Southern Cross Enterprise Group Pty Ltd v Parramatta City Council

[2010] NSWLEC 1051

Land and Environment Court

of New South Wales

CITATION:	Southern Cross Enterprise Group Pty Ltd v Parramatta City Council [2010] NSWLEC 1051
PARTIES:	APPLICANT Southern Cross Enterprise Group Pty Ltd RESPONDENT Parramatta City Council
FILE NUMBER(S):	10542 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of an existing church hall and the construction of a hotel and use of an existing church building in association with the hotel - impact on significance of heritage items
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta City Centre Local Environmental Plan 2007
DATES OF HEARING:	1, 2, 3 February 2010
DATE OF JUDGMENT:	16 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICITORS Harris & Company RESPONDENT Mr I Hemmings, barrister SOLICITORS Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 March 2010

10542 of 2009 Southern Cross Enterprise Group Pty Ltd v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of Development Application No. DA/466/2008 for the demolition of an existing church hall and the construction of a hotel and use of an existing church building in association with the hotel at 356 Church St, Parramatta (the site).

2 The contentions raised by the council relate to whether the heritage incentive provisions in the councils planning controls apply to the extent relied upon by the applicant, whether the existing church hall should be demolished and if so, whether the proposed hotel adversely impacts on the significance of the existing church by way of its height, design, setbacks, appearance and the impact on heritage view corridors.

The site

3 The site is Lot B in DP 154618. It is generally rectangle in shape with a frontage of 16.325 m to Church Street, 43.18 m to Palmer Street and 17.69 m to Palmer Lane giving a total site area of around 735 sq m.

4 The site contains two buildings that occupy most of the site. St Peter's Church (the Church) has a frontage to Church Street and Palmer Street and the church hall (the Hall) has a frontage to Palmer Street and Palmer Lane. Some off street car parking is provided on site and located off Palmer Lane and adjoining the Hall.

5 The surrounding area consists of a range of different land uses. Directly to the north of the site is a 2-storey commercial building with a 3-storey commercial building further to the north. Both sides have a frontage to Church Street and the latter site also has a frontage to Victoria Road. To the south of the site and on the opposite corner is a 7-storey mixed use building with the upper levels setback from the street. Development to the rear of the site consists of commercial development with a height between 1 and 3 storeys.

The proposal

6 The proposal provides for the demolition of the existing Hall and the erection of a new building for a 50 bed hotel adjoining the Church. The Church will have alterations and additions and will be used in conjunction with the hotel for a restaurant and bar. Basement Level -1 will contain male and female toilets, staff amenities, keg room, cold store and dry store for the restaurant. The Ground Floor will contain the restaurant and some outdoor dining at the Church Street frontage and a mezzanine, known as Level 1 will be used for a bar. Access from the Church to the new building will be available on all levels.

7 The new building will have a basement area containing 3 levels of car parking accessed via a car stacker and providing a total of 20 car parking spaces, Basement Level -2 contains areas for services, a lap pool and amenities and associated plant and Basement Level -1 contains areas for services, a garbage room and a substation. The Ground Floor contains the reception area, entry foyer and access to the car parking from Palmer Lane. Levels 1 and 2 provide conference facilities and amenities. Levels 3 to 11 provides hotel rooms, Level 12 provides a bar and amenities and Level 13 provides air-conditioning plant, plant room and fire sprinkler tanks. The height of the proposed building to street level is around 42 m.

8 The documentation containing the architectural plans (Exhibit A) provides the comments on the design philosophy for the proposal. Under the heading of Architectural Statement, the following relevant comments are made:

In our proposal, we intend to add colour and elegance to this corner of Parramatta. To resonate with St Peter's sustained glass windows, the proposed slender glass tower will appear subtly coloured and patterned by internal blinds, which are part of the facades environmental performance system. Such Environmental devices will offer a more pleasant atmosphere inside the building.

9 Under the heading of Massing, the following relevant comments are made:

To achieve a viable Floor Space Ratio, whilst not exceeding the maximum height of 24 m, would require building over the existing St Peter's Church. This would significantly compromise the buildings heritage integrity.
The massing of the vertical option is further subdivided into two vertical portions, the one closest to St Peter's raised and undercut so that the historic view of the eastern end of the Church is preserved for Palmer Street. The tower is pleated on the axis of the church’s roof ridge forming a strong urban relationship and further accentuating the slenderness of the tower.

