Anglican Church Property Trust v Sydney City Council

5 St Johns Church was commenced in the 1850s and completed in the 1870s. It is in the Victorian academic Gothic style. In 1903 a school building was built to its north, on land that is now lot 1. That building was located about 12.5m from the Church. The school building was demolished in the 1965, at which time a new Church hall was built on the Victoria Street façade, to the east of the Rectory on part of the land that is now lot 2. The service station on lot 1 was built at about the same time.

6 Both Victoria Street and Darlinghurst Road are developed with a variety of buildings, ranging from three-to four storey terraces to bulky buildings over ten storeys high. Victoria Street has a more consistent streetscape than Darlinghurst Road. The surrounding area is a mix of residential, commercial and café/restaurant uses. The proposal and its history 7 The development application is Stage 1 of a staged application under s80(4)and (5) of the Environmental Planning and Assessment Act 1979 (the Act). It seeks consent not for two buildings but for two building envelopes. While the applicant formulated a number of different development options (and therefore different building envelopes), it seeks consent for so-called Option 3. Option 3 has the following main features: · demolition of the service station building, the Church Hall and northern fence to the Church; · allocation of uses within the building envelopes including a new Rectory, Church administration and community service areas, Church , Sunday school, a crèche, café/meeting place, retail uses, 50 to 90 residential apartments on the upper levels and basement car parking; · building envelopes for two new buildings being envelopes based on a rectangular plan with a uniform height, except for a setback at the top. The envelope of Building 1 is on lot 1 on the site of the former service station. The envelope for Building 2 is on lot 2.. Both envelopes have a height of 18 m with a partial setback at the top level, · FSR of 2.75:1, measured over the whole of the site, · parking for between 49 and 87 cars, · vehicular access from Darlinghurst Road, · provision of through site link and open space, · a Conservation Management Plan, and · a landscape concept. Envelope of Building 2 Envelope of Building 1

Relevant legislation, planning instruments and policies 8 The South Sydney Local Environmental Plan 1998 (LEP 1998) allocates two zonings to the site. Lot 1 is zoned Zone No. 10 Mixed Uses and lot 2 is zoned Zone No. 5 Special Uses Church . The proposed development is permissible with consent in both zones. Clause 10 states that consent must not be granted unless the consent authority is satisfied that the proposed development is consistent with the objectives of the zone. Clause 28 deals with the built environment, design principles and master plans. Clause 28(1) provides for matters that are to be taken into consideration in determining a development application. Clause 28(2) requires a master plan for sites in zone 5, ie for lot 2 in this application.

9 Schedule 2 of LEP 1998 identifies the Church, Rectory, fencing and gates as a Heritage Item (No. 338). There are other identified heritage items in the area although the council raised no issue on the impact on heritage items beyond those on the subject site. Schedule 2B of LEP 1998 identifies the Victoria Street frontage of the site as part of a Heritage Streetscape Area (No. HS 12). Consequently, clauses 22, 23, 23A 24 and 26 apply to the application.

10 South Sydney Development Control Plan 1997: Urban Design (DCP 1997) applies to the application. Part B provides urban design principles in relation to setting, buildings and heritage. Part C addresses through-site links and floor space ratio (FSR) bonus incentives. Part E addresses environmental design criteria and provides controls for master plans, building envelopes, FSRs, height and scale.

11 South Sydney (Heritage Conservation) Development Control Plan 1998 (DCP 1998) applies to the application. It provides definitions and explanations of heritage issues to assist in the overall understanding of heritage processes and management.

12 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the application by way of cl 4 of the Policy.

The issues 13 The council submitted a Statement of Issues containing 36 issues, many of which were further divided into sub-issues. During the hearing the council's advocate, Mr M Craig QC, simplified the issues as follows: · Is the impact of the proposed master plan building envelopes and landscape plans on the St John's Church heritage site acceptable? · Is the impact of the proposed master plan building envelopes and landscape plans on the heritage streetscape of Victoria Street acceptable? · Is the relationship between the master plan building envelopes and adjoining development in Victoria Street and Darlinghurst Road appropriate? · Can a full and proper assessment be undertaken of the impact of any development contemplated by the master plan given the information provided by the applicant?

