Patel v The Council of the City of Sydney

[2019] NSWLEC 1080

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Patel v The Council of the City of Sydney [2019] NSWLEC 1080
Hearing dates:	14 February 2019
Date of orders:	10 April 2019
Decision date:	01 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See directions at [75] Final Orders: see Addendum at [77] below
Catchwords:	DEVELOPMENT APPLICATION: Internal alterations to terrace house – State heritage listed as part of a group – whether the development proposed has an heritage impact
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Sydney Local Environmental Plan 2012
Texts Cited:	Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013  Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Nandini Patel (Applicant) The Council of the City of Sydney (First Respondent) Office of Environment and Heritage trading as Heritage Council of NSW (Second Respondent)
Representation:	Counsel: R White (Applicant) Submitting appearance (Second Respondent)   Solicitors: Lexes Lawyers (Applicant) A Singh, Council of the City of Sydney (First Respondent) Department of Planning and Environment (Second Respondent)
File Number(s):	2018/120933
Publication restriction:	No

Judgment

Nature of Proceedings and Outcome

1. COMMISSIONER: The applicant, Ms Nandini Patel, is appealing the consent conditions imposed by the Respondent Council on modification application D/2017/130/B. The building works proposed by the modification application are within an existing terrace house at 51 Lower Fort Street, Dawes Point. A number of alterations and additions have been approved for the terrace house. Within the conditions annexed to the approval of D/2017/130/B the following works were refused consent:

1. the creation of a new door opening between the bedroom and bathroom on the first floor;

2. the construction of a new 2.1m high internal partition within the approved bathroom to reduce the size of the bathroom, conceal the bathroom plumbing and services and create a new storage area; and

3. installation of a new maintenance hatch to the roof.

2. The applicant seeks the Court to remove the relevant conditions to allow the modification application to authorise these works to be undertaken.

3. The Court directed and facilitated a conciliation conference between the parties on October 10 2018. Agreement was unable to be reached between the parties and the matter has proceeded to hearing for determination.

4. The Council contends that the application should be refused on the following grounds:

1. The proposed works will have an unacceptable heritage impact and will diminish the heritage significance of the heritage item;

2. Given the adverse impacts on the heritage significance of the building, approval of the development is not in the public interest.

5. Following the joint conferencing of the heritage and planning experts engaged by the parties the design and installation of the roof hatch and the bathroom partition wall is agreed to be acceptable. Appropriate conditions of consent to effect the agreement of the experts have been prepared and agreed. The issue that remains in dispute is whether it is appropriate to grant consent to a new opening between the bedroom (Room 3.5) and the new bathroom (Room 3.4).

6. Following consideration of the evidence presented I find that the opening proposed between the bedroom (Room 3.5) and the new bathroom (Room 3.4) will impact the heritage significance of the four terraces collectively listed on the State Heritage Register (SHR) as Item 906. Further I am satisfied that such an impact on the significance of the item is not warranted in the circumstances of this application as the impact will result in the loss of significant fabric in a manner that is not adequately justified and other reasonable options for access to the bathroom exist.

7. At the close of the hearing I provided the applicant with an opportunity to tender an alternative design for the bathroom partition wall in the event that I determined the new opening proposed between the bedroom (Room 3.5) and the new bathroom (Room 3.4) was not acceptable. On 19 February 2019 a sketch was filed that provides an internal door in the proposed bathroom partition wall. This sketch is agreed between the experts as being acceptable and is annexed to this judgement. At par [75] I have provided directions to allow the Applicant, should they wish, to amend their modification application to reflect the appended sketch and this judgement.

The site and its locality

8. The site is rectangular and has an area of 111m². It has a primary street frontage to Lower Fort Street and a secondary street frontage to Downshire Street to the rear. The site contains a four storey terrace house.

Heritage Listings:

9. No. 51 Lower Fort Street is listed as part of a heritage item: “Terrace Group ‘Palermo Terrace’ including interiors” with the adjoining properties: No 47 - Wallan Billan; No 49 - Irene; No 51- Wendovir; and No 53 - Indarra. The site is also located within a heritage conservation area on the State Heritage Register under the Heritage Act 1977 (the Heritage Act). A Conservation Management Plan (CMP) for 51 Lower Fort Street endorsed by the Heritage Council of NSW applies to the site.

