respondent. Appeal dismissed; Development Application D/2017/1332 refused; exhibits returned except Exhibits 1 and A.
Key principles
The appeal is dismissed because the development application must be refused where the likely impacts of the development cannot be quantified or assessed due to an absence of...
A consent authority must assess the effect of proposed development on the heritage significance of an item or HCA before granting consent under cl. 5.10(4) of LEP 2012; it is...
Public objectors' reasonable perceptions of a potential adverse effect on amenity (including structural risk to neighbouring properties) must be given weight where there is...
DCP 2012 cl. 3.10.1(1) requires, at the DA stage, an engineer's report certifying that the works will not jeopardise the structural integrity of warehouse/industrial buildings...
Issues before the court
Whether the proposed development will have a detrimental impact on the heritage significance of a contributory building in a Heritage Conservation...
Whether the information tendered as to structural methodology and adequacy is sufficiently certain to permit assessment of likely impacts, given...
Plain English Summary
The applicant sought to convert a two-storey former warehouse (a contributory heritage building in the East Sydney HCA) into a nine-apartment residential building with a new basement and roof additions. The Council refused the DA and the applicant appealed. Heritage experts agreed that a detailed structural engineering methodology was necessary to show how heritage fabric would be retained during basement excavation and partial demolition. The structural reports and certificates provided by the applicant were insufficiently detailed and relied on future engineering work. A geotechnical report warned of rock excavation and vibration risks. The Court found that because the likely impacts on the building and neighbouring properties could not be quantified, and because the building contributes to the HCA, it was inappropriate to defer the missing structural methodology to a post-consent condition. The appeal was dismissed and the DA refused.
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Deep Dive
1,962 words · generated 21/06/2026
Whether it was appropriate to defer structural methodology to a deferred commencement condition.
Whether objectors' concerns about risk to neighbouring properties and amenity should be given weight.
Cited legislation
No linked legislation citations have been extracted yet.
What happened
278 Palmer St Pty Ltd lodged a development application (D/2017/1332) to convert an existing two-storey former warehouse at 278 Palmer Street, Darlinghurst, into a nine-apartment residential flat building with part one and two-storey roof additions, a rooftop terrace and a new basement for storage and services. The site is within the East Sydney Heritage Conservation Area (HCA) and the building is identified on the Council's Building contributions map as a contributory building (see the Statement of Significance reproduced at [20]).
The City of Sydney refused the DA on 7 November 2018. The applicant appealed to the Land and Environment Court (Class 1 appeal under s8.7 EP&A Act). The proceedings underwent mandatory conciliation (s34 LEC Act) but no agreement was reached. During the lead-up to the hearing the applicant was granted leave to amend plans and the amended plans were renotified (see [3]). The hearing occurred on 6-7 November 2019 before Commissioner D M Dickson, with decision and orders delivered 9 January 2020.
Evidence included: heritage expert reports (applicant's Mr Davies, respondent's Mr McDonald), a Structural Engineering Feasibility Report (Exhibit L), a Geotechnical Report (Exhibit N), and Structural Adequacy Certificates provided by the applicant (Exhibit T). The heritage experts prepared a joint report and supplementary report (Exhibits 4 and 7). Public submissions were made by neighbouring owners concerned about structural impacts, excavation vibration, loss of sunlight, streetscape and heritage effects.
The Court accepted parts of the applicant's heritage evidence about the acceptability of the design's bulk and roof form (possibility of delineating new work, retention and restoration of Palmer Street façade), but concluded that the structural information was inadequate. The geotechnical report forecasted excavation into variable bedrock likely to require hydraulic impact rock hammers and warned of direct vibration transmission to neighbouring buildings (Exhibit N). The Structural Report was based on a visual inspection and identified possible approaches (e.g. new concrete walls inside existing brick perimeter walls or a supporting frame), but these options were not implemented or reflected in the architectural drawings (Exhibit L). The Structural Adequacy Certificate certified subject-site load-bearing capacity subject to adherence to future engineering details; it did not clearly address potential impacts on adjoining properties and left uncertainty about cracking statements (Exhibit T).
Because the design as documented contained inconsistencies and lacked an implemented structural methodology showing how retained fabric would be supported during and after basement excavation and partial demolition, the Court concluded the likely impacts could not be quantified. Given the building's contributory status in the HCA, the Court found it inappropriate to defer resolution of these matters to a post-consent deferred commencement condition. The appeal was dismissed and the DA refused (orders at the end of the judgment).
Why the court decided this way
Three legal and evidentiary threads drove the Court's decision.
Statutory duty to assess heritage impacts pre-consent. Clause 5.10(4) of the Sydney LEP 2012 requires the consent authority to consider the effect of proposed development on the heritage significance of an item or HCA before granting consent (the Statement of Significance for the HCA is at [20]). The Court emphasised that this assessment must occur with adequate information in the DA itself, not postponed to post-consent measures where that information could change outcomes ([110]-[116]).
DCP requirement for structural assurance at DA stage. DCP 2012 cl.3.10.1(1) specifically requires at the DA stage a report by a practising engineer certifying that proposed works will not jeopardise the structural integrity of warehouse and industrial buildings older than 50 years. The Court found the Structural Report (visual only) and the Structural Adequacy Certificate (which relied on future engineering details) did not satisfy that DA-stage requirement. The experts jointly agreed a structural engineering methodology was required; the Court accepted that agreement and found the certificate and documents incomplete and inconsistent with plans ([72]-[91], [110]).
Public interest and precautionary principle in the face of uncertain but potentially significant impacts. The Geotechnical Report warned of rock excavation, vibration and likely direct transmission to neighbouring structures; neighbours raised legitimate concerns about structural damage to century-old adjacent buildings. The Court referenced Telstra v Hornsby to justify giving weight to reasonable perceptions of amenity and physical impacts by objectors ([117]-[122]). On the balance, and because the building contributes to the HCA, the Court was not prepared to approve an application where likely impacts could not be quantified and assessed.
Additionally the Court considered whether it could accept the applicant's submission that missing methodological detail could be required as a condition (deferred commencement under s4.16(3) EP&A Act). It rejected that path because the missing structural methodology could materially change the design and thus the relevant heritage assessment; authority in Mison and Weal was invoked to support the proposition that deferral would frustrate the consent authority's duty to assess and balance impacts and benefits pre-consent ([110]-[116]).
Therefore while the Court accepted some heritage evidence favouring the proposal’s form (i.e. that the additions could be delineated and not dominate), that was insufficient to overcome the determinative uncertainty about structural methodology and the unquantified risk to heritage fabric and neighbouring properties. The application was refused.
Before and after state of the law
Before this decision, the legal framework was settled as to the consent authority's obligations under s4.15 EP&A Act to assess likely impacts, and under cl.5.10 LEP to consider heritage effects prior to consent. DCPs can require technical certification at DA stage (s4.15(3A) EP&A Act clarifies the role of DCP standards and flexibility). Case authorities cited in the judgment (Mison and Weal) already established that deferring essential elements of assessment to post-consent can be inappropriate where the missing information is material to the exercise of the consent authority's functions.
This decision reinforces and applies those principles in a heritage/structural context: where the DA proposes excavation and partial demolition affecting the structural system of a contributory heritage building, a DA must contain a credible, implemented structural engineering methodology that enables the consent authority to assess heritage impacts and risks to neighbours. The Court made clear that a Structural Adequacy Certificate which conditions certification on future detail is not the same as satisfying the DA-stage certification required by DCP 2012 cl.3.10.1(1). The decision therefore tightens practical expectations for DA documentation in heritage contexts: engineering methodology must be sufficiently developed and shown on plans to permit pre-consent assessment; the Court will not accept signaling of possible options without integration into drawings and certifiable methodology.
