Sandra Rowell v Council of the City of Sydney

[2015] NSWLEC 1246

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sandra Rowell v Council of the City of Sydney [2015] NSWLEC 1246

Hearing dates:

2-3 March 2015

Date of orders:

07 July 2015

Decision date:

07 July 2015

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed
2. The development application (DA/2014/754) for alterations and additions to an existing dwelling and former shop for use as a dwelling and home business at 75-77 Lower Fort Street, Millers Point, Sydney, is refused;
3. The exhibits, except Exhibits 1 and B, are returned.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling house and former shop for use as dwelling and home business. Non-compliance with height standard. Impact on significance of heritage item and heritage conservation area.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977
Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Sandra Rowell (Applicant)

Council of the City of Sydney (Respondent)

Representation:

Counsel:
Mr P Clay SC (Respondent)

Solicitors:
Mr M Baird of HWL Lawyers (Applicant)

Mr A Simpson of Council of City of Sydney (Respondent)

File Number(s):

10909 of 2014

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of the City of Sydney (council) of a development application (DA/2014/754) for alterations and additions to an existing dwelling and former shop for use as a dwelling and home business at 75-77 Lower Fort Street, Millers Point, Sydney (site).

2. The key issues in dispute between the parties are whether:

1. the breach of the height standard is satisfactory; and

2. the alterations and additions will have an adverse effect on the significance of the heritage item and the Heritage Conservation Area;

Site and locality

3. The site is rectangular in shape with an area of 158.7sqm and frontages to Lower Fort Street and Downshire Street. It is developed with a brick building with a roof behind a parapet that was constructed in 1928 as a “residence and shop” and was used as such until 2011. It is now used as a residence. The building appears as two storeys from Lower Fort Street and three storeys from Downshire Street. The building has a nil setback to Lower Fort Street and the ground floor retains the original shop front. It is setback from Downshire Street with a yard and vehicular access to a garage

4. Adjoining development to the south on the corner of Ferry Lane is the Former Whalers Arms Hotel which is a two storey sandstone (79 Lower Fort Street). To the north, is a two storey terrace group (76-73 Lower Fort Street). The rear of the site is opposite a park, known as the Paddock Reserve, and a recent residential townhouse development that fronts Pottinger Street.

5. The locality is predominantly residential terraces, with some commercial buildings including the Hero of Waterloo Hotel at the corner of Windmill Street and Lower Fort Street.

Planning controls

6. The site is in Zone R1 - General Residential under Sydney Local Environmental Plan 2012 (the LEP). The development is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives for development in the zone.

7. Under cl 4.3 the maximum height of the building is 9m. The existing building height, measured from Lower Fort Street to the highest point on the existing building (parapet RL29) is approximately 9.1m, which exceeds the maximum building height. The ridge height of the proposal (RL30) will increase the building height to 10.1m, which further contravenes the standard. The existing height when measured from the rear (Downshire Street) is approximately 12.1m which will increase to 13.1m by the proposed addition. Although, the council has considered the topography of the site and estimates that the maximum height of the proposal above “existing ground” would be about 11.5m. The applicant has submitted a written request under cl 4.6 of the LEP that seeks to justify the contravention of the height standard.

8. The building is identified in Sch 5 of the LEP as “Shop and residence including interiors” and a heritage item of State significance (I564). The adjoining and buildings in the vicinity are listed as heritage items of State significance. The site is also located in the Millers Point/Dawes Point Conservation Area in Sch 5 of the LEP (C35) (HCA). Clause 5.10 Heritage - Conservation relevantly provides:

(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,

……

(2) Requirement for consent

Development consent is required for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(i) a heritage item,

….

(iii) a building, work, relic or tree within a heritage conservation area,

…..

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

……

(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).

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

9. Clause 6.21 - Design Excellence aims to deliver the highest standard of architectural, urban and landscape design and requires that regard must be given to certain matters, including how the proposed development addresses heritage issues and streetscape constraints (subcl (4)(d)(iii)) and bulk, massing and modulation of buildings (subcl (4)(d)(v)).

10. Sydney Development Control Plan 2012 (the DCP) is relevant. Section 2.8 provides a Locality Statement for Millers Point. Section 3.9 - Heritage provides objectives and provisions, which are relevant to the development, including Heritage items (s 3.9.5) and Heritage conservation areas (s 3.9.6).

