Politic Pty Limited v Council of the City of Sydney
[2009] NSWLEC 1239
•3 June 2009
Land and Environment Court
of New South Wales
CITATION: Politic Pty Limited v Council of the City of Sydney [2009] NSWLEC 1239 PARTIES: APPLICANT
RESPONDENT
Politic Pty Limited
Council of the City of SydneyFILE NUMBER(S): 10879 of 2008 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 DATES OF HEARING: 1, 2 and 3 June 2009 EX TEMPORE JUDGMENT DATE: 3 June 2009 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Ms S Duggan, barrister
INSTRUCTED BY
Gadens Lawyers
Mr I Hemmings, barrister
INSTRUCTED BY
Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
MOORE SC
3 June 2009
10879 of 2008 Politic Pty Limited v Council of the City of Sydney
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1 SENIOR COMMISSIONER: The building at 365 George Street is currently known as the Blackett and has had a variety of uses over the years. It is listed on the City of Sydney’s heritage database as part of the City’s heritage but does not have state-wide heritage recognition. The entry in the heritage database is through a heritage inventory report which describes the building as being associated with three eminent Sydney architects/architectural firms, Edmund Blackett, William Wardell and Robertson & Marks. It continues:
“The building occupies a prominent corner site adjacent to the former thriving retail precinct in this part of Sydney centred on the original David Jones building. The scale and level of external detailing, decorative pediments, cornice, incised pattern and string courses on 365 George Street is critical to the streetscape, forming a visual link to other buildings in George Street.”
2 It then cites 357 to 363 George, which have been demolished, and with the site diagonally opposite which is the Darrell Lea building on the corner of King and George Streets and which remains.
3 At the present time the structure is used with a nightclub in the basement, a recently ceased use as a banking chamber and banking activities on the ground and partial mezzanine floor, serviced apartments and a function area in a late-20th century addition which is on the roof of the Blackett building and comprises three levels.
4 The present proposal seeks to retain the basement for its current use with minor modification in one area to permit parts of its roof to be removed to assist with the servicing area of an escalator to be erected in the banking chamber; the ground level to be a retail area with a connecting escalator to the first floor. The mezzanine is to be removed. The first floor is to be retail. There would be five commercial levels and a function area and a small 60 square m open space attached to the function area on the top of the building. In conjunction with the fit out of the proposed retail area there would be changes to fenestration and a minor change to the storm porch, the entry from George Street, none of those being contentions in these proceedings.
5 There are effectively three matters with which I need to deal at this stage in the proceedings, it being the agreed position that no matter what the outcome of those three elements, there will be a development consent in some form given to the applicant as a result of these proceedings. Those three matters are whether the escalator connecting the ground floor and the first floor retail activity should be permitted; the second, whether the additional structure proposed to be added to the top of the building should be permitted; and third, whether I should do anything in response to the objections of the proprietors of the neighbouring building to the north at 363 George Street.
6 The escalator is proposed to be a single passenger width escalator but with risers going up and a descending escalator adjacent, to be travelling from east to west and located in the area defined by the northern of three bays delineated by marble-clad pillars in the banking chamber.
7 The structure that is proposed to be erected on the top of the building is described in an architectural design statement prepared by Richard Francis-Jones, the architect of the proposal, in the following terms. He puts it in the context of the removal of the existing structures above the Blackett building:
“The removal of the existing rooftop addition and the construction of a new addition is an important aspect of the refurbishment of 70 King Street. The current contemporary addition, although set back from the existing heritage facades on each of its two levels, is visible from both King and George Streets. The current addition does not contribute to either an enhancement of the existing building nor of this important urban corner nor the adjacent streetscapes. The materials and form of the current addition have no relationship with the original Blackett building and as such it is appropriate to provide a new rooftop addition with a different configuration.”
8 As I will note later, there is not any disagreement with that general proposition relating to the present structures on the roof.
9 He then continued, omitting a number paragraphs not relevant for my consideration in this context:
“There are many well established precedents both in Australia and internationally of successful contemporary seamless additions to heritage buildings where the addition is aligned with the existing facades. In many of these cases the addition is articulated with a contrasting change of materiality and architectural detailing. The Blackett rooftop addition is proposed as a seamless addition to the palazzo form. This approach is consistent with international and Australian precedents. Is also interestingly consistent with the history of the building which had been extended seamlessly by Wardell in 1890 and along King Street by Robertson & Marks in 1925.”
