K Capital Pty Ltd v City of Parramatta Council

Land and Environment Court (NSW)|2019-06-24

Background and the proposal

The Council submits that a Permanent Conservation Order was placed on the Roxy Theatre in 1999 and the current owner purchased the site in 2002.
On 7 June 2018, the Approvals Committee of the Office of Environment and Heritage (OEH) did not resolve to approve or refuse the application, but resolved to advise the Council of its recommendations. These recommendations were provided to the Council on 14 June, 2018 (Ex 4, ff 409-411). The Approvals Committee of the OEH advised the Council that no General Terms of Approval (GTAs) were to be granted by the Heritage Council; that the Heritage Council strongly supported a reactivation of the Roxy Theatre which protects and complements its State heritage significance and did not support any demolition as part of a concept proposal, nor the envelope for a 33 storey tower (Ex 4, f 409).
The Council refused the development application on 26 September, 2018.
The concept proposal is for the retention and refurbishment of part of the Roxy Theatre; the demolition of the rear portion of the Roxy Theatre behind the existing stage curtain; the excavation of the rear of the site to a depth of approximately 7.5m for the provision of a basement and loading dock; and a commercial tower above the Roxy Theatre to a height of RL122.37, which is approximately 112m above existing ground level and represents 29 storeys.
An envelope resulting from the bonus 1.5:1 floor space ratio (FSR) for design excellence following a competitive design process, pursuant to cl 7.10(8) of LEP 2011, is indicated on the plans (Ex J) to a height of RL136.77 and 33 storeys.
No provision is made for car parking on the site.
The fabric of the Roxy Theatre proposed to be retained and refurbished includes the symmetrical open forecourt above street level and the stuccoed arched loggias fronting single storey wings on either side of the forecourt; the theatre's arched front entrance surmounted by the stepped parapet and ornate tower and illuminated sign, 'Roxy'; the foyer or vestibule, mezzanine level and vaulted ceiling; and the dress circle including the stucco decoration north of and including the proscenium arch (which is an encased beam and decorative stucco plaster). The roof, including the existing timber structure of the roof, is to be retained over the dress circle to the extent of the "line of cut" identified by the applicant, behind the proscenium arch (Section AA Drawing No 1410-108 Ex J).

