Shed Architects Proprietary Limited v Council of the City of Sydney
[2017] NSWLEC 1607
•31 October 2017
|
New South Wales |
Case Name: | Shed Architects Proprietary Limited v Council of the City of Sydney |
Medium Neutral Citation: | [2017] NSWLEC 1607 |
Hearing Date(s): | 23 and 24 May 2017; with further material filed on 6 and 7 June 2017 |
Date of Orders: | 31 October 2017 |
Decision Date: | 31 October 2017 |
Jurisdiction: | Class 1 |
Before: | Martin SC |
Decision: | The Orders of the Court are: |
Catchwords: | Modification application – heritage significance – construction drawings at DA stage – interpretation of Heritage Inventory – reversible damage – amenity – public interest |
Legislation Cited: | Environmental Planning and Assessment Act 1979 s 79C, 79C(3A), 98(6) |
Cases Cited: | Nil |
Texts Cited: | Nil |
Category: | Principal judgment |
Parties: | Shed Architects Proprietary Limited |
Representation: | Counsel: |
File Number(s): | 2016/350668 |
Publication Restriction: | No |
Judgment
The Applicant has lodged an application under s 96 (8) of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking consent for amendments to development application D/2015/1111 which granted approval, on 17 May 2016, for adaptive reuse of a heritage-listed building as a boutique hotel. The amendments sought by the application originally included the following changes:
(i)Removal of a storey to the northern addition and realignment of floor levels;
(ii)Amalgamation of hotel rooms;
(iii)Alterations to window openings;
(iv)Addition of three bathrooms to the southern boundary at lower ground level;
(v)Relocation of the waste storage area, the air conditioning condensers and the fire egress;
(vi)Replacement of fencing to the southern boundary; and
(vii)Amendment to Condition 22(e) in relation to the chapel ceiling reinstatement.
After the joint reporting process and preparation of updated plans, the issues in contention narrowed to the following matters: the addition of three proposed bathroom pods in the undercroft (lightwell) fronting Albion Street, and the replacement of the front palisade fence.
The dispute between the parties narrowed further during the course of the hearing, with the parties reaching agreement with respect to an acceptable design of the front fence.
The decision of the Court is that the appeal is upheld, with the modification application granted pursuant to the Conditions of Consent shown at Annexure ‘A’.
The Site and Locality
The building the subject of this appeal, a three storey brick heritage building, is located at 88 Albion Street Surry Hills (the Site). It has a southern orientation, an area of 537.9 sqm and a 15.42 frontage to Albion Street and an 8.64m frontage to Little Albion Street. The Site falls from south to north by 4.5 metres.
From Albion Street, the building presents as two storeys, with a third storey located below street level. It is at this lower level that the bathroom additions, known as Pods, are proposed to be located. The building is set back from the street and the main entrance has historically been via stairs located over a breezeway/lightwell, providing light and ventilation to the rooms at lower level. A foundation stone laid in 1901 is located in the breezeway area.
The Site has seen a number of uses, from its original use as a convent following its construction in 1903, to a hostel used by the St Vincent de Paul Society in the 1960s, and most recently, as units for the Bobby Goldsmith Foundation in the 1990s. The recent court-approved consent allowed for the use of the Site as a 35 room boutique hotel, including internal reconfiguration of ground, first, second floors for hotel rooms; a one storey addition above the existing heritage building; a 4 storey infill building at the rear on Little Albion Street for serviced apartments; a roof top communal garden; and a glass lift and stairs.
The Site is identified as Heritage Item 11410 under the Sydney Local Environmental Plan (Sydney LEP). That item is a group listing of four buildings, described as the “St Francis de Sales group buildings, including interiors” at 80 – 96 Albion Street, Surry Hills. The Site was associated with the former church to the west at No 82 (St Francis). To the Site’s east is the former St Francis School building, which has been converted into apartments. Opposite Albion Street to the South are two storey residential dwellings. At the northern end of the Site, opposite Little Albion Street is the multi-storey Ausgrid Surry Hills substation and two storey residential dwellings.
