Kovacs v Council of the City of Sydney

[2020] NSWLEC 1258

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kovacs v Council of the City of Sydney [2020] NSWLEC 1258

Hearing dates:

12-14 February 2020

Date of orders:

16 July 2020

Decision date:

19 June 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

See final orders at 107]-[108]

Catchwords:

DEVELOPMENT APPLICATION – State Heritage listed terraces – integrated development – alterations and additions – prefabricated and detachable multipurpose platform – extension of the dumbwaiter – heritage conservation – balance between conservation and adaptive reuse

Legislation Cited:

Environmental Planning and Assessment Act 1979

Heritage Act 1977

Sydney Local Environmental Plan 2012

Cases Cited:

Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Kovacs v The Council of the City of Sydney [2018] NSWLEC 1675

Texts Cited:

Assessing Heritage significance, NSW Office of Environment and Heritage, 2001

Sydney Development Control Plan 2012

The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013

Category:

Principal judgment

Parties:

Richard Kovacs (Applicant)
Council of the City of Sydney (First Respondent)
Heritage Council of New South Wales (Second Respondent)

Representation:

Counsel:
C McEwen SC (Applicant)
A Pickles SC (First Respondent)
B Tronson (Second Respondent)

Solicitors:
King & Wood Mallesons (Applicant)
Sydney City Council (First Respondent)
NSW Department of Planning, Industry and Environment (Second Respondent)

File Number(s):

2018/391638; 2018/391654

Publication restriction:

No

Judgment

Background

1. The applicant, Richard Kovacs, seeks development consent to carry out alterations and additions to a pair of Victorian period Georgian style terraces cut into the escarpment of the Millers Point historic area. The terraces are part of the group known as “Talbots town houses” (7-13A Dalgety Road) which were built during the first phase of the residential development of Millers Point. They are amongst the oldest surviving residential buildings in Sydney.

2. The terraces are known as 7 and 9 Dalgety Road, Millers Point (“site”) and are listed on the NSW State Heritage Register within ‘Dalgety Terraces’ (7-13A Dalgety Road) including interiors (NSW State Heritage Register SHR: 00867). They are located within the Millers Point Conservation Area (SHR:1682) the Millers and Dawes Point Village Precinct (SHR: 01682); and the Miller Point Heritage Conservation Area HCAC35) under Sydney Local Environmental Plan 2012 (“LEP”).

3. A Conservation Management Plan (“CMP”) for the site prepared by Robertson and Hindmarch Pty Ltd, dated 2 May 2016 (version 2.4), was endorsed by the Heritage Council of NSW on 4 May 2016 and is valid until 4 May 2021 (ref: Doc16/216238). Relevantly, the CMP provides the following Statement of Significance for Talbots town houses at 7-13 Dalgety Road, including the site:

“Talbot’s town houses, Nos 7-13 Dalgety Terrace, four of the five town houses originally built, are of State significance as an important example of the city’s early housing stock and the group is one of the few survivors of the first phase of the residential development of the Millers Point area. These town houses are also significant at a State level as they demonstrate the increasing densification of the inner-city area and the area’s transition from separation villas to attached, urban row housing in the 1840s. They demonstrate the physical impact of building laws, based on the London model to prevent the spread of fire, on the design of buildings.

Talbot’s town houses are significant at a State level because of their association with the early architect, John Bibb, who was the architect of many fine buildings in early Sydney. These town houses are one of only two rows of attached town houses that have been definitively confirmed as having been designed by Bibb, the other example, which is less intact, is 52-60 Argyle Place.

Talbot’s town houses at Nos 7-13 Dalgety Terrace are significant at a State level because they embody a high level of the aesthetic and technical qualities, qualities that characterised this standardised form of town house derived from English examples with little modification. Their overall architectural design, planning, relatively intact original internal detailing, the fine front façade ashlar stonework and the cantilevered first floor covered balconies and cast iron Juliet balcony of Nos 7-9 demonstrate the direct importation of urban architectural styles, components and details from Great Britain by English-trained architects including John Bibb and John Verge.

The Millers Point and Dawes Point precinct is significant through its associations with a community in NSW for social, cultural and spiritual reasons. A proportion of the existing population is descended from previous generations of Millers Point locals and has fostered a strong and loyal sense of community and solidarity. The preservation of the physical and social components of Millers Point has both provided insight into, and ensured the continuity of, early twentieth century inner Sydney lifestyles. Nos 7-13 Dalgety Terrace contribute to this significance because they are components of a State-significant conservation area that provides an insight into early Sydney lifestyles.

Nos 7-13 Dalgety Terrace are significant at a State level because they, and their sites, have the potential to yield information on the use, design, building technology and construction techniques of domestic architecture in Sydney prior to 1850. Nos 7-13 Dalgety Terrace are significant at a Local level because their sites have the potential, through archaeological relics and deposits, to yield information that could contribute to an understanding of the domestic lives of early Millers Point residents.

Nos 7-13 Dalgety Terrace are significant at a State level because they are rare surviving examples of a row of town houses erected on the London model, a form commonly erected in Sydney in the 1840s. Some rare individual elements that characterise the type also survive at Nos 7-9, such as the front area with its palisade fence, the cast iron balcony panels and the pelmets for external venetians to the first-floor French doors.

Talbot’s town houses at Nos 7-13 Dalgety Terrace are significant at a State level because they display the principal characteristics of the standard town house form that emerged in Great Britain during the Georgian era. These houses are also significant because they exhibit most of the characteristics of standard “second rate” town houses under the then new Sydney Building Act, showing how the standard forms were directly transplanted to Sydney from London by English-trained architects and builders as the standard forms already met the fire regulations.”

4. Mr Kovacs purchased the terraces from the NSW State Government in July 2016, subject to the CMP.

5. He engaged Tropman and Tropman Heritage Architects, and other experts, to advise in relation to the conservation and restoration of the terraces - which were run down having been former NSW Housing Commission flats, and to undertake that restoration using expert craftsman. Since then, he has obtained various approvals for the modifications of the site, the last being in December 2018: Kovacs v The Council of the City of Sydney [2018] NSWLEC 1675.

6. On 30 October 2018, the Heritage Council of NSW considered the applicant’s Integrated Development Application No. IDA/2018/080 for 7 Dalgety Road and in accordance with the then s 94A(4) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) advised the Council that it would not grant General Terms of Approval. On 9 November 2018, the Heritage Council gave the same response to IDA/2018/981 for 9 Dalgety Road (Exhibit 3, Tabs 13 and 14).

7. The Heritage Council’s decisions, in accordance with s 4.47(4) of the EPA Act, had the effect of mandating refusal by the Council. Notices of Determination refusing consent were issued by the Council on 22 November 2018. The reasons for refusal included the Heritage Council’s General Terms of Refusal in each case.

The appeals

8. On 20 December 2018, the applicant exercised his right of appeal against the Council’s decisions under s 8.7 of the EPA Act and filed the following Class 1 appeals:

1. Proceedings number 2018/391654 is against the Council’s refusal of DA/2018/980 in relation to 7 Dalgety Road, Millers Point.

2. Proceedings number 2018/391638 is against the Council’s refusal of DA/2018/981 in relation to 9 Dalgety Road, Millers Point.

9. Because the applications are interrelated, the Court directed that the proceedings be heard together and the evidence in one, where relevant, is evidence in the other. It also ordered, following application, the joinder of the Heritage Council of New South Wales as the second respondent in each appeal.

10. After the lodgement of the appeals, the plans were further amended on 19 November 2019 and submitted to the Heritage Council Approvals Committee (“Approvals Committee”) for review.

11. On 4 December 2019, the Approvals Committee considered the amendments and advised the Council’s Manager of Planning Assessment that the Committee had resolved as follows:

“…After discussion, the Approvals Committee:

1. Noted the information in this report including all attachments.

2. Noted that when the owner purchased the terraces from the NSW Government, he was aware of the CMP relating to that asset as a condition of sale for reference in its ongoing care and management.

3. Noted that the owner has performed significant conservation works to date to a high standard and worked through several modifications to originally approved works with Heritage NSW.