Planning framework

The concept proposal is integrated development within the meaning of s 4.46 of the EPA Act because the development of the heritage listed building requires approval from the Heritage Council pursuant to s 57(1) of the Heritage Act 1977 (Heritage Act), as the site is listed as an item of heritage significance on the NSW State Heritage Register (SHR) 00711. The SHR statement of significance for the Roxy Theatre is as follows: "The Roxy Theatre has high cultural significance as a good and relatively intact representative example of the 'Picture Palaces' of the interwar period, its overall form and surviving original fitout and fabric displaying the major attributes of this building type. More particularly it is an excellent example of 'Interwar Spanish Mission' style, displaying features typical of this style but also with a notable individuality and quality of architectural design. The theatre also provides evidence of the changing nature of film theatres and theatre going since the 1920s. Its architectural character and function have been influenced by both national and international developments in film technology and theatre visitation since the adventure of the 'Talkies' - ranging from large single auditorium regularly seating nearly 2000 to the present multi-theatre configuration. The size and architectural character of the building also reflect American cultural influences in the interwar period and the profitability of 'Picture Palaces'. The location and origins of the theatre are closely associated with the growth of Sydney's suburbs in the interwar years and Parramatta in particular. It is an attractive and distinctive local landmark and particularly valued by the regular theatre-goers of its early years and those interested in movie and architectural history (its retention in the 1970s being in large measure due to intervention by such groups). (Somerville 1997) Professional, trade and manufacturing practice - example of the work of notable architect. Evidence of social and cultural life."
The objects of the Heritage Act at s 3 are: (a) to promote an understanding of the State's heritage, (b) to encourage the conservation of the State's heritage, (c) to provide for the identification and registration of items of State heritage significance, (d) to provide for the interim protection of items of State heritage significance, (e) to encourage the adaptive reuse of items of State heritage significance, (f) to constitute the Heritage Council of New South Wales and confer on it functions relating to the State's heritage, (g) to assist owners with the conservation of items of State heritage significance.
Section 4A of the Heritage Act defines 'State heritage significance' as follows: (1) In this Act: State heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to the State in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. (2) An item can be both of State heritage significance and local heritage significance. An item that is of local heritage significance may or may not be of State heritage significance. (3) The Heritage Council must notify the Minister of the proposed criteria for the making of decisions as to whether or not an item is of State heritage significance and of any proposed change to the criteria. If the Minister approves the criteria or any proposed change, the Minister is to cause notice of the criteria or any change to be published in the Gazette. (4) The Heritage Council must use only criteria published in the Gazette under this section for the making of decisions as to whether or not an item is of State heritage significance.
Section 38A of the Heritage Act is in the following terms in relation to the provision of a CMP: 38A Conservation management plans for State heritage items (1) The Heritage Council may, for the purposes of this Act, endorse a conservation management plan for an item listed on the State Heritage Register. (2) The regulations may make provision for or with respect to conservation management plans for items listed on the State Heritage Register. (3) In this section: conservation management plan means a document that: (a) identifies the State heritage significance of an item, and (b) sets out policies and strategies for the retention of that significance, and (c) is prepared in accordance with the guidelines for the preparation of conservation management plans (if any) publicly issued from time to time by the Heritage Council.
Under s 62 of the Heritage Act, the consent authority in determining an application for approval, shall take into consideration the following matters: 62 Matters for consideration In determining an application for approval in respect of an item or land, the approval body shall take into consideration: (a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage, (b) the representations, if any, made with respect to that application under section 61 (3), (c) such matters relating to the conservation of that item or land as to it seem relevant, and (c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and (d) such other matters as to it seem relevant.
The site is zoned B3 Commercial Core pursuant to LEP 2011. Commercial premises, Entertainment facilities, Function centres and Office premises are nominate uses permitted with consent in the B3 zone. The relevant objectives of the B3 zone, to which regard must be had, are: • To strengthen the role of the Parramatta City Centre as the regional business, retail and cultural centre, and as a primary retail centre in the Greater Metropolitan Region. • To create opportunities to improve the public domain and pedestrian links throughout the Parramatta City Centre. • To provide for the retention and creation of view corridors. • To protect and enhance the unique qualities and character of special areas and heritage values within the Parramatta City Centre. • To protect and encourage accessible city blocks by providing active street frontages, and a network of pedestrian-friendly streets, lanes and arcades.
Demolition requires development consent pursuant to cll 2.7 and 5.10(2)(a) of LEP 2011.
The site is listed as a heritage item in Sch 5 of LEP 2011, item 711 "Roxy Cinema". The relevant objectives off the heritage conservation clause 5.10(1) of LEP 2011 are: (a) to conserve the environmental heritage of Parramatta, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
The consent authority must consider the effect of the proposed development on the heritage significance of the item before granting consent, at 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 FSR for the site is 10:1, as the site area is greater than 1,800 square metres, at cl 7.2 of LEP 2011.
Car parking is not required to be provided, at cl 7.3 of LEP 2011.
There is no relevant numerical height limit for the site, but the height of a proposal on this site is limited by the piercing of the conceptual plane that would result in a shadow being cast over the Lancer Barracks. Clause 7.4 of LEP 2011, Sun access, has an objective to protect public open space in Parramatta Square, the Lancer Barracks and Jubilee Park from overshadowing. The consent authority must not grant consent to development on any land if the consent authority is satisfied that the development will result in any additional overshadowing, between 12 noon and 2pm, on Parramatta Square, as shown on the Sun Access Protection Map in LEP 2011. If the consent authority considers that the proposed development is likely to cause excessive overshadowing of the Lancer Barracks or Jubilee Park, it must take into consideration the relevant sun access plane controls specified for that land in s 4.3.3 of the Parramatta Development Control Plan (DCP) in determining the application.
Clause 7.10 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 7.10(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.
Clause 7.10(5) of LEP 2011 is in the following terms: (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than 55 metres, (b) development on a site greater than 1,000 square metres and up to 1,800 square metres seeking to achieve the maximum floor space ratio identified on the Floor Space Ratio Map, where amalgamation with adjoining sites is not physically possible, (c) development having a capital value of more than $10,000,000 on a "Key site" identified on the Key Sites Map, (d) development having a capital value of more than $100,000,000 on any other site, (e) development for which the applicant has chosen such a process.
DCP 2011 applies to all land within the Parramatta Local Government Area, at cl 1.3. The heritage provisions of DCP 2011 are in section 3.5.
There is a draft amendment to s 4.3 Strategic Precincts of DCP 2011 which relates to the Civic Link Precinct at 4.3.3.7 and which has been exhibited.

