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[2003] NSWLEC 313
respondent. The appeal was dismissed. The development application to convert the Mercure Motel into an apartment building was determined by refusal. The Court also ordered that the exhibits be returned.
The Court refused the apartment-conversion proposal because the added floors and balconies would make an already large and visually intrusive building still more prominent in an important heritage precinct. The Court did not accept that adaptive re-use automatically deserved favourable treatment merely because it could save building materials. It considered the apartment proposal's ventilation, sunlight and overlooking impacts, but those matters were not the decisive reason for refusal. The judgment records no cited cases, so it does not establish how later courts treated the decision.
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Michael Hesse Associates Pty Ltd appealed Parramatta City Council's refusal of a development application concerning the Mercure Motel at 104-106 Hassall Street, Rosehill. The application proposed converting the motel into an apartment building. The existing building was a nine-storey structure containing 165 motel suites and 181 car spaces on a 5,000 square metre site ([2], [9]).
No linked legislation citations have been extracted yet.
The proposal would convert the motel suites into 97 apartments, a gym and common facilities. It also involved demolishing the existing façade, porte cochere and internal walls; constructing a new façade, mainly through adding balconies; replacing the plant room with two residential levels; upgrading recreational facilities; and landscaping ([9]). The development application was lodged in August 2002. The council refused it in June 2003, giving 16 reasons ([10]).
The site sits in the Harris Park Precinct, which the judgment describes as having substantial historic associations and as a Nationally Significant Heritage Precinct. Elizabeth Farm House, Hambleton Cottage and Experiment Farm are identified as significant heritage places in or associated with the precinct. The motel was visible from several significant viewing points, including Elizabeth Farm House and the Female Orphan School ([4], [21]).
The parties agreed that the existing motel was bulky, unattractive and poorly related to its surroundings. Much of the nearby development was single-storey housing ([3], [12]). The central dispute was whether the proposed changes would improve the building's relationship with its setting, or make it worse ([12], [22]-[27]).
The Court dismissed the appeal and determined the development application by refusal. Its central reason was that the additional floors and balconies would increase the building's visual bulk and make it more prominent and less compatible with the heritage setting ([36]-[37]; orders 1-2).
The Court first addressed the applicant's claim that adaptive re-use had an inherent public benefit. The applicant argued that retaining and adapting the existing building saved resources and should affect how strictly other aspects of the proposal were assessed ([13]-[16]). The Court accepted that re-use can save materials and the energy involved in producing and erecting them. But it distinguished between comparing re-use with demolition and new construction, and comparing the proposal with the development not occurring at all ([16]).
The judgment reasoned that resource conservation alone would not make every conversion a public benefit. It illustrated that point with examples of conversions that might not be regarded as serving the public interest. It then identified circumstances that, in its view, could provide an additional public benefit: the building being historically or architecturally valuable, fitting its urban design context, being much loved by the community, or the new use serving the public interest better than the existing use ([16]).
On the facts, the Court found none of those circumstances applied. The parties agreed the motel did not fit its surroundings and was unattractive. The Court also found that the proposed residential use did not serve the public interest better than the existing motel use ([17]). Its conclusion was limited: adaptive re-use did not justify assessing this application differently from a proposal that did not involve adaptive re-use ([18]). The Court did not say that the proposal was against the public interest simply because it reused a building.
The Court then assessed visual impact. The motel was visible from significant heritage places and appeared prominent in the landscape. The Court considered the dispute over particular viewing locations and the effect of olive trees to be of little importance, because the building loomed large in the view of people visiting or passing through the area ([21]). The applicant's experts regarded the new façade and balconies as making the building more articulated and visually interesting, and considered the additional volume's effect on perceived bulk negligible ([22]-[23]). The council's experts considered the extra floors and balconies would materially increase bulk, and that a more visually lively façade would draw attention to an already oversized building ([24]).
The Court preferred the council experts' view. It considered that the building's incompatibility arose mainly from its size in relation to the surrounding buildings. Increasing its volume would therefore increase that incompatibility ([26]). It also considered the pictorial representations of the existing and proposed building and concluded that the converted building appeared significantly larger and more alien to its surroundings ([27]). The Court noted that some photographs made the motel appear more distant than it was in reality, possibly because of wide-angle lenses ([25]).
