Celleb Pty Ltd v Sydney City Council

[2005] NSWLEC 749

Land and Environment Court

of New South Wales

CITATION:

Celleb Pty Ltd v Sydney City Council [2005] NSWLEC 749

PARTIES:

APPLICANT
Celleb Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

11011 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Alterations and additions to 8-storey commercial building - streetscape and urban design - refurbishment of lift lobby - retention and conservation of facade

LEGISLATION CITED:

Draft Sydney City Council Local Environmental Plan 2002
Central Sydney Development Control Plan 1996
Central Sydney Local Environmental Plan 1996

CASES CITED:

Jan Mansie v Willoughbty City Council [1995] NSW LEC 2005

DATES OF HEARING:

29/11/2005 and 30/11/2005

EX TEMPORE JUDGMENT DATE:

11/30/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen, barrister
Instructed by Mr R Reid
Of: Aitken McLachlan Thorpe

RESPONDENT
Mr S Kondilios, solicitor
With: Ms P Adraskelas, solicitor
Of: Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

30 November 2005

11011 of 2005 Celleb Pty Ltd v Sydney City Council

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 COMMISSIONER: On 16 May 2005 the respondent Sydney City Council granted a deferred commencement development consent for alterations and additions to the existing eight storey commercial building at 147-153 Castlereagh Street, Sydney (‘the development consent”).

2 The existing building was constructed circa 1935 and is presently used for retail and commercial purposes. According to the statement of basic facts, the proposed alterations and additions essentially comprise:

(a) Internal alterations to all levels of building.
(b) The addition of a part basement level to facilitate service access from the adjoining development site.
(c) The addition of three new levels being two commercial levels and one plant level.
(d) Over cladding of the façade.
(e) Demolition of spandrels and columns at level one to create floor to ceiling glazing.
(f) Construction of a new awning.
(g) Infill of existing colonnade.

3 The site is situated in the Sydney central business district on the west side of Castlereagh Street, between Market and Park Streets. Surrounding land uses consist primarily of retail and commercial development as well as hotel and residential uses.

4 The site has an irregular shape with a frontage of 31.3 m to Castlereagh Street and an area of 1,325.6 sq m.

5 Under CentralSydney Local Environmental Plan 1996 the site is included in the city centre zone wherein the proposed alterations and additions require development consent. Also applicable is the Central Sydney Development Control Plan 1996. Also said to be applicable is the draft City of Sydney Local Environmental Plan 2002 (“the draft LEP”).

6 Relying on the decision of Bignold J in Jan Mansie v Willoughby City Council [1995], NSW LEC 2005, Mr McEwen for the applicant submitted that the draft LEP was of no relevance to the consideration of this application because it contained savings and transitional provisions the same as those considered in that case, notwithstanding that the local environmental plan in that case had been made and gazetted. I agree with this submission, but find that the provisions of the draft LEP can be of some assistance in understanding the approach of the council in relation to urban design.

7 The development application was submitted to council on 22 December 2004. It was advertised on 31 December 2004 for a period of 24 days. Owners and occupiers of adjoining and surrounding buildings were notified. As a result five submissions objecting to the proposal were received.

8 Whilst on site Mr P Conway on behalf of the owners of the adjoining property at 155 Castlereagh Street, Sydney, explained the owners’ two main objections to the proposal. First, the development would take away available light to a number of windows on the north facing wall of their building. Second, the development may inhibit or prevent egress from their building to and from Castlereagh Street.

9 As for the loss of light concern, I accept that this will occur to a degree, but not such as to be a determinative concern, taking into account that the affected windows are built to the boundary and the form and character of development in the CBD. Regarding egress from the building, this was a matter of particular concern given that fire safety may be involved. However, given that there are no presently proposed openings from the subject building onto the adjoining property this issue does not arise.

10 Other matters of concern raised in the objections include overdevelopment of the site and renewal of leases. I heard no evidence to suggest that the renovation and extension of this building would indicate an overdevelopment of the site, particularly taking into account that it’s floor space ratio is well below that permissible under the LEP. Lease arrangements between the building owner and his tenants are private matters and are not the subject of consideration under the applicable planning controls.

11 The development consent includes deferred commencement conditions that require the submission of amended plans that would essentially require: the retention and conservation of the existing Castlereagh Street façade of the building, together with a façade condition report, including the method of façade repair, (Conditions A and B); and the refurbishment of a sample of an original office floor lift lobby, (Condition D). These two requirements comprise the issues in dispute.

