G & J Drivas Pty and Telado Pty Ltd v City of Parramatta Council

Land and Environment Court (NSW)|2024-11-14

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA/960/2022. The application is a concept development application (Concept DA) made pursuant to s 4.22 of Division 4.4 of the EPA Act. As amended the concept development application seeks consent for the following: 1. Partial demolition of fabric, retention and conservation of the locally heritage listed Murrays Building. 2. Creation of nominated structural column zones within the Murrays Building within which structural elements will located to support a future tower element to be constructed above the existing building. 3. Creation of a three-dimensional building envelope above the Murrays Building with a maximum height of RL 67.100 and upper limit which follows the Parramatta Square Sun Access Plane. The building envelope sought is capable of accommodating up to 10 new floors (including plant). Eight of these floors are in the form of a tower with two recessed floors adjacent 85-97 Macquarie Street. The Concept DA includes provision for a structural zone to provide for the new tower. 4. Roof terrace atop the existing Murrays Building at levels 3-4.
The form of the concept envelope is better understood in the following elevations: Proposed elevation to Macquarie Street (Northern Elevation) Proposed Elevation to Centenary Square (West Elevation)
The proposed building envelope, delineated in blue in the above elevations, along with the nominated zone for new structural support is collectively referred to as the building envelope in the remainder of the judgment.
The appeal was subject to conciliation on 7 June 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached the conciliation was terminated.
Prior to the hearing the Court granted leave to amend the Concept DA. The evidence in the proceedings is responsive to the amended Concept DA. Consent is not sought for any physical works as part of this application.

Issues

The Respondent's contentions can be summarised as follows: 1. That the development application should be refused as: 1. the building envelope delineated in the Concept DA is capable of accommodating gross floor area that exceeds the maximum permitted by cl 7.3 Floor Space Ratio of Parramatta Local Environmental Plan 2011 (LEP 2011). 2. the Concept DA will have an unacceptable detrimental impact on the significance of the heritage item, Murrays Building. Further, the Concept DA will have an unacceptable detrimental impact on the heritage items located within proximity of the site. 3. the Concept DA, and specifically the proposed building envelope, does not demonstrate design excellence and does not satisfy cl 7.11 Design Excellence in LEP 2011. 4. The Concept DA does nor respect the urban design principles envisaged under the Church Street Special Area provisions of the Parramatta Development Control Plan 2011 (DCP 2011). 5. The relationship of the building envelope to the existing building is unacceptable for two reasons. Firstly, it creates an unacceptable relationship with the existing heritage building. Secondly, it detrimentally impacts on the scale relationship between the Murrays Building and taller buildings near to it.

The site and locality

The subject site is legally described as Lot 23 DP 651527, known as 188 Church Street, Parramatta. It currently contains the Murrays Limited Building, which is a local heritage listed item (I652) and is occupied by ground floor shops and commercial in the second and third floor.
The site has frontage to Centenary Square, to the west and Parramatta Town Hall to the south. To the east of the subject site is 85 Macquarie Street which has recently been redeveloped into a 13-storey commercial building.
The statement of significance for the Murrays building on the site is: "Association with notable events or people - Building or work associated with notable people. Namely the major department store of Murray Bros. Site possesses potential to contribute to an understanding early urban development in Parramatta. An important element of the buildings around Bicentennial Square, at the heart of Parramatta. National Trust (Parramatta Branch): Site has potential to contribute to an understanding of early urban development. - Association with notable people or events- Building or work associated with notable local people. Namely the major department store of Murray Bros. - An important element of the buildings around Bicentennial Square, at the heart of Parramatta."
The statement of significance for Bicentennial Square and adjoining buildings (Centenary Square) is: "Bicentennial Square is of significance for the local area for historical and aesthetic reasons, and as a locally unique set of examples of various types of buildings that collectively and individually from local landmarks. The Square provides evidence of local and regional amenities and services in Parramatta'
The site is proximate to the following heritage items: (a) I719 (Leigh Memorial Uniting Church) (b) I654 (Centennial Memorial Clock) Page 4 of 28 17727236.1 (c) I651 (Bicentennial Square and adjoining buildings) (d) I01805 (St John's Anglican Cathedral, state heritage listed) (e) I653 (Warden's cottage, verger's cottage) (f) I650 (Parramatta Town Hall and potential archaeological site) (g) I656 (Horse Parapet Façade)
An extract of the Heritage Map referred to in clause 5.10 of LEP 2011 is provided below: Extract of HER_010 in LEP 2011 with site outlined in red.

Acts

Division 4.4 of the EPA Act applies to concept development applications and to consents granted on the determinations of those applications (s 4.21). A concept development application is "a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications" (s 4.22(1) of the EPA Act).
A consent granted on the determination of a concept development application for a site sets the parameters for the determination of any further development application in respect of the site. Section 4.24(2) of the EPA Act provides: "While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site."
As noted by Preston, CJ in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 (Uniting Church v Parramatta) at [44], "If the concept proposals for the development of the site are building envelopes, any development consent to those building envelopes will fix the envelope within which any building can be erected. Any further development application could not seek consent to erect a building that would be inconsistent with the building envelope approved by the consent granted on the determination of the concept development application".

