Cracknell Lonergan v Sydney City Council

[2005] NSWLEC 765

Land and Environment Court

of New South Wales

CITATION:	Cracknell Lonergan v Sydney City Council [2005] NSWLEC 765
PARTIES:	APPLICANT Cracknell Lonergan RESPONDENT Sydney City Council
FILE NUMBER(S):	10964 of 2005
CORAM:	Bly C
KEY ISSUES:	Development Application :- Alterations and additions to an existing temple building and construction of a five storey residential building comprising 16 dwellings - impacts on heritage - on-site parking - traffic - amenities - fire safety
LEGISLATION CITED:	Central Sydney Local Environmental Plan 1996
DATES OF HEARING:	22-23/12/2005
DATE OF JUDGMENT:	12/23/2005
EX TEMPORE JUDGMENT DATE:	12/23/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor With: Ms J Reid, solicitor SOLICITORS Pike Pike & Fenwick RESPONDENT Mr S Kondolios, solicitor With: Ms P Adraskelas, solicitor SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 December 2005

Sydney City Council
JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

1 On 19 March 2004 council approved a development application for the retention of part of the heritage listed co-Masonic temple at 54 Regent Street, Chippendale, and its reuse for commercial purposes. Also approved was the demolition of the existing hall at the rear and construction of a six storey residential building comprising 18 dwellings. No on-site parking was provided in that proposal.

2 This appeal relates to development application No. D/2005/01046 which is for the same site and also involves alterations and additions to the existing temple building and the construction at the rear of a five storey residential building comprising 16 dwellings plus carparking and a rooftop terrace. The remaining temple building is to be modified for commercial purposes and the large arched opening in the façade will be converted from pedestrian use to both vehicular and pedestrian use enabling access through the heritage building to the new dwellings and ground floor carpark at the rear.

3 This involves the removal of timber front doors and entry steps and the lowering of the floors by about 1.3 m. Access to the ground floor commercial use in the temple building is off the newly constructed central entryway. Access to the upper level commercial floor space is via either the new lift or the stair, which are common to both the residential and commercial uses.

4 The application effectively seeks to incorporate some provisions of the existing consent into a new development consent. The respondent has provided a set of without prejudice conditions that incorporate many of the conditions of the existing consent.

5 The site is effectively sandwiched between the major railway reserve to the east and the heavily trafficked Regent Street to the west. The site is zoned City Edge under Central Sydney Local Environmental Plan 1996 (“the LEP”).

6 Whilst the temple building has been a listed heritage item under the LEP since 9 December 2005 the consequence of the transitional provisions of the relevant amending local environmental plan are that the building is a draft heritage item. However, little turns on this distinction.

7 Council’s heritage data base inventory report describes the building as follows:

A simply detailed institutional building of two storeys at the front, sitting on a raised plinth and a single storey addition at the rear. The main elevations have a strong symmetry. The Regent Street elevation featuring a curved head entry flanked by curved windows and topped with a gable roof form. A small projection of the front central bay and a series of string courses relating to the openings articulate the elevation. The rear wing is a simple hall extension with a low pitched gable roof and simple openings.

8 The statement of significance in the inventory report explains that:

Of historic significance, due to its strong physical link to the Wesleyan Church and the Co-Masons, the Co-Masonic temple is a rare and intact example of a Co-Masonic hall. Of aesthetic significance as a rare example of this building type in the city, for its strong streetscape contribution to Regent Street, for its continuity of the precinct centred around the Mortuary Station and the adjacent commercial terraces as a well-designed modest institutional building. The site has archaeological potential in relation to the earlier Wesleyan Church that occupied the site.

9 Given the circumstances of the hall at the rear, including its rebuilding in 1975 and the consent for its demolition, in my view the building can no longer be described as an intact example of a Co-Masonic hall. The hall is clearly a major feature in terms of the functionality of the temple and without it the remaining building takes on a substantially different character notwithstanding that the streetscape presentation is largely unchanged. In this regard I agree with Mr Davies and, as a consequence, it’s significance as an item of local significance must be diminished and the conservation policy to which I will again refer should be interpreted in this context.

10 Eleven on-site carparking spaces are to be provided and this exceeds the maximum number of eight parking spaces provided for in the LEP. The application has now been modified by converting three of these spaces into storage areas. In the circumstances I am satisfied that the number of carparking spaces is no longer an issue although the access to these car spaces through the existing building continues to be a heritage issue.

11 The application was advertised and four submissions were received, including three objections. A fifth objection was subsequently received. Matters of concern to the objectors include:

· traffic aspects associated with the high traffic numbers in Regent Street,
· on-site parking for cars should be discouraged, adverse impacts on the heritage significance of the building, mainly resulting from the provision of vehicular access through it,
· poor residential amenity in the dwellings.

