Barrak v Parramatta City Council

[2017] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barrak v Parramatta City Council [2017] NSWLEC 1244
Hearing dates:	27 April 2017
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1. The objection pursuant to cl 4.6 of the Parramatta Local Environmental Plan 11 is not sustained; 2. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979; 3. The appeal is dismissed; 4. Development application DA 109/2016 for consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park is refused. 5. The exhibits are returned with the exception of exhibits 5 and C and the Class 1 application.
Catchwords:	DEVELOPMENT APPEAL: Proposed shop top housing - impact on significance of heritage conservation area – consideration of heritage in determining appropriate height and floor space for the development – treatment of the boundary of the heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Grigorakis v Bayside Council [2016] NSWLEC 1573 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Benjamin Barrak (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: P. Clay SC (Applicant) S. Nash (Respondent).   Solicitors: Barrak Lawyers (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/00261598
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged against the deemed refusal by Parramatta City Council of development application 109/2016. The application seeks consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park (the Site).

2. The appeal was subject to conciliation on December 8 2016 (s34 of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated.

3. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

4. As part of the proceedings, both parties engaged experts in the disciplines of planning and urban design. Section 2.1 of their report states:

As an overview, the experts agree that the amended plans largely overcome the planning and urban design points of difference between the three of us, if heritage matters are set aside. Experts rely on the heritage experts to determine if it [the development] is appropriate in heritage terms (Exhibit 4).

5. The Council seeks the refusal of the application on the following remaining grounds:

1. That the proposed development has an unacceptable impact on the Harris Park West Heritage Conservation Area (HCA) and the heritage items in the vicinity of the site;

2. That the height of the proposed development is excessive and will have an unacceptable impact on the surrounding HCA;

3. That the scale of the proposed development is not compatible with the scale of buildings within, or anticipated to be part of the HCA, and does not represent good urban design; and

4. That, if approved, the development will set an unacceptable precedent for similarly inappropriate development in the HCA.

6. The key issue for the Court to determine is whether the proposed development has an unacceptable impact on the Harris Park West Heritage Conservation Area.

The site and its context

7. The subject site is triangular in shape with an eastern frontage of 44.025m to Wigram Street, a north western frontage of 66.02m to Kendall Street. The site has an area of 1,085m². The site is located within the 1:100 flood level. Adjoining the site to the south is the Parramatta Fire Station.

8. The subject site is located within, and at the northern end, of the HCA. The location of the site within the HCA is shown in the following extract of the zoning map:

Amended Proposal

9. The following key amendments that have been undertaken since the commencement of the appeal:

• A reduction in height from a nine storey building to an eight storey building, a decrease of 2.7m in overall height;

• A subsequent reduction from 52 apartments to 44 residential apartments due to the deletion of one level and the increase in building separation along the shared boundary at Kendall Street;

• The addition of further commercial usage adjacent the driveway along the Kendall Street frontage;

• Additional façade articulation along the Wigram and Kendall Street frontages; and

• The addition of an awning along Wigram and Kendals Street facades on all levels.

Planning Controls:

10. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

11. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Gus Fares Architects Pty Ltd, Ghassan Fares registered architect (5828). Council contends that the development does not meet the Design Principles contained in Part 4 of SEPP 65.

12. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy

13. The development is integrated development and requires approval from the NSW Office of Water. Concurrence was provided subject to conditions on 26 May 2016.

14. Parramatta Local Environmental Plan 2011 (LEP 2011) applies to the site. Relevant to this appeal LEP 2011 has the following aims (cl 1.2(2)):

(a) to encourage a range of development, including housing, employment and recreation, that accommodates the needs of the existing and future residents, workers and visitors of Parramatta,

…

(h) to enhance the amenity and characteristics of established residential areas,

…

(n) to encourage development that demonstrates efficient and sustainable use of energy and resources in accordance with ecologically sustainable development principles.

15. Pursuant to LEP 2011 the site is zoned B1 Neighbourhood Centre. The objective of the B1 zone is as follows:

To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

The proposal is defined as shop top housing and is permissible, with consent, in the zone.