The Court's conclusion was that a change of use should be kept within the existing building volume. The fact that the existing building was likely to remain for a long time did not justify adding bulk to it ([29]). In its final reasoning, the Court linked the proposed extension to greater visual bulk, greater prominence in views from heritage items, and an unacceptable impact on the built environment ([36]).
The other issues did not carry the same weight. The Court considered the proposal's solar access and cross ventilation just acceptable, although disappointing for a nine-storey building on the site ([30]-[33]). It described these as a negative feature but not, by themselves, a reason for refusal ([33]). It also accepted there would be more overlooking of rear yards in Arthur Street, but did not consider that impact significant enough to justify refusal ([34]). The discussion of strata titling likewise did not supply a reason for refusal: the Court considered demolition unlikely regardless, and strata titling unlikely to make a material difference to the building's longevity ([19]-[20]).
The judgment states that the motel had existing use rights and, as a consequence, that the planning instruments that would otherwise apply to the site had no application to this proposal. It says the application had to be assessed under s 79(C) of the Environmental Planning and Assessment Act 1979 ([5]). The judgment does not set out the text of that section or analyse its individual criteria in detail.
The judgment identifies several planning instruments relevant to the surroundings, including Sydney Regional Environmental Plan 28, Sydney Regional Environmental Plan 22, the Harris Park Precinct Development Control Plan, and State Environmental Planning Policy 65 ([6]-[8]). It notes that whether SEPP 65 applied was disputed, and says the Court did not rely on it ([8]). The judgment therefore does not establish an interpretation of SEPP 65 as a basis for the outcome.
The principal proposition the Court articulated about adaptive re-use was that resource savings alone did not warrant treating a proposal as a public benefit or assessing it less stringently. It considered that an additional public-benefit feature was required ([16]-[18]). The judgment also applied a contextual assessment of added bulk, visual prominence and relationship to heritage places ([21]-[29], [35]-[36]).
The supplied judgment does not describe a change in legislation, identify a legal rule before this decision that it displaced, or claim to alter the statutory planning framework. It is therefore more accurate to describe the decision as setting out the Court's reasoning on the particular application, rather than as changing the law. The document also contains no subsequent case history from which to establish how later courts treated the judgment.
At [16], the Court said that an adaptive re-use project must have “an element of public benefit apart from resource conservation.” In plain English, keeping and adapting a building may save materials, but the Court did not regard that saving as enough on its own to make every conversion beneficial to the public. The judgment listed possible additional factors, including heritage value, fit with the urban setting, community attachment, or a new use that better serves the public interest.
At [18], the Court concluded that there was “no justification for assessing this proposal any differently from a proposal that does not involve adaptive re-use.” This is a case-specific statement about the claimed benefit of re-use. It does not say that adaptive re-use can never have public benefits; it says that this proposal did not establish a basis for a different assessment.
At [26], the Court found that the proposed changes would make the building “appear larger and more noticeable.” The plain-English point is that the Court assessed not just whether the new façade looked more attractive, but also whether the added floors and balconies would make an already oversized building more visually dominant.
At [29], the Court said that a change of use “should be achieved within the parameters of the existing building volume.” In context, this expressed the Court's concern about adding further bulk to the existing structure. The Court considered the existing building likely to remain, but did not regard that as a reason to accept a further increase in its volume.
At [36], the Court described the extension as increasing visual bulk and making the building more out of scale and less appropriate in its setting. That conclusion directly explains the refusal: the Court considered the effects on the built environment unacceptable.
The reasoning is most directly relevant to a development application involving adaptive re-use where the applicant relies on resource savings as a reason to give the proposal more favourable treatment. The judgment indicates that a decision-maker may distinguish resource conservation from a public benefit that supports a different assessment approach ([16]-[18]). It also shows the relevance, in the Court's analysis, of whether the building has heritage value, fits its context, has community attachment, or would serve the public interest better under its new use ([16]-[17]).