10. The SHR lists the significance of the Terrace Group "Palermo Terrace" including interiors as:

“Palermo Terrace has aesthetic significance as a fine example of a Victorian Italianate style terrace with filigree verandah detailing. It is an integral part of a precinct of State Significance, and forms an important visual component of the precinct as part of the streetscape of Lower Fort Street. The terrace has historic significance as it provides evidence of the substantial residential development that occulted alongside the growth of maritime industry at Millers Point in the 19th century. It is associated with earliest development of Lower Fort Street for entrepreneurs involved with the development of the port, and in particular the Nelson Family who owned the property from 1874 and 1903. They built Palermo Terrace for investment purposes in 1885, occupied nearby Bligh House at 43 Lower Fort Street and established Nelson Bros General Store and Drapery and General Western Steam Flour Mills in Orange.”

(Source: start="11">

The SHR listing for the terrace group contains the following details of the recommended management of the items:

“Recommended management:

The building should be retained and conserved. A Heritage Assessment and Heritage Impact Statement, should be prepared for the building prior to any major works being undertaken. Future works to be carried out in accordance with the Endorsed Conservation Management Plans (CMPs) for the terraces within the group. There shall be no vertical additions to the building and no alterations to the façade of the building other than to reinstate original features. The principal room layout and planning configuration as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces should be retained and conserved. Any additions and alterations should be confined to the rear in areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls and the CMPs. The uniformity of the terrace, including the rear wings, is to be be maintained.”

(Source: start="12">

The CMP includes a Statement of Significance for 51 Lower Fort Street (the subject site). It states:

“Number 51 Lower Fort street is an important part of the Millers Point Conservation Area and Millers Point and Dawes Point Village Precinct which have been identified as having State heritage significance. The subject site provides important evidence of the complex historical layering of the Millers Point and Dawes Point Area, illustrating the nineteenth-century pattern of settlement traceable to maritime and commercial activities, the redevelopment of the area by the SHT after the outbreak of the bubonic plague in 1900, and the subsequent long-term use of large residences for multi-tenant boarding houses. It is also an example of late nineteenth century speculative terrace development which retains important evidence of its original 1885 layout, fabric and detailing as well as its twentieth century use for multi-tenant residential accommodation.

Number 51 Lower Fort Street and the Palermo Terrance of which it is part are substantial representative examples of the Late Victorian Italianate architectural style and period, sharing many features with other terrace houses built during this era throughout Sydney. The aesthetic significance of the Terrace, and number 51 in particular, is notably enhanced by the extent to which the subject property retains so much of its original/early character, fabric and detailing, both externally and internally. The property’s aesthetic and landmark significance is also enhanced by its unique relationship to its Millers Point setting through its architectural character and elevated siting. Palermo Terrace, of which 51 Lower Fort Street is part, in an important residential streetscape/townscape element of the precinct and has social significance within the context of Millers Point and the Millers Point and Dawes Point Village Precinct arising from its 112 year use as a boarding house and its contribution to workers and community housing in the area.

The subject property has research potential for above-ground archaeological remains related to the structure of the terrace building but little for below-ground archaeological remains related to earlier site occupation, due to previous excavation and disturbance. It also provides a number of architectural research opportunities for investigation of original features (such as interior decoration, use of materials and construction techniques) that have been removed from similar residences of this style and period.

The subject property has been assessed as having State level heritage significance as part of the Palermo Terrace. This is formally recognised in the listing of the Palermo Terrace – including all four individual residences- on the NSW Heritage Register (SHR). The Palermo Terrace is also located within two heritage conservation areas of State level heritage significance (listed on the SHR) including the Millers Point Conservation Area and the Millers Point and Dawes Point Village Precinct Conservation Area.”

(Ex 2)

13. The subject site is within the Millers Point Conservation area which is listed on the NSW State Heritage register (SHR). The listing notes the significance of the conservation area as follows:

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

(Ex 2)

14. The subject site is also within the Millers Point and Dawes Point Village Conservation area which is also listed on the SHR. The listing notes the significance of the conservation area as follows:

“Millers Point & Dawes Point Village Precinct is of state significance for its ability to demonstrate, in its physical forms, historical layering, documentary and archaeological records and social composition, the development of colonial and post-colonial settlement in Sydney and New South Wales.