Thus the 'before' was a general expectation that technical matters should often be resolved pre-consent but with some flexibility; the 'after' is a specific application: for contributory heritage fabric involving basement excavation and removal of load-bearing fabric, the Court expects clear, implemented and demonstrable structural methodology at the DA stage.
Key passages with plain-English translation
"the uncertainty of how these works will occur, whilst ensuring the retention of the existing building fabric, leaves the impacts arising from the development unable to be quantified and assessed." (Court's central finding)
Plain English: The plans and engineering information do not show how the building will be supported during big changes. Because of that gap, you cannot calculate what damage or change will happen to the heritage fabric or to neighbours.
"I am satisfied that it is inappropriate to defer this assessment to a deferred commencement condition of the form in accordance with s4.16(3) of the EPA Act."
Plain English: You cannot approve the project now and ask for the engineering method to be finalised only after consent is granted. The missing information is too important and could change the decision.
"a structural engineering methodology is required" (agreement of the experts)
Plain English: Both heritage consultants agreed that a detailed engineering plan showing how the building will be kept safe during and after construction must be provided now.
"the likely impacts of that development are uncertain (s 4.15(1)(b) ... ) and, on prudent, precautionary grounds, it is not appropriate to approve the application ... contrary to the public interest (s 4.15(1)(e))."
Plain English: Because we cannot predict the likely effects, and because those unpredictable effects threaten heritage values and neighbours, it would be irresponsible to approve the plan.
These passages map to the Court's main legal and factual concerns: missing methodology, risk, and the inappropriateness of deferral.
What fact patterns trigger this precedent
This judgment is most directly engaged where a DA:
proposes substantial structural alteration to a contributory or heritage building (especially demolition of portions of load-bearing fabric and introduction of a basement under an existing building); and
relies on general structural feasibility statements or certificates that condition critical matters on future engineered details not yet integrated into the design drawings; and
involves geotechnical factors (e.g. excavation into bedrock, predicted use of hydraulic rock hammers) that raise objective risk of vibration or damage to neighbouring older buildings; and
includes public submissions by immediate neighbours expressing reasoned concern about structural impact and amenity that are supported by expert geotechnical or structural evidence.
If those elements are present, this decision indicates the Court will require a detailed, implemented structural methodology at the DA stage (integrated with plans), and will not accept deferral to post-consent conditions where the missing information could change the heritage or amenity outcome.
How later courts have treated it
As this is a single judgment (Commissioner Dickson) at the NSW Land and Environment Court, its persuasive weight will be on how other panels treat the combination of heritage protection and the adequacy of DA-stage engineering. The judgment anchors its reasoning in established authorities (Mison; Weal; Telstra) about the inappropriateness of deferral in particular circumstances and the need to assess objectors' reasonable perceptions. Later courts will likely cite this decision where a DA for heritage fabric lacks integrated structural methodology, especially where geotechnical risk to neighbours is evident. Practitioners should monitor subsequent NSWLEC and Court of Appeal decisions to see whether the rule that DCP-specified DA-stage engineering must be demonstrably implemented is extended or limited.
Still-open questions
Degree of detail required in a Structural Adequacy Certificate: The judgment rejects certificates that depend on future details, but does not lay down a formula as to the precise level of engineering calculations or drawings to be included at DA stage. How much design and analysis is 'enough' remains fact-specific.
Interaction with s4.15(3A) flexibility for DCP controls: The Court applied DCP cl.3.10.1 strictly in light of heritage value. Where DCP standards conflict with practical constraints, how readily will the Court permit alternative solutions that meet DCP objectives without identical documentation? The judgment suggests limited tolerance where missing details could alter heritage outcomes.
Practicality for small developers: The decision raises practical issues for applicants who must prepare detailed engineering methodology and fully integrated structural plans at DA stage, potentially increasing upfront cost and time. The degree to which Councils and applicants can agree upon accepted minimum content of DA-stage structural methodology is a live administrative question.
Effect on conditional approvals and staged development: The decision curtails the ability to use deferred commencement or staged approvals where missing technical methodology is material. Future cases will need to delineate when deferral remains appropriate and when it crosses the line.
Scope of duty towards adjoining owners: The Court gave significant weight to neighbours' reasonable perceptions when supported by objective geotechnical evidence. But the precise threshold of evidence required to elevate an objection from speculative to ‘reasonable’ remains case-specific.
In practice, applicants proposing heritage-altering works involving excavation or major structural change should ensure structural engineering methodology is prepared to a level that can be integrated with plans and assessed at the DA stage. Councils and practitioners should treat DCP certification requirements seriously, and not assume that deferred conditions will resolve materially uncertain heritage or structural issues.
Judgment (8 paragraphs)
[1]
Nature of the Appeal and Outcome
COMMISSIONER: The applicants lodged Development Application No. D/2017/1332 on 27 November 2017. As amended, the Applicant seeks consent for alterations and additions to the existing building including a part one and part two storey addition, new basement for storage and services, a change of use to a residential flat building containing 9 apartments and a rooftop terrace. The Council refused consent on 7 November 2018. The applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act and the proceedings were listed for hearing.
By Notice of Motion the Applicant sought leave for amended plans prior to the commencement of the hearing. Leave was granted by the Registrar of the Court and the Respondent was directed to renotify the amended plans to the public. The submissions received during this notification process were filed with the Court on 19 November 2019. I have read and considered these submissions.
The Council maintains that the proposed development, as detailed in the amended plans, should be refused by the Court on the following grounds:
1. That the bulk, scale and setback of the proposed development fronting Sherbrooke Street are inappropriate and that the proposed fourth storey is not consistent with the definition of an 'attic'.
2. That the proposed development has a detrimental impact on the significance of the heritage conservation area.
3. That the impact of the proposed development on the existing structure and the proposed construction methodology is uncertain.
4. That the proposed apartments have poor solar access and internal amenity.
Following consideration of the evidence presented and the submissions of the parties, I have determined that the development application warrants refusal on the following broad grounds:
the works proposed by the application include the construction of a basement level and the removal of portions of the load bearing structural system of the building. I find that the uncertainty of how these works will occur, whilst ensuring the retention of the existing building fabric, leaves the impacts arising from the development unable to be quantified and assessed.
Given the uncertainty identified by the heritage experts and the ambiguity of the tendered structural certification, I am satisfied that there is a potential detrimental impact on the heritage fabric that is unable to be assessed on the information before the Court.
Further, the actual form and potential impacts of the development are unable to be assessed as the structural means of stabilising and retaining the existing building during and after the proposed development is not detailed in the development application.
I am satisfied that it is inappropriate to defer this assessment to a deferred commencement condition of the form in accordance with s4.16(3) of the EPA Act.
I am satisfied that the residents' objections to the application on the grounds that the development proposed represents a risk to the structural soundness of the surrounding buildings have not been adequately addressed by the development application and are a reasonable perceptions of a potential adverse effect their amenity: Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195]).
My reasoning for these findings is detailed in the following judgement. As a result of the above the appeal is dismissed and the development application refused.
[2]
The Site and Locality
The subject site is Lot 1 DP 1223833 with an address of 278 Palmer Street, Darlinghurst. The site also has frontage to Sherbrooke Street. The site contains an existing two storey former warehouse building.
The subject site is located within the East Sydney Heritage Conservation Area (HCA) and the existing building is characterised as a contributory building under Sydney Development Control Plan 2012 (DCP 2012).