Public submissions

Three objectors gave evidence at the commencement of the hearing onsite. One objector represented the National Trust Australia (NSW) and another represented The Roxy Theatre Action Group. The objectors' concerns can be summarised as follows:

The Roxy Theatre is listed on the State Heritage Register and on four other major heritage lists, including the National Trust. These listings are evidence of the significance and value placed on the Roxy Theatre across NSW and Australia. The purpose of listings is to protect places of heritage significance. The Roxy Theatre is unique in being listed on five major heritage registers.
The Roxy Theatre is an outstanding and rich example of Spanish Revival style of architecture, matched only by the Plaza Theatre in Sydney, of which only the façade remains. The Spanish style arcaded open air forecourt is unique in Australia. Ross Thorne identified the Roxy Theatre as a rare Australian example of the picture palace style of California in 1920s.
Most of the Roxy Theatre's original architecture remains and it is possible to restore the theatre.
The demolition of a significant proportion of the Roxy Theatre is not acceptable because it is not sympathetic to the design of the theatre, nor does it achieve the adaptive re-use of the theatre. The existing 587 seat cinema in the former dress circle proposed to be retained could not operate again as a stand-alone cinema. The proposal will destroy the Roxy Theatre.
Sydney has demolished many of its heritage theatres. Melbourne preserves and restores many theatres and they are thriving.
The Capitol Theatre was successfully restored in 1995 with the addition of a large stage house at the rear and it has become one of the most spectacularly successful live theatres in the country. Its renaissance has inspired a revival of the entire Haymarket area surrounding it. The Roxy Theatre Action Group has been formed to strive for the same outcome. Nothing should be done to jeopardise the original 2000 seat configuration of the theatre, including the stalls, dress circle and foyer and the Council owned space at the rear of the theatre should be used for the construction of an adequate stage house.

Expert evidence

The applicant relied on the expert evidence of Professor Richard Mackay and Mr John Oultram (heritage), Mr Andrew Darroch (planning), David Haseler (urban design), Mr Tony Rofail (wind engineering), Mr Dennis Bunt (structural engineering) and Mr Rhys Mikhail (hydraulic engineering).
The Council relied on the expert evidence of Mr Tasman Storey (heritage), Mr Stuart McDonald (planning), Ms Gabrielle Morrish (urban design), Dr Peter Georgiou (wind engineering), Mr Richard Green (structural engineering) and Mr Paul Clark (hydraulic engineering).
The Heritage Council relied on the expert evidence of Mr David Logan (heritage) and Mr Alex Been (structural engineering).
The heritage experts prepared a joint report marked as Ex 6, the planning and urban design experts prepared a joint report marked as Ex 7 and the wind engineers prepared a joint report marked as Ex 8 in the proceedings.
The structural engineers prepared a joint report marked as Exs 9 and 10 and the hydraulic engineers prepared a joint report marked as Ex 11 in the proceedings. These experts were not required to give oral evidence.