The natural rocky terrain, despite much alteration, remains the dominant physical element in this significant urban cultural landscape in which land and water, nature and culture are intimately connected historically, socially, visually and functionally.

The close connections between the local Cadigal people and the place remain evident in the extensive archaeological resources, the historical records and the geographical place names of the area, as well as the continuing esteem of Sydney's Aboriginal communities for the place.

Much (but not all) of the colonial-era development was removed in the mass resumptions and demolitions following the bubonic plague outbreak of 1900, but remains substantially represented in the diverse archaeology of the place, its associated historical records, the local place name patterns, some of the remaining merchants villas and terraces, and the walking-scale, low-rise, village-like character of the place with its central 'green' in Argyle Place, and its vistas and glimpses of the harbour along its streets and over rooftops, the sounds of boats, ships and wharf work, and the smells of the sea and harbour waters.

The post-colonial phase is well represented by the early 20th century public housing built for waterside workers and their families, the technologically innovative warehousing, the landmark Harbour Bridge approaches on the heights, the parklands marking the edges of the precinct, and the connections to working on the wharves and docklands still evident in the street patterns, the mixing of houses, shops and pubs, and social and family histories of the local residents.

Millers Point & Dawes Point Village Precinct has evolved in response to both the physical characteristics of its peninsular location, and to the broader historical patterns and processes that have shaped the development of New South Wales since the 1780s, including the British invasion of the continent; cross-cultural relations; convictism; the defence of Sydney; the spread of maritime industries such as fishing and boat building; transporting and storing goods for export and import; immigration and emigration; astronomical and scientific achievements; small scale manufacturing; wind and gas generated energy production; the growth of controlled and market economies; contested waterfront work practises; the growth of trade unionism; the development of the state's oldest local government authority the City of Sydney; the development of public health, town planning and heritage conservation as roles for colonial and state government; the provision of religious and spiritual guidance; as inspiration for creative and artistic endeavour; and the evolution and regeneration of locally-distinctive and self-sustaining communities.

The whole place remains a living cultural landscape greatly valued by both its local residents and the people of New South Wales.”

(Ex 2)

Planning Controls:

15. The modification application was made under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act). A number of preconditions are imposed on the consent authority, or in this case the Court, in regard to the use of this provision to modify a consent. In this matter the Court must be satisfied that:

• the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) (s 4.55(2)(a)).

• consultation has occurred with the Heritage Council of NSW in respect of the conditions imposed as a requirement of their concurrence to the consent or in accordance with the general terms of approval and the Heritage Council of NSW has not, within 21 days after being consulted, objected to the modification of that consent, and;

•  it has notified the application in accordance with the relevant planning controls and considered any submissions received.

16. I am satisfied that this modification application meets these preconditions.

17. The development application is integrated development pursuant to s 4.46(1) of the EPA Act as an approval for the works is also required under s 57 of the Heritage Act. A copy of the development application was forward to the Heritage Council of NSW for general terms of approval (GTA). A response was received on 22 March 2018. The GTA states that conditional approval is provided. The GTA’s provided the following conditions to exclude certain works:

“…

Additional conditions arising from this s96 (s96/2018/003) amendment:

DESIGN

2. The creation of an opening in the wall between the front room and the new bathroom in level 3 is not approved.

Reason: To avoid impact to original and exceptional fabric and be consistent with the endorsed CMP.

3. The proposed timber wall to the bathroom is not approved.

Reason: To avoid impact to a space graded as high significance and be consistence (sp.) with the provisions of the endorsed CMP.

4. The proposed roof hatch shall be installed in line with the existing roof hatch located on 49 Lower Fort St., adjoining the front parapet wall. The subject hatch must be installed within the existing rafters without the need to cut or remove any rafter.

Reason: To avoid views of the roof hatch from the public domain.”

