Land and Environment Court New South Wales

• Medium Neutral Citation: 1. Pascoe v Council of the City of Sydney 2. Phillips v Council of the City of Sydney [2012] NSWLEC 1034
• Hearing dates: 14 February 2012
• Decision date: 17 February 2012
• Jurisdiction: Class 1
• Before: Morris C

Decision

Appeal dismissed

• Catchwords: DEVELOPMENT APPLICATION: heritage items; impact on heritage item and heritage conservation area.
• Legislation Cited: Land and Environment Court Act 1979; South Sydney Local Environment Plan 1998
• Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
• Texts Cited: City of Sydney Heritage Development Control Plan 2006; South Sydney Development Control Plan 1997; Heritage Inventory Report; City of Sydney Heritage Database Heritage Inventory Report
• Category: Principal judgment
• Parties: 1. David Pascoe (11119 of 2011); 2.Geoff Phillips (Applicants); The Council of the City of Sydney (Respondent)
• Representation: Counsel; Ms Carpenter (Respondent); Solicitors; Mr G Christmas; Apex Law (Applicant); Ms K Ridling; Sydney City Council (Respondent)
• File Number(s): 1. 11119 of 2011; 2. 11120 of 2011

Judgment

1 This matter relates to two appeals against the refusal by the Council of the City of Sydney (the council) of Development Application D/2010/1802 (the No. 155A application) and Development Application D/2010/1800 (the No. 157 application), which proposed alterations to two adjacent terrace houses to construct a rear roof extensions at Nos. 155A and 157 Palmer Street, Darlinghurst.

2 Because the applications were lodged concurrently, were for similar structures and related to two adjacent properties, the two appeals were heard concurrently.

3 The contentions in these matters are whether the applications will adversely impact on the heritage significance of the heritage item and if the proposal is in the public interest.

4 A Section 34AA conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the adjacent area including Rosella Lane, Stanley Street (to Crown Street) and Palmer Street. Both properties were inspected internally, including the existing attic accommodation in both terrace houses. As no agreement was reached, the conciliation conference was terminated and the matter proceeded to a hearing in accordance with the provisions of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979 .

The site and its context

5 No. 155A is located on the western side of Palmer Street, between William Street and Stanley Street and No. 157 is located to its immediate south. No. 155A has a frontage of 5.22m and an area of 151.3m 2 whilst No. 157 has a frontage of 5.105m and a site area of 146.4m 2 .

6 No. 155A is the northern most terrace in a row of 13 terraces, known as the 'Baker's Dozen'. The Baker's Dozen is a two storey masonry terrace row facing Palmer Street, with paired two storey rear wings fronting Rosella Lane. The form of the terrace row, including the paired rear wings and significant architectural features, such as chimneys, remains substantially intact.

7 No. 157 Palmer Street has been altered with the construction of an unauthorised rear roof addition.

8 The area within which the site is located is densely developed and consists of mixed residential and commercial buildings. Adjoining the Baker's Dozen, to the north of the 155A site, is a warehouse building. The cutting for the William Street exit from the Eastern Distributor is opposite the Baker's Dozen terrace row, on the eastern side of Palmer Street.

Background and the proposal

9 Development Applications D/2008/284 for an attic conversion and dormer window addition to the rear roof plane of 155A Palmer Street and D/2008/186 for an attic conversion and dormer window addition to the rear roof plan of 157 Palmer Street, Darlinghurst were approved, following a Section 82A review by council's Small Permits Appeal Panel, on 25 May 2009.

10 Section 96 applications to modify the approved rear dormer windows of both 155A and 157 Palmer Street, to Federation style rear roof additions, were refused by the council on 22 September 2009.

11 The applicants did not act on those consents and lodged the development applications which are now before the Court. The council refused those applications on 26 November 2011.

12 Both applications are for matching rear roof additions to the attic level, 3865mm wide with a skillion roof falling towards the rear, located 200mm below the existing ridge level and with two pairs of casement windows in the rear elevation. The 155A site application includes a bedroom and ensuite bathroom in the attic level with a new stair from the first floor and the 157 site application includes a bedroom in the attic level with a new stair from the first floor level.

The planning controls

13 The sites are zoned Residential 2(b) (Medium Density) under the South Sydney Local Environment Plan 1998 (SSLEP). Both buildings are used as residential dwellings and the proposals are permissible with consent.

14 The Baker's Dozen, numbers 155A to 165A Palmer Street, is listed as a heritage item, No. 817 under SSLEP. The SSLEP, clause 22 Heritage aims, includes:

The consent authority must not grant consent to the carrying out of development on the site of a heritage item, or within a heritage conservation area or heritage streetscape area, unless it is of the opinion that the proposal is consistent with the following aims and objectives:...

(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting,

15 The sites are located within the East Sydney and Darlinghurst Conservation Area (CA18). Under the buildings contributions map in the City of Sydney Heritage Development Control Plan 2006 (Heritage DCP) the sites are identified as both heritage items and contributory buildings which at clause 1.15(a), is described as buildings which make an important and significant contribution to the character of the heritage conservation area .

