Milestone (Aust) Pty Ltd v City of Sydney Council

[2011] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation:	Milestone (Aust) Pty Ltd v City of Sydney Council [2011] NSWLEC 1357
Hearing dates:	21 November 2011
Decision date:	22 November 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	Development modification - window frames - heritage item
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2005
Cases Cited:	Politic Pty Limited v Council of the City of Sydney [2009] NSWLEC 1239
Category:	Principal judgment
Parties:	Milestone (Aust) Pty Limited (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel Mr A Pickles (Applicant) Ms F Berglund (Respondent) Solicitors Baker & McKenzie (Applicant) City of Sydney (Respondent)
File Number(s):	10878 of 2011

EX TEMPORE Judgment

1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the determination by the respondent Council of an application made on 15 July 2011 under s96(1A) of the Act to modify a development consent granted on 8 October 2010 for the internal fit out and retail use for a Louis Vuitton store, including external signage, lighting and temporary window transparencies, for 365 George Street (the building).

1. The building is located on the north-west corner of George and King Streets, Sydney. The building is known as "The Blacket", and comprises five storeys together with basement level, and a three storey rooftop addition which is set back from the faade. Development consent D/2010/1397, the subject of the modification application, related to the use and internal fit out of the basement, ground floor, level 1 and level 2 of the building. That development consent has since been the subject of five modifications before the application which is the subject of these proceedings.

1. The modification application sought approval for:

• additional faade lighting to levels 3 and 4 on King and George Streets;
• modification to existing doors at the lift lobby entrance on King Street and a new entry on George Street to provide accessible access; and
• new perimeter frames to the existing ground floor shopfront windows on George and King Streets.

1. The Council approved the first two modifications, and refused to approve the ground floor window frames. The central issue in these proceedings concerns the impact of the proposed trims on the heritage values of the building.

Blacket building

1. The Blacket building was built in 1861 as headquarters for the E S & A Bank, which became the ANZ Bank. The first building on the site was designed by Edmund Blacket and was three storeys in height, occupying the eastern section of the present site. The building was extended by William Waddell in around 1890 by adding two floors and a turret. In 1907 John Reed documented modifications to the building, and extensive internal alterations were carried out in 1908. In 1918 the adjacent property was purchased by E S & A Bank, and in 1925 Robertson and Marks were commissioned to undertake substantial alterations and additions. The exterior of the old building was changed removing all the previous detailing and providing new facades. In 2000 substantial alterations and additions were approved to accommodate serviced apartments with a restaurant and bar; the existing first, second and third floors were adapted; the fifth floor was expanded; and two new floors were added. The ANZ Bank branch remained on the ground floor and mezzanine until 2009.

1. Development consent was granted by the Court in 2009 for alterations and additions to the building for the commercial use of the building to provide retail use on the basement ground and first floors and commercial office use to the upper levels using the entry lobby on King Street: Politic Pty Limited v Council of the City of Sydney [2009] NSWLEC 1239. That consent included removal of the 2000 roof additions and construction of a new three level roof extension. As part of the refurbishment undertaken pursuant to this consent in 2010, the remnant 1920s highlight windows were removed from the ground floor window openings, some of the sills were lowered, and new steel framed shop windows were installed. The project architects for that work were FrancisJones Morehen Thorp (FJMT).

1. Mr Richard Francis-Jones, Design Director of FJMT, gave expert evidence in the 2009 proceedings, and described the ground level windows then proposed as follows:

5.3.1 New painted steel framed glazed windows will be offset from the existing fabric. The windows will be able to be clearly read as new insertions into the fabric and will represent the change of use from Banking chamber to Shop Front. A transom has been located at the level of the previous window base to assist with interpretation. The glass will be expressed as a frameless box and will be fixed to the steel framing using finely detailed stainless steel castings and patch fittings. These contemporary framed window insertions are similar in character and intent to those my practice designed for the historic 1850's Mint sandstone faade where existing frames need not exist.

1. The FJMT drawings A5610 for the ground floor shopfront glass windows are annexed to the statement of evidence of Mr Frank Marioli in these proceedings (Exhibit A).

1. On the George Street elevation there are two shopfront windows, the entrance to the retail premises, and the new accessible entry. On King Street there are three shopfront windows, the entry to the commercial lobby and the entry doors to a hole in the wall coffee shop.

Proposed window trims

1. The trim proposed in the modification application is described at para 2.3 in Mr Marioli's statement of evidence:

The proposed new window trims are considered to be a finely detailed element developed exclusively by Louis Vuitton and comprised of a C shape capping approximately 50mm in width with an extended leg to cover the existing steel frame projection. The frames are fabricated in solid aluminium and painted in a durable and serviceable high build factory paint finish and sleeved over the complete steel frame. The proposed window trims provide a clean finish and border to the shopfront windows and conceal the visually untidy junction between steel frame, silicone and glass.