11. Section 4.1-Single Dwellings, Terraces and Dual Occupancies applies to the development. It includes objectives and provisions for Alterations and additions (s 4.1.4), Roof alterations and additions (s 4.1.5) and Balconies, verandahs and decks (s 4.1.8).

12. The State Heritage Register (SHR) under the Heritage Act 1977 (Heritage Act) lists the building (SHR 00844) and the Millers Point and Dawes Point Village Precinct (SHR 01682). This has the same boundaries as the HCA under the LEP. Millers Point Conservation Area (SHR 00884) is also listed on the SHR but this listing refers to specific properties owned by Housing NSW in 1999 when the listing was made. The Heritage Council considered an Integrated Development Application in accordance with s91A of the EPA Act and recommended refusal on 11 November 2014. Under s 39 of the Land and Environment Court Act 1979 (LEC Act), the Court may determine the appeal whether or not approval of the Heritage Council has been granted.

History

13. The Inventory Sheet for the item (I564) under the LEP provides the following historical notes:

Historical notes

The "Eora people" was the name given to the coastal Aborigines around Sydney. Central Sydney is therefore often referred to as "Eora Country". Within the City of Sydney local government area, the traditional owners are the Cadigal and Wangal bands of the Eora.

With the invasion of the Sydney region, the Cadigal and Wangal people were decimated but there are descendants still living in Sydney today. The site consists of the northern portion of the grant made to William Hutchinson and confirmed by the Lands Commissioners in 1836.

William Hutchinson, an emancipist, was Superintendent of Convicts and a large-scale landowner and man of business in Sydney. He acquired considerable holdings at Millers Point, including an allotment along Pottinger Street. The northern end of this allotment joined the allotment on which numbers 75-77 were to stand.

The Lower Fort Street allotment was on land which fell away steeply towards the later Walsh Bay. Its northern end became the site of portion of Downshire Street. From the late 1830s, this street formed the effective northern boundary, as it still does.

In 1840-1, the site of number 79 was built on. A handsome two-storey (with basement) public house was erected by Joseph Faris on Hutchinson’s land. Called the Young Princess, it was renamed the Whaler’s Arms by 1847. The public house features prominently in John Rae’s well-known picture of Millers Point. Though dated as 1842, the picture can be no earlier than 1845 Rae’s picture shows the site of numbers 75-77 as vacant, with a low brick wall on the Lower Fort Street frontage. This is confirmed by later maps, which indicate only a few sheds on the land.

It is evident from Rae’s picture of the corner public house that this building was intended for an extension to the north along Lower Fort Street. It was not uncommon to have a corner inn or store joined to a row of terrace houses. The subject site was used as a vacant yard and housed some temporary structures such as sheds and stabling, but the sloping nature of the site was not well suited for this use.

The site remained vacant, save for temporary structures until 1928, when the Sydney Harbour Trust constructed the existing shop and residence. The building was used as a shop and residence from its date of construction until December 2011.

The enclosed verandah to the rear of the building at ground floor level was added in 1937.

Proposal

14. A Conservation Management Plan (CMP) was prepared for the site by Tropman and Tropman Architects in March 2012 for the NSW Department of Finance and Services and forms part of part of the lease of the building to the applicant. The CMP has not been endorsed by the Heritage Council or council, but was referred to in the Statement of Heritage Impact (SHI) submitted with the application and provided as supporting information to the Heritage Council.

15. A pre DA meeting was held on site on 23 January 2014, with representatives of Council, Land and Housing Corporation, the Heritage Council and the applicant’s architect and in principle support for the application was received. The development application was lodged on 27 May 2014. It sought approval for alterations and additions to the existing building which include:

• Demolition of an existing enclosed verandah and part of the wall to the existing dining area;

• Construction of a new, larger verandah to be used as a living area off the kitchen and dining areas;

• a new roof addition for a bedroom, walk-in wardrobe and ensuite; and

• convert an existing bedroom to a bathroom and other internal changes.

16. The application originally proposed to reinstate the use of the former shop off Lower Fort Street as an independent retail/commercial tenancy. However, this would have required a change in classification under the Building Code of Australia (BCA) and works to upgrade the building to comply with the BCA, including fire separation between different uses. The application was consequently amended to delete the shop component and proposed instead that the former shop be used as a “Home Business” (Exhibit J).

