Land and Environment Court New South Wales

• Medium Neutral Citation: Comino v Council of the City of Sydney [2014] NSWLEC 1211
• Hearing dates: 10 October, 2014
• Decision date: 15 October 2014
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is dismissed.

2. Development Application No. D/2014/916 for alterations and additions to an existing commercial building is refused.

3. The exhibits, other than exhibit 2, are returned.

• Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing commercial building; impact on heritage significance of heritage items in the vicinity of the site and the Pitt Street Mall Special Character Area.; PLANNING PRINCIPLES: review of planning principles by Commissioners; Commissioners consider that the planning principle in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 should no longer be applied.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353; Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167
• Category: Principal judgment
• Parties: Mr Victor Comino (Applicant); Council of the City of Sydney (Respondent)
• Representation: Ms A Hemmings Barrister (Applicant); Ms M Carpenter Barrister (Respondent); Gadens Lawyers (Applicant); Council of the City of Sydney (Respondent)
• File Number(s): 10597 of 2014

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2014/916 (the proposal) for alterations and additions to an existing commercial building at 119 King Street, Sydney (the site) by the Council of the City of Sydney (the Council).

Issues

2 The Council's contentions in the matter can be summarised as:

• The proposal does not demonstrate design excellence;
• The proposal will have an adverse impact on the heritage significance, the setting, the character and views of the heritage items within the vicinity of the site; and
• The original facade of the existing building is over 50 years old and the proposal will have an adverse impact on the facade and its contribution to the Pitt Street Mall Special Character Area.

The site and its context

3 The site is on the southern side of King Street, on the block bounded by George Street to the west and the Pitt Street Mall to the east. On the western side of the site is 400 George Street, a contemporary commercial building which incorporates the heritage listed 'Sydney Arcade' facade fronting King Street and on the eastern side of the site is the heritage listed former 'Liverpool Arms Hotel'. The site is within the Pitt Street Mall Special Character Area.

4 The site contains a four storey commercial building with a basement, built in 1881 to a design by Thomas Rowe in the Victorian Free Classical style.

Background and the proposal

5 On 12 July 2005, Council approved Development Application No. D/2005/887 for the site, including demolition of the existing shopfront, new signage, new internal layout and minor internal changes to the floors of the existing building. This application did not relate to amendments to the King Street facade above the awning.

6 On 28 May 2014, Council approved Development Application No. D/2014/460 for the site, including alterations to the retail fitout at basement, ground, first and second floors, installation of new steep construction lift and staircase and new graphics applied to existing exterior signage. This application did not relate to amendments to the King Street facade above the awning.

7 The proposal, which was refused by Council on 21 August 2014, is for the following alterations and additions:

• replacement of the ground floor facade cladding with aluminium cladding;
• replacement of metal mesh screening to the facade of the existing building above the awning with new fibre cement sheet cladding and painted render, which results in a new, solid screen which sits out from the existing facade;
• replacement of glass awning;
• relocation of approved signage onto new cladding.

Planning Framework

8 The site is zoned B8 Metropolitan Centre, pursuant to the Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B8 Metropolitan Centre zone are as follows:

· To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy.

· To provide opportunities for an intensity of land uses commensurate with Sydney's global status.

· To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community.

· To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.

· To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

9 The site is located within the vicinity of a number of heritage items, including the following (Heritage Map - Sheet HER_014 and Schedule 5, LEP 2012).

• 400 George Street, former 'Sydney Arcade' facade (97-103 King Street) I1779;
• 181 Pitt Street, former 'Liverpool Arms Hotel' I1925

10 Clause 5.10 of LEP 2012, 'Heritage Conservation', includes the following relevant objectives at (1):

(a) to conserve the environmental heritage of the City of Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

11 The consent authority may, before granting consent to any development on land within the vicinity of land on which a heritage item is located require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item, at sub-cl 5.10(5) of LEP 2012.

