Paul Ramsay Foundation Limited v The Council of the City of Sydney

[2023] NSWLEC 1137

Land and Environment Court

New South Wales

Medium Neutral Citation:

Paul Ramsay Foundation Limited v The Council of the City of Sydney [2023] NSWLEC 1137

Hearing dates:

15 March 2023

Date of orders:

27 March 2023

Decision date:

27 March 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application no. D/2021/169 for the extension of a previously approved internal lift at 262 Liverpool Street, Darlinghurst is determined by refusal of consent.

(3) The exhibits are returned, except for A, 1, 3, 4 and 5.

Catchwords:

APPEAL – development application – consent sought for the extension of a previously approved internal lift to access a roof terrace– site is listed as an item of local heritage significance and assessed as having State heritage significance – impact of the development on heritage building

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.21, 6.21C, Sch 5

Texts Cited:

Sydney Development Control Plan 2012

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

Category:

Principal judgment

Parties:

Paul Ramsay Foundation Limited (Applicant)
The Council of the City of Sydney

Representation:

Counsel:
M Seymour (Applicant)
N Hammond (Respondent)

Solicitors:
Swaab (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2022/205039

Publication restriction:

Nil

Judgment

Background

1. On 24 May 2019 the Local Planning Panel (Panel), in exercising the functions of the Council of the City of Sydney, granted development consent for the adaptive reuse of the former First Church of Christ Scientist heritage building at the corner of Forbes and Liverpool Streets, Darlinghurst as office premises.

2. The application was recommended for approval under cl 5.10(10) of the Sydney Local Environmental Plan 2012 (LEP) on the basis that it achieved a positive heritage outcome, notwithstanding that the use of the building for the purposes of office premises is not permitted within R1 General Residential zoning which applies to the site. The approved development included a two-storey addition to the eastern wing, a new roof top terrace/breakout space, new attic area, basement carparking and associated works.

3. On 5 May 2021, development consent was granted to the applicant for an internal fit out of the office premises. The Panel again accepted that the proposed works were generally compatible with the heritage significance of the building, subject to conditions. The conditions addressed amongst other things the lift on the northern façade of the heritage building and restricted the use of the roof terrace to employees and invitees of the applicant. Patrons of the café and auditorium were expressly excluded from the roof terrace (Ex C Tab 4).

4. On 2 March 2021 the applicant made application (D/2021/169) for an extension of the approved internal lift on the eastern side of the heritage building to the roof level, together with a small, enclosed area at the roof level to provide weather protection for the lift, noting, that the open terrace had previously been approved.

5. On 27 July 2021 that development application was determined under delegation of Council and was refused consent.

6. The applicant appealed that decision to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and the matter was listed for two-day hearing including a site view.

7. During the hearing, the applicant was granted leave by the Court to rely on amended plans (Ex A). The amendments were minor and simply incorporated the continuation of the existing cladding to the new development beyond the vertical shadow line as recommended by all the experts.

Issues

8. The Council raises 6 contentions in its Statement of Facts and Contentions (SOFC) dated 12 August 2022 (Ex 1). The issues boil down to the following:

• Permissibility – that the development is prohibited development within the R1 General residential zone which applies to the site and contrary to cl 5.10(10)(a), (b) and (d) of the LEP.

• Building height – that the development exceeds the 15m height of buildings control under cl 4.3 of the LEP without proper justification under cl 4.6 of the LEP.

• Heritage – that the development adversely affects the heritage significance of the heritage Item on the site, and therefore is inconsistent with the heritage conservation objectives in cl 5.10 of the LEP and cannot be approved under cl 5.10(4) of the LEP.

• Design excellence – that the development is inconsistent with the design excellence provisions of cl 6.21C of the LEP, it presents as “afterthought” providing an exposed box erected on a highly visible location on the site with no visual relationship with either the retained heritage Item or the contemporary addition to the site.

• Public interest – that the development is an intensification of the commercial use on the site and as such generates unacceptable amenity impacts in the residential zone and contrary to the public interest.

