Otar Investments Pty Ltd v Burwood Council

[2014] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:

Otar Investments Pty Ltd v Burwood Council [2014] NSWLEC 1252

Hearing dates:

19-21 November, 2014

Decision date:

09 December 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1.The appeal is dismissed.

2.Development Application No. 35/2014 for the demolition of the former Burwood courthouse, retention of the former Burwood police station and construction of a mixed use 18 storey development is refused.

3.The exhibits, other than exhibits 1, 5 and 10, are returned.

Catchwords:

DEVELOPMENT APPLICATION: partial demolition of a local heritage item; whether the demolition will have an acceptable impact on the heritage significance of the heritage item.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Otar Investments Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Mr Philip Clay (Applicant)
Mr Michael Wright Barrister (Respondent)
McKees Legal Solutions (Applicant)
Matthews Folbigg Pty Ltd (Respondent)

File Number(s):

10323 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 35/2014 for the demolition of the former Burwood courthouse (the former courthouse) and the construction of a mixed use development (the proposal) at 24 Burleigh Street, Burwood (the site) by Burwood Council (the Council).

1. The appeal was subject to mandatory conciliation on 8 August 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 4 September 2014 for the applicant to rely on the amended proposal (exhibit A) and the respondent to rely on an amended Statement of Facts and Contentions (exhibit 1).

Issues

1. The Council contends that the proposed demolition of the former courthouse should be refused for the following reasons:

• The former courthouse is of local heritage significance;
• The former courthouse is an example of the work of the then Government Architect, Walter Liberty Vernon and it is representative of his work;
• The alterations and additions to the former courthouse, carried out in 1926 and 2009, do not undermine its heritage significance and it remains a good example of Federation architecture;
• The former courthouse can be read together with the former police station adjacent, also designed by Walter Liberty Vernon and the proposed demolition of the former courthouse fails to account for the contribution the two buildings make together, as they have long associated uses and the demolition of one would negatively affect the interpretation of the other;
• The former courthouse is significant as it illustrates the shift in style of the design of courthouses under Vernon, from long established classical styles to picturesque Federation styles;
• The proposal will set an undesirable precedent for similar proposals involving the demolition of a heritage item.

1. The Council contends that the proposed mix use development should be refused for the following reasons:

• The proposal provides a poor interface with the historic former police station; it does not respond to the materiality, scale or form of the former police station and the height and scale of the proposal would dominate the single storey former police station;
• The proposal fails to satisfy the relevant provisions of the State Environment Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code;
• The proposal fails to satisfy the design excellence provision of the Burwood Development Control Plan 2013 (DCP 2013) control 3.2.1.

The site and its context

1. The site is bound to the south by Belmore Street, to the west by Burleigh Street and to the north by Elizabeth Street. The site is 921.2sqm and is within the Burwood Town Centre. It contains the former Burwood police station on the northern side and the former Burwood courthouse on the southern side, both fronting Burleigh Street.

1. On the eastern side of the site is the new Burwood Police Centre, bound to the north by Elizabeth Street and to the south by Belmore Street. The new Burwood Local Court is to the east of the Police Station.

1. There is a Victorian terrace row on the eastern side of Burleigh Street to the north of Elizabeth Street. There are two Inter-War residential flat buildings on the southern side of Belmore Street, opposite the site.

The proposal

1. The proposal is to demolish the former Burwood courthouse and construct an eighteen storey mixed use development, with retail and commercial uses on the ground floor, commercial on levels 1 and 2, residential apartments on levels 4 - 17 and four levels of basement parking.

1. The proposal includes conservation works detailed in a Schedule of Conservation Works to the former police station (exhibit J).

Planning framework

1. The site is zoned B4 Mixed Use, pursuant to Burwood Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B4 zone are:

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

1. The Height of Buildings development standard for the site is 60m (Height of Buildings Map HOB_001 LEP 2012) and the floor space ratio (FSR) development standard for the site is 4.5:1 (FSR Map FSR_001 LEP 2012).