10 Under the heading of Materials + Heritage Interpretation the following relevant comments are made:

The new building forms a glassed backdrop to St Peter's reflecting the sky from a distance. The facade colours and patterns are based on those of St Peter's stained-glass windows. At a smaller scale, the stained glass fleur-de-lis pattern will be set into the glass on prominent locations to add further detailed to the facade.

Relevant planning requirements

11 The site is within Zone B4 under Parramatta City Centre Local Environmental Plan 2007 (LEP 2007). The proposed development is permitted with consent within this zone. Clause 2 provides aims of LEP 2007. Clause 9(2) provides State environmental planning policies and regional environmental plans that do not apply to the land to which LEP 2007 applies. Relevantly, State Environmental Planning Policy No 1 - Development Standards is included in this clause. Clause 12(2) provides that the Court must have regard to the zone objectives when determining a development application.

12 Clause 21(1) provides objectives for the control of height of buildings and cl 21(2) states that the height of a building is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height of Buildings Map indicates a height of 24 m for the site. Clause 22(1) provides objectives for the control of floor space ratio (FSR) and cl 22(3) states that the maximum FSR for buildings for which the maximum FSR shown on the Floor Space Ratio Map is specified in the Table to this clause. The appropriate FSR is 4:1. Clause 22C provides requirements the car parking.

13 There was agreement between the experts that the proposed development satisfied the FSR and car parking requirements but not the height requirement.

14 Clause 22G provides objectives for development within Parramatta city centre Special Areas. Clause 22G(2) states that the consent authority in considering a development application for land in or adjoining a Special Area identified in the City Centre Development Control Plan must have regard to the objectives for the Special Area set out in that Plan. The site falls within the Church Street North Special Area.

15 Clause 24 provides exceptions to development standards. Clause 24(2) provides that consent may be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument but subject to other provisions within this clause.

16 Clause 35 provides requirements for heritage conservation. Clause 35(1) provides objectives for the clause and cl 35(2) provides requirements for development consent, including demolishing a heritage item (cl 35(2)(a)), altering a heritage item (cl 35(2)(b)) and erecting a building on land on which a heritage item is located (cl 35(2)(f)). The two items are described separately in Schedule 5 and have different property descriptions although the reason for this was unclear. There was no dispute however that the descriptions reflected the buildings on the site. Clause 35(9) provides conservation incentives for buildings that are heritage items.

(DCP 2007) applies to the site. Clause 2 provides requirements for Building form, including street frontage heights (cl 2.2). Clause 7 provides Controls for special areas, including Controls for heritage and special uses and specific Special area controls, including objectives and controls for the Church Street North Special Area (cl 7.1).

What is the significance of the Church?

18 Schedule 5 of LEP 2007 describes the Church as "St Peter's Uniting Church and potential archaeological site as heritage items of State significance. The State Heritage Inventory Listing provides the following relevant comments:

Statement of Significance: Professional, trade and manufacturing practice - example of the work of notable architect. Evidence of social and cultural life. Site possesses potential to contribute to an understanding of early urban development in Parramatta.

Description:
Construction Years: 1871 -
Physical Description: Victorian Gothic church of dressed sandstone with a small square tower and spire. Archaeological Site: AZP Cross Reference: PN 90 National Trust (Parramatta Branch): Fabric: Narrow rustic ashlar sandstone walls with smooth sandstone quoins and slate roof. Roof Construction: Gabled church with decorative metal finial on gable point and small square tower on south side with copper? bands covering spire. Buttresses between windows except front elevation where buttress divides large front stained glazed window. Verandah Decoration: Window Arch: Architraves are smooth sandstone quoins. Label moulds above windows end in decorative stops. Exterior Doors: Same as front doors. Archit Style: Victorian Gothic sandstone church with square tower and spire. Front Door: Diagonal panelled timber doors with decorative cast iron hinges either side of main window at front elevation. - Steps, pedestals and half columns and decoration to both front entrances. Constr Year: 1871 carved into ribbon shaped stone in gable.