• Accessible design – that the site has an existing approval for equitable access to the roof terrace which does not contravene the relevant planning controls and while the proposed development would provide ease of access to the roof terrace, the erection of a lift and lift overrun would have significant and detrimental impacts on the design excellence and heritage conservation outcomes already achieved on the site and contrary to clause 3.12.1(2) of the Sydney Development Control Plan 2012 (DCP).

9. Before turning to these issues, it is appropriate to briefly outline the statutory context and relevant policies in which they arise.

Planning framework

10. The following planning legislation, environmental planning instruments, and development control plans and policies apply to the site:

1. Environmental Planning and Assessment Act 1979 (EPA Act)

2. Sydney Local Environmental Plan 2012 (LEP)

3. Sydney Development Control Plan 2012 (DCP)

11. The site is located within the R1 – General Residential zone.

12. The site is listed as an item of local heritage significance under Sch 5 of the LEP as the 'First Church of Christ Scientist including interior', Item number 1357. While not on the State Register, the building has been assessed as having State significance.

13. It is also located within the Oxford Street and Victoria Street Heritage Conservation Area, listed under Sch 5 of the LEP, Item number C12.

14. The Statement of Significance for the heritage listed building provides as follows:

“The First Church of Christ Scientist Sydney, at the corner of Forbes and Liverpool Streets, Darlinghurst, is of state significance as a rare and highly intact example of the Inter-War Beaux-Arts style adapted for a religious use. It is a monumental building with landmark quality. Designed by S. George Thorp, from the prominent architectural firm Peddle Thorp and Walker, the church was constructed in 1926-1927 as the second permanent church for this Sydney congregation.

The church auditorium is of particular significance for its grand scale and spatial qualities. The interiors, including floor tiles, lights, pews, furnishings and fittings, are highly intact and demonstrate the continued occupation of the church from 1927 until 2010 and the high value placed upon it by the Sydney congregation. The pipe organ is fully functional. Originally built in 1927, the organ is a late example of the work of J.E. Dodd. In 1935 it was rebuilt with electric action by the well known firm of Whitehouse Bros. The organ is considered to be one of the most important historic organs from the post World War 1 period in New South Wales.

The church has high social and historical significance as a religious building in use from 1927 until 2010, both for the local Sydney congregation who used the building, and the wider Christian Scientist Church in the Sydney region, for whom the First Church of Christ Scientist was considered the “mother” church.

The former Auditorium space has been successfully adapted for residential use, in a reversible manner, retaining the original imposing form of the Inter-War Beaux-Arts character of the building.

Criteria a)

Historical Significance

The First Church of Christ Scientist Sydney is of historical significance as the second permanent church for the Sydney congregation which was constructed in 1927.

Criteria b)

Historical Association Significance

Associated with architect S. George Thorp, from the prominent architectural firm Peddle Thorp and Walker.

The organ, is a late example of the work of the noted South Australian organ builder, Josiah Eustace Dodd (1856-1952) of Adelaide. It was rebuilt with new action and soundboards by the well known firm of Whitehouse Bros of Brisbane in 1935.

Criteria c)

Aesthetic/Technical Significance

The First Church of Christ Scientist Sydney, at the corner of Forbes and Liverpool Streets, Darlinghurst, is of state significance as a rare and highly intact example of the Inter-War Beaux-Arts style adapted for a religious use. It is a monumental building with landmark qualities. The church auditorium is of particular significance for its grand scale and spatial qualities. The interiors, including floor tiles, lights, pews, furnishings and fittings, are highly intact.

The pipe organ has aesthetic and technological significance for its combination of Whitehouse durable mechanical work and excellent tonal qualities of the Dodd pipework.

Criteria d)

Social/Cultural Significance

The church has high social significance both for the local Sydney congregation who used the building from 1927 until 2010, and the wider Christian Scientist Church in the Sydney region, for whom the First Church of Christ Scientist was considered to be the “mother” church.

