Dunning Proprietor Pty Ltd v Council of the City of Sydney

[2024] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dunning Proprietor Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1233

Hearing dates:

5 and 6 March 2024

Date of orders:

07 May 2024

Decision date:

07 May 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development  Application  D/2021/1491  for alterations, additions and adaptive re-use of a heritage building for the purposes of a five-storey commercial building is refused.

(3) The exhibits tendered in physical or hard copy form are returned, except Exhibits 2, A, B and H which are retained.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to heritage item – setback of three-storey addition – bulk and scale – whether vertical addition would unreasonably erode prominence of heritage item – whether positive aspects of the proposal are sufficient to mitigate adverse heritage conservation effects

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.13, 6.14, 6.21C

Texts Cited:

Sydney Development Control Plan 2012

International Council on Monuments and Sites (ICOMOS) Burra Charter

Category:

Principal judgment

Parties:

Dunning Proprietor Pty Ltd (First Applicant)
Robert Gale Macauley (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (First and Second Applicants)
A Singh (Solicitor) (Respondent)

Solicitors:
Pryor Tzannes & Wallis (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/44375

Publication restriction:

No

Judgment

1. COMMISSIONER: This is appeal is brought by Dunning Proprietor Pty Ltd and Robert Gale Macauley (applicants) under s 8.7 of the Environmental Planning and Assessment Act 1979 against the refusal by the Council of the City of Sydney (Council) of a development application it references as D/2021/1491 (DA). The DA is for alterations, additions and adaptive re-use of a heritage building for the purposes of a 5-storey commercial building.

Site and setting

2. I rely on Council’s Statement of Facts and Contentions (Ex 2), for much of the material in this and the following two descriptive sections.

3. The site comes by the street address of 25-27 Dunning Avenue, Rosebery and has a legal description of Lots 35 and 36, Section A, DP 192683. The site is a corner block and with area of approximately 956m². It has a frontage of 17.7m to Dunning Avenue along its western boundary and a frontage of 39.6m to Cressy Street along its southern boundary. The site is currently used as a vehicle repair station and body repair workshop. Pedestrian entry to the site is located at the corner of Dunning Avenue and Cressy Street. Vehicle access is from Cressy Street.

4. The site address is identified in Schedule 5 of the Sydney Local Environmental Plan 2012 (SLEP) as a local heritage item. The relevant “item name” is as follows:

“Paradise Garage” warehouse including interior

5. The site is surrounded by a mix of land uses, including residential, commercial and industrial uses. A notable point relating to the evidence is that the adjoining six level residential apartment building to the east along Cressy Street (with street address 13-21 Mentmore Avenue) adopts a zero building line setback to this street.

The proposal

6. The proposal, as amended, provides for alterations and additions to the existing building, including the construction of three additional storeys above it. The building is proposed to be used for commercial purposes. Essentially citing from Council’s statement of facts and contentions (Ex 2 par 14), pertinent particulars of the proposal are as follows:

• Reconfiguration of ground level shopfront area and car parking area, and construction of a new first floor within the existing building envelope.

• Addition of three new storeys for commercial use, set back in part from the northern, southern and western boundaries; over the essentially retained existing sawtooth roof, with a new core, containing lifts at the northern boundary and a lightwell to the north-east corner.

• Certain detailing of external facades including reinstatement of the original ‘Paradise Garage’ business identification sign at the corner of Dunning Avenue and Cressy Street, concealment of new building fabric at the street elevations, and substantial maintaining of existing windows facing Cressy Street.

Introduction to planning provisions

7. The site is located within the MU1 Mixed Use zone under SLEP. The proposed development is characterised as a commercial premises, a use permissible with consent within the zone. The relevant zone objectives are:

• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To ensure land uses support the viability of nearby centres.

• To integrate suitable business, office, residential, retail and other land uses in accessible locations that maximise public transport patronage and encourage walking and cycling.

8. The key numerical controls within SLEP of relevance are as follows:

1. The site is subject to a maximum building height control of 22 m under cl 4.3 of SLEP. The maximum height of the proposed development complies at 21.75m.

