CVC Capital Pty Ltd v Council of the City of Sydney

[2019] NSWLEC 1554

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	CVC Capital Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1554
Hearing dates:	28 October 2019; 11 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application No. D/2018/1308 for alterations and additions to the existing building and a change of use of the first floor to retail, at 158-160 Pitt Street, Sydney, is approved, subject to the conditions of consent at Annexure A. (3)   The Exhibits, other than Exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to an existing building listed as a local heritage item – change of use of the first floor to retail – impact on the heritage significance of the heritage item.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	CVC Capital Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: M Staunton (Applicant) A Singh (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2018/390522
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2018/1308 for alterations and additions to the existing building and a change of use of the first floor to retail (the proposal) at 158-160 Pitt Street, Sydney (the site) by the Council of the City of Sydney (the Council).

2. Leave was granted by the Court on 23 October 2019 for the applicant to amend the application by relying on amended drawings subject to a costs order pursuant to s 8.15(3) of the EPA Act.

3. The proposal was renotified by the Council following the Court’s leave for amended drawings granted on 23 October 2019. The hearing was adjourned on 28 October 2019 for a mention on 11 November 2019 with the agreement of the parties, as the notification period finished on 7 November 2019. The Council did not receive any submissions during the notification period.

Issues

4. The Council’s contention is that the proposal will have a detrimental impact on the heritage significance of the existing building due to the extent of demolition proposed internally and the removal of the contemporary historicist awning.

The site and its context

5. The existing building is an example of the Italianate Victorian style of architecture and was constructed c1887.

6. The existing building is a commercial building known as “The Soul Pattinson Building” and has a retail tenancy on the ground floor. The first and second floors are used as commercial offices. Lift access to the first and second floors is from a separate foyer accessed directly from the Pitt Street Mall. The first and second floors consist of a central corridor and small offices either side of the corridor. The internal walls are masonry, other than some openings between offices on both levels which have, in some cases, been infilled with non-load bearing walls.

7. The western façade of the existing building fronts the Pitt Street Mall and the site is bounded to the north, east and south by neighbouring properties.

8. The existing building has a contemporary shopfront and a contemporary awning constructed in 1994 designed to look like a traditional awning with posts.

9. The existing building has undergone numerous alterations and additions during its lifetime, including the removal of the shopfront and original awning, internal changes and additions, the insertion of a lift shaft and vertical circulation, services, a roof light along the second floor corridor and alterations and additions at the rear of the building.

The proposal

10. The existing building has a single tenant. The ground floor is retail. The proposal is to alter the first floor so that it can be used for retail. The second floor is to remain offices.

11. The proposal includes demolishing the existing lift shaft and inserting a new lift further towards the rear of the building and demolishing the internal walls in the front section of the first floor to create a void over the ground floor entry and a new gallery with stair access to Pitt Street.

12. All the glazed floor lights in the existing building are to be retained. All the original cast iron columns on the ground floor are to be retained.

13. The proposal includes the following ground floor works:

• Replacement of the street awning and shopfront.

• Retention of the ground floor retail use.

• Adjustment of the ground floor levels to remove the level change at the rear other than the toilets.

• Extension of the retail use to the first floor and a link for the floors by creating a void space and opening up areas of each floor plate.

• Construction of internal structural load bearing engaged piers inside the external walls to support beams concealed within the ceiling space of the ground floor.

• Reinstatement of the rear courtyard and verandah to the rear ground floor level.

• Retention of the existing timber staircase to the rear.

• Introduction of a new staircase towards the front leading to the upper levels.

• Removal and relocation of the list and commercial foyer to the rear of the building.

14. The proposal includes the following first floor works:

• Reinstatement of the rear void and balcony with cast iron balustrading.

• Creation of openings in walls to create a single retail space.

• Replacement of the existing staircase in the north-western area with a new staircase.

• Partial removal of the floor to create a void.

• Retention of all of the floor lights with the timber framed floors.

• Change of use to retail.

• Insertion of new amenities that comply with NCC and DDA.

15. The proposal includes the following second floor works:

• Retention of the rear void, balcony and cast iron balustrade.

• Retention of the existing room configuration with some alteration to the front section for a new staircase. This replaces the existing staircase in the north-western area.

• Retention of the timber floor and floor lights.

• New stair access from the first floor.

• Retention of the second floor office use.

Planning framework

16. The site is zoned B8 pursuant to the Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B8 zone, to which regard must be had, are:

• To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia’s participation in the global economy.

• To provide opportunities for an intensity of land uses commensurate with Sydney’s global status.

• To permit a diversity of compatible land uses characteristic of Sydney’s global status and that serve the workforce, visitors and wider community.

• To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.