17. Council’s heritage advisor recommended approval of the application on 24 July 2014. The Heritage Council considered an Integrated Development Application and recommended refusal on 11 November 2014 for the following reasons:

(a)   The building as No 75-77 Lower Fort Street is of State significance and is located within Millers Point Conservation Area and Millers Point and Dawes Point Village Precinct, also of State significance. The proposal would have a materially detrimental effect on the significance of these heritage items.

(b)   The proposal involves substantial additions to the rear facade and roof of the building that would alter the character of the place, including significant rear views of the building, broader views of the Millers Point Conservation Area and Millers Point and Dawes Point Village Precinct, and long views from around Sydney Harbour.

(c)   The proposal would materially affect the significance of 75-77 Lower Fort Street as a rare surviving, purposefully design and built Inter-War Period shop and residence located in the Millers Point and Dawes Point Village Precinct.

18. The applicant lodged an appeal against the deemed refusal of the application on 6 November 2014. The application was refused under delegation of Council on 17 November 2014.

Evidence

19. The Court visited the site and surrounding area. Objections in response to the advertising and notification of the development application raised concerns including the roof addition exceeding the height limit and resulting in adverse impacts on 73 Lower Fort Street and the new verandah extension is not in keeping with the street as it will extend past the existing building line of the other terraces and will set a precedent for other properties in the precinct.

20. The Court heard expert planning evidence from Mr N Dickson, for the applicant and Mr P Jamieson, for the Council. Professor J Weirick, for the applicant, and Ms J Hill, for the council, provided heritage evidence. Ms K Mountstephens, the architect of the proposal, also provided heritage evidence for the applicant.

Height and request under clause 4.6 of the LEP

21. The experts agree that the existing building and other buildings in the immediate context exceed the maximum height in cl 4.3 of the LEP and that the proposal will further exceed the height standard.

22. Clause 4.6 of the LEP provides the opportunity to provide exemptions to development standards by way of a written request. Ms Mountstephens provided a written request pursuant to cl 4.6(3) of the LEP. The written request states that a variation to the height standard can be supported because the existing building already exceeds the standard and the proposed roof form will sit approximately level with or below the ridge lines of the gabled roofs of 73 and 79 Lower Fort Street and is significantly lower than the height of the chimneys and associated fire walls of these adjoining buildings. The proposed roof is designed to be as low as possible, minimal in size, of appropriate materials and is setback on all sides to maintain the original roof form around the new addition. The highest point of the roof is to the west, facing Downshire Street, and it slopes towards Lower Fort Street where it is set back from the parapet and will not be clearly visible from this street. It will be able to be viewed from Downshire Street and the Park but it will partially fill the “gap” that was left when the roof of 79 Lower Fort Street was not extended into the site. The roof addition will have an acceptable impact on the heritage significance of the building and the conservation area. Furthermore, it does not result in unacceptable privacy or overshadowing impacts and will greatly improve the amenity for the occupants of the house. The variation to the height control is consistent with the objectives of the zone and of the standard and strict adherence to the standard is unreasonable and unnecessary in the circumstances of the case.

23. Ms Mountstephens also considered that the proposal respects the main streetscape and façade of the building (Lower Fort Street) as the additions are visible from the rear, rather than the front of the building. In her opinion, this “is in keeping with the design demonstrated by the original building, which concentrated the more expensive materials and decorative details on the primary Lower Fort Street façade while using cheaper materials and more standard details on the rear façade”. The building is a “discrete structure” and is therefore able to be changed without affecting the cohesiveness of a pair or a group of buildings. Although, clearly visible from Downshire Street and the surrounding area, the roof addition will “read as separate, secondary element that is more like a “dormer” that projects from the existing roof, rather than an additional storey”. In her opinion, the proposal is consistent with the CMP and the requirements of the DCP for alterations and additions.

24. Mr Dickson and Professor Weirick supported Ms Mountstephens’ opinion. In particular, they considered the height variation to be acceptable because it was consistent with the height of the adjoining and other buildings within the area, improves the amenity of the dwelling, achieves a high level of architectural design and does not impact on the significance of the item or the HCA. Mr Dickson prepared photomontages to illustrate the proposal from Lower Fort Street and Downshire Street, although views from the park and the wider visual catchment were not provided. Mr Dickson and Professor Weirick considered that as the proposed roof addition would be set behind the parapet it would be almost imperceptible from Lower Fort Street and from Downshire Street it would read as a subsidiary element and not impact on either streetscape. Professor Weirick considered that views from outside the HCA were not as important as views from within and for these to be considered would require a “buffer” zone around the HCA.