The decision is also relevant to proposals that add volume to an existing building in a sensitive heritage setting. Here, the existing structure was already described as out of scale, and the proposed changes included two additional residential levels and balconies ([12], [9]). The Court focused on whether the changes increased its perceived size, visual prominence and incompatibility with its surroundings ([25]-[29]).
The judgment's reasoning may be pertinent where expert opinions differ about whether façade articulation and design treatment will reduce the apparent bulk of a building, or instead make it more conspicuous. The Court considered the experts' differing assessments and the photographic material, including concerns about whether some images accurately represented the building's appearance from important viewpoints ([22]-[27]).
The limits matter. The judgment concerned this site, this proposal and the evidence before the Court. It does not establish that all adaptive re-use projects lack public benefit, that all additions to existing buildings are unacceptable, or that every heritage setting requires a particular design outcome. The decision turned on the Court's findings about the building's existing scale, the added volume and the setting ([26]-[29], [36]).
The supplied judgment does not cite any earlier cases in its “Cases Cited” field, and its text contains no case citations. It also contains no information about later decisions considering, applying, distinguishing or otherwise treating this judgment.
Accordingly, later judicial treatment cannot be established from the supplied source. This does not show that there has been no later treatment; it means only that the judgment text provided here does not report it. Any account of subsequent case history would require sources beyond this judgment, which are not part of the provided material.
Within this judgment itself, the Court treated the adaptive re-use point as a planning principle to be applied to the facts before it, and then assessed the particular visual effects of this proposal. It did not refer to an earlier precedent as the source of the listed public-benefit factors. The decision's own reasoning should therefore be kept distinct from claims about its later precedential reception.
The judgment does not explain how the listed circumstances for establishing a public benefit from adaptive re-use would operate in combination. It says “one or more” must be present ([16]), but does not describe how much evidence would be required to establish, for example, community attachment or that a new use better serves the public interest.
The judgment accepts that resource savings occur when adaptive re-use is compared with demolition and new construction, while rejecting that comparison as sufficient to show public benefit against the alternative of the project not occurring ([16]). It does not quantify resource savings or explain how they might be weighed alongside other impacts in a different case.
The decision also does not give a general method for measuring perceived bulk or visual prominence. Its assessment relied on expert evidence, photographs and the Court's own view of the relevant setting ([21]-[27]). The judgment does not specify how those forms of evidence should be weighted in other cases.
Finally, the judgment identifies the existing use rights and the statutory assessment provision but does not set out a full analysis of the statutory criteria ([5]). It does not rely on SEPP 65, and it provides no later case history ([8]). Those limits mean the decision, as supplied, offers a focused explanation of the Court's reasoning on adaptive re-use and visual impact rather than a complete account of all legal questions that may arise in later development assessments.
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Introduction 1 This is an appeal against the refusal by Parramatta City Council (the council) of a development application to convert the Mercure Motel on lot 101 DP 840898, known as 104-106 Hassall Street, Rosehill, into an apartment building.
The site 2 The site is on the north side of Hassall Street, between James Ruse Drive and Arthur Street, 500m from the Parramatta River, 1.5 km from the east of Parramatta CBD and 500m from the Rosehill Gardens Race Course. Its area is 5,000m2. The existing nine-storey high building accommodates 165 motel suites, 181 car spaces and associated facilities. 3 To the north is an undeveloped parcel with light industry and recreation beyond. To the south is Hassall Street, which is a four-lane arterial road. To the east is the Rosehill Bowling Club. To the west are several single-storey houses fronting Arthur Street. The majority of development in the vicinity is single-storey houses. 4 The site is in a locality, called the Harris Park Precinct, which is replete with historic associations, landscape and buildings. The Parramatta Regional Planning Strategy identifies it as a Nationally Significant Heritage Precinct. It contains three significant items related to the earliest days of white settlement: Elizabeth Farm House, Hambleton Cottage and Experiment Farm. Elizabeth Farm House is about 300m to the south. Hambleton Cottage is about 500m west of the site. The Female Orphan School, which is outside the Precinct, is also a significant heritage item, from which the Mercure Motel is visible.