16. The subject site has been identified in Height of Buildings Map 10, PLEP 2011 as having a maximum allowable height (T2) of 28 metres. It is the only site within the Harris Park West HCA to have this maximum permissible height. The central portion of the street block in which the site is located has a maximum permissible height (P2) of 18 metres. The part of the block that contains the group of single storey heritage items on Ada Street has a maximum permissible height (E) of 6 metres. The bulk of the Harris Park west HCA also has a maximum permissible height of 6 metres. These variable heights are indicated in the following map.

Extract of Building Height Map             Subject Site

17. The block bounded by Kendall Street, Parkes Street, Wigram Street and Station Street, to the immediate north of the site contains a series of relatively modern residential flat buildings ranging in height from four to eight storeys. That block, located in the South City Centre area, has a nominated maximum height (T2) of 28 metres and its built environment forms a transition from the AA3 blocks to the north of Parkes Way, which have a maximum allowable height of 72 metres.

18. The objectives of cl 4.3 Height of Buildings are:

(a)  to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c) to require the height of future buildings to have regard to heritage sites and their settings,

(d) to ensure the preservation of historic views,

(e) to reinforce and respect the existing character and scale of low density residential areas,

(f) to maintain satisfactory sky exposure and daylight to existing buildings within commercial centres, to the sides and rear of tower forms and to key areas of the public domain, including parks, streets and lanes..

Council argues that the development proposed is inconsistent with the objectives of the height control.

19. LEP 2011, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. The applicant seeks to vary the overall height of the building to a maximum of 29.55m about natural ground level.

20. However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

21. The following definition in the dictionary of LEP 2011 is relevant:

building height (or height of building) means:

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..

22. Whether the Court accepts the applicant’s clause 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.

23. Given the site is mapped within the HCA, and contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2011, ‘Heritage Conservation’ at sub-cl (1), are to conserve the environmental heritage of the Parramatta area and the heritage significance of heritage conservation areas, including associated fabric, setting and views.  The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).

24. The Parramatta Development Control Plan 2011, (DCP 2011) applies to the proposal. The relevant planning controls are contained in

1. Part 1: Introduction

2. Part 2: Site Planning

3. Part 3: Development Principles

4. Part 4 Special Precinct’s: Section 1 (Clause 4.3.2 Harris Park)

5. Part 4 Special Precinct’s: Section 3 (Clause 4.4 ‘Heritage Conservation Areas’)

25. The following text in Part 3.5.1 of DCP 2011 provides Objectives, Design Principles and Controls that apply to development in the vicinity of Heritage Items and within Heritage Conservation Areas throughout the Parramatta local government area.

Heritage 3.5.1.

General

This section of the Plan contains the general principles and controls that apply to development on and in the vicinity of heritage items and heritage conservation areas identified in the Parramatta LEP 2011 and Parramatta City Centre LEP 2007. They include controls and guidelines for maintenance, alterations and additions, new development and archaeological issues. This section must be read in conjunction with other relevant controls of this Plan, particularly Part 4.

Each development proposal will have its own unique considerations, and the issues to be considered will vary depending on where the property is located and whether the proposal is for renovations and extensions to an existing building, a new building within a conservation area or development adjacent to a heritage item.

…

Objectives

O.1 Appropriate management of heritage in the Parramatta LGA.

O.2 Retention and reinforcement of the attributes that contribute to the heritage significance of items, areas and their settings.

O.3 Maintenance and improvement to residential amenity and open space areas.

O.4 Development that is compatible with the significance and character of the area.

Design Principles

Scale

The scale and bulk of any new work is the most important issue to get right. In the case of infill work in a conservation area, the scale of the new building needs to be similar to those surrounding it. In the case of renovations and extensions, the new work should not overwhelm the original building.

Siting

In the case of infill work in a conservation area, the new building needs to have a similar orientation on the block and similar setbacks as those around. In the case of renovations and extensions, new work is best located to the rear or possibly the side of the building in order to minimise changes to the appearance of the building from the street.

Architectural Form

The basic architectural form of any new work needs to respect that which exists. Issues to consider include the pitch and form of the roof, and the size, proportion and location of windows and doors.

Architectural Detailing

Applicants need to be aware of the particular era and architectural style of the building or buildings, and make sure that any proposed changes respect this. For example it is not appropriate to mix Victorian features with say California Bungalow and overuse of historical architectural details on new work should be avoided.

Materials and Finishes

New materials need not always match the existing exactly but need to be compatible, with consideration being given to the colour, texture, and type of materials and finishes.