25. Professor Weirick also noted that it was originally intended that 79 Lower Fort Street would be extended with a terrace house to be built on the site. However, this did not occur and the site remained vacant until the 1920’s when the shop and residence with a skillion roof behind a parapet was built, with a lower height than the pitched roofs of the adjoining properties thereby creating a “gap” in the streetscape. Professor Weirick referred to paintings from the 1950’s, which illustrate a pitched “terrace house” roof on the site as indicating that filling the “gap” is appropriate. He considered the proposed roof addition would read as a “contemporary, visually subservient element to the front and rear façades” of the site and that its height will not have an adverse impact on the building or the HCA.

26. Ms Hill considers that the roof addition results in an unreasonable and unnecessary breach of the height standard because of its adverse impact on the heritage significance of the item and the HCA. Ms Hill referred to the various listings for Millers Point where it is identified as being a conservation area of State significance and the majority of buildings within the area, including the site, are heritage items of State Significance. The history of the area in government ownership with key development occurring between 1830s to 1930s has resulted in a high degree of integrity of the HCA. The building on the site also has a high degree of integrity and is listed as being of State significance as “a rare surviving, purposely designed and built Inter-War Period shop and residence…and is the only one of its type in the HCA”.

21. State heritage controls, CMP and the LEP/DCP controls apply to the building and the HCA and impose a high degree of care to the management of change. Ms Hill considers that “the high visibility and high integrity of both the front and rear facades restricts development potential to the rear ground level in order to protect the integrity and significance of the area”. The proposed alterations and removal of original fabric will impact on the integrity of the building. In her opinion the roof addition, which does not comply with the height control, dominates the roof of the building and will be viewed as an additional storey from the rear and distant viewpoints. Ms Hill considers that filling the “gap” is not an appropriate heritage outcome as the “gap” illustrates the decision not to extend 79 Lower Fort Street due to the recession of the 1840s, and the 1928 building is a different style to the other earlier buildings. This difference reveals a layer of history and is part of its significance and should be maintained, rather than homogenised, as illustrated in the paintings referred to by Professor Weirick.

22. In Ms Hill’s opinion, the roof addition would be visible above the parapet and from the side in Lower Fort Street. She also did not agree with Professor Weirick that views from outside the HCA were less important and because of the topography, the roof addition would be highly visible from Downshire Street and the park. The rear of the building, within the broader context of Millers Point, would be able to be viewed from the public domain, including from around Sydney Harbour. In her opinion, the rear of the building, although less detailed than the front was equally significant, which is recognised in the CMP where both facades are identified as elements of high significance. Ms Hill considered that the proposal would adversely impact on the significance of the building and the HCA.

23. Mr Jamieson shared Ms Hill’s opinion, that the roof addition would be highly visible and have an adverse impact on the building and the HCA. He considered that the proposal did not meet the objectives of the height control and the variation to the standard should not be supported.

Findings

30. Clause 4.6 of the LEP relevantly states:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

31. Clause 4.6(2) enables development consent to be granted to a development, which contravenes a development standard if the requirements of cl 4.6(4)(a) and (b) are satisfied. This is a precondition that must be met before the proposed development can be approved on a consideration of its merits.

32. In Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, Brown C outlines an appropriate assessment framework for cl 4.6. He states at [39] to [41]:

39 Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

40 In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

41 A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

Is the proposed development consistent with the objectives of the zone? (cl 4.6(4)(a)(ii))

33. The objectives of the R1 Zone under the LEP are:

To provide for the housing needs of the community.

To provide for a variety of housing types and densities.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To maintain the existing land use pattern of predominantly residential uses.

34. The parties did not raise consistency with the zone objectives as an issue in the proceedings. They generally supported the continued residential use of the property and the use of the former shop as a Home Business, although Ms Hill did not consider that this type of commercial use maintained the significance of the former shop use or was necessary.

35. Pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is consistent with the zone objectives and is therefore in the public interest.

Is the proposed development consistent with the height standard objectives? (cl 4.6(4)(a)(ii))

36. The relevant objectives of the height standard in cl 4.3 of the LEP are:

(a) to ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote the sharing of views,

37. The parties agree that any consideration of the breach of the height standard must involve a consideration of the impact of the roof addition on the heritage significance of the existing heritage building and the HCA, which for the reasons that I discuss below, are unacceptable.