1. The 'Burwood Police Station and Courthouse' at 24 Burleigh Street is a local heritage item (item I15, Schedule 5, LEP 2012). The site is within the vicinity of local heritage items (Schedule 5, LEP 2012), including:

• 'Orontes' and 'Monterey' at 22 and 24 Belmore Street, I6;
• Victorian terraces at 12-22 Burleigh Street, I14;
• Burwood Post Office at 168A Burwood Road; I24, designed by W.L. Vernon and constructed 1892.

1. The demolition of a heritage item requires development consent, at cl 5.10(2)(a)(i) of LEP 2012. The relevant objectives of the heritage conservation clause, at sub-cl 5.10(1)(a) and (b) of LEP 2012, are to conserve the environmental heritage of Burwood and the heritage significance of heritage items, including associated fabric, settings and views.

1. The provisions of Burwood Development Control Plan (DCP 2013) are a relevant consideration in assessing the proposal. The heritage objectives for 'centres and corridors' at 3.8 of DCP 2013 are as follows:

O1 To support the retention of heritage properties and maintain their heritage significance.

O2 To ensure that alterations or additions to heritage properties are sympathetic to the heritage significance of the property and in keeping with its character.

O3 To ensure that development located in the vicinity of a heritage item is designed and sited in a manner sympathetic to the significance of the heritage property and its

setting.

O4 To facilitate adaptive re-use of heritage properties where such a use would contribute to the ongoing maintenance and viability of that item or place.

1. The General Provision, P2 at 3.8.1 of DCP 2013 requires a Heritage Impact Statement (HIS) to justify the substantial demolition of a heritage property. The HIS is to demonstrate that options for the retention of the item have been investigated. An assessment of significance must include a comparative analysis of the building in relation to others of its kind in the local area. Conclusions should be based upon the heritage significance of the property, not on the development potential of the land it is situated upon.

Public submissions

1. One resident objector provided evidence on site during the hearing. She is concerned that the proposal may result in a breach of security for the Police Centre and Local Court and that the proposal is out of character with the block on which the site is situated.

Expert evidence

1. In relation to heritage, the Council relied on the expert evidence of Ms Jennifer Hill, and the applicant relied on the expert evidence of Mr Graham Brooks.

The former Burwood courthouse and police station

1. The heritage experts agreed on the following facts:

• The police station was designed by Walter Liberty Vernon, NSW Government Architect (1890-1911) in 1900 in a style that the experts agreed can be described as Federation Romanesque;
• The courthouse was designed by Vernon and constructed in 1906 in a style described by Ms Hill as Federation Arts and Crafts and Mr Brooks as Federation Free Style;
• The former police station and courthouse functioned as a pair and although both designed by Vernon, they are not a stylistic pair;
• Alterations and additions to the former courthouse include a large rear extension and small additions to the southern offices in 1926; major internal alterations during the 1980s including a free standing external canopy, public toilets, a new block attached to the northern side of the courtroom and additional offices to the rear;
• The 1926 rear addition and a portion of the original building and part of the 1980s northern addition were demolished in 2009;
• The rear cell block and yard of the former police station were demolished in 2009.

1. The extent of the current heritage listing represents only about one half of the original site which contained the full extent of the original buildings. The original site was subdivided in 2010, with Council's consent, following the erection of the adjoining new Burwood Police Centre. The original site had been listed as a heritage item in the Burwood Planning Scheme Ordinance since 1989, having been identified as being of local heritage significance since 1986 (exhibit 5, 5.0). Following the demolition of the rear portion of the two buildings and the sub-division of the site, the reduced site occupied by the two buildings was listed in LEP 2012 as a heritage item.

1. The former courthouse and police station buildings on the site are used for commercial, retail and community activities.

The heritage significance of the former courthouse

1. The heritage experts agreed that the demolition of the rear portion of the former courthouse in 2009 has impacted on the heritage significance of the building, however they disagreed on the extent of that impact.