4. Provided the following comments on the revised proposals:

• Negotiated solutions to the outstanding 5 issues are preferred to a L&E court ruling, if possible

• Endorse the facts and contentions provided in the Amended Statement of Facts and Contentions filed 7 November 2019 (Tab 2.1B-1 and Tab 2.2B-1)

• Acknowledges the need for a Heritage Division Policy on how best manage heritage in Millers point while providing for an acceptable level of contemporary living and compliance with the building codes.”

(Heritage Council of NSW letter dated 20 January 2020 - Exhibit F)

12. Whilst the Approvals Committee’s resolution and comments do not displace the Heritage Council’s decision, they do provide further context to the final plans before the Court in Exhibit G (9 Dalgety) and Exhibit H (7 Dalgety). Moreover, as submitted by senior counsel for the applicant, Mr McEwen SC, the last bullet point of the letter encapsulates, in one respect, the task which now falls to me “…to manage the heritage while providing an acceptable level of contemporary living and compliance with the building codes” (Tcpt, 12 February 2020, p 7(35-45)). In that regard, I note that a consideration of the Burra Charter and Article 6.3 by its terms observes that the policy development in the CMP should include a consideration of factors affecting the future of a place such as the owner’s needs, resources, external restraints and physical condition. In accordance with that underlying policy of the Burra Charter, the CMP for the terraces at issue in the proceedings anticipates intervention with the fabric.

13. The Schedules in Appendix 8 list the comparative significance of building elements. And, relevantly the CMP mandates that if changes to significant fabric are required, the approach is to be one of minimal intervention: as much as necessary, as little as possible (CMP Policy 8.6).

14. At the hearing, the development plans were amended again. Fortunately, these amendments were agreed, on a conditional basis, and resolved the contentions raised by the respondents in relation to the proposed development at 9 Dalgety Road (except for the final detail of the rear fence and gate which is dependent upon the approved design at 7 Dalgety Road). These latest amendments also resolved the contentions raised in relation to the development proposed at 7 Dalgety Road but for two issues:

1. the prefabricated multi-purpose platform in the rear courtyard, and

2. the extension of the dumbwaiter to the first floor.

15. I will deal with the two controversial elements of the development for the terrace at 7 Dalgety Road before a consideration of the agreed development in each appeal.

The multipurpose platform and the extension of the dumbwaiter development

16. The “necessity” of the development for the intended use is a relevant consideration under the Burra Charter.

17. Mr Kovacs explains why he needs the multipurpose platform, and the extension of the dumbwaiter in his written statement (Exhibit E).

18. It states that he intends to use the elevated multipurpose platform as a parking space for a small car and for the storage and delivery of heavy items to the house such as groceries and suitcases and the like. He believes it will overcome the current need to park in Dalgety Road, if a space is available, and carrying things up the stairs to the front of the house, which involves a significant level difference. The multipurpose platform is also intended to provide a space for the storage of garbage and recycling bins at a location with level access to the rear lane where collection occurs. Without the platform, Mr Kovacs said the bins have to be lifted upstairs to the lane way or wheeled through the carriageway to the front of the property and then along the front of the property through the adjoining park to the rear lane collection point involving a path of travel in the order of 60m.

19. The dumbwaiter extension is said to be necessary because it will enable food, beverages, plates and glasses to be transported from the kitchen which is located in the basement of the building up 2 floors to the principal living room on the first floor which will be used for entertaining, dining and family gatherings.

20. The respondents do not accept Mr Kovacs’ justification. They contend that the CMP was designed to inform prospective purchasers of 7-9 Dalgety Road about the heritage-related development constraints. They refer me to the preface of the document which details what can or cannot be achieved at the properties, and the parameters for change in the Millers Point Heritage Conservation Area. In the circumstances, they advocate “a cautious approach to change: do as much as necessary to care for the place and to make it useable, but otherwise change as little as possible so that its cultural significance is retained” (Exhibit 3, p3).

Contentions

21. The respondents’ contentions in respect of the platform and dumbwaiter, as identified in their respective ASOFC, are particularised below.

Contention 1A(e) - The Proposed Prefabricated and Detachable Multipurpose Platform

22. The Council contends that:

“The proposed platform is not necessary and will have an adverse impact on the spatial layout of the rear yard which is graded as being of high significance in the CMP.

The elevated platform will occupy much of the rear yard and this will have an adverse impact on the spatial configuration and character of the rear yard on the site and be atypical of the character of rear yards in Millers Point.

There will be an impact on the stone flagging in the rear courtyard as flags will need to be removed where the two 600x600mm footings are to be located, and a large part of the rear yard will be covered over resulting in an under croft beneath the platform.

The platform will conceal the sandstone steps to Rodens Lane and there will be a further physical impact with the removal of the stone landing and steps to accommodate the platform. The stone steps are graded as being of high significance in the CMP.

The platform will effectively allow for vehicle access and car parking on the site which is contrary to the following provisions of the CMP:

Policy 8.12.1 – states that off-street parking is not possible or permitted because of the location of the building on top of a cliff and because the rear lane is at a higher level than the rear yards.

It effectively increases the building envelope (including site-cover) contrary to Policies 8.7.4 and 8.7.5.

It is not in an area indicated for proposed alterations identified in the Alteration Diagram, Figure 1, on page 18.

FAQ 14 – states there is to be no off-street parking – it is noted that creating a parking platform would cover most of the rear yard and change its spatial configuration.

The development will result in the removal of some of the stone flags and the landing of the stone steps to Rodens Lane, identified as being of high significance, contrary to Policy 8.6.3.”

23. Finally, the Council contends that the works are contrary to section 3.9.5(1)(h) of the Sydney Development Control Plan 2012 (“DCP”), (which requires development to be consistent with an appropriate Conservation Management Plan that has been prepared for the site); and when the Court considers the CMP for the heritage item endorsed by the Heritage Council of NSW under s 38A of the Heritage Act 1977 as required by cl 6.47 of the LEP, it will refuse the application.

24. The Heritage Council invites the Court to consider the description of the Dalgety Terrace in the State Heritage Register Statement of Significance as; “substantial painted stone three storey terrace” that “is an important element in the Millers Point landscape” (emphasis added). This conservation area is described in the State Heritage Register as:

“an intact residential and maritime precinct of outstanding State and national significance. It contains buildings and civic spaces dating from 1830s and is an important example of nineteenth and early twentieth century adaptation of the landscape. The precinct has changed little since 1930s”.

(Noting, that the Conservation Management Guidelines for Housing NSW properties in Millers Point were prepared by Godden Mackay Logan for the NSW Department of Housing in 2007 (Exhibit H5)).

25. The Heritage Council identifies historic houses and two public reserves are directly next door to and behind the site, and that the CMP states that the front and side facades of the terraces are visible from public spaces; and the rear façade of the terraces is visible from the rear lane (CMP, p9).

26. In that context, the Heritage Council recontends that the proposal results in “the removal of and alteration to structure and space/plane identified by the CMP as being of both exceptional and high significance”. (Noting, the classification of “exceptional significance” is defined as a “rare or outstanding element directly contributing to an Item’s Local and State significance” (Assessing Heritage significance, NSW Office of Environment and Heritage, 2001). While “high significance” is defined as “high degree of original fabric. Demonstrates a key element of the Item’s significance. Alterations do not detract from significance”).

27. Furthermore, the new prefabricated and detachable multipurpose platform situated on structural steel columns and footings in the rear courtyard will have an unacceptable visual and physical impact on the external spaces and the setting of the existing buildings.

Contention 1(g) - Extending the recently approved dumbwaiter from basement to first floor

28. The Council contends that the proposed extension of the dumbwaiter from the basement to the first floor (where the space is graded as being of ‘exceptional significance’) will have an adverse impact. It is concerned that the dumbwaiter joinery unit will protrude beyond the line of the fireplace and impact on the spatial qualities of the room and result in the loss of some of the significant timber flooring structure including early timber joists as shown on Drawing A.3.7.LEC.SK>630(01) dated 19 September 2019.

29. The Heritage Council agrees with the Council and sets out its position in its ASOFC dated 7 November 2019. It contends that the extension of the dumbwaiter to the first floor level (having already been approved from the basement to the ground floor level), will adversely impact the heritage significance of the building, including the fabric and a space of exceptional significance on the first floor. As such, it argues that the works are contrary to section 3.9.5 of the DCP which requires development to be consistent with an appropriate CMP and the extent of the change to significant fabric of the heritage item has not been minimised: section 3.9.5(1)(a).