10 He then, omitting some further material, describes the structure that he has designed as proposed to be erected on the roof:
“The contrasting and complementing contemporary form proposed for the rooftop addition is a glass crystal like structure. It is intended as a crown that appear suspended over the existing building, preserving clearly the extent of the original building with its terminating cornice and yet extending the building in a sympathetic manner. A deep shadow between the old and the new will enable a highly detailed heritage cornice to be read”.
11 He then discusses the nature of the structure and the fact that the double skinned glass design will have environmental as well as aesthetic and acoustic properties.
12 Some further evolution of the design took place during the course of the hearing and as it is a matter of some contest between the parties I am satisfied, on the basis of exhibit K and consideration of the photographs of a similar design style effected by Mr Francis-Jones’ firms for the respondent in these proceedings in the new Surry Hills library, that I have sufficient information about what is proposed to proceed on the basis of sufficient certainty at the development application stage for determining it and, subject to any other matters that I might deal with, to indicate that those design elements contained in the finishes board would be an acceptable design response.
13 In this context I have also had evidence from Mr Tanner, giving heritage architectural evidence supporting the proposal on behalf of the applicant. I have no doubt that the design that is proposed by Mr Francis-Jones has considerable architectural merit. I do note at this stage, however, that it appears to be the applicant’s present position that they take an all or nothing attitude to this proposed extension.
14 I turn first, as it is easiest, to deal with the issues raised by the neighbours. There are three of them. The first is the proposed use of the loading dock. To some extent I am satisfied that this is what might be regarded as a straw man, given the discussions which took place between the parties at the conclusion of the hearing phase that it is not the intention of the council to require that all construction activity take place through the loading dock, it being in my view impossible for that to occur; in any event that the applicant and the council need to settle the terms upon which a construction zone will be provided on King Street rather than negotiating the existence of such a construction zone from first principles. So that element of the neighbours’ objection in my view is unfounded.
15 The next concerns the use of proposed level 9 as a place of public entertainment. There is a concern about noise impacts. The areas to be used for the place of public entertainment on that level, if consent is granted, is to be limited to an outdoor area from which noise might be transmitted to the adjacent building of some 60 square ms. That area will be further to the south and east than the present area under the present PoPE activities at that level. There have been no complaints about noise arising from the present permitted activities. There are not proposed to be any changes to the conditions and restrictions that will apply to the operation of that area. So I am satisfied that on the basis of the no change to operating provisions plus the fact that there will be a modest movement away from the adjacent building means that this issue has no foundation.
16 Finally, some issues arose concerning shared services between the two buildings. The expert evidence that I have in these proceedings is that the demands for services of the redeveloped Blackett building will be less than is presently the case and there is therefore no basis to deal with that matter in these proceedings. Even if there were to be some issue arising in the future, I am satisfied that that is a matter for private remedy between the parties to the agreements between the three sets of premises involved as part of the redevelopment of the site rather than for me to deal with in these proceedings.
17 I turn now to the first of the substantive issues, the escalator. There are a number of provisions in the Sydney Local Environmental Plan that are relevant in this regard, as they are with respect to the proposed roof addition. The first is cl 67 that sets out the objective of Pt 6 heritage provisions. The relevant ones in this regard, in my view, are 67(a), (d) and (f). They read as follows:
The objectives of the heritage provisions are:
- (a) to conserve the heritage of Central Sydney,
and
(b) …..,
and
(c) ….., and
(d) to ensure that any development does not
adversely affect the heritage signifi cance of
heritage items, and
(e) ….., and
(f) to encourage high quality design and the
continued use or adaptive re-use of heritage
items.
18 Cl 69 then requires that, prior to granting development consent involving a heritage item, I am required to take a number of matters into consideration. With respect to the escalator, I am satisfied that the requirements of 69(c), being the heritage inventory assessment report, is the relevant matter that I need to consider here, coupled with the provisions of the report of the committee that have provided a report pursuant to the provisions of cl 73 which is triggered, in my view, by cl 73 (1) (b) when read together with cl 72.
19 The matters that rise here first come from the heritage inventory report, where dealing with the interior of the building it describes the following future aspirations:
“Intrusive elements in the banking chamber should gradually be removed and the chamber fit out to be more sympathetic with Robertson & Marks fit-out (1926). All fabric of high or medium significance should be preserved where possible.”