...

1. Mr Marioli states at 6.3:

The proposed window trims are to be spaced off the existing steel frame using small spacer blocks and are fixed into position with structural silicon at both the front and back edge of the frame.

1. Mr Marioli provided details of the removal methodology, which is to involve removal of the structural silicone at the front and back edge of the frame, and then the dismantling and removal of the trims in section.

Planning controls

1. The Blacket building is listed as a heritage item under the Sydney Local Environmental Plan 2005 (the LEP). The relevant provisions of the LEP are cl 26 which requires that consent must not be granted to external alterations to an existing building unless the consent authority has considered whether the proposed development exhibits design excellence; and Part 6 Heritage provisions, being cll 67 - 75. The objectives of the Heritage provisions include cl 67(f), being "to encourage high quality design and the continued use or adaptive reuse of heritage items".

1. The Central Sydney Development Control Plan 1996 and the City of Sydney Heritage Development Control Plan 2006 apply. Part 9 of the City of Sydney Heritage Development Control Plan 2006 provides for retail shopfronts and facades, and includes at 9.1, objective (iii) "encourage the design of new shopfronts to adopt a contemporary interpretation of traditional forms", and further provides at 9.2:

(5) shopfronts in new buildings may be contemporary in style but are to be based on the characteristic elements of traditional and significant shopfronts of adjoining or nearby sites.

Evidence

1. The hearing commenced with a view. Pursuant to a direction made on 17 November 2011 the applicant installed, on a temporary basis, the proposed window trim on one of the King Street windows, in order that the impact could better be understood on the view.

1. Oral evidence was given on site by Mr Philip Corne, Chief Executive of Louis Vuitton in Australia. Mr Corne's evidence was that Louis Vuitton has been operating for over 150 years and has 460 stores worldwide. Thirteen of those stores are identified as "maison" stores, and the Sydney store is to be the only maison store in the southern hemisphere. Six times a year kits for all Louis Vuitton stores are sent from Paris, and every store changes its window display in a 48 hour period. The window trims assist in covering minor variations in tolerance in the display kits. Mr Corne confirmed that Louis Vuitton has a 15 year lease followed by three five year options.

1. Expert evidence on heritage issues was given on behalf of the applicant by Mr George Phillips and by Mr Anthony Smith on behalf of the Council. Expert architectural evidence was given on behalf of the applicant by Mr Frank Marioli and by Mr Richard FrancisJones on behalf of the Council.

Consideration

1. It was common ground that the requirements of s 96(1A) of the Act are satisfied. Section 96(3) requires that such of the matters referred to in s 79C(1) as are of relevance to the development the subject of the application must be taken into consideration.

1. Clause 68(1)(c) of the LEP requires development consent for structural or non-structural alterations to the exterior of a heritage item, and cl 69 specifies the matters that must be taken into consideration. Clause 69(d) requires consideration of "any conservation management plan", which in this instance is the Conservation Management Plan for 365 George Street prepared by Tanner Architects Pty Ltd dated October 2011. At 6.4 the Statement of Significance states:

365 George Street is associated with four prominent architectural practices - Edmund Blacket, William Wardell, John Reid and Robertson and Marks. The contributions of Blacket, Wardell and Reid are now recorded more by documentary sources than by physical evidence. The building retains very little of the work of Blacket (1857/8), Wardell (c1890) and Reid (1908). This building is an unexceptional example of the work of Robertson and Marks.

365 George Street contributes to the quality of streetscape at the intersection of George and King Streets. It forms a link in the continuity of the King Street streetscape in its visual relationship with the Darrell Lea Building (diagonally opposite), Charles Plaza building, Reid House and other 19 th and 20 th century buildings to the east and west. In George Street the building is part of a more diverse streetscape. The continuity of this streetscape is broken by recent and dominant 20 th and 21 st century development.

The building retains almost no evidence of Blacket's Victorian Academic composition or Wardell's Victorian Free Classical composition. It is an unexceptional example of the Inter War Commercial Palazzo style. The Banking Chamber and the western lift lobbies and stairs retain some characteristics of the period.

1. Part 6.6 of the Conservation Management Plan provides the Levels of Significance for Individual Spaces, Elements and Fabric, which provides in relation to the modified elements of facades including the reconstructed ground floor windows, new doorways and granite cladding to base, that the level of significance is Low. The explanatory text goes on to state that:

Where an individual space or element is assessed as making a minor contribution to the overall significance of the place, especially when compared to other features. Spaces, elements or fabric originally of little intrinsic quality and may have undergone alteration or degradation. This category also includes original spaces, elements or fabric of any quality which have undergone extensive alteration or adaptation to the extent that only isolated remnants survive (resulting in a low degree of intactness and quality of presentation).