1. According to Mr Brooks, the demolition of the rear portion of the former courthouse in 2009 and earlier changes made to the building have detrimentally impacted on the evidence of the hierarchical functions of a courthouse, which were denoted by the layout, volumes and relationships of rooms, expressed in the design of the building. The functionality of the courthouse was clear in the original building; however it is now difficult to interpret those functions following the changes made to the building and the removal of furniture and fittings, particularly in the courtroom. The changes have, in Mr Brooks' view, compromised the heritage significance of the former courthouse and the remnant fabric does not reach the threshold for a local heritage listing.

1. According to Ms Hill, the demolition of rear portion of the former courthouse and alterations made to the building does not mean that the building cannot be understood as a former courthouse, as the portion demolished at the rear was primarily the 1926 addition to the original building. The exterior form of original building remains fundamentally intact; the main volume of the courtroom, which is taller as a requirement of use is evident in the external, deliberately asymmetrical, composition of the building. The former courthouse contributes to the civic precinct in which it is located. In Ms Hill's view, the interior of the building can be understood and interpreted as a former courthouse.

1. In Ms Hill's opinion, the former courthouse is an example of Vernon's approach to suburban courthouses, where he used a domestic scale and architectural style for public buildings. The former courthouse is an early, if not the earliest, example of the domestic Federation Arts and Craft style used in a public building. Ms Hill disagreed with Mr Brooks' approach in the HIS (exhibit C, pp 63-7) of considering the former courthouse in a continuum of Vernon designed courthouses in New South Wales. In her opinion, Vernon's approach to the design of suburban courthouses was different to his approach to the design of country courthouses, where the civic importance was conveyed in their more formal style and composition, in contrast to the more domestic style and composition of his suburban courthouses.

1. In Mr Brooks' opinion, the scale and style of the former Burwood courthouse is a function of the relatively small site on which it was located, which was not a site envisaged for the courthouse in the early layout of Burwood, but rather a site purchased in the late 1800s. In his view, the former Burwood courthouse is not an icon, but part of a continuum, as Vernon had moved away from the Federation Arts and Craft style by 1909 and the former courthouse was one of the last courthouses he designed in that style.

The heritage significance of the pair of buildings on the site

1. The heritage experts agreed that the former courthouse and police station, while not designed in the same architectural style, worked together as a pair and were linked by their use. The heritage experts agreed that the former police station is atypical, as it did not include a residence, which was commonly included in the design of most police stations of that era.

1. According to Mr Brooks, the architectural style of the former police station is considerably rarer than the former courthouse and this is why he has advised the applicant to retain and conserve the former police station in preference to retaining the former courthouse.

1. According to Ms Hill, the former courthouse and police station still have a civic presence and are read as a pair, as they are united by their historical uses. The changes to the rear of the buildings, in her view, have not impacted on their overall integrity and the pair reaches the threshold for local heritage listing.

1. Mr Brooks disagreed that the former courthouse and police station have a civic presence in Burwood, as they are not on a main road and they are not part of a civic identity associated with a park, a town hall, a cathedral or a main square.

Partial demolition of the heritage item

1. According to Mr Brooks, there is an established heritage methodology for retaining the components of a heritage item which are most significant and for focusing change on those parts of an item that are the least significant. In his view, this is the approach that has been adopted for the proposal, as the primary objective of the proposal has been to provide the funds required to conserve the former police station. This was the approach taken, for example, at Walsh Bay, when Pier 6/7 was demolished and replaced by a new structure for a residential building and the remaining piers were conserved and adapted.

1. In Ms Hill's opinion, the demolition of components of the former courthouse that were of lesser heritage significance has already occurred and this does not justify the demolition of the former courthouse. In her view, adopting the heritage methodology based on the significance of components would require the former courthouse to be retained, as it is of heritage significance, because the two buildings together comprise the heritage item. As a consequence, the development potential of this site is very limited, as it is a constrained site, which would have been evident when the applicant purchased the site.