[3]
Public Submissions
In accordance with the provisions of DCP 2012, the development application, and an earlier iteration of the amended development application were notified to adjoining and nearby properties. As directed by the Registrar, the amended plans before the Court were also notified and submissions provided to the Court.
The objections in relation to the amended plans before the Court raise the following main issues:
1. the proposed development's height, bulk and scale fails to complement the existing environment of Palmer Street and Sherbrooke Street and the heritage conservation area.
2. That the surrounding buildings are all around 100 years old and there is concern that the proposed works will present a risk to the structural soundness of the surrounding buildings. Residents are also concerned that should impacts arise to their buildings where the responsibility for rectification would lie.
3. Especially the adjoining residents are concerned about the impacts of the proposed basement excavations on the foundations of their properties. In particular, the potential use of hydraulic rock hammers and associated vibration and noise.
4. That the proposed development is out of character and unsympathetic to the existing streetscape.
5. That the current warehouse and ten terraces along the western side of Sherbrooke Street provide a consistent 2-storey height plane. The proposed four storey height of the proposal, with limited setback to the street is out of context with the location and will interrupt the two storey streetscape.
6. The proposed development will impact the scenic views of residents in Sherbrooke Street of the existing terraces in the HCA.
7. The proposal is an overdevelopment of a constrained site.
8. The existing scarcity of on-street parking will be exacerbated by the development.
9. The resident at 7 Sherbrooke Street argues they will experience a loss of sunlight and privacy to their first floor deck and sun deck.
10. The previous concerns of residents have not been addressed by the Applicant in the amended plans. The need for residents to repeatedly prepare submissions in response to amended plans has been time consuming and stressful.
11. That the residents opposite the site in Sherbrooke Street will be impacted by a loss of sunlight to their balconies and the development will impact their privacy and outlook.
12. The resident at 9 Sherbrooke Street argues they will experience a loss of sunlight to their interior and exterior spaces. The resident states that the reduction from four hours to two hours sunlight is unreasonable and will impact the amenity of her home.
13. The limited width of Sherbrooke Street will make the proposed building overbearing given its four storey height.
14. The resident at 5 Sherbrooke Street is also concerned that the proposed three storeys of floor to ceiling windows will impact on their privacy and create a noise impact.
15. The existing waste management services of the Council are already strained and the proposed development will exacerbate the existing issues.
[4]
Planning Controls
The provisions of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) apply to the site and the proposed change of use. The applicant has prepared a Preliminary Site Contamination report (Exhibit O) and a Remediation Action Plan (Exhibit D). The recommendations of these reports and incorporated in the proposed conditions of consent. Further, the Council requires the excavation and removal of contaminated material from the deep soil zone which forms part of the private open space for Unit 02 to ensure that there is no pathway for contaminants. This requirement is incorporated in the draft consent at condition 37 (Exhibit 2).
On the basis of the Remediation Action Plan and the conditions of consent the Council confirms it is satisfied that the requirements of Clause 7 of SEPP 55 are met. I am satisfied that: the subject site will be suitable, after remediation for the purpose for which the development is proposed to be carried out, and that the remediation will occur before the site is used for residential purposes.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certification (Exhibit U) in compliance with the instrument.
In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), a design verification statement was lodged by Mr Danilo Astudillo Silva, registered architect (10269). The developments compliance with SEPP 65 is in dispute between the parties.
Pursuant with the provisions of the Sydney Local Environmental Plan 2012 (LEP 2012) the site is zoned R1 General Residential. The proposed development, residential flat building, is permissible with consent.
Pursuant to cl. 2.2(2) of LEP 2012, the consent authority must have regard to the objectives of the zone when determining a development application. The Respondent argues that the following zone objectives are relevant to this application:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
The subject site has a maximum height limit of 12m (cl. 4.3 of LEP 2012). The proposed development complies with this standard.
The site is within the HCA and as such cl. 5.10 of LEP 2012 applies. Relevantly at sub. cl. 4 it states:
(4) Effect of proposed development on heritage significance
The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
[5]
Does the development have a detrimental impact on the significance of the HCA?
In preparation for the hearing Mr Davies and Mr McDonald, the Applicant and the Respondent's heritage experts respectively, met and joint conferenced on the proposed development. Their joint report was tendered in the proceedings (Exhibit 4). As a result of the grant of leave to the amended plans, refer paragraph [3], the experts were directed to re-conference and prepare a supplementary report. The supplementary report was tendered as Exhibit 7.
By reference to the supplementary report the remaining areas of disagreement of the heritage experts can be summarised as:
1. Whether the bulk, scale, roof scape, setback and architectural form of the proposed additions fronting Sherbrooke Street will have an adverse heritage impact on the contributory building and the contributory buildings in the vicinity;
2. whether the level of information provided by the applicant is sufficient to demonstrate that the works will not jeopardise the structural integrity of the building. Further, how the fabric of the existing building, proposed for retention is able to be structurally supported during and after construction.
3. Whether the existing boundary wall facing Burton Street is required to be retained and if not what the appropriate finish for a replacement wall should be; and
4. whether the external colours and materials of the proposed are appropriate.
On the first matter, it is Mr McDonald's evidence that the proposed development has an adverse impact on the existing contributory building on the site. Mr McDonald argues that this adverse impact firstly arises as the rear upper level addition does not respect the existing built form of the warehouse building, and secondly that the works will obscure the line of the existing parapet as the extension is placed directly on top of the existing parapet coping. (Exhibit 4). He argues that a further impact to the contributory building arises from the lack of setback of the addition which obscures the view of the parapet against the skyline.
In terms of the impact on the streetscape of Sherbrooke Street, Mr McDonald argues that 'the bulk of the second and third floor addition, together with its assertive form and out of character dark grey metal cladding, would dominate the retained section of the façade and create and intrusive and out of scale element in the streetscape of Sherbrook (sp.) Street' (Exhibit 4).
[6]
Submissions
In relation to the first issue, Mr Berveling submits that the Court should prefer, and accept, the evidence of Mr McDonald that the proposed development has an adverse impact on the contributory building. Further, Mr Berveling argues that Mr McDonald's evidence establishes that the scale of the proposed development is such that it is out of character of the East Sydney Locality as identified at cl. 2.4.9 of DCP 2012.
Mr Berveling submits that on the basis of the evidence of Mr McDonald the Court would not permit the demolition of the wall and would apply the proposed condition 2(b) to any consent (Applicant written submission page 6). That condition states:
2. Design modifications
Drawings showing the following modifications to the design are to be submitted to and approved by Council's Area Planning Manager prior to the issue of a Construction Certificate:
…
(b) The existing Northern brick wall facing Burton Street is to be retained.
(Exhibit 9)
Mr Berveling submits that it is speculative that any future development of the adjoining sites (relevantly 43 Burton Street) will obscure the public view of this wall and its contribution to the HCA.
In relation to the brick wall facing Burton Street Mr Berveling notes that: whilst there was a disagreement about the retention of the existing walls for structural/ construction reasons, Mr Davies agrees that if it is not retained it would be appropriate to retain the bricks contained in it for reuse. This requirement would be Council's secondary position in relation to the boundary wall.
Mr Berveling argues that Mr McDonald's concerns about the structural feasibility of the project are appropriate. He submits that in the context that: the proposal is for the adaptive reuse of a warehouse of more than 50 years, and is a contributory building in the HCA; Mr McDonald's concerns are reasonable in the circumstances of the proposed development.
On the final issue, Mr Berveling argues the structural certification at Exhibit T has insufficient detail to provide certainty as to what outcome will be realised on the site and as a result of the development. He argues that the structural certificate should be given little weight on the following grounds:
that in addressing the potential impact of the development on the party walls the certification: addresses only the walls to the north and south, not those fronting Palmer Street or Sherbrooke Street; secondly the certification is an undertaking (focussed on 'future details') rather than a certification of the development.
