Cracknell and Lonergan Architects Pty Ltd v Council of the City of Sydney

[2016] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cracknell & Lonergan Architects Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1159
Hearing dates:	31 March, 2016
Date of orders:	03 May 2016
Decision date:	03 May 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. D/2015/870 for alterations and additions to an existing building, including a new third level, use as 12 serviced apartments and a ground floor commercial tenancy, is refused. 3. The exhibits, other than exhibits 2, A and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to a contributory building in a heritage conservation area; exceedance of the floor space ratio development standard.
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Cracknell & Lonergan Architects Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr J. Palmer solicitor (Applicant) Dr S. Berveling barrister (Respondent)   Solicitors: Pike & Verekers Lawyers (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10781 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2015/870 for alterations and additions to an existing building including a new third level, use of the building for 12 serviced apartments and a ground floor commercial tenancy and associated signage (the proposal) at 461 Harris Street, Ultimo (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 23 November 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 21 December 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 3 February 2016 for the applicant to rely on the amended proposal.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The proposal exceeds the floor space ratio (FSR) development standard for the site and the additional floor level will have a detrimental impact on the character of the area, significance of the conservation area and the amenity of adjoining residents.

• The proposed third storey results in a changed roof form which projects beyond the existing envelope of the building and it alters the architectural style of building.

• The site is a contributory building within the Ultimo Conservation Area and the proposal to remove substantial building elements including the roof and the internal floors is contrary to the heritage conservation objectives in the planning instrument.

The site and its context

4. The site is on the western corner of the intersection of Harris and Quarry Streets, Ultimo. The site has an area of 242.6sqm with a 9.95m frontage to Harris Street and 24.49m fronting to Quarry Street.

5. The site contains a two storey building with a hipped, tiled roof behind a parapet to the splayed corner. The building was constructed during the 1880s and originally used as a chemist and later as the Wentworth Park Hotel. Alterations and additions have been carried out to the building, including internal reconfiguration and modification of openings in the façades.

The proposal

6. The proposed alterations and additions to the building are as follows:

• Retain parts of the two masonry facades fronting Harris and Quarry Streets and the form of the roof fronting Harris and Quarry Streets, including the ridge;

• Replace the internal structure, which consists of two floors, with three new floors with lower floor to ceiling heights than the existing building;

• Replace the roof on the north-western side with a roof of a shallower pitch and to remove the rear hip of the roof and replace it with a gable;

• Add dormer windows to the roof;

• Alter some of the modified openings in the masonry façade;

• Increase the height of the rear masonry wall and add a new pergola to the rear, raised, terrace.

7. The proposal is for 12 serviced apartments and a commercial tenancy on the ground floor fronting Harris Street.

Resident evidence

8. One resident objector provided evidence at the commencement of the hearing on site. She is concerned about the impact of serviced apartments on the locality including the increase in the number of cars.

Planning framework

9. The site is zoned B4 Mixed Use pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B4 zone are as follows:

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.

10. The floor space ratio (FSR) development standard for the site is 1.5:1 (Floor Space Ratio Map – Sheet FSR _008 LEP 2012). The objectives of the FSR cl 4.3 of LEP 2012 are as follows:

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

11. The site is located within the Ultimo Conservation Area (Ultimo CA) and in the vicinity of heritage items (Heritage Map – Sheet HER_008 LEP 2012). The site is identified ad contributory to the Ultimo CA (Building Contributions Map 008 Sydney Development Control Plan 2012).

12. Clause 4.6 Exceptions to Development Standards of LEP 2012 relevantly includes the following in relation to providing an appropriate degree of flexibility in applying development standards:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that 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.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

13. The relevant objectives for visitor accommodation in Sydney Development Control Plan 2012 (DCP 2012) at 4.4.8 are to provide acceptable levels of health, safety, cleanliness, amenity and administration for guests whilst not adversely impacting the amenity of the surrounding area and to ensure that serviced apartment development provide a level of health and amenity for residents to ensure any future conversion to residential flats is not compromised by poor amenity.