26. Part 4.3.2- Harris Park applies to development in the vicinity of Heritage Items or within the HCA. It has the following controls and design principles relevant to the proceedings:

Objectives:

O.1 Conserve the heritage character of the locality and preserve those areas and sites that present as important cultural/tourist attractions.

O.2 Retain the character and amenity of the area.

…

O.4 New development in Harris Park should be compatible with the scale of existing development and represents high quality urban design.

…

O.6 Roof designs are to be compatible with existing roofs in the area in terms of their pitch, form and design detail.

O.10 Protect and maintain the specific attributes and qualities of each of the Special Areas.

Design Principles

Height of Buildings

P.1 Existing view corridors shown in Appendix 2 are to be protected, maintained or reinstated in the planning and design of the development.

P.2 Align buildings to maximise and frame view corridors between buildings. P.3 The maximum height of buildings or structures on land south of Clay Cliff Creek between Parkes Street and Alfred Street, as shown on the Design Control Map, shall only be achieved where it can be demonstrated that the building or structure will not dominate the topographical features of the River landscape.

P.4 Regardless of any other control, height of buildings must enable compliance with all controls about views and vistas.

27. Relevantly Council considers the Harris Park West HCA to be notable for the density of individually properties and groups of historical houses listed in LEP 2011.

28. The statement of heritage significance for the Harris Park West HCA is contained in Section 4.4.3.3 of the DCP is as follows:

The area demonstrated an early 1870s-90s subdivision and speculation of modest residential development (of) part of colonial surgeon John Harris’ land grant, made in response to the railway. Many of the original houses remain and it retains a consistency of development with narrow lots, back lanes and small scale, simple form timber and brick cottages, built close together. The use of timber was typical in many parts of Sydney but is now rare. The area is important because it provides evidence of mid 19th century subdivisional and surveying practice and with the relative absence of modern development is the most consistent historical urban area in central Parramatta.

29. Cl. 4.4.3.3 Harris Park West outlines the following distinctive characteristics of the HCA:

- intimate scale of the area – allotments are mostly 30 feet, compared with the wider allotments east of Harris Street;

- predominance of small cottages (mostly single storey) with some terraced houses and other dwellings

- age of buildings – mostly developed in the late 19th century, with a few early 20th century dwellings and shops, and some from the 1960’s.

30. The objective for the Harris Park West HCA is:

To protect all attributes which contribute to the heritage value and character of the Harris Park West conservation area, and maintain and improve its residential amenity.

31. The relevant provisions of DCP 2011 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

Public submissions

32. The assessment of the original development application, and the amended proposal, has involved public notification to the surrounding neighbourhood in accordance with the DCP 2011. These submissions are summarised as follows:

1. The plans fail to address the negative impact of the development on the heritage conservation area;

2. That the development will serve as a precedent and that the boundary to the conservation area should be maintained at Kendall Street, with development south of this street maintained as low rise development; and

3. There should be a sharp contrast between the high rise central business district of Parramatta and the well-defined protected areas of Harris Park.

33. A submission was also received from Fire NSW, who own property adjoining the subject site. Their concerns with the development can be summarised as follows:

1. The construction of an eight storey building on the site adjacent the fire station will create conflict between the residential use and the operation use of the fire station. For example, the fire station undertakes daily operation checks including starting motors, testing sirens, chainsaws, air horns and the ladders on top of the fire appliances;

2. On average the station responds to six fire calls a day, exiting the station onto Wigram Street. The increasing residential use adjacent the fire station may cause amenity impacts to the dwellings from the fire station;

1. The current location of the fire station is operationally efficient for Fire NSW and it is crucial that it remains in use; and

2. The construction phase will result in increased traffic and affect the operations of the fire station.

These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

34. The Court was assisted by expert planning evidence from Mr Stuart Harding, for the applicant, and Mr Jeff Mead for the Council. Ms Gabrielle Morrish also provided urban design evidence for the applicant. The experts participated in a joint conferencing process prior to the hearing that sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 4. As noted at paragraph 4, the joint conferencing process and subsequent amendments to the design resolved the substantive planning and urban design contentions.

35. The Court heard expert heritage evidence from Mr Robert Staas, for the applicant, and Mr Graham Brooks for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 3.

