Somerset Consulting Pty Ltd v City of Sydney Council

[2021] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:

Somerset Consulting Pty Ltd v City of Sydney Council [2021] NSWLEC 1215

Hearing dates:

11 February 2021

Date of orders:

03 May 2021

Decision date:

03 May 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) The exhibits, other than 2, A and B, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Integrated Development – State Heritage Register – balcony enclosure – appeal dismissed – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979
Heritage Act 1977
Land and Environment Court Act 1979
Sydney Local Environmental Plan 2012
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Australia ICOMOS Charter for Places of Cultural Significance, 2013
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Somerset Consulting Pty Ltd (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
M Astill (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Dentons (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2020/208262

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application D/2019/1466 (DA). The DA sought consent for alterations to enclose the first floor front balcony (the proposal) of the existing terrace house at 19 Lower Fort Street, Dawes Point (the site) by City of Sydney Council (the Respondent).

2. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter commenced with an onsite viewing, limited in its number of participants, before being conducted by Microsoft Teams.

3. Leave was granted by the Court on 21 October 2020 for the Applicant to rely upon amended plans and reports. Those amended plans, amended heritage report and acoustic report, referred to during the hearing, form Exhibit B.

The site and its context

4. The site, located at 19 Lower Fort Street, Dawes Point is formally known as Lot 82 in DP 832148.

5. The allotment is rectangular in shape. The site area is 246sqm.

6. The site is occupied by a four-storey Victorian terrace dwelling, which forms the southern-most of a group of ten dwellings making up an intact row known as Milton Terrace.

7. The site has an easterly primary address and street frontage to Lower Fort Street, whilst the rear of the property addresses Cliff Top Walk.

8. The associated terrace dwelling at the site is listed on the State Heritage Register (SHR) under the Heritage Act 1977 as part of the Milton Terrace Group (SHR 00885).

9. The site is located within two State Heritage Conservation Areas known as the Millers Point Conservation Area (SHR 00884), and Millers Point and Dawes Point Village Precinct (SHR 01682).

10. The site is also listed as being of State heritage significance in Schedule 5 of the Sydney Local Environmental Plan 2012, as part of the Milton Terrace, including interiors and front fencing (Item I541), and also identified within the Millers Point Heritage Conservation Area (HCA C35).

11. The immediate vicinity surrounding the site comprises a varied urban character. To the east, directly opposite the site’s primary address and street frontage is public open space, Dawes Point Park, which extends below the deck level of the southern approach to Sydney Harbour Bridge (the Bridge).

12. This relationship brings the residential use of the site into relatively close proximity to noise and air pollution created by the operation of the Bridge. Of particular note is noise associated with regular train services using the tracks on the western side of the Bridge.

13. To the west of the site, and separated by a significant change in topography, is the Walsh Bay Wharves Precinct, which is listed under the Heritage Act as an area of State cultural significance (SHR 00559).

14. To the south of the site, fronting Lower Fort Street, are a number of terrace houses, predominantly two-storeys in scale and exhibiting typical, traditional terrace house forms.

15. As already noted, the site forms the southern-most dwelling in a row of ten terraces collectively known as Milton Terrace. Immediately adjacent the southern boundary of the site is a narrow laneway affording pedestrian access to the rear of properties addressing Lower Fort Street in this vicinity.

The planning controls

16. The relevant legislation and statutory controls are as follows:

1. Heritage Act

2. EPA Act

3. Environmental Planning and Assessment Regulation 2000 (EPA Reg)

4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP)

5. Sydney Local Environmental Plan 2012 (SLEP)

6. Sydney Development Control Plan 2012 (SDCP)

17. The proposal was assessed, and determined for refusal, by the Respondent as Integrated Development, requiring approval under the Heritage Act and in accordance with s 4.46 of the EPA Act.

18. Of relevance, s 4.47(4) of the EPA Act states:

(4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.

19. The Australian National Committee of the International Council of Monuments and Sites (ICOMOS) has produced a document known as the Australia ICOMOS Charter for Places of Cultural Significance, 2013 (Burra Charter).

20. The Burra Charter sets out the acknowledged methodology for assessing heritage significance, and for formulating appropriate responses to protect that significance. The Burra Charter is the accepted national standard guiding conservation practice in Australia. I return to the relevance of the Burra Charter to these proceedings later in this judgment.

21. A Conservation Management Plan (CMP) has been prepared for the Milton Terrace properties at 1-19 Lower Fort Street. The CMP was prepared by Clive Lucas Stapleton and Partners and endorsed by the Heritage Council of NSW on 11 November 2015. The CMP forms Exhibit 5 in these proceedings.

