Benmill Pty Ltd v Council of the City of Sydney

[2019] NSWLEC 1291

Land and Environment Court

New South Wales

Medium Neutral Citation:	Benmill Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1291
Hearing dates:	24 June 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Modification Application No. D/2015/1237/D to modify the approved development to add a steel awning over the outdoor terraces of the southern apartments on Level 2 and amend the position of the posts supporting the approved roof top awning, at 276-282 Devonshire Street, Surry Hills, is approved, subject to the consolidated conditions of consent at Annexure A. (3)   The exhibits, other than Exhibits 1, A and B, are returned.
Catchwords:	MODIFICATION APPLICATION – impact of the addition of an awning to an approved development on the heritage significance of the heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Benmill Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Solicitors: G Shapiro, Hones Lawyers (Applicant) P Canning, Council of the City of Sydney (Respondent)
File Number(s):	2018/314878
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent D/2015/1237/B (the approved development) to add a steel framed awning over the outdoor terraces of the southern apartments on Level 2 and modify the approved roof top awning to adjust the position of the posts to align with the posts of the proposed Level 2 awning (the proposal) at 276-282 Devonshire Street, Surry Hills (the site).

2. The appeal was subject to conciliation on 17 January 2019, 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.

Issues

3. The contention raised by the Council of the City of Sydney (the Council) is that the proposed Level 2 awning will have an unacceptable impact on the heritage significance of the heritage conservation area (HCA) as it reduces the legibility of the warehouse’s overall form and detracts from the parapet façade wall which defines the top of the warehouse, due to its proximity to the Devonshire Street façade of the warehouse. The solid roof and series of columns of the awning creates a sense of an enclosure to the open space and complicate the additions form and visual bulk, without providing any additional amenity to the apartments.

The site and its context

4. The site is on the northern side of Devonshire Street, between Crown and Bourke Streets. The site contains a two storey Federation style former warehouse building. The approved development is currently under construction.

5. There is a three storey former warehouse building to the west of the site, the rear of a row of terrace housing fronting Bourke Street to the east of the site and a building under construction opposite the site.

Background and the proposal

6. The approved development includes a two and three storey addition housing residential apartments above the parapet of the existing warehouse building and setback from the façade of the warehouse building by approximately 3m.

7. The proposal is to add a new awning structure 33.8m long, which is positioned within the approved setback between the Devonshire Street masonry parapet of the warehouse building and the new addition, to a maximum height of RL 49.34 (Ex A, drawing 4.56-06 awning section). The awning is to be constructed as a steel structure with a powder coat finish to match the building cladding colour and a metal flat roof. The awning is 1.8m wide, leaving 1.195m between the awning posts and the façade of the Devonshire Street elevation of the warehouse building.

8. The applicant submits that the purpose of the awning is to improve the amenity of the apartments on the southern side of the development by providing them with a covered outdoor area. The purpose is also design driven as the awning will soften the transition between the warehouse building and the stark façade of the new addition.

9. The parties agreed to a condition being added to the conditions of consent to specify the colour of the steel frame and roof of the proposed awning on Level 2.

Planning framework

10. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4(b) as the approved development to be modified is for a building of at least three or more storeys. The Council submits that Principle 2: Building form and scale of SEPP 65 is a relevant consideration.

11. The site is zoned B4 Mixed Use pursuant to 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.

12. The site is identified as contributory to the heritage significance of the HCA (Building Contributions Map Sheet 016 of LEP 2012). The relevant objective of the heritage conservation clause at cl 5.10(1)(b) of LEP 2012 is to conserve the heritage significance of heritage items and heritage conservation areas. The consent authority must, before granting consent under the heritage conservation clause, consider the effect of the proposed development on the heritage significance of the item or area concerned, at subcl (4).

13. Clause 6.21 Design excellence of LEP 2012 applies to the development at subcl (2). In considering whether the proposal exhibits design excellence, the consent authority must have regard to any heritage issues and streetscape constraints, at subcl (4)(d)(iii).