2. The site is subject to a Floor Space Ratio (FSR) control of 1.5:1 under cl 4.4 of SLEP. But this baseline control can in this case be supplemented. The proposal qualifies for “end of journey” floor space uplift under cl 6.13 (relating to showers, change rooms, lockers and bicycle storage) areas. The relevant area is 73m², which calculates to an additional FSR of 0.076:1. The amended proposal was also accompanied by an offer, pursuant to cl 6.14 of SLEP, to provide for Green Square community infrastructure. I understand that Council is satisfied that the proposal meets the related satisfaction requirements. If acceptable under the provisions of cl 6.14(3), the proposal would be eligible for an additional 0.5:1 FSR. If I assume the proposal qualifies in that respect, the total permissible FSR would be 2.076:1. The proposal’s FSR is 3.1:1 (Clause 4.6 Request Ex H p 5) exceeding the standard by some 950m² (Joint Town Planning Expert Report Ex 5 par 65).

9. Clause 5.10 of SLEP is concerned with heritage conservation. Subclause 5.10(4) is triggered given the local heritage listing indicated above. In turn, before granting consent there is a need to “consider the effect of the proposed development on the heritage significance of the item …”.

10. Under cl 6.21C of SLEP, development consent must not be granted to the proposal unless I am of the opinion that the development “exhibits design excellence”. A series of matters which I am required to take into account on that topic are listed at cl 6.21C(2). The urban design experts suggested the following provisions as those relevant to the evaluation of this DA (Ex 4 par 13):

6.21C Design excellence

(1) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(2) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters—

(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—

…

(iii) any heritage issues and streetscape constraints,

…

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

…

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

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

…

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

...

11. Sydney Development Control Plan 2012 (SDCP) is a consideration in this matter. SDCP controls of relevance are raised in the consideration of the issues and evidence.

Issues and approach

12. Council nominated three topics as reasons for refusal of the proposal (Respondent’s Outline of Submissions handed up on the final day of the hearing (ROS) par 6): (1) inadequate Clause 4.6 request (relating to the FSR exceedance), (2) the proposal fails to exhibit design excellence and (3) heritage.

13. I can consider these topics (which line up directly with Contentions 1, 3 and 4 in Ex 2), while also giving particular attention to what I think is the single essential issue in dispute between the parties. Put succinctly, this is whether the three storey vertical addition, in particular given its adopted street setbacks, would, or would not, visually dominate the heritage item and erode its prominence.

14. The approach to the judgement writing is as follows. First some further details of the proposed building are provided. Then it is convenient to outline background (as relevant) and evidence on the three subject areas of heritage, design and planning, in turn. Finally, I turn to an evaluation, synthesising back to the essential dispute.

15. I will take the opportunity to introduce the experts providing evidence as follows.

Expertise	For	Expert Report reference
L Schutz	Heritage	Applicant	Ex 3
P Misra	Council
A Dowse	Urban design	Applicant	Ex 4
E Colgrave	Council
S Kerr	Town planning	Applicant	Ex 5
A McKeown	Council

16. While I nominate the individual points of expertise above, there is some crossover in the evidence as presented.

Some further particulars on the proposed building presentation

17. The proposal adopts a consistent setback of about 3.3m to Dunning Avenue (I was unable to locate these offset distances on the plans and have assumed the dimensions adopted by Ms Colgrave (Ex 4 Fig 3.8)). There is a curved presentation as the facade transitions towards Cressy Street. Then facing Cressy Street, the upper levels would follow an existing structural support line, which runs at an angle to the street alignment. The closest point would be about 0.47m from the existing built form’s southern edge receding gradually to 4.29m at the common boundary with the neighbour to the east (13-21 Mentmore Avenue).

Figure 1 - Level 3 plan (Ex A Tab 5 Sheet 102 Rev P)

Figure 2 – South elevation (Ex A Tab 5 Sheet 200 Rev K)

Figure 3 - Level 3 plan (Ex A Tab 5 Sheet 201 Rev K)

Figure 4 – Photomontage (Ex A Tab 7 p 2)

Heritage conservation

Background

18. Section 4.4 of the revised Conservation Management Plan accompanying the DA included a statement of significance for the heritage item, as follows (Ex 3 App C p 27):

“‘Paradise Garage’ at 25-27 Dunning Avenue, Rosebery is of local heritage significance for its historic, associative, aesthetic, and representative value. The building is of historic and aesthetic significance at a local level as it provides strong evidence of the continued industrial development of Rosebery in the Post-War period and the successful expansion of industry as an extension to the neighbouring warehouse at no. 23. This reflects the broader transition of industry to the south-east of the Sydney CBD during the war years and Rosebery’s development as a model industrial suburb, designed by architect John Sulman and the Town Planning Company of Australia.

