Patrick Campion, Chairman trading as City Tattersall's Club v The Council of the City of Sydney

The site and its context

1. The subject site contains two allotments, which have a legal description of Lot 1 in DP 945729 and Lot 1 in DP 600465. The site is located on the eastern side of Pitt Street, between Market Street to the north, and Park Street to the south. The sites have a combined frontage width to Pitt Street of 45.69m and a total area of 2336.5 sqm.
2. 194 Pitt Street is currently occupied by an 8- storey commercial building with a single basement level, and is listed as a local heritage item (Item No. I1927 - former Symonds' building including interior).
3. 196-204 Pitt Street contains three interconnected buildings. 196 Pitt Street is a 7-storey building with two basement levels and has no heritage listing. 198-200 Pitt Street is a 7-storey building with a single basement level, and is listed as a local heritage item (Item No.I1928- City Tattersall's Club including interior). No 202-204 is a four storey building with a partial basement, which is listed as a heritage item (Item No.I1929- City Tattersall's Club including interior).
4. All buildings within the site currently have no off-street car parking, loading facilities or vehicular access.
5. The uses surrounding the site are characterised by a mixture of office, retail, food and drink premises, hotel accommodation and residential accommodation uses.
6. To the north of the site is a 7-storey commercial building at No. 192-192A Pitt Street, which is listed as a heritage item (Item No. I1926 - former Fay's Chambers, exterior only, local significance), and a 13-storey commercial building at No. 61-63 Market Street.
7. Adjoining the site to the east, and partially to the north, is the David Jones Market Street store at No. 65-77 Market Street. This building is listed as a heritage item (Item No. I1888, local significance)
8. To the south, at 133-145 Castlereagh Street, is a commercial building known as the Piccadilly Centre, which consists of a 3-storey retail podium with both a 13-storey commercial office tower and a 31-storey commercial office tower above.
9. To the west of the site, on the opposite side of Pitt Street, is a 20-storey commercial office building at 55 Market Street. A pedestrian footbridge over Pitt Street connects the podium of 55 Market Street with the Piccadilly Centre development.
10. Also located to the west of the site, on the opposite side of Pitt Street, is an 8-storey commercial building at 249-251 Pitt Street, known as the Simpson's House. This building is listed as a heritage item (Item No. I1932, local significance).
11. The site is located some 17m from Pitt Street mall and the foot path frontage of the site experiences high volumes of pedestrian movements (Exhibit 1). A portion of the site is also identified as being affected by the proposed Sydney Metro line.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The applicant seeks approval for a staged development application, and is therefore subject to Division 2A of the Act. Relevantly s83(1) of the Act defines a staged development application as: a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.
3. Section 83B (3) of the Act states that if consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.
4. Relevantly s83C states that if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land. However, at sub section (3) the clause requires that any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
5. Division 3A of the Environmental Planning and Assessment Regulation 2000 contains special provisions relating to staged development applications: 70A Information to be included in staged development applications Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application. Whether the information provided by the applicant is specific and detailed enough to allow for assessment and determination of the impacts of the development is contested by the Council.
6. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged Elenberg Fraser.
7. The development application is integrated development. Pursuant to cl 104 of State Environmental Planning Policy (Infrastructure) (SEPP Infrastructure) the application was referred to NSW Roads and Maritime Services. Concurrence has been provided subject to conditions, which have been incorporated in the draft conditions at Exhibit 10.
8. Pursuant to c88 SEPP Infrastructure the consent of NSW Trains (Railcorp) was also required. Concurrence was confirmed by the representatives of the Second Respondent, subject to conditions which were tabled as Exhibit R3. The applicant raises no objection to the conditions proposed by NSW Trains.
9. Pursuant to cl 88A of SEPP Infrastructure the application was referred to Sydney Metro. Concurrence was confirmed by the representatives of the Second Respondent, subject to conditions which were tabled as Exhibit R3. The applicant raises no objection to the conditions proposed by Sydney Metro.
10. Pursuant to cl 45 of SEPP Infrastructure the application was referred to Ausgrid. At the time of the proceedings no response had been provided from this agency.
11. Sydney Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)): … (b) to support the City of Sydney as an important location for business, educational and cultural activities and tourism, … (e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing, (f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors, (g) to ensure that the pattern of land use and density in the City of Sydney reflects the existing and future capacity of the transport network and facilitates walking, cycling and the use of public transport, … (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, (k) to conserve the environmental heritage of the City of Sydney, …
12. Pursuant to LEP 2012 the site is zoned B8 Metropolitan Centre. The objectives of the B8 zone are as follows: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises. Council contends that the last zone objective is not met by the concept development application.
13. The indicative land uses proposed by the application are permissible, with consent, in the zone.
14. The site is identified as being on land in Area 3 on the LEP 2012 Height of Buildings Map. The maximum height for buildings on this land are determined by the Hyde Park West Sun Access Plane (SAP) that is taken to extend over the land by clause 6.17 of the LEP 2012, as follows: 1. the maximum height control permitted by the SAP above the location of the amended tower envelope ranges from RL 159.74 to RL 187.33; and 2. the maximum height of the amended envelope ranges from RL 159.60 to RL 187.04, and complies with the control.
15. Relevantly clause 4.6(8)(e) does not allow development consent to be granted for development that would contravenes the SAP. It is agreed between the parties that the Stage 1 concept application complies with the SAP.
16. Clause 4.4 of the LEP 2012 specifies a base floor space ratio (FSR) of 8:1, the following clauses in the LEP provide potential for additional floor space, subject to relevant conditions. 1. Clause 6.4 of LEP 2012 providing for additional FSR subject to specific land uses. The site is mapped as located in Area 2. This additional floor space is pro-rated as follows: 1. 4.5:1 for office, business and retail uses, and 2. 6:1 for residential accommodation, serviced apartments, hotel accommodation, community facilities or child care centres. The application of this clause to the land uses proposed in the application equates to a maximum permissible FSR of 13.08:1 1. The Design Excellence Strategy submitted as part of the amended proposal seeks to utilise the design excellence provisions pursuant to clause 6.21 of the LEP 2012. This clause provides for a further FSR of up to 10%, where any future Stage 2 design scheme is the winner of a competitive design process and is considered by the consent authority to exhibit design excellence. 2. Clause 6.7 Entertainment and club floor space, operates to provide an amount of additional floor space equal to the floor space of any parts of the basement of the building used for the purposes of entertainment facilities or registered clubs. The operation of this clause is relevant to the gym use. 3. Considering all of the applicable FSR provisions, the maximum permissible FSR for the development would be up to 14.3882:1 (33,618 sqm GFA). The indicative scheme submitted as part of the amended proposal is for a FSR of 14.12:1 (32,987 sqm GFA). Specific floor areas for the above uses would be nominated, and assessed as part of the subsequent stage 2 development application. During the course of the proceedings the designation of a proposed gross floor area, and its apportionment across the uses nominated in the application, was removed from the proposal. Thus the concept proposal seeks approval of the envelope, and a distribution of the uses vertically within than envelope.
17. Given the site contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). Consent is required for demolition (sub cl (2))
18. Council argues that the development has a significant, and detrimental impact on the fabric of the heritage items and their significance. Council contends that following assessment under cl 5.10(4) the Court should conclude that the application has a significant impact on the heritage significance of the items and that the impact is sufficient to refuse the application.
19. LEP 2012 cl. 6.21 address Design Excellence. Sub-cl (2) states (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. As a new building is proposed, sub-cl (3) provides that development consent must not be granted unless, in the opinion of the consent authority, the development exhibits design excellence. This clause acts as a precondition, irrespective of any bonus or additional floor space or height. The design excellence provisions at cl. 6.21(4) state: In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (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 issues and streetscape constraints, (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 6.21(7) allows the consent authority to consider granting up to 10% additional height or FSR to a building demonstrating design excellence. Council contends that the proposal does not meet the requirements of cl 6.12(4) and should not be granted consent.
20. Clause 7.15 Flood planning applies to the site. The objectives of the clause are: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into consideration projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. At sub. cl (3) it states that consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
