Touma v Council of the City of Sydney

[2017] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:	Touma v Council of the City of Sydney [2017] NSWLEC 1231
Hearing dates:	26-27 April 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building, at 63 Moore Park Road, Centennial Park, is refused. 3. The exhibits, other than exhibits 1 and J, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to contributory building to heritage conservation area for a residential flat building; whether the proposal results in adverse heritage impacts; bulk and scale; amenity of apartments.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Cracknell & Lonergan Architects Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1159
Category:	Principal judgment
Parties:	Adam Touma (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Dr S Berveling barrister (Respondent)   Solicitors: Hartley Solicitors (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2016/288457

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building (the proposal) at 63 Moore Park Road, Centennial Park (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 25 January 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, it was terminated pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 9 March 2017 for the applicant to rely on an amended proposal. Leave was unopposed and granted by the Court at the commencement of the hearing to rely on an amended proposal and again during the hearing for the applicant to rely on a further amended proposal (exhibit J).

Issues

The Council’s contentions can be summarised as:

• The proposal has an unacceptable impact on the heritage significance of the contributory building as the retention of the front façade, part of the side walls and front section of roof with total demolition of the interior and the rear two thirds of the roof and rear half of the house does not constitute adaptive reuse, nor is it retention of a contributory building. The proposed substantial demolition of the contributory building is inconsistent with the cl 3.9.7(1) of the Sydney Development Control Plan 2012 (DCP 2012) requiring the retention of contributory buildings.

• The proposal, by way of the extent of demolition, excessive bulk and scale, design and materials, will not complement the character of the heritage conservation area contrary to cl 3.9.6(2) of DCP 2012.

• The eastern and western side boundary setbacks do not comply with the required building separation distances.

• The proposal is inconsistent with the rear setback established by existing development to the west of the site.

• The proposal represents a poor outcome for the 3 apartments at the front of the site which do not have private open space and where the front setback is communal.

3. A number of contentions were addressed to the Council’s satisfaction by amendments made to the proposal (exhibit J).

The site and its context

4. The site is on the southern side of Moore Park Road and to the west of the intersection of Moore Park Road and Cook Road. The site has rear lane access from Poate Lane. The site falls towards the rear. The site contains a one and two storey Federation style dwelling and a garage fronting the rear lane. The original dwelling has a contemporary two storey rear addition.

5. There is a seven storey residential flat building adjoining the site to the east, on the corner of Moore Park Road and Cook Road.

6. The Federation era dwelling to the adjoining the site to the west is currently used as a childcare centre.

The proposal

7. The proposal is to retain the front façade, parts of the side return facades including the side porch and front gables of an existing dwelling and construct a residential flat building, with 3 new apartments within the envelope of the front of the existing dwelling and 9 apartments in a rear addition of 3 storeys and an attic. The proposal includes the demolition of the garage structure fronting the rear lane.

Planning framework

8. State Environmental Planning Policy 65 – Design Quality of residential apartment development (SEPP 65) applies to the proposal at cl 4(1). In determining a development application, the consent authority is to take into consideration the Apartment Design Guide (ADG) at cl 28(2)(c). Development consent must not be granted if, in the opinion of the consent authority, the development does not demonstrate that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, at cl 30(2).

9. The site is zoned R1 General Residential pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R1 zone, to which regard must be had at cl 2.3(2), are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

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

10. The site is within a conservation area (Heritage Map Sheet HER_023 LEP 2012). The site has a height of building development standard of 12m (Height of Buildings Map HOB_023 LEP 2012) and a floor space ratio (FSR) development standard of 1.25:1 (Floor Space Ratio Map FSR_023 LEP 2012).

11. Clause 5.10 of LEP 2012 relevantly includes as an objective, at (1)(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. It is a precondition to the grant of consent, at sub-cl (4), that the consent authority consider the effect of the development on the heritage significance of the heritage conservation area.

12. The locality statement for Furber Road, which includes the site, at 2.9.4 of Sydney Development Control Plan 2012 (DCP 2012) includes the following relevant principles:

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(c) Retain and conserve heritage items and contributory buildings including the pairs and rows of Federation terraces as well as inter-war residential flat buildings.

(h) Consider site amalgamation on sites of non-contributory buildings on Moore Park Road adjacent to the corner lot with Cook Road, and on Poate Road to encourage high quality medium density development that benefits from efficient, north-south oriented lots.