Relevant planning instruments 5 It is common ground that the Mercure Motel has existing use rights. As a consequence the planning instruments that would otherwise apply to the site have no application. (They do, however, indicate the planning regime that applies to the site's surroundings.) As for this proposal, it must be assessed only under s79(C) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 6 Sydney Regional Environmental Plan 28 - Parramatta zones the site (and the area around it) Residential 2(e), a zone in which motels and residential flat buildings (among other things) are prohibited. The planning controls restrict the height of buildings to RL 14, which allows a two-to-three-storey building. SREP 28 is accompanied by a regional strategy. 7 Sydney Regional Environmental Plan 22 - Parramatta River establishes a framework for the coordinated planning of the Parramatta River and its foreshores. Development Control Plan for SREP 22 applies to all sites to which SREP 22 applies. The Harris Park Precinct Development Control Plan provides guidelines for development assessment in the precinct. 8 State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings is directed to better-designed residential flat buildings. Whether or not it applies to this proposal, was in dispute. In my opinion, it applies, since the requirement that apartment buildings be well designed does not derogate from existing use rights. However, since the matter is in dispute, I have not relied on SEPP 65.
The proposal and its history 9 The Mercure Motel was constructed in 1987, at a time when a motel was a permissible use. The applicant now proposes to convert the motel into an apartment building by: · Converting the motel suites to 97 apartments, a gym and other common facilities; · Demolishing the existing façade, porte cochere and internal walls; · Reconstructing the building's façade, mainly by the addition of balconies; · Constructing two levels of apartments on top of the existing roof replacing the plant room; · Upgrading the existing tennis court, swimming pool and spa; · Providing new landscaping. 10 The applicant lodged the development application in August 2002. Following notification, the council received three objections. The council considered the application in June 2003 and refused it for 16 reasons. Those reasons included the major issues in this case, though they were expressed differently.
The issues 11 The council submitted a Statement of Issues containing 20 issues, of which it pressed twelve. During the hearing the issues were reduced to five: · Is the proposed strata titling of the building appropriate? · Is the visual impact on the Harris Park Precinct, and the heritage items within and outside it acceptable? · Is the cross ventilation of the proposed dwellings adequate? · Is the solar access of the proposed dwellings adequate? · Is the impact on the privacy of adjoining houses acceptable? 12 It was common ground that the existing building was bulky, unattractive and related poorly to its surroundings. The essence of the dispute was whether the proposed alterations and extensions would improve it or make it worse. 13 The applicant submitted that there was an inherent public benefit in the adaptive re-use of this building and that the other issues should be considered in the context of this public benefit. This raises an important question and I propose to consider it as the first issue.
Is there a public benefit in every case of adaptive re-use? 14 In the applicant's submission, there was a public benefit in this proposal due to its involving the adaptive re-use of an existing building. The notion that there was inherent virtue in this proposal because it was adaptive re-use, ran through the evidence of most of the applicant's experts. Mr A Smith, a planning consultant, drew up a balance sheet in which he attributed a "net benefit" to the "conservation of the majority of the existing fabric" and "net reduction in energy consumption with residential use". Dr S King, an architect and associate director of the UNSW's Centre for Sustainable Built Environment, justified the proposal's mediocre (though in his view, acceptable) performance on cross ventilation and solar access on the grounds that the new apartments were in a converted building. Mr M Hesse, an architect and the designer of the proposal, said that the building contained constraints that made it difficult to achieve better internal amenity. 15 In essence, the applicant argued that normal standards of performance should be applied less stringently to this proposal because it involved the adaptive re-use of an existing building. This raises an important question of planning principle: is adaptive re-use per se in the public interest? 16 I accept that in most cases of adaptive re-use there is a saving of resources, because building materials, and the energy used in producing and erecting them, are used for a second time. Saving resources is one element of ecologically sustainable development, the promotion of which is one of the aims of the EPA Act. However, the saving of resources occurs only in comparison with a similar project that would demolish the existing building and construct a new one, not in comparison with the project not occurring at all. If, for example, a soup kitchen were converted to a TAB betting office, few people would think that the saving in building materials was sufficient reason to consider that the conversion was in the public interest. Similarly, if a building that is generally regarded as ugly and out of context were given a new lease of life by adapting it to a more profitable use, most people would consider the conversion undesirable because it prolonged the building's life. In my opinion, to be in the public interest, an adaptive re-use project must have an element of public benefit apart from resource conservation. One or more of the following circumstances must be present: · the building is of historical or heritage value; · the building is attractive and fits into its urban design context; · the building is much loved by the community; · the new use serves the public interest better than the existing use; 17 In the present case, none of the above circumstances applies. It is common ground that the building is not attractive and does not fit into its surroundings. The new use does not serve the public interest better than the existing. (In fact motels are often considered to be in the public interest because they encourage tourism and job creation.) 18 None of the above suggests that the proposal is against the public interest just because it is adaptive re-use. The conclusion is only that there is no justification for assessing this proposal any differently from a proposal that does not involve adaptive re-use.