16 Part 3 of the Heritage DCP provides objectives and provisions for heritage items. The objectives, at 3.1, are to ensure that development to heritage items:

(i) encourages the retention of existing heritage items and their significant elements;

(ii) is based on the understanding and conservation of the heritage significance of the item;

(iii) encourages heritage items to be used for purposes that are

appropriate to their heritage significance;

(v) maintains the setting of the heritage item including the relationship between the item and its surroundings;

(vi) encourages the removal of inappropriate alterations and additions, and the reinstatement of significant missing details and building elements; and

(vii) is consistent with policy guidelines contained in the Heritage Inventory Assessment Report.

17 The provisions for heritage items, at 3.2, include

(2) Development of a heritage item is to:

(b) be consistent with the Heritage Inventory Assessment Report;

(d) retain significant internal and external building elements;

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

18 Part 6 of the Heritage DCP provides guidelines for additions to heritage items and buildings in heritage conservation areas and heritage streetscapes. The objectives, at 6.1, include:

(i) minimise the impact on the heritage significance of the existing building, heritage conservation area, and/or heritage streetscape;

(vi) maintain the uniformity of significant coherent front and rear elevations where the building forms part of a group, row or semi-pair;

19 The general provisions for additions, at 6.2, include:

(2) additions should maintain the profile and form of the original building, including the roof form and profile, and allow the original building to be discerned.

20 Part 8 of the Heritage DCP provides guidelines for changes to building elements of heritage items and buildings within heritage conservation areas and heritage streetscapes. Clause 8.2.3 Ensuring sympathetic roof alterations and additions, includes:

Roof additions include rear roof extensions and dormer windows. Roof additions should be designed to permit the original roof form, slope and ridge of the building to be easily discernable and should not overwhelm the integrity of the existing building.

21 Clause 8.2.4 Rear roof extensions includes descriptive controls for skillion additions to rear roofs and clause 8.2.5 Dormer windows, includes descriptive controls for dormer window additions.

22 South Sydney Development Control Plan 1997 is another document that is relevant to the determination of the application.

The issues

23 The contentions in the matter are whether:

• the proposed rear roof extensions will adversely impact on the heritage significance of the heritage item, the terrace row known as the Baker's Dozen; and
• the proposed rear roof extensions will generate additional adverse impacts by establishing a precedent for the remainder of the terrace row.

The evidence

24 Expert evidence was heard from Mr Brooks for the applicant and Ms Desgrand for the council on heritage issues.

25 The experts agree that the two storied Victorian terrace row known as the Baker's Dozen is listed as a heritage item and is identified as contributory to the East Sydney and Darlinghurst heritage conservation area. They also agreed that consent for rear roof extensions to 155A and 157 Palmer Street would provide a precedent for future applications for rear roof extensions for the terrace row known as the Baker's Dozen.

26 The experts disagree whether the proposal for a skillion rear roof extension (a rear roof extensions as detailed in Figure 28 of the Heritage DCP) will adversely impact on the heritage significance of the Baker's Dozen and whether the skillion rear roof extension complies with the provisions in the Heritage DCP.

27 Mr Brooks says that the application is consistent with the Heritage DCP clause 8.2.4 Rear roof extensions, which he describes as a 'shed' dormer, as this clause applies to the rear roof planes of heritage items and buildings in heritage conservation areas and heritage streetscapes. Mr Brooks says that clause 8.2.5 Dormers, which he describes as the Victorian style attic dormer, applies to the front roof planes of heritage items and buildings in heritage conservation areas and heritage streetscapes however, he did concede during cross-examination that the Heritage DCP did provide for dormers as an appropriate option for rear roof extensions. According to Mr Brooks, either form of roof extension would be acceptable in the rear roof plane of 155A and 157 Palmer Street and both styles have been used in Twentieth century buildings.

28 Ms Desgrand cites the objectives for heritage items in the Heritage DCP (clause 3.1), which she says aim to limit the scale of additions generally so as to conserve visual integrity and respect the overall form. According to Ms Desgrand, clause 8.2.4 requires that the design of rear roof extensions take into consideration the impact on the building's heritage significance, particularly where it is part of a pair or intact row and that a rear roof extension would not be appropriate in the Baker's Dozen terrace row.

29 Mr Brooks notes that there have been changes made to the original fabric of the roof structure of both dwellings and says that retention of original structural fabric within the roof structure is not critical.

30 It is Ms Desgrand's opinion that a rear roof extension of the scale proposed, would require substantial intervention and modification of the original roof framing of the dwellings.

31 Mr Brooks says that the East Sydney and Darlinghurst Heritage Conservation Area is characterised by variety and complexity and that a rear roof extension, if repeated along the Baker's Dozen terrace row, would have an acceptable impact on views to the rear of the terrace row and its heritage significance.

32 Ms Desgrand says that a rear roof extension is not an appropriate form for the rear roof planes of the Baker's Dozen, as this form, if repeated along the terrace row, would set up a strong horizontal line across the roofscape, appear as an additional storey, disrupt the rhythm of the roofscape and interrupt views to the chimneys located within the party walls.