History:
Historical Notes: Designed by Thomas Rowe and built by George Peters, this church opened in 1872. The foundation stone was laid by Mr John Fairfax, founder of the Sydney Morning Herald. Archaeological Site Data Return: 1823 Isaac Howith Lease: 1823 John Ellison (LTG Book 25. No 276) Grant: William Ellison (otherwise Mccaul). Sec 4 Allt 4A Sites of Buildings: 1823 and 1844 maps Building: 1 masonry and 1 wood Extant Buildings: None National Trust (Parramatta Branch): 1823: Isaac Howith - Lease 1823: John Ellison - Grant William Ellison (otherwise McCaul) stepson of John Ellison Snr. I Designed by Thomas Rowe and built by George Peters, local stonemason in. Opened in 1872 as Congregational Church. Foundation stone laid by John Fairfax, founder of Sydney Morning Herald newspaper. Designed by Thomas Rowe and built by George Peters, this church opened in 1872. The foundation stone was laid by Mr John Fairfax, founder of the Sydney Morning Herald

Assessment of significance:
SHR Criteria a) (Historical Significance) – This item historically significant.
What is the significance of the Hall?

19 Schedule 5 of LEP 2007describes the Hall as "Studio Theatre and potential archaeological site" as heritage items of State significance. The State Heritage Inventory Listing provides the following relevant comments:

Statement of Significance: Evidence of social and cultural life.

Description:
Construction Years: 1896 -
Physical Description Single storey Victorian schoolroom of painted brickwork with Gothic detail to front wall. Archaeological Site: AZP Cross Reference: PN 90 National Trust (Parramatta Branch): Fabric: Corrugated iron roof on rendered brick walls with ashlar markings. Roof Construction: Parapeted street facing gable with louvered ventilator in gable with skiIlion attached hall along east elevation. Verandah Decoration: Window Sill: Rendered sloping sills. Window Arch: Gothic arch label moulds above windows and door with decorative stops. Exterior Doors: Vertical timber panelled door with segmented arch. Fence: Built on to street level. Archit Style: Victorian Gothic single-storey hall behind church. Front Door: Projecting Gothic label mould above vertical timber panelled double doors with gothic arch. Awning: Skillion awning on decorative timber brackets with flat iron roof. Constr Year: 1896 built as schoolroom.

History: Built at rear of St Peter's Church in 1896 as a schoolroom. Archaeological Site Data 1823 Return: Richard Kerkitt. 1823 Lease: Richard Kirkatt (LTO Book 25, No 288). Grant: Richard Carkett. Sec.A Allt 1 Sites of Buildings: 1823 map: 2 buildings, 1844 map: 4 buildings, masonry. Extant buildings: none National Trust (Parramatta Branch): 1823 Return: Richard Kerkatt, 1823 Lease: Richard Kirkatt, Grant: Richard Carkett

Assessment of significance:
SHR Criteria a) (Historical Significance) – This item historically significant.
SHR Criteria g) (Representativeness) – This item is representative.

20 There was agreement between the heritage experts that the State significance status related principally to be potential archaeological significance of the site, with the buildings having local significance. There was also agreement between the heritage experts that the Church has a higher level of significance than the Hall.

Should the Church Hall be demolished?
The evidence

21 Mr Brian McDonald, an architect and heritage consultant, provided evidence for the applicant and Mr Graham Brooks, also an architect and heritage consultant provided evidence for the council. Mr McDonald and Mr Brooks disagree on the weight that should be given to the separate listing of the Hall and therefore whether the significance of the Hall is such that it would prevent demolition.

22 Mr Brooks states that as a component of a heritage listed site that includes the associated component of the historic Church, the Hall has associational and historic values as part of that relationship. The heritage listing of both the Church and the Hall was considered appropriate by the council at the time of listing and the retrospective challenge to its listing by Mr McDonald as part of the appeal process is irrelevant. Mr Brooks states that Mr McDonald has downgraded the significance of the Hall largely on the basis that its relatively humble architectural character is no match for the fine Gothic stonework of the Church. This line of argument, in Mr Brooks opinion is incorrect as the relative humility of the Hall’s presentation compares with the wealth and architectural intention of the church at the end of the 19th century. Mr Brooks rejects the assertion of Mr McDonald that it is a valid approach to demolish part of an item, or an associated heritage item, in order to ensure the physical conservation of the fabric of another part, particularly when this results in a negative impact on the actual heritage significance of that component.

23 The Conservation Management Plan, prepared by Mr McDonald, concluded that:

The Church Hall presents an austere stripped down version of the Gothic style to Palmer Street and is otherwise unremarkable in its aesthetic and technical qualities. Its origins as a school hall are now obscured by a series of alterations to the fabric.