Environmental Planning Instruments

The Respondent argues that the Concept DA is inconsistent with LEP 2013 in three ways. Firstly, it varies the FSR standard. Secondly, that the application of the mandatory consideration of the impact of the development on the heritage significance of the Murrays Building and Centenary square warrants refusal of consent. Thirdly, that the consent authority would not be satisfied that the Concept DA exhibits design excellence. Otherwise, the Concept DA is numerically compliant with the development standards in LEP 2013.
The effect of cl 1.8A 'Savings provision relating to development applications' in Parramatta Local Environmental Plan 2023 (LEP 2023) is that the provisions of LEP 2023 do not apply to the Concept DA as it was lodged, but not finally determined, before the commencement of LEP 2023.
The site is zoned B4 Mixed Use under LEP 2011. Development for the purposes of commercial premises is permitted with consent in the zone. The objectives of the B4 zone are:

To provide a mixture of compatible land uses.
To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
To encourage development that contributes to an active, vibrant and sustainable neighbourhood.
To create opportunities to improve the public domain and pedestrian links.
To support the higher order Zone B3 Commercial Core while providing for the daily commercial needs of the locality.
To protect and enhance the unique qualities and character of special areas within the Parramatta City Centre.

Demolition requires development consent pursuant to cll 2.7 and 5.10(2)(a) of LEP 2011.
As noted at [7] the site is listed as a heritage item in Sch 5 of LEP 2011, item I652- Murrays Building. The relevant objectives of the heritage conservation clause at cl 5.10(1) of LEP 2011 are: 1. to conserve the environmental heritage of Parramatta, 2. to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, 3. to conserve archaeological sites, 4. to conserve Aboriginal objects and Aboriginal places of heritage significance.
The consent authority must consider the effect of the proposed development on the heritage significance of the item: cl 5.10(4) of LEP 2011.
The site is identified on the Additional Local Provisions Map of LEP 2011 and the additional local provisions for the Parramatta City Centre in Pt 7 of LEP 2011 apply to the concept proposal and prevail over any other provision of LEP 2011 to the extent of an inconsistency at cl 7.1(2) of LEP 2011.
The applicable FSR for the site is determined by the application of cll 4.4 and 7.3 of LEP 2011. As the site has an area of less than 1000m2 the maximum FSR for the site is 6:1.
Whilst there is no maximum height nominated for the site on the Height of Buildings Map under LEP 2011, pursuant to cl 7.5 'Sun Access' there is a requirement for development on the site to comply with the Sun Access Protection Surface. The aim of which is to ensure that development will not create additional overshadowing to Parramatta Square between midday and 2pm on June 21. The building envelope proposed in the Concept DA complies with the Sun Access Protection Surface.
The site is mapped on the 'Active Frontages Map' pursuant to cl 7.8 of LEP 2011. Pursuant to cl 7.8(2) consent must not be granted to the erection of a building, or the change of use of a building, on land to which this clause applies unless the consent authority is satisfied the building will have an active frontage for the part of the ground floor of the building facing the street, river or a public space.
Clause 7.11 of LEP 2011, Design excellence, has as an objective, to deliver the highest standard of architectural, urban and landscape design. Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The consent authority must have regard to the matters in cl 7.11(4) of LEP 2011 relevant to the concept proposal (The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [53]), as follows: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage and archaeological issues and streetscape constraints or opportunities, (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, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
Pursuant to sub cl (4)(b) of cl 7.12 'Competitive design process' a concept development application for which development consent may be granted on the determination of the concept development application is excluded from the need for a competitive design process.
Clause 7.20 'Managing heritage impacts' applies to the site as it is located with the Parramatta City Centre and contains a heritage item. Sub cl (3) requires the consent authority to consider the following matters in determining a development application: (3) Development consent must not be granted to development to which this clause applies unless the consent authority has considered the following - (a) the extent to which the carrying out of the development is likely to affect the heritage significance of the relevant heritage item or heritage conservation area, (b) a heritage impact statement, (c) if the development involves a lot amalgamation, which includes a lot that contains, or is adjacent to, a heritage item - a heritage conservation management plan that identifies whether - (i) further lot amalgamations will be required to support the development of the land, while retaining the heritage significance of the heritage item, and (ii) the significance of the heritage item has been prioritised in the amalgamation of the lots, (d) the location of a tower, if proposed, having regard to the need to achieve an acceptable relationship with the heritage item or heritage conservation area on, or adjacent to, the land in terms of separation, setbacks, amenity and urban form.