14 The second and third issues are similar, except that the third issue includes Darlinghurst Road. We will discuss them together.

Impact on the heritage significance of the Church and Rectory The evidence 15 Clause 22 of LEP 1998 states that consent must not be granted unless the consent authority is of the opinion that the proposal is consistent with the aims and objectives contained within this clause. The relevant objective is 22(e), namely "to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items…". Clause 24 of LEP 1998 states that a consent authority must not grant consent to land in the vicinity of a heritage item "unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item…. as well as the impact of the development on any significant views…". 16 Clause 2.2 in Part E of DCP 1997 contains maps showing maximum permissible FSRs. The relevant map shows that lot 1 has a maximum FSR of 2.5: 1, rising to 2.75:1 with a bonus for public domain works. Lot 2 has no specified FSR. The objective of the FSR standard is "to control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area". 17 Clause 2.3 in Part E of DCP 1997 contains maps showing maximum heights. The relevant map shows that lot 1 has a height limit of 18 m, while lot 2 has no height limit. The objectives for height and scale include ensuring that buildings "are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context." The performance criteria include the criterion that "the height of new buildings adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours…." 18 Because the proposal is on a heritage-listed site, it is integrated development and the application requires the approval of the Heritage Council of NSW. In a letter to the council dated 10 June 2003, the Heritage Council gave its "general terms of approval" to the building envelopes, subject to a Stage 2 application being lodged describing the proposed buildings in more detail, including their form, massing, colour and materials. The Heritage Council is therefore not an impediment to the approval of the Stage 1 application. 19 The parties agreed that the Church and Rectory are heritage items of exceptional significance. They are classified by the National Trust, listed on the State Heritage Register as well as in LEP 1998, and under a Permanent Conservation Order since 1986. They are also listed on the Register of the National Estate. It was common ground that the proposal's impact on the Church is the main issue in this appeal. 20 We had the benefit of a number of photomontages depicting the building envelopes. These supplemented the understanding we gained walking along Victoria Street and Darlinghurst Road taking in the existing views of the Church . The general theme in the council's evidence was that the proposed building envelopes would diminish the landmark qualities of the Church, both from close and mid-distant views. The applicant's experts disagreed, stating that views will be largely unaffected except where current views are available to the Church through lot 1. 21 Mr David Logan, a heritage architect, gave evidence for the applicant. Mr Graham Brooks, also a heritage architect, gave evidence for the council. While they agreed that a new building to the north of the Church might be appropriate, they disagreed on whether this particular building envelope was appropriate. Mr Logan relied on the location of the 1903 school building for defining an appropriate curtilage to the Church towards the north. At the time he prepared his Management Plan, he understood that the school building had been located 11m to the north of the Church. On that basis he supported a building envelope for Building 1 separated from the Church by 11m. He accepted that later investigations revealed that the distance between the Church and the 1903 school building was about 12.5m. Mr Logan said that he had told his clients that his preference was for maintaining the historic distance (ie 12.5m), but that he thought that 11m separation would also be acceptable. As a result he did not suggest increasing the separation distance to 12.5m. 22 For the height of the building envelopes, Mr Logan relied on a combination of the ridgeline of the Church, which is about 15m above ground, and the maximum permissible height in DCP 1997, which is 18m. Mr Logan proposed a setback in the envelopes at the height of the Church 's ridgeline. Behind the setback the envelopes reach a height of 18m.

23 With regard to the impact on public views of the Church, Mr Logan agreed that views will be diminished. He justified the loss of views on the basis that the 1903 school building also blocked out the view of the Church from the north. He pointed out that the important view is of the spire and that this would still be seen from numerous points.

24 Mr Brooks rejected the notion that the footprint of the 1903 school building was an appropriate basis for deciding what should be built around the Church today. The school building was demolished forty years ago. In his view it no longer had any relevance to the current heritage context. The appropriate envelopes should be determined by its impact on contemporary views of the Church. Mr Brooks also disagreed with Mr Logan that the ridge height of the Church roof was a valid criterion for the height of the building envelopes. He pointed out that the ridge belonged to a steeply sloping gable roof, the eave line of which was only about 8m above ground. To use the ridgeline as the justification of a flat roof of a "cubist" building was wrong.