24 Mr McDonald accepts that regardless of whether the Hall was listed separately as a mistake, its significance should be assessed in the context of the occupation and use of the site by St Peter's Congregational Church and later St Peter's Uniting Church. In his assessment, Mr McDonald states that the significance of the Hall is low based on the criteria in the NSW Heritage Manual Section for "Assessing Heritage Significance". The Hall, as a component, should be assessed as having low significance, which equates to "little significance -alterations detract from significance, difficult to interpret" and its status is therefore "does not fulfil criteria for local or State listing". Mr McDonald states that the views taken by the council experts and the council heritage adviser overstate the value of the Hall in adopting the position that it is wrong to demolish a heritage item to facilitate conservation of another heritage item. Mr Donald states that the association of the Hall and the Church can be adequately recognised by archival recording prior to the issue of a construction certificate.

Findings

25 Clause 35(2) makes provision, subject to the granting of development consent, for the demolition of a heritage item. A decision to allow the demolition of a heritage item would involve a range of considerations. In this case, the considerations would include matters such as the significance of the Hall, whether the demolition would facilitate the conservation of the Church, the physical condition of the Hall, the costs to maintain the Hall and whether the building proposed to replace the Hall is appropriate in its heritage context.

26 While Mr McDonald suggested that the Hall was not necessarily worthy of its heritage item status, the fact remains that it is identified by the council as a heritage item and as such must be afforded the appropriate consideration in any assessment for its demolition. The evidence provided by the applicant focused on the financial unviability of the previously approved licensed premises development and the proposed hotel. I am not satisfied that adequate consideration was given to the consideration of other options that may lead to the retention or adaptive reuse of the Hall. It well may be that there is a case for its demolition however in the absence of the consideration of other uses I do not accept that a finding can be made that the Hall could be demolished.

27 Also, having found that the proposed hotel development has an unacceptable impact on the heritage significance of the Church it follows, in my view, that a decision to allow the demolition of the Hall should not be made in the absence of a suitable development to replace the Hall particularly, given its status as a heritage item.

Clause 35(9) - the conservation incentive provisions

28 Clause 35(9) states:

9) Conservation incentives
The consent authority may grant consent to development for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though development for that purpose would otherwise not be allowed by this Plan if the consent authority is satisfied that:
(a) the conservation of the heritage item is facilitated by the granting of consent, and
(a1) if the development is to contravene a development standard, the additional value that contravention of the development standard will add to the development is consistent with the value of conserving the heritage item, and
(b) the proposed development is in accordance with a heritage conservation management plan that has been approved by the consent authority, and
(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage conservation management plan is carried out, and
(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

29 Mr Hemmings, for the council, and Mr Tomasetti SC, for the applicant differed on the interpretation of cl 35(9) and consequently the assessment regime for the proposed development.

The applicant’s submissions

30 Mr Tomasetti submits that cl 35(9) is the sole basis for assessment of the development application. Any other controls that otherwise do not allow the development, such as the height control in cl 21(2), do not apply as the introductory paragraph in cl 35(9) allows the consent authority to grant consent even though development for that purpose would otherwise not be allowed by this Plan although still subject to cl 35(9)(a) to (e). Similarly, the specific provisions in DCP 2007 do not apply because s 74C(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act) states that a provision of a development control plan has no effect to the extent that it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land (s74C(5)(a)) or is inconsistent with a provision in any such instrument or its application prevents compliance with the provision of any such instrument (s74C(5)(b)).

31 Mr Tomasetti further submits that the evidence of Mr Toon on the planning and urban design issues and Mr McDonald on the heritage issues should be preferred over the council's experts and on this basis cl 35(9)(a) to (e) are satisfied and there is no barrier to the approval of the proposed development.

The council's submissions

32 Mr Hemmings submits that cl 35(9) cannot be the sole basis for assessment as the words otherwise not be allowed by this Plan in the introductory paragraph in cl 35(9) should not be read as a prohibition. Using the example of the height control in cl 21(2), Mr Hemmings submits that a height greater than the maximum specified in cl 21(2) can be allowed through the provisions of cl 24 therefore it is not a provision otherwise not be allowed by this Plan. Mr Hemmings further submits that the provisions of DCP 2007 are relevant because they make more detailed provisions with respect to achieving the purpose of LEP 2007, consistent with the provisions of s 74C(1)(a) of the EPA Act.

33 Even if Mr Tomasetti's approach is adopted, Mr Hemmings submits that the assessment required by cl 35(9)(a) to (e) would lead to the refusal of the development application based on the evidence of Mr Jensen on the planning and urban design issues and Mr Brooks on the heritage issues.

