Is the impact of the development on the heritage significance of the HCA and the heritage items in the vicinity of the site acceptable?
- It is the evidence of Mr Stass that the thrust of the planning controls in DCP 2011 are focussed on the conservation of those areas within the HCA that contain small-scale original development. In oral evidence, Mr Staas stated that in his view the DCP controls, as they relate to the HCA, do not contemplate development to the scale provided by the LEP and do not address the form of development proposed on the site. It is his view that in preparing the LEP the Council formed a view that the site should provide a stepped transition between the CBD form of buildings north of Kendall Street to the lower scale of the existing heritage items within the conservation area. He argues this intent is clear in the modulation of heights assigned by the LEP adjacent Kendall Street [refer map in par 16]. It is his view that it is erroneous to apply the DCP controls literally to the development proposed for the site.
- In oral evidence Mr Stass agreed that the scale of the proposal is not consistent with the built form described in the statement of significance for the HCA or sought by the DCP controls. However, Mr Stass relies on the policy decision of the Council to add height to the site, after the making of the HCA, which he says envisages redevelopment of the site in a form that is in consistent with the DCP. It is his view that the intent of the Council is clear that in providing the stepped heights they seek to provide a transition from the edge of the CBD to the HCA. It is his conclusion that the subject site forms part of that transition.
- It is Mr Stass' evidence that any development on the subject site will be consistent with the existing backdrop of high-rise development to the north of the site against which the HCA is already read. Mr Staas argues that :
A number of approved developments in Parkes Street will create a substantial wall of development at the northern end of the Heritage Conservation Area. Council has agreed that these changes in scale are acceptable and will not detract from the special character of the retained earlier development in the conservation area. This form of juxtaposition is to be seen throughout the city centre itself where isolated heritage items adjoin substantial developments in a mixed character context.
..
In my professional opinion, the proposal is an appropriate response to its context at the junction of the City Centre with the heritage conservation area and will provide an acceptable transition to the adjoining sites which do not contain significant building stock and are also likely to be redeveloped. The heritage item opposite is quite isolated in this context and will not be unreasonably impacted on by a development of this type as it is already within the visual context of much larger development along the edge of the city centre and is read against the bulk of the Kennards Self Storage facility. The development will not affect those identified characteristics of the area listed in the Statement of significance. The site in its present form does not provide evidence of that significant development pattern and is separated from it by other intrusive development. Additionally, the site is separated from the remnant housing in Ada Street by sites with lower development potential in terms of height and in my opinion these sites would not be unduly affected by the current proposal.
- In summary Mr Staas supports the approval of the application on the basis that:
1. The provision of height and FSR to the site through the LEP maps must be taken into consideration when evaluating what the expected development outcomes for the site should be;
2. Clause 5.10 of the LEP does not prohibit the development but requires the consent authority to consider the impact that it may have on the significance of the HCA, and it is his conclusion that the development will not affect those characteristics of the area identified in the statement of significance for the HCA (Exhibit 3.)
3. The proposed development will more closely be related to development adjoining the site to the north and will not have a major adverse impact on the existing form, character, significance or desired future character of the Harris Park West Heritage Conservation Area or be unacceptable in this context;
4. There will be no significant adverse impacts on the surviving houses in Ada Street resulting from the proposed development that is separated from them by sites with quite different development potential indicated by their maximum height limitations.
- In the alternative, Mr Brooks emphasises that the site is wholly contained within the HCA and that therefore any development of the site must be considered, under cl 5.10(4) of LEP 2011 for the impact it may have on the HCA and any heritage items in the vicinity. Mr Brooks argues that the DCP controls in Parts 3.5.1, 4.3.2 and 4.4.3.3 do not distinguish between different areas in the HCA, and therefore the controls apply to the site. It is his conclusion that these two factors, in combination with an assessment of the proposal against the objectives of the height control that result in the height of the proposed development being unacceptable. He states:
Clause 4.3 of PLEP 2011 carries four criteria whereby the maximum permissible heights for any development must be tempered:
(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,
(c) to require the height of future buildings to have regard to heritage sites and their settings,
(d) to ensure the preservation of historic views,
(e) to reinforce and respect the existing character and scale of low density residential areas,
… the proposed development, at 8 storeys in height, being of a very modern design that might be acceptable in many other contexts, and that will be visible from many streetscapes within the Harris Park West HCA, does not meet these four criteria.
The maximum permissible heights set out in the LEP Height of Buildings Map are only achievable if the objectives in the enabling Clause 4.3 are met and only if the provisions of PLEP 2011 Clause 5.10 are also met. In addition, the maximum permissible height can only be met if the proposed development responds responsibly to the relevant provisions of PDCP 2011. These requirements are all included in the planning policies that govern development on the subject land. No one of these provisions can take precedence over the others. (Exhibit 3)
- In response to Mr Staas, it is Mr Brooks evidence that there is no need for the subject site to be regarded as a transition from the higher density development within the CBD precinct to the north of the site. He concludes that the transition has already been established in the area between Kendall and Parkes Street (north of the subject site) where development has already occurred at eight and four storeys in height as shown in the following. This is the appropriate transition to the HCA, and as such it is his view that the subject site should not be regarded as a transition to the HCA.
Figure extracted from the Joint Expert report of the Heritage consultants (Exhibit 3)
- In his evidence Mr Brooks relies on Grigorakis v Bayside Council (2016) NSWLEC 1573, in which Brown C examined the interrelationship of the LEP height controls and heritage considerations under cl 5.10(4) as follows:
35. There is no question of primacy or ranking of the planning controls that influence development on the site. Put simply, the heritage provisions on cl 5.10 and the more general planning provisions in DCP 2013 both apply. The heritage considerations are only an additional layer of planning controls to consider. In this case, the heritage provisions of cl 5.10 have the effect of limiting development on the site such that the full potential as set out by Control C7 in pt 5.2.2.6 may not be achieved. It is not unusual for local environmental plans to have no specific controls for heritage items in areas where more general controls apply. This however does not diminish or dilute the importance of cl 5.10. Importantly, there is nothing in LEP 2013 or DCP 2013 that guarantees the maximum requirements in Control C7.