38. Brown C in Bates Smart at [47] discussed the intent of objective (a) and I agree with his conclusions that the words "condition of the site", should be given:

a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case. I have taken "context" to be principally the visual catchment from the site.

39. If considered on this basis, I agree with the conclusions of Ms Hill and Mr Jamieson. There is a considerable change in level between Lower Fort Street and Downshire Street which results in the existing building appearing as two storeys from Lower Fort Street and three storeys from Downshire Street. The design of the existing building with a skillion roof behind a parapet also means that it is lower than its adjoining neighbours and other buildings, which have pitched roofs. Due to its design, the proposed roof addition will generally maintain the building’s existing appearance when viewed from the front in Lower Fort Street. However, the roof addition will be visible when viewed from the side, along Lower Fort Street and will obscure views of the chimney at 73 Lower Fort Street, which appears as an important element of this building and contributes to its context.

40. From Downshire Street, the roof addition will appear as an extra storey, not as a dormer within a roof and it will not be a secondary element or visually subservient. The rear façade is different and less detailed than the front but it is also identified in the CMP as being of high significance, which is acknowledged by Ms Hill and Ms Mountstephens. The rear of the building is also highly visible from a number of vantage points and the roof addition, its relationship to the existing building, the adjoining buildings and its wider context will be able to be seen. While the roof addition may be an appropriate urban design outcome, I accept Ms Hill’s opinion that it is not an appropriate heritage outcome. The roof addition will alter an intact building and infill the “gap” between the adjoining buildings, which is part of the layering of development and part of its significance. For these reasons, the changes to the building impact on its significance and that of the HCA. The proposal would be consistent with the height of other buildings, but for heritage reasons the additional height is not appropriate to the condition of the site and its context.

41. Objective (b) of cl 4.3 of the LEP seeks an appropriate transition, in relation to height, between the proposed development and heritage items and buildings in the heritage conservation area. The principal relationship of the building is to the adjoining buildings in Lower Fort Street and Downshire Street, which are higher than the existing building. As discussed above, the additional height and changes to the roof will be visible from the public domain and the existing height transitions between heritage buildings and buildings in the HCA will be changed by the proposal in a manner that is not appropriate to the heritage values.

42. The parties agree that the proposal is consistent with Objective (c) and does not impact on the sharing of views.

43. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I am not satisfied that the proposed development is consistent with objectives (a) and (b) of the height control in cl 4.3(1) of the LEP. It is therefore not in the public interest, and consent cannot be granted.

44. As the cl 4.6 variation fails on these grounds it is not necessary for me to consider, pursuant to cl 4.6(4)(i), whether the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) namely:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

that there are sufficient environmental planning grounds to justify contravening the development standard.

45. If I were to have been satisfied with the matters in cl 4.6(4)(a)(ii), it would have been necessary for the parties to be given the opportunity to address the recent decision of Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, which provides further guidance on the matters to be demonstrated in the written request required under cl 4.6(3) and the satisfaction required under cl 4.6(4)(a)(i).

Merit consideration

46. As the matters in cl 4.6(4)(a)(ii) have not been satisfied, the application is prohibited and a consideration of the merits of the application is not required. For completeness, I will briefly expand on these matters, which principally involve the height of the building and the impact of the roof addition, as well as the enclosed verandah, on the heritage significance of the building and the HCA.

47. In addition to the impact of the roof discussed above, the experts held different opinions about the proposed enclosed verandah extension. The experts agree that the existing enclosed verandah can be removed and replaced but they disagree on the impact of the replacement extended verandah. Ms Mountstephens states that the larger area is necessary to provide a living area for the dwelling at the same level as the kitchen and dining area as the “former shop” is to be used as a home office. The existing verandah is only 1.8m wide which is inadequate to provide a living area and the proposal will increase the internal width to 3m. She considers that the size, design and location of the verandah addition would minimise the impact on the rear façade and is of limited visibility.

48. Ms Mounstephens also considered that other options to extend the building or adapt the lower ground floor or former shop would not provide the same level of amenity as the proposal, as a result of problems such as damp, lack of ventilation or access to light.

49. Professor Weirick considers the proposed verandah extension is compatible with the variety of rear extensions in Downshire Street, including recent additions, and illustrates the layers of history in the conservation area. In his opinion, the only consistent unifying element is the 1918 brick wall along the rear of the properties in Downshire Street. Mr Dickson considered the proposed extension to be acceptable but suggested an increase in the roof pitch of the verandah to reduce its height and bulk (Exhibit F).