1. According to Ms Hill, it was a critical failing that the conservation and adaptation of the two buildings was not tied to the development of the new Police Centre.

Submissions

1. Mr Clay submits that there is no inherent tension between the development standards for the site and the heritage listing, because this matter requires the balancing of considerations in managing change. The demolition of the former courthouse, being part of the heritage item, will facilitate the conservation of the rest of the item, the former police station.

1. Mr Clay submits that a memorandum written by Council's heritage advisor and dated 10 August 2009, in relation to the development of the new Police Centre and the future of the former police station and courthouse, is a relevant consideration, particularly the following statements (exhibit 3, tab 7), because the memorandum predicted the unfeasibility of retaining both buildings on a reduced site:

The greatest concern relates to the limited viability of the heritage buildings for adaptive re-use by virtue of their reduced footprint and setting (ie reduced separation from the new building). Both buildings are smaller than their original 1900s size, and cannot be reasonably considered viable commercial spaces. Moreover, the former Court building contains no amenities under the amended proposal. The historic Police building would contain amenities (at the rear) which are only accessible from the exterior of the building, which is further evidence of the lack of attention given to the ongoing use of the historic buildings.

Further to the point above, there is insufficient area to the rear of the heritage buildings to accommodate additions or adapt to the changing needs of the occupants. The ongoing viability of the heritage buildings is of serious concern.

The DA should also clarify the extent to which the proponent is responsible for the restoration of the heritage buildings and surrounds. The initial DA submission stated that heritage buildings would be restored and refitted for use by staff of NSW Police. Earlier documentation and correspondence undertook to restore the existing fences, heritage garden and infilled verandah. It is unclear to what extent this would be undertaken in the amended proposal.

The restoration of the heritage listed buildings and their settings should be tied to the approval of the redevelopment. It would be inappropriate to allow the applicant to remove itself from responsibility for the restoration of the heritage buildings by allowing an Occupation Certificate (for the new Police building) to be issued prior to the completion of restoration works to the heritage buildings. Such an approach may result in the heritage buildings being left vacant and neglected.

Similarly, should the owner seek to sub-divide the heritage building from the new Police building for separate sale, Council should be satisfied that the restoration works would be completed prior to issue of a Subdivision Certificate.

1. Mr Clay further submits that at the time of preparing LEP 2012, the Council was well alive to the issues associated with the site, as evidenced by the heritage advisor's memorandum. Council had an opportunity at that time to create site specific development standards on the assumption that the former police station and courthouse would be retained, but did not do so. Mr Clay submits that the controls for the site are not pulling in different directions, but provide an opportunity to maintain something of the past and provide for the future.

1. Mr Wright submits that the Council accepts that a local heritage listing does not preclude partial demolition; however, the applicant has not made a valid case for the demolition of the former courthouse. The Council included the site as a local heritage item in LEP 2012, notwithstanding the changes made to the rear of both buildings and the reduction in the extent of the site. Mr Wright further submits that there are numerous items of local heritage throughout town centre, without site specific development standards.

Findings

1. While I accept that the alterations made to the former courthouse have impacted on its heritage significance, I prefer Ms Hill's evidence in regard to the integrity of the former courthouse, its heritage significance and its contribution to the civic character of the justice precinct of Burwood. I am satisfied that the 2009 demolition of the rear portion and northern additions of the former courthouse and alterations and additions made to the building, including internal alterations, have left the original building fundamentally intact and able to be understood and interpreted as an early 20th century suburban courthouse building. The courtroom, being the most prominent and dramatic room in the building, is intact and able to be understood as a former courtroom, notwithstanding the loss of furnishings.

1. I accept and prefer Ms Hill's evidence in regard to the former courthouse being an example of Vernon's Federation Arts and Crafts style and an early example of a less formal and more modest expression of this style for a suburban civic building. The architectural style is evident in the asymmetrical massing, the dominant roof, the rough cast rendered walls and chimneys.