The Site is also situated within the “Reservoir Street and Forestville” Heritage Conservation Area under Sydney LEP at Schedule 5.
Background to the Application and the Proposal
Development consent was originally granted for adaptive reuse of the Site as a boutique hotel in May 2016. Subsequently, the Applicant sought to have the consent amended in the manner set out at [1] above.
The s 98(8) modification application was lodged with the Court on 23 November 2016. It was duly notified. Two submissions objecting to the application were received, which mostly raised matters which were relevant to the original approval. However, there was an objection that the modifications did not respect the heritage features of the area.
A section 34 conciliation conference held in February 2017, which I conciliated, was terminated as the parties could not reach agreement. The parties did not object to my determining this matter. Subsequent to that conference, amended plans were prepared following the granting of the Court’s leave on 21 March 2017, and these became the plans relied upon in these proceedings.
The main issue between the parties concerns the addition of three bathrooms, or pods, which will adjoin rooms 107, 108 and 100 (the Pods). The Pods are a three-sided structure, to be placed in to the undercroft space, with the fourth side comprising the existing brickwork of the building. They will be joined to the building via flashing. Beams will also provide structural support.
The proposal requires the conversion of window openings through the removal of brick courses below the window sill into door openings, to allow access from the rooms to the Pods.
The window beneath the bridge is smaller in size than the other two, and is not original. It will be opened up in the same way as the other two windows to allow access from Room 108. The proposal also involves two light wells being placed in the roof, sitting either side of the bridge.
In the course of examination of the draft construction plans handed up by the Applicant to assist in the hearing, it became apparent that the installation of the Pods would require some damage to be done to the brickwork, and not simply the removal of mortar, to allow for installation of the flashing. This is discussed further below.
The Relevant Statutory Controls
Under the Sydney LEP the Site is zoned B4 Mixed Use. Tourist and Visitor Accommodation is a use permissible with consent as an innominate use, while there is express provision made for Hotel or Motel Accommodation, which is permitted with consent. Permissibility is not in issue.
Clause 5.10 of the Sydney LEP is concerned with Heritage Conservation. Clause 5.10(1) of SLEP provides relevantly that its objectives are:
(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.
Clause 5.10(2) provides that development consent is required to alter the exterior of a heritage item, including making changes to its detail, fabric, finish or appearance.
Clause 5.10(4), a mandatory requirement, is in the following terms:
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).
The Heritage Inventory (attached to Ex 2) assessed the significance of the St Francis De Sales Group of Buildings as having local significance. The Statement of Significance describes the convent as “a symmetrical Federation Freestyle two storey face brick building with timber double hung windows and timber panel doors.” The recommended management includes the statement that “the building should be retained and conserved”.
The Sydney Development Control Plan 2012 (Sydney DCP) sets out the framework with respect to development within both heritage sites and areas. The Sydney DCP is consistent with the Australia International Council on Monuments and Sites (ICOMOS) Charter for Conservation of Places of Cultural Significance (the Burra Charter).
Clause 3.9 sets out the heritage planning provisions, which are underpinned by the principles that change should be based on an understanding of the heritage significance; and the level of change should respect the heritage significance of the item or area.
Heritage items are considered at cl 3.9.5 of the DCP. It is reproduced below.
3.9.5 Heritage items
Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant views to and from the property.
Objective
(a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.
Provisions
(1) Development affecting a heritage item is to:
(a) minimise the extent of change to significant fabric, elements or spaces;
(b) use traditional techniques and materials where possible unless techniques and materials can offer substantial conservation benefits;
(c) enable the interpretation of each of the significant values of the item through the treatment of the item’s fabric, spaces and setting;
(d) provide a use compatible with its significance and which with any changes proposed, including any BCA upgrade or the introduction of services will have minimal impact on significant fabric, elements or spaces;
(e) the provision of on-site interpretation, or a combination of each of these measures;
(f) not reduce or obscure the heritage significance of the item; and
(g) be reversible where necessary so new work can be removed with minimal damage, or impact to significant building fabric.
