Indigo Mist v Sydney

[2007] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION:	Indigo Mist v Sydney [2007] NSWLEC 127
PARTIES:	Applicant Indigo Mist Pty Limited Respondent City of Sydney Council
FILE NUMBER(S):	10512 of 2006
CORAM:	Bly C
KEY ISSUES:	Development Application :- Construction of balcony on existing hotel, heritage and streetscape, precedent, amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Environmental Planning and Assessment Act 1979 South Sydney Development Control Plan 1997-Urban Design City of Sydney draft Oxford Street Darlinghurst and Paddington Heritage and Urban Design Development Control Plan City of Sydney Heritage Development Control Plan 2006
DATES OF HEARING:	21 September 2006 and 15 February 2007
DATE OF JUDGMENT:	16 March 2007
LEGAL REPRESENTATIVES:	Applicant Mr S. Austin QC instructed by ME McMahon & Associates Respondent Mr A Galasso SC instructed by Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

Date 16 March 2007

10512 of 2006 Indigo Mist Pty Limited v City of Sydney Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No. D/2006/692, which is for the construction of a balcony at first floor level above the existing Burke Street awning of the Oxford hotel at 134 Oxford St. Darlinghurst. The three level hotel is situated on the corner of Oxford Street and Burke Street in Darlinghurst at Taylor Square. The application originally proposed a similar balcony on the Oxford Street facade of the hotel by the application has since been amended by the relocation of the proposal.

2 The proposed steel frame balcony is to be almost 10.3 metres wide and 1.9 metres deep and positioned about 5.5 metres from the street corner of the hotel. It will have a tile deck floor and a one metre high decorative steel glass-backed balustrade back space. There is to be a glass and steel acoustic screen up to 3.34 metres high at the northern end of the balcony. The Burke Street facade of the building is to be altered to provide a new glass door providing access to the balcony. It is to be used as a place of public entertainment operating 7 a.m. to 12 midnight seven days a week.

3 The hotel has development consent to operate 24 hours a day as a licenced hotel. It also has Place of Public Entertainment licences allowing entertainment to be provided at various times including, relevantly for the first and second floor levels between 6 p.m. and 5 a.m. the following day.

4 Bourke Street, adjacent to the hotel, has been closed to vehicular traffic, pedestrianised and landscaped.

Planning controls

5 Planning controls referred to during the proceedings comprise:

• South Sydney Local Environmental Plan 1998 ("the LEP").
• South Sydney Development Control Plan 1997-Urban Design [2 July 1997] ("the Urban Design DCP").
• Interim Policy for Awnings, Verandas and Balconies on Heritage Items and Buildings within Heritage Conservation and Streetscape Areas ("the Interim Awnings Policy")
• City of Sydney draft Oxford Street Darlinghurst and Paddington Heritage and Urban Design Development Control Plan ("the Heritage and Urban Design DCP")
• City of Sydney Heritage Development Control Plan 2006 [2 January 2007] ("the Heritage DCP")
• City of Sydney Awnings Policy 2000 ("the Awnings Policy")

6 The site is included in Zone No. 3 in which zone hotels are permitted with development consent. The objectives of the zone include the encouragement of a mixture of business activities including commercial, professional and entertainment activities that contribute towards the economic and social vitality of the area. Appropriate forms of urban residential development to support the vitality of commercial areas are also encouraged.

7 The Oxford Hotel is not a listed heritage item but is within the Oxford Street Heritage Streetscape and dates from one of the key periods of significance for this Heritage Conservation and Streetscape Area. I understand that but for the removal of a number of significant elements of the building and numerous alterations to it, it would probably have been so listed. It is nevertheless identified as a Contributory Building to the Darlinghurst and Paddington Heritage Streetscape and the East Sydney and Darlinghurst Conservation Area in which it is situated and is located adjacent to the Foley Street Conservation Area.

8 The hotel is also located in the vicinity of a number of listed heritage items including the Darlinghurst Court House, the former Darlinghurst Police Station, the Underground Toilets and Sub-station Building.

Advertising and public submissions

9 The amended development application was notified to 978 owners and occupiers of surrounding properties for 21 days. Notices were placed on the site and the proposal was advertised in the daily press. Three submissions were received raising the following concerns:

• Excessive noise and adversely affecting residential properties to the north, including impacts from the simultaneous operation of the existing ground level deck and the proposed balcony.
• Would look out of place, appearing as an add-on.
• Inappropriate precedent.