The findings

34 In considering the competing submissions, it would seem that even if Mr Tomasetti's approach is adopted, it is necessary to satisfy the requirements in cl 35(9)(a) to (e) and this would entail a consideration of the comprehensive planning, urban design and heritage evidence provided at the hearing. I have undertaken this task and found that the requirements of cl 35(9)(a) to (e) are not satisfactorily addressed so the issue on the construction of cl 35(9) will not need to be determined.

Clause 35(9) – the evidence

( a) the conservation of the heritage item is facilitated by the granting of consent

The evidence

35 Mr Brooks states that the intent of this incentive is clearly aimed at the conservation of the heritage item on the land. In his opinion, it does not contemplate the demolition of an item in order to facilitate some alternate form of development on the listed heritage site or to conserve a heritage item on adjoining land.

36 Mr McDonald states that the proposal will facilitate the conservation of the Church. The additional value that the contravention of the development standard represents is based on the overall financial viability of the proposed hotel and associated facilities to be accommodated in the retained Church, which in turn is based on a minimum of 50 rooms for the hotel to be viable. The submitted economic analysis of Sphere Property Corporation based on a quantity surveyor's estimate has been peer reviewed by council’s independent consultant Macroplan Australia and found to be acceptable.

a1) if the development is to contravene a development standard, the additional value that contravention of the development standard will add to the development is consistent with the value of conserving the heritage item,

The evidence

37 Mr Brooks states that the intent of this provision does not contemplate the demolition of one of two heritage items, which, are separately listed, but part of a single development in order to achieve the conservation of the other item. To do so would be in direct contravention of the first and second heritage conservation objectives in LEP 2007. In addition to the concern over the demolition of the Hall, Mr Brooks states that the physical conservation of the building fabric of the Church is not sufficient justification in terms of this subclause. The "value" of the Church, its heritage significance, relies on more than the simple retention of the fabric or some financial equation. It relies on the retention of the heritage significance of the heritage item including its setting and the visual dominance of the church spire to protect its heritage significance.

38 Mr McDonald disagrees and states that the additional value that the contravention of the development standard represents is based on the overall financial viability of the proposed hotel and associated facilities to be accommodated in the retained Church, which in turn is based on a minimum of 50 rooms for the hotel to be viable. Mr McDonald reiterates the conclusions of the economic analysis of the Sphere Property Corporation to support his position.

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage conservation management plan is carried out

The evidence

39 Mr Brooks raises some concern over the Conservation Management Plan prepared by Mr McDonald. He states that the Statement of Heritage Impact takes no issue with the extensive demolition of the east wall of the Church, including its decorative pointed arched windows, for the insertion of a two level pedestrian connection from the adjoining hotel foyer into the adapted interiors of the Church. In his opinion this is in direct contravention of the findings in Conservation Management Plan (s 6.2 and Policy 2). Mr Brooks also refers to Policy 16 of the Conservation Management Plan that states:

No new building works, roadworks or landscaping should intrude into views to and from the former St Peter's Church building and within the visual curtilage defined by the plan accompanying this policy

Views between the former St Peter's Church and the other identified heritage items in the vicinity of Alfred Square and Lennox Bridge must remain undisturbed.

Should there be future development on the position of the site now occupied by the Hall and car park it should be sensitively designed to complement and not compete with the Church building and to be separated from it by a gap or articulated link of light appearance. To the extent that any new structure may be visible behind the spire and western gable form of the Church it should form a sympathetic and unassertive backdrop of contrasting materiality.

40 Mr Brooks states that the proposed hotel is in direct contravention of Policy 16 because of the intrusion into the visual curtilage, the assertive backdrop to the Church and the intrusion into the views between Alfred Park and the Church and between St Patrick's and St Peter's Churches. Mr Brooks also questions whether the council has approved the Conservation Management Plan.

41 Mr McDonald, on the other hand, states that in the assessment report of the council officers, that a council heritage advisor has indicated that the Conservation Management Plan is acceptable. Further, Mr McDonald states that the proposed hotel building is consistent with Policy 16 of the Conservation Management Plan as the hotel building is a uniquely well considered and slender design as a result of the small footprint, that provides a complimentary backdrop to the Church with subtle representation of the colours of its stained-glass windows and is generally a subtle response to its context.