Development Control Plan

The effect of cl 1.4 'Savings provision relating to development applications' in Parramatta Development Control Plan 2023 (DCP 2023) is that the provisions of DCP 2023 do not apply to the Concept DA as it was lodged, but not finally determined, before the commencement of DCP 2023.
DCP 2011 applies to all land within the Parramatta Local Government Area, at clause 1.3. The key provisions in dispute, or relevant to the expert evidence are contained in the following sections of DCP 2011.
Strictly applied Concept DA varies the following controls in DCP 2013. These provisions, and their application, was the subject of expert planning evidence. 1. Part 3, section 3.5.1 Heritage, Control C5 as the Concept DA seeks to re-roof the heritage building (Murrays Building). 2. Part 6, section 6.3.1 Setback in relation to the street setback. The Concept DA proposes a setback of 3.5m, against a control of 6m. I note however that the experts disagree as to the application of Control C01 in sec 6.5.4 'Church Street' which nominates a zero street wall setback and controls C05(b) in 6.5.2 Civic Link. 3. Part 6, section 6.5.4 Special Areas Church Street, C02 given that tower development is prohibited within the are mapped as being within the 'Church Street View Corridor' at Figure 6.5.4.2 in DCP 2011. 4. Part 6, section 6.6 Heritage, C03 which precludes new development overhanging an existing heritage item is varied by the tower element of the Concept DA building envelope which occupies the airspace above the Murrays building.
Part 3: Development principles 1. Section 3.5: Heritage at 3.5.1 contains design principles. They are: Scale The scale and bulk of any new work is the most important issue to get right. In the case of infill work in a conservation area, the scale of the new building needs to be similar to those surrounding it. In the case of renovations and extensions, the new work should not overwhelm the original building, and would almost certainly need to be no larger in size than the original building. Siting In the case of infill work in a conservation area, the new building needs to have a similar orientation on the block and similar setbacks as those around. In the case of renovations and extensions, new work is best located to the rear or possibly the side of the building in order to minimise changes to the appearance of the building from the street. Architectural Form The basic architectural form of any new work needs to respect that which exists. Issues to consider include the pitch and form of the roof, and the size, proportion and location of windows and doors. Architectural Detailing Applicants need to be aware of the particular era and architectural style of the building or buildings, and make sure that any proposed changes respect this. For example it is not appropriate to mix Victorian features with say California Bungalow and overuse of historical architectural details on new work should be avoided. Materials and Finishes New materials need not always match the existing exactly but need to be compatible, with consideration being given to the colour, texture, and type of materials and finishes. Use The best use for a building is usually the one for which it was built. Where this is not possible, a use which requires minimal alterations will be more compatible. Original Fabric It is important to minimise alterations to the original fabric. Where possible, it is preferable to repair rather than replace individual elements such as windows and doors. The Aging Process The 'patina' of age on a building adds much to its character and significance. A worn step, for example, demonstrates the many years of feet crossing a threshold. Such features add to the uniqueness and character of the place and should be retained. Cutilage The majority of built heritage items in Parramatta are listed with their curtilage contained within the lot boundary containing the item. In some cases there is a reduced curtilage where the significance of the item and its interpretation is not dependant on having a large curtilage extending to the lot boundary. In such cases it is necessary to identify a curtilage that enables the heritage significance of the item to be retained. It is also possible that there will be an expanded curtilage for some items where the curtilage is greater than the property boundary. An expanded curtilage may be required to protect the landscape setting or visual catchment of an item. For example, the significance of some properties includes a visual link between the property itself and a river or topographical feature. Siting An infill building adjacent to a heritage item should not precisely imitate its neighbour but use recognisable tools such as massing, scale, setback and orientation, details and materials, roof forms and coursing lines to complement adjacent heritage items. 1. The following controls are relevant to the proceedings. 1. Existing Buildings C.4 Retain all buildings and structures that explain the history of the area and contribute to its significance. C.5 Avoid re-roofing the main body of the building except to match the original materials or except where re-roofed in corrugated iron.
Part 6: Parramatta City Centre 1. 6.3 Built form. 1. 6.3.1 Guiding principles: 1. … 2. P04 The design of the street wall responds, where relevant, to the existing heritage context. 3. … 4. P08 The gross floor area permissible under the applicable maximum FSR for each development lot may not be achievable when all planning, urban design and assessment considerations are taken into account. These may include, but are not limited to, matters such as street and tower setbacks, width of street frontage, the shape and size of the site, heritage curtilage, significant trees being retained, and significant archaeology on the site. 1. 6.3.3.1 Street setbacks Objectives: 01 Reinforce the spatial definition of streets and public spaces. 02 Emphasise the street as a distinct spatial entity and design the street wall frontage with an appropriate human scale and sense of enclosure for the street. Controls: C01: For all buildings that have an active frontage: a) Street setbacks and heights must comply with Figure 6.3.3.1.1, except where stated otherwise in the Special Areas Section of this Part. b) The street wall must be built to the street boundary a minimum of 14 metres and a maximum of 21 metres above the footpath level. c) The tower above the street wall must be set back a minimum of 6 metres from the street boundary wall. d) Only one step in the built form between the street wall and tower is permissible. e) Setbacks above the street wall on corner sites apply to both streets. f) The street wall on corner sites must incorporate a set back from the corner intersection for its full height, which may be splayed or curved, refer to Figure 6.3.3.1.2. g) Development applications must be accompanied by a streetscape analysis to determine the most appropriate street wall height within the permissible range. h) Refer to Sections 6.3.4 and 6.3.5 for controls relating to the design of the street wall and the ground floor. Figure 6.3.3.1.1: 1. 