The statement of issues

10 The revised statement of issues identifies the following issues:

1. The proposed balcony is located over land owned by Council, and the applicant has not obtained Council's consent (as landowner) to lodge the development application. (Not pressed).

2. The proposed development, by virtue of not being a reconstruction of and historic balcony is contrary to Council's policies on balconies.

3. The proposed development, by virtue of its design and location, is out of character with the building and diminishes the contribution of the host building to the heritage streetscape.

4. The proposed development by virtue of its location on a building elevation that can potentially accommodate three outdoor areas (existing ground level deck, currently proposed level 1 balcony, and a recently approved level 2 Juliet balcony reconstruction), hours of operation, balcony size, and proximity to residential properties, is likely to give rise to adverse noise impacts.

5. Once one trafficable balcony of the size, nature and intensity of use proposed is allowed at licenced premises on Oxford Street, it is reasonably foreseeable (particularly in the context of smoke free environment legislation) that this might give rise to a proliferation of applications for similar balconies, giving rise to a series of such balconies on either side of Oxford Street with associated noise and public safety issues.

6. Whether the issues raised by objectors warrant refusal of the proposed development and whether there is any need for a third balcony on the Burke Street frontage of the same premises given the potential cumulative noise and streetscape impacts.

The evidence

11 Expert evidence was provided by the court-appointed acoustics expert Mr D Craig and by the applicant's expert Mr S. Cooper. Expert Heritage evidence was given by Mr R Staas for the applicant and Mr T. Smith for the respondent. Miss S. Cheng and Mr J. Lidis gave expert town planning evidence.

12 The court was also provided with details of the resident objector's concerns.

Heritage and streetscape

13 Having considered all of the evidence it has become apparent that the principal issue in this case involves the impact of the balcony on the streetscape in the heritage and conservation context. In this regard there are a number of relevant provisions and requirements in the planning controls that are said by the respondent to be applicable.

The LEP

14 Clause 22 of the LEP requires that consent must not be granted for development within a Heritage Conservation Area or Heritage Streetscape Area unless it is consistent with certain aims and objectives including

(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and

(f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas.

15 Clause 28 of the LEP contains a number of built environment design principles including:

(1) the Council, in determining an application for consent to the carrying out of any development on land to which this plan applies, must take into consideration whether the development:

(b) reinforces and enhances the streetscape and character of the locality, and

(c) is compatible with the scale and design of neighbouring development.

The DCP

16 Section 2.5 in Part E of the DCP deals with facade treatment and includes requirements that forms, patterns and details that establish local character are to be maintained while seeking to create an innovative and sustainable built environment.

17 Section 5.1 in Part F deals with building appearance and conservation and in relation to additions to existing buildings these should relate sympathetically to adjacent buildings the streetscape and the existing building itself. The emphasis should be on restoration and or reconstruction of original elements and detailing to reinstate the traditional character of shopping streets. Section 5.3 deals with awnings and requires that traditional awnings the reinstated where appropriate. Trafficable warnings are generally inappropriate in shopping streets, but where proposed should be designed to complements the streetscape.

The Heritage DCP

18 Section 4.3 of the Heritage DCP identifies the importance of contributory buildings, which are normally highly intact, or with reversible alterations that date from key development periods. They are an important resource for interpretation of the area's heritage significance and character. The buildings should be retained and alterations and additions should not significantly alter the appearance of principal and significant facades except to remove detracting elements. Significant original or characteristic built form must be respected.

19 Section 8.3 deals with verandas and balconies noting that these are widely used in Australian houses and existing significant examples of these should be retained or reinstated. Intrusive structures should be removed.

20 Section 14.4.2 requires that street verandas, balconies, and post-supported awnings should only be constructed where there is documentary or physical evidence of its previous existence on the building.

The Awnings Policy

21 Section 3.7 of the Awnings Policy deals with awnings as verandas or balconies states that:

22 Awnings may be converted to verandas only on heritage buildings and only if such conversions reconstruct an earlier significant veranda and is based on documentary or physical evidence supported by a Conservation Management Plan. On other buildings, verandas are not permitted

23 The conversion of awnings or verandas to balconies is not encouraged and is generally not permitted. Adding balustrading increases the bulk of the awnings, adversely affecting its proportion in relation to the host building and streetscape. It can also obscure the architectural character of the building above the awning. Balconies can be appropriate on buildings in low-rise neighbourhoods (lower than four storeys) as the resulting form is highly compatible with traditional balcony the terraces and corner shops. Balconies may also be appropriate in some specific pedestrianised areas such as Pitt Street Mall where the balcony can provide additional pedestrian interest and focus, but only subject to the whole facade composition achieving a very high level of design quality.