28. The Heritage Council joins with the Council to contend that:

• The works are contrary to the objectives for additions and alterations as per section 4.1.4 of the DCP as the alterations do not protect and respect the traditional character and heritage significance of the building.

• The works do not comply with section 2.8 of the Millers Point Locality Statement of the DCP as the proposed development does not:

1. retain the historic character of the heritage item;

2. have adequate regard to the endorsed CMP;

3. respond to, nor complement the heritage item.

• The above works are contrary to cl 1.2(2) (aims of the plan) of the LEP, cll 1.2(2)(j), and 1.2(2)(k), as they will adversely impact on the State-listed heritage item.

• The works do not comply with the heritage conservation objectives of the LEP cl 5.10(1) (Heritage Conservation Objectives) “to conserve the environmental heritage of the City of Sydney” or the objects of the Heritage Act1977 pursuant to s 3(b) to encourage the conservation of the State’s heritage as the proposed works will have an adverse impact on the heritage character and significance of the State-listed heritage item.

• The works do not demonstrate an approach of minimum intervention, as much as necessary and as little as possible, as advocated by Article 3 of the Burra Charter and CMP Policy 8.6.1.

• The works are contrary to cl 6.21 ‘Design Excellence’ of the LEP as they will result in changes that adversely impact the significance of the State-listed heritage item.

Decision

31. For the reasons that follow, I have decided to grant conditional consent to the amended Integrated Development Application in each appeal.

Statutory framework

32. The statutory framework as recorded in the Council’s ASOFC is the obvious starting point.

33. It states that the site is in the R1 General Residential zone under the LEP and dwelling houses are a permissible use with consent. The site is also listed in Schedule 5 of the LEP as Item I878 and described as “Terrace Group ‘Dalgety Terrace’ (7-13A Dalgety Road) including interiors”.

34. The aims in cl 1.2 of the LEP are relevant to my assessment of the applications, in particular (j) and (k) – to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing and desired future character of particular localities; and to conserve the environmental heritage of the City of Sydney.

35. Clause 5.10 of the LEP, the standard heritage conservation clause, requires consent under subcl (2)(a) for “demolishing … or altering” the exterior of a building, including making changes to detail, fabric, finish of appearance to a heritage item. And, then subcl (2)(b) for altering a heritage item that is a building by making structural changes to its interior or by making any changes to anything inside the items specified in Schedule 5 in relation to the heritage item. The provision is reproduced for convenience.

5.10 Heritage conservation

Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives The objectives of this clause are as follows—

(a) to conserve the environmental heritage of the City of Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) a heritage item,

…

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

…

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

…

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

…

(9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item—

(a) notify the Heritage Council about the application, and

(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

36. The Council submitted that the heritage item includes the whole of the site including the sandstone flagging and, before granting consent under this clause in respect of a heritage item or heritage conservation area, I must consider the effect of the proposed development on the heritage significance of the item or area concerned. To assist me make the requisite assessment, the applicant has filed, with Ms Arthur’s affidavit, the revised reports which are directed to the matters raised in cl 5.10(5) including a heritage management document (Exhibit C).

37. Clause 6.21 of the LEP deals with design excellence and subcl (2) is said to be relevant and provides:

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

38. Subclause (4)(d)(iii) provides:

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

…

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

…

(iii) any heritage issues and streetscape constraints,

…

39. According to the Council, the critical provision in relation to the CMP is cl 6.47 of the LEP that refers to the Millers Point Heritage Conservation Area. This clause was gazetted in October 2019 and introduced without a savings provision, and therefore applies to all applications whenever they were made. Subclause (1) sets out the objectives of the clause namely:

(a) to conserve the heritage items and built form of the Millers Point heritage conservation area, and

(b) to ensure that conservation management plans endorsed by the Heritage Council are considered in the assessment of development that impacts a heritage item in the Millers Point heritage conservation area.

40. Subclause (3) provides:

(3) Development consent must not be granted to development that affects a heritage item unless the consent authority considers the following—

(a) the impact of the development on the built form and heritage significance of the heritage conservation area, and on the built form, fabric and heritage significance of the heritage item,

(b) a heritage conservation management plan for the item endorsed by the Heritage Council under section 38A of the Heritage Act 1977,

(c) if there is no plan endorsed by the Heritage Council, a heritage conservation management plan for the item prepared to the satisfaction of the consent authority.

41. Turning now to the DCP, the Council emphasised the relevance of the locality statement for Millers Point in Section 2.8. It provides:

“Section 2 Locality Statements

Section 2.8 Millers Point

Millers Point Heritage Conservation Area is an intact residential and maritime precinct of outstanding state and national significance due to its unique characteristics, composition, architectural diversity and continuity of 19th and 20th century residential and maritime elements. Its architecture is representative of each decade from the 1820s to the 1930s.

The Millers Point Heritage Conservation Area is of state significance for its ability to demonstrate, in its physical forms, historical layering and social composition, the development of colonial and post-colonial settlement in Sydney and New South Wales.

The character of the area is almost defined on a street by street basis, but the most prominent feature of Millers Point is the consistent townscape and high degree of integrity of the whole area. Its unity and authenticity of fabric make it one of the rarest and most historic urban places in Australia.

The NSW Government and the Council have recognised the very high heritage significance of the Millers Point Heritage Conservation Area. The area is listed on the State Heritage Register and the Sydney LEP. Individual items are also listed on the State Heritage Register and Sydney LEP. This unprecedented degree of listing is unique to Millers Point and reflects the significance of the conservation area.

The area is characterised by a fine grain subdivision pattern, the use of sandstone and other traditional building materials, two to three storey residential terraces, similar scaled commercial buildings (often pubs) defining the corners and pitched roofs. While there is a consistency of materials, scale and form, a diversity of architectural styles and street alignments are represented, with many of the terraces set back at street level.

The maintenance of original fabric in a highly intact state creates a degree of rarity and authenticity. The area’s architectural elements are both intact and outstanding examples of their type. Many groups of buildings in Millers Point are unified by their history, construction and type.

The area’s steep, coastal topography and early development have generated its character and built form with evidence of quarrying, retaining walls, and a public domain which includes public staircases, laneways, pedestrian pathways, bridges and parks of a variety of scales.

The locality has a strong history as a residential community, with a unique and strong identity that evolved as a self-contained area with employment and community facilities.

The area affords significant views to and from the water and of the Harbour Bridge. A significant panorama of the Harbour and the City is gained from the Observatory Hill precinct, particularly Observatory Hill Park which is of outstanding historical significance and a major component of the precinct.

The conservation of the Millers Point Heritage Conservation Area will be based on a respect for the existing building fabric, high degree of integrity, residential uses and historical association.

Principles

(a) Retain, conserve and reinforce the historic character and heritage significance of the Millers Point Heritage Conservation Area and individual items on the State Heritage Register.

(b) Development must be consistent with the locality statement and achieve the outcomes expressed in the supporting principles.

(c) Development (including maintenance and repairs) is to have regard to any endorsed Conservation Management Plan for a site, or any other conservation management plan prepared to the satisfaction of the consent authority, and be consistent with the Millers Point Conservation Management Guidelines 2007, and the principles of Burra Charter: The Australia ICOMOS Charter for places of Cultural Significance.

(d) New development is to respect and maintain the existing heights and established character of the area.

(e) Conserve unifying building details and the paint scheme for groups of terraces and streetscapes.

(f) Conserve and repair early and original building fabric.

(g) Cliff faces, retaining walls, stairs and early public domain elements are to be retained and conserved.

(h) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(i) Ensure new development respects the siting, scale, form, integrity, use of materials, character and significance of the area, heritage items and contributory buildings.

(j) In the event of destruction of a building, replacement buildings must have a floor area that does not exceed that which it replaces and be sympathetic to the scale, setting and proportions of existing development, including adjacent heritage items, and use materials, finishes, textures and details appropriate to the building type and scale.

(k) Maintain existing views and vistas and from the precinct, the water, the Harbour Bridge, Central Sydney, and Observatory Hill Park”

(Emphasis added)

42. Section 3.9.5 of the DCP is also relevant and provides:

“Heritage items

Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant views to and from the property.