Impact of the concept proposal on the heritage significance of the Roxy Theatre

The heritage experts agreed that the proposal to demolish the rear portion of the Roxy Theatre, indicated on the plans as being the rear 20.69m of the site and the portion of the Roxy Theatre behind the proscenium arch supported by an existing beam (Section AA Dwg 1410-108 issue C of Ex J, the "line of cut") and the former stalls on the ground floor, would have "substantial adverse heritage impacts" on the Roxy Theatre.
The heritage experts agreed that the Roxy Theatre is a rare example of its building typology.
Professor Mackay justified the substantial adverse impact on the heritage significance of the Roxy Theatre on the basis that some level of new economic activity is required on the site to provide funds for the restoration of the fabric of the theatre to be retained. According to Professor Mackay, the proposed demolition has been confined to the rear of the site in order to preserve the relatively more intact and more important parts of the Roxy Theatre, particularly the dress circle, as it is a largely intact space and it relates to the movie theatre of the 1930s. In his view, there is an inherent logic in putting the necessary intervention on the southern, less significant, part of the site. The level of intervention and impact is warranted in his opinion, in order to enable a feasible, long-term conservation outcome.
According to Professor Mackay, the sustainable conservation of the Roxy Theatre requires an additional development in order to be viable. The costs to retain, conserve and adapt the auditorium for ongoing use, thereby providing public access to one of the most significant parts of the Roxy Theatre, are greater than the value of asset that would be created. There cannot be a reasonable expectation that conservation would occur on that economic basis. In practical terms this means that additional development opportunities, in the form of new built elements, need to be pursued. The logical place for this to occur is at the southern part of the property which has relatively lesser heritage value and consequently relatively greater tolerance for change.
Professor Mackay accepted that the demolition of the fabric of the Roxy Theatre at the rear of the site will have a negative impact on the heritage significance of the theatre, but it is in his view inevitable that some form of significant intervention has to be made to this site in order to retain and conserve the relatively more important and intact fabric of the Roxy Theatre. In his opinion, there is no other way to deal with this site without significant intervention, because the driver is the economic viability of the proposal.
In Professor Mackay's opinion, the success of the adaptive reuse of the building is dependent on an acceptable transition between the retained part of the Roxy Theatre and the new building, the auditorium being viable and the provision of a cultural centre on levels 4 and 5, within the "transition zone" of the concept proposal.
Professor Mackay confirmed that the "line of cut" would retain parts of moulded proscenium arch, including the entirety of the beam and mouldings and everything north of the curtain (excluding the stalls).
Mr Storey was opposed to the removal of the rear section of the Roxy Theatre, because there is no evidence that the rear portion of the theatre is less significant than other parts of the building. He questioned why the proscenium arch has been determined as the "line of cut" for the concept proposal. He noted that the whole of the original stage is intact and although the rear of the building externally may be bland and banal, this does not mean that it has no significance. In Mr Storey's opinion, the beams and trusses of the roof structure of the building are remarkable. He noted that the Roxy Theatre falls short of the Californian Picture Palaces theatre style. In Mr Storey's opinion, the volume of the theatre is an important component of the Roxy Theatre's heritage significance and the functional quality of the building is also important. He observed that the economic analysis only looked at this proposal and that the Roxy Theatre is a 'white elephant' to its current owner, but a lot could change in the future. Approval of the concept proposal would preclude a more sympathetic future option for the use or adaptive reuse of the building.
According to Mr Logan, the concept proposal removes one third of the form of the existing building, which will have a major impact on the identified heritage significance of the Roxy Theatre. The statement of significance for the Roxy Theatre importantly describes it as an "intact example" and it is the intact form of the original fabric that constitutes an important part of its significance.
Mr Logan noted that the concept proposal does not include any information regarding the proposed conservation works, such as a schedule of works, and as a consequence it is uncertain as to what will be removed and what will be retained. In his view, the "line of cut" will remove original components of the stucco plaster decoration. Mr Logan disputed that the proposal is described as "conservation" when it does not restore the space or volume of the theatre. He noted that although the original space has been visually separated from remainder of theatre since 1970s by the insertion of the floor between the dress circle and the stalls below, the amount of intact fabric remaining on the site presents a wonderful opportunity to restore the Roxy Theatre. In his view, the concept proposal is inappropriate for a State listed heritage item and it cannot be described as the adaptive reuse of the Roxy Theatre.