(h) be consistent with an appropriate Heritage Conservation Management Plan, Conservation Management Strategy, or policy guidelines contained in the Heritage Inventory Assessment report for the item;
(i) ensure that any changes to the original/significant room configuration is evident and can be interpreted; and
(j) respect the pattern, style, dimensions or original windows and doors.
(2) Development should enhance the heritage item by removing unsympathetic alterations and additions and reinstating missing details, building and landscape elements, where physical or documentary evidence is available.
(3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the:
(a) building envelope;
(b) proportions;
(c) materials, colours and finishes; and
(d) building and street alignment.
…
Under the Sydney DCP, the objective for amenity set out at cl 4.2.3 is to ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy. Clause 4.2.3 applies to mixed use, commercial and residential uses. The objectives for visitor accommodation are set out at cl 4.4.8, while serviced apartments are provided for at cl 4.4.8.5.
The Locality Statement for Riley Locality (Sydney DCP section 2.11.2), which encompasses the Site, includes amongst its principles that:
(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.
…
d) Maintain the consistent heritage character of Albion Street. Future development along the street is to reflect the scale of these heritage items and adjacent contributory buildings.
The Site Visit
During the section 34 conciliation process, I had the benefit of attending the Site together with the parties, their experts and advisers. I was shown the exterior and walked along the undercroft and around the building’s perimeter, observing the façade, the fence and its relationship to other buildings in the vicinity along Albion Street.
While there was evidence given on site by objectors, the Council’s position is that their objections, and the objections received during the advertising period, primarily touched on concerns to do with height, setback and confusion about the windows – all matters which were the subject of the original approval, rather than this modification application. They thus had no bearing on the outcome of these proceedings, whatever might be their merits.
The Council’s Contentions
The Council’s contentions can be summarised thus: the three bathroom Pods proposed to be constructed in the lightwell fronting Albion Street will have a negative impact on the heritage significance of the heritage building. This is contrary to the objectives of cl 5.10 of the Sydney LEP and the objectives of the DCP, in particular cl 3.9.5 which is concerned about development in the vicinity of a heritage item, and cl 3.9.6 with respect to controls for heritage conservation areas. The proposal will have a significant impact on heritage fabric, and will affect the presentation of the building to the street.
Further, the addition will affect the architectural integrity of the building, which was designed to sit behind the retaining wall and reveal four sides at the lower ground level; the breezeway and connecting bridge are important features; the roofs of the Pods will conflict with the existing arched windows at the lower ground level façade; the insertion of roof flashings and wall fixings will damage or disturb the walls and the bathrooms will affect the foundation stone on the western side of the connecting bridge: Amended Statement of Facts and Contentions, Ex 1 at [37].
In addition, the Council says that the bathrooms result in a poor planning outcome as they will limit the natural light and ventilation available to king rooms 108 and 100 at the lower ground level. Under cl 4.4.8 of the DCP, there is an expectation that good amenity will be provided with visitor accommodation. The proposal does not comply with cl 4.2.3 of the Sydney DCP.
The Evidence
Evidence was provided for the Applicant by Mr Stephen Davies (Heritage specialist), and for the Council, Mr Hi Wang (Heritage specialist) and Ms Julia Errington (Town Planning). A joint report [Ex 2] was filed by these experts on 2 May 2017.
The Applicant also furnished the Council and the Court with more detailed drawings [Ex C] which demonstrated how the Pods would be constructed and installed. These draft drawings foreshadowed draft condition 22, which condition seeks construction details of the bathroom pods. While consent is not sought for these drawings, they sought to inform the further evidence given by the experts in the hearing.
Matters agreed between the experts were as follows: the breezeway is located within the original building configuration; it provides natural light and ventilation to lower ground level rooms facing south; the proposed bathroom addition will be visible when walking along the northern side of Albion Street, with the current fencing arrangement.