6.3.3.2 Building separation. Objectives: … O.02 Provide adequate privacy, access to light, air and outlook for the occupants of buildings, neighbouring properties and future buildings. O.03 Ensure towers are sufficiently separated so that tower buildings are seen in the round Controls: C.04 For mixed use buildings in the B4 Mixed Use zone that have an active ground floor street frontage: a) Building separation above street wall height must be a minimum of 18 metres. The separation distance must be apportioned equally between adjacent sites to determine side and rear boundary setbacks. Figure 6.3.3.2.1 1. 6.5 Special Areas. 1. Pursuant to Figure 6.5.1 the following special area provisions apply to the site: Civic Link Church Street Church view corridor 1. Applying Figure 6.5.2.1 the site is within Block 1 of the Civic Link Special area. The Civic Link Special area has the following relevant objectives: 6.5.2 Civic Link O.01 Establish Civic Link as a new linear public space, open to sky and with an avenue of significant trees along its length, linking Parramatta Square to the Parramatta Powerhouse and River foreshore. … O.13 Create a new square to the east of Leigh Memorial Church that opens views to the church, expands pedestrian space and amenity adjacent the Parramatta Light Rail stop and define a generous threshold to Parramatta Square from Macquarie Street. Controls C.05 Development within Block 1 must comply with the following specified envelope controls: b) Along the south side of Macquarie Street west of the Leigh Memorial Church, buildings must follow the street alignment and be built to the boundary. At 97 and 99 Macquarie Street, development must provide a 2 storey high, 3.5 metres wide service accessway on each property along the common boundary to create a combined 7 metres shared service access way across both properties. 1. The site is within the Church Street special area. The objectives of the Church Street special area are: O.01 Preserve the Church Street view corridor identified in Figure 6.5.4.1 to elevate the spatial significance of Church Street and views to St John's Cathedral, protecting the silhouette of the St John's Cathedral spires as seen against the sky from Church Street as well as the procession and views from St John's Cathedral northwards, up Church Street. O.02 Strengthen the framing of Church Street by providing a consistent street wall alignment and consistent building height limit as required by the Height of Buildings Map in Parramatta LEP 2011 and Figure 6.5.4.2. Allow views and vistas to reinforce Church Street's civic significance, defining and framing the view south from the River towards St John's Cathedral. O.03 Preserve the low rise setting of Centenary Square created by the existing 2 to 3 storey heritage items that flank it as shown in Figure 6.5.4.2 to protect the heritage relationship between these buildings and their unique framing of Centenary Square. O.04 Adaptively re-use heritage to foster the continuation of a fine grain character for Church Street. The street wall and ground floor design of development proposals must incorporate the active, fine grain subdivision pattern of Church Street, enabling sensitive urban infill that also compliments the remnant heritage along the street corridor. 1. Controls 6.5.4 Church Street C.01 Street wall heights and street setbacks must comply with Figure 6.5.4.3. The street wall must be built to the street boundary and are encouraged to be at or close to the 12 metres in height. Towers above the street wall must be set back in accordance with the Height of Buildings Map in the Parramatta LEP 2011. C.02 Tower development is prohibited within the Church Street view corridor, as indicated in Figure 6.5.4.1, to preserve views down Church Street and the silhouette of St John's Cathedral seen against the sky, reinforced by the Height of Buildings Map in Parramatta LEP 2011. 1. Applying Figure 6.5.4.1, the Indicative Church Street view corridor applies over the majority of the subject site. 1. 6.6 Heritage 1. The following principles apply to all development in the Parramatta City Centre: P.06 Heritage listed places are retained, conserved and enhanced. … P.09 New development situated alongside existing heritage places is accommodated in a way that is respectful and appropriate, and in a way that will enhance the heritage values of a place. P.10 The adaptation of heritage buildings is sensitively undertaken to avoid harm to their heritage significance while allowing buildings to meet changing needs. P.11 New development is carefully designed to protect and enhance the setting of heritage places and to acknowledge and strengthen the relationships between heritage places in the City Centre. 1. 6.6.3 Heritage relationships 2. Objectives O.01 Create appropriate relationships between new development and heritage items and conservation areas, in a way that retains and enhances the heritage value of a place and the Parramatta City Centre. … O.03 Ensure that a setting which contributes to the heritage values of a heritage item or conservation areas is retained. O.04 Ensure that heritage items retain their physical and visual relationship with the existing ground planes of the site and the immediate setting, as well as with the sky. O.05 Ensure that setbacks help to provide heritage items with a visual context that responds to the historic relationships of these places to their setting and allows heritage items to be visually prominent elements comfortably situated in relation to the spatial organisation of new development. Controls C.01 Existing positive relationships on the site of a heritage item and positive relationships between a heritage item and its broader context as well as its street, must be conserved. C.02 New development must not isolate a heritage item from its immediate surroundings where these surroundings contribute to its heritage value and setting, nor diminish the contribution of a heritage item to its context. C.03 New development must not physically overhang a heritage item or overhang the space that provides a positive visual curtilage for the item, nor have a visual perception of overhanging. The roof of a heritage item as well as the visual curtilage of the heritage item must be open to the sky. … C.17 New developments must seek to preserve historic setback patterns if this conserves and enhances the heritage values of the place. C.18 Setbacks for new development must be sufficient to provide a heritage item with a surrounding space of appropriate scale. The height and bulk of a proposed new building in relation to the scale of heritage items and conservation areas must be considered in determining appropriate setbacks. C.19 Setbacks must ensure views to and from a heritage item are protected, and enhanced where they have been lost.