42 In terms of intrusion into views, Mr McDonald states that the proposed slender tower will not be seen in relation to key vistas along Church Street and, where it could be seen from the east side of Alfred Square or from the southwest of the corner of the Riverside Centre, it will form a sensitively crafted complimentary backdrop to the solid stone and slate of the Church.

( d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting,

The evidence

43 Mr Brooks states that the erection of the hotel building will have a major negative impact on the significance and setting of the Church. The location of the Church with its tall spire directly opposite Prince Alfred Square is an essential component of the 19th century city structure. The proposed hotel tower will visually overwhelm and demean the skyline importance of the Church and its spire on the eastern edge of Alfred Square. The existing heritage character of the area, especially when read in conjunction with the adjoining Prince Alfred Park Special Area, relies heavily on the clarity of the Church spire on the skyline as one of the views of the Church from the streetscape and Alfred Square.

44 Further, Mr Brooks states that the scale and bulk of the hotel is very much greater than the Church. In accepting that a new building on the rear of the Church site should not mimic the architectural form of the old building, Mr Brooks does not accept that the hotel, with its 14 storey massing, folded west facade, broken floor plates, cantilevered rooms and large foyer even attempts to respect or relate to the Church. He rejects any suggestion that the fault line in the west elevation that matches the alignment of the main Church ridge is an acceptable and creative response to the Church. In his opinion, it is a totally unsuccessful and tokenistic architectural gesture that does nothing to alleviate the adverse scale and massing of the hotel as a backdrop to the Church.

45 Mr McDonald states that the hotel is a uniquely well considered and a subtle response to the context that will contribute to the enhancement of the character of the locality. He further states that the simple and consistent form of the slender tower when seen in relation to the retained Church is important to providing a complimentary relationship. The proposed hotel builds on the existing heritage character by creating a complimentary backdrop to the Church with subtle representation of colours of its stained-glass windows. A lower more squat building would have a less satisfactory relationship when seen with its top cutting behind, rather than above the Church by the views from Alfred Square. The proposed hotel would also maintain views from the west, south west and, additionally open up oblique views to the Church from the south east.

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

The evidence

46 Mr Rodney Jensen, an architect and town planner and Mr John Toon, also an architect and town planner provided evidence on this issue. Mr Jensen states that the proposed development would have a very significant adverse effect on the solar access of adjacent residential units to the south by virtue of overshadowing with potential for loss of natural sunlight and daylight and impact on the use of solar water heating or photo–voltaic panels. Mr Jensen also stated that there would likely to be further amenity impacts from vehicles and service deliveries associated with the hotel.

47 Mr Toon accepts that there will be an additional loss of sunlight on residential properties to the south created by the proposed hotel. This would be an adverse affect but not a significant adverse effect according to Mr Toon.

Findings

48 Mt Tomasetti and Mr Hemmings agree that the requirements of cl 35(9)(a) to (e) must be considered conjunctively. This requires the Court to find that the specific requirements of each subsection are satisfied for the incentive provisions to be triggered. This requires each subclause to be addressed separately.

49 The provisions of cl 35(9) are heritage incentives provisions and were addressed in some detail by Mr McDonald and Mr Brooks. Mr Jensen and Mr Toon also addressed these provisions in some detail and unsurprisingly their conclusions generally followed the conclusions of their respective heritage experts.

50 With the different approaches taken to the interpretation of cl 35(9) by Mr Tomasetti and Mr Hemmings and adopting the approach of initially considering each of the provisions of cl 35(9), I have generally relied on the expert evidence of the heritage experts although where appropriate I have included comments from Mr Jensen and Mr Toon, both being experienced and knowledgeable experts in a range of town planning matters, including heritage. Much of the evidence did not necessarily follow the individual assessment of each of the provisions of cl 35(9), however I have relied upon the comments made by the experts even though the evidence may not have specifically referred to the provisions of cl 35(9).

51 The provisions of cl 35(9) address a wide range of matters and, in this case, some are more relevant than others so I propose to address the provisions in what I consider to be the descending order of importance.

( d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting,

Setting and curtilage

52 The Dictionary to LEP 2007 provides some relevant definitions. These are:

curtilage , in relation to a heritage item or conservation area, means the area of land (including land covered by water) surrounding a heritage item, a heritage conservation area, or building work or place within a heritage conservation area, which contributes to its heritage significance.
heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.