The building was designed by and is thus associated with prominent Australian architecture firm Robertson & Marks who are responsible for some of Sydney’sgreatest twentieth century commercial buildings.

The building is a robust, dramatic and relatively intact example of a Post-War Functionalist warehouse with Inter-War leanings from which it exudes characteristic features such as its curved corner, high parapet, horizontal streamlined effect, hood projections, steel framed windows, and light toned cement render. It also retains one of the few remaining sawtooth roofs in the Rosebery locality.

It is representative as an externally intact Post-War Functionalist warehouse which exemplifies Rosebery’s industrial development and evidences the standard warehouse/ commercial operation of the 1950s.”

19. Clause 3.9.5 of the SDCP relates to heritage items. The objective is to:

“Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.”

20. Council raises related provision 1(a) of clause 3.9.5:

“Development affecting a heritage item is to minimise the extent of change to significant fabric, elements or spaces.”

21. Clause 3.10.1 of SDCP is concerned with warehouse and industrial buildings older than 50 years. The nominated objectives are to:

“(a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use

(b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building.”

22. Article 15 of the International Council on Monuments and Sites (ICOMOS) Burra Charter is referenced which includes a commentary that “change which reduces cultural significance is undesirable”.

23. Council says the proposal is at odds with Principle (b) of the relevant Beaconsfield Locality Statement which provides that “development is to respond to and complement heritage items”.

Evidence

24. Ms Misra argued that that the three-storey vertical addition presents a scale and bulk that dominates the heritage item as viewed from Dunning Avenue and Cressy Streets (Ex 3 par 29):

“The proposal does not respond positively or respectfully to the building and results in overbearing and dominance [sic] impacts on the subject heritage item. The addition is neither subservient nor recessive in the context of the existing building.”

25. Ms Misra referred to the revised Conservation Management Plan (CMP) which accompanied the proposal (Ex 3 App C), indicating the examples of positive adaptive reuse of historic warehouses cited in the CMP were not supportive of the proposal “as they do not have bulky vertical additions” (Ex 3 par 32). The essential concern was that the building massing or bulk would dominate, rather than complement, the heritage item.

26. Council’s “City of Sydney Model Team” under the instructions of Council’s specialists involved in this case, especially I believe Ms Misra, had prepared a different massing concept which involved increased street setback configurations for the vertical addition (Ex 4 App B). Ms Misra was supportive of, what I will call, the Council massing concept, as showing appropriate deference to the heritage item.

27. Ms Schutz argued that the proposal was consistent with Articles 15 and 22 of the Burra Charter, noting that Article 22.2 states that:

“New work should be readily identifiable as such, but must respect and have minimal impact on the cultural significance of the place. The proposal includes the retention of significant elements, and the design of a sympathetic addition that respects the significance of the existing item while being clearly identifiable as new.”

28. Ms Schutz also argued that the proposal was consistent with clause 3.10.1 (6) of SDCP through use of “a complementary and simple form, and a design that is clearly distinguishable as new”. The setbacks for the vertical additions, as proposed, “maintain the visual prominence of the heritage item to the public domain and to reinforce the presentation of the existing warehouse building” (Ex 3 par 56).

29. Respect to the significance of the heritage item was demonstrated by (Ex 3 par 25):

“… the retention of the characteristic elements of the Post-War Functionalist warehouse, such as the curved corner façade, the high parapet, the steel framed windows, light toned cement render and the sawtooth roof form. These elements contribute to the integrity of the building and provide evidence of the industrial development within the locality.”

30. The incorporation of the existing sawtooth roof structure with the amended proposal “ensures the legibility of the continued evolution of the subject building, while respecting the form in which it was initially constructed” (Ex 3 par 57).

31. Mr Kerr introduced links between commerciality and heritage conservation (Ex 5 p 16):

“From a heritage perspective, there are significant costs associated with conserving the heritage item and funding the upgrades required to the building. Development options which involve reduced floor space, such as only one additional level within the existing facade, are not financially viable.”

Urban design

32. The urban design experts were in agreement about a number of the particulars of the proposal but were fundamentally at odds with the implications of the vertical addition. Ms Colgrave’s view was that (Ex 4 par 41):

“The external appearance, including critically the building bulk of the proposed addition, is highly visible and is not considered to improve the quality and amenity of the public domain. The proposed 3-storey addition visually dominates the existing 2-storey heritage listed warehouse. Given the prominent corner location of the item, the addition will be highly visible from both near and far viewpoints from the public domain.”