Public submissions

The Concept DA was notified by the Respondent from 16 December 2022 to 11 January 2023. A total of three submissions were received. These objections are summarised below: National Trust of Australia - Parramatta Regional Branch 1. Refurbishment of the existing building and re-establishment of the facades is supported and should be undertaken in accordance with an approved Conservation Management Plan and supervised by a suitably qualified heritage architect. 2. Insufficient consideration has been given to the existing heritage item and its relationship with the proposed tower element. 3. The roof form is an integral part of the heritage item and should be retailed. 4. The lack of setback to the tower will have an unacceptable impact on the significance of the Murrays' building. 5. A substantial setback should be provided to the site's western frontage to better frame the square. 6. Insufficient detail has been provided about the proposed "articulation zone" between the roof of the heritage item and the proposed tower. Other objections 1. The proposal destroys the basic fabric of the Murrays' building and cantilevering the new development over the heritage item will ruin its appearance. 2. The nine story development will present an unacceptable encroachment of high rise buildings into the mediate area surrounding Centenary Square, will impact the streetscape and will add to overshadowing of Centenary Square. 3. The application has not been accompanied by a structural engineering report to support the proposed cantilevered structure. 4. There are inadequate setbacks behind the façade of the heritage item. 5. Concept development applications are usually prepared for large sites or where there are no envelope controls available, it is unclear why a concept is proposed for a relatively small site with height and FSR controls.
The Concept DA was renotified following the Applicant being granted leave to amend the application. No submissions were received.

Expert evidence

The applicant relied on expert evidence of Benjamin Craig (Planning), Michael Zanardo (Urban design) and Graham Brooks (Heritage).
The Respondent relied on expert evidence of Paul Sartor (Planning), Stephen Collier (Urban design) and Vanessa Holtham (Heritage).
The heritage experts prepared a joint report marked Exhibit 4, the planning and urban design experts prepared a joint report marked Exhibit 3. The experts were called for oral evidence.

Impact of the Concept DA on the heritage significance of Murrays building.

Both heritage experts refer in their evidence to the Conservation Management Plan (CMP) prepared as part of the amended Concept DA.
In terms of the impact of the Concept DA on the Murrays Building, Ms Holtham argues it is detrimental to its heritage significance in three key ways. 1. Firstly, she argues that the scale of the development proposed subsumes the heritage building and results in it being relegated to 'a plinth' on which the new building stands. She argues that the Applicant places too much reliance on the FSR and Height controls in LEP 2011 in determining the appropriate quantum of development for the site. She concludes that this approach undermines the heritage significance of the Murrays Building as an individual item and as part of the group of buildings which enclose Centenary Square. 2. Secondly, Ms Holtham argues that the Concept DA proposes insufficient conservation of the heritage fabric of the Murrays Building. In particular she does not support the partial removal of the roof fabric that is proposed in the Concept DA. 3. Thirdly, Ms Holtham that the development application provides insufficient assessment or analysis of the historical structural composition of the Murrays Building. It is unclear how much of the original building structure remains, or the impact of the Concept DA on that fabric (if it remains insitu).
Ms Holtham concludes that the detrimental impact of the Concept DA on the heritage significance on the Murrays Building warrants the refusal of the application.
In contrast Mr Brooks argues that the Concept DA reflects a greater consideration of the heritage item (the Murrays building), the adjacent heritage items and the setting of the site in Centenary Square. In support of this he points to the increased vertical separation between the heritage item and the soffit of the proposed tower and increased setbacks from the existing site boundaries. He contends that the proposed vertical addition will reinforce the traditional landmark qualities of the Murrays Building and its location at the north-east corner of Centenary Square.
I note that the urban design and planning experts agree that the Concept DA will not impact on the view corridor down Church Street to St John's Cathedral, or looking north from St John's Cathedral up Church Street.
Given the agreement detailed above, Mr Brooks argues that the intent of the control C02 at 6.5.2, prohibiting tower development, is met by the Concept DA.
Mr Brooks strongly disagrees with Ms Holtham's assessment of the detrimental impact of the Concept DA on the Murrays Building. In contrast to her assessment, Mr Brooks argues:

That development of a tower above a heritage item can be acceptable when informed (as in this case) by a thoroughly researched CMP, and respects the significance of the heritage item and its context.
The form and scale of the Concept DA responds to the planning controls in DCP 2011 and the solar access plane.
The Concept DA includes the retention of the hipped roof and substantial heritage fabric of the Murrays Building. Further, he concludes that the design of the Concept DA maintains the clarity of the existing building and the tower within the overall composition.
Ms Holtham's reference to the existing building as a 'plinth' is incorrect. He states: ' Mr Brooks utterly rejects the claim that the proposed Concept DA reduces the existing building to a 'plinth' when in reality it respectfully embraces the DCP requirement for new development in the City Centre to adopt the concept of a low scale street frontage to enliven the adjoining public domain. It creatively comprises an upper level form that responds to its broader context, thereby enhancing the ability of the historic building to sustain its own significance and long term contribution to the public space of the adjoining Bicentennial Square.' (Exhibit 4)
While the massing of the proposed additional volume is larger than the current building, a clear and generous space has been allowed between the upper (tower) and the lower form (the Murrays building) to ensure clarity between the new addition and the heritage fabric.
A key deliverable of the Concept DA will be a feasible opportunity to complete much needed upgrades to the Murrays building, retain its competitiveness and improve its contribution to Centenary Square.
That historic documentation of the Murrays building refers to many significant and widespread changes occurring to it. No historic demolition documentation is available that provides detail of changes in the location of stairs which served upper floor retail and later commercial uses. However, he argues it can be reasonably concluded that the important and original timber beams and columns survive along with portions of early timber flooring.
The zones defined in the Concept DA for new structure are in areas of lesser significance. The location and extent of supporting structural engineering intervention through the existing internal floors has been carefully and deliberately established to avoid important timber beams and columns.

Mr Brooks concludes that the Concept DA is supportive of the heritage significance of the Murrays building and facilitates its retention and conservation.

Impact of the Concept DA on the heritage significance of Centenary Square.

In her evidence Ms Holtham places significant weight on the low scale character of Bicentenary Square (Centenary Square) and that of the setting of the Murrays building. This emphasis is a key difference between the experts with Mr Brooks placing greater weight on the emerging higher density, taller, building forms. Ms Holtham relies, in part on the CMP which states: 'Centennial Square occupies one of the most historically important intersections in the centre of Parramatta, with the Church Street diagonal axis providing the primary road access into the Parramatta township from Sydney Road from as early as 1828, meeting Macquarie Street then turning due north to the river crossing at Lennox Bridge. The prominence of the intersection has been retained, despite significant changes to Church Street and elements located within the precinct. … The construction of high-scale development within the immediate precinct has significantly challenged the streetscape presence of the existing item'
Ms Holtham argues that this pattern of low scale buildings flanking Centenary Square is relevant to its heritage significance as it creates a high-quality pedestrian space which supports its significance. To the extent that the Concept DA is contrary to and not response to this scale it is inappropriate. Ms Holtham concludes that the bulk and scale of the proposed Concept DA will harm the heritage significance of Centenary Square by dominating it and reducing the prominence of its key buildings, in particular the Town Hall, St Johns Church and the Murrays Building.
Further, Ms Holtham emphasises the unique characteristics of the site itself which mean that the Concept DA's response is inappropriate. Firstly, the site is forward of an projects into Centenary Square meaning that the proposed setback of new development (in this case the Building Envelope) is a key determinant of its impact on Centenary Square. Secondly, any new tower proposed on the site will be viewed in the round and finally, by virtue of its location adjacent the Town Hall, new work should be designed to maintain the prominence of the Town Hall in Centenary Square. Ms Holtham argues that the Concept DA fails to respond to these characteristics of the site.
Ms Holtham emphasises that the site, and the Murrays Building, form part of the Centenary Square which is characterised by low-scale, two to three storey, development. In contrast to this character the Concept DA seeks to reduce the required setback and place the building envelope at a setback of 3.5m which is insufficient to create a visual separation of this bulk from Centenary Square or the Murrays Building.
In relation to the impact of the Concept DA on the significance of the Town Hall Ms Holtham concludes that: The proposal will result in a severe diminution of the presence of the Town Hall. The construction of a building of this scale abutting the heritage curtilage of the Town Hall, which deserves some gravitas as the key civic building, is unacceptable.
Ms Holtham concludes that the Concept DA seeks to radically change the Murrays Building as an individual heritage item and as a defining element of Centenary Square. She argues this radical change is detrimental to the significance of both heritage items.
In terms of the interpretation of the relevant development controls that apply to the site in DCP 2011, Ms Holtham argues that when read together it could be reasonably concluded that like Parramatta Town Hall, St John's Anglican Church and the Roxy Theatre, the development of the site is not envisaged by the controls. She draws attention to the fact that the site is located within the Church Street View corridor, as mapped at Figure 6.5.4.1, and that control C 02 in 6.5.2 Civic Link prohibits tower development in that corridor.
In response to the evidence of Mr Brooks, Ms Holtham argues that whilst the wider context of the site contains numerous tall buildings including the adjoining 85 Macquarie Street, 4 Parramatta Square and 6-8 Parramatta Square they form a backdrop to Centenary Square and a distinguishable from the subject site. The characteristics that distinguish the subject site include that it contains a heritage item (Murrays Building), it forms part of, and fronts Centenary Square as opposed to Macquarie Street and that the form of building on the subject site is seen in the round rather than forming part of a row of buildings.
In contrast to Ms Holtham, Mr Brooks argues that the Concept DA is an acceptable heritage response to the site, the significance of Centenary Square and the planning intent of the controls in DCP 2011. He argues that the relevant consent authorities, by the form of the controls and the approvals granted, have concluded that high and very high-rise development is an acceptable visual and large scale presence with Centenary Square and more broadly in the growing City of Parramatta. He emphasises that the site is adjoining or proximate to large developments at 85 Macquarie Street, 48-50 Macquarie Street, 6-8 Parramatta Square, the airspace above the Metro station and 5-7 Parramatta Square. Mr Brooks concludes that the design of the Concept DA will sit comfortably within the skyline when viewed from Centenary Square and the broader visual catchment of the site.
To the extent that the lower scale of the enclosing buildings are key to the significance of Centenary Square, Mr Brooks argues that the Concept DA is responsive to the characteristic by retaining the three storey street wall scale through the retention of the Murrays building. He disagrees with the emphasis of Ms Holtham on the low scale of buildings around Centenary Square noting that this character is not particularised in its statement of significance.
Further Mr Brooks argues that the Concept DA provides opportunities to revitalise the Murrays building, rejuvenating the ground floor shop fronts and adding vitality to Centenary Square.