The tower building envelope of the concept proposal and its impact on the heritage significance and setting of the Roxy Theatre

According to Professor Mackay, some form of new development is contemplated in the planning controls for Parramatta City Centre and any notion that the historic setting of the Roxy Theatre can be retained is fanciful, because the Roxy Theatre is going to be viewed in the context of intense development as a result of the current planning regime.
In Mr Storey's opinion, the amended concept proposal would have a detrimental heritage impact on the Roxy Theatre, because the concept proposal overpowers the Roxy Theatre due to the tower building envelope's proximity to the principal façade of the Roxy Theatre. According to Mr Storey, the applicant's approach reflected in the FJMT indicative design of making this development a "star" building in Parramatta is the wrong approach and any future building on the site should be modest.
In Mr Logan's opinion, the amended concept proposal for the tower is inappropriate, because 60% of the building's mass is within 5m of principal façade of the Roxy Theatre (compared to 7m in the original proposal) and 40% of the building's mass is setback 10m from the principal façade of the Roxy Theatre, which is insufficient to mitigate the scale and dominating effect of the tower. The proposal will affect visual setting of the Roxy Theatre, when viewed from the arc of views along George St and detract from its significance as a landmark building in the Parramatta City Centre. The proposed tower envelope compromises the streetscape character of the locality. The separation of the transition zone by only 500mm above the ridge of the existing roof results in a tower envelope that is partially entombing the Roxy Theatre. The visual envelope is determined by the columns supporting the tower and it is difficult to assess the impact of the spacing or size or the columns as the proposal only gives a structural zone. The FJMT indicative proposal is an inappropriate building in this location as it impacts on the setting of the Roxy Theatre and results in the loss of original fabric and of important internal space within the Roxy Theatre.

The adequacy of the CMP and whether a Heritage Council endorsed CMP should be required as part of the application

The CMP was not prepared by any of the heritage experts; it was prepared by a firm not related to any of the experts retained in these proceedings.
The heritage experts agreed that the CMP submitted with the application is inadequate, because it conflated the assessment of heritage significance of the Roxy Theatre and the Statement of Heritage Impact for the concept proposal, by addressing a single development outcome only without any consideration of possible alternative uses/outcomes. The CMP has not been endorsed by the Heritage Council.
The heritage experts agreed that further assessment of the internal fabric and spaces is required, that the significance of the structure has not been assessed, that the significance ranking diagrams are insufficiently detailed to enable detailed scoping of conservation works, and that there is not a comparative assessment of the building against other surviving examples of Spanish Mission styled picture theatres.
The experts disagreed on whether the inadequacies of the CMP could be rectified by the imposition of a condition of consent requiring a CMP at the next stage able to be endorsed by the Heritage Council.
According to Professor Mackay, the CMP incorporates and relies on the NSW State Heritage Register citation and uses the NSW heritage assessment criteria to identify attributes that contribute to the heritage values of the Roxy Theatre and provides policies that relate to those values. The lack of comparative analysis and assessment is not material to the current application, because the Roxy Theatre is already recognised as rare and is heritage listed. In his view, the CMP does provide sufficient information for the heritage issues and impact of the application to be understood and evaluated. The need for more detailed fabric assessment and detailed rankings can and should be addressed to inform the design excellence process that will follow and this level of detail is not essential to a concept approval.
According to Mr Oultram, the CMP should be expanded to include a comparative analysis of picture theatres, a detailed fabric survey identifying and ranking fabric, clear and more detailed ranking diagrams, discussion of alterative options for adaptive reuse including their relative impact and comprehensive conservation guidelines for the place.
According to Mr Storey, the CMP takes the wrong approach by starting with the proposal and it should properly examine the whole of the building. In his option, the application should be rejected without a Heritage Council endorsed CMP because the CMP is a principal key document which guides parameters for development for a State heritage listed item in any Stage 1 concept development application.
According to Mr Logan, the CMP has failed to adequately assess and rank the significance of the fabric of the Roxy Theatre, both exterior and interior fabric. The CMP fails to identify the stage area behind the existing screen as significant as part of the original auditorium. In his view, the CMP wrongly identifies the significance ranking of the ceiling over the stage area when compared to the ranking of the ceiling over the auditorium, as the ceiling over the stage should only be slightly less in rank when compared to the "exceptional" rank given to the auditorium ceiling, whereas the CMP has identified the stage area with a rank of "little" or "intrusive". In Mr Logan's opinion, the CMP does not follow the Burra Charter methodology as it fails to consider alternatives for the use or development of the site that would have lesser heritage impacts. Other possible uses for the Roxy Theatre, such as the reinstatement of the use of the theatre, or live entertainment venue, a nightclub or a community hall, would potentially have less impact and have not been considered by the CMP.
Mr Storey and Mr Logan agreed that the application should be accompanied by a CMP endorsed by the Heritage Council, which examines a range of possible future uses and their impact on the heritage significance of the Roxy Theatre.