Matters Agreed

36. Within the joint report the heritage experts agree the following matters:

1. that the subject site contains a building, being a single storey restaurant complex, that does not architecturally contribute to the heritage significance of the HCA and that its demolition for an approved development is not an issue in these proceedings;

2. that the subject site is located at the northern end of the HCA and is in close proximity to the southern edge of the Parramatta City Centre precinct as defined in Part 4.3.3 of DCP 2011. The two precincts areas are separated by Kendall Street.

Is the impact of the development on the heritage significance of the HCA and the heritage items in the vicinity of the site acceptable?

37. It is the evidence of Mr Stass that the thrust of the planning controls in DCP 2011 are focussed on the conservation of those areas within the HCA that contain small-scale original development. In oral evidence, Mr Staas stated that in his view the DCP controls, as they relate to the HCA, do not contemplate development to the scale provided by the LEP and do not address the form of development proposed on the site. It is his view that in preparing the LEP the Council formed a view that the site should provide a stepped transition between the CBD form of buildings north of Kendall Street to the lower scale of the existing heritage items within the conservation area. He argues this intent is clear in the modulation of heights assigned by the LEP adjacent Kendall Street [refer map in par 16]. It is his view that it is erroneous to apply the DCP controls literally to the development proposed for the site.

38. In oral evidence Mr Stass agreed that the scale of the proposal is not consistent with the built form described in the statement of significance for the HCA or sought by the DCP controls. However, Mr Stass relies on the policy decision of the Council to add height to the site, after the making of the HCA, which he says envisages redevelopment of the site in a form that is in consistent with the DCP. It is his view that the intent of the Council is clear that in providing the stepped heights they seek to provide a transition from the edge of the CBD to the HCA. It is his conclusion that the subject site forms part of that transition.

39. It is Mr Stass’ evidence that any development on the subject site will be consistent with the existing backdrop of high-rise development to the north of the site against which the HCA is already read. Mr Staas argues that :

A number of approved developments in Parkes Street will create a substantial wall of development at the northern end of the Heritage Conservation Area. Council has agreed that these changes in scale are acceptable and will not detract from the special character of the retained earlier development in the conservation area. This form of juxtaposition is to be seen throughout the city centre itself where isolated heritage items adjoin substantial developments in a mixed character context.

..

In my professional opinion, the proposal is an appropriate response to its context at the junction of the City Centre with the heritage conservation area and will provide an acceptable transition to the adjoining sites which do not contain significant building stock and are also likely to be redeveloped. The heritage item opposite is quite isolated in this context and will not be unreasonably impacted on by a development of this type as it is already within the visual context of much larger development along the edge of the city centre and is read against the bulk of the Kennards Self Storage facility. The development will not affect those identified characteristics of the area listed in the Statement of significance. The site in its present form does not provide evidence of that significant development pattern and is separated from it by other intrusive development. Additionally, the site is separated from the remnant housing in Ada Street by sites with lower development potential in terms of height and in my opinion these sites would not be unduly affected by the current proposal.

40. In summary Mr Staas supports the approval of the application on the basis that:

1. The provision of height and FSR to the site through the LEP maps must be taken into consideration when evaluating what the expected development outcomes for the site should be;

2. Clause 5.10 of the LEP does not prohibit the development but requires the consent authority to consider the impact that it may have on the significance of the HCA, and it is his conclusion that the development will not affect those characteristics of the area identified in the statement of significance for the HCA (Exhibit 3.)

3. The proposed development will more closely be related to development adjoining the site to the north and will not have a major adverse impact on the existing form, character, significance or desired future character of the Harris Park West Heritage Conservation Area or be unacceptable in this context;

4. There will be no significant adverse impacts on the surviving houses in Ada Street resulting from the proposed development that is separated from them by sites with quite different development potential indicated by their maximum height limitations.

41. In the alternative, Mr Brooks emphasises that the site is wholly contained within the HCA and that therefore any development of the site must be considered, under cl 5.10(4) of LEP 2011 for the impact it may have on the HCA and any heritage items in the vicinity. Mr Brooks argues that the DCP controls in Parts 3.5.1, 4.3.2 and 4.4.3.3 do not distinguish between different areas in the HCA, and therefore the controls apply to the site. It is his conclusion that these two factors, in combination with an assessment of the proposal against the objectives of the height control that result in the height of the proposed development being unacceptable. He states:

Clause 4.3 of PLEP 2011 carries four criteria whereby the maximum permissible heights for any development must be tempered:

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c) to require the height of future buildings to have regard to heritage sites and their settings,

(d) to ensure the preservation of historic views,

(e) to reinforce and respect the existing character and scale of low density residential areas,

… the proposed development, at 8 storeys in height, being of a very modern design that might be acceptable in many other contexts, and that will be visible from many streetscapes within the Harris Park West HCA, does not meet these four criteria.

