Salwyn v Sydney City Council

[2008] NSWLEC 1245

Land and Environment Court

of New South Wales

CITATION:	Salwyn v Sydney City Council [2008] NSWLEC 1245
PARTIES:	Applicant: Clement Salwyn Respondent: City of Sydney Council
FILE NUMBER(S):	10064 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- conservation areas, contemporary architecture
DATES OF HEARING:	17 June 2008
DATE OF JUDGMENT:	24 June 2008
LEGAL REPRESENTATIVES:	Applicant: Mr G Green, solicitor of Pike Pike & Fenwick Respondent: Mr S Kondilios, solicitor of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

24 June 2008

10064 of 2008 Clement Salwyn v City of Sydney Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by the City of Sydney Council (the council) of a development application to amalgamate lot 1 DP 183876 (known as 278 Palmer Street and 45 Burton Street) and lot 45 DP 860217 (known as 43 Burton Street), to demolish the terrace house on 43 Burton Street and re-construct the existing warehouses on 278 Palmer Street and 45 Burton Street, producing in the process a single dwelling house on the amalgamated site.

The site

2 The site is in Conservation Area 18 – East Sydney and Darlinghurst. The Conservation Area Map classifies buildings into three groups: contributory, neutral and detracting. The site is in a street block bounded by Palmer, Burton, Sherbrooke and Foley Streets. With the exception of 25 Sherbrooke Street, all 29 other buildings in the block are classified as contributory.

3 No 43 Burton Street contains a two-storey Victorian terrace constructed in the 1850s, which features a two-storey veranda, front dormer window and rear skillion roof addition. No 45 Burton Street contains a c1908 Federation warehouse with a corner copper dome. No 278 Palmer Street contains a two-storey brick warehouse, constructed c1884, now used as an art gallery. The site forms an L-shape around the corner site at Burton and Palmer Streets, 276 Palmer Street.

4 To the east, at the southeast corner of Burton Street and Sherbrooke Street is a three-storey apartment building, which is classified as a detracting item. Across the other side of Burton Street is a large five-storey apartment building, called The Republic, which is classified as a detracting item. Across Palmer Street, at its southwest corner with Burton Street, is a three-storey building, called The Tabernacles, which is a heritage item. On the northwest corner is a two-storey face brick building that is classified as a detracting item.

5 The scale of the Conservation Area is mixed. The buildings immediately surrounding the site are small two-storey buildings. The Republic across Burton Street is the largest building in the vicinity.

The proposal and its history

6 The applicant proposes to:

• amalgamate the two allotments of the site;
• demolish the existing terrace house at 43 Burton Street;
• gut the warehouses at 278 Palmer Street and 45 Burton Street, keeping the exterior walls;
• excavate for two underground levels, one a basement for parking, boat storage and cellar, the other a habitable floor;
• erect a new five-level dwelling within the walls of the warehouse; and
• place a new free-form roof structure on top of the warehouse;
• construct a swimming pool on the roof.

7 The applicant lodged the development application in December 2007. Following notification, the council received 21 objections. At the time of hearing the council has not determined the application.

Relevant planning controls and policies

8 The South Sydney Local Environmental Plan 1998 zones the site 2(b), a zone in which dwelling houses are permissible. South Sydney Development Control Plan 1997 (DCP 97) establishes a maximum height of 12m for the site and a maximum Floor Space Ratio (FSR) of 1:1. The City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP) establishes the Conservation Area in which the site is located and classifies buildings as contributory, neutral or detracting.

Matters in contention

9 In its Statement of Contentions the council identified three matters: heritage impact, site and building configuration, and impact on neighbours. During the hearing it became apparent that the last contention could be resolved through conditions, while the first two are closely interconnected. There is therefore only one issue, namely whether the proposal has an adverse impact on the significance of the Conservation Area.

10 The two major features of the proposal that are, in the council’s opinion, responsible for the adverse impact, are

• the demolition of the terrace house at 43 Burton Street, and
• the free-form roof structure.

The objectors’ concerns

11 The Court heard the evidence of eight objectors:

• Mr Hasan Rajab of 5 Sherbrook Street;
• Mr Kevin Saunders and Ms Judy Ingram of 11 Sherbrooke Street;
• Mr Martin Daley of 20 Sherbrooke Street who is the President of the East Sydney Neighbourhood Association;
• Mr Richard Bassett of 13 Sherbrooke Street;
• Mr John Okey of 25 Sherbrooke Street;
• Mr Victor Allen of 4 Foley Street; and
• Mr John Boers of 22 Palmers Lane.

12 The objectors think that the proposal has an adverse impact on the Conservation Area because it dominates its neighbours and is unsympathetic to its context.