21. It is agreed between the parties that the proposal, due to its land area and scale requires the preparation of a Development Control plan (DCP) in accordance with cl 7.20(2). At 7.20(3) a consent authority can determine a DCP is not required to be prepared if they are satisfied that such a plan would be unreasonable or unnecessary, for the reasons detailed at (a) through (d) of that clause. Relevantly pursuant to 7.20(4) the DCP must provide all of the following: (a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain, (b) requirements to minimise the detrimental impact of proposed development on view corridors, (c) how 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 issues and streetscape constraints, (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 interface at ground level between the building and the public domain, (xiii) the excellence and integration of landscape design, (xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access.
22. The effect of s83C of the Act is that cl 7.20 of LEP 2012 may be satisfied by the making and approval of a staged development application in respect of that land. Relevantly S83C(3) of the Act requires that any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations. The applicant has prepared this application under s83C of the Act to meet the requirements of cl 7.20 of LEP 2012. However, Council argues that this provision is not satisfied as the applicants Stage 1 Concept Development Application does not provide sufficient certainty of the development proposed and its impacts.
23. The Sydney Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are in contained in Section 3: General Provisions, Section 4 as the controls relate to Residential Flat, Commercial and Mixed Use Developments, and Section 5 as it contains additional provisions for Central Sydney.
24. Whilst the specific controls relevant to the contentions are discussed later in the judgement, the objectives of the key provisions of DCP 2012 relevant to the proceedings are: 3.1.1 Streets, lanes and footpaths Objectives (a) Provide streets that prioritise pedestrians, cycling and transit use. (b) Encourage a street hierarchy that supports sustainable travel behaviour. … (g) Provide intersections, traffic and parking lanes that naturally calm traffic. 3.2.1 Improving the public domain Objective (a) Enhance the public domain by ensuring adequate sun access to publicly accessible spaces and protecting significant views from public places. 3.2.2 Addressing the street and public domain Objectives (a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain. (b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character. (c) Provide legible and accessible entries from the street and the public domain (d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area. (e) Reinforce Central Sydney's strong definition of streets and the public domain aligned with property boundaries. (f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain. (g) Minimise and ameliorate the effect of blank walls (with no windows or entrances) at the ground level. 3.2.3 Active Street Frontages Objectives (a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to streets. (b) Provide fine grain tenancy frontages at ground level to street frontages. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street. It is agreed between the parties that the subject site is within a location nominated on the Active frontages map. 3.3 Design Excellence Objectives (a) Ensure high quality and varied design through the use of competitive design processes for large and prominent developments. . (b) Ensure development individually and collectively contributes to the architectural and overall urban design quality of the local government area. (c) Encourage variety in architectural design and character across large developments to provide a fine grain which enriches and enlivens the City's public realm. Clause 3.3.8 Site specific development control plans and stage 1 development applications A site specific development control plan or a stage 1 development application is required under Clause 7.20 of Sydney LEP 2012 for certain categories of development. The development control plan must address the issues set out in Clauses 7.20 (4) and 6.21 Design Excellence of Sydney LEP 2012. (1) The following documentation is to be provided as part of a site specific development control plan application: (a) Site, context and development options analysis; (b) Public domain layout including levels, uses, access and circulation and dedications; (c) Built form massing and dimensioned envelopes; (d) Distribution of uses and floor space areas; (e) Overshadowing analysis; (f) Stormwater management strategy; (g) Traffic management and servicing strategy and parking numbers and location; (h) Ecologically sustainable development strategies and benchmark commitments (including connection to green infrastructure); (i) Heritage impact statement; (j) Design excellence strategy; (k) Landscape concept plan; (l) Public art strategy; and a (m) Staging plan. (2) The site, context and development options analysis is to document at least three different and realistic site development options and is to provide an analysis of each option. (3) A design excellence strategy is to be provided that defines: (a) the location and extent of each competitive design process, where each competitive design process limited to a single development site or street block. (b) the type of competitive design processes to be undertaken: an architectural design competition, open or invited; or competitive design alternatives; (c) the number of designers involved in the processes; (d) how fine grain and contextually varied architectural design is to be achieved across large sites; and (e) options for distributing any additional floor space area which may be granted by the consent authority for demonstrating design excellence through a competitive design process. (4) A detailed Public Art Strategy, prepared by a suitably qualified person and consistent with the City of Sydney Guidelines for Public Art in Private Development is to be submitted with a Stage 1 DA or Site Specific DCP. Clause 3.7 Water and Flood Management Objectives … (c) Assist in the management of stormwater to minimise flooding and reduce the effects of stormwater pollution on receiving waterways. (d) Ensure that development manages and mitigates flood risk, and does not exacerbate the potential for flood damage or hazard to existing development and to the public domain. (e) Ensure that development above the flood planning level as defined in the Sydney LEP 2012 will minimise the impact of stormwater and flooding on other developments and the public domain both during the event and after the event. (f) Ensure that flood risk management addresses public safety and protection from flooding. Clause 3.9.2 Conservation Management Plans (CMP) The Council contents that the submitted does not satisfactorily address the requirements of cl.3.9.2(2) Clause 3.9.4 Development of sites of State heritage significance or containing more than one heritage item … (2) When considering an application for development to which this provision applies, the consent authority is to: (a) appoint a committee that includes heritage professionals to examine and advise on the merits of the proposal; (b) be satisfied that that committee has followed an appropriate public process for the purpose of that examination; and (c) consider the advice of the committee, but is not bound by the advice of the committee. Clause 3.9.5 Heritage Items Objective (a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item. Clause 3.11.10 Vehicle access for developments greater than 1000sqm GFA (1) For developments equal to or greater than 1,000sqm GFA, vehicle access to a site is to be located so the safety of those using the access and the street is not likely to be compromised. Vehicle access is not to be located in the following locations: … (b) within 25m of the property boundary adjacent to a signalised intersection; .. . (h) within 30m of the alignment of an intersection where the proposed vehicle access is used by service vehicles to access 3 or more loading spaces; … (j) within 2m of other access driveways or within 1m of any common boundary, except where access is off a laneway; … Clause 3.11.11 Vehicle access and footpaths (1) Vehicle access points are restricted in places of high pedestrian activity identified on the Pedestrian priority map. It is agreed between the parties that the subject site is within a location nominated on the Pedestrian Priority map. Clause 5.1.1 Street Frontage Heights Objectives (a) Achieve comfortable street environments for pedestrians with adequate daylight, scale, sense of enclosure and wind mitigation. (b) Physically define the public domain and provide opportunities for street front activities that enhance the public domain. (c) Encourage flexibility in building design and reinforce the character of Central Sydney and ensure built form is compatible with heritage items and the desired streetscape character. Clause 5.1.2 Building setbacks 5.1.2.1 Front setbacks … (3) New buildings or additions above a heritage item must have a setback of at least 10m from the street frontage as shown in Figure 5.7 Minimum setback above a heritage item. However, a conservation management plan required as part of the development application may require a greater setback. … 5.1.10 Sun access planes (1) Sydney LEP 2012 requires buildings to maximise sunlight access to public places by establishing sun access planes for 8 major public areas including Belmore Park, Hyde Park, Macquarie Place, Martin Place, Pitt Street Mall, the Domain, Royal Botanic Gardens and Wynyard Park. A building must not project above any part of a sun access plane. … For the subject site the relevant diagram is Figure 5.26 Hyde Park North. Schedule 7 at cl 7.8.3 provides controls for passenger pick up and set down areas. Apply the controls for the indicative uses and floor area a total of 8 loading bays, 2 passenger pick up/set down spaces and 1 bus/ coach space are required.
25. The relevant planning controls require the Court to consider and determine the following as preconditions to consent: 1. Whether on considering the effect of the proposed development on the heritage significance of the item, I am satisfied that the effect is acceptable (clause 5.10(4) of LEP 2012). 2. Confirmation that the concept DA is compliant with the SAP (clause 6.17(2) of LEP 2012). 3. The interpretation and application of cl 6.21 of the LEP in the present circumstances, and whether on the evidence, I am able to form the opinion that the proposed development exhibits design excellence: cl 6.21 (3) having regard to the matters in subclause (4). 4. Whether the I am satisfied that the development is compatible with the flood hazard of the land, the application satisfies the requirements of c7.15(3). 5. Whether I am satisfied that cl 7.20(4) of the LEP, and relevantly s83C(2) of the Act, are satisfied by the staged development application, or that pursuant to 7.20(3) a that a DCP is not required to be prepared as I am satisfied that such a plan would be unreasonable or unnecessary, for the reasons detailed at (a) through (d).