Objective

(a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.

Provisions

(1) Development affecting a heritage item is to:

(a) minimise the extent of change to significant fabric, elements or spaces;

(b) use traditional techniques and materials where possible unless techniques and materials can offer substantial conservation benefits;

(c) enable the interpretation of each of the significant values of the item through the treatment of the item’s fabric, spaces and setting;

(d) provide a use compatible with its significance and which with any changes proposed, including any BCA upgrade or the introduction of services will have minimal impact on significant fabric, elements or spaces;

(e) the provision of on-site interpretation, or a combination of each of these measures;

(f) not reduce or obscure the heritage significance of the item; and

(g) be reversible where necessary so new work can be removed with minimal damage, or impact to significant building fabric.

(h) be consistent with an appropriate Heritage Conservation Management Plan, Conservation Management Strategy, or policy guidelines contained in the Heritage Inventory Assessment report for the item;

(i) ensure that any changes to the original/significant room configuration is evident and can be interpreted; and

(j) respect the pattern, style, dimensions or original windows and doors.

(2) Development should enhance the heritage item by removing unsympathetic alterations and additions and reinstating missing details, building and landscape elements, where physical or documentary evidence is available.

(3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the:

(a) building envelope;

(b) proportions;

(c) materials, colours and finishes; and

(d) building and street alignment.

(4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by:

(a) providing an adequate area around the building to allow interpretation of the heritage item;

(b) retaining original or significant landscaping (including plantings with direct links or association with the heritage item);

(c) protecting, where possible and allowing the interpretation of archaeological features; and

(d) Retaining and respecting significant views to and from the heritage item”

43. Also, relevant to my assessment of impact is the Dawes Point Village conservation area referred to in the DCP and identified as being of State significance.

Heritage Evidence

44. The heritage experts in the proceedings are:

• Professor Richard MacKay, for the applicant

• Mr John Poulton, for the Council

• Mr Robert Moore for the Heritage Council.

45. The experts have agreed in their joint report (Exhibit D) that the Statement of Significance, and the more detailed application of the NSW heritage assessment criteria in the CMP provides an appropriate basis for the Court to understand the heritage values of the subject site and to consider the potential impact of the development on the cultural heritage significance. They have also agreed that the CMP Policies generally provide a framework to guide conservation and management of the site, including guidance for change and development, in a way that would retain the site’s identified cultural heritage values.

46. They also accept that the archaeological matters pertaining to the proposed platform are not of themselves determinative. That is, if the platform were to proceed, then the approach outlined by Casey+Lowe Archaeology and Heritage in their advice dated 23 August 2018 and Addendum dated 5 September 2019 would be appropriate –

“The stone landing of the rear stairs should be carefully removed, identified and stored securely on site for possible future re-instatement. Any stone flags which are removed should either be re-instated in their original position or identified and stored securely on site for possible future re-instatement”.

47. These experts are also satisfied that the platform is not generally visible from the adjacent public domain (albeit they have different opinions as to whether the platform will alter the physical and visual setting at the rear of the property – which I will deal with shortly).

48. Professor MacKay is supportive of the platform and said that the archaeological resources that would be disturbed to introduce it into the rear yard are very unlikely to have a level of heritage significance that would warrant any consideration of in situ conservation. Thereby, archaeological works proposed would comply with Policy 8.8 of the endorsed CMP.

49. It is his expert opinion that the platform, as proposed, is an appropriate adaptation of the rear yard space which will contribute to the utility, amenity and functional contemporary use of the building for ongoing residential purposes. He describes the platform as “having been carefully considered and designed in a way which will minimise physical impact”. In supporting the development, Professor MacKay emphasised that the works were largely reversible. And, although the platform would change the relationship between the rear of the house and the yard, and there would be some reduction of the ability to understand the outbuildings, including the laundry and WC in their physical and visual context, he was nonetheless supportive because these effects would not generally be visible from the public domain and primarily affect occupants and visitors.

47. Whilst Professor MacKay acknowledged that the works will create greater coverage of the site, he believes that “this would have no substantive consequence for the perception of the building in the public domain”. Therefore, the development is consistent with the intent of Policy 8.7.5 in the CMP, which seeks to maintain the footprint (plan form) and height of the buildings on the site. Professor MacKay also believes that the works will not fundamentally affect the heritage values of the site. Whilst the use of this rear space for parking does not accord with Policy 8.12.1 of the CMP, Professor MacKay emphasised that the CMP appears to have assumed that it would not be possible to have parking onsite “because the rear lane is at a higher level than the rear yards”. However, this proposal proves that it is possible and, in his opinion, represents an innovative solution to the challenge of providing off-street parking at the site. The reversibility of the works is also another good reason to approve the platform. The structure is a temporal structure, and therefore any reduction of cultural significance can be reversed when circumstances permit – accepting that the reversibility may never be acknowledged – the point being the opportunity remains. In Court, Professor MacKay expressed the view “…that it is relevant to understand that there is a whole lot of intrusive material that could go in the backyard, visible from the public domain without consent which potentially would have a greater impact that the proposal” (Tcpt, 13 February 2020, p 45(36-45)).

48. To make good this proposition, the applicant tendered the Council’s recent approval of the DA consent and plans for backyard works at the adjoining State-listed heritage terraces at 11 and 13 Dalgety Road (Exhibit M). These consents approved the installation of a water feature, garden beds and bin storage area with discreet ramped access to Rodens Lane - structures and features in the rear yards which, Mr McEwen submitted, operate to change the setting and the way in which it is appreciated. Professor MacKay agreed and said the introduction of the platform in this case was analogous – a bespoke solution to a particular circumstance and a good example of a discretion being exercised by the Council.

49. In Court, Mr Poulton accepted that there will only be a minor physical impact from the introduction of the platform in the rear yard - the removal of some flagging stones and the landing of the rear steps graded as being high significance, and this physical impact is not of itself a reason for refusal of the platform (Tcpt, 13 February 2020, p 51(10-20)).

50. However, this did not displace his view that the development will generate adverse heritage impacts. He objects to the platform’s domination of the rear yard, as it will be elevated above the stone flags and effectively creating an under croft. In his assessment, the platform will detrimentally alter the spatial configuration and character of the yard and obscure an understanding of the traditional relationship between the house, outbuildings and rear yard. In his words, “…the proposed platform will be inconsistent with the character of the rear yards of the rest of the heritage listed group and be atypical of the historic built character of Millers Point” (Exhibit D - Joint report, p 12). Mr Poulton also believes that the platform will increase the footprint of development on the site and provide onsite parking contrary to several provisions and Policies of the endorsed CMP including: FAQ 14 (which provides that there is to be no off-street parking), Policy 8.7.5 (no increase to the footprint/plan form) and Policy 8.12.1 (off-street parking is not possible or permitted because of the location of the building on top of a cliff and because the rear lane is at a higher level that the rear yards). Because the platform is said to be inconsistent with the terms of the CMP, which is a mandatory consideration under cl 6.47 of the recently amended LEP, and contrary to several provisions of the DCP, in particular section 3.9.5(1)(h) which is also a relevant consideration - Mr Poulton said this development needs to be refused consent.

51. In the joint report, Mr Moore said that he agreed with Mr Poulton’s written evidence but emphasised the clear public interest in ensuring the heritage significance of these State heritage items being retained for all the reasons particularised in the second respondent’s stated contentions in the ASOFC including the contribution of the site to the overall significance of the precinct.

52. Mr Moore underlined that the applicant understood before purchase, the limitations on development at the site. In those circumstances, he said it is not reasonable to introduce the platform to the rear property “…for the sake of amenity, as its unlikely acceptability could have been readily appreciated from the CMP available in the pre-purchase documents for this property at the time of its sale”.

53. In Court, Mr Moore clarified his evidence and ultimately agreed with the proposition put by Mr McEwen, that there is nothing in the CMP that refers to the use of the rear yards or the need to ensure that it remain as an open space with no structures within them (Tcpt, 13 February 2020, p 41(29-45)). He also said, at that time, that he was not concerned about the platform itself or the use of the rear yard for a car space as he accepted that:

“…historically the sandstone pavers was used for traffic areas for more than just staff of the house so it would be reasonable to construe that vehicles, and the animals used to convey, the horses or whatever, went through that area to the rear yard”.