The Joint Report was supplemented and partially overtaken by oral evidence in the hearing with respect to the detail of the Pods and their method of attachment to the fabric of the building.
Mr Wang for the Council is concerned about the physical and visual impact of the proposed additions, and is of the opinion that the proposal should not go ahead. Mr Davies accepts that there will be an impact on the building, but this impact is not so significant that it is not satisfactory to do the proposed work and still maintain the Site’s significance. The experts also disagreed about which components of the building were important from a heritage perspective.
The Pods
Mr Davies explained the philosophy behind the Applicant’s approach with respect to the Pods. In Mr Davies’ opinion, the presentation of the building is primarily of a two-storey building (face brick) with a basement level (of common brick). The light well (or breezeway) to the lower rooms does not form the principal façade of the building in its streetscape presentation. The common bricks are less finished, of a different brick type, and are of less visual importance. The difference in quality is evident in photograph 6 of Ex 4:
Mr Davies supports the bathroom additions, stating that although there will be some impact on the heritage item, the bathroom additions are not to the detriment of the heritage building. The breezeway is not an attractive space. The addition with the proposed skylights will provide light and ventilation to the bathrooms and the foundation stone will be kept within a bathroom area.
The roof is proposed as zinc, but could be glazed similar to a conservatory. It will sit at a lower level than the bridge and will be a simple design. It is proposed not to interfere with the existing windows’ heads.
Mr Davies gave an explanation in the Joint Report of his understanding as to how the Pods are proposed to connect to the Heritage fabric. The structure is independent, based on a steel frame, which can be placed independently both of the front wall of the building, and of the sloping retaining wall to the street. The Pods touch the wall very lightly, and are fixed into the mortar of the bricks through the flashing. The flashing is intended to be flashed in above the brickwork on top of the windows.
Originally it was Mr Davies’ understanding that the flashing would not result in damage to any bricks, but it became apparent in the course of examination of the construction drawings [Ex C] that there would be a need to cut through the soldier bricks above the windows to install the flashing. Mr Davies accepts that there will be physical penetration to the brickwork, but this will not change the appreciation of the building, in his view.
The Heritage Inventory describes the Site as “a symmetrical Federation Free Style two storey face brick building with timber double hung windows and timber panel doors”. The description is not of a three storey building. Mr Wang conceded that the two storeys above street level have a higher significance, but did not concede that the basement level is of very little significance. Mr Wang relied upon the recommendation that the building be “retained and conserved”. However, Mr Wang did concede that if locations could be found on the site for things that are not visibly prominent, and in areas of less significance, that is what is contemplated by the Heritage Inventory.
According to Mr Wang, the brickwork and fenestration at lower ground level facade remain unchanged and they contribute to the character and significance of the building. The proposed bathroom additions will significantly affect the building’s presentation and its essential setting.
The additions will also significantly affect the presentation of the footbridge between the street and the building. The bridge is an important part of the building, says Mr Wang, which needs the deep breezeway to both sides to make it be perceived as a bridge.
The new roof would be high and more visible from Albion Street, and would also be above the base of the bridge steps and have an awkward junction with the bridge. Metal flashings would need to be higher than the roof or gutter to prevent the rainwater from entering the brick walls. The addition of the flashing would require cutting slots into the brickwork, causing damage to the heritage fabric and affecting its appearance
The additions would likely have an adverse impact on the retaining wall along Albion Street, as the wall needs either waterproofing and cladding, or a separation from the new bathroom wall. Waterproofing will likely cause irreversible damage to the brick surface, while a small gap between the brick wall and the additions will make wall maintenance, including removal of vegetation, very difficult if not impossible.
Mr Davies did not agree that there would be damage caused by the gap between the brick wall and the additions, as this could be managed through the placement of flashing above the gap, as well as open sides to allow for movement of air.