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2012, the amended plans before the Court were also notified by Council. The submissions received on the amended plans are summarised as follows: 1. the proposal is supported as it will ensure the survival of the City Tattersalls Club which benefits members and makes a positive contribution to the social fabric of the City; 2. excavation and demolition, vibrations and dust will adversely impact upon the structural integrity, fire safety and air conditioning systems of the adjacent heritage item at 192 Pitt Street; 3. the proposed envelope will overshadow the property adjacent to the north at 192 Pitt Street; 4. the proposed residential and hotel accommodation will result in adverse privacy impacts to the occupants at 192 Pitt Street; 5. demolition and construction noise from the development will adversely affect trade of commercial tenants and making retention of those tenants difficult, resulting in an adverse financial impact upon the owners of the property at 192 Pitt Street; 6. demolition and construction traffic and then vehicular and pedestrian traffic generated by the development's ongoing operation will exacerbate existing congestion problems on Pitt Street; 7. the proposed envelope blocks views from private dwellings and from the public domain to the iconic Centre Point Tower. Its excessive bulk and close proximity would undermine the landmark qualities of Centre Point Tower; and 8. the subject proposal coupled with redevelopment of the adjacent David Jones building will lead to further tower crowding in a part of the city that is already claustrophobic with tower development. The proposal's adverse impacts upon daylight to surrounding streets and public spaces, and adverse impacts on the view of the City skyline from Hyde Park will reduce the amenity of this part of the City for residents and the public alike. These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Is the impact of the proposal on the heritage significance of the items acceptable?

1. The issues raised by the Council in support of refusal of the concept approval on heritage grounds can be structured into the following questions: 1. What is the heritage significance of the three items; 2. What the impact of the proposed demolition, intervention and conservation works on the significance of the three heritage items is, and whether this is acceptable; and 3. Whether the proposed development, and in particular the scale massing and setbacks of the podium and tower building envelopes, impact the significance of the three heritage items. A further the concern of the Council, in relation to heritage, is whether the application contains sufficient detail and certainty to ensure that the retained portions of the heritage will be adequately conserved.

Heritage significance

1. LEP 2012 contains the following relevant definition: heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
2. The NSW Heritage inventory includes the following statements of significance for the items: Former "Symonds' Buildings" Including Interior Merivale, formerly Symonds' Buildings, is a seven storey timber framed masonry retail commercial building constructed in the Federation Free Style. The building has historic significance as a remnant of the formerly prominent Sydney family business of Symonds' Furnishing reflecting the importance of a Jewish-run businesses in Sydney's commercial life. The building has high aesthetic significance for the extent of the intact interior and exterior fabric with outstanding potential to be restored. "City Tattersalls Club" (198-200 Pitt Street) Including Interior City Tattersall's Club Centre (north) is a six storey reinforced concrete retail and commercial building constructed in the Federation Free Classical Style, which together with its adjacent building, occupies a prominent position in the Pitt Street streetscape. The building has high historic significance as a reflection of the importance of Pitt Street as a bookmaking and gambling precinct since the mid-nineteenth century. The building has high social significance for its ability to demonstrate the importance of horse racing in Australian popular culture. The building has aesthetic significance for its contribution to Pitt Street. The Club Room [lower bar] has a high aesthetic significance as a fine and highly intact example of a streamlined modern interior and includes many specific elements such as the decorative columns and bar grill. "City Tattersalls Club" (202-204 Pitt Street) Including Interior The Tattersalls Club is one of the few surviving city clubs in its late 19th century premises (105 years of continuous occupation). The quality of the building reflects the importance of this type of social institution, and particularly the prestige of the racing industry in Sydney. It is associated with the distinguished architectural practice of Sheerin & Hennessy, and several alterations were the work of other notable firms. During its later years the building has also been associated with popular entertainment. The City Tattersalls Club exhibits a confident adaptation of Classical elements to envelop a steel framed building expressing the lightness of structure in stonemasonry and timber. The Free Classical architectural approach marks a transition from the Victorian to the Federation period. It contributes significantly to the townscape character of this block of Pitt Street. The building demonstrates excellence in its external stonemasonry and joinery as well as its internal plaster ceilings, leadlight panels and stair details.
3. The Court heard expert heritage evidence from Mr Stephen Davies, for the applicant, and Ms Margaret Desgrand for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 7. Each of the experts also prepared evidence in chief, with Mr Davies' statement tendered as Exhibit D and Ms Desgrand's statement tendered as Exhibit 4.
4. The heritage experts have agreed to the following design parameters to provide guidance to a Stage 2 design for 196 Pitt Street. They are as follows: i. The street wall height of the new infill building at 196 Pitt Street should be no higher than the projecting cornice of 198-200 Pitt Street, so that the parapet profiles (pediment and projecting pilasters) of the heritage items either side at 198-200 Pitt Street and 194 Pitt Street remain visually prominent; ii The exterior should reinforce the masonry character of surrounding development including the heritage items on the site. The exteriors above the awning should comprise a high proportion of masonry; iii The exterior should have a high level of articulation and façade depth with the property boundaries, commensurate with the heritage items. Consideration should be given to SDCP 2012 cl 5.1.6(5) that permits projections over the boundary of 450mm to further strengthen articulation. iv Glazing should be set behind deep reveals, consistent with the heritage items v The front façade should have a hierarchy of architectural treatments with height, characterised by the palazzo forms of the heritage items. During oral evidence the height referred to in (i) was confirmed as RL 42.31.
5. In summary, the concept proposal involves conservation works: 202-204 Pitt Street Restoration of the Pitt Street facades, including fenestration and reinstatement of the parapet statue; Reinstatement of light wells; Re-exposure of the lantern in the Billiard Room to light by the removal of the existing metal roofing; Reinterpretation and reinstatement of significant interiors within 202-204 Pitt Street. Specifically the removal of the existing mezzanine floor within the former Corinthian Room to reinstate the double height volume of the space; Restoration of the former Billiard Room including reinstatement of windows; 198-202 Pitt Street Removal of non-sympathetic additions to the façade and restoration works; Reinterpretation of the open veranda to level 1(Esparanto Room); Reconstruction of the lower bar and its significant interiors; 194 Pitt Street Façade, above the awning, retained and restored; Interiors retained and restored with the exception of the internal stair. The heritage impact assessment also makes the following statement: The redevelopment and the subsequent stage 2 DA also provides a significant opportunity for the redevelopment of the ground floor facades of all heritage items to be more sympathetic to the original shop fronts.. (Tab 4, Exhibit A)