18. The subject site, as an individual building, has a CMP endorsed by the Heritage Council under s 38A of the Heritage Act 1977 (the Heritage Act). A CMP is defined by this section of the Heritage Act as follows:

conservation management plan means a document that:

(a)  identifies the State heritage significance of an item, and

(b)  sets out policies and strategies for the retention of that significance, and

(c)  is prepared in accordance with the guidelines for the preparation of conservation management plans (if any) publicly issued from time to time by the Heritage Council.

19. The Heritage Act at s 62 provides the following matters for consideration in determining the application:

(a)  the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage,

(b)  the representations, if any, made with respect to that application under section 61 (3),

(c)  such matters relating to the conservation of that item or land as to it seem relevant, and

(c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and

(d)  such other matters as to it seem relevant.

20. The CMP at Section 6.2.2 details ‘Guiding Principles’ to be applied in considering the constraints and opportunities present in 51 Lower Fort Street. It notes:

“Conservation should be an integral part of the management of 51 Lower Fort Street and should follow the principles contained in The Burra Charter, in particular have regard to the following articles:

Article 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.

Article 3.2- Changes to place should not distort the physical or other evidence it provides, nor be based on conjecture.

Article 7.1 – Where the use of a place is of cultural significance it should be retained.

Article 8- conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place.”

(Ex 2)

21. The subject site is located within the R1 General Residential zone under the Sydney Local Environmental Plan 2012 (LEP 2012). The approved use of the site is as a single dwelling which is permissible in the zone. The development is compliant with the relevant development standards in LEP 2012.

22. In addition to listings in the SHR the site is mapped within the Millers Point heritage conservation area under LEP 2012 and cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, ‘Heritage Conservation’ at subcl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views, to conserve archaeological sites and aboriginal objects and places of significance. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).

21. Clause 6.21 of LEP 2012 applies to the development. The objective of the clause is ‘to deliver the highest standard of architectural, urban and landscape design’. At subcl (3) the consent authority is required to be satisfied that ‘in the opinion of the consent authority, the proposed development exhibits design excellence’ in order to have power to grant consent to development. In forming that opinion the consent authority is required to have regard to the following factors (cl 6.21(4)):

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c)  whether the proposed development detrimentally impacts on view corridors,

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

(i)  the suitability of the land for development,

(ii)  the existing and proposed uses and use mix,

(iii)  any heritage issues and streetscape constraints,

(iv)  the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  the bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii)  the achievement of the principles of ecologically sustainable development,

(ix)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x)  the impact on, and any proposed improvements to, the public domain,

(xi)  the impact on any special character area,

(xii)  achieving appropriate interfaces at ground level between the building and the public domain,

(xiii)  excellence and integration of landscape design.

24. Sydney Development Control Plan 2012 (DCP 2012) applies to the site. At 3.9.5: Heritage Items DCP 2012 provides the following controls relevant to the proceedings:

“(1) Development affecting a heritage item is to:

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

…

(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.”

25. DCP 2012 provides controls for Additions and Alterations at 4.14. The objectives of these controls are;

“(a) Achieve sympathetic development and maintain the fabric of existing terraces

(b) protect and respect the traditional character and heritage significance of heritage items and heritage conservation areas and contributory buildings by:

(i) ensuring additions are of an appropriate scale and appearance and relate to the scale and character of the existing building and the street.

(ii) minimising alterations of the original building and respecting the uniformity of an intact pair, group or row of buildings.”

Public Submissions

26. The development application was notified in accordance with the requirements of DCP 2012. The Council received no submissions as a result of the notification of the modification application.

Experts:

27. The Court heard expert planning and heritage evidence from Mr Tasman Storey, for the applicant. The Council relied on planning evidence from Ms Marie Burge and heritage evidence from Mr John Poulton. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process a joint expert report was prepared which was tendered as Exhibit 3.

Will the development have an unacceptable impact on the heritage significance on the item: Terrace Group "Palermo Terrace"?

The Roof Hatch

28. Consistent with the GTAs of the Heritage Council of NSW (refer par [17]) the heritage experts agree that the proposed roof hatch is capable of being supported. They note:

“The skylight that has been constructed is more or less in line with that at No. 49. Whilst it has resulted in a removal of a rafter approx. 800mm in length, the heritage impact is considered to be minor. The as built works (size and location), subject to the replacement of the skylight with a hatch, with a matching roof slate cover, is agreed.”