12 Whilst on-site I heard from two of the objectors who elaborated on their written concerns, particularly in relation to the matters I have just described, Mr B Lay on behalf of the South Sydney Heritage Society and Ms J Brockman on behalf of the East Chippendale community group.

13 The application has not been determined by the council hence the appeal is against its deemed refusal. The issues for the determination of the Court are as follows:

1. Whether the conversion and utilisation of the central opening to the temple building for vehicular and pedestrian access will have an adverse impact on the heritage significance of the building.

2. Whether the modifications to the internal spaces within the temple building will have an adverse impact on its heritage significance.
3. Whether some of the rooms in the dwellings in the residential building will have a satisfactory access to daylight and whether these rooms will comply with the requirements of the BCA in terms of daylight access.
4. Whether the proposed dwellings would have sufficient natural ventilation and whether the proposal meets the BCA requirements in relation to fire safety.

14 On behalf of the respondent council expert evidence was given by:

§ Ms S Grebe, a town planner,
§ Mr A Smith, an architect and heritage specialist and
§ Mr P Conroy, a building surveyor.

15 On behalf of the applicant expert evidence was given by:

§ Mr S Davies, town planner and heritage consultant,
§ Mr A Darroch, town planner,
§ Dr J Watson, lighting consultant, and
§ Mr P Lonergan, the applicant’s architect.

16 In relation to the matter of residential amenity and particularly access to daylight I note that the proposal does not meet the BCA requirements in relation the size of the light wells. They also do not meet the size requirements of the Central Sydney Development Control Plan 1996 (“the DCP”). In this regard I accept the evidence of Dr Watson that the rooms within the building that were of concern to the respondent will receive sufficient daylight, this being the relevant objective of the BCA and the DCP.

17 In the absence of any relevant Australian daylight standard Dr Watson utilised a British standard and method of calculation for determining a daylight factor within these rooms. In the circumstances I accept this as being an appropriate standard for the determination of this issue in the absence of any other means of calculating an acceptable level of daylight.

18 In relation to ventilation, Ms Grebe made reference to the requirements of the DCP that, where possible, natural through ventilation in dwelling units should be achieved by having window openings facing different directions and dwellings should have access to outside air other than solely by means of light welds and the like. She explained that with the proposal, ventilation is provided to the studio bedrooms of all the centrally located apartments to highlight windows open into the atrium which has fixed open louvres at the top. Because the atrium comprises the central access corridor, noise and privacy issues will arise when the windows are open.

19 In response, Mr Darroch explained that 8 of the 16 dwellings have cross-ventilation whereas the eight studio apartments have a single orientation to the east. All dwellings have access to outside air and need not rely on light wells for such access. Also, mechanical ventilation is already required. It was his opinion that the proposal satisfies the requirements of the DCP.

20 Clearly, the amenity of the eight studio bedrooms is not optimal in terms of ventilation and aural privacy but no doubt purchasers or renters of these dwellings can take this into account. In my view, these deficiencies are not such as to warrant refusal of the application.

21 As for the BCA issue of fire safety, particularly in relation to the atrium space between the temple building and the new residential building, I have been persuaded that this is capable of being modified to meet these requirements. I also accept that these BCA requirements can be dealt with by appropriate conditions of consent.

22 The heritage inventory contains the following conservation policy:

General: Retain the building as an essential component of the streetscape and Regent Street precinct. Retain an adequate curtilage that allows the streetscape extending from the dispensary on the corner of Regent and Lee Streets, the Mortuary Station, the co-Masonic temple and the five adjacent terraces to be the dominant visual elements in that section of Regent Street.

Exterior: Retain the form and detail of the two storey main block. Replace the roof cladding with original material (appears to be slate from inspection). Retain early joinery and detailing. If the rear hall is retained then there are no constraints on its external adaptation as it was not intended to be viewed from a public place.

Interior: Retain early finishes to the front block including plasterwork, skirtings, architraves, picture rails, vents, ceiling linings and joinery. Conserve as required. Current floor coverings may be removed. The hall addition to the rear does not have architectural or aesthetic significance and may be adapted or removed to allow future use of the site. If the wing were to be retained it should preferably reflect its current spatial arrangement as a large single room demonstrating its former function.

A conservation management plan should be prepared for the building and the site prior to guide any proposals for future adaptation or use.

23 In their joint report Mr Davies and Mr Smith agreed that the heritage listing of the site is appropriate and that the demolition of the 1975 hall section of the temple building is acceptable. They also agreed that the commercial use of the retained two storey section of the temple building is appropriate.

24 Mr Davies was of the opinion that the proposed adaptation was satisfactory, resulting in the appropriate integration of the new and old buildings. He explained that it would not diminish the associational values of the site to the Wesleyan Church and the Co-Masonic movement. Importantly, the strong streetscape presence of the building would be maintained in response to its primary significance in this regard.