Impact of the Concept DA on the heritage significance of the heritage item

With the benefit of the site view, a review of the architectural plans and the montages, and the expert evidence I accept and prefer the opinion of Ms Holtham that the building envelope proposed in the Concept DA will overwhelm the Murrays building and diminish its significance as a heritage item. The landmark quality of the Murrays building is identified in the statement of significance: it is 'An important element of the buildings around Bicentennial Square at the heart of Parramatta'. I accept and adopt the evidence and reasoning of Ms Holtham at [40] that the scale, form and siting of the building envelope proposed in the Concept DA will detrimentally impact on the identified aesthetic and historical significance of the Murrays building.
In my view Mr Brooks places too great a weight on the high rise character that is emerging as a background to the existing heritage grouping that is the subject site and Centenary Square. The subject site is distinct from that character. So much is clear from the controls in DCP 2011, in particular the special area controls in 6.5.4 'Church Street'. Figure 6.5.1 in DCP 2011 nominates the Church Street controls as applying to the subject site. This is reinforced by the lack of annotation on the site in any of the figures in the area control for the 'City Link' special area. The intent of the Church Street character area is to retain its distinct character, that being its fine grain, human scale, and active pedestrian character. Relevantly a key objective of the controls is to Preserve the low rise setting of Centenary Square created by the existing 2 to 3 storey heritage items that flank it. The controls seek to do so to protect the heritage relationship between these buildings and their unique framing of Centenary Square. When the statement of significance and the planning controls are considered, it is clear that the Murrays building is an element that forms the edge of Centenary Square - with a low rise character that is distinct from the tall, higher density buildings that form its backdrop.
I am satisfied on the evidence that there is a detrimental impact on the nominated aesthetic and historical significance that arises from the Concept DA and that that impact is of such import that it adversely affects the significance of the heritage item (the Murrays building). In reaching this conclusion I have weighed the positive, conservation aspects of the Concept DA and the benefit that would arise from the revitalisation and redevelopment of the site. However, in my assessment the overall detrimental impact on heritage significance arises from: 1. The scale and bulk of the proposed building envelope in the Concept DA subsumes the heritage building diminishing its landmark qualities (historical significance) and derogating its aesthetic significance. 2. The building envelope in the Concept DA provides insufficient setback to the two frontages of the site to Centenary Square. As a result, the building envelope is a dominant and intrusive form when viewed from Centenary Square and in the context of the Murrays building. 3. The siting of the tower form proposed in the building envelope results in an incongruous architectural relationship between the Murrays building that I am not persuaded will be ameliorated by a future development application that finesses, articulates and provides an architectural design within the building envelope.
I am satisfied by all of the evidence before me that the impacts arising from the Concept DA would be detrimental to the identified heritage significance of the Murrays building pursuant to s 5.10(4) of LEP 2011.