14. Sydney Development Control Plan 2012 (DCP 2012) applies. The Locality Statement for Surry Hills, at 2.11.7, requires development to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

15. The objectives of the heritage section at 3.9 include to enhance the character and heritage significance of heritage conservation areas. New development in heritage conservation areas, at 3.9.6, must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements at 3.9.7(2), and alterations and additions must respect significant original or characteristic built form and use appropriate materials, finishes and colours, at (3)(a) and (f).

16. Setbacks are to be consistent with the Building setback and alignment map, at 4.2.2.1(1) of DCP 2012 and the map shows 3 storeys, so no setback is required by this provision for the third floor.

17. Setbacks above the street frontage height are to be included where adjacent buildings include upper level setbacks and new development is adjacent to a heritage item to reduce visual impact and to respect the heritage item, at 4.2.2.2(1) of DCP 2012. The parties agreed submission is that this proposal is not caught by (1) as the adjacent heritage item does not have an upper level setback and as (1) is an enabling provision, the requirements in 4.2.2.2(2) and (3) are not relevant to the proposal.

Expert evidence

18. The applicant relied on the expert evidence of Mr Graham Brooks (heritage) and Mr Jeff Mead (planning). The Council relied on the expert evidence of Mr Hui Wang (heritage) and Mr David Zabell (planning).

19. The planning experts agreed in their joint report (Ex 5, p4) that there are no planning issues in this matter that would warrant the refusal of the application and so they were not required to give oral evidence. The heritage joint report was marked Ex 4 in the proceedings.

20. The Council submits that there is no issue raised in regard to the adjustment of the position of the posts supporting the approved roof top awning.

Consideration

21. The heritage experts disagreed on the impact of the proposed Level 2 awning on the heritage significance of the HCA, particularly the contribution made to the significance of the area by the former warehouse building identified as a contributory building in the HCA.

22. According to Mr Wang, the proposal results in a confused relationship between the new and the old because it encroaches on the 3m setback between the parapet of the façade of the warehouse building and the new addition, because the form of the new two storey addition provides a simple and uniform backdrop for the parapet of the warehouse building and does not detract from the contribution of the street façade of the warehouse building to the HCA. In his view, the 3m setback to the contemporary new addition over allows the warehouse building to retain its dominance in the streetscape. The awning would be visible from the public domain in Devonshire Street and would provide a new layer of building components. The proximity of the awning to the façade of the warehouse would detract from the visual prominence of the parapet and overall form of the warehouse building.

23. I agree with Mr Wang’s view that the front parapet, with a pediment in the middle, makes a strong contribution to the historical character of Devonshire Street and the HCA. I do not accept, however, that the addition of the awning behind the parapet would have such a dominant effect as to detract from the visual prominence of the street façades of the warehouse building, because the awning is a fine and minimal structure which will be viewed against a substantial and dominant addition to the warehouse building.

24. I accept and prefer Mr Brooks’ evidence that the addition of the awning with its slender posts supports will enhance the currently approved composition by providing a visually subtle secondary transition between the historic building base and the contemporary residential accommodation over. The contemporary awning is clearly distinguishable from the original form and materials of the warehouse building and it is physically separate and associated with the approved addition.

25. The awning will be perceived as a structure associated with the new contemporary addition and not with the Federation style warehouse building, so the issue, raised by the Council, that warehouse buildings did not traditionally have awnings is not pertinent to the heritage contention.

26. Importantly, the awning is not an enclosed structure, it is a lightweight steel frame which is open and permits views to the façade of the addition over the original warehouse building, so that the 3m setback of the new façade from the face of the warehouse building’s parapet remains. I accept the submission of the applicant that the addition of the awning will enhance the privacy of the private space of the apartments on the southern side of the development on Level 2 from the upper apartments that would otherwise overlook the southern outdoor terraces on Level 2.

Conclusion

27. I have considered the effect of the proposed awning addition to the approved development on the heritage significance of the HCA and particularly on the contribution made by the former warehouse building on the site to the heritage significance of the HCA and I am satisfied that the addition of the awning on Level 2 of the approved development is acceptable.

Orders

28. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. D/2015/1237/D to modify the approved development to add a steel awning over the outdoor terraces of the southern apartments on Level 2 and amend the position of the posts supporting the approved roof top awning, at 276-282 Devonshire Street, Surry Hills, is approved, subject to the consolidated conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 1, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 27 June 2019