Leighton Properties Pty Limited v Parramatta City Council

[2006] NSWLEC 259

Land and Environment Court

of New South Wales

CITATION:

Leighton Properties Pty Limited v Parramatta City Council [2006] NSWLEC 259

PARTIES:

APPLICANT
Leighton Properties Pty Limited

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11250 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of heritage building, erection of commercial building, urban design.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environment Plan No. 28

DATES OF HEARING:

01/02/2006 and 02/02/2006

EX TEMPORE JUDGMENT DATE:

02/02/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
Instructed by
Allens Arthur Robinson

RESPONDENT
Mr P. Marincowitz, solicitor
of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 February 2006

11250 of 2005 Leighton Properties Pty Limited v Parramatta City Council

JUDGMENT

1 On 26 August 2002 the council determined development application number 1210/02 by granting conditional deferred commencement development consent. That consent relates to the erection of a 10 storey commercial building at No. 76-78 Macquarie Street and No. 25 Smith Street, Parramatta. It also involves the part demolition of the then existing heritage building known as Exeter Manor. Exeter Manor was and continues to be listed in Sydney Regional Environmental Plan No. 28, Parramatta (“the REP”) as a heritage item.

2 This consent has been commenced, the site having been cleared and much of the approved demolition effected. What remains of Exeter Manor are the facades to Macquarie and Smith Streets and some supporting structures behind these facades.

3 This appeal relates to council’s refusal of Development Application No. 688/05, which is for the erection of an eight storey commercial building on the above described site. The application also comprises the conservation of a convict constructed drain on the site and the demolition of the remaining facades of Exeter Manor.

4 The rectangular shaped site is situated on the corner of Smith and Macquarie Streets and has an area of 2,171 sq m. It is located within the Parramatta CBD, amongst commercial buildings having heights varying between three and thirteen storeys. There is a school nearby.

5 The application was advertised and three submissions were received. Two of these submissions comprise objections to the proposal. The third submission comprises a letter of support. A fourth submission comprising a further letter of support was subsequently received.

6 The application was refused contrary to the recommendation of council’s senior development assessment officer that it should be approved. The statement of issues essentially reflects the council’s reasons for refusal and refers to the matters raised by the two objectors to the proposal and the following.

(a) Exeter Manor was significant in the Parramatta area as a remaining example of art deco flats in the area.
(b) The brickwork of the façade is significant and of a high standard.
(c) Exeter Manor has a high degree of aesthetic, technical and historical significance.
(d) Exeter Manor was a fine example of an inter-war functionalist block of units, skilfully embellished with art deco detailing.
(e) Retention of the entire Smith Street elevation reinforces the vertical corner element of the Smith/Macquarie Street gateway; and
(f) The proposed development does not comply with the heritage objectives and urban design requirements of part 9 of SREP 28.

7 The only issues raised by the council in relation to the application relate to the demolition of these remaining facades. I have reviewed the materials provided in relation to the proposal generally and could not discover any other matter of concern.

8 Under the REP the site is designated city core, wherein commercial development is permitted with development consent. The remaining facades of Exeter Manor continue to be subject to the provisions of the REP, particularly part 9 that, inter alia, seeks to conserve the environmental heritage of Parramatta.

9 The objection most relied upon by the council came from Mr W Lumby of the 20th Century Heritage Society of New South Wales. Mr Lumby described himself as a heritage conservation practitioner. He explained that the remains of Exeter Manor are significant and contribute to the locality and warrant protection. He accepted that facadism is not normally desirable but would be appropriate in this case, given the significance of the building. He said that Exeter Manor, a three storey block of flats, is one of the finest examples of an inter-war functionalist style. The building has aesthetic significance as a fine example of this style, embellished with art deco detailing.

10 He also said that the building has historical and technical significance and is an important part of the streetscape in this part of Parramatta. It was his opinion that there is sufficient evidence of the building’s original use embodied in the facades to enable an interpretation of its heritage significance.

11 When questioned about the fact that the existing consent would enable further demolition of the facades and penetrations of them for larger windows, Mr Lumby expressed doubt as to whether the remaining facades should be kept.