25 With regard to a building to the south of the Church behind the Rectory, Mr Logan and Mr Brooks agreed that a new building could appropriately replace the existing Church Hall. They disagreed about the appropriate height, with Mr Logan again taking his cue from a combination of ridge height and the statutory height limit of 18m, and Mr Brooks preferring the height of the existing Church Hall. He considered that the existing building related well to the Victoria Street streetscape, as well as to the Church and Rectory. 26 Professors Neville Quarry and Lawrence Nield, both architects, provided further evidence in the applicant's case. Professor Quarry described the proposal as a vast improvement on the currently "incoherent" public domain around the Church . In his view the proposal would clarify, enlarge, define and render more picturesque the space between the Church and the street frontage, as well as the pedestrian linkages between Victoria Street and Darlinghurst Road. Professor Quarry described the building envelopes as framing the Church "handsomely, like epaulettes on either side of the spire head dress". Professor Nield supported the metaphor. He thought that the proposed building envelopes would be in scale with the Church. With sensitive architectural treatment, the scale and proportions of the heritage items would not be visually damaged. 27 Mrs Janet Thomson, a town planner, gave further evidence in the applicant's case. She said that the application generally complied with the requirements of the relevant planning instruments, being well below the FSR and height controls. She saw the development as making a positive contribution to the area, providing the Church with the opportunity to continue its much-needed services to the community. Her evidence also addressed the requirements of SEPP 65. While qualifying her comments by relying on the details required in a future Stage 2 application, she maintained that the development would satisfy the design principles of SEPP 65. 28 Mr Nigel Dickson, an architect, Professor James Weirick, a landscape architect, and Dr Richard Lamb, a visual impact consultant, gave evidence in the council's case. Mr Dickson said that the proposed building envelopes would have a significant impact on the Church and Rectory by "crowding" them and removing the spatial setting that distinguished these landmark buildings from the dense urban fabric. In his opinion, the height, scale, bulk and mass of the building envelopes do not relate well to the heritage items. Views to the heritage items would be substantially reduced, so that they would lose their significance in the streetscape.

29 Mr Dickson demonstrated the loss of views by a drawing in his report titled Figure 10. This illustration showed that the proposed building envelopes would reduce the view of the Church along Victoria Street for a distance of 60m. Along Darlinghurst Road the view would be lost for a distance of 25m.

30 Professor Weirick expressed similar views. Dr Lambs' visual analysis concluded that the massing, height and setbacks of the building envelopes were inappropriate in both streetscape and heritage terms, relative to the Church, its associated buildings and its landscape. Buildings built to the proposed envelopes would compromise the special sense of place that is critical to the significance and setting of the Church. 31 Mr William Mackay, a town planner employed by the council also gave evidence. While he accepted that an 18m high building might be achievable on part of the site, a uniform 18m height for the whole of the building envelope was inappropriate. He disagreed that the proposal complied with the FSR control. He pointed out that the FSR control applied only to lot 1; hence the building envelope for Building 1 should comply with the control on the basis of the area of lot 1. Mr Mackay considered that the proposed envelopes failed to satisfy several principles in SEPP 65, in particular Principle 1: Context, Principle 2: Scale, Principle 3: Built Form and Principle 4: Density. In his opinion the proposal would adversely impact on the significance of the Church and Rectory. It would reduce public views of the Church and be visually overbearing.

32 Mr Mackay provided an analysis of the impact of overshadowing on the windows to the north side of the Church. At mid-winter all windows lose 35% to 100% of full sun access. Of the eight windows in this elevation, five will lose more than 80% of full sun access. He described this level of shadowing as being inconsistent with the relevant policies contained in LEP 1998, DCP 1997 and the applicant's Conservation Management Plan, all of which seek to minimise overshadowing and maximise sun access. Mr Logan agreed that there would be a small amount of additional overshadowing to the windows of the transept for approximately 12 weeks a year, although there would be little additional shadowing during Church services. The majority of shadows cast by the new development would fall within either existing shadows or shadows that had been cast by the former school building between 1903 and 1965.