50. Ms Hill’s acknowledged that along the length of Downshire Street there are different rear alignments but in the block within which the site is located, there is a consistent rear alignment. The increased width of the verandah would extend further forward of the rear alignment of the other terraces and together with the increased height and overall bulk of the verandah would alter the rear façade and presentation of the building and its neighbours. The addition would be highly visible along Downshire Street and together with the roof top addition would significantly change an intact facade and views in the streetscape.

51. Furthermore, in Ms Hill’s opinion, the applicant had not adequately considered other options for changes to the building that could adequately meet reasonable accommodation needs, such as utilising or extending the ground level at Downshire Street or utilising the former shop as a living area, which is currently the case. She considered that issues in relation to damp, ventilation etc could be resolved.

Findings

Heritage significance of the item and the HCA

52. The heritage experts agreed on the numerous heritage listings of the property and Millers Point/Dawes Point and included statements of significance from the key Heritage Inventory Sheets. For the purpose of assessing the application under the EPA Act the relevant inventory sheets are those which relate to the listing of the item and the HCA under the LEP, although these do not differ in substance from the State heritage Inventory Sheets under the Heritage Act.

53. The Inventory Sheet for the item (I564) under the LEP includes the following Statement of significance:

Statement of Significance

No. 75-77 Lower Fort Street is a rare surviving example of a purpose designed and built Inter-War Period Free Classical Style shop and residence. With the Hero of Waterloo hotel at No. 81-83, and its neighbour at No.79 Lower Fort Street, it represents the commercial-retail hub that played an important part in servicing the local community. The building has social significance as it has been used for its intended purpose as a local shop and residence continuously for 83 years (from 1928 until 2011) serving the local community. It demonstrates the intervention of the Sydney Harbour Trust in promoting local community facilities in the context of the major reconstruction works undertaken following the outbreak of the Bubonic plague. This purpose built retail and residential building is an important component in the long line of important structures along the western side of Lower Fort Street which have contributed to the character of the State significant Millers Point Conservation Area.

Date significance updated: 30 Jul 14

54. The Inventory Sheet for the HCA (C35) under the LEP relevantly includes the following Statement of Significance:

Statement of significance

Millers Point Heritage Conservation Area is a substantially intact residential and commercial precinct of outstanding State and National significance. It contains buildings and civic spaces dating from the 1830s and is an important example of nineteenth and early twentieth century adaptation of the landscape. Millers Point has changed little since the 1930s.

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 local Aboriginal clans and the place remain evident in 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 and views from the harbour to the area.

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 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.

The Millers Point Heritage Conservation Area 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 occupation 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 area contains numerous original and characterful views to and from the harbour that are formed by a combination of dramatic topography and long physical evolution. It is the extent, the expansiveness, the change of view of individual buildings as the viewer moves around the water that gives the place distinction and significance. The variety, complexity and scale of views from the wharfs, observatory hill, from roadways, edges of escarpments and walls are significant in defining the character of the area. The area is significant, as aside from the southern edge of the precinct, it is not overpowered by city scale development. The area contains numerous streets and lanes of historical and aesthetic significance. The area contains numerous features such as steps, fences, rock cuttings of historical and aesthetic interest.

The whole place remains a living cultural landscape greatly valued by both its local residents and the people of New South Wales. The value of the area is further enhanced by its separation from the Rocks precinct, which is predominantly commercial in use with Millers Point retaining its residential character, in particular worker housing. This is a rare continuing use. The character of the area is almost defined on a street by street basis rather than a broad precinct basis, but the most striking element is the homogeneity of the whole. With very few exceptions every element of the precinct contributes to the whole in a significant way.

The relative intactness (or interpretation in cases of redevelopment) of the area is representative of measures taken to protect the heritage values of individual buildings and the precinct as a whole since the 1950s by the local community and Heritage/Historic Groups. This led to the listing of Millers Point Heritage Conservation Area and individual listings for items in the area within planning control documents.

The Millers Point area is of State and National Significance as a rare urban residential area remnant of early port of Sydney dating from the early 1800s which remains relatively unchanged since the 1930s; exhibits a range of fine buildings and spaces from the 1830s-1920s with high individual integrity, important collection of Government housing (built for port workers) and community maritime associations from European settlement to 20th century. The area has changed little since the 1930s, the high degree of integrity and authenticity area and of individual buildings

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Date significance updated: 11 Jan 12

55. The HCA is of State and National importance. The experts agree that of the 77 conservation areas within Sydney Local Government Area only one, the Millers Point HCA, is within the Sydney CBD. It is the only one that is State listed and there are only four State listed conservation areas in the State.