(Tcpt, 13 February 2020, p 41(40-50), p 42(1-3))

His complaint, consistent with Mr Poulton’s evidence is about the occupation of the space and how it effects the capacity for interpretation (Tcpt, 13 February 2020, p 46(30-50)). He said, irrespective of its use as a service area:

“… these sites have always had a rear yard and the platform will conceal “in significant measure the survival of significant elements of the rear service yard of the house and it will not be equally possible to understand and to demonstrate what the surviving fabric reveals”.

(Tcpt, 13 February 2020, p 47(4-25))

For that reason, the platform reduces the cultural significance of the item and the conservation area and “…reversibility is not some sort of ticket or certificate for acceptability” (Tcpt, 13 February 2020, p 44(45-50)).

Dumbwaiter extension (7 Dalgety Road)

57. In addressing the contentions about the dumbwaiter extension, the heritage experts agreed that if the proposed dumbwaiter extension were to proceed, then external finish should be distinguished as different from the original and reconstructed joinery and could be achieved by painting the dumbwaiter joinery. However, that was essentially the extent of the agreement. Both Mr Poulton and Mr Moore were adamant that the extension of the dumbwaiter from the basement to the first floor in an area graded as being of exceptional significance was entirely unacceptable.

58. In the joint report, Mr Poulton said that the proposed extension of the dumbwaiter would adversely impact the spatial qualities of the proposed study on the first floor, by protruding beyond the line of the fireplace. Noting, that the study has been graded as being of exceptional significance in the endorsed CMP. In that context, he believes the loss of some of the timber floor structure including part of two early timber joists is unacceptable.

59. Whilst Mr Poulton supported the constructed dumbwaiter from the basement kitchen to the ground floor dining room as reasonable, he said that any further extension of it to a study on the first floor has not been adequately justified. It does not, in his opinion, demonstrate an approach of minimum intervention: as much as necessary, as little possible, as advocated in Policy 8.6.1 of the endorsed CMP and also Article 3 of the Burra Charter.

60. Mr Moore agreed with the views expressed by Mr Poulton as outlined, and emphasised the severity of the adverse impact of the dumbwaiter extension, together with the dangers of its precedential impact within the Millers Point area, in which such facilities have been difficult and controversial. In his view, this development is in clear conflict with the CMP for the property, in which the vendor (being the Land & Housing Corporation) and the NSW Heritage Council sought to clearly enunciate the constraints and potentials within which a new owner would manage the property. He joins with Mr Poulton in describing, the proposed dumbwaiter extension as being unreasonable. Its effect on the spatial integrity, the simplicity, of the room proposed for use as a study, and its confusion of authenticity notions within the interior generally, will be inconsistent with a State heritage listing, and the exceptional values attributed to its interiors. He rejects the suggestion that it will present as a piece of furniture but a built-in element of confusing scale, character and presence in the room. He also emphasised the particulars in contention 2 (a, b, c, e, f, g and h) of the second respondent’s ASOFC as relevant matters to support refusal of this development.

61. Professor MacKay takes the opposite view and describes the proposed extension of the dumbwaiter as reasonable in the circumstances. While he accepts that there would be some minor non-compliance with the policies relating to the original fabric in the endorsed CMP, because of the removal of small sections of original timber joist, he does not believe this warrants refusal of the development. He believes that the addition will assist in making the house more serviceable and describes the change as being:

“…a very minor intrusion / non-compliance of no substantive consequence, as it is usual for fabric in historic buildings to be repaired and replaced from time to time and the joists in question would be obscured if the dumbwaiter extension were not allowed. The potential effect on the spatial qualities of the space would be no greater than the impact of introducing a large item of furniture. Insofar as the visual quality of the space is affected, it is a private space and the consequences of the dumbwaiter extension being constructed would be confined to the house occupants and visitors. The proposed treatment of the First-Floor dumbwaiter case as built-in joinery, which allows the ceiling above to be seen, is appropriate, noting that the external finish should be distinguished from original and reconstructed joinery and therefore recognisable as new work, consistent with the Burra Charter” (Joint report, p14).

Consideration

62. The following photographs taken from the Council’s ASOFC show the site in context; as part of a group of State-listed three-storey brick Victorian Georgian terraces. They also show that it is surrounded by residential land, with contemporary townhouses and residential apartments directly opposite. To the north west are two public reserves, “Clyne Reserve” and “Barangaroo Reserve”. To the north west and west of the site is Walsh Bay Wharves Precinct, which is listed under the Heritage Act an area of State cultural significance.

63. The site is shaded yellow in Figure 1.

64. Consistent with my observations at the site view, the photograph above shows that the street is characterised by this group, as well as groups of two x two-storey terraces to the south that gradually step back in line with the sandstone wall and direction of Dalgety Road. Noting that Dalgety Road and Rodens Lane are both listed as contributory items to the Millers Point Heritage Conservation Area.

65. The existing outbuildings and the rear yard where the elevated platform is proposed at 7 Dalgety Road can be understood from Figure 9 below.

66. As noted earlier, the CMP for the site was developed under a special programe across Millers Point to become part of sale documents and to advise prospective owners of the heritage constraints applicable on development of the properties. Both respondents have relied heavily upon the inclusion of the CMP in the applicant’s sale contract as a basis to argue that he purchased with knowledge of the development constraints and cannot now agitate to develop in a way which disregards the terms of the endorsed CMP.

67. The CMP includes a history, description, assessment of significance and management framework that sets out policies to retain the significance of the site. Individual elements of each terrace within the group are graded to assist in developing appropriate conservation measures for the treatment of the building and the elements contained within it.

68. Elements, spaces and fabric identified in the CMP as being exceptional, or of high significance, are to be retained and conserved (Policy 8.5.1). Furthermore, in accordance with the CMP, if changes to the significant fabric are required, the approach is to be one of minimal intervention: as much as necessary, as little as possible.

69. Articles 3, 5 and 6 of the Burra Charter advocate that the management of a heritage place should be based on an understanding of its heritage significance and those relative degrees of significance leads to different conservation outcomes. For example, elements that are of exceptional or high significance should be conserved, with minimal intervention, whilst elements of lower significance have a greater scope for change. The level of significance of the spaces and structures on all floors of 7 and 9 Dalgety Road, as described in the CMP, are detailed in the table within Appendix 8 of the endorsed CMP.

70. The table provides:

1. The building form is identified as being exceptional significance.

2. Original 1847 plaster walls, plaster ceilings/cornices and timber joinery as being of exceptional significance.

3. The rear portico is identified as being neutral.

4. The spaces where the dumbwaiter is proposed to be extended from the ground floor to the first floor are identified as being exceptional.

5. The rear garden is identified as being of high significance and the WC outbuilding is graded as being high significance.

6. The laundry outbuilding is graded as being of high significance.

7. The sandstone wall to the rear courtyard is graded as being of exceptional significance.

8. The carriageway is graded as being of exceptional significance except for the intrusive 1970s stairs which had been constructed within it to provide access to 9 Dalgety Road.

9. There is a palm tree in the rear courtyard which is recommended for removal as it is in a position where it will eventually damage the adjacent stone wall.

71. The CMP also states that the original room layout of 7 Dalgety Road has survived, which the Council submits for pre-1850 townhouses is a rare form in itself; and is rare within the area (CMP, p196).

The submissions

72. Accepting that the Summary Statement of Cultural Significance for 7-13 Dalgety Terraces in the CMP, together with the more detailed application of the NSW heritage assessment criteria in the CMP, is an appropriate basis to consider potential impact on cultural heritage significance, the respondents contend that the platform and dumbwaiter extension will have a severe, detrimental and permanent impact on the overall significance of Dalgety Terrace and the Millers Point and Dawes Village Precinct - which cannot be mitigated or minimised through conditions of consent. And, to the extent that they increase amenity and liveability, they are not truly necessary. In that circumstance, when I balance necessity with the protection of the heritage significance, it is submitted by the respondents that I will conclude that the terraces by virtue of what has already happened are extremely amenable places to live and that the platform and extension of the dumbwaiter are not necessary (Tcpt, 12 February 2020, p 63(10-15)).

