Burrell Threlfo Pagan Pty Ltd v City of Sydney

[2004] NSWLEC 735

Land and Environment Court

of New South Wales

CITATION:	Burrell Threlfo Pagan Pty Ltd v City of Sydney [2004] NSWLEC 735
PARTIES:	APPLICANT Burrell Threlfo Pagan Pty Ltd RESPONDENT City of Sydney
FILE NUMBER(S):	11091 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing single level cottage erection of 2- storey townhouse impact on Conservation Area overshadowing bulk scale height
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan
CASES CITED:
DATES OF HEARING:	03/12/04
EX TEMPORE JUDGMENT DATE :	12/03/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Strati, solicitor SOLICITORS Avendri Singh Strati & Kam Lawyers RESPONDENT Mr A Pickles, barrister SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 December 2004

11091 of 2004 Burrell Threlfo Pagan Pty Ltd v City of Sydney

JUDGMENT

1 This is an appeal against the refusal by Sydney City Council of Development Application UO4-00140 for the demolition of an existing single level cottage and the erection of a two storey dwelling in it’s place at 15-23A Knight Street, Erskineville.

2 The proposed development is located at the eastern boundary of a 15 town house development, previously approved under Development Application number U98-00569. The retention of the cottage is required by this approval. The development is now well advanced in its construction.

3 The cottage does not have a street frontage. To the north and south of the cottage are town houses of the approved development and to the west are the rear courtyards of other approved town houses. To the east are the rear yards of existing terraces fronting Amy Street.

4 The site is zoned Residential 2(b) under South Sydney Local Environmental Plan (the LEP). Clauses 22, 23A, 23B, 24 and 25 of the LEP relating to heritage conservation and cl 28 relating to built environment design principles and master plans apply to the site.

5 The site is located within Heritage Conservation Area 22 (or the former McDonald town conservation area), although the cottage is not an identified heritage item.

6 South Sydney Development Control Plan 1997 (DCP1997) applies to the proposed development in relation to Part E 4.1 Visual and Acoustic Privacy and Part E 5.1 Energy Efficient Site Layout and Building Design.

7 South Sydney Heritage Conservation Development Control Plan 1998 (DCP 1998) applies, in particular cl 3.1.4 Demolition.

8 The council filed a Statement of Issues containing three significant issues. These can be grouped into the following main areas. Firstly, whether the demolition of the cottage can be justified. Secondly, whether the proposed replacement dwelling is acceptable considering the additional overshadowing, loss of privacy and bulk, height and scale.

9 Evidence for the council was provided by Miss Clare Elek a town planner, Mr John Poulton, a heritage specialist, both with the respondent council and Mr Chris Rouse, an engineer.

10 Evidence for the applicant was provided by Mr Kim Burrell, a town planner, Mr Paul Rappaport, a conservation architect and heritage consultant, and Mr Simon Wiltshire, an engineer.

11 On the issue of whether the demolition of the cottage can be justified, Mr Rappaport supports the demolition of the cottage, as its original setting has been lost. He states the majority of the fabric has also been lost and the cottage is in an advanced state of disrepair. In his opinion, the extent of conservation and structural support required to restore the structure is too great.

12 Mr Poulton, on the other hand, sees the retention of the cottage as necessary because of its significance, its location in a heritage conservation area, and the development history of the site. He states that the retention of the cottage was always part of the approval, and while it may have deteriorated since the approval, this in itself is not a valid reason for its demolition.

13 Mr Rouse and Mr Wiltshire reach similar conclusions on the structural adequacy and restoration. Neither engineers suggest that the cottage is structurally unsound, but both note the work required to allow the cottage to comply with the Building Code of Australia and the relevant Australian Standards.

14 Mr Wiltshire concludes that if the building was of exceptional significance it may be reasonably feasible to retain the building and return it to its previous use as a private dwelling. However, in this case the extent of work required is excessive.

15 Mr Rouse states that the structure may be restored and carefully rebuilt. However, the question is one of heritage significance versus the economic viability of restoration. If it could be shown that by restoring and reusing the cottage, it would add value to the development, then the developer should make every effort to do so.

16 The relevant planning control aim (cl 22(e) of the LEP) seeks “to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of a conservation area”.

17 Clause 3.1.4 of DCP 1998 states that ‘the demolition of heritage items and components which contribute to the character of a heritage conservation area is contrary to the intent of the heritage listing and should be treated as a last resort”.

18 While the cottage is not a designated heritage item there was agreement that the cottage has local significance through its 1870’s construction, and it’s association with Henry Knight, a local identity.

19 In considering this issue, the evidence does not suggest that the restoration is not possible for structural reasons. This leads to the question of whether it is viable.

20 In this regard the Court had little evidence beyond the opinions of Mr Rappaport and Mr Rouse. No estimates of restoration costs were provided to the Court. As the previous approval that required the restoration was accepted, and work commenced on the project, there must be a presumption that it was viable at that stage. Even though the current applicant was not the owner of the site at the approval stage, I must also presume that he was aware of the obligations of the approval when it was purchased. While this does not stop any application to change the form of the proposed development, it does place an obligation on the applicant to show why any change should be supported.

21 In this case, and considering the emphasis on protection of heritage conservation areas in the LEP and DCP 1998, I am not convinced that the applicant sufficiently justified the argument for the demolition of the cottage.

22 For completeness, I will briefly deal with the other issues.

23 In relation to overshadowing, it was agreed that the proposed two-storey dwelling casts additional shadows over the rear courtyard of unit 8. The amount of sunlight on this courtyard does not now satisfy the requirements of Part E 51 of DCP 1997.

24 The overlooking issue related to the windows of bedroom two of the proposed dwelling. These windows overlook the court yards of the new town houses facing Knight Street and the existing terraces fronting Amy Street

25 The additional height, bulk and scale was an issue raised by Mr Dawson, who owns the property at 25 Amy Street and Mr Mulligan who owns the property at 23 Amy Street. Both were concerned about the additional bulk when viewed from their rear courtyards.

26 On these issues I agree with the position put by the council and the local residents. While Mr Burrell suggested the use of screens, fixed windows, and frosted glass I agree with Ms Elek that these measures would create unacceptable amenity impacts on the bedroom. Similarly, additional shadows over the rear courtyard of unit 8 reduce the amenity of this area.

27 The concerns could be collectively addressed through a simple finding that the erection of a two storey building in this location is not appropriate. This is not surprising when the design always contemplated a single storey structure.

28 In my view, the impacts and the attempts to address these impacts are not supportable under any assessment.

29 I also agree with Ms Elek’s evidence that a two storey building in this location creates unacceptable privacy and visual bulk impacts for other dwellings in the development because of the inadequate separation distances.

30 For these reasons the orders of the Court are;

1. The appeal is dismissed.

2. DA U04-00140 for the demolition of an existing cottage and the erection of a two-storey dwelling at 15-23A Knight Street, Erskineville is refused.

3. The exhibits are returned.

G T Brown
Commissioner of the Court