1. Part 8 of the Conservation Management Plan provides conservation policies supported by guidelines, and states.

The general policies provide the essential guiding aims for the building, which should be adopted by the owner and the relevant approval authorities.

1.The Statement of Cultural Significance should be accepted as one of the bases for future planning and conservation works to the building.

2.The future conservation and development of the place should be carried out in accordance with the principles of the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (Burra Charter).

3.The approach and options recommended for the conservation of specific fabrics, spaces, elements and qualities of the place should be endorsed as a guide to future work, the recommendations having been related to the principles of the Burra Charter.

4.Uses should be developed for areas assessed to be of high and moderate significance which do not compromise the character and significance of those areas.

5.Care should be taken in any future development to avoid or minimise any adverse effect on the quality of the building in its Haymarket context.

1. Relevant policies in these proceedings are:

Policy 9

The long-term management of the building including its adaptation for new uses should continue to be undertaken with a full appreciation of the building's significance.

...

Policy 19

Intervention for purposes other than the conservation of building fabric should occur in areas of lower significance.

...

Policy 22

Individual elements and fabric of identified significance levels should be treated with the corresponding conservation policies outlined in the table below.

...

LOW Retain, recycle, add compatible new construction and/or remove in part or in full, minimising adverse impact on fabric of exceptional or high significance and having the least possible impact on fabric of medium significance. Improvements are required which will contribute to the overall significance, aesthetic quality and functioning of the building.

...

Policy 30

Retain and conserve the external fabric and elements of the building of moderate significance including the materials and detailing of the external walls and facades to George and King Streets dated from the Robertson & Marks period.

Policy 31

Retain, recycle, add compatible new construction and/or remove in part or in full, the external fabric and elements of the building of low significance including the materials and detailing of the external walls and facades to George and King Streets dating from the reconstruction works of 2000.

1. The Conservation Management Plan requires that future conservation and development of the place be carried out in accordance with the principles of the Burra Charter (Australia ICOMOS Charter for Places of Cultural Significance). Mr Smith relied on Article 3 of the Burra Charter which is headed "Cautious Approach", and states:

3.1 Conservation is based on a respect for the existing fabric , use , associations and meanings . It requires a cautious approach of changing as much as necessary but as little as possible.

1. The applicant relied on Articles 15 and 22 of the Burra Charter:

Article 15 Change

15.1 Change may be necessary to retain cultural significance , but is undesirable where it reduces cultural significance. The amount of change to a place should be guided by the cultural significance of the place and its appropriate interpretation.

15.2 Changes which reduce cultural significance should be reversible, and be reversed when circumstances permit.

...

Article 22 New work

22.1 New work such as additions to the place may be acceptable where it does not distort or obscure the cultural significance of the place, or detract from its interpretation and appreciation.

22.2 New work should be readily identifiable as such.

1. The Council contends that the impact of the proposed window trims on the heritage values of the building warrants refusal of the application. The Council contends:

(a) The proposed frames are contrary to the design philosophy which informed the underlying development consent as approved by the Court (contention 19);

(b) The proposed frames are inconsistent with the character of the new architecture of the building approved by the Court and would impose another incomplete layer on a building that has already undergone four major changes since it was first constructed in the 1850s (contention 20);

(c) The most recent change was carried out by the pre-eminent architecture firm FJMT, and the works to the base building are of a boldness and quality equal to previous major changes and likely to be recognised in future as a significant period in the development of the place (contention 21);

(d) Changes to the exterior base building architecture of any newly constructed building by a tenant are not usually approved; the new architectural layer of development to this site is complete and finished and should not be subject to further interference (contention 22);

(e) The glazing was designed by FJMT to read as a flush clear surface and to be read as new clean insertions into the fabric representing the change of use from bank to retail premises; the language of new fenestration was to be consistent with the rooftop extension; and the trim is an unnecessary element that will confuse the clarity of the interpretative approach and remove the flush appearance, contrary to the principles in the Burra Charter and in conflict with policies in the Conservation Management Plan for the building including 8.2, 8.3 and 8.4 (contention 23);

(f) The new glazing detail using large painted steel frames is consistent across all new insertions in the building including the commercial office foyer, entrance doors to George and King Streets, and the enlarged opening to the relocated doors to the hole in the wall caf in King Street, and the application of any trim should be consistent (contention 24); and

(g) The present steel frames have been detailed so they are separated from the heritage fabric by a deep shadow joint and can be clearly read as insertions, and the fitting of large elements would result in a reduction of the recessed shadow line (contention 25).

1. The Council originally contended that the works could not be readily reversed in future as required by the Conservation Management Plan. Mr Phillips and Mr Smith agreed, based on the evidence of Mr Marioli, that it would be possible to remove the frames without permanent damage to the steel window frames, and noted that if removed in future, the removal of silicon residue and preparation and recoating of the steel frames would be necessary. They proposed conditions requiring the archival photographic recording of the existing steel frames, the removal of the proposed trims at the end of the Louis Vuitton tenancy and refurbishment of the steel frames and window glass to their original condition on removal of the trims. The parties have agreed on conditions reflecting those recommendations.