12 I agree that the condition that would prevent new openings in the façade should no longer be in issue. Condition E requires a change to the awning design and this has been agreed to by the applicant.

13 Relevant to the building façade or urban design issue, the objectives of the LEP in cl 12 relevantly require the protection of the intricate urban fabric of central Sydney and the achievement of a high quality of urban form and design, particularly in terms of relationships of buildings to their neighbours and to the public domain. The city centre zone objective in cl 18(J) requires the protection of the fine grained urban fabric of central Sydney, especially the existing network of streets and lanes. It also requires the provision of high quality development that contributes to the existing urban form.

14 The design excellence provisions in cl 28(D) of the LEP relevantly require that in determining a development application for external alterations to an existing building, consideration must be given as to whether the proposal exhibits design excellence. Design excellence is not defined in the explanatory notes within the section, but these notes explain that in most situations design excellence can be achieved by a well mannered building that responds sensitively to its context.

15 Section 2.7 of the DCP deals with building exteriors. The relevant objectives in that section require that new buildings should contribute positively to the streetscape by means of high quality architecture and should provide rich detail and architectural interest, especially at visually common parts of buildings at lower levels and rooftops. Designs that are responsive to nearby development and complement the streetscape are encouraged. Section 2.7.2 effectively requires that building exteriors are to be designed so as to reinforce the predominant masonry character and articulation of central Sydney, particularly at lower levels of buildings.

16 Section 26 of the draft LEP deals with design excellence, it provides that consent must not be granted to building alterations unless consideration has been given as to whether the proposed development exhibits design excellence. In determining whether any development exhibits design excellence, regard is to be had to certain matters including whether the development has a high standard of architectural design, materials and detailing and whether the form and external appearance of the building will improve the quality and amenity of the public domain.

17 The art deco façade of this building is dominated by projecting fins extending vertically over seven storeys. All but one of these fins have plum coloured terra cotta cladding/tiles. The other has aluminium cladding. Between the fins there are aluminium spandrel panels below steel framed windows. Surrounding the fins at the sides and the top parapet, the façade is finished with pale coloured terra cotta cladding/tiles. There was no dispute that the entire façade is in a deteriorated condition and requires substantial repair or protection.

18 The applicant’s architect Mr S Debello explained that replacement dark coloured polished stone cladding at podium levels is proposed. The central fins are to be reclad with aluminium finished in a Saturn bronze colour and having a pointed profile not entirely dissimilar to what exists.

19 The outermost fins are to be reclad with the same material but with a rectangular profile. This rectangular profile will also extend horizontally across the top of the central fins, thus effectively boxing them in. The remainder of the façade at both sides and above this box is to be reclad with light coloured polished stone.

20 In addition to the evidence of Mr Debello, expert evidence was given by:

• Mr C Corradi, a council town planner,
• Mr K Nash the applicant’s town planner,
• Mr R Staas, the applicant’s heritage consultant.
  

21 The four experts prepared a joint report. In that report they agreed inter alia that:

• The building is not listed as a heritage item nor is it part of a heritage streetscape. There is no heritage basis for retaining the façade.
• Subject to the design excellence provisions in the LEP the building can be replaced or refurbished.
• The perceived unacceptability of the design in the streetscape relates to the use of materials, rather than overall form.
  

22 The four experts did not agree on the interpretation of the planning controls in relation to the requirement for the distribution and extent of masonry in the façade. Nor did they agree on whether the proposal would meet the fine grained urban fabric requirement in cl 18 of the LEP.

23 Having considered the evidence of the experts, including the discussions held on site, the issue to be determined by the Court is whether or not the fins should be reclad, but rather whether the material to be used is an appropriate response to the requirements of the planning controls, including design excellence and material choice.

24 In my view the fine grained urban fabric objective in cl 18(J) by its own terms principally applies to the existing network of streets and lanes. In this regard, I also agree with Mr Staas’s interpretation of the term fine grained being the pattern of the arrangement and size of buildings and their plots in a settlement and is commonly used to refer to an area’s streets, blocks and pattern of junctions which define the urban structure. The proposal does nothing to affect any streets or lanes or blocks and hence does not infringe this part of the objective.