The organ has social significance to organists and the general public attending organ recitals and is considered to be one of the most important historic organs from the post World War 1 period in New South Wales.

Criteria f)

Rarity

Rare example of a highly intact example of an Inter-War Beaux-Arts style church.

The organ is a rare surviving work in New South Wales of the noted South Australian organ builder JE Dodd and even rarer example of his later post World War 1 work.

Integrity/Intactness

Highly intact”

(Ex B Tab 8)

15. The Council’s SOFC records that the proposed development is ancillary to a previously approved office premises which is prohibited within the R1 – General Residential zone – albeit approved under cl 5.10(10) of the LEP.

16. A summary of the key numerical controls from the LEP and the DCP follows:

1. Floor Space Ratio (FSR) (cl 4.4): The site is subject to a FSR control of 1.75:1 under the LEP.

The proposed development has a FSR of 1.58:1 and complies.

2. Height in metres (cl 4.3): The site is subject to a height control of 15 metres under the LEP.

The proposed development is 16.11 metres in height and does not comply and the applicant relies on a written request under cl 4.6 of the LEP to relax the standard in this case.

3. Height in storeys (clause 4.1.1): The site is subject to a maximum height in storeys control of 4 storeys under the DCP.

The proposed development is 4 storeys in height and complies.

17. Clause 5.10 of the LEP relevantly provides:

5.10   Heritage conservation

Note—

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

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

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

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

(c)  to conserve archaeological sites,

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

…

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

…

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

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

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

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

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

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

18. Clauses 6.21 and 6.21C of the LEP provides:

6.21 Objective

The objective of this Division is to deliver the highest standard of architectural, urban and landscape design.

6.21C Design excellence

(1) Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

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

(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

19. Section 3 of the Council’s DCP deals with Heritage and the provisions therein are consistent with the provisions of the Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 2013 (The Burra Charter).

20. The site is located in the Darlinghurst West Locality Statement outlined in clause 2.4.12 of the DCP. The development is said to adversely impact the heritage Item contrary to clause 3.9.5(1)(d) and (f) and to be inconsistent with the character of the conservation area contrary to clause 3.9.10 of the DCP.

Expert evidence

21. Expert evidence in relation to heritage was provided by Ms Polkinghorne, for the applicant and Mr Poulton, for the Council.

22. Expert evidence in relation to planning and urban design was provided by Mr Barwick and Mr Haddow, for the applicant and Mr de Smeth and Ms Pressick, for the Council.

Resident evidence

23. Two local objectors gave oral evidence onsite at the commencement of the hearing. They raised concerns about an increase in amplified noise directly to the adjoining residential flat building, Beaufort Court and nearby buildings, light pollution from more frequent use of the roof terrace, intrusion of residential privacy from participants looking at and into domestic rooms, and disturbance from increased waste collection generated by an intensification of the use of the roof terrace.

24. These matters supplemented the matters raised in the 22 written submissions received by the Council through the notification process which were produced to the Court in the Council’s bundle.

The site and locality

25. The site, at 262 Liverpool Street, Darlinghurst is legally described as Lot 1 in Deposited Plan 174206. It is located at the corner of Forbes and Liverpool Streets, Darlinghurst and has an area of approximately 2077.7 sqm.

26. The heritage building is a part three and part four storey brick and cement rendered building which was designed and constructed in the Inter-War Beaux­-Arts style and adapted for a religious use. It is composed of two distinct elements, the larger of which houses the main auditorium and the smaller the portico, entry foyer and administrative offices.

