Curcuruto & Parr v Sydney City Council

[2006] NSWLEC 647

Land and Environment Court

of New South Wales

CITATION:

Curcuruto & Parr v Sydney City Council [2006] NSWLEC 647

PARTIES:

FIRST APPLICANT
Louise Curcuruto

SECOND APPLICANT
Sandra Parr

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10370 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Appeal against condition of consent, mixed use zone, commercial and residential use of heritage building, conservation and streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Urban Design Development Control Plan 1997
South Sydney (Heritage Conservation) Development Control Plan

DATES OF HEARING:

11/09/2006

 
DATE OF JUDGMENT: 

10/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Flanigan, solicitor
SOLICITORS
Van Cooney

RESPONDENT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

13 October 2006

10370 of 2006 Louise Curcuruto & Sandra Parr v
Sydney City Council

JUDGMENT

Introduction

1 On 23 February 2006 deferred commencement development consent was granted for alterations and additions to the existing two-storey terrace house at 429 Crown Street, Surrey Hills. Two of the three deferred commencement conditions have been accepted by the applicant however the third condition is in dispute and forms the basis of this appeal. That condition requires:

That the front of the building is to remain unchanged, or altered in only a minor way, which does not compromise the setting, materials and composition of the front facade.

2 Relevant to this condition the proposal comprises the moving of the front alignment of the proposed ground floor commercial tenancy towards the street so as to coincide with the front property boundary. Glazing is to be installed and the original front sandstone steps removed and a new set of splayed steps and entrance to the tenancy provided. Also to be provided is a new entrance to the upstairs residential tenancy.

3 The subject building is the northernmost of three similarly detailed and constructed buildings ("the group") and is located in the small block bounded by Withers Lane to the north and Arthur Street to the south. There are seven buildings within this block variously utilised for residential retail and commercial purposes. It was not in dispute that the subject group of three buildings makes a reasonably strong presence as a group.

Public notification

4 Prior to its determination by the council, the development application was notified and objections were received from the adjoining properties on either side. Matters of concern raised in those objections do not relate to the conservation and streetscape issue in dispute.

The issues

5 The statement of issues in essence raises the question of whether or not alterations and additions to the front facade would have an adverse impact on the Foveaux Street Conservation Area and the Crown Street Heritage Landscape.

The evidence

6 Expert evidence was provided in the form of a joint report by the heritage consultants, Mr S. Davies (applicant) and Mr B Hankey (respondent). This report contains comprehensive discussions and opinions in relation to the applicable planning controls insofar as they apply to this proposal. Mr Davies and Mr Hankey were in fundamental disagreement as to whether the proposal is appropriately responsive to these controls.

Planning controls

7 The site is zoned Mixed Uses 10 under South Sydney Local Environmental Plan 1998 ("the LEP") in which zone the proposal is permissible with development consent. The objectives of the zone relevantly seek to facilitate a mixture of compatible land uses such as residential, retail and commercial and to promote mixed use planning. Clauses 10, 22 and 28 of the LEP, which deal with urban design and conservation, are applicable.

8 The site is also included in the Foveaux Street Heritage Conservation Area ("the conservation area") and the Crown Street Heritage Streetscape. In this context the existing building on the site whilst not being a heritage item or a potential heritage item is identified as a contributing building (to the conservation area) as distinct from a neutral or detracting building.

9 Also applicable is the South Sydney Urban Design Development Control Plan 1997 ("the Urban Design DCP") and the South Sydney (Heritage Conservation) Development Control Plan ("the Conservation DCP") and the City of Sydney Heritage Inventory ("the Heritage Inventory").

10 Clause 22 of the LEP provides that the consent authority must not grant concern for the carrying out of development within a conservation area or Heritage streetscape area unless the proposal is considered to be consistent with certain aims and objectives. The most relevant of these objectives are, in essence, as follows:

(a) to conserve environmental heritage,
(e) to ensure that development is sympathetic to, and does not detract from the heritage significance of heritage conservation areas and heritage streetscape areas and their settings,
(f) to ensure that development does not detract from the heritage significance of streetscapes and architectural styles which define the character of conservation areas or streetscapes within heritage streetscape areas.

11 Whilst it does not directly involve heritage or conservation, dealing instead with urban design considerations, cl 28 of the LEP is nevertheless relevant. It requires that in determining a development application the consent authority must take certain matters into consideration. The most relevant of these matters are, in essence, whether the proposed development would:

(a) reinforce and protect the relevant setting,
(b) reinforce and protect the streetscape and character of the locality,
(c) be compatible with the scale and design of neighbouring development,
(f) would establish and enhance the public domain.

12 The Conservation DCP contains general principles for alterations and additions to heritage buildings including buildings within conservation areas. These principles seek the retention of as much as possible of the original fabric of the building that contributes to the character of the conservation area, particularly in relation to those parts of the building that are visible from the street. Alterations to contributory buildings should, in general be directed towards the removal of non-contributory parts and the replacement of missing parts. The demolition of contributory buildings is not supported

13 Because the proposal effectively involves the enclosure of an existing front veranda the provisions of the Conservation DCP are particularly relevant. They provide that this form of enclosure invariably detracts from the character of the affected building and the streetscape generally. Hence the performance criteria/controls require that verandahs be retained or reinstated wherever possible and that infilling to create additional floor space should not occur. Although the proposed enclosure includes the removal of the existing front paling fence and would also prevent its replacement with an appropriate palisade fence that would match the original as is required by the Conservation DCP. Also recognised is the streetscape importance of fences positioned between the private and public domain and their ability to compliment the setting of houses. The associated controls require the retention and where necessary the repair of original fencing.