73. To that end, the Heritage Council emphasised, based on the evidence of Mr Moore, the importance of the idea of interpretation as a primary criterion to maintain heritage significance. Ms Tronson submitting that introducing a platform was akin to a partition in a room, whether reversable or not, it diminishes or interferes with the ability to interpret the space and its heritage significance at the site and the site’s important contribution to the State-listed Millers Point Heritage Conservation Area. And, in the case of the platform, reversibility is a secondary criterion you only get to that consideration if the development is necessary, and this development is not.

74. With respect to the dumbwaiter, Ms Tronson submitted, again on the expert evidence of Mr Moore, that its distinguishability by its joinery from the original elements of the room does not preserve the heritage values as it diminishes the opportunity to interpret the heritage significance of the space, the item and ultimately the State-listed conservation area within which the individual listings are an integral part of the whole and are the same level of State significance as the precinct.

75. Mr Pickles SC, submitted something similar on behalf of the Council based on the evidence of Mr Poulton, in that the impact of the platform in the rear and the proposed extension of the dumbwaiter must be informed by the CMP, which is a mandatory consideration under cl 6.47 and thereby a focal point of my consideration. That is the starting point. And, “…as the general policies under the CMP indicate, let alone reliance on 8.12 state, the objective is for the conservation and retaining and conserving original fabric and space” (Tcpt, 14 February 2020, p 25(40), p 26(1-10)). Accepting that as a starting principle, Mr Pickles then submitted if one asks - does the parking platform retain and conserve original early fabric and spaces – the answer is “no”. It occupies the sandstone paving, the steps; and is contrary to FAQ 14 as Professor MacKay agreed. In short, it removes most of the rear yard from hard landscaped space and interferes with the early stone buildings, not physically, but interferes with its appreciation. In summary, the Council’s case is that the CMP, the LEP and the DCP provisions call for a minimising of the impact on significant spaces and fabric of heritage items – all indicating that the level of change should be minimal and minimised to that which is truly necessary. The Statement of Significance underscores this point noting that the precinct has changed little since the 1930s and in respect of the Millers Point and Dawes Point conservation areas, the assessment of significance identifies under “Criteria A” “… the whole place remains a living cultural landscape greatly valued by both its residents and the people of New South Wales” (Exhibit 3, folio 79). When considered with the Millers Point Conservation Management Guidelines 2007 (Exhibit 5), which are relevant under the DCP, and the Millers Point Locality Statement, it was submitted by Mr Pickles that it is quite clear that off-street parking is out of character with the conservation area and the architectural elements are to remain intact as outstanding examples of their type as Mr Poulton described them.

76. Based on the agreed evidence of Mr Poulton and Mr Moore, the Council argues that is simply not acceptable to have on-site parking because it would undermine the very qualities that make the locality important: it would not be in character within that conservation locality. In short, “atypical of the historical built character of Millers Point”. The fact that the development cannot be seen when the gates are shut, it is submitted, is not the answer. The Council submits that the Statement of Significance underscores the fact that the item and the conservation area are significant for the fact that they are so intact and unadorned by proliferation of off-street parking – that is one of the reasons that makes it intact. It was also submitted that the sensitive landscape treatment approved at the terraces at Nos 11 and 13 (Exhibit M) is evidence of the form of development contemplated by the CMP – “…a landscaped curtilage not parking” (Tcpt, 14 February 2020, pp 27-29). Ultimately, Mr Kovacs’ desire for on-site parking or use of the platform for shopping and suitcases etc is not reasonable in a conservation area where car parking is actively discouraged by the policies that inform and relate to the management of the item and conservation area.

72. Then moving to the dumbwaiter, the Council submitted on the evidence of Mr Poulton (albeit a changed position since the s34 conference) that the extension infringes Policy 8.5.1 in terms of conserving surviving original early fabric and spaces. Principal rooms are to remain intact – this is not removal of a small amount of fabric but instead two boards. And, when considered against the policy in 8.6 – “INTERVENTION IN THE FABRIC”, Mr Poulton’s final oral evidence is “that we got the balance right when we stopped at the lower floor”. While he did not originally have a problem with the dumbwaiter going all the way up, his evidence now is that the cumulative impact suggests no further extension. In the end, the Council conceded that the acceptability of the extension of the dumbwaiter was ultimately a question of balance - considering the reasonable needs of the owner balanced against the extent of the intervention of the fabric – as much as necessary and as little as possible. It would obviously improve the internal amenity of moving food and beverages from the kitchen to the entertaining area avoiding the narrow stair.

73. The Heritage Council had a different emphasis in respect to the removal of the original fabric for the dumbwaiter extension and the platform. Stated simply, Ms Tronson said that it is not what the owner who lives there reasonably wants nor the general reasonable uses of the property, but rather the reasonable amenity of the property, and that comes from the Burra Charter, from the CMP and the expert evidence – she endorsed Mr Moore’s evidence that the precautionary principle should be applied in this situation. Ms Tronson also agitated the issue of precedence and suggested that the approval of the dumbwaiter to the ground floor dining room in the s34 agreement endorsed by the Court in 2018 had been used by the applicant in this instance as leverage for its continued extension and others would seek to do the same – the suggestion being that approval of these works would enliven further application on this site and others within the area.

74. Accepting the fundamental issue to be resolved is the effect of the proposed development on the identified heritage significance of the item and the conservation areas, Ms Tronson invited me to answer the question of what is reasonable as arising from the Burra Charter and the CMP – by approaching the answer on the basis of as much as necessary to make it useable and as little as possible (Exhibit 3, Burra Charter p3). She submitted that it is the “useability” of the whole item to inform whether the particular should be approved. It was also submitted that the question of interpretation is interlinked with intactness or integrity (or presentation as Professor MacKay preferred to call it). The relevance of interpretation being a significant part of the heritage in and of itself. In short, she submitted that it is not enough just to preserve the fabric, but the opportunity to interpret and in that regard, one must consider the cumulative impact of individual changes to the item and the area.

75. Ultimately, the respondents agreed with the experts that the determination of these issues is a matter of judgment informed by a reading of the whole of the CMP which is the specific policy for the site and governed by the Statements of Significance (Tcpt, 14 February 2020, p 37(1-25)). It is not a matter of going back to general principles, as cl 5.10 and cl 6.47(3) of the LEP mandate a consideration of the CMP. The DCP also reinforces the relevance of the CMP as it requires development to be consistent with this Policy: 3.9.5(1)(h). In that regard, the respondents contend that the mention of the Burra Charter in the DCP is in a general sense because the more specific provisions in the LEP refer to the site-specific CMP as the framework to guide this development and to understand its impact on the built form and its significance in terms of the heritage item and the conservation areas.

76. While accepting that the CMP allows a measure of change, based on a reading of the whole document in general terms, the respondents’ final position is that off-street parking would have a detrimental impact upon the space and the setting of this heritage item – not so much the physical impact, the significance of the conservation area. Whereas, the extension of the dumbwaiter is more a question whether the right balance of change has already been achieved and any further impact not necessary for usability.

77. The applicant approaches the resolution of the issues differently, but as Ms Tronson conceded arrives at the same position as the respondents, albeit with a different answer. To that end, Mr McEwen posed a series of questions. The first is “what are the site’s identified cultural values?” because they determine its cultural significance. Secondly, “what are the impacts on those cultural values?” Thirdly, accepting that impact is acceptable – “has it been minimised?” Fourthly, “is the impact reasonable to enable the conclusion that it is acceptable?” Noting, that reasonableness should be assessed having regard to the proper management of heritage while providing for an acceptable, not minimal, level of contemporary living which therefore legitimises the change (Tcpt, 14 February 2020, p 1(20-45)).