What is significant?

1. The Conservation Management Plan (CMP) (Tab 3, Exhibit A) prepared as part of the Development Application identifies the following site elements as having high significance: 194 Pitt Street Façade, not including shop front. 198 - 200 Pitt Street Façade, not including shop front. Spaces: Lower bar (ground floor) Fabric: Lower bar (ground floor) - linings, fittings and finishes, including encapsulated components glazing and original bar front. 1. 202-204 Pitt Street Façade, not including shop front Spaces: Former billiard room on the second floor Former Saloon 1st and 2nd floor (potential to reconstruct) Fabric: Original structure Former Saloon 1st and 2nd floor Corinthian room (1st floor and mezzanine) - cast iron columns and inner face of the sandstone façade Level 2 ceilings Former Billiard room - structure and internal finishes, including coffered ceilings - encapsulated timber clerestory fabric, including any remnant glazing and leadlight.
2. Mr Davies evidence is that the proposal allows for the substantial retention of the former Symonds building at 194 Pitt Street, with the proposal seeking only minor alterations to this building.
3. In relation to the City Tattersalls Club building at 198-200 Pitt Street it is Mr Davies assessment that the proposed demolition acknowledges the altered nature of the interiors and the lesser significance of the fabrics and spaces (Tab 4, Exhibit A). His assessment concludes that the ground floor bar (referred to as the lower bar) is the only interior space within this building considered to be of heritage significance.
4. It is Mr Davies evidence that the proposal allows for the greatest retention of fabric at 202 - 204 Pitt Street on the basis that the building is the most intact, has the most significant interiors and which, whilst modified, has the ability to be reconstructed. In particular he identifies that the proposal provides the positive heritage benefits of the restoration of the significant interiors as spaces of the Former Saloon Bar (1891), the Corinthian Room (1891), Administration Level 2 (1891) and the Former Billiard Room ( 1914). He also notes that the proposal provides for the retention and conservation of significant roof elements, such as the ballroom lantern.
5. In his evidence, Mr Davies argues that significance is not all about fabric but also the continuity of use (Tab 4, Exhibit A). In his assessment he places weight on the social significance of the ongoing association of both 198 - 200 and 202-204 Pitt Street with club use.
6. It is Ms Duggan's submission that the applicant has used the CMP as a tool to identify the areas of heritage significance, which need to be retained, and those that have a capacity to accommodate change. Further she states that the applicant has: …taken advantage of the non-listed building, insofar as it provides an area which has no heritage significance, which is capable of accommodating the majority of the work needed to carry out the development. And then we have spread from that to the maximum area that would be required to facilitate the tower proposal, with the podium, in an area which is identified as being capable of taking this development. (transcript pg 5)
7. Based on the evidence before the Court the designation of significance for 194 Pitt Street is broadly agreed. However the Council contends that the assessment and ranking of significance in the remaining heritage items in not correct and that this in part arises from an inadequacy in the CMP. It is the submission of Mr Galasso that: if the fundamental starting point is flawed - and, for the reasons Ms Desgrand expresses, it is - namely, the conservation management plan, then all you ever end up doing is trying to retrofit examples of unsatisfactory planning at the outset. It's not as if you can accommodate or deal with issues of heritage by adding matters to a flawed assessment at the outset. Rather, it ought to have been done in the first place. (transcript pg 19)
8. The Council contends that the CMP is inadequate and in her evidence Ms Degrand outlines her concerns with the CMP as follows: Firstly, the heritage items are viewed as a series of two dimensional surfaces and not three dimensional forms, each supported by a structure, and within which are a series of spaces which are sequentially experienced. As a consequence it does not discuss the form, spatial character and configuration, legibility or the structure of the buildings. Secondly it assesses only what is visible on the surface, and has undertaken only limited physical investigation to investigate what lies behind later accretions. … Thirdly, the level of documentary investigation is inadequate. … Fourthly, the CMP is self-contradictory in its assessment of significance and in its policies and as such, the CMP does not establish a clear direction as to the overall approach to fabric and spaces based on gratings of significance. … (Exhibit 4)
9. Ms Desgrand's assessment identifies additional site elements as having high significance, these include: The majority of 198-200 Pitt Street is appropriately classified as high heritage significance with the exception of:

• The modified ground floor entrance;
• The lift (new lift in original location);
• Insertions into the light wells and modified walls around the light wells;
• The inserted ground floor mezzanine level;
• The inserted second floor level at the rear of the building; and
• Roof top addition at the fifth level.