27. There is a Conservation Management Plan (CMP) for the heritage Item. It was prepared by Mr Graham Brooks in 2013 and most recently updated by NBRS Architecture Heritage in 2018 (Ex B Tab 7). This CMP informs the adaptive reuse of the building and outlines a schedule of Conservation Works and a Maintenance Plan. The terms “fabric”, “place preservation”, “reconstruction”, “restoration”, “adaptation” and “conservation” used throughout the CMP adopt the definitions from The Burra Charter. At par 4.9.3, the CMP identifies the relative significance of the elements and spaces on the site and buildings in a series of ‘significance grading diagrams’. These diagrams need to be read with the table and explanations at par 4.9.2. The gradings of significance are based on the gradings included in the Heritage Office’s Guideline ‘Assessing Heritage Significance’ (2001). Relevantly, the south elevation of the building (facing Liverpool Street) is graded as “Exceptional” and described in the following terms:

“The distinctive architectural expression, bulk and scale of the building is of exceptional significance.

The external Inter War Beaux Arts architecture design and composition of the building with the strongly expressed base storey, giant columns and classical cornice and Liverpool Street portico, implementation in three tones of cement render.

External masonry walls of the north, west and south facades, including detailing, materiality, and pattern of openings.”

28. “Exceptional” meaning:

“These spaces/elements are of exceptional cultural significance for historic, aesthetic, scientific or social values. they include rare or outstanding building fabric and retain an exceptional degree of integrity and intactness from their original construction or later significance period. They play a crucial role in the overall significance of place.”

29. Immediately to the north of the site at 198-200 Forbes Street, Darlinghurst, is a five-storey residential flat building with a pair of single storey garage structures and hardstand carparking above. Immediately to the east is 278 Liverpool Street, Darlinghurst, a three-storey terrace used as an art gallery/museum. This building is also listed as an item of local heritage significance under Sch 5 of the LEP as 'former house Hilton including interiors and front fence', Item number 1358.

29. To the south, on the opposite side of Liverpool Street is a row of two and three-storey attached terrace dwellings and a seven-storey residential flat building (337-339, 341, 343, 345 and 347 Liverpool Street, Darlinghurst). All of these buildings are listed as items of local heritage significance under Sch 5 of the LEP as follows: 'Terrace group (337 Liverpool Street, Darlinghurst) including interiors and front fence' (Item number 1365), 'Terrace group (339 Liverpool Street, Darlinghurst) including interior and front fencing' (Item number 1366), 'Terrace group including interiors and front fencing' (Item number 1367), 'Flat building "Mont Clair" including interior and front fence' (Item number 1368).

30. To the west, on the opposite side of Forbes Street is the eastern elevation of a two-storey attached terrace dwelling (260 Liverpool Street, Darlinghurst) and a pair of two storey attached terrace dwellings (251 and 253 Forbes Street, Darlinghurst). All these buildings are listed as items of local heritage significance under Sch 5 of the LEP as follows; 'Terrace house including interior (Item number 1356)', 'Terrace group including interiors' (Item number 1313).

31. The aerial photo below shows the site in its built context. The blue area is the roof of the proposed extended lift to the roof. The red bracket identifies a view to the main entry from the footpath opposite in Liverpool Street. A viewing point that the Council's experts described as the main view to the entry of the building from the adjacent footpath which is identified in the CMP as having exceptional heritage value.

Figure 15.1 View of proposed lift extension standing on the southern side of Liverpool Street looking north (Ex 4)

Heritage – Contention 3

33. The Council submits that when approving the contemporary addition to the heritage Item in 2018 it carefully considered the impact of those works on the heritage Item and assessed that those works were acceptable because they ensured that the original fabric of the Item and its prominence when viewed from the public domain was retained. It submits that the same cannot be said for the proposal in this DA. In short, the Council contends that the extended lift will be “…a distracting, intrusive element due to its highly visible location near Liverpool Street and lack of integration with the approved development on the site”. And, while the approved use has been assessed as compatible with the significance of the heritage Item, the Council has assessed that the proposed extension of services (ancillary to the use) will have an adverse impact on the Item, which is contrary to clause 3.9.5(1)(d) of the DCP. As such, the development will not achieve the objective in cl 5.10(1)(a) of the LEP to “conserve the environmental heritage of the City for Sydney”.