(Ex 3)

29. The necessary condition to implement this agreement is contained in Condition 1B (Ex 4).

30. In relation to the roof hatch I accept the evidence of the heritage experts that this work is appropriate and will have a marginal impact on the significance of the item. I accept their proposed condition of consent in this regard.

The timber partition wall

31. In the joint report the experts agree that ‘any works that are undertaken within the approved bathroom are to maintain the ability to interpret the spatial qualities of the room. Should a partition wall be approved within the bathroom for storage purposes, the wall must have clear glazing above 2.1m. The partition wall should be constructed to be entirely reversible’. (Ex 3)

32. The above agreement is incorporated in the draft conditions of consent at Condition 1C (Ex 4).

33. The experts disagree whether a door is required between the storage area created by the new partition wall or not. This question is influenced by whether the new opening from the bedroom to the bathroom is approved. As is clear from the plans extracted at par [35] the partition wall, in its current design, becomes problematic in the case that the new opening is not approved.

34. On the basis that the proposed partition wall is constructed in a manner that is entirely reversible I accept that such a partition in Room 3.4 may be acceptable. However, given my finding at par [71] the form of the partition would need to be altered to accommodate the lack of door from the bedroom to the bathroom. An agreed sketch of how such a door could be accommodated has been filed and is annexed to this judgement.

The new opening

35. The works in contention are detailed in the following extract of the architectural plans (Ex A):

36. It is Mr Storey’s evidence that the development will not have an unacceptable impact on the items heritage significance. Further he argues that the development is reasonable and should be approved. Broadly his reasoning is as follows:

• the Council and the Heritage Council of NSW have allowed similar penetrations in ‘many other buildings in the area with high or exceptional significance. The approved works within the building already allow a number of openings in exceptions walls and there should be no difference in the approval of the opening of this wall’ (Ex 3). Further that the implementation of the CMPs in the Millers Point precinct has been inconsistent.

• the client’s specific medical condition and their constraints should be considered in the assessment of the acceptability of the works,

• that there is nothing individually significant about the fabric proposed to be removed to make the opening that is not represented, or retained, in fabric elsewhere in the terrace.

• He disagrees with the assessment of the wall as being exceptional fabric in the CMP. He argues that the walls significance may lie in the floor plan layout which is not affected by the proposed works.

37. Further it was Mr Storey’s evidence that he has been extensively involved as a Heritage Architect in the Millers Point precinct since 2012 and specifically in properties in Lower Fort Street. He notes that he has been engaged in the capacity of a Heritage Architect on some 24 individual properties in Millers Point.

38. It was Mr Storey’s oral evidence that in these projects, and in the previous approvals for 51 Lower Fort Street, the CMP has been applied flexibly. He noted that in earlier approvals for the subject property openings had been approved in rooms of exceptional significance that were not envisaged by the CMP.

39. Mr Storey argued that the position of the Respondent in these proceedings is inconsistent with this previous approach and the precedents of other approvals given in proximity to the subject site that the Applicant has detailed in Exhibit C.

40. In the alternative Mr Poulton does not support the creation of a new door opening. He argues that the floor plan provides an alternative access to the bathroom, an existing door from the landing. He argues that:

• the wall relates to the original c1885 construction and internal layout of the building and is identified in the CMP as being of ‘exceptional significance’.

• the works are inconsistent with the Burra Charter* which provides that the approach should be one of “doing as much as necessary but as little as possible”.

• given the CMP is site specific examples of approved openings within other buildings with different CMPs is ‘not adequate justification in itself for the removal of fabric identified as being of exceptional significance within this terrace’ (Ex 3).

* Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013 (Burra Charter)

41. In his oral evidence Mr Poulton noted that the proposed insertion of the opening between rooms 3.5 and 3.4 would have ‘some impact’ on the items significance. He also noted that in his view the works on 51 Lower Fort Street as a whole had reached a point that further impact on the significance of the item was not able to be supported in circumstances where other access to the bathroom is available without any impact on significant fabric.