(k) Encourage multi-unit dwellings on sites with non-contributory buildings.

13. The site is identified as ‘contributing’ by the Buildings Contribution Map Sheet 023 DCP 2012. The relevant DCP 2012 provisions in relation to heritage are as follows:

3.9.6 Heritage conservation areas

Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area.

The contribution of these buildings is based on studies carried out by heritage

consultants for the City.

New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.

(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above.

(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.

3.9.7 Contributory buildings

Contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. They have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. They are buildings:

• from a significant historical period and are highly or substantially intact; or

• from a significant historical period and are altered yet recognisable and

reversible.

(1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances.

(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements.

(3) Alterations and additions to a contributory building are to:

(a) respect significant original or characteristic built form;

(b) respect significant traditional or characteristic subdivision patterns;

(c) retain significant fabric;

(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing;

(e) remove unsympathetic alterations and additions, including inappropriate building elements;

(f) use appropriate materials, finishes and colours; and

(g) respect the pattern, style and dimensions of original windows and doors.

(4) Where an addition to the building is proposed, significant external elements are to be reinstated.

(5) Foyers or other significant interior features, including hallway detailing, panelling and significant staircases, designed to be visible from the street, are to be retained especially where they form part of the building’s contribution to the character of the heritage conservation area.

14. The Statement of significance for the Furber Road Conservation Area (Furber Road CA) from the State Heritage Inventory is as follows:

The Furber Road Heritage Conservation Area has historic significance as a substantially intact subdivision developed from the Federation Period through the Inter - war period. Its development reflects its controversial subdivision history of disputation between the State Government, the City Council and local residents (both nearby and within the subdivision).

The area is of aesthetic significance as it possesses two distinct periods of residential development (Federation and Inter- war) with varying scale (1-2 storeys Federation,1, 2 and 3 storey Inter-war period) that contributes to the character of the area.

15. The maximum number of storeys for the site is 3 storeys. DCP 2012 includes, at 4.2.1.1, that the maximum may only be achieved where it can be demonstrated that the proposed development reinforces the neighbourhood character, is consistent with the scale and form of surrounding buildings in heritage conservation areas and does not detract from the character and significance of the existing building.

16. The objectives for building setbacks in DCP 2012 at 4.2.2 include an objective to be consistent with setbacks in heritage conservation areas.

Public submissions

17. Representatives of the neighbouring childcare centre at 61 Moore Park Road provided evidence at the commencement of the hearing on-site and the Court and the parties viewed the site from the playground at the rear of the childcare centre. They object to the bulk and scale of the proposal and the inadequate side setback of the proposal to the shared boundary.

Expert evidence

18. The applicant relied on the expert evidence of Mr Robert Staas (heritage), Mr Anthony Betros (planning) and Ms Karla Castellanos (urban design). The Council relied on the expert evidence of Mr John Poulton (heritage), Ms Erin Murphy (planning/urban design) and Ms Julie Pressick (planning/urban design).

Consideration

Heritage

19. The heritage experts agreed that the contribution made by the building to the Furber Road CA goes to its external appearance in the streetscape when viewed from the public domain.

20. According to Mr Poulton, the interior of the bungalow is an integral part of the building, notwithstanding that there is no specific provision in the planning regime requiring the interior of a contributory building to be retained. He noted that alterations and additions to a contributory building are to retain significant fabric and the interior of the existing bungalow is highly intact, including the original surviving timber wall panelling and fretwork to the main hall, timber doors, fire places, battened ceilings, timber joining including skirtings and plate rails and timber flooring and the total removal of the interior does not respect the integrity of the existing building. In his view, the proposal has not demonstrated why the retention and reuse of the existing bungalow, including internal fabric, is not feasible. It is Mr Poulton’s opinion that the extent of demolition proposed is not consistent with retaining the contributory building and the proposal will result in a diminution of its contribution the heritage significance of the Furber Road CA.

21. In Mr Poulton’s opinion, the scale and form of the rear addition are uncharacteristic of the conservation area and disproportionate to the existing building; the mansard roof is not typical; the proposed additions are not subservient to the existing building, but dominant; and the seven storey building adjacent is an anomaly in the Furber Road CA.