34. Additionally, the Council contends that the proposed development offends clause 3.9.5(1)(f) of the DCP in that it reduces and obscures the heritage significance of the Item. Furthermore, by its form and height the development is said to be incompatible with the surrounding built form and urban patterns of the heritage conservation area and nearby heritage items and contributory items contrary to clause 3.9.6(1) of the DCP and the objective in cl 5.10(1)(b) of the LEP which seeks to “conserve the heritage significance of heritage items and heritage conservation areas”.

35. It is also contended that the development will adversely impact the heritage significance setting and views of the heritage conservation area and heritage Items: objectives (a) and (b) of cl 5.10(1) of the LEP. As such, the Council submits that the development is not in keeping with the unique character and design of the locality contrary to the Darlinghurst West Locality Statement under clause 2.4.12 of the DCP.

36. The above contentions were addressed by the heritage experts in a joint report and orally at the site view. Needless to say, they disagree about the acceptability of the impact of the development on the heritage Item and the conservation area.

Ms Polkinghorne

37. In summary, Ms Polkinghorne gave evidence that the development is sympathetic to the approved development and not highly visible because it can only be seen from a very limited portion of Liverpool Street. It is her considered opinion that the extension reads clearly as part of the approved development, and, as such, does not alter how the significance of the original components of the heritage Item are understood. Because the expression of the lift by its form and the use of materials already exists, Ms Polkinghorne said that if the development is approved the result will be an integrated approach with a less than minimal impact on the heritage Item and its setting and no impact on significant fabric, elements or spaces (Heritage JER, p 9 par 19.1).

38. In addressing the objectives of cl 5.10(1), Ms Polkinghorne said that if the development is approved then the predominant aesthetic qualities of the heritage Item, being a church designed in the Inter-War Beaux-Arts style, will be retained and remain visible from the public domain allowing the building to continue to contribute to the surrounding conservation area. It is her considered opinion that the scale and location of the proposed development neither detracts from nor obscures nor alters the setting of any of the heritage items in the vicinity of the site not within the conservation area. Therefore, the heritage significance of these elements is retained. The above reasoning also supports her view that the development does not reduce or obscure the heritage significance of the Item: clause 3.9.5(10)(f) of the DCP.

39. Accepting that the CMP Policy 10 contemplates “changes that would result in a strong adverse effect on the significance of the heritage item,” Ms Polkinghorne described the proposed works as minor and the scale and location of the lift extension as clearly associated with the approved addition to the building” (Heritage JER p 15 par 25.1).

40. In terms of Policy 11 she gave evidence that the proposed development is not a new use, nor does it introduce new uses or elements that are not existing as part of the approved use for the place. Rather, she described the proposal as being an enhancement of the existing situation, which does not impact the significance of the site, heritage items in the vicinity nor the surrounding conservation area (Heritage JER p 15 par 25.2). And, although the lift extension exceeds the ridge line of the main auditorium, she believes that it does not alter the proportions of the overall form of the building, nor does it alter the contribution of the heritage form of the building within the conservation area (Heritage JER p 15 par 25.3). Instead, Ms Polkinghorne gave evidence that the extension to the roof will support the use of the place, which in turn supports the ongoing care and conservation of the historic building elements. On that basis, Ms Polkinghorne gave evidence that the development does not obscure nor reduce the heritage significance of the Item (DCP clause 3.9.5(1)(f)) and should be approved.

Mr Poulton

41. Mr Poulton believes that the approved addition to the building above the original foyer is well resolved with a high design quality that relates well to the auditorium with its simple form, clean lines, appropriate height, and materials, contemporary yet sympathetic design. However, he does not consider that the proposed lift extension is well integrated into the design of the contemporary addition. While he accepts that the use of the same cladding on the extension will assist to integrate the new element it does not resolve his concern that if approved, the protrusion well above the existing addition will disrupt the simple discreet form of the addition which relates so well to the existing building. As such, he gave evidence that the proposal will be out of character with the Liverpool Street elevation of the existing building, when viewed from the other side of Liverpool Street, which the lift extension faces. He also believes that introducing such an element to a significant elevation will adversely impact the setting and significance of the former First Church of Christ Scientist building. Therefore, he considers that the proposal is not in accordance with CMP Policy 10 (Heritage JER pp 15-16 par 25.4).