1. In her evidence Ms Desgrand notes that the CMP does not provide detail or an assessment of the "Turner" structural system (within the lower bar area of 198-200 Pitt Street), other than to assign a high significance to the fabric that encases it. The significance of the lower bar's structural system in itself, and how the development impacts on it is a fundamental heritage issue in dispute between the parties.
2. Ms Desgrand asserts that an assessment of 198-200 Pitt Street against the criterion outlined in the NSW Heritage Office Guidelines - Assessing Heritage Significance 2001 (the guidelines) should conclude that the lower bar area has high significance under criterion (c). An item is significant under this criterion if it is important in demonstrating aesthetic characteristics and/ or a high degree of create or technical achievement in NSW (or the local area). In support of her conclusion, she argues that the Turner structural system (detailed below) demonstrates technical innovation in the use of concrete as the City Tatersall's club is among one of the earliest multi storey buildings to use a reinforced concrete frame structure, and that remain in the inner Sydney area. Her evidence is that the lower bar of 198-200 Pitt Street represents the second earliest use of the Turner system in the inner Sydney area, and possibly NSW (Exhibit 4). Her reasoning supporting its high significance and the need for retention is as follows: The use of reinforced concrete by private architects was limited by the Act as there were no relevant codes. As Federal and State departments were exempt from such regulations the first use of concrete in Sydney was in Government projects. Concrete technology began to be used in Sydney from 1907, but in a limited manner, initially for the floor and stair structures only, with steel columns and beams (majority concrete encased) and brick masonry continuing to be used for the main structure. … In 1916 amendments to the Building Act were approved to permit the use of reinforced concrete in non-government buildings. … The earliest known remaining reinforced concrete building in the Sydney Local government area is the former Wrigley's factory in Rosebery. It was the first in NSW to utilise the Turner system… … The Astor Building remains the next earliest, a 13 storey block of flats in Macquarie Street in 1923… This was followed by: Manchester Unity of Oddfellows building at 185 Elizabeth Street Sydney in 1923; Eagley Building at 143-145 York Street Sydney in 1924; Edward Fay Ltd (lateral addition) at 379-385 Pitt Street (cnr Liverpool) also in 1924; and City Tatersalls at 198-200 Pitt Street Sydney in 1924. … At City Tatersalls, the 'mushroom' column capitals were unusually covered with decorative set plaster and the lower section covered in timber wainscoting (Queensland Maple) to achieve a decorative effect. This is a rare use of decoration applied to the system. The use of the Turner System provides the long central span that gave a large column free central space, with minimal structural depth and maximised natural lighting through the large steel framed windows along the long eastern and western sides of the room. At City Tattersall's, however each flat plate thickening above each column was interconnected by shallow beams. … The comparative table establishes that the eastern club room [lower bar] of City Tattersall's Club building represents the second earliest use of the Turner System in the inner Sydney area, and possibly NSW. As such it has high significance. Further, this structure is highly intact. Evidence remains as to the original decorative plaster to the column capitals, although the extent of its unknown to ascertain its level of intactness. …. Therefore I conclude that under Criteria C, the building has high technological significance from as an (sic) early intact example of the use of a reinforced concrete framed multistorey building in Sydney. It is only one of six reinforced concrete multi storey buildings in Sydney that remain from the period 1916-1925. Further the building has high technological significance from (sic) as the second earliest intact example of the use of the Turner system in NSW. The use of the Turner system at City Tattersall's in a decorative manner is rare. Most early uses of the system were in factories or warehouses. (Exhibit 4)

• the front façade;
• the 1891 roof lantern;
• the interior of the main saloon space;
• the remnant fabric and openings that delineate the pre-existing courtyard space between the front (1891) and rear (1914) portions of the building;
• the 1914 lantern above the Billiard Room;
• the light wells and the open terrace areas; and
• the main saloon at First floor.

Demolition and reinstatement of the Lower Bar:

1. In relation to the significance of the lower bar, the experts agree the space and the fabric are of high significance. In dispute between them, and the parties, is: 1. whether the demolition and reinstatement of the fabric is appropriate; and 2. what the significance is of the structure that supports the space.
2. The reinforced concrete structure of 198-200 Pitt Street comprises two structural systems: 1. The six level front portion is a reinforced concrete frame comprising beams in two directions supported by reinforced concrete columns set out in a square grid. The floors between the levels of the building are also reinforced concrete. 2. The three level rear portion uses a system referred to as the 'Turner' system, which incorporates flared radial bar reinforcement within the head of the columns, to support the flat plate concrete floor. The flared tops of the columns and the reinforced slab eliminate the need for beams and produce larger spans between columns.
3. In her evidence Ms Degrand concludes under Criterion C of the guidelines the heritage item at 198-200 Pitt Street has high technological significance, in addition to her assessment of the fabric and the space [refer par 59]. Her evidence in chief concludes this is warranted on the basis that the structure of the rear portion of the building is an early intact example of the use of a reinforced concrete framed multi-level building in Sydney. It is one of only six reinforced concrete multi storey buildings in Sydney that remain from the period 1916-1925. Further the building has high technological significance as the second earliest intact example fo the use of the Turner System in NSW. The use of the Turner System at City Tattersalls club in a decorative manner is rare (Exhibit 7).
4. The proposal is to remove all of the 1935 fit out fabric to the bar and to reinstate those elements once the building construction above is completed. The extent of works is shown in the following extract of the ground floor plan: Area outlined in green is the lower bar, circular columns comprise the support components of the Turner System [refer 61(2)].
5. The method of achieving the demolition and reinstatement is outlined as follows: This removal permits temporary back propping within the bar to support new levels above during construction without any impact on the heritage fabric within the bar. The permanent support of these levels will be provided by deep beams at Level 3 in the pool well space. Two new columns will be built in the light well at the rear of the building to support the deep beams. The size of the columns running through the lower bar area on the Ground Floor have been limited to the existing heritage column dimensions (and locations) to facilitate the reconstruction of the space. This will be achieved by using steel tubes filled with concrete and reinforcement. The columns will be clad using the original heritage features.
6. A key distinction between the experts is the significance and importance of the retention of the lower bar in situ, and the 'Turner' system of structure contained behind the 1930's fit out.
7. In his oral evidence Mr Davies agreed that the Turner system, in and of itself, was of heritage significance. This is consistent with his evidence in the joint report which states: …The proposal provides for the removal of much of the non-significant fabric [in 198-200 Pitt Street] and enhancement of the extant significant fabric. The building is generally of low significance with the exception of the 1935 lower bar finishes and associated Turner columns, four of which are to be retained. The retention of the original concrete frame construction has been incorporated on the basis of the significance attributed to his method of construction (Exhibit 7).
8. In contrast to the view of Ms Desgrand the evidence of Mr Davies is that the level of demolition is acceptable as the parts to be demolished have low/moderate significance, and because the remainder of the heritage items are to be considered to a high level. He also argues that the structural evidence of Mr Wilshire can be relied on, and in particular he notes Mr Wilshire's conclusion that provided due attention is paid to the detailed design and the construction methodologies, the current proposed works appear to be quite feasible without undue risk to the heritage fabric that has been identified for retention (Exhibit F). Mr Davies concluding comments in relation to the lower bar are that: The application is for the conservation of the buildings and also about the continuity of the use. The proposal provides for the removal of much of the non-significant fabric and enhancement of the extant significant fabric. The building is generally of low significance with the exception of the 1935 Lower Bar finishes and associated Turner Columns, four of which are to be retained. The retention of the original concrete frame construction has been incorporated on the basis of the significance attributed to this method of construction (Exhibit 7).
9. It is the evidence of Ms Desgrand that the original layer of the Club room (lower bar) is as significant as the 1935 Bar fit out, and on the basis that its structure is rare, it is more significant (Exhibit 7). She concludes that the proposed demolition of six of the ten original columns destroys the integrity of the structure and is not supportable [refer reasoning at par 59].
10. In contrast the evidence of Mr Davies is: No significant fabric remains in the areas to be demolished except for fabric of the Club Room, that is, the 1935 fit out and its associated Turner columns to be retained attached to the concrete framed construction. This sampling is adequate, as if removed the 1935 fit out will still have a sampling of the columns. The proposed Bar methodology whereby the 1935 column and walls (sic) linings and plaster ceilings are removed and reinstated does not pose a risk. The proposal is to keep the steel framed windows, to reinstate and to back light the club room (Exhibit 7).
11. It was confirmed by the applicant's structural engineering expert, Mr Wiltshier, that the structural design of the proposed tower will result in no additional load being placed on the remaining heritage structures. Mr Hennessey in his evidence confirmed for the Court that the partial demolition of the Turner system, and the associated fabric, in the lower bar is to provide a structural zone for the placement of new supports for the podium and tower proposed by the concept proposal. In his oral evidence, Mr Hennessey also confirmed that the Turner system currently operates as an integrated approach to providing support for the floor above, and it ties into the engaged piers along the wall of the lower bar.
12. Mr Hennessey's uncontested evidence was that the columns in the location of the lower bar are required to provide stability and wind resistance to the tower and that no alternative engineering design is possible for a tower of the proposed dimensions in its current location on the site.
13. Whilst the evidence of the experts focussed on the proposed demolition of the fabric in the lower bar, the proposal also removes the same quantum of fabric on the floor below and above (to allow for the continuation of the columns and structural system).
14. It is Ms Duggan's submission that the significant characteristics of the lower bar: its sense of space; the spatial arrangement of columns that define the space; the social significance arising from the ongoing use of the space for club activities and the aesthetic significance of the 1935 fit out are unaffected by the proposal. In relation to the Turner system it is her submission that this fabric is not available for inspection without removal of some fabric and a representative sample is sufficient to maintain its significance. Further she states: You have a series of columns, capitals, and beams. And you have an interplay between those three features. What Mr Davies tells you is that the interplay between those three features, if it is considered to be of significance, has been retained in the area that is identified to be retained, because we are keeping the columns, the beams, and the interplay between the roof slab, floor slab, in the area to be retained. You don't need all of the system to understand the system. … (the applicant asks the Court) to accept, is that the representative example of the totality of the system is sufficiently expressed by the keeping of the columns and the system identified in the area for retention. (transcript pg 7)
15. In contrast it is the submission of Mr Galasso that the significance that arises from the Turner system is, in part, its intactness and that it exists a system of columns and beams which will be significantly impacted if it not contained in whole. He submits that Council does not agree that part retention achieves appropriate heritage management: Now, we say simply the fact of its demolition is the antithesis of heritage conservation. It's certainly inconsistent with the guidance principles in the listing; it's certainly inconsistent with any notion of the Burra Charter; and it's certainly inconsistent with any process that would recognise that on a site in which there is, as I started at the outset, a significant degree of alteration, one of the places that is not altered is this bar, yet this seems to be the focus, as it were, of the alteration proposed by the applicant. And the approach to tokenism - and it really is tokenism that the applicant has adopted - could find many examples in many extreme circumstances, you've only got to pick a heritage item and imagine that half of it is removed but that an applicant says, "But the remaining bit is a representative example of what was there." (transcript pg 7)