42. Ms Burge agrees with Mr Poulton that a new opening is not justified when the existing landing provides an access to the bathroom. Acknowledging the specific access concerns of the owner of the property Ms Burge concludes that other means of improving accessibility could be explored such as additional lighting, handrails, floor tactile tiles and stair guards in preference to the additional heritage impact arising from a new opening. She concludes:

“It is unacceptable and unreasonable to create additional heritage impact contrary to an endorsed CMP when other more reasonable alternatives with less physical impact can be explored..”

(Ex 3)

Submissions

43. The applicant relies on an affidavit from Narendra Kumar Jain, the husband of the applicant. The affidavit outlines specific medical circumstances that affect Mr Jain. In part the affidavit states:

“…

I have been advised by my doctor that I have increased risk of fall.

The current access to the bathroom from my bedroom at 51 Lower Fort Street Dawes Point requires use of a landing next to the stairwell; I fear that in the event of a dizzy spell at night I may stumble or fall down the stairs while I’m trying to walk to the bathroom.

…”

(Ex D)

44. Mr White submits, on the basis of Mr Storey’s evidence, that the proposed opening should be approved. Whilst he accepts that the works will have some impact, he argues on the evidence it is not an impact sufficient to harm the significance of the item or warrant the refusal of the application.

45. Mr White argues that it is appropriate for the Court to give weight to the approved works in the adjoining terrace (49 Lower Fort Street) which also forms part of the listing: Terrace Group "Palermo Terrace". He notes that 49 Lower Fort Street has approval for an opening between Room 3.4 and 3.5 in a manner consistent with the opening sought by this modification application.

46. Further Mr White submits that the Council’s alteration and addition controls within DCP 2012 (refer par [25]) emphasise the need for similar changes to be made to intact pairs of heritage buildings. He argues that this provision gives weight to the approval of the opening as it will maintain their consistency.

47. Mr White places weight on the number and variations to the CMP already authorised by the Council in relation to the subject property that maintain the residential use of the property whilst allowing it to be updated to ‘modern living standards’. He notes that in oral evidence the experts agreed those standards include provision of an ensuite and ageing in place. He argues that it is reasonable to vary the CMP to allow the opening as it is consistent with the previous variations of the CMP and will allow the provision of an ensuite which is consistent with the expectation of ‘modern living standards’.

48. In conclusion Mr White argues that in the absence of the identification of how the works will impact on the significance of the item (and not the individual terrace) there is nothing exceptional about the fabric that is to be affected by the opening that would enable a conclusion that the development consent should be refused.

49. In the alternative Mr Singh argues that the listing of the terrace as part of a State heritage item should be given primacy. He notes that 51 Lower Fort Street has its own CMP (pursuant to s 38A of the Heritage Act) which emphasises the intactness of the property as a contributor to its significance and its value as part of the listing: Terrace Group "Palermo Terrace".

50. Mr Singh emphasises that the Council does not support the creation of a new opening in significant fabric on the following grounds:

1. the impact of the works needs to be considered in the context of the progressive loss of significance through the approved alterations and additions. He notes that on the evidence of Mr Poulton the ‘works on 51 Lower Fort Street as a whole had reached a point that further impact on the significance of the item was unable to be supported’. Further this cumulative risk is highlighted in the CMP which states: ‘the progressive erosion/loss of elements and fabric and/or changes to spaces which reduces the overall integrity/intactness of the property can also reduce heritage values...’ (Ex 2).

2. that the convenience of the occupants is not a sufficient reason to warrant the further degradation of the significance of the item,

3. that the application is inconsistent with the cautious approach sought by the CMP, particularly Policy 15. He argues that the CMP requires examination of feasible alternatives to improve the safety of the existing access to the bathroom, which in this case has not been done. He notes that in the joint report Ms Burge identifies a number of alternatives that have not been explored by the Applicant.

51. In response to the argument of Mr White that the CMP has been applied flexibly to date, and that the same flexibility is warranted in this case, Mr Singh argues that the justification provided is insufficient to warrant the variation where significant fabric is to be removed.

52. Mr Singh concludes by asserting that the applicant knowingly purchased a State heritage item in a circumstance where a CMP had been endorsed by the NSW Heritage Council. He argues that in these circumstances the applicant was aware of the constraints of the dwelling and the CMP’s framework that articulated the limitations on further changes to accommodate an improvement in the standards and convenience of the dwelling.