42. Mr Poulton is also critical of the fact that the lift extension has been proposed so soon after the completion of the approved addition. He believes that any lift access to the roof by lift should have been addressed as part of the development application for the additions and roof terrace (D/2018/1526) at which time it could have been assessed on its merits in relation to the whole proposal. He rejects a piecemeal approach in dealing with change to this heritage Item and said it is not advocated in the CMP and is contrary to the intent of Policies 10 and 11 good heritage practice (Heritage JER p 15 par 25.5). While he agreed with Ms Polkinghorne that the proposed lift, if approved with the same cladding would be understood largely as part of the approved addition, and not have an impact on any original fabric or significant spaces in the building, he emphasised the negative impacts of the proposal on the heritage Item when viewed from the opposite side of Liverpool Street. Views which he has assessed as important in the context of the heritage Item. In particular, the distinctive portico and main entry to the building, which is graded as of exceptional significance under the CMP.

43. As the tallest built element on the site, well above the height of the ridge of the auditorium roof, Mr Poulton stated that the development is contrary to CMP Policy 86 (Heritage JER p 16 par 25.6) because it will “…detract from the design quality of the addition and disrupt its well-considered relationship with the auditorium, particularly its parapet” which in turn diminishes its significance and the overall setting of the building when viewed from Liverpool Street (Heritage JER par 18.6). This outcome in his opinion is contrary to the objective in cl 5.10(1)(b) of the LEP as it reduces the significance and setting of the heritage building on the site.

44. Noting that the extension will intrude 3.4m above the approved addition which will be at a height well above the parapet and main roof ridge of the auditorium Mr Poulton said that the development will not be a subservient element to the heritage Item (Heritage JER par 19.4).

45. That said, Mr Poulton gave evidence that there is a better location for a lift to the roof that would have less impact and that should be investigated. Albeit, as Mr Haddow and Ms Pressick acknowledged in their evidence no other lift location could be identified in collaboration with Council that would be acceptable to both the client and Council at the time of the hearing.

Consideration of heritage

46. The applicant and the Council submit that there are “…three or four “prisms” (Clauses 4.6, 5.10(10), 5.10(4) and 6.21C) each and all reflecting the focus of assessment to the same point: is there a negative or adverse heritage impact generated by the development?”

47. Therefore, if I find that the development creates “…an unreasonable heritage impact then it would not matter how this were taken into account under clauses 4.6, 5.10 or 6.21C - as the application would warrant refusal.

48. On the other hand, the applicant contends that:

‘…if there is no unreasonable heritage impact then that finding is relevant to:

• Why compliance with the height control would be unreasonable and unnecessary in the circumstances of the case.

• That heritage values which are not at risk from the development and the manner by which the ongoing use will continue to facilitate conservation measures for the Item; and

• That the development does achieve design excellence.’

49. No other impact is identified.

50. Similarly, the issue of enabling an equal and easy access is relevant to:

• An environmental planning ground supporting flexibility in the application of the height control;

• A use of the building that promotes the heritage incentive outcomes often SLEP; and

• A design that achieves excellence.

51. Additionally, were there to be some heritage impact then the promotion of a dignified means of equal access is an important balancing objective against finding that the impact (if any) is unreasonable to the degree that warrants refusal.”

52. Let me start with the relevant provisions of the LEP which provide a statutory basis for the conservation and control of development and other activities that may affect the heritage value of items listed under Sch 5.