20 The only element of high significance that will be impacted in any form of permanence will be the removal of a portion of the jack-arched roof in the basement of the present structure.
21 Commenting on the escalator, the committee’s report makes a number of comments. First, it says that the proposed escalator would dominate the banking chamber and detract from the important spatial qualities of this volume. I note with respect to this comment that that comment was made with respect to a proposal for escalators that would have been in the central aisle between the columns rather than to the north.
22 The second point is that the location of the escalator needs to be reconsidered so it does not dominate the space and I am satisfied that that has been considered and done as a consequence of the relocation to the north; then says, importantly,
“Further research is required to determine the appropriate location of the escalator, having regard to the impact on early fabric”.
23 I read that to mean that the committee does not say one should question whether or not an escalator should be installed in that space, merely that the design and location of it should have significant regard to the impact on early fabric.
24 With respect to the loss of part of the jack-arched roof in the basement, the committee continued that the proposal would result in the loss of part of the vaulted ceiling which appears to be significant early building fabric. I note in that regard that the relocation of the proposed escalator from the central aisle to the northern aisle will require the removal of significantly less of the jack-arched ceiling as at 50 per cent on my understanding of the plans of the intrusion into the basement space will be into the area of the current loading dock rather than on the plans that were considered by the committee, being an entire intrusion into the jack-arched space. As a consequence of that, it would seem to me that those concerns to the extent that they are understood from this document may, but I put it no higher than that, well have been satisfied by that relocation and lessening of the impact on the jack-arched ceilings.
25 I am satisfied, as I put to the advocates in the case, that the locations for the escalator as alternatives to the present either will not work, that applying to both the western and eastern walls, or would be significantly more highly intrusive than is the case with the present location if the escalator were to be run along the southern wall adjacent to King Street or up the central aisle. Indeed, it is my understanding of the evidence that all of the experts, including Mr Poulton, the council’s heritage expert, agree that if there is to be an escalator, the escalator that is proposed is the escalator that should be permitted. Mr Francis-Jones and Mr Tanner both gave evidence that the floor to ceiling height is too great to accommodate a staircase comfortably.
26 The intrusion into the basement fabric, I am satisfied, is partial and partially into the basement fabric, as I have earlier noted, and partially into the loading dock. It is also possible, as Mr Tanner noted, that if the escalator were to be removed, the jack-arched ceiling could be reinstated if that were to occur. I am also satisfied on the basis of a supplementary plan provided that there is sufficient head room for the escalator to have clearance under the north/south running beam to the west of the bay within which it is proposed to be located.
27 There are a number of other matters that are important in this context. Firstly, Mr Poulton wants the existing historic outer walls of the banking chamber retained. That would make use of either the north/west or north/east staircases impractical. I am satisfied that the considerations that I have recently outlined, together with the relocation of the escalator, satisfies the third of the dot points under this heading dealt with by the committee, and that as a consequence the escalator as proposed is appropriate where it is proposed to be located.
28 I turn now to the roof additions. The present roof additions were earlier discussed in my citation of an element from Mr Francis-Jones’ design statement. The joint heritage report says:
“It was noted that the existing modern rooftop additions do not appear to have any special architectural merit and indeed are something of an unsatisfactory distraction when viewed from the eastern parts of King Street”.
29 That, in my view, is a statement of modest understatement. The additions that were effected some ten years or so ago have been described as being of a wedding cake design, and that is evident from the photograph which is in evidence taken from the roof of the nearby Dymocks building looking down towards the Blackett and showing the additions that are on top of the roof. There is no doubt in my mind, as agreed by the experts, that the removal of those unsympathetic rooftop additions is a desirable outcome of the process.
30 The question that solely arises in this regard is whether that which is proposed to take their place is acceptable. There are three options as have been addressed by the parties. The first is that which is proposed by the applicant. The second is that which is proposed by the council, which effectively would have the setbacks being the middle of the levels of the present wedding cake arrangement, and the third being something in between, which I asked the parties to consider, which would be setbacks effectively based on the present lower of the three levels on the rooftop extension, which would be a 2.5 m setback from both the George and King Street frontages.
31 There are a variety of planning controls that are engaged by this issue. They come from cl 69 of the local environmental plan which require me to have regard not merely to the heritage committee report, that coming from cl 73, but also to the heritage inventory assessment report, the conservation management plan and the heritage impact statement prepared by the applicant, together with the provisions of any relevant development control plan.