14. The statement of significance for the Ultimo CA (quoted in exhibit 4 p 10) is as follows:

The Ultimo Conservation Area dates from one of the key period layers for the development of Ultimo/Pyrmont as a direct result of the Harris & Macarthur Estate subdivisions. It contains good examples of mid Victorian residential, commercial and institutional development.

The combination of buildings in the Ultimo Conservation Area form an exemplary group of modest and functional late-nineteenth and early-twentieth century civic, commercial and residential buildings which are clustered around the Church and Hotel at the intersection of the two main streets of the area. It comprises several blocks centred around the intersection of Quarry Street and Bulwara Road, which contains the Uniting (former Presbyterian) Church and the Lord Wolseley Hotel on opposite corners. It records the development of Ultimo as an industrial and warehouse district on the southern fringe of the CBD which began in the latter half of the nineteenth century. This pattern of development is not only relevant to the locality but forms a crucial part of the historic pattern of the development of Sydney as the capital city and commercial centre of NSW, based on the industrial and transport opportunities created by the waterfrontages of this and other peninsulas in Sydney Harbour (Criterion A.4). This Victorian commercial and residential area is part of the civic centre of Ultimo and the buildings and their architecture, as well as their location and the street layout, are a product of the historic development of Ultimo through the nineteenth and twentieth centuries. The relative homogeneity of the buildings reflects the boom period of development in the vicinity and their survival with only minimal redevelopment illustrates the lack of residential development in Pyrmont-Ultimo from the turn of the century until the 1970s and contrasts with the current major redevelopment of large-scale industrial and commercial sites in the area (Criterion A.4). The Ultimo Conservation Area includes a relatively homogeneous group of working class houses and commercial buildings from the nineteenth century, a class of buildings which have rarely survived in Sydney. The residential buildings are low scale and austere in their presentation and show another face to the Victorian period than that which is most popularly remembered. Their form, layout and location record the urban forms of the pre-motor car, pre-electricity era for working class people in Sydney (Criterion B.2). The group has few unsympathetic intrusions and the twentieth century buildings do not detract from the character of the earlier buildings. It has significance as an area which is a relic of the late Victorian and Edwardian periods and illustrates the built form of this class of district in this period (Criterion D.2). The buildings contained within the Ultimo Conservation Area are the fabric and visual façade of Ultimo to visitors to the area and hence are the public image of the area for its residents. The traditional building types in this area are highly valued by the local community, especially during the current phase of redevelopment of the area, when many of the traditional activities and their structures are being replaced (Criterion G.1).

Expert evidence

15. The applicant relied on the expert evidence of Mr Jeffrey Mead (planning) and Mr Robert Staas (heritage) and the Council relied on the expert evidence of Ms Peggy Wong (planning) and Mr Hu Wang (heritage).

Contravention of the FSR development standard

16. The planning experts agreed that the existing building of 390.9sqm has a FSR of 1.61:1 and they agreed that the proposal exceeds the FSR development standard for the site of 1.5:1. In Mr Mead’s opinion the FSR of the proposal is 1.97:1 and in Ms Wong’s opinion it is 1.99:1.

17. The applicant provided a written request seeking to justify the contravention of the FSR development standard, pursuant to cl 4.6 of LEP 2012 (exhibit 3, attachment C). The justifications for the proposal’s exceedance of the FSR development standard can be summarised as:

• The amended plans have a slightly increased GFA when compared to the original application, because the circulation to rooms on the ground and first floors have been enclosed in the amended proposal, requiring the circulation area to now be included in the gross floor area calculation.

• The proposal is consistent with the objectives for FSR in LEP 2012. The proposal is consistent with the objectives as follows:

(a) The proposal will assist in providing floor space to meet anticipated needs for the future.