[7]
Findings
I note that the planning and urban design experts also provided evidence on the appropriateness of the bulk and scale of the proposed development facing Sherbrooke Street. For reasons that follow in the judgment, I have not made findings on their evidence on this issue and have contained my findings on the proposed additions fronting Sherbrooke Street and their heritage impacts.
The focus of the assessment of the heritage impact arising from this development is focussed on the effect of the development on the significance of the HCA. The relevant Statement of Significance is reproduced at paragraph [20]. That heritage impact is then assessed through the framework of s 4.15 of the EPA Act, including the provisions of the relevant planning controls.
I am not persuaded by the evidence of Mr McDonald that the proposed bulk, scale, roof scape, setback and architectural form of the proposed development fronting Sherbrooke Street will have a detrimental impact on the significance of the HCA or the contributory buildings.
I accept the approach to the site, detailed in the Heritage Impact Statement, by Mr Davies which seeks to: delineate new construction from the heritage fabric; will retain the heritage fabric of the Palmer Street façade and will restore and retain previous fabric and details.
Further, I accept the evidence of Mr Davies that the subject site, which is a former warehouse, is different in form to the remaining terraces in Sherbrooke Street. I accept Mr Davies evidence that 'In this case, it is considered that some level of changes to the bulk and roof form of the subject former warehouse could be acceptable as it will clearly delineate the residential terrace housing streetscape from the other commercial and institutional buildings forming the gateway to the street together with the other warehouse buildings and the Land and Housing Corporation flat building' (Exhibit H). I am satisfied that this approach of maintaining a distinction between these building typologies is appropriate. I am not persuaded by the evidence of Mr McDonald that the proposed development would be dominant, intrusive or out of scale.
On the second issue of the retention or finish of the existing boundary wall to Burton Street, I accept the agreed evidence of the heritage experts that an off-form concrete finish to this wall would be out of character and inappropriate.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 January 2020
Appeal dismissed; Development Application D/2017/1332 refused; exhibits returned except Exhibits 1 and A.
The preceding issues were reiterated in the onsite evidence provided by members of the public at the commencement of the hearing.
The Statement of Significance for the HCA on the NSW Heritage Register states:
The East Sydney Conservation Area has historic and aesthetic significance for its ability to demonstrate the development of an inner city suburb during the mid to late nineteenth century, with later overlay. The area demonstrates the predominately small lot subdivision, along a grid pattern based on Darlinghurst Road and Oxford Street, that followed the subdivision of the Riley Estate in the 1840a and the incremental subdivision of the Darlinghurst villa estates during the second half of the nineteenth century. This pattern of subdivision, and the predominately terraced housing that developed from it, reflects the rapid population growth in Sydney particularly during the interwar period 1850 to 1900.
Development related to institutions as well as residential flat development during the interwar period (c. 1919-1940) is also demonstrated. The topography and dense urban form of the area create a strong sense of place and significant district vistas from higher areas.
The area contains a number of aesthetically significant and prominent buildings such as the former St Peters Church, Burton Street Tabernacle, former Palmer Street Presbyterian Church Group, Caritas House and the former Darlinghurst Police Station, as well as a number of fine terraces and inter-war residential flat buildings.
The area has significance for the important institutions that are found within it including SCEGGS Darlinghurst.
(Exhibit 2)
Clause 6.21 of LEP 2012 applies to the development. The objective of the clause is 'to deliver the highest standard of architectural, urban and landscape design'. At sub. cl. (3) the consent authority is required to be satisfied that 'in the opinion of the consent authority, the proposed development exhibits design excellence' in order to have the power to grant consent to development. In forming an opinion the consent authority is required to have regard to the factors at cl 6.21(4). The Council submits the following are relevant to the proposed development:
(d) how the proposed development addresses the following matters:
…
(iii) any heritage issues and streetscape constraints,
(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,
…
(vi) street frontage heights,
(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,
Sydney Development Control Plan 2012 (DCP 2012) applies to the site. At 2.4.9: East Sydney DCP 2012 provides a statement and principles for the locality.
This locality sits in a valley framed by Central Sydney and Oxford Street, and falls toward William Street, with a low point between Yurong and Riley Streets. It is bounded by Forbes, Burton and Bourke Street to the east, to the north by laneways behind William Street to the west, by Yurong Street, Stanley and College Streets and to the south by Liverpool Street and the rear of lots facing Oxford Street.
Major roads and significant topographic ridges at the perimeter defi ne this area. The built form comprises low scale buildings in the valley framed by taller buildings on the surrounding ridges. This sense of enclosure is reinforced by taller commercial/retail buildings located along the major roads of College, William and Oxford Streets, while the regular small lot pattern streets to the centre of the neighbourhood are predominantly residential terrace housing.
The existing general built form character of the area is to be maintained and reinforced with taller buildings located along ridges and major roads towards the perimeter of the neighbourhood. Low scale buildings and residential pockets are to be maintained towards the centre of the area in the valley.
The Burton St Tabernacle building is being transformed into a contemporary performing arts space for the new home of a local community theatre and host a range of performances, classes, exhibitions and events.
The heritage streetscape character and small lot subdivision pattern of the residential pockets together with consistent residential streetscapes and the remnant Victorian character of buildings are to be maintained.
Stanley Street (between Crown Street and Yurong Street) and Crown Street (between Stanley Street and William Street) as well as surrounding northern streets of Riley, Yurong and Crown Streets are to be strengthened with restaurants and cafes. Liverpool Street is a complementary commercial centre with showrooms and specialty services.
(Exhibit 2)
At 2.4.9, DCP 2012 identifies the following relevant principles that apply to the locality:
(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.
(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.
….
(f) Maintain the predominant Victorian heritage character of the area.
(g) Retain the uniformity of pairs and rows of consistent terraces including the single storey row on Burton Street (between Thomson Street and Bourke Street).
h) Ensure that new infill buildings reinforce the predominant street frontage height, setbacks and street alignment.
DCP 2012 has specific controls for HCA's at cl. 3.9.6:
(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:
(a) topography and landscape;
(b) views to and from the site;
(c) significant subdivision patterns and layout, and front and side setbacks;
(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;
(e) the interface between the public domain and building alignments and property boundaries; and
(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.
(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.
(3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area.
(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.
The existing building on the subject site is nominated on the Building contributions map as being a contributory building. The relevant controls in DCP 2012 for contributory buildings are at 3.9.7:
(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
…
The existing building on the subject site also falls within the DCP definitions of Significant Architectural Building Types as it is a Warehouse and Industrial building older than 50 years (3.10.1 DCP 2012). The objectives of the provisions are:
(a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use.
(b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building.
The relevant controls at 3.10.1: Warehouses and industrial buildings older than 50 years are:
(1) Alterations and additions are to be supported by a report, prepared by a suitably qualified and practising engineer, certifying that the works will not jeopardise the structural integrity of the building.
…
(6) Where scope exists for a roof addition, it is to be complementary to, rather than dominate the original building; be simple in form; and able to be distinguished as new work.
…
(8) Alterations and additions are to:
(a) retain the essential geometric form of the existing building when
viewed from the public domain; and
(b) complement the materials and articulation of existing façade
elevations, including distinguishing features that occur at regular
intervals.
DCP 2012 contains provisions in relation to building height at 4.2.1. The objective of these controls is to: Ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character. The maximum number of storeys applicable to the subject site is 3 storeys: Building height in storeys map, similarly the maximum street frontage height is 3 storeys: Building street frontage height in storeys map.