12 In its letter, the Parramatta Regional Branch of the National Trust pointed out that the remaining facades of the building have an important part to play in the history of Parramatta. The design of the brickwork is unique and shows the expertise of the brickmaker as well as the builder. The building was recognised around the world as a fine example of art deco architecture, of which there is very little remaining in Parramatta.

13 Subsequently, the conservation director of the National Trust wrote to the council expressing concern at the decision to allow demolition of part of Exeter Manor. However, she recognised that a façade without its building is meaningless, although she recognised that some of the building’s values might be retained with a sensitive design. She urged the new owners of the site to explore options for the incorporation of a façade, acknowledging that the current proposal would make a mockery of both the former building and its importance. The letter goes on to say that the Trust feels that the building should be remembered in other ways, through recording and interpretation, rather than desperately holding onto something that is gone.

14 As part of the process of examining the development application, the council considered a heritage impact assessment report by Mr J Graham, a heritage architect. That report concluded that, subject to the preservation and interpretation of the convict constructed drain at the rear of the site and the interpretation of Exeter Manor within the new development, the objectives of the heritage provisions of the REP would be met. Moreover, the proposal would, in urban design terms, provide a better outcome compared to the benefits of retaining the fragmentary remains of a façade of little remaining cultural significance.

15 Council also considered the advice of Mr D Logan, a heritage consultant who expressed the opinion that the remaining facades would no longer warrant listing in the REP as a heritage item. He emphasised that the surviving facades were not of such significance that they should be given preference over the achievement of a high quality podium design as is now proposed. It was also his opinion that facadism in relation to heritage items should not be supported.

16 The Court also had the benefit of a comprehensive report prepared by Mr G Brooks, who was the Court-appointed heritage expert. He considered the issues raised by the council at length and concluded that the retention of the remnant facades was not justified. Instead, Exeter Manor should, as is now proposed, be appropriately interpreted within the foyer of the proposed building, such interpretation to include high quality architectural photographs, in accordance with proposed conditions of consent that in turn refer to the proposed interpretation plan prepared by International Conservation Services. More particularly, he concluded that the facades would be reduced to presenting nothing more than a remnant of architectural imagery if they were to be retained and that the retention of Exeter Manor in the heritage schedule is no longer warranted. This is because the remaining façade is unable to demonstrate the original significance of the building as a block of flats and the difficulty of giving the remnant any meaning in the streetscape.

17 Mr Brooks did not believe that it would be reasonably possible, given the nature of development surrounding the site, and the applicable planning controls, to design a building that would not overwhelm the remnant façade. In other words, facadism would be unlikely to be successful in this instance, with the remnant façade likely to be reduced to a tokenistic corner element by comparison with its former distinctive appearance on the street corner. Similarly, he did not believe that the remnant façade would be able to project the significance of the former building with any degree of success. Instead, a well designed interpretation program would be far more successful as a means of commemorating its significance. He also explained how the retention of the facades in the context of the recently realigned carriageway in Smith Street would not be conducive to a lively pedestrian frontage.

18 I have been persuaded by the overwhelming heritage evidence that supports the applicant’s case. I particularly agree with the comprehensive analysis and conclusions presented by Mr Brooks for the reasons that he gave, and taking into account the requirements of the REP, I accept that the remnant façade does not attract sufficient significance to warrant retention. There is little doubt that a design for a commercial building that incorporates the existing facades could be produced. However, taking into account the urban design imperatives for this site, it is unlikely that an economically viable design would be possible. I have therefore decided that the appeal should be upheld and conditional development consent granted.

19 The orders of the Court will be that:

1. The appeal is upheld;
2. Development application number 688/05 for the erection of an eight storey commercial building at No. 76-78 Macquarie Street and No. 25 Smith Street, Parramatta is determined by the granting of development consent subject to the conditions in Exhibit 2, which are, as discussed earlier, yet to be finalised, and of course when I have those conditions they will become annexure A which will be attached to the consent, and I will retain exhibits A and 2.

___________________

T A Bly
Commissioner of the Court
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