Permissibility

The Council submits that pursuant to cl 7.10(5) of LEP 2011, development consent must not be granted because the clause applies to the proposal at (a) as the proposal is for a development in respect of a building that will have a height above ground level greater than 55m and a competitive design process has not been held in relation to the proposed development.
The applicant submits that this question was explored by Preston CJ in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 (Uniting Church) [57], but not determined as it was not relevant to his Honour's determination of whether other provisions of cl 7.10 did apply to the concept proposal the subject of that appeal. The applicant submits that there is a clear distinction in the phraseology between subcll (2) and (5) of cl 7.10 of LEP 2011 and furthermore it would be an absurd outcome to require a proponent to conduct a design competition for a building envelope for the purpose of a stage 1 concept development application under Div4.4 of the EPA Act.

Impact of the concept proposal on the heritage significance of the Roxy Theatre and the deficiencies of the CMP

The Heritage Council submits that the proposal wrongly focuses on the FSR development standard of the site and ignores the provisions of the heritage conservation clause in LEP 2011. The starting point should be the heritage significance of the item. What is proposed is not the conservation of the item.
The Heritage Council submits that the deficiencies of the CMP, including that the rarity of the item is not addressed, cannot be addressed by imposing a condition of consent for a revised CMP, because the opportunity to retain the item will be lost if the concept proposal is approved.
The respondents submit that there is no commitment in the development application for the conservation and restoration of the Roxy Theatre.
The Council submits that the CMP is a self-serving document, framed around this application to maximise the development within the building envelope permitted by the FSR development standard. There are more than the two options muted for this site of mothballing the existing building or developing the site as proposed by the application.
The applicant concedes that the CMP is deficient in the manner set out in the heritage experts' joint report.
The applicant submits that the proposal strikes a balance between the heritage impact of the proposal and making the building available for the use of the community. The fundamental issue in this matter is whether the impact on the heritage significance of the Roxy Theatre is acceptable in all the circumstances of the case.
The applicant submits that to do nothing to the existing building also has an impact and this application represents a long-considered opportunity to revitalise, conserve and restore the most significant parts of the Roxy Theatre. The rear portion of the Roxy Theatre has a lesser level of significance than the main auditorium and therefore the demolition of the rear of the theatre is acceptable. The restoration of the Roxy Theatre has to be privately funded and the restoration of the auditorium is an expensive project.
The applicant submits that the site dimensions are a significant constraint to the development of the site as the Roxy Theatre occupies the whole site.

Impact of the proposed demolition on the heritage significance of the heritage item