The provisions in DCP 2012 for maximum storeys, and building street frontage height, excludes an attic which is defined in LEP 2012 as:
attic means any habitable space, but not separate dwelling, contained wholly within a roof above a ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.
The relevant controls at 4.2.1: Height in storeys and street frontage height in storeys are:
(2) The maximum may only be achieved where it can be demonstrated that the proposed development:
(a) reinforces the neighbourhood character;
(b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and
(c) does not detract from the character and significance of the existing building.
(3) The street frontage height of a building must not exceed the maximum height shown on the Building street frontage height in storeys map. Refer to provision 4.2.2 Building setbacks, to determine the street frontage height setback.
The building setback controls are at 4.2.2 of DCP 2012. The objectives of the controls are:
(a) Ensure development:
(i) is generally consistent with existing, adjacent patterns of building setbacks on the street; and
(ii) maintains the setting of heritage items and is consistent with building setbacks in heritage conservation areas.
(b) Establish the street frontage setback of the upper levels of residential flat buildings, and commercial and retail buildings.
(c) Encourage new building setbacks where appropriate to reinforce the areas desired future character.
The Council argues that the development is non-compliant with control (2) at 4.2.2.2 which requires: A setback above the street frontage height is to be a minimum of 3m for residential above non-residential and for residential above residential.
Relevant to the submissions of the parties about the application of the preceding provisions of DCP 2012, Section 4.15(3A) of the EPA Act provides:
(3A) Development control plans
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In this subsection, standards include performance criteria.
Further, Mr McDonald argues that the development is inconsistent with the locality statement for the East Sydney Precinct at Part 2.4.9 of DCP 2012. It is Mr McDonald's evidence that the proposed development is inconsistent with the following principles in the locality statement:
(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.
(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.
…
(f) Maintain the predominant Victorian heritage character of the area.
…
(h) Ensure that new infill buildings reinforce the predominant street frontage height, setbacks and street alignment.
(Exhibit 2)
Mr McDonald argues that although the proposed development is not strictly and infill building, as referred to in 2.4.9(h) of DCP 2012, 'it's bulk and scale relative to the retained part of the existing building would have an effect contrary to the principle (h) above'. (Refer paragraph [38]) (Exhibit 4)
Mr McDonald also relies on the management guidelines within the Heritage Inventory Sheet for the HCA (Exhibit 2 at folio 429). He argues that the proposal is inconsistent with the following requirement for contributory factories/ warehouses within the HCA, of which the subject site is one:
…
(c) Other significant development:
Retain Intact Federation Inter war factories/ warehouses.
- Do not exceed scale
- Limit redevelopment to existing volume
…
(Exhibit 2)
In contrast on the first matter, whether the bulk, scale and form of the additions fronting Sherbrooke Street are appropriate Mr Davies evidence is that the proposal is:
Sympathetic in scale and style to the existing building.
The addition to the roof is simple and contemporary.
The existing roof area to be changed will not compromise the significant fabric and building elements.
The roof addition is complementary to, rather than dominates, the original building and is in a simple in form and is able to be distinguished as new work.
Complements the materials and articulation of existing façade elevations, including distinguishing features that occur at regular intervals.
The original or significant pattern of windows and openings are retained. All original window frames, sashes and lights are retained on prominent elevations and on secondary elevations where considered critical to the significance of the building, except for the ground floor window to the north which is to be enlarged for a new loggia.
(Exhibit 4)
In contrast to the evidence of Mr McDonald, Mr Davies argues that 'the scale of the addition to Sherbrooke Lane (stet) is of such a scale in the context of the proposal that this will not be in conflict with the East Sydney Inventory form. It is a one storey addition with an additional roof form and in the context of adjoining development it is of a suitable scale' (Exhibit 4)
In both their joint reports the heritage experts provided evidence in relation to the second issue: the retention or treatment of the boundary wall to Burton Street.
In the first joint report the heritage experts reach the following agreement in relation to the existing boundary wall fronting Burton Street:
'The proposed off form concrete northern wall would be out of character and the northern brick wall facing Burton Street should be retained'.
(Exhibit 4)
The issue of the boundary wall retention was further considered by the heritage experts in their supplementary report and in their oral evidence. It remained Mr McDonald's evidence that the existing wall should be retained on the following basis:
the removal of the wall is in his opinion unnecessary and inconsistent with the approach to heritage conservation of changing only as much as necessary and as little as possible.
the choice of off-form concrete for the replacement boundary wall is an inappropriate material in the HCA.
Further, Mr McDonald argues that the retention of the existing wall as part of the proposed development would require only a limited reduction in the width of the finished building.
In contrast Mr Davies noted in his evidence that the proposed construction of the basement, and therefore the introduction of structure below the wall, made the replacement of the boundary wall necessary. It is Mr Davies evidence that the replacement of the boundary wall fronting Burton Street with a wall with brick facing is acceptable (Exhibit 7).
The experts agreement in relation to the final issue of the sufficiency of evidence that the works will not jeopardise the structural integrity of the building is detailed in the first joint report as follows:
3.8 The experts agree that a structural engineer's report should be provided that provides support for the basement and a methodology to ensure the building is structurally able to take the basement excavation as proposed.
3.9 The experts agree that more information is required regarding the structural adequacy of the proposal and that the existing brick wall on the boundary should be retained.
(Exhibit 4)
The heritage experts in their supplementary joint report maintain their agreement that 'a structural engineering methodology is required' (Exhibit 7).
At 3.27 of the Joint report Mr Davies agrees that: …the drawings do not demonstrate how the fabric proposed for retention can be structurally supported during and after construction.' Further, Mr Davies states that more structural information is required.
However, Mr Davies noted in his oral evidence and in the supplementary joint report that whilst a structural engineering methodology is required, that such a requirement can be appropriately addressed by a condition of consent. The proposed condition states:
A report or certification form a practicing structural engineer experienced in dealing with heritage buildings must be prepared. The report must explain how the retained building internal and external elements, such as building facades or chimneys are to be retained, supported and not undermined by the proposed development and give details of any intervention and retrofitting needed. The report is to be accompanied by amended drawings demonstrating the additional structure, impacts on the proposed design and methodology.
(Exhibit 5)
The Applicant, in their submissions, objects to the condition being imposed as a deferred commencement condition and seeks for the condition to be placed in the consent as a requirement to be met prior to the Construction Certificate.
In relation to the final issue, Mr McDonald notes that the proposal intends to retain the east and the upper portion of the west façade of the existing building. He argues that:
'The structural feasibility of the west façade retention is extremely doubtful as the entire ground floor section of the façade is to be removed. It is also proposed to retain the first floor timber structure, even though a basement is to be excavated below and [a] fire rated party wall would bisect all the joists for its entire length. The drawings are contradictory regarding the extent of the retention of the north and south walls. The ground floor plan shows retention of both walls except at the centre of the site. They would be necessary to support the ends of the floor joists. The first floor plan does not show the north and south walls retained. Sections BB and CC on drawing DA -206 show sections of the north and south walls retained for their full height.'
(Exhibit 4)
At the conclusion of the first joint report Mr McDonald concludes that 'the structural feasibility of the project is uncertain' and that in his opinion 'what is certain is that, if steps are taken to make the design structurally sound, substantial redesign and supporting structural engineering methodology from an engineer skilled in working with heritage buildings will be required' (Exhibit 4). Importantly, Mr McDonald concludes that the final design outcome from the proposed development is unknown.
The certification does not clarify to what reference 'some minor cracking may occur as a result of building work. We believe these cracks will not be structural' applies.