25 Mr Smith was of the opinion that a different design could retain the existing building to a greater extent without adversely affecting its significance as it does to the extent presently proposed. Of greatest concern to him was the fundamental change in character of the central entrance resulting from the replacement of the original rising pedestrian access with ground level portal shared by cars and people. He was also concerned at the removal of internal fabric. These matters would significantly and adversely affect the heritage significance of the item and this was unacceptable.

26 The heritage experts both agreed that the original architectural drawings were inadequate and required further explicit information as to the extent of demolition, changes and new finishes and that a comprehensive schedule of conservation work should have been provided. I entirely agree with their comments but amendments to the drawings have now been provided, with additional detailing in Exhibit F. This is sufficient, in my view, to enable the determination of the application.

27 The applicant placed great weight on the notion of the adaptive reuse of the heritage item and, taking into account all of the circumstances, I am satisfied that the proposal represents an appropriate balance between heritage conservation and the modern utilisation of the building in conjunction with the new residential building at the rear. Adaptive reuse requires some compromise and I accept that what is proposed here is an acceptable outcome, taking into account the applicant’s response to the public interest consideration of heritage conservation and the economic development of the land.

28 In relation to the conservation policy I am satisfied that the proposal involves the retention of the building as an essential component of the streetscape. The conversion of the existing entrance as proposed will not, in my opinion, adversely affect this. Indeed, it may not affect the streetscape at all.

29 As for the exterior of the building it is clear that the proposal retains the majority of the form and detail of it with the exception of the changes to the entrance. These changes, including the carriageway through the building, will have the effect described by Mr Smith but will not cause the aesthetic significance of the building to be diminished. The form and scale of the opening will remain essentially unchanged and, while it will be apparent that it can be used by vehicles, it will be equally apparent that it can be used by pedestrians. In all of the circumstances here I find the proposed arrangement to be satisfactory and would not have such an impact on the heritage significance of the building as to make it unacceptable.

30 It was suggested that a different design utilising adjoining land would produce a better outcome but, given what I have concluded about the proposal, such a consideration becomes irrelevant.

31 When dealing with the interior of the building the conservation policy requires that early finishes, including plasterwork, skirtings, architraves, picture rails, vents, ceiling linings and joinery be conserved as required. Whilst the floors are to be lowered and the stair removed, the revised drawings provide for what I have concluded to be a reasonable and sufficient response to this requirement in the light of the building’s adaptive reuse.

32 It is clear that the internal spaces will be quite different by comparison with what they were when the building was first built and, indeed, by comparison with how they are today. However, with proper attention to detail, as is required by the conditions, these spaces, including the central access way, can provide a sufficient impression of the character of the building as it was.

33 Whilst the drawings associated with the existing consent can be rightly criticised for lacking detail I am nevertheless satisfied that they indicate significant changes to the interior to the building including the removal of heritage fabric. In particular, given the already approved changes to the floor level of about 500 mm, the stair would need to be either removed and replaced or the subject of major modifications. By comparison, the proposal as described in the tendered drawings, whilst including the removal of the stair, provides for a greater retention of internal fabric.

34 Finally in relation to heritage, in my view, the importance of the front entry and the changes to it that will be apparent in the streetscape will not be so great as to require the rejection of the application. Plainly, the symmetry and predominant character and aesthetic appeal of the façade will be maintained and, even though the entry will be noticeably different, I do not accept that it will so change the character of the building that it would read, as I think has been suggested, as an industrial building or in any other unacceptable way.

35 More generally, I accept the submission put on behalf of the applicant that the proposal comprises a superior design especially in relation to residential amenity by comparison with the approved development. Whilst this does not attract great weight it can be taken into account together with the constraints of the site in deciding whether or not the amenity of the proposed dwellings is acceptable.

36 Finally, I also recognise the concerns raised by the East Chippendale Community Group in relation to traffic safety, particularly in the context of the high volumes of traffic in Regent Street. I also recognise the new central driveway is only wide enough to be used by one vehicle at a time, there being no passing bay provided. Despite these concerns I am satisfied, taking into account the likely volumes of traffic generated by this development and the fact that vehicles must enter and leave the site in a forward direction, that the traffic outcome will not be inherently unsafe.

37 It is therefore the decision of the Court that the appeal is upheld and conditional development consent granted. The orders of the Court are:

1. The appeal is upheld.

2. Pursuant to s 80(1)(a) of the Environmental Planning and Assessment Act 1979, development consent is granted to Development Application No. D/2005/01046 for modification of development consent D/2003/00422 to provide a carriageway through the existing Co-Masonic Temple Building, demolition of the rear Masonic Hall and construction of a 5 storey residential building comprising 16 apartments on levels 1 to 4 with lower ground floor parking and storage and a roof top terrace at 54 Regent Street, Sydney, subject to the conditions in Annexure A hereto.

3. Exhibits J and F are retained.

___________________
T A Bly
Commissioner of the Court
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