolated areas of original fabric, the brick panels, but this does not affect the cultural heritage significance of the item. The proposed removal of the centrally located brick panels and replacement with windows directly under the three central window bays on the level above, will not compromise the qualities and characteristics of the solid concrete base, the strong rhythm of the moulded and split columns and geometry and proportions of the panels. The changes are confined to the only locations possible for change, given the symmetry and geometry of the building. The changes will provide substantial long-term improvement to the amenity and quality of light within the building and will strengthen and support the viability of the ongoing use of the building as a commercial workplace.

44. According to Mr Grande, the proposal is inconsistent with the Burra Charter Article 3.1 to change as much as necessary but as little as possible. In his view, different solutions can be achieved with minimal impact. Article 3.1 is as follows:

“3.1 Conservation is based on a respect for the existing fabric, use, associations and meanings. It requires a cautious approach of changing as much as necessary but as little as possible.”

47. I accept Professor Mackay’s opinion on the appropriate interpretation of the Burra Charter. The Burra Charter states, under a heading, “Using the Charter”,

“The Charter should be read as a whole. Many articles are interdependent… The key concepts are included in the Conservation Principles section and these are further developed in the Conservation Processes and Conservation Practice sections… Explanatory Notes also form part of the Charter.”

48. I accept and prefer the applicant’s experts’ evidence regarding the effect of the proposal. The ground floor is substantially subterranean in the south-eastern half of the floor plate. The original use of the ground floor was for bulk storage and those areas now accommodate workstations and meeting areas in an open plan office. The purpose of the proposal is to adapt the building to suit the existing use. I accept Mr Croker’s evidence that the changes are proposed in the only locations possible due to the symmetry and geometry of the building. I accept Mr Croker’s evidence that the proposal will not compromise the qualities and characteristics of the solid concrete base, the strong rhythm of the moulded and split columns and geometry and the proportions of the panels.

49. I am satisfied that the proposed replacement of brick panels in the central bays below panels that are glazed in the northern façade, is appropriately sensitive and sympathetic to the original concept of the design and is justified by the improved internal amenity achieved for the ground floor.

50. I accept the applicant’s experts’ evidence that the intervention in the fabric of the southern façade, which is a more significant change that the proposed windows in the northern façade, is appropriately respectful.

51. The proposal, and other changes proposed, respect the cultural significance of the place and do not detract from its interpretation and appreciation.

The proposal is not reversible within the meaning of reversible in the Burra Charter

52. The experts disagreed on whether the proposal is reversible.

53. In Mr Grande’s view, the proposal is undesirable because it reduces the cultural significance of the item and is not reversible in accordance with Article 15.2. Article 15.2 is as follows:

“15.2 Changes which reduce cultural significance should be reversible, and be reversed when circumstances permit.”

54. The explanatory notes for Conservation Processes in the Burra Charter, regarding revisability, include, “Reversible changes should be considered temporary. Non-reversible change should only be used as a last resort and should not prevent future conservation action.”

55. According to Mr Croker, the proposal is reversible, as demonstrated by previous changes to the panels of the building including the infill brickwork in the Adelaide Place dispatch dock and the removal of the overhead walkway across Adelaide Street. Mr Croker noted that the bricks can be salvaged or matching bricks reproduced as demonstrated, and can be used to reconstruct the brick panels in the future. In Professor Mackay’s opinion, the proposal is reversible through faithful reconstruction.

56. According to Mr Rickersey, the removal and reconstruction or reinstatement of the brick panels would be noticeable to a degree and the subject locations are more prominent within the streetscape that the other examples cited by Mr Croker. In Mr Grande’s view, the proposal is not reversible, but is permanent. Reversibility requires an ability to return the item to a previous state without damage. The installation of lightweight internal partitions or covering of a floor are examples of reversible changes, as the new fabric can later be removed to again reveal the original fabric of the item. Removing the brick panels and replacing them with windows will have a permanent impact and will result in the loss of fabric and patina.

57. I accept Mr Grande’s interpretation of the concept of reversibility as used in the Burra Charter. The proposal is a non-reversible change, because it removes original fabric. I accept Professor Mackay’s observation that the brick panels may be reinstated in the future using the salvaged and retained bricks from the panels or may be faithfully reconstructed in the future using new materials such as matching bricks. The proposal is not a temporary change, but the proposal’s non-reversible changes do not prevent future conservation action.

58. I am satisfied, on the basis of all of the evidence before me, that the new work proposed is acceptable as it respects and does not distort or obscure the cultural significance of the place or detract from its interpretation or appreciation.

Conclusion

59. I have taken into consideration Dr James’ disapproval of the proposal and I am sympathetic to his distress regarding the proposed external changes to his building.

60. I am satisfied that the proposal can be granted consent because it is contained and finite; it is thoughtful and respectful of the original building including its design concept and physical fabric; and it seeks to maintain the current use of the ground floor by providing adequate amenity to its occupants. I accept that the entirety of the works for which consent is sought through the appeal include a range of reconstruction and interpretative works that enhance the heritage significance of the item.

Orders

61. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. D/2018/1151 for alterations and additions to the existing building is amended, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 2, A, B, C and G, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (321282, pdf)

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Decision last updated: 27 May 2021