22. According to Mr Staas, the intention of the planning controls and objectives is to retain the streetscape appearance of the area and not to restrict internal alteration and additions which do not have a significant impact on the views from the public domain. The Statement of Significance for the Furber Road CA identifies two areas of significance, the subdivision pattern which remains unchanged by the proposal and the aesthetic value of buildings visible from the public domain and the retention of a substantial portion of the existing building in the streetscape of Moore Park Road maintains that level of significance.

23. In Mr Staas’ opinion, development on the site in the form proposed is permissible with consent; respects the development standards; and protects views from Moore Park Road which contribute to the character of the Furber Road CA. He noted that there are several substantial contemporary infill buildings within the Furber Road CA that do not adopt traditional residential built forms and their substantial setback from the front of the site maintains the contribution of original and early buildings to the Furber Road CA. In Mr Staas’ opinion, nothing proposed in this application results in any diminution of the historical evolution values of the area and views to and along Poate Lane are not significant.

24. I accept the agreement of the experts that the existing dwelling is appropriately identified as contributory to the collective heritage significance of the Furber Road CA. It has a reasonable to high degree of integrity and dates from the key period of residential development that contributes to the character of the area.

25. The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. This objective does not point to a requirement to simply retain a streetscape façade or the appearance of a contributory dwelling dating from a key period of the conservation area. In order to keep the roof structure, the form and the appearance of an older dwelling, it is necessary to retain more than the front façades and front gables of the bungalow.

26. The applicant relies on cl 3.9.7(5) of DCP 2012, ‘significant interior features… designed to be visible from the street, are to be retained especially where they form part of the building’s contribution to the character of the heritage conservation area’, to justify the complete gutting of the interior of the dwelling on the basis that the interiors are not designed to be visible from the street. I do not accept that it necessarily follows that a finding that the interiors of a contributory building are not designed to be visible from the street, means that the interior fabric can be completely demolished. Original interior fabric of a contributory building contributes to the integrity of that building and the degree of integrity of a building within a heritage conservation area forms part of the consideration of whether it contributes to the collective heritage significance of that area.

27. I accept Mr Poulton’s evidence that the gutting of this bungalow to form a new spatial layout for three apartments that bears no relationship to the existing spatial layout and interior fabric of the dwelling and the removal of a significant portion of the form of the original dwelling will diminish the contribution of this Federation bungalow to the character of the Furber Road CA. As a consequence, the significant amount of demolition proposed will erode both the historic and aesthetic values of the Furber Road CA and its collective significance. It is necessary to retain more than a front façade and partial side elevations in order to retain the integrity of the building, because the contributory value of a building to a conservation area is not confined to its external appearance and streetscape presence (Cracknell & Lonergan Architects Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1159 [27]).

28. The proposal has not dealt skilfully with the constraint of retaining the integrity of the existing bungalow and the proposal makes an awkward transition between the old and new fabric. Retaining the integrity of a contributory building does not preclude sympathetic alterations, including contemporary styled additions, with appropriate massing, scale, proportions, materials and details, which marry into the original building in a thoughtful and elegant way.

Planning and urban design

29. The proposal complies with the development standards in LEP 2012 for the site. Council’s remaining planning and urban design contentions in relation to the overall built form of the proposal seem to ignore the significant density of development envisaged for the site as embodied in the development standards in LEP 2012 combined with the considerable constraint of retaining the contributory dwelling. In order to achieve development commensurate with the scale of development envisaged by LEP 2012 for the site, some flexibility will have to be applied in relation to side and rear setbacks and the overall building envelope of the proposal. This is, however, a matter for a future application.

30. It is difficult to reconcile the principle in DCP 2012 at cl 2.9.4(k) of encouraging multi-unit dwellings on sites with non-contributory buildings with the FSR for the nearby site containing a 3 storey residential flat building identified as intrusive to the Furber Road CA with a FSR of 1:1, when compared to the site and its western neighbour, both identified as contributory buildings to the Furber Road CA, with a FSR of 1.25:1.

Conclusion

31. Having considered the effect of the proposed development on the heritage significance of the Furber Road Conservation Area, I am not satisfied that the proposal achieves the objective of cl 5.10(1)(b) of LEP 2012 to conserve its heritage significance.

Orders

32. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building, at 63 Moore Park Road, Centennial Park, is refused.

3. The exhibits, other than exhibits 1 and J, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 09 May 2017