Demolition of original staircase at 198-200 Pitt Street

1. The concept application also seeks in principal approval for the demolition of the original staircase at 198-200 Pitt Street. This original stair connects the public spaces at ground, first and second floor.
2. It is the evidence of Mr Davies that the original staircase is degraded and its significance is not high enough to warrant retention under the overall plan. It does not work with the location of the new structural core of the building, the enlarged clear floor plate that is necessary for the Club and Hotel, nevertheless (proposal is) conserving the significant elements inside and outside the building. The location of a new stair in a location nearby retains a stair as a central element in the overall plan of the building which reinforces the original planning and makes sense of the retention of the lower bar and the spaces on both sides of the central core. Mr Davies concludes that the pattern of movement and the circulation of people through the building will be similar to the current arrangement, despite the demolition proposed (Exhibit 7).
3. In the alternative, Ms Desgrand argues that the demolition of the stair is sought to allow the proposal to locate the residential and hotel lift lobby in its place. The lift lobby cannot be located further northwards to allow the original stairs to be retained due to the proposed location of the loading dock. It is Ms Desgrand's evidence that the reinforced concrete structure of the staircase is original and that the staircase is significant despite the removal of the original wall finishes. She argues that the existing stair and its significance could be enhanced through a conservation strategy (Exhibit 7).
4. Further Ms Desgrand argues that the existing spatial configuration of the ground floor of 198-200 Pitt Street is compromised as follows: The dual fire stair within the main lift core inhibits connectivity between the retained portion (former Billiard Room) because the main lift core above Ground Floor is closed off by the dual fire stair ('scissor' stair) shown in the excerpt from the indicative plan for Level 1. There is no alternative location for the two fire stairs that serve the tower. At Ground Floor Level, building services and fire egress passages inhibit the interpretative reconstruction of historic shopfronts. The Hotel Lift cores and lift lobby compromise the north eastern corner of the front portion of the building at all levels. The north- south 'Wall beam' to support the cantilever of the podium and town compromises levels 4 and 5.

The conservation works

1. As noted at [par 48] the concept proposal includes a number of works that seek to enhance and restore the heritage significance of the items.
2. It is Ms Duggan's submission that the Court, in assessing the impact of the proposed works on the heritage significance of the item, is required to consider both the detrimental and beneficial impacts in forming any conclusion.
3. It is Mr Davies evidence that the restoration works are a positive conservation outcome and will enhance the heritage significance of the items.
4. Whilst Ms Desgrand expresses concern in relation to the impact of the proposed building envelopes on the significance of the lanterns (detailed below), and seeks a broader scope of works, her evidence is broadly supportive of the conservation works proposed by the applicant. The additional conservation works sought are detailed in the following extracts from her evidence in chief: Main Saloon First Floor level Removal of the four later columns supporting the mezzanine. Removal of the mezzanine and the second floor infill. Removal of the second floor infill to re-establish a visual connection between the lantern and the Main Saloon space. Reconstruction of the eastern wall and the semicircular arched window and two side windows Re-establish the southern corridor as a link through to the rear of the building. Reconstruction of missing partially removed detail such as the engaged arches to the northern and southern sides. Existing connections through to the adjacent building should be infilled and new connections confined wit fit within the engaged arches. Interpretive reconstruction of the timber joinery enclosure to the front balcony. Removal of later ceilings to expose the original zinc linings, and reconstruction of these where missing, and application of interpretive colour schemes throughout. Second Floor level Removal of the second floor infill to re-establish a visual connection between the lantern and the Main Saloon space. Reconstruction of the original window joinery to be installed in the former original window openings that remain in the eastern wall Reconstruction of missing partially removed detail such as the engaged arches to the northern and southern sides. Existing connections through to the adjacent building should be infilled and new connections confined wit fit within the engaged arches. Re-establish the second floor balcony Interpretive reconstruction of the timber joinery enclosure to the front balcony. Removal of later ceilings to expose the original zinc linings, not only the original ceilings of the lantern but also the original ceilings of the perimeter spaces (and reconstruction of these where missing) and application of interpretive colour schemes throughout Ground Floor level The original central entry should be reinstated as a meaningful operational entry that leads through into the ground floor interior interpreting the original central axial arrangement of the interior. As three separate entries are required to service the proposed uses (hotel, residential, club and gym) it is logical that the reinstatement of this entry would benefit the proposal. The proposed use of the ground floor interior as a Gaming Room further inhibits the retrieval of significance, because state legislation requires that the Gaming Room be screened from the street. The use is inappropriate. To retrieve significance, the original southern side entrance should also be reconstructed and reinstated as an operational entrance, whereas the indicative scheme proposes a narrow fire escape. To retrieve significance, the original extent of the 1891 ground floor interior should be defined by reconstruction of the parts of the original eastern wall, and the courtyard beyond that wall should be reinterpreted.