Mr Berveling notes that Mr Davies agrees that structural information is required in the proceedings, however notes Mr Davies evidence that this may be resolved by the imposition of a condition on the development consent. Mr Berveling submits that the condition at paragraph [51] can be imposed on the consent as a deferred commencement consent, but maintains that consent ought to be refused on the basis of the uncertainty of the structural certification provided (8/11/2019 transcript at p. 33, 10-30)
Mr Pickles argues that in considering the appropriateness of the height, scale and setbacks of the proposed development the Court should give weight to the following:
that the proposal is under the height and floor space ratio (FSR) standards in LEP 2012;
the proposal is 'effectively one storey less than the permitted controls for storey's, given the definition of stories excludes attics' (Applicant's written submissions, p. 2);
the storey's control contained in DCP 2012 and the standard 'should be applied flexibly where there are no significant adverse impacts arising from the non-compliance'(Applicant's written submissions, p. 2);
The Palmer Street terraces adjoining the site are already three storeys plus attic;
the street frontage control of three storeys (cl. 4.2.1.1 of DCP 2012) is met by the proposal and the Council is barred from imposing a stricter standard than that imposed by the controls by s4.15(3A)(a) of the EPA Act.
the Councils arguments that development meets the standard in the DCP, but fails to meet the objective is erroneous: Wehbe v Pittwater Council [2007] 156 LGERA 446
Further, Mr Pickles submits that the planning controls within LEP 2012 and DCP 2012 for this locality are specific and detailed and were, on the basis of the evidence of Ms Morrish, formulated as part of a fine-grained analysis prepared for the Council by consulting firm Allen Jack + Cottier (Applicant's written submissions, p. 3). Given their specificity he argues they should be given weight by the Court. In particular Mr Pickles submits that where the planning controls indicate a change in the neighbourhood character, through increasing wall heights as in this case, the controls envisage a change of character for the locality.
In response to Mr McDonald's evidence regarding the street presentation of the proposal to Sherbrooke Street, Mr Pickles submits that his evidence needs to be put into the context of cl. 5.10(4) of LEP 2012 [refer paragraph 18] and the statement of significance for the HCA. Mr Pickles argues that the relevant question is whether an adverse impact arises from the proposal to the significance of the HCA.
Mr Pickles submits that, when looked at objectively, the proposal will not have an adverse impact on the significance of the HCA. His reasoning is as follows:
'(i) the significance [of the HCA] is particularly derived from the dense urban form and the terrace housing forms. This is unchanged by the proposal. The area will retain its dense urban form and to the extent which the development represents the narrow terrace form, this will remain unchanged.
(ii) Sherbrooke Street is noted for its mixed small-scale (again unchanged by this proposal) and intact terraces (this is not a description of the subject site)
(iii) Palmer Street is noted for its Victorian Terraces (partly represented by the subject site), but not affected by the development.
(iv) the recommended management conditions for the HCA include that additions and alterations should be confined to 'rear areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls'. The rear of the subject site fronting Sherbrooke Street is the rear of the building even if it might also be a street. It is also a street with a lesser rating of significance than Palmer Street. The proposal complies with the planning controls.'
(Applicant's written submissions, p. 4)
In his submissions Mr Pickles also addressed the Respondent's concerns about the proposed treatment of the boundary wall fronting Burton Street. Mr Pickles submits that in accordance with the provisions of DCP 2012 (cl. 3.9.7) the proposed removal of part of the northern wall does not result in the removal of a significant façade or significantly alter the appearance of the principle façade. He submits that on the evidence, the side boundary wall fronting Burton Street need not be retained in totality because it is not a significant façade or even an important feature.
Mr Pickles notes that on the basis of Mr Davies evidence, the Applicant would accept a condition requiring the boundary wall fronting Burton Street to be brick faced. This condition is nominated as Condition 2(b2) in Exhibit 5.
On the final issue between the heritage experts, Mr Pickles submits that the Court would find that there is sufficient information available to be satisfied that the retained first floor and facades will be supported during construction. Mr Pickles argues that the removal of fabric on the ground floor of the Palmer Street frontage is warranted on the basis that: the façade proposed to be removed it is in poor condition; is thoroughly altered; and consistent with DCP 3.9.7(2) the proposed development will result in the removal of distracting elements. He argues that Mr McDonald does not seek to retain this fabric for its significance and that 'the only reason to retain the fabric is related to structural support during construction, not because the fabric is significant or original' (Applicant's written submissions, p. 6).
Mr Pickles submits that despite the evidence of Mr McDonald, DCP 2012 at cl. 3.10.1(i) requires that alterations and additions 'are to be supported by a report prepared by a suitably qualified practicing engineer certifying the works will not jeopardise the structural integrity of the building' (Transcript 8/11/19 p. 11 at [25]). He argues that the Structural Report (Exhibit T) and the Structural Adequacy Certificate (Exhibit T) satisfy this requirement.
Mr Pickles reiterates that s 4.15(3A)(a) of the EPA Act applies and argues that Mr McDonald's evidence seeking a detailed work method statement is a more onerous standard than that which is required by DCP 2012.
Finally, in reply to Mr Berveling's submissions about the Structural Adequacy Certificate (Exhibit 7) and in particular the final two paragraphs (reproduced at paragraph [80]) Mr Pickles argues:
…The last two paragraphs are not germane to the certificate. The only relevant part of the certificate for the purposes of the DCP is the bit that picks up the words in the DCP, which is that the footings, walls are capable of supporting the loads from the proposed work shown, and the work can be carried without jeopardising the structural integrity of the existing building, if carried out in accordance with the report of 16 August. That's the certification. But what it says about party walls is irrelevant. What it says about minor cracking is also irrelevant. That's not what's germane. What's germane is that the work will not affect the structural integrity of the building. So it satisfies the requirements of the DCP.
(Transcript 8/11/19 p. 39 at [5])
In the context of my following conclusions and findings I am persuaded by Mr Davies evidence that concludes that the introduction of structure below the existing boundary wall to Burton Street as part of the basement construction.
On the final issue between the heritage experts, I am satisfied that the issue of whether there is sufficient evidence that the works will not jeopardise the structural integrity of the building is a relevant matter in the assessment of the development. I am satisfied that this matter is a relevant consideration in determining the likely impacts of the development and in consideration of the public submissions received. I am persuaded this issue is of determinative weight on the following grounds:
1. the fabric of the existing building is nominated in DCP 2012, within the 'Building Contributions Map' as being a contributor to the significance of the HCA.
2. The proposed development includes construction of a basement (including excavation of up to 3m) under the existing building, as well as part of the demolition of two boundary walls (Palmer Street and facing Burton Street). These works self-evidently will alter the current structural system of the existing building.
3. It was observable on site, and accepted by the parties, that the existing façade on Palmer Street has a visible deflection in the fabric of the wall. This existing deflection is not noted, or addressed, in the Geotechnical Report (Exhibit N) or the Structural Adequacy Certificates tendered.
4. DCP 2012 contains a specific provision, at cl. 3.10.1(1) that requires, at development application stage, engineer's certification that 'the works will not jeopardise the structural integrity of the building'.
5. At the commencement of the hearing onsite, evidence was heard from adjoining neighbours objecting to the proposal. In part, their concerns focussed on the potential for the proposed works to impact the structural stability and integrity of their properties.
In the filled Statement of Facts and Contentions the Council argues, in part that:
86. The proposed excavation for a basement under the existing warehouse building older than 50 years (also a contributory building) puts at risk the structural integrity and survival of the subject building and of adjoining buildings (also contributory buildings).