78. To answer these questions, the applicant asks me to consider the Burra Charter and the CMP as the principal tools to guide a consideration of what is reasonable to conserve heritage and ensure a place is useable. Noting, that the Burra Charter advocates a cautious approach to change – do as much as is necessary to care for the place and to make it useable, but otherwise as little as possible so that its cultural significance is retained. In summary, the applicant submits that the aim of conservation is to conserve cultural significance for future generations (Article 2.2) and retain the cultural significance of place (Article 1.2). The Burra Charter states that “Cultural significance is embodied in the place, itself, its fabric, setting, use, associations, meanings …”. Article 1.9 of the Burra Charter recognises “adaptation” which means the change in a place to suit the existing use or proposed use. A use is a function of a place including activities, traditions and custom and practices that may occur on the place or are dependent on the place (Article 1.10). Article 3.1 emphasises the need for a cautious approach, a respect of the existing fabric, use, associations and this means a cautious approach to change as much as necessary as little as possible.

79. Against this background, the applicant contended on the evidence of Professor MacKay that the changes involved with the platform and the dumbwaiter extension are entirely acceptable and meet the prescriptions in the Burra Charter under the heading “change’ in Article 15 - “Changes which reduce the cultural significance should be reversable and reversed when circumstances permit”. Reversibility is acceptable and not in issue between the parties. This allows for future change but nonetheless maintains the public benefit, conservation for future generations whilst allowing contemporary living in the present. Article 21 provides that adaptation is acceptable only where adaptation has minimal impact on the cultural significance of the place. Article 27 headed “Managing Change” provides that the impact of proposed changes including incremental changes on the cultural significance of a place should be assessed with reference to the statement of significance and the policy for managing change.

80. Mr McEwen submitted that his client, Mr Kovacs has demonstrated in his evidence (Exhibit E) a commitment to conservation of this originally derelict building, and obtained expert advice from appropriate sources including Mr John Tropman who has been the supervising architect and heritage adviser and that these changes are also supported by Professor MacKay. Furthermore, the evidence records that through the amendment of the application, the proposed works have been modified extensively to their bare necessities. In those circumstances, the public interest is served - acknowledging that conservation entails a consideration of the CMP as a whole, and a recognition that the assessment of reasonableness of the appropriateness of the development must equitably allow adaptation in circumstances where the impact is objectively minimal. A consideration akin to the conservation incentives in cl 5.10 (which are not available on the facts).

81. The applicant submitted that the development seeks to provide an appropriate contemporary standard of living, cautiously approached – balanced against conservation of the place in accordance with the CMP and thereby furtherance of the public interest. In that regard, there must be an acknowledgment that managing change in accordance with the policy is an ongoing process – it moves with the nature of the owner accepting of course that the conservation remains at the forefront. Therefore, each application must be assessed on pits merits and not as Mr Poulton suggests, based on previous proceedings, concessions – the fact that there was an approval of the dumbwaiter from the basement to the ground floor does not mean it cannot go to the first floor.

82. The applicant submitted that the distinction is that there will be minimal heritage fabric removed and this is appropriate because there are sufficient reasons demonstrated for the change. In relation to the platform and parking, the applicant identified that Mr Moore accepted if it was available at grade, then that occupation of the space would be acceptable. However, having manipulated that grade to the elevated platform, the proposition is that it is now unacceptable because of its impact on the setting, space and interpretation. The applicant submits that this evidence of impact on setting, space and interpretation given by Mr Moore should be rejected on the facts of this CMP, particularly in circumstances where there is an agreed acceptance of physical impact albeit with the need for lateral fixing points and vertical posts which will require some small removal and storage of paving stones.

83. The applicant submits when the Court focuses on the Statement of Significance referenced in the CMP (Exhibit D p 6, par 8), it supports the proposition that the rear yards of the properties are not in any way a focal point. It is the building. And, even accepting that buildings are made up of parts, in the absence of any focus on the rear yard or the settings of the rear yard (areas historically functioning as a service area, the carriageway traditionally used for movement to the stables) (Exhibit L), the Court can be satisfied that the setting of the rear yard, although part of the overall consideration, is not defined as part of the cultural heritage value of this site.

84. When considering the impacts of the development upon the site’s identified cultural heritage values - the applicant submits that the evidence supports a finding that these are “minimal impacts”. In short, the Statement of Significance does not need to be altered to accommodate the platform or the extension of the dumbwaiter. The applicant submits that I must now whether the impacts are minimised sufficiently to enable the grant of a conditional consent based on the evidence at the conclusion of the hearing. In that regard the applicant submits it has demonstrated through the evidence of Professor MacKay that the dumbwaiter is confined to a room, in the materials as agreed, and will be unobtrusive in that study. The impact is the removal of the 725mm of original two joists. No one has suggested that the spatial impact is any different to that deemed acceptable and approved by the inclusion of the dumbwaiter on the lower levels. And while, Mr Moore and Mr Poulton expressed concern with adverse impact on spatial qualities of the room, being a study – its integrity, the simplicity of the room and leading to confusion of authenticity – it is submitted that having viewed the area, I should prefer the evidence of Professor MacKay that the impact will be unremarkable.

85. The applicant cautions me against determining spatial qualities of the room as a bare room without contemporary living within and submits that this would be the wrong approach. Contemporary living will bring furniture, even perhaps a cupboard in the area proposed for the dumbwaiter, and this will affect the spatial quality of this private room in exactly the same way. Mr Kovacs has indicated its purpose for entertaining and dining as it provides spaciousness and entry to an extensive view to the harbour which it can be accepted would be focal point of contemporary living in this end terrace at 7 Dalgety Road. The CMP acknowledges the stairs are narrow and steep and of tight configuration – safety, viability are entirely relevant factors to take into account, as is reversibility, which with the exception of the two joists that will be removed is entirely appropriate. (Noting, that the Council did not oppose the removal of fabric to accommodate the approved dumbwaiter). In terms of visibility, the applicant submits that it is a private space, the CMP allows replacement and repair and in fact the whole ground floor has been replaced, on the evidence, where in poor condition.

86. Lastly, the applicant relies on the letter from the Approvals Committee (Exhibit F) to submit that it appropriately notes the significant conservation works undertaken to date to a high standard but acknowledged the need for a heritage division policy on how best to manage heritage in Millers Point, while providing an acceptable level of contemporary living.

Findings

92. Having set out the competing positions of the parties and the evidence, I satisfied that the resolution of the issues is achieved by the approach adopted by the applicant as outlined above. Accepting as Ms Tronson observes, that the focus in each parties’ case is ultimately the Statements of significance and the site-specific CMP.

93. Mr Pickles submitted that the policy is set by the CMP – and there is no need to revisit the Burra Charter as that task is complete (Tcpt, 12 February 2020, ll 10-20). However, this approach appears to ignore the express obligation imposed by cl 5.10(4) of the LEP to consider the effect of the proposed development on the heritage significance of the item or heritage conservation area concerned regardless of whether a heritage management document is prepared under subcl (5) or a CMP subcl (6). No doubt a consideration guided by the Statements of Significance and the Burra Charter.

94. Additionally, cl 6.47(3) requires before the grant of development consent that affects a heritage item a consideration of (a) the impact of the development on the built form and heritage significance of the heritage conservation area, and on the built form, fabric and heritage significance of the heritage item, and separate to that; (b) the heritage conservation management plan for the item endorsed by the Heritage Council under s 38A of the Heritage Act 1977.

The platform

95. Based on my observations of the difference in levels between the laneway and the rear yard of the site, I understand why the CMP assumes parking is not possible. However, as Professor MacKay observes in the joint report the proposed platform offers an innovative design solution which overcomes the differences in levels and the presumption that onsite parking is not possible. Shielded from public view, in accordance with Policy 8.7.4, I accept Professor MacKay’s expert view that the platform does not adversely alter the visual and physical setting at the rear of the property. Instead, it provides reasonable residential amenity with minimal impact on the historic courtyard pavers and stairs which lead to the rear laneway. The elevated platform is essentially detached from the stone pavers and able to be removed with little impact on the fabric of the rear yard and kerb. Importantly, the original flagstone will be preserved. Relevantly, the heritage experts accept in the event of approval that the fabric can be removed and stored securely on site for possible future reinstatement in its original position. The evidence is that these alterations to significant fabric and space will be fully reversible works and constructed in a way that conserves, maintains and interprets the property in accordance with Policies 8.7, 8.7.4 and 8.7.6 of the CMP.