32 With respect to the development control plans, I note that there are two that appear to be engaged. The first is the Central Sydney Development Control Plan, which has a number of provisions which are relevant. The second is the Heritage Development Control Plan which appears to be primarily, if not exclusively, concerned with the outer fringe terrace residential areas of the city council’s area and from which I obtain, I am satisfied, no assistance in this matter.
33 In part I need to have regard to whether this proposal materially affects the heritage item for the purposes of cll 71 to 73 and that is defined in cl 70 of the LEP, but I am entitled pursuant to clause 70 (2) to conclude that it does not materially affect the heritage item if I have concluded that it will not adversely affect the heritage significance of the heritage item.
34 I turn first to the matters contained in the development control plan. These are contained in Ch 2 of the development control plan dealing with building form and character. The broad objective, inter alia, is stated at the beginning of this chapter and includes:
“The development provisions in this section of the DCP are intended to encourage high quality design for new buildings, balancing respect for the defining characteristics of Central Sydney with innovation and creativity. The resulting built form and character of new development should contribute to an attractive public domain in Central Sydney and produce a desirable setting for its intended uses”.
35 There are a number of provisions then which engage where buildings might be built at various levels. 2.1.1 states that new buildings that have street frontages built predominantly to the street alignment, the street frontage height in 2.2.1 is to be between 20 ms and 45 ms above ground level.
36 Ms Duggan has urged me to consider the totality of this building to be something where its street frontage height can be regarded in its totality with the addition on the top as being the street frontage height of a new building and hence between 20 and 45 ms above street ground level, with street frontage height being defined as the vertical distance measured in metres at the centre of the street frontage from the average street levels at each end of the frontage to the parapet level of the level.
37 I am satisfied that the provisions of cl 2.3.5, which reads relevantly, “any new building or additions above a heritage item”, makes it clear that the framers of the document intended to draw a distinction between new buildings, that is buildings erected from either below the ground or ground level upwards, are different from additions that are above a heritage item in a heritage streetscape, that being applicable to this building. As a consequence, I am not prepared, as I consider it would be contrary to the wording of the development control plan, to conclude that the totality of that which is proposed by the applicant should simply be regarded as within the 20 to 45 m street frontage plane of the building.
38 The development control plan then deals with a variety of issues relating to setbacks, including a strategy for setbacks and provisions for front and side setbacks that are relevant here. The first is contained in 2.3.1, which says relevantly, “above the street frontage height” - that is, I interpolate, the height of the present Blackett building, I find - are to be set back a weighted average of 8 ms. 2.3.5 says any new building or relevantly additions above a heritage item in a heritage streetscape are to have a setback at least 10 ms above the street frontage height. It then provides a cross reference to s 2.9, which is now repealed, and which I conclude provides me with no relevant assistance in this regard even it were appropriate to consider it.
39 However, all of those two provisions are subject to a number of exceptions that are set out in cl 2.3.2 where it says:
“Smaller setbacks may be acceptable” - relevantly -
- “(1) on corner sites up to a 1,000 square metres fronting streets or lanes at 6 metres wide”
40 I then turn to what has been concluded with respect to this proposal. The heritage committee concluded that the existing building addresses the corner well and does not need to be reinforced; that the addition would detract from the visual prominence of the existing building; and then a number of matters describing buildings in the vicinity, then says:
“Any new rooftop addition should be well back behind the alignment of the facades and not less than the existing setbacks on levels 7 and 8, which are considered to be appropriate in this urban context”.
41 It then notes and takes me to the heritage inventory, to which I will return and then says, “subject to maintaining the existing setback the proposed height may be appropriate”, and critically, “subject to maintaining the existing setbacks the proposed contemporary materials are acceptable”.
42 The heritage inventory report says under “Recommended Management”, two things: the first that,
“Additional space may be provided at roof level provided its new external walls are setback from the original face. Extension should not detract from the visual prominence of the original building”.
- “There shall be no vertical additions to the building and no alterations to the façade of the building other than to reinstate the original features”.
43 It is clear to me from the comments of Mr Tanner in the joint heritage report that the building of the walls upward as proposed is a vertical addition. That is consistent with his comment under (iii) under 4.2.1 of the joint heritage report.