…
88. The substantial demolition of the building (retaining two facades, two part boundary walls and a part floor only) does not retained a contributory building and its significant fabric, contrary to clause 3.9.7 of the DCP. The structural strengthening works and fire-rating works required are likely to have a material and aesthetic impact and will conceal the small amount of significant fabric that is proposed to be retained.
(Exhibit 1)
In response to these contentions, and the controls at 3.10.1 of DCP 2012, the Applicant has tendered a Structural Engineering Feasibility Report, August 2017 ('Structural Report') (Exhibit L) and a Structural Adequacy Certificate, 7 November 2019 (Exhibit T).
Relevantly for the consideration of the experts evidence and the parties submissions, the Structural Report notes in part:
Note that for the purposes of this report we have not undertaken a structural analysis of the building. Our comments are based on a visual inspect (sp.) of the building only.
(Exhibit L)
Importantly the Structural Report details the proposed works as including (emphasis added):
- Maintaining the existing brick façade on all 4 sides of the property.
- Potentially maintaining a portion of the existing first floor structure including the steel beams and columns and timber floor joists.
- Constructing a fire rated (reinforced concrete) wall on the north and south walls inside the existing brick façade.
- Supplementing the first floor structure with a suspended concrete slab.
- Constructing a second floor using a suspended concrete slab structure.
- Constructing a trafficable rooftop area which is a common space with some areas of green roof that may consist of 400mm of soil.
- Constructing a small mezzanine area at the rear of the site.
- Constructing a non-habitable basement area that is generally set in from the boundary for storage. Some excavation close to the boundary is proposed along the sides of the property at the front of the site.
- Constructing a new lift and stairs with a structural lift and stair core.
- The retention and extension of the steel awning Palmer Street.
- The retention of the beam for a pulley system onto Sherbrooke Street and the reinstatement of a similar beam at Palmer Street.
(Exhibit L)
Further, the Structural Report provides advice on the approach to provide the structural support system for the building. The Structural Report summarises the following as the two approaches:
…
- Further to the above, it is likely that the existing boundary walls are not appropriate to support the additional loads from the extension based on two criteria: the capacity of the existing brick wall may not be sufficient to support the additional loads, and it is likely the foundation material is not sufficient to support the additional loads. This is almost certainly likely if new/additional brickwork (ie heavy construction) is proposed at the boundary. Therefore we recommend that two options be considered to support the additional loads independent of the existing brick walls: new concrete walls be considered inside the entire existing brick boundary walls for the full height of the building where brick is proposed, or, if this is not feasible then a structure to support the proposed brick independent of the existing brickwork be considered. In our opinion, the former option would be much more economical. Alternatively, a light weight solution be considered for all new work at the boundary.3
(Exhibit L)
The Structural Report also notes that whilst the 'existing timber [floor] joists appear to be embedded in the boundary walls', that 'for fire rating purposes it is likely the connection will be removed' (Exhibit L).
The issue of the excavation of a basement below the existing building is also addressed in the Structural Report which concludes it is 'generally feasible', subject to allowance for installation of contiguous piling around the perimeter, and confirmation from a geotechnical engineer that underpinning is not required (Exhibit L).
A geotechnical engineer's report (Exhibit N) was tendered in the proceedings and contains comments and recommendations in relation to the method and technique of excavation of the proposed basement. It is noted that this excavation is detailed in the report as being of 3m in depth. Importantly the Geotechnical report notes:
excavation for the proposed basement will encounter a soil profile and will extend into the bedrock of variable strength,
whilst some sandstone is expected to be of low strength, the report author expects hydraulic impact rock hammers will be required,
that '… considerable caution [will] be taken during rock excavation on the site as there will be likely direct transmission of ground vibration to neighbouring buildings and structures.'(Exhibit N)
The Applicant tendered two 'Structural Adequacy Certificates' in the proceedings. The first Structural Adequacy Certificate was tendered at the commencement of the hearing as Exhibit C. At the time of the tender of the first Structural Adequacy Certificate I sought clarification on whether the following reference on the Structural Adequacy Certificate was directed at the subject property or the adjoining structures:
'Some minor cracking may occur as a result of the building work. We believe that these cracks will not be structural'.
(Exhibit C)
A second Structural Adequacy Certificate was tendered and granted leave during the proceedings. This later certificate contains the same statement reproduced at paragraph [68], without clarifying whether the reference to cracking was directed at the subject property or the adjoining structures.
The second Structural Adequacy Certificate includes the following statement (emphasis added):
We certify that the existing footings and walls are capable of supporting the loads from the proposed works shown on the drawings prepared by Envelope [reference numbers of the relevant plans omitted] and the work can be carried out without jeopardising the structural integrity of the existing building provided the work is carried out generally in accordance with the methodologies set out in our report 02281.C07C003 dated 16 August 2017, the intent of our details shown on the future certified structural drawings which will be prepared by Cantilever Consulting Engineers and provided the work is carried out within the recommendations of the geotechnical engineering report by JK Geotechnics 306707 rpt dated 26 July 2017.
We also certify that our future details will be engineered in such a way as to be independent of the existing party walls such that no additional loads will be imposed on these walls and footings.
(Exhibit T)
Notwithstanding the agreed evidence of the heritage experts (refer paragraph [44]), no further detail on the structural methodology of the proposed development was tendered.
Further I note that the public submissions received during the assessment of the development application, the notification of the amended plans and at the commencement of the hearing onsite raised two concerns relevant to this issue. The first issue raised was a concern that the basement excavation, and its construction, would impact on the foundations of their properties. The second issue raised was a more general concern about the impact of the proposed works on the structural soundness of the adjoining properties given their age.
Given these submissions, and the form of the Structural Adequacy Certificate as noted at [90] I sought to clarify the reference to 'minor cracking may occur as a result of the building work'. The following extract of the transcript details Mr Pickles response:
…. I note, of course, in relation to exhibit T, just pausing there for a moment on a slightly different topic, there was your question about the proposition that some minor cracking may occur as a result of the building work.
COMMISSIONER: Yes.
PICKLES: Despite our best endeavours, we couldn't get the author of this certificate to clarify that in any way in writing because of an abject refusal to do so, on the basis of apparently legal advice. But in any event the bottom line is the certificate applies to the subject site, and the certifier is that the engineer is only certifying the works on the subject site, and certifying the impact of those works to the building on the subject site.
COMMISSIONER: Would it be correct to say that the certificate makes no recommendation or no certification about what happens to the adjoining properties?
PICKLES: Correct. So far as adjoining properties are concerned, they are protected by the usual dilapidation condition, and the council in that respect in exhibit 9 has a condition which specifically requires a dilapidation report, both before works are undertaken, and then after demolition and excavation. 46 is the condition. It's not a dilapidation report sort of at the end of the process, but rather in the interim when the position can best be observed. Once the demolition has taken place, and excavation has taken place, the photographic survey must then be taken.
(Transcript 8/11/19 p. 11 at [35])
I accept the submission of Mr Berveling that the Structural Adequacy Certificate provided by the Applicant does not meet the provisions of 3.10.1 (1) of DCP 2012 and I adopt his reasoning detailed at [60].
In accordance with s.4.15(3A) of EPA Act it is appropriate to consider whether the development application meets the objectives of the controls by proposing a reasonable alternative solution. The relevant objectives seek to
(a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use.
(b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building.