1. I accept and prefer Ms Hill's evidence that the former courthouse is of local heritage significance. The former courthouse is of heritage significance as a representative example of the work of the then Government Architect, Walter Liberty Vernon and as part of the group of purpose built suburban courthouses and police stations designed by the office of the Government Architect under the direction of Vernon. The demolition of the rear portion and the alterations and additions to the former courthouse have not extinguished its heritage significance and it remains a good example of the Federation Arts and Crafts style for a suburban civic building.

1. The former police station and courthouse continue to read as pair in a garden setting, as they are both examples of turn of the century public buildings designed by the Government Architect, irrespective of their different architectural styles. I accept and prefer Ms Hill's evidence, that the two buildings have a civic presence and together are of heritage significance, as they are united by their historical association, scale, materials, proximity and architect. The demolition of the former courthouse would diminish the significance of the heritage item and compromise the heritage significance of the former police station.

1. I do not accept the applicant's argument that the demolition of the former courthouse constitutes the sacrificing of the less significant fabric in order to fund the conservation of the more valuable former police station. The demolition of the former courthouse would undermine the heritage significance of the local heritage item and the contribution the two buildings make together.

1. The lack of vision and litany of poor decision making concerning the former police station and courthouse, which pre-dates both this applicant's purchase of the site and this application, is aptly foreshadowed by Council's heritage advisor in her memorandum regarding the development of the new Police Centre (exhibit 3, tab 7). I accept and agree with Ms Hill's evidence that it was a critical failing that the conservation and adaptation of the two buildings was not tied to the development of the new Police Centre, as recommended by Council's heritage advisor. Indeed, it was an enormous missed opportunity that the design of the new Police Centre failed to acknowledge or respond in any way to the original police station and courthouse or to incorporate the original buildings into the design of the justice precinct. As a result, the site is significantly constrained and compromised, in comparison to the opportunity it presented at the time of the design of the new Police Centre and Burwood Local Court. Nevertheless, this does not, in my view, justify further compromising the site by demolishing the former courthouse.

1. Development standards are a broad-brush, strategic planning tool that envisages an overall, three dimensional form for each local government area. In Burwood, the height of buildings and FSR development standards allow for a dense, urban area, centred on Burwood Railway Station. The central area around the station, referred to as Area A in LEP 2012, has a maximum height of 70m, with a surrounding ring of development 60m high and commensurate FSR development standards. The site is located within this central urban area, within the ring of development with a height of buildings development standard of 60m and FSR development standard of 4.5:1. It is generally not the practice of local governments to distinguish local heritage items with site specific development standards that recognise the individual constraints of a particular site. Presumably this is the case because it would be presumptuous to impose site specific development standards without a detailed examination of the opportunities and constraints of each individual site identified as a heritage item and because circumstances may change.

Conclusion

1. The proposed partial demolition of the heritage item, being the demolition of the former courthouse, is contrary to the objectives of the heritage conservation clause, at sub-cl 5.10(1)(a) and (b) of LEP 2012, to conserve the environmental heritage of Burwood and the heritage significance of heritage items, including associated fabric, settings and views, for the following reasons:

• The former courthouse is of local heritage significance as a representative example of Walter Liberty Vernon's Federation Arts and Crafts style and an early example of a less formal and more modest expression of this style by the Government Architect for a suburban civic building;
• The two buildings, the former police station and the former courthouse, still have a civic presence in Burwood and continue to read as a pair, united by their historical association, scale, proximity and architect;
• The demolition of the former courthouse would diminish the significance of the heritage item and compromise the heritage significance of the former police station.

1. Given my findings that the demolition of the former courthouse is contrary to the objectives of the heritage conservation clause of LEP 2012, I do not need to determine Council's contentions regarding the mixed use development, as the retention of the former courthouse precludes the development of the site as proposed.

Orders

1. The orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application No. 35/2014 for the demolition of the former Burwood courthouse, retention of the former Burwood police station and construction of a mixed use 18 storey development is refused.

(3)   The exhibits, other than exhibits 1, 5 and 10, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 09 December 2014