Mr Davies did not accept that the bridge was an important element – unlike Mr Wang, Mr Davies’ view is that the bridge is a rudimentary structure without aesthetic significance, and is a set of steps from the footpath to the front door. When the pods are in place the curve of the bricks of the bridge will still be visible. It will be obvious to a person using the steps that they are crossing something that is infilled with a different materiality. In Mr Davies’ opinion, the bridge is rudimentary and unexceptional, without high aesthetic significance.
Mr Davies’ opinion is that if a stock brick is damaged, it can be repaired through brick dust or the damaged brick can be replaced. In the case of repair, over a period of time the repair would not be visible. As these are not rare elements (given stock bricks are readily available) such repair is possible. Moreover, it will not change the appreciation of the building.
The experts also disagreed about the visibility of the Pods. Mr Wang is concerned that the lower ground level façade is very notable from Albion Street when people walk along the footpath. They can look at the building as a three storey form. Mr Davies did not agree, as the lower level can only be viewed from a position close to the fence. Mr Davies stated that the lightwell to the lower rooms is only obvious on close inspection and does not form the principal façade of the building, in its streetscape presentation.
Mr Davies adhered to his view that the important element of the building is the face brick façade of the building. He is encouraged in his view by the fact that there is trouble taken with the string courses of bricks and the gothic arches, as well as the gable above the entrance.
No such detail or concern has been taken with the lower ground floor. In most cases Mr Davies would have the opinion that it would not be appropriate to build something in front of a heritage item. However, in this case, given the recess and the fact that the lower ground floor is plain, if something is well designed, it is not in conflict with the recommendations in the Heritage Inventory.
Mr Davies did not agree that the arched shape of the window at the basement level reflects some of the patterning above, instead stating that the construction method of soldier courses was not decoration.
As far as the foundation stone is concerned, Mr Davies expressed surprise at its location – at the lower ground level – but was satisfied that the proposal did not impact upon its retention.
Amenity
The Council’s town planning expert, Ms Errington, gave evidence that the addition of the bathrooms to the front setback will likely result in poor natural ventilation and limited access to natural light for the front rooms along the lower ground floor level, particularly to room 108. The proposed addition therefore does not comply with cl 4.4.8 of the Sydney DCP which requires that acceptable levels of amenity be provided for guests.
The original proposal would allow more light into room 108. This is because under the proposal the subject of the present application, there is no door proposed, the absence of which would result in less light and poor ventilation. Ms Errington did not agree that the skylights on either side of the bridge would provide adequate light.
Ms Errington was of the view that there was a superior alternative, and that the Pods did not add any value to the heritage item. That alternative is to convert Room 108 into two bathrooms for rooms 100 and 107, which would result in the loss of one room, but result in the creation of two larger rooms without any impact on the front façade of the building.
When asked by the Applicant to consider if the improvement to amenity due to an increase in size could be taken into account, Ms Errington responded that while this may be so, the heritage value of the Site needs to be considered as well. The test to apply, according to Ms Errington, is not what is permissible under the DCP, but what the better outcome is. In her view, the better outcome was the original scheme.
Mr Davies expressed the view that only room 108 will not be naturally ventilated, but there is no requirement to naturally ventilate hotel bedrooms, and the proposed skylights will provide reflected light. Mr Davies says the bathroom additions will likely increase natural light through skylights. The side bedrooms will have natural ventilation from the site corridors and the windows will provide light and ventilation.
With respect to public interest, Mr Davies believes the public interest will be well served by a well-designed and well-appointed hotel in the location. The external works below the footpath level will not be highly visible and may be screened further.
Ms Errington says the proposal for bathroom additions to the front of the heritage building is not in the public interest as it will result in reduced amenity for hotel guests, particularly guests of room 108, and will obscure the original setting of a prominent heritage item by enclosing an original breezeway.
Submissions
The Applicant
The proposal needs to be examined in the context of the key controls, which are cl 5,10 of the Sydney LEP and cl 3.9 of the DCP.
The Applicant rejects what it says is the Council’s assertion that there should be no changes to the façade. Specific measures of assessment of impact of the proposal on heritage items are contained at cl 5.10 of the LEP and 3.9 of the DCP. The key controls are 3.9.5 (1)(a), (c), (f), (g) and (j), which sets out the manner in which development affecting a heritage item is to proceed.