Impact of the proposed building envelopes on significance of the heritage items

1. It is the evidence of Mr Davies that the proposed envelope for the tower and the podium has an acceptable massing that maintains the settings and views of the heritage items. It is his view that the Stage 2 DA will address the impact of the actual scheme, to be developed within the approved envelope, and will be assessed on its merits (Exhibit 7).
2. Following the site view as part of the proceedings the applicant amended the proposed building envelope that cantilevered over the Billiard room (western) lantern at 202-204 Pitt Street.
3. It is the evidence of Mr Davies that although the building envelope proposed retains a cantilever over the eastern lantern at 202-204 Pitt Street this is acceptable. He is satisfied that: 1. Adequate light will be available for the lantern to be operable; 2. The lantern is still recognisable in the street scape; 3. Any impact from these works is offset by the restoration works proposed.
4. In his evidence in chief Mr Davies concludes: The proposal presents an opportunity to improve the heritage items and their collective streetscape contributions through the reinstatement of sympathetic shopfronts and through demolition of 196 (Pitt Street) and provision of a more sympathetic infill than currently exists.. The proposed tower retains the extant podium of development with the tower substantially setback (10m) to mitigate visual impacts and with proposed infill matching the scale of adjacent extant items. … The heritage items are retained, maintaining a consistent podium of development which responds to items in the immediate vicinity (being the David Jones Department Store and Former Fays Chambers) to the northeast and north of the subject site. … The upper tower is located to the northern side of the site, to enable retention of the highly significant 202-204 however is substantially setback (10m) from the Pitt Street frontage to mitigate visual impacts. The tower will form part of a backdrop of tower development, with the heritage items maintaining visual prominence in the streetscape (Exhibit A, tab 4).
5. In the alternative it is Ms Desgrand's view that: - the tower element will dominate the setting of, and overbears, the two heritage items at 198-200 and 202-204 Pitt Street in views looking north towards the site from those locations along the western footpath of Pitt Street owing to its height and insufficient setbacks from Market Street and Pitt Street. - the tower envelope will dominate the setting of, and overbears, the two heritage items at 192 - 192A and 194 Pitt Street in views looking south towards the site from locations in Pitt Street Mall owing to its height and insufficient setbacks from Market Street and Pitt Street. … - the scale of the new development envelope, its impacts on settings and views of heritage items and special character area, are of an extent that would preclude the achievement of design excellence in a stage 2 application under SLEP 2012 cl 6.21(4)(d)(iii).
6. In relation to the impact of the proposed building envelope to the roof scape of the heritage item at 202-204 Pitt Street it is the evidence of Ms Degrand that the proposed cantilever will have a detrimental impact on the significance of the two lanterns. Her evidence is that the 1891 lantern (western) is a highly significant and rare example of such roof lanterns that remain in Central Sydney (Exhibit 4).
7. During the course of the proceedings the applicant tendered an alternative plan which increased the setback of the podium building envelope on the Pitt Street façade. This amendment increased the set back to 10m at proposed level 6, and to incorporate greater retention of heritage fabric at level 05. This alternative is detailed in Exhibit N. The oral evidence of the experts is that this increased setback would address any visibility of the podium above 198-202 Pitt Street from the street view.
8. It is Mr Galasso's submission that the approval of the concept DA, and its associated building envelope, will create an expectation of yield and uses that are possible on the site. As such, he argues that the impact of the building envelope on the significance of the heritage items needs to be considered and determined at this stage to ensure that an outer boundary to those impacts is established.

Impact of works on significance

1. In relation to the impact of the proposed works on the significance of the items Mr Davies conclusion is that: Facade: In terms of the streetscape view of the buildings, the proposal will be sufficiently differentiated from the streetscape to not depreciate an understanding of the significance of the item, the individual entity of the item or the relationship of the group to the streetscape. It is considered that the buildings will be clearly read and their visual prominence will be conserved. His view is supported by the analysis that Pitt St is a narrow street which limits the ability to view the proposed tower in mid-block from a distant view and restricts a viewer's ability to appreciate the tower element in its totality while simultaneously considering the heritage items at street level (Exhibit D).

Relationship of the heritage items with the proposed podium:

1. During the proceedings, as a result of the evidence of the heritage experts, the applicant proposed an decrease in the proposed building envelope to provide additional setback of any built form from the billiard room lantern. This amendment is detailed in Exhibit N. It is Mr Davies conclusion that the relationship of the proposed podium to the three heritage items is satisfactory.
2. It is Ms Desgrand's evidence that the development does not conserve the heritage significance of the three items on the site, or the setting and views to them or the heritage items in the vicinity of the development proposed. Specifically she states: … The tower and podium cannot be structurally independent and requires that 60% of the significant heritage item at 198-200 Pitt Street to be demolished and excavated beneath; The heritage item at 198-200 Pitt Street is reduced to two remnant portions that are fettered by structural supports for the tower, building services and fire escapes and separated by an impenetrable core. The intrusions behind and at street frontage inhibit the retrieval of shopfronts; The cantilever over the heritage item at 202-204 Pitt Street inhibits the conservation of the two lanterns and recovery of their function, and interpretation of the former courtyard, and obscures a significant roof scape; The CMP does not sufficiently demonstrate significance. Its process of investigation and analysis; documentary, physical and comparative, are unsatisfactory and as such cannot adequately inform an examination of the constraints and opportunities for the conservation of significance and the management of the place nor provide a sound basis for formulation of policies to guide the future management of the place; and There are no proposals in the documents that are stamped at Stage 1 that outline sufficient heritage benefits to the three heritage items other than isolated conservation works to retained fabric and vague interpretation of a stair at ground and to second floor levels of the central heritage item, two lanterns and interpretation of a later stair at 202-204 Pitt Street. In my opinion these interpretative works would not justify an award of heritage floor space which is roughly 4 times the site area or 4:1, let alone the proposed floor space yield of 14.118:1. … The scale of the new development, its impacts on setting and views of heritage items and of a special character, and the proposed demolition and fragmentation, is of an extent, that the adverse heritage impacts inherent in the envelope would preclude the achievement of design excellence in a stage 2 application under SLEP 2012 cl6.21(4)(d)(iii). Excellence in conservation practise can only be achieved through strategies that maximise the potential for the retention and conservation of heritage significance and allow the three heritage buildings to maintain their integrity. (Exhibit 7)
3. It is Ms Desgrand's assessment that the heritage constraints of the site have not been given appropriate weight in the development of the design and this has resulted in a concept proposal that seeks greater demolition, redevelopment and a new building envelope than can be sustained by the site and its heritage fabric. It is her evidence that the applicants proposal relies to heavily on the demolition of heritage fabric as a means of accommodating the required servicing of the site including provision of a lift core, vehicular access for loading and unloading, substation, plant and amenities. It is her conclusion that this results in the loss of integrity of the items fabric, structure and spaces (Exhibit 4).
4. In submissions Ms Duggan argues that what the Court is being asked to determine is, in the stage one application, is this envelope with the extent of heritage demolition that is proposed, in conjunction with the extent of heritage restoration, which is proposed, an acceptable outcome on the heritage significance of these heritage items? … It is her conclusion that this is an application which has produced a volume of high‑intensity consideration at a very detailed level, which would be sufficient to give the Court sufficient comfort that there has been enough consideration of this proposal; that the envelope, when fixed, will ensure that there is a limited amount of change to the heritage building; that the change that is proposed to the heritage building is appropriately located; and that the improvement that form part of the application will retain and enhance the heritage significance of these buildings… (and) on the basis of the heritage constraint, we would suggest to the Court that the works that we're proposing to do, in conjunction with the identification of the maximums of intervention, the Court would be satisfied. (Transcript pg 12)
5. In submissions Mr Galasso argues that controls expressed in broad documents such as local environmental plans operate as maxima controls. They always operate that way, and they are always dependant upon site exigencies. It is his submission that in this case the applicant has a paradoxical approach to heritage conservation, and the result is, in simplistic terms, and unacceptable one in terms of the sporadic selection of aspects of heritage conservation that may be said to be apt to being conserved and apt to being not conserved. (Transcript pg 20)