Findings 33 Our task is to assess the proposed building envelopes' impact on the heritage significance of the Church, Rectory and associated open space. LEP 1998 defines heritage significance as historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance. While historic, cultural, social, architectural and aesthetic significance all apply to St Johns Church, it is the aesthetic significance on which the proposed development is most likely to have an impact. In addition, the church has significance as a landmark in the streetscape. 34 How can impact on the aesthetic and landmark significance of a heritage item be assessed? When is the impact acceptable? It seems to us that four main principles apply to such an assessment: · First, new development should not unreasonably reduce public views of the heritage item and its setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one. · Second, new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful. · Third, new development should not unreasonably overshadow the heritage building. · Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new.

35 Applying the above principles, we turn to the impact of the building envelopes on public views of the Church. The Church and Rectory are in a prominent location. This prominence is heightened by the Church tower and spire, which can be seen from a long distance. We accept that the current expansive views of the Church through lot 1 and over the roof of the existing service station building are likely to be lost with any reasonable development of the site and that therefore the full retention of these views could not reasonably be expected. The reason that we consider the impact of the Building 1 envelope on views unacceptable is not because it diminishes public views, but because it all but eliminates them from Victoria Street to the north of the site. 36 It is clear from Mr Dickson's evidence that views from the north along Victoria Street will be severely reduced. It appears that even a small setback, or an indentation at the southeast corner of the envelope, would significantly reduce the extent to which the building envelopes obstruct views. Despite this, the proposed Building 1 envelope covers every available square centimetre allowed by Mr Logan's line located at 11m from the Church. Victoria Street view of envelope from north 37 We have taken into consideration Mr Logan's opinion that the most important view is the view of the spire. However, the proposed envelopes obstruct the view of the spire as well as the rest of the Church. Moreover, the 1903 school building, on which Mr Logan relied for justifying the proposed building envelopes, was a lesser obstruction to viewing the Church and allowed more views of the spire. 38 We turn to the second principle, namely that the proposed building envelopes should not visually dominate the Church. This is the corollary of preserving an appropriate setting, or curtilage, for the Church. (While there was some dispute between Mr Logan and Mr Brooks over the difference between curtilage and setting, this was a semantic argument that has no relevance to our decision.) The real difference between them was that Mr Logan justified the curtilage by the location of the 1903 school building, while Mr Brooks believed that this long-gone building had no relevance. 39 We agree with Mr Brooks that it is not appropriate to rely on the existence of a building demolished in 1965, for determining a curtilage for the Church in 2003. The vast majority of people who enjoy a view of the Church do not remember the school building. Moreover, if the existence of the school building is used as a basis for defining the curtilage, then it should be used in its true three-dimensional context. We note that the Building 1 envelope is 1.5m closer to the Church than the school building had been, that its footprint is larger and that its three dimensional form extends more aggressively into the setting of the Church. The building envelopes dominate the Church visually far more than did the former school building.

40 We do not accept it is appropriate to transpose the ridgeline of the Church to the building envelopes. The ridgeline occurs on top of a steeply sloping gable roof, the eave line of which is only about 8m from the ground. Using the ridgeline of a steep gable roof to justify the flat roof of a block-like building envelope ignores the three-dimensional nature of the setting of the Church.

41 Mr Logan's evidence was weakened by the fact that, when he became aware that he had based his curtilage on the wrong distance, he did not change his proposal. The 11m separation between the Church and the building envelopes has no basis in history. It is clearly inadequate to give a proper setting to the Church. 42 We note that the applicant has made some attempt to reduce the bulk of the building envelopes by stepping back the upper level. However, this provides only minimal improvement to the unacceptable impact on the visual setting. We also note that Professor Nield gave considerable weight to the future design of the Stage 2 development application. In our opinion, the visual dominance of these building envelopes is so great that even well-designed buildings filling the envelopes are unlikely to be acceptable.