(b) The proposal will accommodate a maximum of 28 people and a café on the ground floor and this is within the capacity of services and local infrastructure and will not lead to any negative impacts on surrounding development due to land use intensity. The intensity of the proposal will positively contribute to the activation of locality, as encouraged by the controls. The proposal does not include any parking and therefore not have an adverse impact on the capacity of the surrounding road network.

(c) The proposal makes efficient use of an existing building for an economic purpose that will promote use of existing infrastructure, particularly public transport.

(d) The evidence of the heritage experts is relevant to the question of consistency with the desired character of the locality. The proposed development retains significant parts of the façades of the building and the elements of the building outside the existing envelope are minor and do not detract from the contribution that the existing building makes to the character of the locality. The building will continue to read as a two storey form with a habitable roof space, as denoted by the new dormers. The proposal provides additional GFA through the inclusion of an additional habitable floor, which sits within the visible envelope of the existing building (with the exception of the dormers and additional western roof form) and therefore does not significantly alter the built form contribution that the proposal will make, compared with the existing building. Whilst it is noted that Part 4.2.1(1) of DCP 2012 requires a maximum of two storeys built form of the site, the existing neighbourhood character, including some contributory buildings, contains several buildings that are three storeys or more. It is considered that the proposal retains the general scale and proportion of the existing building and that it will not conflict with or detract from the desired character of the locality. The proposed accommodation use on the site is consistent with the historical and current use of the building and will contribute to the mixed use character that underlies the B4 zoning.

• The proposal meets the objectives of the B4 zone for the following reasons:

• The proposed additional floor space is contained within the existing building envelope.

• The proposal promotes the long term retention of a contributory building within the Ultimo CA.

• The proposed amended layout provides additional GFA to allow for circulation to the southern side of apartments which enables a better design outcome, as the original application had ‘open’ circulation on the northern side of apartments which was excluded from the calculation of GFA.

• The proposal exceeds the minimum room sizes for serviced apartments in Part 4.4.8.5 of DCP 2012.

• The proposal is located within a context that comprises many buildings of higher FSR and height and therefore the bulk and scale of the proposal is acceptable.

• Strict compliance with the FSR control, which would reduce the GFA of the existing building, would be unlikely to promote adaptive reuse and upgrade of the contributory building.

• The proposal provides for adaptive reuse of a building which has heritage and sustainability benefits which far outweigh the benefits of strict compliance with the FSR development standard.

• A proposal which complies with the FSR development standard would result in a sub-optimal proposal that would front the rooms directly onto the street.

• The facilitation of the adaptive reuse of the building to ensure its long term upkeep and maintenance is considered to be a positive environmental outcome and one that is strongly encouraged both by heritage conservation and environmental sustainability objectives and controls of the applicable planning instruments and policies.

• There are sufficient environmental planning grounds to justify the applicant’s proposed variation to the FSR development standard.

• Compliance with the FSR development standard is unreasonable given that the planning controls require retention of the existing building for heritage reasons and the retention of that building does not comply with FSR control. Other than by demolishing floor space for no other purpose than compliance, the existing building would not comply with the control. There is no planning benefit in enforcing compliance.

18. The heritage experts agreed on the following:

• The original internal and external details of the building have been modified on several occasions;

• The existing roof and tile cladding dates from the 1922 alterations;

• The proposed uses are appropriate and sympathetic;

• The awning reinstatement should align with the original location of the awning as indicated in the archival photographs and the drawings could be amended accordingly; and

• The roller shutter door shown on the plans should be replaced with traditional doors or relocated elsewhere on the building.

19. According to Mr Staas, the building was modified in 1922 to a design by architect Rupert Minett, to convert it to the Wentworth Park Hotel, as shown in the documents obtained from the Tooths Archive (exhibit G).

20. According to Mr Staas, “the contributory value of the building to the conservation area can only be its external appearance and streetscape presence to the public domain. The building is not identified for any heritage significance beyond this general built scale and character. The proposed adaptation of this building in this application does not change that contribution in any substantial way that would detract from the conservation area. The altered floor levels are not expressed on the external façade or perceived from the street.” (exhibit 4, p 14).