Turning to each of these provisions, the Applicant says: the description of the Site in the heritage inventory points to the fact that it is, inter alia, a two storey face brick building with timber double hung windows and timber panel doors. The description does not favour the Council’s position as to the significance of the item, which seeks to include the lower ground floor in the heritage significance.
None of the elements which are identified in the Heritage Inventory is affected by the proposal, nor will there be any additions to the façade above the awning. The alterations and additions, such as they are, will not be visually prominent. No change to the significant fabric will occur. While there will be changes to the front, they will be at the lower level.
With respect to the requirement that development enable interpretation of the significant values of the item, the Pods will not alter the significant features. While it represents a change, there is no prohibition against this.
As for cl 3.9 (1)(g), the heritage significance of the item is not reduced or obscured. The lower ground area is less visible and has not been included in the description. The placement of additions must be treated in the same manner as the rear of the building is treated, as it is in an area of less significance.
Any changes are reversible where necessary so new work can be removed with minimal damage or impact to the significant building fabric. The Applicant says the damage which will occur is minimal, and it is to stock brick, not face brick. The impact of installation of flashing will be to areas of less significance. As for the soldier brick courses above the windows, the bricks create a structural pelmet above the windows, and are not of heritage significance.
Condition 21 of the draft Conditions of Consent [Ex 5] sets out the how the heritage details are to be protected, and other conditions will call for further information regarding construction details.
The construction drawings (for which approval is not sought) was included to indicate how things could be done to minimise intrusion. The Applicant now relies upon Ex 5, as amended by Ex F, which requires use of a heritage consultant. Details with respect to flashing and beams will be within the purview of Council.
There is already approval given for alteration to windows and doors, with room 108 allowed a door and a window. The proposal is for openings of the same width. There is no impact on significant fabric.
There is agreement as to the front fence, such that the revised proposal is acceptable. The replacement is a modern interpretation. The ceiling rose issue is also resolved between the parties
With respect to amenity, the Applicant says the Council’s concern is misplaced. The amount of natural light for room 108 is identical in both scenarios. Under the proposal, it will depend on light coming in from spaces to the side of the bridge. The skylights will provide an enhanced level of light. As presently approved, these are south-facing rooms looking to a solid brick wall. The position is enhanced by the proposal, in that the light source is not on the south facing wall, but will come from diffuse light from the two skylights. If anything the proposal will lead to more light.
There will be improved amenity through the larger size of the rooms. They were previously smaller with limited light.
The Applicant does not agree with the Council’s proposition (put by its town planner) that you should look for something better and reduce the number of rooms. Council has already said that room 108 is acceptable. It will continue to be a room with limited light, but under the proposal, it will be larger.
Moreover, natural ventilation is not required in a hotel room. Most hotels do not have natural ventilation. There is no control about natural ventilation and sunlight.
The DCP sets the standard of amenity for hotel rooms. Under s 79C(3A) of the EPA Act the Court cannot require a more onerous standard than Council’s DCP provisions require. The Applicant submits that amenity for room 108 is acceptable, and is not a reason for refusal.
The Council
The Site is a listed item in a heritage conservation area. Council accepts the inventory is a document of weight, and notes that the experts agree there is some ambiguity in the recommended management. The façade is significant, and under the Heritage Inventory, the additions to the rear shall not be visibly prominent. According to the Council, the Inventory should be a general guide only. The opinion of heritage experts also have weight.
Council says that planning controls do not prohibit alteration, but the level of change is not acceptable, and contrary to the requirements of the DCP, it is not reversible. The level of detail as to how the Pods may work is not a matter to be dealt with via condition.
The Council’s heritage expert is of the opinion that the whole façade is significant. The lower part is less significant, but it is also important. The façade is in its original state; the windows have the same shape and form as the windows on the upper levels; and the arched bridge is significant. The proposal will have significant and irreversible damage: the existing windows will be cut as doors; there will be penetration into the mortar joints by flashing; the arches above the windows will be cut. There was insufficient evidence about the damage that might result.