Impact of the Concept DA on the heritage significance of Centenary Square

Consistent with the preceding findings I also find that the Concept DA will have a detrimental impact on the heritage significance of Centenary Square.
I accept and adopt the evidence of Ms Holtham at [47-54] that the low scale character of the buildings which encompass Centenary Square are part of that significance and that the Concept DA has a detrimental impact on that significance.
As detailed at [59] I disagree with the weight given by Mr Brooks on the emerging high rise scale of Parramatta. The subject site forms part of the edge of Centenary Square and the dominant contribution of the subject site to the streetscape must be supportive of its heritage significance. The limited setback proposed on the site frontages to Centenary Square in the Concept DA result in a building envelope that is a dominant and intrusive. The new development proposed in the Concept DA will compete visually with the key heritage items in the square (including Parramatta Town Hall) due to the proposed height, bulk and siting of it. The 3.5m setback proposed in the Concept DA is insufficient to provide visual separation of a tower form from Centenary Square. Appropriate visual separation, and a recessive form, is necessary to support the key significance of Centenary Square which is its historic fine grain, human scale, and active pedestrian character.
I disagree with Mr Brooks that the proposed setback of the building envelope is sufficient to maintain the prominence in Centenary Square of the three-storey street wall of the existing Murrays Building. The siting of the proposed building envelope, its scale and height would have the effect of overwhelming the 2-3 storey character of the facades that enclose Centenary Square and mark its human scaled, pedestrian character.
The effect of s 4.24(2) of the EPA Act is that while a consent on a Concept DA for a site remains in force, the determination of any other application for the site cannot be inconsistent with the Concept DA. In the current proceedings the Concept DA seeks, in part, the creation of a three-dimensional building envelope. A key component of that envelope is it's siting relevant to the site boundaries and the Murrays Building. The nominated setbacks are a key parameter with which a future development application would need to be consistent: Uniting Church v Parramatta at [44]. I am not persuaded the detrimental impact on the heritage cognisance of Centenary Square that arises from the siting of the building envelope can be ameliorated by a future development application that finesses, articulates and provides an architectural design within the building envelope.
I am satisfied by all of the evidence before me that the impacts arising from the Concept DA would be detrimental to the identified heritage significance of Centenary Square pursuant to s 5.10(4) of LEP 2011.

Conclusion

I have considered the effect of the proposed development, particularly the extent of the proposed demolition of heritage fabric and the form of the proposed building envelope, on the heritage significance of the heritage item, the Murrays building. I have determined for the reasons given in the judgment that the Concept DA will have an unacceptable detrimental impact on the heritage significance of the Murray building. The respondent's contention that the Concept DA warrants refusal due to the unacceptable impact on the heritage item on the site is made out by the evidence before me.
Concurrently I am satisfied that the Concept DA will have a detrimental impact on the heritage significant of Centenary Square. For the reasons given in the judgment I accept and prefer the opinion and evidence of Ms Holtham and I conclude that the respondent's contention that the Concept DA warrants refusal due to the unacceptable impact on the heritage significance of Centenary Square is made out by the evidence.
While a future development application may add finesse, articulation and architectural design to the building envelope proposed in Concept DA, in my view it cannot ameliorate the fundamental impacts that arise from the bulk, scale and siting of the proposed envelope sought in the Concept DA. It is these three elements which detrimentally impact the significance of the Murrays building and Centenary Square.
Further, I am not satisfied that the concept proposal achieves the objects of the B4 Mixed use zone of LEP 2011, to protect and enhance the unique qualities and character of special areas within the Parramatta City Centre, nor that the concept proposal achieves the objects of the heritage conservation clause of LEP 2011, at cl 5.10(1), to conserve the heritage significance of heritage items. Further, I am not satisfied that the concept proposal has adequately addressed the heritage constraints of this site, pursuant to cl 7.11(2)(d)(iii) of LEP 2011.
In evaluating the detrimental impact arising from the Concept DA in the framework of s 4.15, as required by s 4.22(5) of the EPA Act, I am satisfied the detrimental impacts on heritage significance of both the Murrays building and Centenary Square are sufficient to warrant the refusal of the Concept DA.
Given my determinative findings in relation to the fundamental issue of the impact of the Concept DA on heritage significance it is not necessary to determine the Council's remaining contentions.

Orders

The Court orders that: 1. The appeal is dismissed 2. The concept development application DA/960/2022 for partial demolition and alterations to the heritage listed building (Murrays Building) and an envelope of a new building (up to RL 67.100) on the site above the heritage building to be used for the purpose of commercial premises at 188 Church Street Parramatta is determined by way of refusal. 3. Exhibits are returned with the exception of Exhibit 1, and F

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Judgment (15 paragraphs)

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Cases Cited (1)