12 The relevant provisions of cl 6.21 'Design excellence', are as follows:

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(d) how the proposed development addresses the following matters:

(i) the suitability of the land for development,

(iii) any heritage issues and streetscape constraints,

(v) the bulk, massing and modulation of buildings,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

13 The site is located within the Pitt Street Mall Special Character Area (LEP 2012 Special Character Areas Map retail Premises Map - Sheet CL2_014). Sydney Development Control Plan 2012 (DCP 2012) includes the locality statements at Section 2. In relation to Central Sydney, the Special Character Areas nominated are considered to be of significance and importance to the identity and quality of Central Sydney and are identified because they have a character that is unmatched elsewhere in the Central Sydney, there is a concentration of heritage items and streetscapes or they represent a highly distinctive element in the public domain. Development within the Special Character Areas must retain and enhance the unique character of each Special Character Area, conserve and protect heritage items and their settings and conserve, maintain and enhance existing views and vistas to buildings and places of historic and aesthetic significance.

14 The Pitt Street Mall Special Character Area, at sub-section 2.1.8 of DCP 2012, states that the concentration of 4-5 storey Victorian commercial buildings standing on either side of the Mall contributes to the character of the area, and includes the following relevant principles:

(g) conserve and enhance the heritage significance of the area including the significance of the nineteenth and twentieth century commercial buildings and their settings.

(h) protect and enhance the east west vistas along King Street.

15 Section 3 of DCP 2012 includes, at sub-section 3.9.1(2), that the consent authority may not grant consent to a development application that proposes substantial demolition or major alterations to a building older than 50 years until it has considered a heritage impact statement, so as to enable it to fully consider the heritage significance of a building and the impact that the proposed development has on the building and its setting.

Expert evidence

16 Expert evidence was provided by Mr Stephen Davies (heritage) and Mr Andrew Darroch (planning) on behalf of the applicant and Ms Margaret Desgrand (heritage) and Mr David Little (planning) on behalf of the Council.

17 The experts agreed on the following:

• the existing building has never been listed as a heritage item;
• the site was once part of the hotel located on the corner of Pitt Street and King Street (Liverpool Arms Hotel) and the existing building exhibits the same detailing as the adjacent heritage items;
• it is desirable to remove the existing mesh screen that covers the upper levels of the original facade;
• of the original facade, the parapet, the hood over the 2nd floor window, the shop front and the awning have been removed.

18 The experts disagreed on whether the original fabric of the King Street facade of the existing building contributes to the surrounding context.

19 It is Ms Desgrand's evidence that there are no heritage conservation areas within Central Sydney and instead, Special Character Areas are nominated. Special Character Areas are defined by the map in LEP 2012 and described and protected by a special character area statement and supporting principles in Section 2 of DCP 2012. Unlike heritage conservation areas, buildings within a Special Character Area are not identified as being contributory, neutral or intrusive, other than the heritage items listed in Schedule 5 of LEP 2012. In her view, the high quality Victorian architectural motifs and features of the existing facade, although compromised by the mesh screen in front of the facade, are clearly visible behind the mesh screen and contribute both to the setting of the adjoining heritage item and to the character of the Pitt Street Mall Special Character Area, including the King Street streetscape.

20 Mr Davies notes that the existing building has been altered and that fundamentally only the facade of the existing building remains with some of the embellishments removed, although he agreed in oral evidence that the existing facade has a high level of integrity and possibly requires further investigation. In his view, the existing facade does not relate particularly well to the adjoining heritage item, the former Liverpool Arms Hotel, to the east. He is not a supporter of keeping facades only and for this reason, the site, in his view, presents an opportunity to put another, better screen on the building and the proposal, which will present as a blank wall in a soft colour, represents a simple, contemporary element, that 'says what it is'.

21 According to Mr Darroch, the City of Sydney has had numerous opportunities to include the existing building in its inventory of heritage items over time and has not done so. In his view, it is difficult to see what is behind the existing mesh screen and a new, solid screen of high quality materials and detailing, would achieve a better outcome.

22 In Ms Desgrand's view, the projection of the proposed solid screen is not respectful of the adjoining heritage item as it sits forward of the street alignment and would conceal the oblique views of the three dimensionality of the embellishments on the facade of the former Liverpool Arms Hotel adjacent. She considers that the blank facade of the proposal would have no relationship with the adjoining facades, as it does not respond to the rich array of horizontal and vertical details that create a hierarchy of detailing and the proportions of the adjoining facades.