Moreover, Mr Davies’ opinion on the nature of the bricks only came out in oral evidence, and did not appear in the Joint Report.
Council has sought details about how the Pod solution would work for some months and it remains unclear. It is not for the council to design the Pods. Conditions regarding flashing and the beams are matters which go to the heart of heritage. It is unclear how deep the cut will be, and the bricks below could fail. It is also unclear how many beams will be used to support the Pods.
Mr Wang is concerned that the chemsets (to be placed at the end of the beams) are wider than the mortar spacing. It is likely that penetration of water will cause damage to the wall, with a risk of penetration to the whole wall, not just the lower wall.
The Council’s characterisation of the support offered by Mr Davies is that he was happy with the Pods on the basis they were independent; now walls are to be used for some support, which risks damage to the wall.
There is also a risk of rising damp in the small gap between the retaining wall and the Pods. Council is not satisfied the gap will not allow vegetation to grow. There is also a lack of clarity about the neoprene solution.
As far as visibility is concerned, change to the rear of the building is acceptable – substantial change has already been approved. The Pods will obscure the façade, bridge; plaque; arched windows. Visual clutter from the street will distract from the heritage item.
The Sydney DCP says that development should enhance the item.
Applicant’s Reply
In reply, the Applicant conceded that while there was some ambiguity in the inventory, the reference to the face brick is unambiguous. What is relevant in the statement is not the recommended management, but the physical description. Soldier arches are not significant; the bridge is not mentioned: it does not contribute to the façade when viewed from the public domain; and any damage is able to be reversed.
As far as the requirement for detail is concerned, this is a belated complaint. If more detail were required it should have been called for in a contention. Council cannot have construction plans at DA stage. In the previous consent, condition 21 called for specific measures to be provided to protect the heritage fabric. Here, the Applicant proposes the orthodox approach, and Council will receive the detail, at construction certificate stage. It is not required at DA stage. Water penetration is beyond the contention, because it relates to construction.
The Applicant does not accept the Council’s argument regarding enhancement, submitting that the DCP does not require work to enhance the item; rather, enhancement relates to removing unsympathetic alterations and details.
Discussion and Findings
Under s 98(6) of the EPA Act, the Court has power to modify a consent.
The planning framework contemplates and permits changes to heritage items, on certain conditions. The relevant provisions are contained at cl 5.10 of the LEP and 3.9 of the DCP. The key controls set out the manner in which development affecting a heritage item is to proceed.
As required by cl 5.10(4) of the Sydney LEP, I have considered the effect of the proposed development on the heritage significance of the item.
Turning firstly to the matter of the heritage significance of the item, the Heritage Inventory describes the convent as “ a symmetrical Federation Free Style two storey face brick building with timber double hung windows and timber panel doors”.
The Heritage Inventory is not as definitive as it might be, containing as it does some ambiguity through its reference to the Site as a “two storey face brick building”. Supporting the Applicant’s interpretation with respect to heritage significance is the reference to “two storeys” of “face brick”, as well as the management recommendation that “[t]here shall be no vertical additions to the building and no alterations to the façade of the building above awning level other than to reinstate original features”. This tells in favour of the proposal and in favour of the Applicant.
This recommendation is further qualified by the following statement: “any additions and alterations should be confined to the rear in areas of less significance, shall not be visibly prominent and shall be in accordance with the South Sydney Heritage Conservation DCP”. On one view, this is against the Applicant, as the proposed modifications are not to the rear, but to the front façade.
However, I find that the significance of the building lies in its upper levels. Mr Davies was persuasive in his evidence that the important element of the building is the face brick façade, particularly when regard is had to the trouble taken with the string courses of bricks, the gothic arches and the gable above the entrance. This is in contrast to the presentation of the lower ground floor. In Mr Davies’ opinion, while in most cases you would not put anything in front of a heritage item, in this case because it is recessed and it has always been plain, the proposal is not in conflict with the heritage provision in the DCP. I accept Mr Davies’ argument in this respect, in light of my findings with respect to those elements of the building which are of heritage significance.
