Bilios v City of Sydney Council

[2010] NSWLEC 1175

Land and Environment Court

of New South Wales

CITATION:

Bilios v City of Sydney Council [2010] NSWLEC 1175

PARTIES:

APPLICANT
Spiro Bilios

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

10091 of 2010

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- s96 application for retrospective approval to remove internal walls of heritage significance.
Whether walls should be reconstructed or interpreted to mitigate for their removal.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Local Environment Plan 2005

CASES CITED:

Politic Pty Ltd v City of Sydney [2009] NSWLEC 1239

DATES OF HEARING:

20/04/2010

EX TEMPORE JUDGMENT DATE:

20 April 2010

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (barrister)
SOLICITOR
Gadens Lawyers

RESPONDENT
Ms F Berglund (barrister)
SOLICITOR
City of Sydney Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

20 April 2010

10091 of 2010 Spiro Bilios v City of Sydney Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal against the refusal by the Council of the City of Sydney (council) of an application under s 96AA(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) to amend a development consent (D/2008/984) for a building known as The Blacket, 365 George Street, Sydney (the site).

2 The Court granted a deferred commencement consent on 22 June 2009 (Politic Pty Ltd v City of Sydney [2009] NSWLEC 1239). The consent became operational on 13 August 2009.

3 The development consent was for alterations and additions to The Blacket for a change of use from hotel to retail, commercial and place of public entertainment. The development consent included demolition and rebuilding of the upper two levels.

4 The s 96 application seeks retrospective approval to remove internal walls at the eastern end of the first floor (level 3) of the building. The walls were removed “by mistake” as part of the strip out by the previous tenant.

5 The Blacket is listed as a heritage item under the Sydney Local Environment Plan 2005 (LEP 2005). The walls, which form the eastern room of The Blacket building, are identified as being of “high heritage significance” in the Conservation Management Plan (CMP) prepared by Tanner Architects Pty Ltd, which accompanied the development application.

6 The site, its locality, the history of the application and the planning controls are summarised in the Statement of Facts and Contentions filed by the council on 15 March 2010.

7 The key contention between the parties is the manner by which the removal of the walls can be mitigated.

8 The Court visited the site and heard heritage evidence from Mr H Tanner, for the applicant and Mr J Poulton, for the council. Planning evidence was provided by Mr A Darroch, for the applicant, and Ms B McNamara, for the council.

9 Mr Tanner and Mr Poulton agreed that the walls to the eastern rooms were of “high significance” as set out in the CMP. They disagreed about the significance of the rooms and their spatial quality.

10 Mr Tanner and Mr Poulton agreed that the demolition of the walls had occurred without the knowledge of council or Tanner Architects and their removal had adversely affected the significance of the item. The experts agreed that the floors, ceilings and skirting boards that had also been removed were not original fabric but probably dated from the hotel fit out in 2000.

11 Mr Poulton and Mr Tanner agreed that measures were required to mitigate the removal of the walls but disagreed on the appropriate option. Their respective opinions are detailed in their joint report and are in summary:

Option A; the reinstatement of the rooms (preferred by Mr Poulton) which would involve the reconstruction of known brick walls and the provision of new timber flooring, timber skirtings and architraves, internal doors and venting windows and plaster walls and ceiling finishes.
Option B; interpretation (preferred by Mr Tanner) which would involve an interpretive panel on the northern wall as well as brass lines in the floor and walls to indicate the original layout of the rooms, to explain to future visitors the nature and detail of this area of the building and its role as part of the bank.

Findings

12 In adjudicating between these different approaches, it is first necessary to determine the significance of the walls and the spaces they enclose. The experts agreed that the walls are of high significance, as original fabric, but disagreed on the importance of the eastern rooms, which the walls enclosed.

13 The CMP also identifies the level of significance of the walls as being high, but identifies the interior spaces of the rooms as being of low or neutral significance.

14 I accept the findings of CMP, given that the finishes of the spaces have been significantly altered through previous approvals and the removal of the original fabric, including ceilings, floors and skirtings, etc. The nineteenth century layout of the room is not identified as significant nor are the rooms identified as having particular spatial quality, such as the banking chamber below.

15 The CMP includes the following policies in relation to the first floor, eastern rooms.

Policy 45; conserve and maintain the elements, finishes and fixtures and furniture of high significance including:
- windows and window joinery to First Floor north/east and south/east rooms dating from he Blacket period
- internal walls dating from the Wardell period.

Policy 46; establish a use within the first floor eastern rooms that respects the history and significance of the space.

16 As the walls have been removed and the space no longer exists the policies cannot be implemented. The question is whether reconstructing the walls would achieve an appropriate heritage outcome.

17 Article 20 of the Burra Charter states:

20.1 reconstruction is appropriate only where a place is incomplete through damage or alteration and only where there is sufficient evidence to reproduce an earlier state of the fabric. In rare cases reconstruction may also be appropriate as part of a use or practice that retains the cultural significance of the place.

20.2 reconstruction should be identifiable on close inspection or through additional interpretation.

18 Mr Tanner considered reconstruction to be appropriate only in limited circumstances, such as replacing a missing part of a significant element. He gave the example of if a bay of the GPO colonnade was missing it may be appropriate to reconstruct the bay to complete the colonnade.

19 Mr Tanner considered that reconstruction of the walls, in this case, would be a facsimile and would not regain the significance lost with the removal of the original fabric. Further, he considered there is not sufficient evidence to reproduce the original detail of the eastern rooms as designed by Wardell and that a requirement to do so would be beyond what was required by the development consent. Given that the original detail had previously been removed, Mr Tanner considers interpretation of the walls and spaces to be the appropriate heritage approach.

20 Mr Poulton considers that there would be sufficient evidence to reconstruct the rooms and walls based on either documentary evidence or reference to other Wardell designs. In his opinion, reconstruction is appropriate to mitigate the loss of a significant item and is consistent with article 20 of the Burra Charter.

21 I accept Mr Tanner's opinion. The walls were of high significance as original fabric from the Wardell period. The walls have been removed and the significance has therefore been lost and will not be replaced by a copy or a facsimile, even if this is based on documentary evidence of what previously existed.

22 The rooms and their spatial quality are not identified as being of significance and it is therefore not necessary for these spaces to be recreated.

23 I accept that the interpretation strategy proposed in condition 2(A) is acceptable given that the walls have been removed and the their significance lost.

24 The orders of the Court are therefore:

1. The appeal is upheld.
2. The application under s 96AA(1) of the Environment Planning and Assessment Act 1979 to modify development consent (D/2008/984) for the building known as The Blacket, 365 George Street, Sydney, is approved. The consent is modified as set out in Annexure A.
3. The exhibits, except exhibits 1, F and G, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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