56. Part of the significance of the HCA relates to its intactness and that it has remained relatively unchanged since the 1930s as well as the quality of individual buildings and groups of buildings and spaces from the 1830s to the 1920s, which retain a high degree of integrity and each contributes to the area. The visibility of the area and of the individual elements is also part of its significance.

57. Within this context, part of the significance of the site is that the building is different to its adjoining neighbours as it was built at a later period and for a different purpose, which demonstrates layers of development that have occurred within the HCA. The experts agree that the “building represents a “missing tooth” in the roof scape of Millers Point Conservation Area as a consequence of the historical development of the subject site as a purpose built shop of the 1920s, which differs in form, function, and architectural expression from the predominant nineteenth century terrace house character of the Millers Point Conservation Area”.

58. The CMP, although not endorsed by the Heritage Council or the council, was considered in the assessment report to the Heritage Council and referred to by the heritage experts. It provides additional guidance as to the significance of the building. The CMP grades the east (front) and west (rear) elevations as a whole as well as the original external character, form massing, scale, detailing and decorative elements of the building as having a high level of significance. In addition, it recognises that the front and rear elevations have had no major modifications, other than the enclosed verandah, which is identified as having moderate significance and is not in good condition. The common party wall with 79 Lower Fort Street is identified as having exceptional significance.

Impact on heritage significance of the item and HCA

59. Clause 5.10(4) provides that before granting consent under this clause in respect of a heritage item or heritage conservation area, the Court must consider the effect of the proposed development on the heritage significance of the item or area concerned. Given the State significance of the HCA and the item, I accept Ms Hill’s opinion, that the relevant controls impose a high degree of care to the management of change.

60. The Inventory Sheet for the HCA includes the following Recommended management:

(1) The objectives for the management of this conservation area: (a) to ensure that any new development respects the adjoining development and maintains the predominantly two storey residential character of the residential areas and the predominant and large scale form and character of the wharf areas, (b) to conserve and reinforce its heritage significance and historic character, …. (e) to maintain significant existing views and vistas into and out of the precinct to the water and Harbour Bridge north and to the city south, and Observatory Park, (g) to conserve the continuity of Millers Point and adapt to meet the continuing needs of the significant uses …. (3) Retain major viewscapes from the precinct to the harbour, the Sydney Harbour Bridge and headlands beyond…..(4) Any new infill building within the area should not detract from or adversely impact on any identified significant views or vistas. (5) Any new or replacement building within the Conservation Area is not to adversely impact on established views either to, around or over that building. This will affect height controls, siting of new buildings and the design approach so that generally new work will need to provide a contextual fit into the area…..

61. The Inventory Sheet for the item includes the following Recommended management:

Recommended management

The building should be retained and conserved. All conservation, adaptive reuse and future development should be undertaken in accordance with the Australia ICOMOS Charter for Places of Cultural Significance (The Burra Charter). A Heritage Assessment and Heritage Impact Statement, or a Conservation Management Plan, should be prepared for the building prior to any major works being undertaken. There shall be no alterations to the façade of the building other than to reinstate original features. Any additions and alterations should be confined to the areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls. 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.

62. The Inventory Sheet for the item was updated and expanded after the development application was lodged. Notably the Recommended management deletes that “there shall be no vertical extensions to the building” which was included in an earlier Inventory Sheet and includes “Any additions and alterations should be confined to the areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls”. It also includes, as reference documents, the CMP and the SHI for the development.

63. The CMP includes constraints and opportunities (s 6) and conservation policy (s 7) for the building. Section 6.8 includes the potential opportunity for a sympathetic addition to the rear of the property or behind the parapet well set back from the street. The conservation policies in s 7 place constraints on future development to retain the significance of the item.

64. The DCP includes provisions for development affecting heritage items (s 3.9.5) and which seek to “minimise the extent of change to significant fabric, elements or spaces”, “enable the interpretation of each of the significant values of the item”, “not reduce or obscure the heritage significance of the item”, “be designed to respect and complement the heritage item” and be consistent with an appropriate heritage conservation management plan”. The provisions for development in Heritage conservation areas (s 3.9.6) in the DCP include consideration of “views to and from the site”. Section 4.1.4 of the DCP also includes provisions for alterations and additions which are “dependent upon the size of the site, the context of the building, heritage significance of the building and the impact upon neighbouring properties and the wider area”.