The maximum permissible heights set out in the LEP Height of Buildings Map are only achievable if the objectives in the enabling Clause 4.3 are met and only if the provisions of PLEP 2011 Clause 5.10 are also met. In addition, the maximum permissible height can only be met if the proposed development responds responsibly to the relevant provisions of PDCP 2011. These requirements are all included in the planning policies that govern development on the subject land. No one of these provisions can take precedence over the others. (Exhibit 3)

42. In response to Mr Staas, it is Mr Brooks evidence that there is no need for the subject site to be regarded as a transition from the higher density development within the CBD precinct to the north of the site. He concludes that the transition has already been established in the area between Kendall and Parkes Street (north of the subject site) where development has already occurred at eight and four storeys in height as shown in the following. This is the appropriate transition to the HCA, and as such it is his view that the subject site should not be regarded as a transition to the HCA.

Figure extracted from the Joint Expert report of the Heritage consultants (Exhibit 3)

43. In his evidence Mr Brooks relies on Grigorakis v Bayside Council (2016) NSWLEC 1573, in which Brown C examined the interrelationship of the LEP height controls and heritage considerations under cl 5.10(4) as follows:

35. There is no question of primacy or ranking of the planning controls that influence development on the site. Put simply, the heritage provisions on cl 5.10 and the more general planning provisions in DCP 2013 both apply. The heritage considerations are only an additional layer of planning controls to consider. In this case, the heritage provisions of cl 5.10 have the effect of limiting development on the site such that the full potential as set out by Control C7 in pt 5.2.2.6 may not be achieved. It is not unusual for local environmental plans to have no specific controls for heritage items in areas where more general controls apply. This however does not diminish or dilute the importance of cl 5.10. Importantly, there is nothing in LEP 2013 or DCP 2013 that guarantees the maximum requirements in Control C7.

36. I also note that the height and storey controls in Control C7 are expressed as a “maximum” and there is no suggestion that the maximums can be achieved or even if the maximums are achieved, that approval will automatically follow.

37. In considering the question asked by cl 5.10(4) to “consider the effect of the proposed development on the heritage significance of an item”, I have found that the there is an effect and that effect is significant and warrants the refusal of the application.

4.30 There is nothing elsewhere in PLEP 2011 or PDCP 2011 that overrides the provisions of Clause 5.10 and nothing that guarantees the “maximums” can be reached in a manner that ignores or varies the direct requirements with the PDCP 2011 overarching provisions regarding development in conservation areas. (Exhibit 3)

44. Whilst he agrees that, the subject site is capable of redevelopment, it is Mr Brooks’ conclusion that the development of a building of the height, scale, bulk and contemporary architectural character as proposed by the application will have a major negative impact on the Distinctive Characteristics, Heritage Significance and Desired Future Character of the Harris Park West Heritage Conservation Area (Exhibit 3).

45. In his evidence Mr Brooks also raises concerns with the scale of the proposal and its visibility from within the HCA area, particularly along the length of Wigram Street. He argues that the rear elevation of the proposal (facing the HCA) is an imposing six storey high wall, some 20m long directly on the property boundary. He concludes that this will be the primary viewing angle of the building when looking north from the depths of the HCA, particularly along the majority of Wigram Street and that the rear elevation will adversely impact the setting and backdrop of the heritage items in Ada Street (Exhibit 3). Mr Brooks concludes that as the subject site is located at the entry to the HCA (from Parkes Street) development of an appropriate scale, responsive to the distinctive characteristics of the HCA, is important to mark the boundary of the HCA.

46. Mr Brooks provides the following analysis of the elements within the built environment that currently act to define the boundaries of the HCA.