22. The CMP sets out a history, description, assessment of significance and management framework to conserve the heritage significance of the Milton Terrace group. It also includes a preface addressing the terrace at 19 Lower Fort Street specifically.

23. The CMP identifies the first floor front balcony of the terrace at the site as being of High Significance, as are each of the first floor front balconies of Milton Terrace addressing Lower Fort Street.

24. I return to the relevance of the CMP to these proceedings later in this judgment.

25. The relevant key provisions, development standards and controls of the SLEP include:

1. Clause 1.2 - Aims of Plan - The following aims of subcl 1.2(2) of the SLEP are relevant:

(j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities,
(k) to conserve the environmental heritage of the City of Sydney,

2. Clause 2.2 – Zoning - The site is located within the R1 General Residential Zone. The approved use of the site is defined as a single dwelling and is permissible with consent.

3. Clause 5.10 – Heritage conservation.

4. Clause 6.21 – Design excellence.

5. Clause 6.47 – Millers Point heritage conservation area.

6. Schedule 5 – Environmental Heritage - The site comprises part of the Milton Terrace group located at 1-19 Lower Fort Street, which is listed as a heritage item of State significance (I541). The site is located within the Millers Point Heritage Conservation Area (C35), also listed in Schedule 5 as having State heritage significance.

26. The SDCP includes a Millers Point Locality Statement and also identifies the buildings at nos 1-19 Lower Fort Street as being contributory to the Millers Point Conservations Area.

27. Other relevant provisions and controls of the SDCP include:

1. A relevant paragraph drawn from the Millers Point Locality Statement (Section 2.8) states:

“The character of the area is almost defined on a street by street basis, but the most prominent feature of Millers Point is the consistent townscape and high degree of integrity of the whole area. Its unity and authenticity of fabric make it one of the rarest and most historic urban places in Australia.”

2. Clause 3.9.5 – Heritage items.

3. Clause 3.9.6 – Heritage conservation areas.

4. Clause 3.9.7 – Contributory buildings.

5. Clause 4.1.4 – Alterations and additions.

6. Clause 4.1.8 – Balconies, verandahs and decks.

Actions of the respondent

28. Development application D/2019/1466 was lodged with the Respondent on 19 December 2019.

29. The DA was advertised and notified for a period of 30 days between 7 January 2020 until the 8 February 2020. One submission was received in support of the proposal from a resident residing at 15 Lower Fort Street, Dawes Point within the Milton Terrace group.

30. On 15 January 2020, the DA was referred to Heritage NSW by the Respondent. On 10 March 2020 a delegate of the Heritage Council of NSW issued a refusal to grant terms of approval for the DA. The reasons for refusal given were:

1. Milton Terrace as part of the Millers Point & Dawes Point Village Precinct is a place of State heritage significance that is protected on the SHR for its historical, associational, aesthetic, social, technical, rarity and representative values. The proposed enclosure of the first floor verandah with bifold doors will have a detrimental impact on its historical and aesthetic values.

2. The proposal is inconsistent with the CMP policies for Milton Terrace, which encourages the opening up of the first floor verandahs to the eastern elevation and discourage any infill or enclosure. It is considered that enclosing the first floor verandah on the eastern elevation would result in a detrimental visual impact to the Victorian Classical presentation of No 19 Lower Fort Street.

3. It is not possible to mitigate or minimise these impacts through conditions of approval.

4. The application will result in a permanent detrimental impact to the overall significance of the SHR item.

31. On 6 April 2020 the Applicant, having become aware of the Heritage Council’s refusal to grant terms of approval for the DA, made representations to Heritage NSW through their architect Tropman and Tropman Architects.

32. Following correspondence between the Applicant and Heritage NSW (acting as delegate of the Heritage Council of NSW), Heritage NSW staff advised the Respondent on the 9 April 2020 that the DA would be deliberated by the Heritage Council’s Approval Committee for a decision in its June meeting and further, suggested the determination of the DA should be postponed until the Heritage Council Approval Committee made their decision.

33. The Applicant provided Heritage NSW with a detailed submission in relation to the DA on 12 May 2020.

34. On 2 June 2020 Tropman and Tropman Architects made further representations to the Heritage Council’s Approval Committee, including a visual presentation and documents related to the DA.

35. On 2 June 2020, the Heritage Council’s Approval Committee Resolution deferred consideration of the DA until a separate review on the development and design issues in the Millers Point Precinct, including balcony enclosures, was completed.

36. On 9 June 2020, Heritage NSW staff advised the Respondent that a decision to consider the enclosure of balconies along the Milton Terraces had been deferred to a later Approvals Committee meeting in July 2020. Heritage NSW advised that the general terms of refusal of 10 March 2020 remained valid and the Respondent had the option of determining the DA independently or to await the further consideration of the Heritage Council.