33 According to Ms Desgrand, the City of Sydney Heritage Database Heritage Inventory Report (also called the Heritage Inventory Assessment Report in the Heritage DCP) for the Baker's Dozen was updated with information taken from the Heritage Impact Statement for 155A Palmer Street, Darlinghurst by Weir + Phillips Architects & Heritage Consultants, following the approval of D/2008/1802 and changes to the Heritage Inventory Report included changes made to the Recommended Management provisions for those heritage items.

34 The Heritage Inventory Report available on the Heritage Office [NSW Office of Environment and Heritage] website from its online database was not updated and remains the 2005 version. Mr Christmas, on behalf of the applicants, submits that the updated Heritage Inventory Report should be given no determinative weight, given that an applicant would have had to be aware that two versions may have been extant in order to request the updated report from the council.

35 The Heritage DCP states, at 1.14 Heritage Inventory Assessment Report;

Heritage Inventory Assessment Reports are available by contacting the City or online through the NSW Heritage Office at www.heritage.nsw.gov.au

36 As it is not evident from this statement contained in the Heritage DCP that the council's version of the Heritage Inventory Report may be updated when compared to the Heritage Inventory Report available on the Heritage Office website, I have given the updated version of the report no determinative weight and have instead relied on the 2005 version of the Heritage Inventory Report for the Baker's Dozen at 155A - 165A Palmer Street, Darlinghurst.

37 The statement of significance for the Baker's Dozen, included in the Heritage Inventory Report on the Heritage Office website online database, includes:

Baker's Dozen, as the name suggests, is a building of thirteen late Victorian terraces which make a positive contribution to the streetscape. The building dates from one of the key period of layers for the development of Darlinghurst as a direct result of subdivision of the Riley estate.

Conclusion and findings

38 The fact that the sites are located within the terrace row, the Baker's Dozen, which is listed as a heritage item in the SSLEP requires that the aims, objectives and provisions of the SSLEP and Heritage DCP are considered and the impact of the proposal on the heritage significance of the item be the first consideration in assessing the appropriateness of the proposal.

39 I agree with Ms Desgrand that the form of the rear roof scapes of the Baker's Dozen terrace row remains substantially intact and that the rear roof planes, paired rear wings and significant architectural features remain visible from the public domain.

40 I accept the view of both experts and the statement of significance for the Baker's Dozen that the terrace row is predominately Victorian in style, as it has strong vertical proportions and a form typical of Victorian terrace housing.

41 The experts agree that consent for a rear roof extension or dormer window will provide a precedent for the remainder of the terrace houses within the Baker's Dozen and consequently, the effect of a row of matching rear roof extensions along the rear roof planes of the Baker's Dozen must be a consideration. The issue of precedent in this case is not always a valid consideration however, in accordance with the views of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, I accept that there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality, in particular, the remaining terraces in the Baker's Dozen heritage item.

42 I agree with Ms Desgrand that a rear roof extension would require removal of a substantial amount of original roof framing within the rear roof plane of the 155A site. I note that the original roof framing at No. 157 has been removed for the construction of the unauthorised rear roof extension. That addition is not consistent with the earlier consent granted by the council. The removal or retention of original or early roof framing is not determinative in this case, as the contentions focus on the form of the proposed rear roof extensions and its impact on the heritage significance of the heritage item however, it remains a consideration, particularly with regard to any precedent that may be established.

43 I disagree with Mr Brooks that the rear roof extension descriptive controls in clause 8.2.4 of the Heritage DCP are generally applicable to the rear roof planes of terrace houses identified as heritage items, within a heritage conservation area or a heritage streetscape. The impact and consequently the appropriateness of a rear roof extension on the heritage significance of the item must firstly be considered with reference to clause 22 - Heritage aims of the SSLEP, ' to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items.' These considerations are supplemented with the objectives for changes to building elements included in clause 8.1 of the Heritage DCP which include to ensure that changes to building elements on heritage items are designed to minimise interference to the original form of the building, minimise the impact on existing and original building elements and protect, and not overwhelm, the scale and architectural integrity of the existing building.

44 I consider that the proposal for a rear roof extension to Nos. 155A and 157 Palmer Street would dominate the rear roof plane of the terrace houses, by occupying the majority of the area of the rear roof plane, presenting a horizontal emphasis and obscuring some existing views to architectural features such as the chimneys located on the party walls. This is not consistent with the Victorian character of the heritage item and is not designed so as to minimise the impact on the existing and original building elements. Nor does it protect the scale and architectural integrity of the existing buildings and the group within which they are located.

45 Having regard to the relevant planning controls and the evidence provided, I find that the proposal for rear roof additions to Nos. 155A and 157 Palmer Street, Darlinghurst would have a detrimental impact on the heritage significance of the Baker's Dozen terrace row and that the impact is of such consequence that the application should be refused.

Orders

(1) The appeal is dismissed.

(2) Development Application No D/2008/1802 for a rear roof addition to 155A Palmer Street, Darlinghurst and Development Application No D/2008/1800 for a rear roof addition to 157 Palmer Street, Darlinghurst are refused consent.

(3) The exhibits, other than exhibits 1, 2, A and B, are returned.

Sue Morris

Commissioner of the Court

**********

Decision last updated: 22 February 2012