33. Ms Colgrave raised concern about a number of the considerations at cl 6.21C(2) of SLEP relating to design excellence, including subcll 6.21C(2)(b), (d)(iii), (d)(v), (d)(vi) and (d)(vii). Attention was drawn to the presentation of the three-storey addition at and around the addition’s closest point to the Cressy Street boundary (Ex 4):

“This results in the LEP maximum permissible building height of 22m bulk positioning being fully appreciable in closest proximity to the existing warehouse’s key corner interface. Meaning, the most visible part of the site when viewed from the public domain is proposed with the most appreciable building bulk from the addition.”

34. Ms Colgrave further argued that:

“This does not achieve a desirable streetscape outcome as it erodes the prominence of the existing corner heritage listed warehouse by providing inadequate setbacks for the new addition. This is inconsistent with DCP 2.5.2 Beaconsfield locality statement principle (b) for development to respond to and complement heritage items.”

35. Ms Dowse highlighted the high standard of the proposed architectural detailing and finishes. The proposed façade modulation, in regard to the vertical addition, comprising continuous vertical blades would provide enhanced environmental performance (Ex 4 pars 78-81):

“… the neutral and muted mid tone colour contrasts to the off-white existing masonry walls of the existing warehouse enriching the dialogue between the new and old with each element reflecting each era to enhance the interpretive potential.”

36. There is a social and economic benefit associated with what Ms Dowse argues is a rebalancing of commercial and residential uses. In streetscape terms (Ex 4 par 81):

“…the proposed façade is unusual for a commercial façade, establishing distinct characteristics that enhance the architecture as a whole when viewed from the public domain. A local landmark is created with a place specific contemporary design which improves the quality of the public domain and prominent corner.”

37. Ms Dowse makes reference to a perspective drawing contained in the Design Statement prepared for the scheme, as presented at Figure 5.

Figure 5 - Perspective (Ex A Tab 6 p 2)

38. Ms Dowse argues that the proposed addition “appears recessive to the existing heritage item” with the “curved setback addition in muted architectural expression” (Ex 4 pars 83-86):

“The proposed setback maintains the heritage item as dominant. The re purposing of the building allows further appreciation of the heritage, especially from within the entry, retail and commercial floors.”

39. As put by Ms Dowse (Ex 4 par 90):

“… the prominent corner position is strengthened through the continuation of the curved corner in the addition, which although close to the boundary in a single point …, it is my opinion it enhances the reading of the heritage item. The setback, which increases from this point along Dunning Avenue and Cressy Street, allows the addition to be recessive, whilst being sympathetic to the proportions of the existing…”

40. The second part of this paragraph was of particular note, where Ms Dowse referenced the Council massing concept:

“…The proposed curvature of the addition is symmetric to the existing, whilst it is my opinion the proposed View 5, 6 and 8 in Appendix B is unsympathetic to the original curvature and out of balance with the existing heritage building.”

41. Ms Dowse saw the proposed curvature of the vertical addition as “symmetric to the existing” (Ex 4 par 90), whilst the Council massing concept was “unsympathetic to the original curvature of the building and out of balance with the existing heritage building” from certain nominated view positions as presented in Ex 4 App B. Ms Dowse also drew attention to the existing five and six storey development adjoining and across the road from the site. Ms Dowse’s prepared a graphical critique to support her views on the Council massing concept, which I have adapted for representation at Figure 6 (I understand the blue arrows are intended to show sympathetic aspects of the proposal in relation to perceived unsympathetic aspects of the Council massing concept).

Figure 6 - Ms Dowse critiques Councils' alternative scheme in blue markings (adapted from Ex 4 par 93)

42. Mr Kerr noted SDCP provisions that street setbacks “be consistent with adjoining buildings” (Ex 7 par 48):

“The DCP (section 4.2.2.1) requires the street setback to be consistent with adjoining buildings. The adjoining building on the Cressey Avenue frontage (known as 13-21 Mentmore Ave) observes a nil setback, which is typical of new development in the locality.”