1. Mr Marioli's evidence was that the proposed trim is the outcome of discussion with the Paris design office. His office prepares the drawings and undertakes compliance with local requirements. The frames have been specifically designed to sit over the existing frames. The C channel design is a global concept, although different materials may be used in other countries because of construction issues. In his opinion the proposed frames are complementary to the interior and provide tolerance for internal variations when the display kits are installed. The proposed window trims were not included in the original modification application because the owner did not consent at that time.

1. Mr Marioli and Mr Francis-Jones gave evidence concerning the construction and current condition of the steel frames. Mr Marioli's evidence was that the existing installation is not consistent with the FJMT drawings which show the shopfront glass extending over and concealing the perimeter steel frames. His evidence was that the existing glazing does not read as a flush clear surface, and on close inspection the shopfront insertions are comprised of a projecting painted steel frame with a wide black structural silicone joint between the glass and the steel. In his opinion the existing steel frame and silicone is already showing significant evidence of marking, wear and tear and disfiguration, will require constant maintenance, and is not consistent with the high standard of finish normally associated with Louis Vuitton show windows.

1. Mr Francis-Jones described the existing windows as being serviceable and appropriate for the location, acknowledging in oral evidence that there are limitations on the cleaning of the existing coating. Mr Francis-Jones acknowledged in oral evidence that there is a contrast between the presentation of the glass rooftop extension and that of the existing shopfront windows where the glass is contained in the steel frames.

1. It was common ground between the heritage experts that the proposed trims would be readily identified as new works. It was also common ground that separation from the masonry, and the recessed shadow line, would be retained. Mr Marioli's evidence was that the recessed shadow line around the existing frames varies in width but is approximately 100mm, which would be reduced by approximately 8-10mm by the addition of the proposed window trims. Mr Francis-Jones noted that the moulding around the proposed trim when seen together with that on the existing building would reduce the contrast, and in his opinion it would diminish the clarity of the contemporary modifications.

1. Mr Smith and Mr Phillips disagreed as to the application of Article 3 of the Burra Charter. Mr Smith's opinion was that the cautious approach to changes to the fabric required by Article 3 includes all existing fabric including the current windows installed in 2010. Mr Smith did not consider that the proposed window trims are necessary as the existing windows serve the purpose of protecting stock and enabling the function of the retail space. His preference is for changes to the presentation to be made inside the glass.

Findings

1. In considering the contentions relating to the impact of the proposed trims on the heritage values of the building, I accept the evidence of Mr Marioli that the proposed trims serve in part the purpose of obscuring minor variations in installation of the window displays which form part of the retail use of the site. It was common ground that the changes made by installing the trims can be reversed, and the removal of the trims and reinstatement of the steel frames at the end of the Louis Vuitton tenancy are proposed in the agreed conditions. The current window treatment is relatively recent and is identified in the current Conservation Management Plan as having low significance. I am satisfied that the impact on the ground floor external walls, which are assessed in the Conservation Management Plan as having a moderate level of cultural significance, is minimised by the retention of the deep shadow recessed line. It was apparent from the view that the differences between the present steel frames and the proposed trim are not readily observable from nearby viewing points, such as the other side of George Street, or from further away. In relation to consistency, it was common ground between the experts and apparent on the view that there is currently no consistency in the four entry doors, the main entrance on George Street and the caf on King Street being different to the commercial lobby and the accessible access door.

1. The Council submits that the impact of the proposed trims on the design integrity and character of the new architecture of the building is significant. While the proposed trims may not be consistent with the philosophy of the design architect which underpinned the refurbishment of the building in 2010, the difference in appearance between the window frames as executed and the proposed trims is, based on the view, minimal, and in my view does not have an adverse impact on the building.

1. I am satisfied that the installation of the proposed window trims promotes the use of the building for retail purposes in a way that does not impact on the heritage values of the building. I am satisfied that the proposal is consistent with polices 9, 19, 22, 30 and 31 of the Conservation Management Plan. The change is to new fabric of the building which is considered of low cultural significance, is reversible, and is readily identifiable as new work. I am satisfied that the proposal is consistent with Articles 3, 15 and 22 of the Burra Charter. The modification application should be approved.

Orders

1. Accordingly, the orders of the Court are:

1.The appeal is upheld.

2.Modification application D/2010/1397/E to modify development consent D/2010/1397 for the internal fit out and retail use of 365 George Street, Sydney is approved subject to the conditions in annexure A.

3.The exhibits are returned, except for exhibits 1, C, E and F.

Linda Pearson

Commissioner of the Court

Decision last updated: 14 December 2011