24 Proposals for balcony conversions are to be assessed against certain criteria including: high-quality precedents; compatibility with the streetscape, including pedestrian character; the height of the host building and its heritage significance; and design quality.

The Interim Awnings Policy

25 The relevant objectives of the Interim Awnings Policy comprise:

1. To reinstate awnings, verandas and balconies on existing buildings, on heritage items and buildings within heritage conservation and streetscape areas where evidence of the original structure exists, subject to land use intensification and amenity considerations.

2. To conserve facades of existing buildings and reinstate the character of streetscapes.

3. To retain the intactness of upper stories of facades to heritage items and contributory buildings within heritage conservation areas and streetscapes.

26 The relevant guidelines comprise:

1. New balconies, verandas and veranda posts supporting awnings on the existing buildings are only permitted where it has been demonstrated that there is evidence that an original structure existed, eg through photographs, original drawings or physical evidence on the building, and the bulk of fabric of the original facade is still in place.

2. The associated change of use at the upper storey(s) of a balcony should respect and reinforce the traditional mix of retail/commercial and residential uses, specific to the street and not represent an unacceptable intensification of development nor cause an adverse impact on the amenity of nearby residents or on the locality as a whole.

The evidence - heritage and streetscape

27 It was not in dispute that the Oxford hotel has never had a balcony of the kind proposed and as Mr Smith explained, the proposed balcony would thus be inconsistent with the requirements of the planning controls that permit the reconstruction of an early significant balcony. Also there is no historic precedent for a balcony of the type and extent proposed in the City of Sydney. Other balconies referred to by Mr Staas such as that at nearby Kinselas were approved prior to Council's current policy.

28 Mr Staas recognised the various planning controls but contended that the proposed balcony should be considered on its own merits in relation to the existing building and its contribution to the surrounding area. Importantly the balcony will do little to affect the ability to understand and appreciate the existing fabric of the hotel and its contribution to the streetscape.

29 It was also not disputed that the hotel is a prominent corner building and that its two street elevations are of equal importance. However they disagreed as to the contribution that the Bourke Street elevation makes to the streetscape. Mr Smith pointed out that the Oxford Street heritage streetscape extends around the corner into Bourke Street and as a consequence a veranda is just as unacceptable on the Bourke Street elevation as it would be on the Oxford Street elevation. Partial screening of the balcony by existing trees in Bourke Street is irrelevant. He also explained that the balcony would damage and obscure the fabric of the hotel that is important to its contribution to the streetscape. More particularly it would: destroy part of the floor structure; create a new opening and alter and original window; remove to decorative awning support rods; obscure part of the oriel window; and generally obscure part of the facade of the building.

30 Mr Staas explained that because the building is not a heritage item its contribution to the streetscape is limited. More particularly the Bourke Street facade makes a limited contribution to the character of Oxford Street notwithstanding that it is part of the streetscape. It was his opinion that the balcony is generally sympathetic to the scale and character of the hotel's Bourke Street facade and is appropriately identifiable as a later addition. The landscaping in the closed section of Bourke Street minimises its visual impact.

31 Miss Cheng essentially agreed with Mr Smith that by not being a reconstruction of a historic balcony the proposal would be contrary to Council's policies on balconies. The balcony would significantly detract from the Oxford Street streetscape. Its design details are not responsive to the Awnings Policy, particularly in relation to the conservation of intact facades. Its rectilinear and cantilevered form is entirely foreign and detracts from the style and character of the hotel. Despite being on the side elevation the balcony, especially when populated would be visually significant especially taking into account that the Hotel is located in a prominent position in the pedestrianised Taylor Square where buildings are appreciated in the round.

32 Mr Lidis disagreed, explaining that because the balcony is oriented to the less sensitive Bourke Street frontage it would not significantly detract from the Oxford Street streetscape. Moreover it is only visible from an oblique angle from Oxford Street. It would maintain all remaining fabric except for two awning ties and the replacement of a window with a door.

33 Miss Cheng also explained that the removal of the two awning ties and the insertion of a cantilevered balcony with its noise screen would denigrate the important role of the awning and its details, which are continuous around both frontages of the hotel. The rhythm of the facade would be disrupted and important features of the facade obscured. The lack of alignment with the ground level deck is a further problem. She also commented that the physical character of Oxford Street is established in part by a number of small and recessed balconies on contributory buildings rather than large rectilinear projecting structures on top of awnings.