Strata titling 19 Mr A Bas, a planning coordinator with the council, and Professor J Toon, an architect and planner, suggested that the Strata titling of this proposal would reduce the chances of its eventual demolition. For this reason they considered the Strata titling element of the proposal sufficient to justify refusal. In the view of the applicant's experts, however, the building was likely to remain. Whether or not it was Strata titled would make no difference to its longevity. 20 I note that there is no plan for the acquisition of the site. There is no arrangement for the transfer of floor space to another part of Parramatta. It is unlikely therefore that the building would be demolished. Strata titling may make it more difficult to achieve demolition, but demolition is so unlikely anyway, that Strata titling will make little difference.
Visual impact 21 It is common ground that the Harris Park Precinct contains heritage items of State or national significance, that it is a Nationally Significant Heritage Precinct, and that the majority of development in it is single storey houses. It is also agreed that the Mercure Motel can be seen from many points within and outside the precinct, including from Elizabeth Farm Cottage and the Female Orphan School. The experts disagreed on the extent of visibility; and exactly which points one can see it from, however, in my opinion little turns on this. Arguments about the extent to which certain olive trees obscure the view of the motel appear to me to be irrelevant. The visit to the site demonstrated that the Mercure Motel looms large in the field of vision of anyone visiting or driving past the area. 22 The real issue in this case hinged on the question whether the proposed building (ie the existing building after the alterations and additions) would relate better to the Precinct and the heritage items than the existing building. In addition to Mr Smith and Dr King mentioned above, the applicant's experts were Mr R Dickson, an architect and urban designer, Professor N Quarry, an architect, Mr R Staas, a heritage architect, and Mr S Davies, a heritage consultant. In their opinion the renovated and extended building would have an improved relationship to its surroundings. There were two major reasons for this. First, the substitution of two residential floors for the plant room and the addition of balconies, while it would increase the volume of the building, would have a negligible impact on the perceived bulk. Second, the new treatment of the elevation would enliven what everyone agreed was a bland building with interest, colour, vertical emphasis and articulation. The vertical emphasis would change the "squat and dumpy" proportions of the existing building. 23 In essence, the applicant's experts said that the converted building would be less intrusive in its urban context. The attractive new façade would more than counteract the minor addition to the building's volume. 24 In addition to Mr A Bas and Professor Toon mentioned above, the council's experts were Ms P Pike, a heritage consultant, and Ms K Higgins, a heritage advisor to the council. They saw the proposed alterations and extensions to the building in quite a different light. They considered the replacement of the plant room by two additional two residential floors, coupled with the external balconies, as a considerable increase in bulk. As for the new façade, the council's experts disliked it precisely because it was livelier and drew more attention to itself. In their opinion, a building that is grossly out of scale with its surroundings should recede into the background to the maximum extent possible. 25 The Court had before it numerous photographs, including photomontages and views of the existing building provided by the applicant. On several photographs (in particular from Elizabeth Farm House and the Female Orphan School) the Mercure Motel appeared more distant than it did in real life. This is possibly explained by the use of a wide-angle lens. In fact the motel is much more prominent from these important viewing points than it appears on the photographs on which the applicant's experts based their argument. 26 In my opinion, the council's experts are closer to the true position than the applicant's experts. The proposed alterations and extensions of the building will make it appear larger and more noticeable. Because the building's incompatibility with its surroundings arises mainly from its size relative to the scale of the buildings around it, the increase in building volume will increase the extent of incompatibility. 27 I have reached the above conclusions by analysing the bulk that will be added to the building. However, I reach the same conclusion simply by looking at the pictorial representations of the building as it exists and as it would appear after the conversion. The converted building appears significantly bigger, and therefore more alien to its surroundings, than the existing building. I note that the applicant's experts have said that the change is negligible. I can explain this conclusion only by the possibility that they based it on photographs that do not represent the true position.