Other planning-related matters

43. The planning experts agreed there were no significant concerns with regard to neighbour amenity impacts. Other planning matters can be separated into three topics. The first related to the FSR breach in concept. I can directly agree in this section of the judgement that conceptually, it is fair to differentiate FSR implications of commercial and residential buildings, with respect to total building bulk at least. That is, I agree with the applicant in regard to the lesser Gross Floor Area exclusions for this commercial building when compared to a typical residential building, which in turn means less total bulk or massing would be expected for the same FSR. However, this point is not particularly persuasive here as even were a building to have a compliant FSR, this would not prove that it had a satisfactory relationship with an existing heritage item.

44. The second planning matter was concerned with Council’s historical position in the general locality on FSR breaches. Council agreed that it has regularly approved development exceeding FSR controls. Council argued that it did so on its evaluation of the merits of individual applications. The applicant was not able to persuade me that anything other than this was the case or that, say, there was persuasive evidence that Council's record was to give minimal weight to FSR as a local control in general. More generally on FSR, it seems clear enough that the FSR exceedance is not the main point of concern with this application. The question is about the location of the building mass, and how it relates to the heritage item.

45. The third was concerned with the linked topics of achieving planning ambitions for the locality and the commerciality of the project. I note that the point made I think by Mr Kerr and Ms Dowse was not just on total floor area or floorspace yield, it went to the idea of maximising flexibility. Mr Kerr mentioned this point in his written request relating to the FSR contravention (Ex X p 16):

“An arbitrary reduction in the size of floorplates for the sake of numerical compliance only would reduce the commercial attractiveness of the building, whereas the variation promotes the orderly and economic use and development of the land.”

46. Ms Dowse was concerned to ensure there was not a “narrowing [of] the type of businesses capable of occupying the building” (Ex 4 par 103) and suggested there was a link here with providing for “sustainable urbanism” rather than “urban sprawl”, linking to “industry standards” (Ex 4 par 96):

“By comparison, a reduced floor plate that is below typical industry standards reduces market lease options without any tangible public benefits and accordingly is against the environmental benefits of delivering appropriate, flexible commercial infrastructure in an area where there is an undersupply of this land use.”

47. Mr Kerr was concerned about the lost opportunity for the site to provide greater space for small business workers in a well located setting with good public transport and off-road cycleways and where significant housing growth has been occurring (Ex X cl 4.6 p 15). He made clear that the small increase in employment (relating to FSR exceedance) was readily manageable (Ex 5 par 66-78).

“The additional floorspace would provide accommodation for 26 small business workers according to the most recent City of Sydney Floor Space and Employment Survey data (2017) [Appendix I], or 45 office workers according to the occupancy rates adopted in the City of Sydney Development Contributions Plan 2015 (the Contributions Plan) [Appendix J].”

Consideration

48. Having considered the evidence and submissions, the evaluation of the DA turns on two matters. The first and most important is whether the setback of the vertical addition is sufficient to allow the vertical addition to appear recessive having regard to the existing heritage item; or in the alternative, whether the vertical addition unreasonably erodes the prominence of the heritage item. The second question is the extent other aspects of the proposal, heritage-related and otherwise, offset any adverse effect on the heritage significance of the item. My findings are against the application on both fronts.

Vertical addition would dominate and erode the prominence of the heritage item

49. The core concern with this proposal is the massing of the vertical addition adjacent to the key point of public appreciation of the heritage item.

50. Due to the obvious physical configuration, the curved treatment at the corner and entrance to the heritage item (and associated “high parapet” and “horizontal streamlined effect” (Ex 3 par 24)), key features of the heritage item; together are most appreciable within the public domain on the approach from south and west. That is, when moving along Dunning Avenue from the south or along Cressy Street from the west.

51. The gaze towards the curved entrance, from these points, would have this new vertical massing as a dominant feature. Even with the intended “muted” architectural treatment, a three-storey vertical addition massed so close to the southern tangent point of the curved warehouse form would not be capable of presenting as recessive. The photomontage at Figure 4 shows a tree screening part of the view line of concern but this (visual screening by vegetation) is not generally representative of the viewer perception opportunities within the public domain on the approach from south and west.

52. The proposed vertical addition would dominate and significantly erode the prominence of this quite striking and relatively intact heritage item, as viewed from the public domain.

Other positive aspects of the proposal are insufficient to mitigate adverse heritage conservation effects

53. There are some positive aspects of the proposal in regard to heritage conservation. These are mostly related to the retention of selected external and internal fabric and spaces, with retention of the saw tooth roof prominent here. There is the further matter of, as put in the conservation management plan, “securing (the site’s) essential heritage significance into the long term” (Ex 3 App C p 33). An adaptive intensification of use on the site also allows further appreciation of the site’s history. However, such benefits mostly experienced from within the site (see [38]), are limited and not of comparable significance to the erosion of the prominence of the heritage item in the public domain.