47. Mr Brook’s argues that the above figure demonstrates the traditional low scale character of the Harris Park West HCA is enclosed by the railway embankment and medium rise buildings to the north (thinner red line) and them by the taller buildings to the west and north (thicker red line). It is his view that approval of the proposed building will blur the clarity of these boundaries. (Exhibit 3)

48. In summary Mr Brooks argues:

1. the proposal will adversely impact on the attributes which contribute to the heritage value and character of the Harris Park West Heritage Conservation Area, in accordance with PDCP 2011 Part 4.4.3.3 Objective 1 and on the setting of the heritage items in Ada Street; and

2. that the project will have an adverse impact on the Heritage Conservation Area in terms of the provisions of LEP Clause 5.10(4).

49. In submissions Mr Clay argues that currently the subject site makes no contribution to the HCA. In contrast to Mr Brooks he submits that the sites that have been allocated additional height under the LEP, in proximity of the subject site, are specifically those that contain no elements or buildings that have the distinctive characteristics outlined in the DCP as representing the HCA. He argues that this analysis reinforces a conclusion that the Council made a deliberate decision to create a transition across the subject site to the areas within the HCA that display the distinctive characteristics outlined in cl 4.4.3.3 of DCP 2011. In other words the additional development potential provided by the LEP was allocated only to those sites that did not have built form that was representative of the HCA.

50. Mr Clay emphasises that the height of building map, within the LEP, is not a simple plan of concentric circles of diminishing height, but rather a considered and purposeful approach to the allocation of height on a precinct basis. It is his view that the Council in their strategic planning have accepted that the HCA area and the heritage items will be seen against the backdrop of high-rise buildings. It is his submission that the redevelopment of the site as proposed by this application is consistent with this strategic intent.

51. In the alternative, Mr Nash contends that the fact that the subject site is on the edge of a HCA is not relevant to the Courts consideration of the proposal. It is his submission that there is no differential weight placed on controls on sites on the boundary of a heritage conservation area, or on the basis of whether the existing site contains elements that display the distinctive characteristics outlined in the DCP as representing the HCA. The fact that the site is within the HCA triggers the application of the controls in the DCP. It is Mr Nash’s argument that there is no inconsistency between the DCP and the LEP. The LEP height control is a maximum which may not be able to be achieved when consideration is given to the objectives of the control, the specifics of the site, and other considerations in the LEP such as cl 5.10 (Heritage) and cl. 4.6 (Exceptions to development standards).

52. It is the Council’s submission that the proposal will have a substantial impact on the significance of the HCA, and will have an effect on the heritage items in Ada Street in circumstances where the heritage experts agree these items make a strong contribution to the HCA. Mr Nash concludes that on the basis of the evidence of Mr Brooks the proposal will also unreasonably blur the distinction between the HCA and the City Centre and the sense of place created by the existing strong elements in the built environment [refer par 45].

53. In conclusion Mr Nash submits that properly considered the proposed development is antithetical to the distinctive characteristics of the HCA, as accepted by Mr Staas, and for the reasons given by Mr Brooks will have a significant, and unacceptable impact on the significance of the HCA.

54. In contrast, in closing submissions Mr Clay argues that the subject site never had an intimate scale, a single storey cottage or a narrow allotment defined as the distinctive characteristics of the HCA. The site is not a contributory item and demolition is agreed between the experts as appropriate. It is also agreed between the experts that the design of the replacement building proposed by the application is of a satisfactory urban design standard. It is his submission that the boundary of the HCA cannot reasonably be taken to reduce the heights in the LEP to a two storey built form.

Findings

55. The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. In order to assess the impact of the proposal under cl 5.10 it is necessary to define the significance of the heritage conservation area, and then determine the impact of the proposal on that significance. In this case, the significance is agreed between the experts to be defined by Section 4.4.3.3 of DCP 2011 [refer par. 28].

56. Following a consideration of the evidence and the submissions I accept Mr Brooks evidence and find that the proposal has a detrimental impact on the significance of the HCA for the following reasons:

1. The proposal does not dealt skilfully with the frontage to the HCA. The elevation treatment of the proposed building relies on the future development of the adjoining site to provide an appropriate address to the streetscape when viewed from Wigram Street. This is particularly evident in the architectural resolution of the proposed rear elevation [Drawing A201];

2. I find that the proposal is inconsistent with the objectives (a), (c) and (e), of the Height control at cl 4.3 of LEP 2011 namely:

(a) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

(c) to require the height of future buildings to have regard to heritage sites and their settings,

(e) to reinforce and respect the existing character and scale of low density residential areas,

For the reasons that:

1. I am satisfied that the proposed development does not achieve a satisfactory built form in scale and character, in particular in relation to its presentation to the south (rear elevation), and the HCA.