44 Mr Tanner gave evidence that the building as proposed would hold the corner, as it were, but he also indicated that the present structure held the corner in his terms. He did stress that if there were to be any setback it ought not mimic the lines of 363 George Street to the north, so that it might inadvertently be read as part of that structure rather than as being a distinct element to be added to the Blackett.
45 In the joint expert report on heritage matters, quoting from 4.2.1, both experts noted that there were many examples of older buildings having been extended vertically over time but that the pilastered top floor and strong cornice parapet element of 365 George Street made a well-proportioned three storey extension more difficult to satisfactorily resolve. They then jointly dismissed merely mimicking, as has occurred in the past for this building but now removed, structures that simply replicated that which was there as the vertical extension.
46 Mr Poulton in his statement of evidence expressed the opinion that there was no need to strengthen the relationship between the existing building and its neighbours by having vertical additions. The other tall buildings at the intersection of George and King Streets do not reinforce the corner. The existing building is in a highly visible location and holds its own in the streetscape. Its contribution to it does not have to be enhanced by the additions, as implied in the heritage impact statement.
47 The heritage impact statement on page 40, in response to the question posed as part of the questions put by the New South Wales Heritage Office, asks “Will the additions visually dominate the heritage item?” The answer as given is, “Yes, but this is not a negative impact”. That answer contains two separate thoughts, the first of which in my view is critical and determinative in these proceedings.
48 The weight that I should give to a development control plan is dealt with by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 where a number of propositions emerged. The first is that, although I have a wide-ranging discretion, that discretion is not at large and is not unfettered. Second, the provisions of a development control plan are to be considered as a fundamental element in or focal point to the decision making process, particularly if there are no issues relating to compliance with the local environmental plan, which is not necessarily the case here.
49 Further, provision in the development control plan directly pertinent to the application is entitled to significant weight in the decision making process but is not determinative, because if a proposal does not meet the development control plan’s requirement I might still grant consent if I have undertaken a proper and genuine consideration of the DCP and considered all other matters that might be relevant under s 79C of the Environmental Planning and Assessment Act 1979.
50 In this context I have concluded that it is necessary to have a distinct break between the old and the new so that there will be a reinforcement of the value of the heritage item and a separation from the structure which is proposed to be added. That can only be achieved in my view by something that is greater than the proposed shadow line along the King Street frontage.
51 Mr Francis-Jones put the proposition to me that a setback behind the edge of parapet some 300 mm would be acceptable and that Mr Tanner said that up to some 400 or so mm would also be acceptable. In my view neither of those elements of setback sufficiently removes the dominance that the new structure would have as referred to (p 40 of the heritage impact statement).
52 I asked the parties during the course of the hearing if they would consider and make submissions about the possibility of a 2.5 m setback along both frontages, that being the setback for the present lowest of the three levels erected on the roof. Neither of the parties was attracted to such a proposition.
53 The council proposes that there should be setbacks which almost but not entirely satisfy the numerical requirements of the development control plan. However s 2.3.2 (i) specifically gives a discretion to vary that in the context of smaller sites, a discretion which I consider is appropriate to be exercised in this case, not merely because of the smallness of the site, nor because there is floor space within that which is approved for the site being surrendered by the removal of the unsympathetic mezzanine area from the banking chamber, but because it is appropriate to have a structure at the top that is of some considerable architectural merit, is distinct from 363 George Street and has the benefit of removing that which is presently erected thereupon.
54 It was put to me on behalf of the applicant that Mr Francis-Jones does not wish to be associated with any design that is set back any further than the 300 to 400 mm or so postulated by him and Mr Tanner. I am of the view that it would be inappropriate for me to take a position at this time that refused that element of the application without giving the applicant the opportunity to discuss further with Mr Francis-Jones whether a setback of 2.5 m from each frontage was architecturally acceptable for him to be associated with it, as I consider that that degree of setback provides sufficient distinction, as Mr Tanner indicated was desirable from 363 George Street plus, as Mr Poulton has postulated, sufficient distinction between that which is below and that which would be above.
55 As a consequence of that I propose to grant a short period of time within which the applicant can have further discussions with Mr Francis-Jones and determine whether they wish the consent to be with escalator but without a 2.5 m setback rooftop addition or whether it is to be with a 2.5 m setback rooftop addition.
- Tim Moore
Senior Commissioner
2