54. While cl 5.10(4) of SLEP points to the direct consideration of effect of a proposed development on the heritage significance of a heritage item, it is of course not the only evaluative consideration in this DA. Mindful of Ms Dowse’s arguments, an important point for consideration is whether (even if there is likely to be some heritage conservation downsides with the proposed vertical additions), there is an overall positive outcome in visual character terms with the proposal. Here, I also note Mr Kerr’s reference to SDCP provisions relating to setback.

55. I was not persuaded by these arguments. It did not seem to me that there was a particular symmetry for example to the applicant’s proposal that was superior to the Council massing concept. If symmetry is desirable, depending on the viewer position, the applicant’s proposal could appear quite asymmetrical from certain viewpoints, and the Council massing concept more symmetrical given that it was closer to the bisection line of the curved frontage.

56. In regard to Mr Kerr’s reference to clause 4.2.2 of SDCP and building setbacks, of course the provisions should be read in full:

“Objectives

(a) Ensure development:

(i) is generally consistent with existing, adjacent patterns of building setbacks on the street; and

(ii) maintains the setting of heritage items and is consistent with building setbacks in heritage conservation areas.

(b) Establish the street frontage setback of the upper levels of residential flat buildings, and commercial and retail buildings.

(c) Encourage new building setbacks where appropriate to reinforce the areas desired future character.”

57. In clause 4.2.2 of SDCP, the provision for setbacks “generally” consistent with that existing at Objective (a)(i), would not in my view overcome an explicit provision to maintain the setting of heritage items at Objective (a)(ii), or the encouragement of setbacks to reinforce desired future character as per Objective (c). In my view, a weakness of the argument using 13-21 Mentmore Ave as reference example (with its zero setback), is that that site is too far removed from the critical alignment intersection and corner presentation of the heritage item.

58. As to the wider planning arguments, I would agree with the applicant’s planning and design experts that an “arbitrary” reduction in floorplates and building massing, or one “without any tangible benefits” would not make commercial or urban sustainability sense. But it could equally be said that, if the delivery of sustainable urbanism is the challenge, there needs to be a place for thoughtful retention of cultural heritage values in the mix. There is no doubt that this locality is undergoing transformative change. But Council’s policy ambitions are clear enough that opportunities to protect the significance of heritage items rather than erode their prominence should be taken up. To do so assists with creating sense of connection and local identity in the face of large scale change.

59. The massing of the proposal as perceived when approaching from the south and east would significantly and adversely affect the prominence and heritage significance of the item, and in turn local character. While I acknowledge the retention of internal fabric, the effect, or lost opportunity, would be most appreciated in the public domain, which for me is the area requiring greatest attention. Just in my own opinion, and for what it may be worth, there may be opportunities in a redesign which was a little less responsive to internal fixtures and more in regard to the public domain.

SLEP provisions relating to FSR and design excellence

60. I am aware that Council argued against the proposal in relation to cl 4.4 of SLEP (regarding the FSR contravention) and that the requirements of cl 6.21C of SLEP could not be met (that consent must not be granted unless I am of the opinion that the development “exhibits design excellence”). The applicant, similarly, provided arguments in support in both instances.

61. While I have examined the evidence in regard to both of these matters and factored this evidence into my considerations in the judgment, I see no need to make findings in relation to each of these matters. While a positive finding in relation to the FSR contravention and on design excellence permits a positive finding in relation to the DA, it would not, for example, compel a positive finding. In this instance, it is not the case that a positive finding with respect to either of them would force me to determine the matter differently.

Conclusion

62. In consideration of cl 5.10(4) of SLEP, I find that the proposal unreasonably erodes the prominence of the existing heritage listed warehouse building at this prominent corner by providing inadequate setbacks for the new three-storey vertical addition. This is the determinative factor in the evaluation of the proposal.

Orders

63. The Court orders that:

1. The appeal is dismissed.

2. Development Application D/2021/1491 for alterations, additions and adaptive re-use of a heritage building for the purposes of a five-storey commercial building is refused.

3. The exhibits tendered in physical or hard copy form are returned, except Exhibits 2, A, B and H which are retained.

P Walsh

Commissioner of the Court

Decision last updated: 07 May 2024