14 The performance criteria dealing with facade treatment in the Urban Design DCP require that windows and door openings should be vertically proportioned and that the facades of new dwellings should be predominantly masonry. Whilst a new dwelling is not involved here the facade treatment objectives is of some relevance, seeking to reinforce the uniformity and continuity of the street and its heritage character.

Heritage inventories

15 The statement of significance in the Heritage Inventory Report for the conservation area notes that the area dates from one of the key periods for the development of Surrey Hills containing good examples of late Victorian terraces, twentieth century commercial buildings and hotels that make a positive contribution to the streetscape. It recommends that buildings should be retained and conserved and that there be no alterations to the facade of buildings other than to reinstate original features. The statement of significance in the State Heritage Inventory for the Crown Street Heritage Streetscape notes that the streetscape is associated with important colonists. Rows of terraces have high aesthetic values in a streetscape possessing a coherent and strongly urban form. Management recommendations relevantly seek the retention of one and two-storey terraces including finishes and details and the reinstatement of verandas, front fences and lost detail.

The expert evidence

16 The two experts were in agreement that as a group the three buildings at 429, 431 and 433 Crown Street, consistent with the Building Contributions Map, make a significant contribution to the conservation area and the streetscape. The changes to the building at 431 Crown Street, despite being approved are inappropriate and should not form a precedent to support other changes within the group. Similarly the front wall to 433 Crown Street can be considered to be inappropriate. They also agreed that the recently constructed corner shop adjoining the site to the north whilst having been constructed in a contemporary fashion is sympathetic to the nature and character of traditional corner shop buildings. It has no bearing on the character of the subject building or the proposal.

17 According to Mr Davies, taking into account the enclosure of the veranda and the opening up of the front facade the original form and character of the building would be retained. This would be consistent with the approach typical of this area where dwellings are converted for retail purposes. He said that a setback of the glass display to the alignment of the original frontage would leave an awkward left-over space that would not be consistent with the style of many dwellings in the street. More generally he said that the proposal complies with the objectives of the LEP and would be sympathetic to the heritage significance of the conservation area and the streetscape. It would also be a sympathetic alteration to the building itself. Little fabric needs to be removed and the overall form and style of the dwelling will be conserved.

18 Mr Hankey was of the opinion that the proposal would result in the building itself and the group making a reduced contribution to the conservation area and the streetscape. In this context the retention of the veranda and the restoration of the front fence are very important considerations. More particularly he said that the retention of the group which has a significant early residential character and which is of equal or greater importance than buildings elsewhere in the conservation area is necessary.

19 Mr Hankey also referred to the building at 342 Crown Street that has been converted to a restaurant as being an appropriate solution to the applicant's requirements and provided a diagram showing how this could be done. The circumstances of this building are almost identical to the subject building and by comparison has far less impact on the heritage character and the contribution of the building to the streetscape. Mr Davies disagreed saying that the building at 342 Crown Street was not a good conversion and the full enclosure of that building would have been more aesthetically pleasing.

Court's consideration

20 Being in a mixed-use zone and a mixed-use area and despite originally being a residential building, I have no concerns with this building becoming a mixed use building with retail at ground level and residential above.

21 However, I have been persuaded that the proposed enclosure of the veranda would be inappropriate because the enclosure would not, as required by the LEP reinforce and protect the streetscape and character of this locality. Moreover it would be in direct contravention of the Conservation DCP.

22 In addressing conservation requirements generally it is appropriate to take into account the characteristics of existing and approved surrounding development. This must be so, irrespective of whether such development might now be considered to be inappropriate or might not have been approved in present circumstances. There are numerous examples of this nearby and within the group itself. However, minimal weight should be given to such uncharacteristic development that is plainly not responsive to present planning controls. Conversely consideration can be given, again in the light of existing planning controls to the possibility that such uncharacteristic development might in the future be appropriately changed or replaced.

23 In these circumstances I have decided to give determining weight to the applicable planning controls and the heritage inventories. These controls indicate that this contributing building undoubtedly attracts conservation importance in the conservation area and the streetscape. It is also an important element in its group. More particularly these controls effectively require the retention or reinstatement of the front veranda and fence. In this regard I have been persuaded by the evidence of Mr Hankey that the proposed enclosure of the veranda would unacceptably reduce the contribution of the building to the Conservation Area. Notwithstanding the extensive use of glass to maintain a sense of openness, as has occurred elsewhere, I accept that the proposal would detract from the conservation area and the streetscape, contrary to the general principles in the Conservation DCP. As a consequence the appeal should be dismissed and the appealed condition will therefore remain in the development consent.

24 In relation to the development at 342 Crown Street I am inclined to agree with Mr Hankey and whilst not wishing to assess the merits of that development it seems to me to represent a balanced response to the requirements of the planning controls especially those controls dealing with front fences and verandas. Taking into account the similar circumstances of this case, that development would appear to provide an indication of what would be an appropriate model for the remodelling of the front of subject site. Importantly it would enable the form of the front veranda to be retained and an appropriate front fence provided in conjunction with the proposed splayed sandstone front steps. In this regard I do not accept Mr Davies' suggestion that an awkward space behind the fence would result.

25 Taking into account the requirement in the Urban Development DCP that wall openings be vertically proportioned I am satisfied that the opening up of the front of the building to facilitate its use for retail is a reasonable response to the mixed-use and zone taking into account the applicable heritage and conservation provisions in the planning controls. Indeed such an arrangement is not too dissimilar to Mr Hankey's suggested shopfront proposal. I thus expect that a modification to the design something along the lines of the development at 342 Crown Street and as suggested by Mr Hankey would be an appropriate response to the condition.

Orders

26 The Orders of the Court are therefore:

1. The appeal is dismissed.

2. Exhibit A is retained.

___________________

T A Bly
Commissioner of the Court
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