The fundamental first issue to determine is the effect of the extent of the demolition of the Roxy Theatre proposed by the concept proposal on its identified heritage significance.
Professor Mackay's persuasive argument is predicated on the pragmatic assumption that it is necessary to have development on this site to fund the retention and conservation of the more significant part of the Roxy Theatre. I understand and am sympathetic to the commercial reality of making a worthwhile conservation project viable.
I appreciate that the economic viability of this proposal is the basis on which the applicant proposes the development and that there has been a genuine attempt to achieve the development potential of the site given by the development standards that apply across this precinct with a seductive and dramatic proposal illustrated by the FJMT indicative design, while keeping and restoring the cherished iconic, decorative and intact elements of the Roxy Theatre. The applicant's case is that the removal of the fabric of the southern portion of the Roxy Theatre is the means to achieving the outcome of restoring and adapting the significant fabric of the building.
The concept proposal has not, however, struck a reasonable balance between developing the site and retaining and conserving the heritage item, because the extent of demolition proposed by the concept proposal will destroy the theatre auditorium space of the Roxy Theatre and in doing so, will have an unacceptable impact on its identified heritage significance as a good and relatively intact representative example of the 'Picture Palaces' of the interwar period, and on its overall form and surviving original fitout and fabric which display the major attributes of this building type.
I do not accept the applicant's description of the "dress circle" as the "auditorium". The proposal does not ensure the retention and conservation of the former theatre space. It proposes the continued isolation of the dress circle as a separate room and calls the dress circle the "auditorium". The former theatre space of the Roxy Theatre is made up of the dress circle, the stalls and the proscenium.
The intactness of the volume of the former theatre space is an essential element of the heritage significance of the Roxy Theatre and the integrity of the overall form of the theatre building is one of the bases for its listing as an item of State heritage significance, evidenced in the statement of significance. The current division of the dress circle and the stalls by the floor inserted between the two spaces during the 1970s, as well as the removal of some of the stucco plaster decoration in the stalls and stage area, has diminished the intactness of the interior of the theatre, but it has not extinguished the potential for the theatre space to be recovered. The unsympathetic 1970s alterations to the building do not justify the permanent loss of the theatre space.
The proposed containment of the dress circle as a room and preservation of its decorative stucco plaster decoration would not retain the heritage significance of the Roxy Theatre, instead it would merely preserve the remnant physical fabric of an element of the former theatre, devoid of its context as part of the volume of the theatre space and it would significantly erode its ability to be interpreted as a part of the whole. This is an unacceptable level of intervention for a State listed heritage item, where the integrity of the form of the theatre building, both externally and internally, has been identified as an important component of its heritage significance.
I accept and concur with the agreed evidence of the heritage experts that the demolition proposed on the site would have a substantial, adverse heritage impact on the Roxy Theatre. The amount of demolition proposed, including demolishing the entirety of the proscenium behind the proscenium arch and the stalls, and the containment of the dress circle as a room, permanently severed from the theatre space of which it was once a component, would have a significant and detrimental impact on the identified heritage significance of the Roxy Theatre, and the effect is so catastrophic to the integrity of the original theatre and consequently its heritage significance, to be determinative of the appeal. The concept proposal must therefore be refused development consent.
I do not accept that the proposal constitutes the adaptive reuse of the Roxy Theatre, because adaptive re-use means adapting a place to suit the existing use or a new use (The Australia ICOMOS Charter for Places of Cultural Significance, 2013). Adaptively re-using a building means coming to terms with the existing fabric by fully understanding and analysing the building; juggling the constraints and opportunities it presents; and using the existing fabric to provide a stimulus for the re-interpretation of the building. Adapting a place of heritage significance requires respecting the integrity of the form and fabric of the place, even when a robust architectural solution may be appropriate as a new and contemporary layer to the existing building. The concept proposal is not for the adaptive reuse of the existing theatre because it fundamentally fails to respect the integrity of the Roxy Theatre and its important theatre space.
The focus of the concept proposal has been on the extant fabric, particularly the intact and more decorative fabric of the building, and not on the conceptual heritage values of the Roxy Theatre. It is not possible to demolish a large portion of a substantially intact theatre building and retain its heritage value as a theatre building. Demolishing the proscenium and stalls of the Roxy Theatre would permanently truncate the theatre space and result in the loss of its heritage significance as a representative and rare example of a 'Picture Palace' of the interwar period.
As the Roxy Theatre building footprint fills the site, it presents a considerable constraint to the future development of the site as it is currently configured, because the only way of developing the site in the manner proposed by the concept proposal is to demolish a significant portion of the Roxy Theatre to provide ground level access to a commercial tower. Any future solution for the viable revitalisation of the Roxy Theatre is going to require an innovative and creative solution and probably the partnership in some way of stakeholders.