Findings

53. None of the expert evidence directly addresses the impact of the proposed works on the significance of the item as it is listed. The experts primarily focus on 51 Lower Fort Street itself. Importantly the subject terrace is listed on the SHR as part of a group of terraces, not as an individual terrace. The relevant statement of significance is detailed at [10]. The question I am asked to determine is whether the development will have an unacceptable impact on the heritage significance of the item: Terrace Group "Palermo Terrace”, not specifically on Number 51 Lower Fort Street.

54. In considering this question I have given weight to the following:

1. The SHR listing for the Terrace Group "Palermo Terrace" under ‘Recommended management options’ notes that the principal room layout and planning configuration of the terraces should be retained and conserved to maintain the significance of the item. Further it states that the uniformity of the terrace, including the rear wings, is to be maintained.

2. The subject property has an individual CMP, which notes at 5.5: Statement of Significance that: ‘The aesthetic significance of the Terrace, and number 51 in particular, is notably enhanced by the extent to which the subject property retains so much of its original/ early character, fabric and detailing, both internally and externally’ (Ex 2)

3. The CMP acknowledges 51 Lower Fort Street, and the group, share features with other terrace houses. The CMP observes that this item is of particular note due to ‘its level of intactness, including retention of fabric/evidence (of original architectural and design qualities, materials, details and finishes), both internally and externally, to an extent that is becoming increasingly rare in the City’. (Ex 2)

4. In addition to the comments regarding the items intactness, the CMP also notes that four storey conjoined terraces in groups of four in Sydney are rarer and notes the Palermo Terraces are unusual in this regard.

55. I am satisfied that the intactness of 51 Lower Fort Street, as identified in the CMP, is a relevant consideration in evaluating the impact of the proposed works on the significance of the Palermo Terraces as a whole.

56. The endorsed CMP prepared for 51 Lower Fort Street identifies elements, spaces and fabric and allocates them a range of significance. At Policy 32 of the CMP it notes that those elements, spaces and fabric noted as being of exceptional or high significance should be retained and conserved.

57. The location of the proposed ensuite (referred to as Room 3.4 in the CMP) is noted as being of high significance.

58. The bedroom (referred to as Room 3.5 in the CMP) is noted as being of exceptional significance.

59. The stair well (referred to as Room 3.1 in the CMP) is noted as being of high significance.

60. Whilst there is some ambiguity in the CMP whether the wall between Rooms 3.4 ad 3.5 is of ‘exceptional’ or ‘high’ significance both parties accept that the application of the policies in the CMP make this distinction inconsequential in the proceedings.

61. Section 3.4 of the CMP contains a ‘Schedule of Significant Elements’. In relation to the internal elements the CMP states:

“Internally, the building retains clear and legible evidence of its original layout, as well as much of its original detailing and fabric. With this high level of integrity, the residence retains important information on the original hierarchy of its internal spaces as demonstrated by their size, location and detailing.

…”

(Ex 2)

62. The CMP notes as significant the layout of the internal spaces, the location and size of opening between the spaces and evidence of the hierarchy of spaces and in detailing throughout the building.

63. I accept the evidence of Mr Poulton that there will be some impact from the new opening on the heritage significance of the item. From my review of the evidence, and with the benefit of a site view, I am satisfied that the principal room layout and planning configuration of the terrace will be impacted by the insertion of the proposed door way from the bedroom (Room 3.5) to the bathroom (Room 3.4). The principal room layout, in its original form, is replicated across the group of four terraces and is noted in the recommended management options in the SHR listing as being of importance to retain.

64. Room 3.5 is the principal bedroom in the terrace with provision of a fireplace, French doors and relatively generous proportions. I am satisfied that the insertion of a new opening will reduce the significance of Room 3.5, noted as being of exceptional significance.

65. Having concluded that there is an impact on the significance of the item that will arise from the works, it is necessary to consider whether that impact is acceptable.

66. Important to the question of reasonableness the CMP recognises that ‘changes will be required to enable the property to meet modern living standards, particularly in regards to modern kitchen, bathroom and laundry facilities as well as modern services…’ (Ex 2).