53 I agree with the conclusions of Mr Brooks on this consideration. The setting of the Church and the Hall is largely constrained by the small site and the recent development along Church Street and Palmer Street. The Church and Hall occupy most of the site with only a small area off Palmer Lane currently undeveloped, although used for car parking. The curtilage of the Church is limited by its proximity to Church Street, Palmer Street and the Hall. While crowded, the visual presence of the Church building (and its consequent significance) is reinforced by its close but dominant relationship with the much smaller and less grand Hall. This relationship allows a greater understanding of the Church building and also allows the Church, and particularly the prominent spire, to be viewed and appreciated as a substantial and significance building, notwithstanding its cramped and busy curtilage and setting. The Church is clearly the dominant building on the site.

54 The proposed hotel building significantly diminishes the significance of the Church by the imposing form created by a height of 42 m and location directly adjoining the Church. I agree with Mr Brooks where he states that the introduction of a tower rising 42 m directly behind the Church will have a major negative impact on the visual prominence of the Church, especially the spire. While the proposed building does not cantilever over the Church, the fold in the proposed building contributes to the overbearing and dominating nature of the building, particularly when viewed from Palmer Street. Based on the proposed plans it is impossible to come to any other conclusion other than that the small area at the eastern end of the site is not suitable for development of the height, bulk and scale proposed because of the unacceptable impact on the heritage significance of the Church and its setting.

55 The extracts from the architectural plans, attached as Figure 1 and Figure 2, indicate the relationship between the proposed building and the Church:

Views

56 I also accept the evidence of Mr Brooks on the impact of the proposed development when viewed from Alfred Square. The views from Alfred Square highlight the unacceptable relationship between the proposed hotel building and the Church. From this location the proposed hotel building overwhelms the Church and essentially overtakes the spire as the dominant the visual element in the immediate locality. While I agree that views of the hotel building will be blocked from some locations in Alfred Square because of the existing vegetation, equally the building will be clearly visible from other locations in Alfred Square. I agree with Mr Brooks that the loss of the sky backdrop to the spire is an important consideration and goes directly to the impact on the significance of the Church. In my view, it is not necessary to relate the similar relationship between the spire and sky of the nearby All Saints Anglican Church and St Patrick's Cathedral to support Mr Brooks concerns over the loss of the sky backdrop to the spire. Similar concerns are also valid from locations in Church Street near the site.

57 Due to significant redevelopment around the site, views from Church Street, more distant from the site, are unlikely to support the same concerns from Alfred Square and near the site. Similarly, more distant views from Old Government House are not likely to be adversely impacted by the proposed development.

58 I understand the attempts made by the applicant to open up views to the Church from the east to an area of the Church currently blocked by the Hall were supported by Mr Brooks but not to the extent that it overcame his significant concerns on the impacts on the Church from other locations.

I concur with his evidence on this matter.

Fabric

59 After some modification, there was agreement between Mr Brooks and Mr McDonald that the modification to the Church to accommodate the proposed development was acceptable.

Other heritage items

60 The heritage items in the vicinity of the site are:

Alfred Square and potential archaeological site,
366 and 368 Church St, immediately adjacent to the site,
St Patrick's Cathedral, located on the western side of Alfred Park,
All Saints Anglican Church, located to the north-east on Victoria Road, and
Lennox Bridge, located south on Church Street.

61 The proposed development from Alfred Square has been addressed previously and found to be unacceptable. The impact of the proposed development on the other heritage items is not considered to be unacceptable and would not be a matter to warrant the refusal of the application largely because of the physical separation (St Patrick's Cathedral, All Saints Anglican Church, and Lennox Bridge) or the significance of the heritage item (366 and 368 Church Street).

62 For the reasons mentioned in the preceding paragraphs, and pursuant to cl 39(5)(d), I am not satisfied that the proposed development would not adversely affect the heritage significance of the heritage item, including its setting.

(a1) if the development is to contravene a development standard, the additional value that contravention of the development standard will add to the development is consistent with the value of conserving the heritage item,

63 The proposed development has a height of around 42 m and is therefore in breach of the height requirement in cl 21(2) of 24 m for the site. The proposed development satisfies the requirement in cl 22(3) that provides for a maximum FSR is 4:1.