53. Clause 5.10(1)(a) and (b) of the LEP places an obligation on the consent authority (the Court) to “conserve the environmental heritage of the City of Sydney, and the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views” when evaluating any development proposal of this site. Under the provisions of the heritage incentive clause of the LEP, the Council has already granted benefits to the owners of the Item of environmental heritage under the 2018 consent. The otherwise prohibited use of the site for the purpose of commercial premises has been approved under cl 5.10(10). This has facilitated the heritage Item’s conservation and its ongoing maintenance. As this development proposal is clearly ancillary to that approved use, it does not need to be assessed under cl 5.10(10) as the Council submits. Instead, the assessment needs to be under cl 5.10(4) and any further development for the approved use must as the experts agree respect and protect the fine Inter-War Beaux-Arts architectural imagery and qualities of the building, especially its imposing presence in the local streetscape of Liverpool Street and Forbes Street.

54. I was able to appreciate the imposing presence of this heritage Item during the site inspection when the heritage experts spoke to their written evidence about the effect of the development on the heritage significance of the Item and the area - particularly the portico/main entrance of the building when viewed from the opposite side of Liverpool Street. That is a viewing point which I accept is very important given the CMP’s grading of significance and for the reasons articulated by Mr Poulton as summarised above. And, while I accept, as the applicant submits on the evidence of its architect Mr Haddow (and others) that the grant of consent to this development promotes a dignified means of equal access to the roof terrace, and would allow an opportunity to impose a condition to limit the number of people on the roof terrace to 35 at any one time, these merit considerations cannot displace the need to first consider the effect of the proposed development on the heritage significance of the Item and the area concerned as mandated by cl 5.10(4) which is called up by s 4.15 of the EPA Act.

55. After a consideration of all the heritage evidence, I find that Mr Poulton’s evidence accords with my observations. The proposed vertical lift addition is as he suggests, highly visible when viewed from the public domain opposite in Liverpool Street. Moreover, if approved, I accept his expert assessment that the development would detract from the otherwise very successfully designed addition to the heritage Item and adversely impact the heritage significance of the heritage Item and its setting in the conservation area. I accept Mr Poulton’s expert assessment that the recently constructed addition has a massing and modulation that references the heritage Item, its scale, and parapets. The vertical lift addition is proposed to be a tall element in the southeast corner that will alter the building form and diminish that relationship with the heritage Item.

56. The approved and built addition to the heritage Item in 2018 did not include lift access to the roof or a lift overrun in a highly visible location. Instead, a less obtrusive internal stair and stair lift access provides for acceptable DDA access. The existing arrangement has no adverse impact on the bulk, massing, and modulation of the building, resulting in a highly successful relationship between the heritage Item and the new addition. The approved and constructed rooftop terrace is also compliant with the LEP height control.

57. As the experts all agree, the existing building has been carefully designed by SJB to have a respectful relationship to the heritage Item, and this is evident within the streetscape. The development as proposed would in my assessment have the effect of compromising that outcome and adversely impacting the heritage significance of the Item (the portico entrance to the building which is graded as exceptional) and the conservation area concerned. Accepting that the CMP Policies are not rules, they are nonetheless relevant matters. With that in mind, I cannot accept, as the applicant’s expert suggests that the lift extension, exceeding the ridge line of the main auditorium, does not alter the proportions of the overall form of the building, or the contribution of the heritage form of the building within the conservation area (Heritage JER p 15 par 25.3). The height of the new lift is distracting from the significance of the Item and its setting particularly, when viewed from Liverpool Street opposite the main entry to the building. As Mr Poulton suggests (see par [45] above), this is a reason to refuse consent.

58. Having formed a view on the evidence that the effect of the development on the heritage significance of the Item and the area is unacceptable under cl 5.10(4), I need not deal with other relevant provisions as the development must be refused consent.

Conclusion

59. The Court orders:

1. The appeal is dismissed.

2. Development application no. D/2021/169 for the extension of a previously approved internal lift at 262 Liverpool Street, Darlinghurst is determined by refusal of consent.

3. The exhibits are returned, except for A, 1, 3, 4 and 5.

…………………..

S Dixon

Senior Commissioner of the Court

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Decision last updated: 27 March 2023