25 The other part of the objective that new development should be of high quality, and should complement the objectives in cl 12 that require a high quality urban form and the protection of an intricate urban fabric. In turn these provisions complement the design excellence provisions in cl 28(D) and the objections in s 2.7 of the DCP requiring a positive contribution to streetscape and architectural interest.

26 In terms of the now proposed façade design, leaving aside the question of appropriate use of materials and there being no evidence to the contrary, I agree with Mr Staas that it retains the overall form of the building is well resolved and will make an appropriate contribution to this section of the city. I also agree that the building will continue to be somewhat different in the streetscape but is nevertheless sensitive to its context and responsive to the applicable objectives and controls. In this regard there was no dispute that the provision of masonry cladding at lower levels, at the sides and at the parapet was appropriate and responsive.

27 In relation to the proposed cladding of the fins Mr Corradi said that the metallic finish would differ from the original terra cotta and would be less compatible with the existing masonry character of the street and hence would not be appropriate in this location. Simply put the cladding will present as being metal, but should instead be masonry. It would be contrary to the requirement of the DCP that the façade have a predominant masonry character.

28 Mr Corradi also said that if the aluminium cladding proposal were to proceed he would prefer to see a different colour used, preferring instead of the bronze colour in a satin finish, more of a sandstone colour in a flat finish.

29 In response Mr Nash argued that masonry is extensively used on the façade giving it a strong masonry feel. Given that the lower levels are substantially masonry clad, this is properly responsive to the requirement in the DCP that there be a predominant masonry character, particularly at the lower level of the building.

30 Similarly, Mr Debello accepted that there was a predominant use of masonry in the street, however, he pointed out that aluminium cladding was also used in the street and indeed exists on the subject building’s façade.

31 Mr Staas disagreed with Mr Corradi’s assertion that the proposal does not provide sufficient masonry given the streetscape context. He explained that the façade treatment is balanced to provide a strong masonry frame. He also said that the proposed box around the fins would be improved by being clad in masonry rather than in aluminium, although he did not believe this was imperative.

32 Mr Staas also disagreed with Mr Corradi in relation to colour and finish contending that what is presently proposed would provide the best outcome.

33 In relation to the use of materials on the façade, I have been persuaded by the evidence brought on behalf of the applicant in reaching the conclusion that aluminium cladding for the fins would not be inappropriate, I have taken into account the fact that although not common aluminium is already used on this building and elsewhere. I have also taken into account that whilst a close scrutiny of the fins will reveal that the material used is not masonry, this is balanced by the fact that the colour to be used, whether it is sandstone or bronze will not be conspicuous. I agree with Mr Staas that the façade would be better if the box around the fins were to be masonry clad as this would further contribute to the masonry framing and thus to the streetscape.

34 In all of the circumstances, I am satisfied that the proposal meets the design excellence requirements, being a well mannered building that responds sensitively to its context. The design is responsive not only to the streetscape, but also to the particular design criteria that the building itself generates.

35 Whilst a better design solution might be available for the façade of this building, this is not to the point because I have decided that what is now proposed is entirely satisfactory and meets the requirements of the planning controls.

36 As for the conditions that require the retention of the grand united signage and the refurbishment of a sample of lift lobby, I have not been persuaded that these are reasonable requirements. I have reached this conclusion, taking into account the fact that the building has no formal heritage significance and that there are other listed and protected buildings of this era in the city. I also note that the stairwell is nevertheless to be refurbished and retained essentially in its original form.

37 It is therefore the decision of the Court that the appeal should be upheld and development consent granted consistent with the consent granted by the council with the following changes. In accordance with the findings herein deferred, commencement Conditions 1A, B, C and D and 2 and Condition 8 and the last sentence in Condition 14 are deleted. A new Condition 1A is to be imposed requiring that the cladding of the box structure around the fins be of masonry to match or be compatible with the masonry above and down both sides of the façade.

38 Condition 1E is retained as condition 1B, agreement having been reached in relation to the awning arrangement. Condition 3 can be amended as agreed. Exhibit A is retained.

39 Finally, whilst the question of costs was raised by the applicant, I did not notice any materials or hear any substantive submissions that would support such an application. Despite having been asked to reserve on the question of costs I make no such order. However, if the applicant wishes to put on a notice of motion they can do so and that will be dealt with in the usual way.

___________________
T A Bly
Commissioner of the Court
rjs