65. The difference of opinion between the experts about the impact of the roof addition is discussed above. Principally, this difference centres on whether it is appropriate to fill the “gap” between adjoining buildings. Prof Weirick and Ms Mountstephens consider that as this was what was originally intended for the site, it is now appropriate. However, I do not accept this position. While it may be appropriate to fill the “gap” if the site were part of a consistent row of terraces or if a building had been partially constructed but never completed. However, in the circumstances of this case, although it may have been intended that the site be developed as a terrace with a pitched roof, this did not occur and instead a different building, being the shop and residence, was constructed with a parapet and skillion roof, which has formed the “gap” between the buildings. As discussed above, this illustrates the different types and layering of development in the area and this difference should be maintained.

66. While the CMP also identifies a roof addition as a potential opportunity for future development, this appears to be largely on the basis of the original intention and the need to protect the party wall at 79 Lower Fort Street. The proposed roof addition is set back from this party wall and consequently would not achieve this objective but is a better design response than building up to and obscuring the party wall, which is identified as being of exceptional significance. Furthermore, the Guidelines for development and the Conservation Policies include that any roof addition should have no adverse impact on the significance of the site and streetscape, should be limited to works that are complementary and subservient to the original building and should not alter or negatively impact on external facades that are of high significance. While the proposed roof additional is well considered and designed, I accept Ms Hill’s evidence that the relevant conservation policies are not met and that a roof addition of this volume and form would appear as an additional storey, which would not be subservient to the original building, is not an appropriate addition to the building and does not maintain the predominantly two storey character of the area.

67. Similarly, the proposed verandah extension will reduce the intactness of the rear façade by providing a higher and larger addition which extends forward of the rear alignment of other building in the block and is visible along the street. I accept Ms Hill’s evidence that this addition, together with the roof addition would impact on the significance of the item and the HCA. In reaching this conclusion, I note that the verandah extension is sought to be justified largely on the basis of providing a living area, principally because the “former shop”, which is currently used as a living area, is to be used as a home business. The mixed commercial/residential use of the building is an important part of its significance, and it is desirable to retain a commercial use along the street frontage. However, it is questioned as to whether the home business would achieve this outcome and is a token effort. While the experts did not object to this use, I accept Ms Hill’s opinion that it should not be used to justify the rear extension to the verandah and that there may be other options to retain the former shop front and provide an active street frontage, while permitting the former shop to be used as a living area. There are also other options, such as relocating the kitchen into a rebuilt verandah or the ground level or a new ground level addition off Downshire Street, which could be further investigated, although these may not provide the same level of amenity to the occupants.

68. The roof addition also would provide a significant level of amenity to the occupants by providing about 35sqm of additional area with views to be used as a bedroom, with walk in robe and ensuite. However, there are opportunities within the existing envelop of the building to provide an ensuite to a main bedroom. The existing building, as with other buildings in Millers Point, provides modest workers accommodation and therefore may not be able to provide the level of amenity sought by some owners. The impact of changes to improve the amenity of these buildings needs to be balanced against the State level significance of the item and the conservation area. The changes sought by the applicant to meet their needs are not reasonable given the impact on the heritage significance of the item and the HCA, however, the building would be able to be adapted to provide adequate and reasonable amenity to meet contemporary residential standards.

69. A number of the internal changes such as the new bathroom are not opposed by the council, however, it is not appropriate that these be approved in isolation but rather that they be considered as part of a further development application for the dwelling. A conservation management plan that has been endorsed by the Heritage Council should form the basis for any further application.

70. For the reasons discussed above, I accept the evidence of Ms Hill that the proposal will have an unacceptable impact on the heritage significance of the building and the HCA.

71. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the item and HCA, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application.

72. I also accept the reasons for refusal of the application recommended by the Heritage Council and I am not persuaded to reach a different conclusion.

Orders

73. The orders of the Court are:

1. The appeal is dismissed

2. The development application (DA/2014/754) for alterations and additions to an existing dwelling and former shop for use as a dwelling and home business at 75-77 Lower Fort Street, Millers Point, Sydney, is refused;

3. The exhibits, except Exhibits 1 and B, are returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 07 July 2015