43 As regards the third principle of minimising overshadowing, we note that the envelope of Building 1 casts a shadow on the northern facade of the Church, in particular on the stained glass windows. We do not think that this would justify the refusal of the application, though the additional shadows on the stained glass windows are a negative feature of the proposal. As regards the fourth principle, namely the relationship to the form and character of the heritage item, we cannot make any findings, given that the proposed envelopes have no form, character or materials.

44 We have given considerations to two matters put to us by the applicant. First, that the Anglican Church requires an income from this site because it needs to maintain the historic Church and Rectory and because it wants to continue its social outreach program in the community. While we may be able to take into account the need to maintain the Church and Rectory in good condition, we do not think that we can consider the cost of the Church's social outreach program, no matter how worthwhile that program is. However, the important point is that, while the applicant has placed before the Court details of the cost of building maintenance and of the social program, it provided no information on the likely income gained from the proposed development. Even if we could take into account the need to finance all the Church's community activities, we have no information to enable a judgement on how much development is necessary to support these activities. 45 The second matter we took into account is the Heritage Council's approval of the building envelopes. In the applicant's submission the Court should place significant weight on this. We agree that the Heritage Council's views are relevant and should be given considerable weight. However, our consideration must primarily be based on the evidence before us. That evidence persuades us that the impact of the building envelopes on St John's church is unacceptable. The fact that the Heritage Council thought otherwise cannot change our conclusion.

Impact on significance of heritage streetscape and adjoining development The evidence 46 The buildings surrounding the site vary in age, architectural style and size. The range of land uses also varies and includes residential, retail, entertainment, commercial and public uses. The majority of the buildings close to the site are old and three to four-storeys in height. The exceptions are the recent Top of the Town, the Elan and the Altair buildings. 47 The planning controls place strong emphasis on compatibility with surrounding development. Clause 28(1) of LEP 1998 requires the consent authority to take into consideration whether the development "reinforces and enhances the…. character of the locality" (cl 28(1)(b)) and whether it "is compatible with the scale and design of neighbouring development" (cl 28(1)(c)). Clause 28 of LEP 1998, cls 2.2 and 2.3 in Part E of DCP 1997 and SEPP 65 all require the consent authority to take into account the impact on streetscape.

48 Clause 2.2 in Part C - Public Domain of DCP 1997 identifies a requirement for a through-site link on the site. Part C also provides for the enrichment and enhancement of the public domain. 49 Mr Logan stated that the proposed building envelopes were compatible with and respected the streetscape. While Victoria Street is a heritage streetscape, the west side of the street has a mixed scale and eclectic character. The proposed building envelopes would fit in well, subject to appropriate massing, articulation, materials selection and detailing. He noted that the proposed building envelopes were much lower than the Top of the Town, the Elan and the Altair and will be seen in the context of these buildings. 50 Mr Brooks described the building envelopes as having a major impact on the streetscape. He suggested that the large monolithic composition was at odds with the required maintenance of the established character. The proposed building envelopes were unacceptable as they blocked existing views to the architectural composition from Victoria Street.

Findings 51 There was no evidence to indicate the basis for listing Victoria Street as a heritage streetscape. We presume that the predominance of identified heritage items, including the Church and Rectory and other older but not heritage-listed buildings underpins its listing. The parties addressed this issue largely in terms of bulk and scale. 52 In our opinion, the proposed building envelopes are inconsistent with the heritage streetscape of Victoria Street. They are about two storeys higher at the street frontage than the majority of buildings. They are also much wider than the other buildings. It is possible that detailed design will reduce their perceived scale; however a design that fills the envelopes to the maximum extent is unlikely to provide such a design.

53 With regard to the assessment of the building envelopes under the design principles of SEPP 65, we prefer Mr Mackay's evidence to Mrs Thomson's. In our opinion, the building envelopes can be tested only against the principles of context, scale and: built form. For the reasons discussed above, the building envelopes do not comply with these principles. Is the information adequate? 54 The application is made under s80(4) and (5) of the EPA Act. Section 80(4) allows for consent to be given to a development excluding a certain part, or to a part of a development, or a specified part or aspect of a development. Section 80(5) relevantly allows the imposition of a condition that a specified part or aspect of a development be the subject of another development consent. 55 The application before the Court is Stage 1 of the development. Stage 1 includes the building envelopes, the landscaping concept and a pedestrian link between Victoria Street and Darlinghurst Road. The building envelopes are not necessarily the same as the final form of the building. They indicate a three dimensional shape within which the building will be contained. The actual shape of the building, the number of floors, the number and size of apartments, the plan of the apartments, the number of car spaces, the elevations (including the presence or absence of balconies), the materials and the colours are to be shown in the Stage 2 application.