36. I also note that the height and storey controls in Control C7 are expressed as a "maximum" and there is no suggestion that the maximums can be achieved or even if the maximums are achieved, that approval will automatically follow.
37. In considering the question asked by cl 5.10(4) to "consider the effect of the proposed development on the heritage significance of an item", I have found that the there is an effect and that effect is significant and warrants the refusal of the application.
4.30 There is nothing elsewhere in PLEP 2011 or PDCP 2011 that overrides the provisions of Clause 5.10 and nothing that guarantees the "maximums" can be reached in a manner that ignores or varies the direct requirements with the PDCP 2011 overarching provisions regarding development in conservation areas. (Exhibit 3)
- Whilst he agrees that, the subject site is capable of redevelopment, it is Mr Brooks' conclusion that the development of a building of the height, scale, bulk and contemporary architectural character as proposed by the application will have a major negative impact on the Distinctive Characteristics, Heritage Significance and Desired Future Character of the Harris Park West Heritage Conservation Area (Exhibit 3).
- In his evidence Mr Brooks also raises concerns with the scale of the proposal and its visibility from within the HCA area, particularly along the length of Wigram Street. He argues that the rear elevation of the proposal (facing the HCA) is an imposing six storey high wall, some 20m long directly on the property boundary. He concludes that this will be the primary viewing angle of the building when looking north from the depths of the HCA, particularly along the majority of Wigram Street and that the rear elevation will adversely impact the setting and backdrop of the heritage items in Ada Street (Exhibit 3). Mr Brooks concludes that as the subject site is located at the entry to the HCA (from Parkes Street) development of an appropriate scale, responsive to the distinctive characteristics of the HCA, is important to mark the boundary of the HCA.
- Mr Brooks provides the following analysis of the elements within the built environment that currently act to define the boundaries of the HCA.
- Mr Brook's argues that the above figure demonstrates the traditional low scale character of the Harris Park West HCA is enclosed by the railway embankment and medium rise buildings to the north (thinner red line) and them by the taller buildings to the west and north (thicker red line). It is his view that approval of the proposed building will blur the clarity of these boundaries. (Exhibit 3)
- In summary Mr Brooks argues:
1. the proposal will adversely impact on the attributes which contribute to the heritage value and character of the Harris Park West Heritage Conservation Area, in accordance with PDCP 2011 Part 4.4.3.3 Objective 1 and on the setting of the heritage items in Ada Street; and
2. that the project will have an adverse impact on the Heritage Conservation Area in terms of the provisions of LEP Clause 5.10(4).
- In submissions Mr Clay argues that currently the subject site makes no contribution to the HCA. In contrast to Mr Brooks he submits that the sites that have been allocated additional height under the LEP, in proximity of the subject site, are specifically those that contain no elements or buildings that have the distinctive characteristics outlined in the DCP as representing the HCA. He argues that this analysis reinforces a conclusion that the Council made a deliberate decision to create a transition across the subject site to the areas within the HCA that display the distinctive characteristics outlined in cl 4.4.3.3 of DCP 2011. In other words the additional development potential provided by the LEP was allocated only to those sites that did not have built form that was representative of the HCA.
- Mr Clay emphasises that the height of building map, within the LEP, is not a simple plan of concentric circles of diminishing height, but rather a considered and purposeful approach to the allocation of height on a precinct basis. It is his view that the Council in their strategic planning have accepted that the HCA area and the heritage items will be seen against the backdrop of high-rise buildings. It is his submission that the redevelopment of the site as proposed by this application is consistent with this strategic intent.
- In the alternative, Mr Nash contends that the fact that the subject site is on the edge of a HCA is not relevant to the Courts consideration of the proposal. It is his submission that there is no differential weight placed on controls on sites on the boundary of a heritage conservation area, or on the basis of whether the existing site contains elements that display the distinctive characteristics outlined in the DCP as representing the HCA. The fact that the site is within the HCA triggers the application of the controls in the DCP. It is Mr Nash's argument that there is no inconsistency between the DCP and the LEP. The LEP height control is a maximum which may not be able to be achieved when consideration is given to the objectives of the control, the specifics of the site, and other considerations in the LEP such as cl 5.10 (Heritage) and cl. 4.6 (Exceptions to development standards).
- It is the Council's submission that the proposal will have a substantial impact on the significance of the HCA, and will have an effect on the heritage items in Ada Street in circumstances where the heritage experts agree these items make a strong contribution to the HCA. Mr Nash concludes that on the basis of the evidence of Mr Brooks the proposal will also unreasonably blur the distinction between the HCA and the City Centre and the sense of place created by the existing strong elements in the built environment [refer par 45].
- In conclusion Mr Nash submits that properly considered the proposed development is antithetical to the distinctive characteristics of the HCA, as accepted by Mr Staas, and for the reasons given by Mr Brooks will have a significant, and unacceptable impact on the significance of the HCA.
- In contrast, in closing submissions Mr Clay argues that the subject site never had an intimate scale, a single storey cottage or a narrow allotment defined as the distinctive characteristics of the HCA. The site is not a contributory item and demolition is agreed between the experts as appropriate. It is also agreed between the experts that the design of the replacement building proposed by the application is of a satisfactory urban design standard. It is his submission that the boundary of the HCA cannot reasonably be taken to reduce the heights in the LEP to a two storey built form.