Findings

1. Simply put clause 5.10(4) of LEP 2012 asks the consent authority to consider the impact of the proposed works on the significance of the heritage item. In these proceedings each of the properties that are of local significance are separately listed in LEP 2012, and therefore the consideration of impact must be completed for each item. The acceptability of the heritage impact, in totality, is then assessed under s79C(1)(b) of Act, along with the remaining matters of consideration under that clause, to determine whether the development warrants approval.
2. I accept the evidence that, in addition to the heritage significance detailed in the relevant statements of significance [refer par 45], 198-200 Pitt Street has heritage significance under criterion C for technical achievement. I accept the assessment detailed by Ms Desgrand in her evidence (Exhibit 4), and summarised at paragraph 59, detailing the reasoning that support this conclusion.
3. With the benefit of a comprehensive site inspection on the first day of the proceedings and a review of the detailed evidence and submissions provided to the court in this matter I find that the demolition works proposed to the lower bar will detrimentally impact this significance for the following reasons: 1. I prefer the evidence of Ms Desgrand that the significance of the Turner system arises in part from the integration of the columns and beams as a structural grid, and in the case of 198-200 Pitt Street its intactness; 2. In part that significance arises from the unique decorative use of the Turner system, and its intactness, both of which will be impacted by the proposal. On the evidence, the structural system at City Tattersall's is unique in the use of a flat plate at the head of the column which is thickened and links to the engaged piers; 3. The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. I accept the submission of Mr Galasso at [74] and in this instance I find that in order to retain that significance it is necessary to maintain more than a representative sample of the system (Cracknell & Lonergan Architects Pty Ltd v City of Sydney [2016] NSWLEC 1159 at [27])
4. I accept that the proposed development will retain the social significance of the heritage items at 198-200 and 202-204 Pitt Street by the continuation of the club use on these sites.
5. On the basis of the evidence before the Court I am satisfied for the reasons detailed by Mr Davies at [76] that the impact of the demolition of the ground floor stair 198-200 Pitt Street is not significant. I am satisfied that the proposed staircase is located in such a way as to retain it as a central element in the overall planning of the floor and the movement of uses through the key spaces within the ground floor. I find that the demolition of the stair, on its own, is not a detrimental impact sufficient to warrant the refusal of the application.
6. I accept the submission of Ms Duggan that the Court should balance the conservation works proposed in determining the extent of any impact on the significance of a heritage item, and ultimately in the Courts assessment of the application as a whole under s79C of the Act. The wording of cl 5.10(4) makes it clear that the Court must consider the effect of the proposed development on the heritage significance of the item concerned.
7. At paragraph 101, I concluded that the works proposed to the lower bar will have a detrimental impact on the heritage significance of 198-200 Pitt Street. In balancing that impact against the proposed works detailed at [par 48] and the maintenance of the social significance of the building, I am not satisfied that the proposal achieves the objective of cl 5.10(1)(b) of LEP 2012 to conserve its heritage significance. Balanced against the conservation works proposed by the application I conclude that the impact remains sufficient to warrant refusal under s79C(1)(b) of the Act. Clause 5.10(4) is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 5.10(4) and consequently there is no power to grant consent to the development application.
8. For completeness, I have also considered the evidence of the experts in relation to the proposed building envelope and its relationship to the heritage items and their significance. In relation to the presentation of the proposed building envelope to the heritage facades, I prefer the evidence of Mr Davies at [91] and conclude that the proposed setback of the development as detailed in Exhibit N is acceptable. I have reached this conclusion on the basis that from the photomontages provided to the Court I can comfortably conclude that the building envelope will be sufficiently setback from the streetscape to not depreciate an understanding of the significance of the item.
9. In relation to the building envelope over the heritage item at 202-204 Pitt Street I concur with the evidence of Ms Desgrand that the building envelope for the podium should not overhang the roof scape of the western lantern [88]. I find that the building envelope for the podium proximate to the lantern should be restricted in its depth to the boundary with 198-200, in line with the setback proposed for the eastern lantern in Exhibit N. I have reached this conclusion on the basis that the form of the envelope in this location is over bearing to the lantern, and reduces the pre-eminence of the pediment of the heritage facade.

Conclusion

1. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the item, I am satisfied that the effect of the demolition works proposed is unacceptable and sufficient to warrant the refusal of the application. Consequently there is no power to grant consent to the development application and the application must fail.
2. During the proceedings, leave was granted to rely on amended plans. This was not opposed by the Council. The amended plans sought to address issues raised by the experts in their joint conference, consistent with the usual practice of the Court (Marinkovic v Rockdale City Council [2006] NSWLEC 601). Section 97B of the Act provides that an applicant may file an amended application other than to make minor amendments and, if so, the Court must make an order for the payment by the applicant of those costs as set out in s 97B(2). Having regard to the matters raised in Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15, Pepper J [at 42] I find the amendments in this case to be appropriately categorised as minor. There are not a number of amendments, significant reassessment of the application was not required, the concept was not changed, new issues were not raised and the amendments were responsive to the issues raised by the experts.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is dismissed; 4. Development application DA D/2015/1214 for a Stage 1 Development Application concept proposal of a mixed use podium and tower with a height of up to 168m (RL 187.04), vehicular access from Pitt Street for loading and servicing, and in principal approval for the demolition of heritage fabric and conservation works at 194 Pitt Street, and 196-204 Pitt Street Sydney is refused. 5. The exhibits are returned with the exception of exhibits 1, A, B, L, N ……………. D M Dickson 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: 30 May 2017