• To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

17. The site is a locally listed heritage item under Schedule 5 of LEP 2012 as the former “Phoenix Chambers” and Soul Pattinson Store including interior (Item 1924). Consent is required for the proposal at cl 5.10(2)(a)(i) of LEP 2012. The consent authority must, before granting consent under cl 5.10 in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item concerned. The statement of significance for the item on the State Heritage Inventory is as follows:

“The Soul Pattinson building is noteworthy for its continuity of ownership and use, and it association with an important and well-known company reflects the major redevelopment of the city during the later decades of the nineteenth century.

The Soul Pattinson building is a good example of the Victorian Italianate style, retaining the original signs and winged phoenix motif at parapet level. The 1929 awning is in character with the building but the shop front diminishes its aesthetic value at ground level. Elements of the original Victorian era internal structure survive including cast iron columns with elaborate Victorian capitals to the retail area. Timber joinery to the upper level offices remains intact but are considered unexceptional. The building is an important contributor to the historic townscape quality of the Pitt Street Mall precinct.”

18. The design excellence clause in LEP 2012 applies to the proposal at cl 6.21(2) because the proposal includes external alterations to replace the existing awning. The consent authority must have regard to the following relevant matters in considering whether the proposed development exhibits design excellence:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(d) how the proposed development addresses the following matters—

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain.

19. The Sydney Development Control Plan 2012 (DCP 2012) includes, in Section 3 General Provisions, at 3.2.3 Active Frontages, the following relevant objectives and provisions:

“Objectives

(a) Ensure ground floor frontages are pedestrian oriented and of high design

quality to add vitality to streets.

(b) Provide fine grain tenancy frontages at ground level to street frontages.

Provisions

…

(2) Active frontages are to contribute to the liveliness and vitality of streets by:

…

(d) in Central Sydney, providing three floors of retail (basement, ground

and first floor) in the blocks bounded by George, Market, King and

Castlereagh Streets as shown in Figure 3.7 Central Sydney retail core.

Where this is not practicable, the design of new buildings should

enable the conversion of these floors to retail at a later stage.”

20. The Council’s bundle (Ex 2) included a draft Conservation Management Plan (CMP) prepared by Mr Davies and dated September 2018 and CMPs dated August 1998 and July 2002. The CMPs generally identify the building as a rare example of an Italianate style commercial building. The 2002 CMP identifies the original room sizes and central corridor configuration and Victorian arches as being of high significance.

Expert evidence

21. The applicant relied on the expert evidence of Mr Andrew Darroch (planning) and Mr Paul Davies (heritage). The Council relied on the expert evidence of Mr Stan Fitzroy-Mendis (planning) and Mr Hui Wang (heritage). The planning experts prepared a joint report (Ex 4) and were not required to give oral evidence. The heritage experts prepared a joint report (Ex 3).

22. Mr Wang provided a sketch plan and section of the first floor showing new openings in the walls of the corridor infilled with glazing and new openings in the walls between offices. His sketch included a perspective of the corridor with the new glazed openings beneath the existing clerestory windows (Ex 6).

23. Mr Davies described the philosophical approach to the interventions on the first floor as creating a more open flow towards the front of the building by including larger openings in existing walls in contrast to the rear of the building where there are less openings created and doors to the offices are retained.

24. According to Mr Davies, the interconnectivity between the ground floor and the first floor is important to attract shoppers to walk up to the first floor and the proposed void and gallery walkway around the void on the first floor is the means to achieving interconnectivity between these levels. In Mr Davies’ view, the amendments to the proposal sought to retain the sense of a central corridor on the first floor. In Mr Wang’s view, the proposed void should be confined to the area around the existing lift and the front two rooms on the first floor should be retained (Ex 6).

25. In Mr Davies opinion, the awning is contrary to the current philosophical approach for additions to a heritage building because it is a faux traditional awning on a heritage listed building.

Submissions

26. The Council submitted that the existing building is a rare example of a highly intact retail building and the proposal should be refused because the quantity of material to be removed on the first floor will detrimentally impact on the distinctive spatial characteristic of the existing building.

27. The Council submitted that the awning, although contemporary and not a replica of the original awning, should be retained as it contributes to the streetscape of the Pitt Street Mall.

Consideration

28. Both heritage experts accepted that some intervention to the fabric on the first floor at the front of the building is acceptable, but they disagreed on the extent of the intervention. Mr Davies wants to open up the front section of the building by removing the existing lift shaft and internal walls, other than nibs to demonstrate the original configuration, and create a gallery for a visual connection between the ground and first floors. Mr Wang accepts that some intervention to the existing fabric is acceptable on the basis of his own sketches in Ex 6, but wants the front two rooms retained with a smaller void created and a new stair in order to retain the central corridor to the Pitt Street façade on the first floor.