21. The heritage experts disagreed on the impact of the proposed changes to the roof, Mr Wang believing the proposed dormer windows are uncharacteristic in a 30 degree pitched roof and in the conservation area.

22. In Mr Wang’s view, the relationship between the existing floor levels and the window openings in the façade is an integral part of the design of the building and an aspect of the building’s significance. In his opinion, the extent of alteration means that the proposal cannot be categorised as adaptive re-use. The changes in the floor levels results in a conflict between the retained facades and the new floors and adversely affects the integrity of the original design.

Consideration

Contravention of the FSR development standard

23. Development consent must not be granted for development that contravenes a development standard, at subcl 4.6(4) of LEP 2012, unless the consent authority is satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) (that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard) and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

23. The applicant’s written request justifies the contravention of the FSR development standard because, in summary, the increase in floor area makes the project financially viable and thus provides for the retention of the façade of the existing building, which maintains its contribution to the conservation area.

24. I am not satisfied that the proposal is consistent with objective (d) of the FSR development standard in LEP 2012, ‘to ensure that new development reflects the desired character of the locality in which it is located’. I do not agree with the applicant’s premise that retaining parts of the façade of this building maintains its contribution to the conservation area.

25. In my view, the proposal cannot be described as an adaptive re-use of the existing building, because adaptive re-use is more akin to recycling a building. This proposal is to retain parts of two facades and gut the interior of the existing building. Adaptive re-use means adapting a place to suit the existing use or a new use (The Australia ICOMOS Charter for Places of Cultural Significance, 2013). This building has been significantly modified and I accept that a robust architectural solution may be appropriate as a new and contemporary layer to the existing, including new insertions and additions; however this proposal fundamentally fails to respect the integrity of the existing fabric, making it unsympathetic to the existing building and eroding the contribution the existing building makes to Ultimo CA. Adaptively re-using a building means coming to terms with the existing fabric, juggling the constraints and opportunities it presents and using the existing fabric to provide a stimulus for the re-interpretation of the building.

26. The contributory value of the building to the conservation area is not only its external appearance and streetscape presence. The retention of two façades with a new internal structure that bears no relationship to the openings of the retained facades would not maintain the contribution the building makes to the collective heritage significance of the Ultimo CA and there would be a strong argument for identifying what is left after this project as merely neutral to the conservation area. For this reason, the proposed development does not reflect the desired character of the locality, to preserve the collective heritage significance of the Ultimo CA.

27. As the existing building exceeds both the FSR and height development standards in LEP 2012 (because it predates those standards), it presents a valuable opportunity for the retention and adaptive re-use of the existing fabric. The applicant’s argument that the existing building already exceeds the FSR development standard and therefore should be gutted and another floor inserted is a non sequitur. The proposal’s increase of floor space does not achieve a better outcome and does not warrant flexibility in applying the FSR development standard. A sympathetic adaptation of the existing building, which maintains a similar exceedance of the FSR development standard, is very likely to be acceptable and worthy of development consent.

Conclusion

29. I am not satisfied that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances, because the proposal is not in the public interest, being inconsistent with objective (d) of subcl 4.4(1) of LEP 2012 ‘to ensure that new development reflects the desired character of the locality in which it is located…’. The proposal does not reflect the desired character of the locality, because replacing the internal structure, which consists of two floors, with three new floors with lower floor to ceiling heights, that bear no relationship to the existing openings of the two retained facades, erodes the contribution the existing building makes to the collective heritage significance of the Ultimo CA. Consequently, pursuant to subcl 4.6(4)(a)(ii) of LEP 2012, the development application must be refused.

Orders

30. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2015/870 for alterations and additions to an existing building, including a new third level, use as 12 serviced apartments and a ground floor commercial tenancy, is refused.

3. The exhibits, other than exhibits 2, A and F, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 03 May 2016