Findings

23 I accept and adopt Ms Desgrand's evidence regarding the contribution of the remaining original facade to the setting of the adjoining heritage item and to the unique character of the Pitt Street Mall Special Character Area. The high quality Victorian design, architectural motifs and features of the existing facade, although compromised by the mesh screen in front of the facade, are clearly visible. The original facade, as an example of a Victorian commercial building, dates from the principal period of development identified by the Pitt Street Mall Special Character Area statement and principles and the retention of the original features of the facade, even compromised by the existing mesh screen, is preferable to completely obscuring the original facade with a solid screen, as the original facade contributes to the unique character of the Pitt Street Mall Special Character Area.

24 I accept the applicant's position that the proposal represents design excellence in terms of its materiality and detailing, however, the projection of the solid screen beyond the facade of the adjoining former Liverpool Arms Hotel facade is not suitably deferential to its immediate context adjacent to a heritage item, as the solid screen will obstruct the oblique views of the modulation of the facade of the adjoining heritage item, making the proposal inconsistent with the design excellence provisions in LEP 2012, particularly cl 6.21(4)(d)(iii), (v) and (xi). Furthermore, I accept the agreement of the experts that the existing building demonstrates the same detailing and motifs as the heritage listed former Liverpool Arms Hotel and obscuring these original features of the existing facade, which contribute to interpreting the adjoining heritage item, would compromise the heritage significance and setting of the former Liverpool Arms Hotel facade.

25 In my view, it would be appropriate to treat the existing building and elements of the original facade quite robustly, for example, it could accommodate an additional level visible from King Street and this may provide suitable leverage for negotiating the removal of the mesh screen, an appropriate colour scheme and repair works to the facade. This is, however, a matter for a future application.

Reviewing planning principles

26 Ms Carpenter submitted in passing that steps 2 and 4 of the planning principle regarding assessing the impact of adjacent development on a heritage item (Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 at [34]) were relevant to my consideration of this matter.

27 As recently observed by the Senior Commissioner in Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 at [30], the Commissioners of the Court undertook a review of the published list of planning principles in late 2013, in order to determine which planning principles remain relevant in their original form; which, if any, might warrant revision or replacement; and which, if any, were no longer relevant and should be disregarded in the future. The Commissioners have collectively concluded that the heritage planning principle, 'Impact of adjacent development', should no longer be applied.

28 The heritage planning principle, 'Impact of adjacent development', does not engage with the long established methodology of defining a heritage curtilage. It approaches the issue only from the perspective of the new development's impact on the heritage item; rather than identifying constraints and opportunities in relation to the assessment of significant values and the setting of the heritage item, based on the definitions of terms in the Burra Charter (The Australia ICOMOS charter for the conservation of places of cultural significance). Relevantly, Article 8 of the Burra Charter states the following:

Conservation requires the maintenance of an appropriate visual setting: e.g., from, scale, colour, texture and materials. No new construction, demolition or modification which would adversely affect the setting should be allowed. Environmental intrusions which adversely affect appreciation or enjoyment of the place should be excluded.

29 A Statement of Heritage Impact (SHI) is generally required to assess the impact of a proposal on the setting and context of heritage items in its vicinity (refer to Statements of Heritage Impact publication by Heritage Office and Department of Urban Affairs & Planning 1996, revised 2002, available on the Heritage Council of NSW, Heritage Division of the Office of Environment and Heritage, website). A SHI requires research, analysis and when appropriate, the identification of visual catchments and significant views and vistas, which should inform the proposal's siting, envelope and design development and finally, the SHI must assess what impact the proposal will have on the heritage significance of an item and what measures are proposed to mitigate any impacts. Such an analysis is specific to the context and cannot be appropriately or adequately substituted by a planning principle.

Conclusion

30 The proposal would have an adverse impact on the setting of the adjoining heritage item, the former Liverpool Arms Hotel and the unique character of the Pitt Street Mall Special Character Area, including the streetscape of King Street and for this reason, the proposal is refused.

Orders

31 The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. D/2014/916 for alterations and additions to an existing commercial building is refused.

(3) The exhibits, other than exhibit 2, are returned.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 15 October 2014