37. The Respondent determined to refuse the Application on 19 June 2020 as it was required to do by operation of s 4.47(4) of the EPA Act. The Notice of Determination cites the reasons for refusal given by the Heritage Council’s delegate of 10 March 2020, as well as referencing a number of contraventions of the SLEP, the SDCP and the public interest.

The issues

38. The contentions set out by the Respondent can be found in the Amended Statement of Facts and Contentions at Exhibit 2.

39. During the hearing, the Respondent indicated that paragraph 51, forming one aspect of Contention 3 - Acoustic Assessment and Performance, and regarding the applicability of State Environmental Planning Policy (Infrastructure) 2007, is no longer pressed.

40. The remaining contentions pressed by the Respondent include:

1. Unacceptable Heritage Impact

2. Public Interest (due to that heritage impact)

3. Acoustic Assessment and Performance

The evidence

41. The Court was assisted by experts in heritage, who conferred to prepare a joint heritage report. The experts are Mr John Poulton for the Respondent and Mr Richard Mackay for the Applicant. Their joint expert report forms Exhibit 3.

42. In his oral evidence, Mr Mackay noted the Burra Charter - as the accepted national standard guiding conservation practice in Australia - recognises that heritage significance is attributable to both fabric and also to use.

43. Mr Mackay further emphasised a key principle drawn from Article 3 of the Burra Charter. Noting that while changes to heritage fabric are not prohibited, any appropriate change or alteration should be guided by a cautionary principle to change “as much as necessary but as little as possible”.

44. Mr Mackay went on to set out the Applicant’s view that if a desired change to heritage fabric is determined to be necessary, then the iterative process of heritage and conservation practice is able to accommodate such a change, even in an instance where the existing heritage policy documents and controls do not currently foresee such a change.

45. Mr Mackay noted that the endorsed CMP for 19 Lower Fort Street was not prepared with a close consideration of the acoustic or air quality environment or its impacts.

46. Reinforcing this view, at paragraph 34 of the joint report, Mr Mackay says “Article 6.3 (of the Burra Charter) specifically allows for consideration of factors such as owner’s needs - and provides a basis for the policy in the endorsed CMP to be reconsidered or varied based on circumstances - in this case noise.”

47. The experts agree at paragraph 27 of the joint report that it is reasonable for the Applicant to pursue noise attenuation in order to provide an appropriate level of residential amenity.

48. However, the experts are apart on the question of how to most appropriately achieve noise attenuation.

49. At paragraph 52 of the joint report Mr Poulton “acknowledges that there are noise issues associated with the use of the Harbour Bridge to the front first floor bedroom, but what is important is how they can be best addressed without having adverse heritage impacts. Options have not been assessed in the submitted documentation.”

Findings

50. I have determined to dismiss the appeal. In doing so, I set out my reasons in the following paragraphs.

51. Notwithstanding the unresolved nature of the Heritage Council of NSW’s concurrence, s 39(6)(a) of the Land and Environment Court Act 1979 makes clear the Court has discretion to determine the matter with or without this concurrence.

52. In forming a view, I am required by cl 5.10(4) of the SLEP to “consider the effect of the proposed development on the heritage significance of the item or area concerned.”

53. The dwelling at 19 Lower Fort Street forms part of a well-recognised and well-protected item of high heritage value - Milton Terrace - which exists within a very specific and detailed development policy context.

54. This policy context includes formal State and Local heritage listings, along with further protections and detailed conservation guidance set out in the SDCP and CMP.

55. The most detailed and specific of the relevant development policy documents is the CMP, which was endorsed by the Heritage Council of NSW on 11 November 2015.

56. The CMP includes a summary statement describing Milton Terrace as “one of the finest extant 1880s terrace rows in Sydney.”

57. The CMP includes multiple, detailed instances of specific policies encouraging the removal of balcony infills where these currently exist, and similarly, specific policies actively discouraging the enclosure of open balconies, consistently describing this as “not appropriate”.

58. The CMP includes drawings which identify that six of the terrace dwellings, nos 1, 3, 5, 11, 15 and 17 Lower Fort Street, had - at that time of the CMP’s preparation - first floor front balcony enclosures.

59. Since the CMP was endorsed in 2015, various conservation works have been undertaken along Milton Terrace generally in accordance with policies set out within the CMP.

60. In their current form, nos 1, 3 and 5 Lower Fort Street have had their balcony enclosures removed, achieving CMP policy objectives and thereby appreciably improving the heritage values of Milton Terrace over time.