2. Contrary to objective (e) the proposed development is not of an appropriate scale, given its location at the boundary of, and entry to the HCA.

3. I accept the evidence of Mr Brooks that the proposed development will impact the setting of the heritage listed cottages in Ada Avenue and the heritage item opposite the site on Wigram Street.

3. I do not accept that the proposal is an appropriate response to its location at the junction of the City Centre with the heritage conservation area. I find that the HCA is well defined by the existing elements within the built environment [par. 46] and the proposed development of the site does not adequately respond to it location at the commencement of the HCA, and its entry from Parkes Street;

4. The proposal fails to respond appropriately to suite of Objectives, Controls and Design Principles in Sections 3.5.1, 4.3.2 and 4.4.3.3 of DCP 2011 and they appropriately apply to development within the HCA. Pursuant to s s79C(3A) of the Act strict compliance with the DCP is not required, but in this case I find that the applicant has failed to demonstrate that the variation to the DCP controls sought achieves the objectives of the relevant standards.

57. Whilst the LEP Height of Buildings Map provides a height of 28m that needs to be overlayed by heritage consideration, amongst other merit factors, to determine the appropriate bulk and scale of development on the site (par. 36 Grigorakis v Bayside Council (2016) NSWLEC 1573). I find that the proposed scale and architectural presentation of the development will have a detrimental impact on the distinctive characteristics, and heritage significance, of the HCA.

57. Having considered the effect of the proposed development on the heritage significance of the Harris Park West Conservation Area, I am not satisfied that the proposal achieves the objective of cl 5.10(1)(b) of LEP 2012 to conserve its heritage significance. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the HCA, I am satisfied that the effect is unacceptable and sufficient to warrant refusal of the application for this reason alone. Consequently there is no power to grant consent to the application.

58. For completeness, I note that the development also relied on a variation to the height control under clause 4.6 of LEP 2011. The joint expert report on urban design and planning (Exhibit 4) notes as agreed:

Experts agree that the height of the proposed building, including lift overrun non compliance, would be acceptable from an urban design and planning view point absent the heritage considerations. Contention 2 is concerned with “impact on the surrounding heritage conservation area” and therefore is a matter for heritage experts.

60. In this case I find that consent cannot be lawfully granted to the proposal as, for the reasons provided above, I am not satisfied that the development is consistent with the objectives of the height standard (refer par 53), or that the applicant has established that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

61. I have already accepted the evidence of Mr Brooks that the height of the development is not suitable in the context of the HCA. The breach is associated with the lift overrun. In my view, the reasoning behind the finding under cl 5.10(4) is also relevant to the consideration of the cl 4.6 variation request given the framing of the objectives of cl. 4.3 Height of Buildings clause. For the Court to accept the applicant’s variation request it must be satisfied that the development is consistent with the objectives of the relevant standard (Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7) in this case cl 4.3. For the reasons detailed in [par. 56] I find that the proposal is inconsistent with the objectives (a), (c) and (e), of the Height control at cl 4.3 of LEP 2011 namely that the breach of the height standard exacerbates a bulk and scale that this inconsistent with the heritage significance of the HCA.

Conclusion

62. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the Harris Park West Heritage Conservation Area, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. Consequently, there is no power to grant consent to the development application and the application must fail.

63. At the commencement of the proceedings, leave was granted to rely on amended plans. The amended plans sought to address issues raised by the experts in their joint conference. Section 97B of the Act provides that an applicant may file an amended application other than to make minor amendments and, if so, the Court must make an order for the payment by the applicant of those costs as set out in s 97B(2). Having regard to the matters raised in Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15, Pepper J [at 42] I find the amendments in this case to be appropriately categorised as minor. There are not a number of amendments, significant reassessment of the application was not required, the concept was not changed, new issues were not raised and the amendments were responsive to the issues raised by the experts.

Orders:

64. The orders of the Court are:

1. The objection pursuant to cl 4.6 of the Parramatta Local Environmental Plan 11 is not sustained;

2. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979

3. The appeal is dismissed;

4. Development application DA 109/2016 for consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park is refused.

5. The exhibits are returned with the exception of exhibits 5 and C and the Class 1 application.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 22 May 2017