96. Mr Moore and Mr Poulton’s concern about the development’s domination of the rear yard spatial configuration needs to be understood in the context of the whole of the CMP. Relevantly, the CMP does not preclude works in the rear yard of the site. In fact, it provides that additions and alterations should be confined to the rear in areas of less significance, provided that they are not visibly dominant and in accordance with the relevant planning controls. And, while I appreciate that the development will change the relationship between the rear of the house and the yard - with some reduction of the ability to understand the outbuilding in their visual and physical context, as Professor MacKay said “... these impacts, effects would generally not be visible from the public domain and would primarily affect the occupants and visitors” and have minimal intrusion into the space or impact on the sandstone flagging. The result, as Professor MacKay has assessed, is an appropriate adaptation of the rear yard which contributes to the utility, amenity, function, for the contemporary use of the building for ongoing residential purposes (Joint report, p12). For those reasons I am satisfied that the proposed platform will be consistent with the intent of the CMP and the planning controls.

97. Having dealt with the Policy that provides off-street parking is not possible at the site because of physical constraints (Policies 8.12, 7.6.1, Q14), it is necessary to address the argument that the development precludes the use of that area as a landscape space and thereby offends the CMP (CMP 8.12.1).

98. The reference in the CMP to providing a “landscape space” is curious in circumstances where the heritage experts agree that the rear paved yard was originally the service area of the site for the stables. Accepting Professor MacKay’s evidence that the reference to hard landscaping is to accommodate garden pots - there is nothing stopping the placing of pots in the rear yard area around the elevated platform, and thereby maintaining a landscape space in accordance with the CMP. Although, mindful of the extent of the approved development in the rear yards of the adjoining terraces at Nos 11 and 13 – which include a small service ramp to the Rodens Lane, a water feature and bin area – it is difficult to argue against the appropriateness of the proposed reversible development at no 7 and the proposed uses as explained by Mr Kovacs.

99. In relation to the extension of the dumbwaiter, having travelled the narrow stair from the kitchen to the proposed study I accept, prefer Professor MacKay’s assessment that the development is as much necessary and as minimal as possible to allow for the reasonable residential use. Importantly, his evidence is that it will be unobtrusive, and the removal of 725mm of the original timber joist is a minimal impact that greatly improves the residential amenity for the occupants. Initially, Mr Poulton did not have any issue with the extension of the dumbwaiter from the kitchen to the first floor study. However, he is now concerned that these cumulative impacts will adversely impact the heritage item and the conservation area. For the reasons outlined by the applicant, as summarised earlier, I do not accept his concern is justified on the evidence before me.

100. Even accepting, the very particular and extraordinary heritage significance, both of the site itself and the two buildings, and also the Millers Point conservation area itself more generally, I am satisfied that the development is acceptable after assessment for the reasons outlined by Professor MacKay as summarised above.

95. In forming this view, I have carefully considered the effect of the development on heritage significance in respect of the heritage item and heritage conservation areas as required by cl 5.10(4), and in accord with cl 6.47(3)(a) the affect of the development on built form and heritage significance of the conservation area, and on the built form, fabric and heritage significance of the heritage item having regard to the Statements of Significance for the item and the conservation areas, and in accordance with cl 6.47(3) (b) the CMP endorsed by the Heritage Council under s 38A of the Heritage Act 1977.

96. For the reasons as summarised above, I am satisfied that the proposed works do demonstrate an approach of minimum intervention, as advocated in Article 3 of the Burra Charter and the CMP Policy 8.6.1. Moreover, they are consistent with the heritage conservation objectives of cl 5.10(1) to conserve the environmental heritage of the City of Sydney and also the objects of the Heritage Act 1977 (s 3(b)): to encourage the conservation of the State’s heritage because in my assessment the platform and dumbwaiter will not adversely impact the heritage character and significance of the State-listed heritage item or the conservation area. They are also consistent with the stated objectives in cl 6.47. Additionally, I am of the view that the development achieves the design excellence provisions of cl 6.21 of the LEP, as Professor MacKay said the platform design is innovative and the dumbwaiter will be no different to a piece of furniture that might otherwise be placed in the room now used as a residence. The development also complies with cl 2.8 of the Millers Point Locality Statement of the DCP as it retains the historic character of the heritage item having regard to the CMP, and responds and compliments the heritage item for the reasons articulated by Professor MacKay in the joint report and at the hearing during his concurrent evidence to the Court.

Precedent

103. The respondents are concerned that my approval of the platform and extension of the dumbwaiter will generate a precedent within the conservation area. Yet, given the subjective nature of this application, and in fact every application, there can be no precedent as they must each be determined on their own facts. This end terrace is uniquely positioned within the escarpment - at the highest fronting Dalgety Road with rear lane access at the widest section of laneway. The platform design is very much responsive to the particular levels of the rear yard, and the site constraints and for that reason can have no wider precedent effect within the conservation area in terms of on-site parking arrangements. Similarly, the extension of the dumbwaiter arises from the individual circumstances pertaining to 7 Dalgety Road which differentiates it from other heritage items. Ultimately, each case must be assessed against the planning controls at the relevant time having regard to the particular facts: Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 at [5].

104. Having dealt with the two controversial developments and appreciating the parties are agreed, based on the expert evidence that the other works as detailed in the amended applications for the terraces at 7 Dalgety Road and 9 Dalgety Road are acceptable on a conditional basis in the context of the CMP and statutory controls, I am satisfied, after assessment, that these works should be approved subject to appropriate conditions as they are reasonably necessary and there is no expert or lay evidence to the contrary opposing this outcome.

105. The draft conditions before the Court as agreed need to be refined to include the fence detail for 9 Dalgety Road given my findings in relation to the gate at 7 Dalgety Road. There also needs to be a further plan prepared to address the matter discussed by Professor MacKay in relation to support of the detail for the removed joists.

Directions

Proceedings 2018/391638 and 2018/391654

106. The Court directs that:

1. The parties are to confer and finalise the gate detail for the terrace at 9 Dalgety Road and the final conditions for the terrace at 7 Dalgety Road including a condition to address the small detail of the support for the joist (a bolt or the like) to support the end of the joist after the removal of the small area of the original floorboard to accommodate the dumbwaiter. Once finalised, the agreed conditions in each case are to be forwarded to the Court within 7 days of publication of these reasons. After review, I will hand down final orders.

2. In the event of disagreement about the final conditions, the parties have liberty to relist the matter before me on 2 days’ notice.

Addendum made on 16 July 2020

Proceedings 2018/391638 (9 Dalgety Road)

107. In accordance with the terms of directions in [106] of my judgment of 19 June 2020, the parties have provided me with the agreed conditions of consent. I am satisfied firstly that development consent to the application should be granted and that the conditions of consent marked annexure ‘A’ accord with my findings. Accordingly, I make the following orders as follows:

1. The appeal is upheld.

2. Development Application No. D/2018/981 for external and internal alterations and additions, the removal of a eucalyptus tree, and construction of a new driveway, at the property known as 9 Dalgety Road, Millers Point is approved, subject to the conditions of consent set out in Annexure A.

3. The exhibits are returned, except for Exhibits A, B, C, G, H, 1, 2, H1 and H2.

Proceedings 2018/391654 (7 Dalgety Road)

108. In accordance with the terms of directions in [106] of my judgment of 19 June 2020, the parties have provided me with the agreed conditions of consent. I am satisfied firstly that development consent to the application should be granted and that the conditions of consent marked annexure ‘A’ accord with my findings. Accordingly, I make the following orders as follows:

1. The appeal is upheld.

2. Development Application No. D/2018/980 for external and internal alterations and additions, removal of a palm tree, and the construction of a new driveway at the property known as 7 Dalgety Road, Millers Point is approved, subject to the conditions of consent set out in Annexure A.

3. The exhibits are returned, except for Exhibits A, B, C, G, H, 1, 2, H1 and H2.

………………………….

S Dixon

Senior Commissioner of the Court

Proceedings 2018/391638 

Annexure A (9 Dalgety Road) (247203, pdf)

Proceedings 2018/391654 

Annexure A (7 Dalgety Road) (265581, pdf)

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Amendments

19 June 2020 - Correction to Applicant's representation.

22 June 2020 - Correction to typographical errors at [97] and [99].

17 July 2020 - See Addendum for final orders at [107]-[108].

Decision last updated: 17 July 2020