61. The Applicant notes, at the time of these proceedings, that three of the ten terrace dwellings have lawful consent for enclosed first floor front balconies, at nos 11, 15 and 17 Lower Fort Street.

62. However, each of these approvals was for the repair or refurbishment of an existing first floor front balcony enclosure, and not for the reinstatement of an earlier balcony enclosure, nor for the construction of a new balcony enclosure, as is proposed at 19 Lower Fort Street.

63. This situation is consistent with CMP Policy 37 and associated annotated drawings, which state that retaining, or maintaining, an existing balcony infill is acceptable. However, opening up and reconstruction of open balconies is the “only other option”, which should be based on physical evidence or historic photographs.

64. For these reasons, I am satisfied there is an observable and meaningful trend towards the opening up of enclosed balconies at Milton Terrace, that this is consistent with the policy guidance provided by the CMP, and that this trend is enhancing the heritage values evident at Milton Terrace over time.

65. The heritage experts agree that, to some extent, the proposed balcony enclosure at 19 Lower Fort Street will result in adverse impacts upon the heritage values of the dwelling and upon Milton Terrace as a whole.

66. Although the proposal has been designed to be reversible and is relatively visually discreet, the resulting heritage impacts will be evident for whatever period the balcony remains enclosed.

67. These adverse heritage impacts would begin to reverse the observable trend, which has contributed to the enhancement of the heritage values otherwise evident at Milton Terrace since the endorsement of the CMP and the application of its policies and guidance.

68. In proposing to enclose the first floor front balcony at 19 Lower Fort Street, the Applicant seeks to establish the necessity of doing so as the critical justification for departing from the policies and guidance offered by the CMP.

69. Further, the Applicant’s position is that although there would be adverse heritage impacts of some degree, these would impair only the visual reading of existing fabric, would represent a small proportion of the overall item - being one dwelling of the ten making up Milton Terrace - and are impacts that result in low or no physical impact on heritage fabric.

70. The proposed balcony enclosure is presented by the Applicant as the means sought to achieve noise attenuation necessary to attain appropriate amenity levels in the first floor front bedroom.

71. The Applicant relies on the acoustic report to substantiate this necessity and hence to justify a departure from the CMP policies, and further to justify any resultant heritage impacts upon the dwelling.

72. The acoustic report concludes that enclosing the balcony is one “clearly feasible option for mitigating noise impact”, but does so without considering alternative options, which might include attenuation options resulting in reduced impacts on the heritage values of the dwelling.

50. The methodology adopted within the acoustic report includes obtaining baseline internal noise measurements within the first floor front bedroom with one set of french doors partially open to Lower Fort Street.

51. Consequently, no measurements were provided for existing internal noise levels when all doors and windows are shut. Nor were measurements obtained for alternative configurations with the side window or rear french doors in the open position, noting these openings are oriented away from the primary noise source of the Harbour Bridge.

52. The acoustic report does not set out any technical specification for a balcony enclosure, nor does the report consider the efficacy of the proposed balcony enclosure.

53. The acoustic report does not provide evidence to support its conclusion that enclosure of the balcony will reduce noise levels received in the bedroom by up to 12dB(A).

54. For these reasons, the question of baseline noise levels received in the first floor front bedroom during a mode of operation where all available noise attenuation is deployed (the front french doors all being closed) remains unanswered.

55. Similarly, the question of whether the proposed balcony enclosure is necessary to achieve a comfortable noise environment in the first floor front bedroom remains unanswered.

56. Finally, the question of whether any alternative, other than the proposed balcony enclosure, might result in a comfortable noise environment in the first floor front bedroom remains unanswered.

57. As a consequence, the acoustic report can not support the Applicant’s position that the proposed enclosure of the first floor front balcony is necessary.

58. Having regard to the information and evidence before me, I am satisfied the DA would result in adverse impacts upon a significant heritage item, doing so within an area of the item acknowledged as being of high significance.

59. These adverse heritage impacts would detract from the heritage values evident at the site and across Milton Terrace as a whole, and would reverse the observable trend toward enhancing heritage values across Milton Terrace.

60. The necessity of the proposal has not been established.

61. It then follows that the acknowledged adverse heritage impacts are not able to be justified by necessity.

62. In the absence of any demonstrated necessity, and recognising the high heritage values associated with the heritage item, I find the resultant adverse impacts of the DA to be unacceptable.

63. Accordingly, I dismiss the appeal and now dispose of the matter.

Orders

87. The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits, other than 2, A and B, are returned.

……………………….

M Pullinger

Acting Commissioner of the Court

**********

Decision last updated: 03 May 2021