Demolition of 43 Burton Street

13 The heritage experts were Mr John Poulton, for the council, and Mr Stephen Davies, for the applicant. In Mr Poulton’s view, the demolition of the terrace at 43 Burton Street, which is a contributory item, would have an adverse impact on the Conservation Area. Its replacement by a fence-like wall will provide a gap within the streetscape of Burton Street instead of reinforcing the character of the built form. The terrace house dates from a key historical period in the development of Darlinghurst and contributes towards its character. While it has been altered, it retains its form and external changes, such as the altered balcony, are reversible. Moreover, the Heritage DCP requires justification of demolition and there is no justification here.

14 Mr Davies does not rate the existing terrace house highly. In his opinion its contribution to the Conservation Area has been reduced through the demolition of two of the original three terraces in the row and the unsympathetic alterations and additions and the overall design. The contemporary fence is designed to provide a new infill component to the streetscape. Mr Poulton responds that the other two terraces had been demolished more than a hundred years ago. The context of the terrace house, between the warehouse at 45 Burton Street and the hotel at 276 Palmer Street, has changed little since 1908.

15 Section 4.3 of the Heritage DCP deals with contributory buildings, stating that contributory buildings are to be retained. While I accept the applicant’s submission that this requirement is not set in stone, It seems to me that there needs to be a good reason to justify demolition. Mr Davies’s justification, that the building is without value, is not convincing. The terrace house is 150 years old. Its external shape, and therefore its contribution to the streetscape, has changed little in the last hundred years. The unsympathetic additions are capable of reversal. The purpose of the demolition is to create a garden, which is not a strong justification in an area where gardens are uncharacteristic.

16 I accept Mr Poulton’s evidence that the demolition of 43 Burton Street would have an unacceptable adverse impact on the Conservation Area.

Height and roof shape

17 It is common ground that the proposal complies with the height limit of 12m in DCP 1997. Nearby buildings have a height limit of 9m, so I assume that it was a deliberate decision to allow buildings on this site to be a little higher than those on neighbouring sites. It would therefore be unreasonable to object to the proposal’s height.

18 However, the height of the roof is one thing; its shape and design another altogether. Mr Poulton points out that the existing roofs of the warehouses are simple skillion or hipped/gabled forms that are not prominent. These forms are to be replaced by an overly strong and complex roof form out of character with the scale and architectural style of the existing building facades. In particular, on the Sherbrooke Street elevation the roof will dominate the façade and adjoining terraces, given that the height of the new roof is greater than the height of the facades of the tiny neighbouring buildings. The prominence of the existing corner dome at No 45, designed to be the tallest element of the building, will be reduced by the complex roof, which will be seen as a backdrop. The roof to the pool that will be visible from Palmer Street (which the applicant called dormer on the drawings) is off-centre, out of scale with the roof, and higher than the ridge of the adjoining terraces at 280-282 Palmer Street. It will be considerably larger than the front dormer window of No 282 and detract from the facade of the warehouse and from the character of the eastern side of Palmer Street.

19 Mr Davies takes issue. In his opinion, the scale, relationship and location of the interrelated buildings on the site are able to support this particular proposal. The two-storey warehouse forms are strong in presence and the manner that the roof has been configured is such that it is considerate of the individual elements, eg the small tower of Burton Street. The recessive angles will not be dominant but will add a new architectural layer that relate to the current period of construction. The contemporary buildings that have occurred in the locality have expressed the architectural style of their period of construction and this has led to the existing diversity and layers of architectural styles and periods in this section of the Conservation Area. The roof additions have been designed with shapes and styles that provide for a recessive appearance whilst allowing for further height and the adaptation of the building. The roof form, whilst clearly new and contemporary in style, retains the strong streetscape elements of the warehouse buildings and will not detract from the heritage significance of the buildings. It.

20 In my opinion, Mr Davies’s characterisation of the proposed roof is wrong. The roof is not recessive; on the contrary, it appears to be the result of an attempt to make it as different as possible from other roofs around it. The proposed roof would detract from the character of the Conservation Area and would have an unacceptable adverse impact on it. I have included some pictorial representations in this judgment to illustrate my conclusion.

21 On reading this judgment, it might be thought that the dispute was about whether contemporary architecture is appropriate in a Conservation Area. This is not what the dispute was about. Most heritage experts accept that it is not necessary to imitate the styles and materials of the past when building in conservation areas. However, it is one thing to design a building that is clearly of its own era, and quite another to employ forms and materials that seek to be interesting at the cost of being alien to their context and of overpowering the traditional character. After all, the reason for declaring a locality a conservation area is to preserve its traditional character.

22 The demolition of 43 Burton Street and the design of the two warehouses (in particular their roofs) are unacceptable. The appeal is therefore dismissed.

Orders
1. The appeal is dismissed.

2. Development application to amalgamate lot 1 DP 183876 (known as 278 Palmer Street and 45 Burton Street) and lot 45 DP 860217 (known as 43 Burton Street), to demolish the terrace house on 43 Burton Street and re-construct the existing warehouses on 278 Palmer Street and 45 Burton Street, producing in the process a single dwelling house on the amalgamated site is determined by refusal.

3. The exhibits may be returned.

___________________
Dr John Roseth
Senior Commissioner