29. I accept the agreement of the heritage experts that some intervention to the fabric of at the front of the building on the ground and first floors is acceptable. I am persuaded by Mr Davies’ evidence that the design intent of the proposal is a superior outcome at the front of the building as it will provide a visual connection between the ground floor and the first floor. The central corridor on the first floor begins, not in the front section of the building, but at the wall that is behind the existing lift. The central corridor is eroded in the front section of the building because the wall on the northern side of the corridor is setback further than the northern wall along the corridor to the east. Furthermore, there has been a fair degree of alterations and additions in the front section of the building, including the insertion of the lift shaft and the removal of walls and openings in walls on the first floor and little or no original or early fabric remains in the front section of the ground floor. The floor structure and some timber floor boards remain on the first floor. The value of retaining the front two rooms on the first floor is outweighed by the benefit of creating a gallery in the front section of the building on the ground and first floors. The retention of wall nibs and the walls above lintels (DA04 and DA07 Section 03 of Ex B) importantly evokes the original layout.

30. I accept the applicant’s experts’ evidence that the demolition of the existing lift shaft and the relocation of the lift to the rear of the building are acceptable. The existing lift shaft and separate lobby reduce the opening of the shopfront to the Pitt Street Mall. The lift shaft will be less obtrusive at the rear of the building and it is located within a former office on the first and second floors.

31. The heritage experts agreed that new openings can made in the existing first floor internal walls that divide the offices from the corridor, however, they disagreed on the extent of openings within the existing walls. Mr Davies approach is to retain the corridor and create new openings below the existing clerestory windows and those openings towards the front of the building incorporate the doorway opening between the corridor and each office. Mr Wang is of the view that openings below the clerestory windows are acceptable, as long as those openings are infilled with glazing (Ex 6).

32. The four walls dividing the offices on the southern side of the corridor on the first floor already have large openings. The proposal is to create openings in the four of the walls dividing the offices on the northern side of the corridor. Mr Wang’s sketch (Ex 6) included openings in some walls between the offices on the northern side of the corridor and he included a large opening with glazing between the office and the position he proposed for the new stair. The only difference between the experts regarding openings between offices is one wall between the second and third office from the front of the building on the first floor has an opening in the proposal and no opening in Mr Wang’s sketch. I am satisfied that an additional opening in a wall dividing an office on the first floor has no bearing on the heritage significance of the item.

33. I accept the agreement of the heritage experts that new openings can be made in the existing walls on the first floor and that the integrity of the central corridor should be maintained. I am satisfied that the proposed openings within existing walls are acceptable, because the existing layout will be legible with the retention of nibs and walls over the openings, there has already been a degree of change on this level with existing openings in walls and the proposal seeks to make the first floor a viable retail tenancy. I am satisfied that Mr Davies’ approach to reduce the size of new openings in existing walls towards the rear of the first floor is a good interpretive strategy.

34. I accept the Council’s submission that the quantity of fabric to be removed on the first floor will impact the way the space reads as a central corridor with small offices, however, Mr Wang also accepted that physical changes to the fabric of this level are acceptable and there has already been a number of alterations to the fabric of the first floor. I am satisfied that the retention of the central corridor and the ability to interpret the original layout of the space by making openings in walls rather than removing walls and the preservation of the integrity of the former offices towards the rear of the first floor are strategies that result in an acceptable proposal in terms of its impact on the identified heritage significance of the listed item.

35. As the awning is contemporary, its removal is, in my view, a matter for the applicant. The removal of the awning has no impact on the heritage significance of the item and retaining a contemporary awning designed to look like a traditional awning does not preserve or enhance the heritage significance of the item. I accept that it is the Council’s view that the awning is a sympathetic addition to the building.

36. I am satisfied that the replacement ground floor shopfront and awning are appropriately simple and will achieve an improved interface between the building and the public domain at ground level because the shopfront is widened to the full width of the building with the removal of the lift shaft and foyer. The awning and shopfront will not detract from the original fabric of the decorative Italianate Victorian façade, nor impact on the special character area of the Pitt Street Mall. I am satisfied that the proposed Pitt Street Mall elevation exhibits design excellence and will achieve an appropriate interfaces at ground level between the building and the public domain.

37. The conditions of consent include, at condition 18, a requirement that a heritage consultant continue to be engaged to work with the consultant team throughout the realisation of this project and this will help ensure that the development achieves a high standard of architectural design, materials and appropriate detailing, commensurate with the identified heritage significance of the heritage item.

Orders

38. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. D/2018/1308 for alterations and additions to the existing building and a change of use of the first floor to retail, at 158-160 Pitt Street, Sydney, is approved, subject to the conditions of consent at Annexure A.

3. The Exhibits, other than Exhibits 1, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (88.5 KB, pdf)

Architectural Drawings (6.70 MB)

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Amendments

23 December 2019 - Amended on 20 December 2019 - By consent and pursuant to UCPR 36.17, the Court amends the reference to the Development Application in Order (2) and paragraphs 1 and 28 of the Judgment to read "Development Application No D/2018/1308", and amend Condition 1(a) of Annexure A to the Judgment.

Decision last updated: 23 December 2019