The Applicant’s submission with respect to the significance of the lower level of the building is also supported by the fact that the fence was originally a solid fence along the street frontage when the building was occupied as a convent. To the extent that the lower level of the building is visible, this has only been since the introduction of the palisade fence, which is a later addition.
As noted above at [33], at the commencement of the hearing, the Applicant tendered a set of drawings showing construction details of the Pods (Ex C) in an attempt to satisfy proposed condition 22(g). It became apparent during a detailed examination during the hearing by the experts that the drawings did not reflect all that was intended. Mr Pickles SC for the Applicant took pains to submit that it was not typical for construction drawings to be required or provided at DA stage. To the extent that there is an absence of detail, I accept the Applicant’s argument that such detail will be provided through the construction drawings. The conditions of consent (at 22(g)) will require construction drawings to be prepared in such a manner so as to satisfy the requirements regarding details of this work. Moreover, these details are to be submitted to and approved by Council’s Area Planning Manager prior to the issue of a Construction Certificate.
I accept that the planning framework anticipates that heritage items and areas are able to be modified. Mr Davies pointed to several examples of this occurring, including the additions to the Museum of Contemporary Art and the Louis Vuitton building. These are visible from the public domain and cause change but the significant values remain intact, notwithstanding the change.
There is no doubt that what is proposed will change the appearance of the building, but the change will only be visible from a position close to the building when viewed from the adjacent footpath.
Council is concerned about the physical damage caused by the installation of metal flashings to attach the bathrooms to the building, and the proposed cutting through the soldier course of bricks which emerged in the course of the hearing. It is uncontroversial that there will be damage caused to the heritage fabric of the building. What is in dispute is the significance of this.
I note the Applicant’s submission that the consent has already been granted, in respect of the Site, for much more significant alterations than are proposed by the addition of the Pods.
To the extent that the Council is concerned about windows being cut to form doorways, this type of modification has already been approved through the current consent. I do not find this to be a persuasive argument, and does not form the basis for refusal.
I accept the Applicant’s position that any damage to the fabric is reversible, supported by evidence from its heritage expert, and is not of such a nature as to warrant refusal of the application.
As far as amenity is concerned, the Council’s town planner was firmly of the view that the original proposal represented a better outcome from an amenity perspective. Ms Errington conceded that there is a greater requirement for amenity in serviced apartments, as opposed to hotels. I do not accept that any amenity concern is such as to result in refusal of the application.
As I am satisfied that the proposal, as presently before the Court, is acceptable (acceptability being the test I am obliged to apply), the question of an “amber light approval” requiring the division of room 108 into two bathrooms does not arise. Although that might be a better outcome, because the present design is acceptable it is not appropriate to impose it. I would only be able to impose that if it would turn an unacceptable design into an acceptable one.
The legal framework requires that in making alterations to a heritage building, the obligation is not to reduce or obscure the heritage significance of the item.
I am satisfied, based on the evidence, as to the following: that the proposed additions do not impact on the heritage significance of the heritage item. I am further satisfied that any damage to the building’s fabric will be reversible, and will be able to be repaired. In my view the amenity and public interest arguments raised by the Council are not such as to warrant refusal to the modification application.
Orders
The Orders of the Court are:
(1)Leave is granted pursuant to s 97B of the Environmental Planning and Assessment Act 1979 for amended plans filed with the Court on 7 June 2017 to be relied upon.
(2)The appeal is upheld.
(3)Development consent granted to DA No. D2015/111 is varied pursuant to section 96 of the Environmental Planning and Assessment Act 1979, in accordance with the Conditions of Consent marked as Annexure ‘A’.
(4)The Exhibits, save for 1, 2, 4 and B, are returned.
Senior Commissioner Martin
Anenxure A (C) (379 KB, pdf)
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