62. I note that the heritage experts agreed in oral evidence that an ensuite bathroom is consistent with ‘modern living standards’. Mr Poulton’s evidence was that these standards need to be considered in the context that the property forms part of a State listed heritage item.

63. I agree with Mr Poulton’s evidence that the provision of what is considered modern living standards needs to be balanced against the heritage constraints of the site. I am satisfied that the provision of access from the bedroom to the proposed bathroom, albeit through the stair well, is not antipathetic to the achievement of modern living standards. Whilst I have given weight to the submission of the owner in regards to their specific mobility concerns I am satisfied that in this circumstance they do not offset the impact that will arise from the insertion of a new opening and the resultant effect on the room proportion and self-containment of Room 3.5 which adds to its significance.

64. Importantly in the CMP’s discussion of the grades of significance of the fabric and spaces of 51 Lower Fort Street it notes that: ‘… the progressive erosion/loss of elements and fabric and/or changes to spaces which reduces the overall integrity/intactness of the property can also reduce heritage values, particularly for a property such as 51 Lower Fort Street which retains a significantly high level of original/ early fabric/ evidence.’ (Ex 2) I am satisfied that the cumulative impact of works on the heritage significance is a relevant consideration in determining the reasonableness of the impact sought by this application.

65. In this matter I am not satisfied the impact on the significance of the item is acceptable. I find that the cumulative impact that arises from the modifications sought by this application render the proposed new opening between Rooms 3.5 and 3.4 unacceptable. I am satisfied that the new opening is inconsistent with the Australian ICOMOS Burra Charter which provides that the approach to management of significance should be one of “doing as much as necessary but as little as possible”.

66. I do not accept the submission of Mr White that the application of Council’s DCP control at par [25] adds weight to the approval of the opening as it will mirror the works at 49 Lower Fort Street. By reference to the whole of the provision I am satisfied that the control at 4.14(b)(ii) seeks to maintain uniformity in heritage items primarily in relation to original fabric, and not as an encouragement to the ‘matching’ of ongoing modern alterations and additions to items.

67. I find that the proposal would diminish the contribution of Number 51 Lower Fort Street to heritage significance of the Terrace Group: Palermo Terrace (SHR 906) because the proposal will alter the layout of the principal rooms, and impact significant fabric when reasonable alternatives are available.

68. The impact of the proposal on the heritage significance of the Palermo Terraces is of sufficient consequence that, in my view, the new opening sought should be refused.

Directions

74. On the basis of the preceding I propose to approve those modifications sought to the consent in relation to the roof hatch, and a partition wall in Room 3.4, but only after providing the applicant with an opportunity to amend the plans in Exhibit A to delete the proposed opening between Room 3.4 and 3.5 in accordance with my findings and generally in accordance with the agreed plan annexed to this judgment.

75. My directions are:

1. The applicant is to provide amended plans to the Council and to the Court reflecting my reasons for judgment within 7 days of this direction.

2. The Council is to prepare final conditions of consent and provide a copy to the applicant and to the Court within 7 days of receipt of the amended plans.

3. If I am satisfied that the amended plans and conditions accord with my reasons for judgment I will make final orders in chambers upholding the appeal and granting consent to the modification application subject to the Council’s final conditions of consent.

4. Liberty to relist the matter before me on 48 hours’ notice in the event of disagreement about the amendments or conditions of consent should the need arise.

Addendum made on 10 April 2019

76. In accordance with the directions in paragraph [75] of my judgment delivered on 1 March 2019, the parties have provided me with a copy of the agreed draft conditions of consent and amended plans. Having formed the view that they accord with my reasons for judgment, I am now satisfied that consent should be granted.

77. Accordingly, the final orders of the Court are:

1. The applicant is granted leave to rely on the amended plans at Annexure A;

2. The appeal is upheld;

3. Modification application D/2017/130/B is approved, in accordance with the amended plans and conditions as set out in Annexure B;

4. The exhibits are to be returned, with the exception of Exhibits A and 1.

…………….

D M Dickson

Commissioner of the Court

Annexure A

Annexure B

Amendments

12 April 2019 - See Addendum at [76]-[77]

Decision last updated: 12 April 2019