56 The applicant submits that the building envelopes are sufficient information for the Court to grant Stage 1 consent. The council submits to the contrary.

57 We note that cl 23(A)(2) of LEP 1998, applying to development in heritage streetscapes such as Victoria Street, requires the consent authority to take into account many detailed aspects of a development (such as form and pitch or roof, proportion of windows etc). We do not take this as a reason for requiring more information, since such details can be considered in the Stage 2 application. However, we do not find it easy to split into two the consideration of the impact of a development on a heritage streetscape. It requires the consent authority to consider first the impact of the building envelopes and, later in stage 2, the impact of buildings within the envelopes.

58 We accept that multi-stage applications are useful for large or controversial projects as they provide the applicant with certainty about the major parameters of a proposal before it embarks on the expensive exercise of preparing detailed drawings and specifications for a development application. The critical issue is: how much detail should be provided in the Stage 1 application as against the Stage 2 application?

59 The principle we have adopted is that in multi-stage applications the information provided in Stage 1 should respond to all those matters that are critical to the assessment of the proposal. Where traffic generation is the critical issue, Stage 1 should include information on the precise number of cars accommodated on a site. Where the floor space is critical, Stage 1 should include the precise FSR. Where the major issue is the protection of vegetation, the footprints of the proposed buildings may be sufficient. In the proposal before us, however, the two major issues are the impact on the heritage-listed Church and the heritage streetscape. In our opinion, two building envelopes, within which buildings of any shape or design might emerge, are not sufficient to make a proper assessment.

60 We are strengthened in the above conclusion by the evidence of Professor Nield, ie: The material of a building is as important in the reading and assessment as the morphology and grain. Fabric and materials provide perceptions of weight, eg a stone building is perceived as being heavier than a timber building and a concrete building is perceived to be heavier than an aluminium and glass building. The treatment of the fabric in terms of perforations and permeability affects the visual weight, eg a residential building with balconies appears lighter than a brick building with punched-hole windows.

61 If the above is true, then it follows that different buildings filling the same envelopes can appear "light" or "heavy" depending on the materials, elevations, whether or not they have balconies and how the balconies are treated. An understanding of whether the building will appear light or heavy is essential for the assessment of a building's impact on an adjoining heritage item. 62 There is another reason why the design of building envelopes is the worst possible first step in planning this site's redevelopment. A building envelope is, by its very nature, a bland, block-like shape that is the antithesis of the intricate, sculptured neo-Gothic architecture of St Johns Church. Once a building envelope is given Stage 1 consent, economic pressures are likely to ensure that the detailed building designed for Stage 2 will fill the envelope. This increases the likelihood of a bland and block-like design. 63 In our opinion, while building envelopes may be suitable for Stage 1 applications in many circumstances, they are not suitable for the development of this important heritage site.

Conclusion 64 In our opinion the application must be refused because the proposed development * · is inconsistent with the aims and objectives in cl 22(e) and cl 22(f) of LEP 1998; * · will have an unacceptable impact on the heritage significance, curtilage and setting of St Johns Church and Rectory (cl 24 of LEP 1998); * · is incompatible with the scale and design of St Johns Church (cl 28(1)(c) of LEP 1998), and * · is incompatible with the heritage streetscape of Victoria Street (cl 23A of LEP 1998). 65 In addition we find that, in the context of a heritage-listed site in a heritage streetscape, the Stage 1 application does not provide enough information to be properly assessed.

Orders

1. The appeal is dismissed.
2. Development application for a Master Plan and Stage 1 Development of the St Johns Church site at118A Darlinghurst Road, Darlinghurst is refused.
3. The exhibits are returned.

      Dr John Roseth G Brown
      Senior Commissioner Commissioner of the Court

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