28 I note that the Heritage Office and the Historic Houses Trust of NSW have written to the council's solicitors indicating their opposition to the proposal more or less on the same grounds as the ones advanced by the council's experts. I do not take this opposition into account as expert evidence, however it strengthens the conclusions that I have reached based on the expert evidence. 29 Any change of use of this building should be achieved within the parameters of the existing building volume. For better or for worse, the existing volume is likely to stay for a long time. That is no reason, however, to accept additional bulk to a building that everyone acknowledged as being too large for its context.
Internal amenity (cross ventilation and solar access) 30 The proposal is based on what architects call a double-loaded corridor, ie a central corridor with apartments on both sides. Consequently, a large number of apartments face south and few apartments have cross ventilation. Dr King assessed the proposal for solar access. He concluded that two thirds of the units had good solar access, while one-third faced south and had poor solar access. Reading the whole of his report, I understand his evidence to say that the solar access was acceptable, though a better performance could be achieved in a new building on the same site. 31 Dr King also assessed the proposal for cross ventilation as acceptable, because a breeze would pass through the apartments even when they were on one side of the corridor. However, he stated in his report that the single sided apartment was not ideal for cross ventilation. 32 Mr Hesse told the Court that he had considered many alternatives and concluded that it was not practicable to achieve a higher proportion of north-facing apartments with cross ventilation. He supported his evidence with a sketch of a cross over apartment that he decided not to adopt because he thought it had low amenity. My own reaction to the sketch was that it showed a lovely apartment with an interesting layout. However, since the sketch was not discussed in Court, I do not take it into account in my decision. 33 On balance I find that the proposal's performance on solar access and cross ventilation is just acceptable. Placed against the fact that on this site a nine-storey building should be able to achieve excellent, if not perfect, solar access and cross ventilation, the just acceptable performance is disappointing. It is not, by itself a reason for refusal, but it is a negative feature of the proposal.
Overlooking of Arthur Street rear yards 34 According to Professor Toon, the conversion of motel suites and the addition of external balconies in the vicinity of the rear yards in Arthur Street would result in increased overlooking. I note that the balconies will have a solid panel towards the west and that there is some landscaping at the west boundary. While there would be more overlooking due to the change from temporary to permanent occupancy, I do not think that this impact is so significant as to justify refusal.
Conclusion 35 The Mercure Motel is a nine-storey building in the locality of Harris Park, which is a nationally significant heritage precinct. It contains the significant heritage items of Elizabeth Farm Cottage, Hambleton Cottage and the Experimental Farm. It was common ground that the existing motel building is out of scale with its surroundings and that it is an intrusive element in a low-scale mainly residential area. 36 The applicant proposes to convert the motel into an apartment building and in the process replace the plant room with two residential floors and add external balconies on both sides of the building. In the Court's opinion, the proposed extension would increase the visual bulk of the building. It would make it more out of scale and even less appropriate in its surroundings. It would appear more prominent in views from heritage items. Its impact on the built environment is therefore unacceptable. 37 For the above reasons the appeal is dismissed.
Dr John Roseth
Senior Commissioner
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.
Michael Hesse
Parramatta City Council
CITATION : Michael Hesse v Parramatta City Council [2003] NSWLEC 313 revised - 24/11/2003 PARTIES : Michael Hesse Associates Pty Ltd v Parramatta City Council FILE NUMBER(S) : 10675 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application - Existing Use Rights :- heritage impact LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/11/2003 to 21/11/2003 EX TEMPORE JUDGMENT DATE : 11/21/2003
The appeal was dismissed. The development application to convert the Mercure Motel into an apartment building was determined by refusal. The Court also ordered that the exhibits be returned.