64 The documents prepared by the applicant, being an "Economic Appraisal of Conservation Costs and Additional Room Benefits" prepared by Sphere Property Corporation and a "Budget Cost Plans for Conservation Works" prepared by Page Kirkland Group were reviewed by the council’s consultants, MacroPlan Australia, and “broadly supported”. These documents provide evidence that the cost of modification of the fabric and the ongoing maintenance of the Church can be achieved by the construction of the motel building. The council did not dispute this conclusion. Clause 39(5)(a1) however uses the term "the value of conserving the heritage item" and in my understanding, the term extends beyond the fabric of the Church.

65 Clause 1.4 of The Burra Charter (attached to the Conservation Management Plan) provides definitions and relevantly states:

Conservation means all the processes of looking after a place so as to retain its cultural significance .

Cultural significance means aesthetic, historic, scientific, social or spiritual value for past, present or future generations. Cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects. Places may have a range of values for different individuals or different groups.

66 For the reasons mentioned in the preceding paragraphs on the unacceptable impact on the curtilage and setting of the Church, and pursuant to cl 39(5)(a1), I am not satisfied that the additional value that contravention of the height development standard will add to the development is consistent with the value of conserving the heritage item.

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage conservation management plan is carried out

67 Mr McDonald prepared the Conservation Management Plan. He had knowledge of the proposed development at the time of the preparation of the Conservation Management Plan although his evidence was that this was not an influence on the contents of the Conservation Management Plan.

68 In summary, Policy 16 provides that any new building work should:

not intrude into views to and from their Church,
on the site of the proposed hotel, development should be sensitively designed, complement and not compete with the Church, be separated by a gap or articulation and form a sympathetic and unassertive backdrop of contrasting materials.

69 I have little trouble in concluding that the proposed hotel building is in direct conflict with these requirements with the exception of the contrasting materials and as such is inconsistent with Policy 16 of the Conservation Management Plan. The evidence of Mr Brooks is that the proposed hotel building is clearly in conflict with the requirements in Policy 16, in that it is not sensitively designed and competes with the Church. Mr Jensen held similar views. Curiously the comments of Mr Toon that the proposed building could not be described as "subtle" but "dramatic", "iconic" and "visually exciting" more properly supports a finding that the proposal is inconsistent with Policy 16 in that the hotel does not complement but competes with the Church. I have commented on the issue of views to the Church from Prince Alfred Park in earlier paragraphs and found this aspect of the development unsatisfactory.

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

70 The issues raised by Mr Jensen relate principally to additional overshadowing of the residential properties to south along Palmer Street and the potential for this overshadowing to impact on the photovoltaic cells or solar panels. Mr Jensen also raised potential noise impacts from the operation of the hotel on the same residential properties. These were not seen as significant by Mr Toon

71 On this matter, I accept that there will be additional overshadowing cast by the hotel tower, however the shadow diagrams indicate that the additional overshadowing will pass relatively quickly from the residential properties. I am satisfied this would not create an "adverse effect on the amenity" of these properties. There was no evidence of the existence of any the photovoltaic cells or solar panels on the adjoining residential properties.

72 The noise issue raised by Mr Jensen was not quantified in terms of noise level all the activities likely to generate this noise and as such in his assessment is difficult. In the absence of these details, I am satisfied that noise would not be a matter that would create an "adverse effect on the amenity" of these properties.

a) the conservation of the heritage item is facilitated by the granting of consent

73 Again, while the granting of consent will facilitate the conservation of the fabric of the Church, if conservation is considered in a wider context, it could not be said that the conservation of the heritage item is facilitated by the granting of consent, particularly as the heritage item on the land where the hotel is to be constructed is to be demolished and not conserved.

74 In accordance with cl 35(9), development consent should not be granted for the proposed development as I am not satisfied that:

(a) the conservation of the heritage item is facilitated by the granting of consent,
(a1) if the development is to contravene a development standard, the additional value that contravention of the development standard will add to the development is consistent with the value of conserving the heritage item,
(b) the proposed development is in accordance with a heritage conservation management plan that has been approved by the consent authority, and
(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage conservation management plan is carried out.

75 Based on these findings, it is not necessary to address the dispute over the construction of cl 35(9). In the event that the submissions of Mr Hemmings were correct, I would have little trouble in concluding that the height of the proposed development is inappropriate, given the significant departure from the height controls in cl 24 of LEP 2007, and the impact this height has on the council’s properly adopted strategic planning for the area.

Orders

76 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application No. DA/466/2008 for the demolition of an existing church hall and the construction of a hotel and use of an existing church building in association with the hotel at 356 Church St, Parramatta is refused.
3. The exhibits are returned.

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G T Brown
Commissioner of the Court