34 Mr Lidis was of the opinion that that the balcony meets some of the requirements of the Heritage DCP by providing usable outdoor space interaction with the public realm and increased surveillance opportunities. Miss Cheng disagreed because the interaction between hotel patrons on the balcony and the public realm would be minimal given the elevation of the balcony and passive surveillance benefits would be marginal given the existing surveillance opportunities afforded by windows and doors at the ground level.

Court's conclusions - heritage and streetscape

35 There is no suggestion that the planning controls seek to prohibit balconies. However, there emerges from these controls insofar as they apply to Oxford Street, a strong indication that balconies the kind here proposed are not appropriate. Moreover, the particular requirement that there be a historic precedent for the construction of projecting balconies on existing buildings is understandable, particularly in relation to buildings that have heritage significance or are contributory buildings. The Oxford Hotel is a contributory building and as revealed by the original architectural drawings, there is no such precedent for a balcony of the kind here proposed. Whilst this is a matter for consideration it is not by itself determinative.

36 It is also apparent from the planning controls that, in Oxford Street, the conservation of significant fabric and heritage buildings including contributory buildings is of considerable importance in the streetscape context. Whilst the hotel is not a heritage item I accept that it has considerable importance as a contributory building to the conservation area.

37 I accept that the building will be seen "in the round" especially when viewed from Taylor Square and from the east in Oxford Street and taking into account that the original building drawings reveal an equal attention to architectural details on both facades. The awning, including the supporting ties, is an important feature of the composition of both facades. Consequently the Bourke Street elevation is not a secondary facade. I also accept that this facade attracts an almost equal importance to that of the Oxford Street facade notwithstanding that it will not be seen from the northwest. Hence any loss of fabric or the obscuring of it is likely to be of concern.

38 The Oxford Street facade and parts of the Bourke Street facade of the hotel will be unaffected. The awning will be unchanged and most of the decorative awning support rods are retained. Nevertheless a new door opening, the alteration of an original window and the removal of two of the awning support rods are also proposed to facilitate the construction of the balcony. Despite the retention of significant fabric and the reinstatement of a small second floor inset balcony and the positioning of the balcony 5.5 metres from the corner I agree that the appearance of the building will be adversely affected by it. The removal of the awning support rods and the introduction of the balcony a very short distance above the awning will not only disrupt the visual rhythm of the facade but also obscure views of it. The balcony's bulk will affect the proportions of the awning. Also, when occupied by up to 38 hotel patrons this will significantly change the presentation of the building in the streetscape and further obscure the architectural detail of the facade.

39 The awnings policy in recognising that balconies can be appropriate nevertheless requires a compatibility with the host building and that the whole facade composition must achieve a very high level of design quality. In my opinion this has not been achieved.

40 My attention was drawn to a number of other nearby balconies, including one of a similar size at Kinselas Hotel. I understand that these balconies were approved under preceding planning controls and having different particulars. I give no weight to these balconies.

41 My attention was also drawn to the level of pedestrian activity surrounding the Hotel and the proliferation of what was described as "urban clutter" including signs, banners, poles, traffic signals and the like. Despite these things the proposed balcony will continue to be obvious, especially when occupied by hotel patrons. Whilst Taylor Square is a well-recognised tourist and recreation destination I do not accept this as a reason to allow something that will inappropriately impact upon the built form character of this contributory building.

42 I thus conclude that the balcony would adversely affect the hotel’s Bourke Street composition, would detract from the significance of the heritage conservation area and would not reinforce or enhance the distinctive streetscape of Oxford Street as required by the LEP. Whilst the balcony would assist in the sustainability of the hotel this benefit is overwhelmed in my view by its negative impact on the streetscape.

43 Having decided that the development application should be refused the other issues such as precedent, amenity impacts and resident's concerns need not be addressed. I would comment however that, having considered the evidence I doubt that these matters would have formed the basis for a refusal of the application.

Orders

44 The orders of the Court are therefore:

1. The appeal is dismissed.

2. Development Application No. D/2006/692, for the construction of a balcony at first floor level above the existing Burke Street awning of the Oxford hotel at 134 Oxford St. Darlinghurst is determined by refusal.

3. Exhibit A is retained.

___________________

T Bly
Commissioner of the Court
as