The inadequacy of the Conservation Management Plan

I accept the respondents' submission that once a CMP is required by the consent authority it cannot be deferred or dealt with by condition.
Under s 38A(1) of the Heritage Act and cl 5.10(6) of LEP 2011, the consent authorities had power to require the submission of a CMP, after considering the heritage significance of the heritage item and the extent of change proposed to it. Once the consent authority had determined that a CMP was required, it is not acceptable to postpone the provision of a comprehensive CMP endorsed by the Heritage Council until after the approval of the concept proposal, because the CMP is required as part of the early process of decision making to inform the design brief for the concept proposal and it is also required to inform the assessment of the development application. The CMP should have followed the Heritage Council guidelines and current best industry practice as outlined by the heritage experts and importantly it should have identified the appropriate possible future uses for the building and the potential impacts of those uses on identified significant heritage values and fabric, prior to the finalisation of the design brief for the concept proposal.
I accept the respondents' criticism of the concept proposal that the conservation works are not detailed in the application. The concept proposal should have included detailed schedule of conservation works and repairs for all significant fabric, scaled plans and a specification, based on and partnered with a fabric survey. Not only is it necessary to fully understand what the benefits of a proposal are in relation to the applicant's justification of economic viability; but a development consent granted to fund a worthwhile conservation project should include an unambiguous commitment to the conservation works proposed.

Conclusion

I have considered the effect of the proposed development, particularly the extent of demolition of the Roxy Theatre proposed by the concept proposal, on the heritage significance of the heritage item, the Roxy Theatre, and I have determined for the reasons given in the judgment that the extent of demolition proposed by the concept proposal would have an unacceptable detrimental impact on the heritage significance of the Roxy Theatre. The Heritage Council's contention that the construction of a tower within the proposed building envelope would require the demolition of the rear section of the theatre building, much of the side walls, part of the roof and significant internal spaces and this loss of significant and original fabric is inconsistent with the assertion that the application would result in the 'repair and conservation' of the heritage item, is made out by the evidence before me.
I am not satisfied that the concept proposal achieves the objects of the Heritage Act to conserve the State's heritage, nor does it achieve the adaptive reuse of this item of State heritage significance. I have considered the extent to which the concept proposal would affect the heritage significance of the Roxy Theatre, pursuant to s 62 of the Heritage Act, and I have determined that the impact of the demolition proposed would have an unacceptable detrimental impact on the heritage significance of this State heritage item.
I am not satisfied that the concept proposal achieves the objects of the B3 zone of the EPA Act, to protect and enhance the heritage values 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. I am not satisfied that the concept proposal has adequately addressed the heritage constraints of this site, pursuant to cl 7.10(4)(d)(iii) of LEP 2011.
Given my determinative findings in relation to the fundamental issue of the extent of demolition proposed by the concept proposal, raised as a contention by both the Council and the Heritage Council, it is not necessary to determine the Council's remaining contentions.

Orders

The orders of the Court are: 1. The Applicant is to pay the First Respondent's costs thrown away as a result of the amendment of the development application to rely on amended architectural plans, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development Application No. 1008/2017 for a concept development for the restoration and refurbishment of the Roxy Theatre building and associated forecourt, including indicative partial demolition at the rear section of the existing building and a 33 storey building envelope for a commercial building is refused. 4. The exhibits, other than exhibits 2, 30, A, B and C are returned.

Susan O'Neill Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2019

Leave to reopen the hearing granted

The applicant was granted leave by the Court to reopen the hearing on 24 June 2019 to file the curriculum vitae (CV) of Mr Charles Robertson, the author of the Development Analysis dated May 2018 and the Development Analysis (Addendum No. 1) dated April 2019 prepared on the applicant's behalf to analyse development options for the site (Ex E, tab L), following a criticism made by the respondents during closing submissions that the applicant sought to rely on a report by an author whose qualifications were not before the Court. Mr Robertson's CV was marked Ex O in the proceedings.
The respondents opposed the granting of leave to the applicant to reopen the hearing to tender Mr Robertson's CV.
I have had regard to the summary of relevant considerations regarding whether or not to grant leave to reopen summarised by Pepper J in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 at [15] and I am satisfied that it was appropriate to reopen the hearing for the purpose of allowing the applicant to tender Mr Robertson's CV. I accept Mr McEwan SC's submission that the filing of the CV merely completed the record as its omission was an oversight by the applicant. Mr Robertson's report was already in evidence and was tendered without the respondents' objection. The filing of Mr Robertson's CV did not therefore constitute the calling of further evidence, but merely completed the record that should have been before the Court at the time the report was tendered and relied upon.

At a glance

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Decision date

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Judgment (14 paragraphs)

Parties

Cases Cited (2)