I am satisfied that a variation to the control at 3.10.1(1) of DCP 2012 is not warranted in the circumstances on the following grounds:
1. There is insufficient evidence to quantify the likelihood of detrimental impacts to the existing building arising from the proposed development. After a detailed review of the documents, I accept the oral evidence of Mr McDonald that there is: inconsistencies within the architectural plans (Ground floor plan DA-151 and Demolition Plan DA-100] which leads to uncertainty as to the extent of demolition proposed by the application; there is no indication in the architectural plans of how the retained first floor structure of the building is to be connected to the new structural system of the building; further there is no indication on the plans of how the proposed concrete slab at the second floor will connect with the existing façade wall on Palmer Street and Sherbrooke Street. I note that the Structural Adequacy Certificate indicates that no load will be taken by the party walls, but does not address the capacity of the existing façade walls to take the new load from the concrete upper floor, or if an alternative load bearing frame is required.
2. Further, the Heritage Impact Assessment (Exhibit H) in its conclusions and recommendations states (emphasis added):
While CPH considers the works to be generally sympathetic and compatible with the subject site, the following recommendations are made:
- Prior to any works being undertaken, a full archival recording, heritage interpretation strategy and schedule of conservation works should be completed.
- An engineering assessment of the proposal should be obtained. This assessment should ensure retention of the parapet and decorative elements with particular reference to Palmer Street.
This highlighted requirement is not addressed in the Structural Adequacy Certificate and is reiterated in the Structural Report which states in its concluding remarks:
- Although the brickwork on the existing buildings is in good condition, some rectification work will be required to extend the life of the brick structure. An analysis of the brick parapets should be undertaken to determine the stability, particularly under earthquake loads. If the existing brick parapet walls are to be used as balustrades they will need to be strengthened to support the balustrade loads.
(Exhibit L)
No such analysis has been undertaken of the brick structure of the building or of the parapet, which is proposed to be utilised as a balustrade for the private open spaces of Unit 08 and 09.
1. The Structural Report identifies two options to support the proposed development, extracted below. Neither of these approaches are incorporated or accommodated in the Architectural plans. Whilst the Structural Adequacy Certificate certifies that 'the existing footings and walls are capable of supporting the loads from the proposed works' (Exhibit T) and references the architectural plans before the court, it includes the requirement for the works to be carried out in a manner consistent with the options provided by the Structural Report and accordance with details prepare by the engineers in the future.
Further to the above, it is likely that the existing boundary walls are not appropriate to support the additional loads from the extension based on two criteria: the capacity of the brick wall may not be sufficient to support additional loads, and it is likely the foundation material is not sufficient to support the additional loads. This is almost certainly likely if new/additional brickwork (ie. heavy construction) is proposed at the boundary. Therefore we recommend that two options be considered to support the additional loads independent of the existing brick walls: new concrete walls be considered inside the entire existing brick boundary walls for the full height of the building where brick is proposed, or if this is not feasible then a structure to support the proposed brick independent of the existing brick work be considered'
(Exhibit L) Emphasis added
I am satisfied, following a review of the architectural plans, that the first option has not been implemented by the proposed development (DA-204: Section AA) and that no additional framed structure (as the second proposed option) is shown or accommodated in the plans. I accept the agreed evidence of the heritage experts that a structural engineering methodology that demonstrates and details how the retained and new fabric of the proposed building can be supported during and post construction is required.
1. I accept the agreed evidence of the heritage experts that 'a structural engineer's report should be provided that provides support for the basement and a methodology to ensure the building is structurally able to take the basement excavation as proposed' (Exhibit 4). This position of the experts is restated after further joint conference on the amended material.
I accept the evidence of Mr McDonald that addressing the structural stability of the existing structure during and post construction have the potential to change the development and that more certainty is required prior to DA consent.
I note Mr Davies evidence that such a further structural detailing and methodology could be addressed as a deferred commencement condition, refer paragraph [51].
I am satisfied that it is inappropriate to defer this assessment to a deferred commencement condition of the form in accordance with s4.16(3) of the EPA Act on the following grounds:
I am not satisfied that it is appropriate to defer the satisfaction of the impacts of the proposed development on the fabric of the existing building to post consent as the building is nominated in DCP 2012, within the 'Building Contributions Map' as being a contributor to the significance of the HCA and the potential outcomes arising from the implementation of the suggested condition are uncertain: Mison v Randwick Municipal Council (1991) 23 NWLR 734.
Further, cl 5.10(4) requires the consent authority to consider the impact of the proposed works on the significance of the heritage conservation area prior to determination. If additional structure is required to implement the proposed development, or to achieve consistency between the documents before the court, then those elements should be identified, designed and assessed as part of the determination of the merits of the application.
I am satisfied that, consistent with the decision of Weal v Bathurst City Council & Anor [2000] NSWCA 88, to defer an assessment of the structural methodology to be employed by the proposed development to post consent would be to not undertake the role of the consent authority to balance the competing impacts and benefits of the proposed development as required by s. 4.15 of the EP&A Act.
Further I am satisfied that a detailed structural engineering methodology has the potential to lead to design changes within the proposed development.
Given the existing building is a contributory item in the HCA and shares a common party wall with adjoining contributory items, the deferred commencement condition defers to post consent the consideration of the potential risk, or benefits, to heritage fabric arising from the development.
The deferral of the matter to condition restricts the consent authority from undertaking an assessment of the impact of the proposed development on the significance of the HCA as required by cl. 5.10(4) of LEP 2012. Further, the heritage impact is unable to be defined or assessed and that impact balanced with the positive aspects of the development to determine whether, after the consideration of the relevant matters consent to the development should be granted.
Finally in relation to the extensive objector evidence, the Court is required to consider the local residents' evidence and give it appropriate weight, as it forms part of the public interest consideration of the proposal. I have read and considered all written objections lodged with Council in respect of the proposal and have received oral evidence.
As noted by Robson J in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at 106:
In considering community responses to an application such as that before the Court, an evaluation must be made on the reasonableness of the claimed perceptions of the adverse effect on residents' amenity. The concept of amenity is wide and the statutory scheme under the Act gives effect to the broadest conceivable scope of "likely impacts" of a proposed development. An evaluation of reasonableness includes identifying objective evidence that can support a factual finding of an adverse effect on the amenity of the objectors many of whom are local residents. Of course, a fear or concern without rational justified foundation, is not a matter which by itself can be considered as an amenity (or indeed social) impact (Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195]).
In these proceedings I am satisfied that the residents objections to the application on the grounds that the development proposed represents a risk to the structural soundness of the surrounding buildings have not been adequately addressed by the development application. It is clear on the basement plans of the proposed development (DA-050 Basement Level Plan) that the excavation and new structure is proposed immediately adjacent to the common boundary with 43 Burton Street (Lot 45 DP 860217). As detailed at paragraph [79] the Geotechnical report identifies risk to neighbouring buildings from the transition of vibration caused by the excavation. On balance I am satisfied that these risks, raised by the objectors have not been satisfactorily addressed or mitigated by the application.
Further on the evidence, and consistent with my findings in the preceding, the objectors concerns are a reasonable perception of a potential adverse effect on their amenity (damage to their properties): Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195]).
Finally, the potential for detrimental impact is of greater import due to the role of the subject building as a contributory item in the HCA.
I find that the development warrants refusal on the basis that the likely impacts of that development are uncertain (s 4.15(1)(b) of the EPA Act) and, on prudent, precautionary grounds, it is not appropriate to approve the application as it is contrary to the public interest (s 4.15(1)(e) of the EPA Act).
The Court orders that:
1. The appeal is dismissed;
2. Development application D/2017/1332 for alterations and additions to the existing building at 278 Palmer Street including a part one and two storey addition, new basement for storage and services and change of use to a residential flat building is refused.
3. The exhibits are returned with the exception of Exhibits 1 and A.
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D M Dickson
Commissioner of the Court