Rowell v City of Sydney Council

Land and Environment Court (NSW)|2016-01-28

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) in relation to a Development Application D/2015/1378 for alterations and additions to an existing dwelling and shop at 75-77 Lower Fort Street Dawes Point (the site).
The development application was lodged with the respondent Council on 24 September 2015, and the Class 1 appeal was lodged against a deemed refusal on 30 November 2015. On 12 January 2016 the Council granted development consent subject to conditions. The appeal relates only to the imposition of conditions (2), (3)(g) and (3)(h).

The site and locality

The site has primary street frontage to Lower Fort Street and a secondary frontage to Devonshire Street. The building appears as two storeys in height from Lower Fort Street and three storeys in height at the rear when viewed from Devonshire Street.
The Statement of Heritage Impact provided in support of the application (ex D) describes the building in the following terms: The existing building dates from the Inter-War period and has been built in the Free Classical style with external walls of dark red-brown face brick decorated with rendered and painted bands and parapet detailing. … An original suspended, riveted steel awning projects across the entire Lower Fort Street frontage of the building at ground floor level. The steel roof cladding of the awning slopes back towards a box gutter adjacent to the eastern façade. At ground floor level on Lower Fort Street (eastern elevation) is an original glazed shopfront with a central door opening. The shopfront takes up most of the façade area at this level. On the southern side of the ground floor façade is a timber-framed, glazed door that provides entry to the existing residence.

The application

The development application sought consent for the demolition of an existing enclosed verandah on ground level, construction of a new enclosed verandah addition, sunroom at lower ground level and a new bathroom on the first floor. The Statement of Heritage Impact (ex D, p 5) describes the proposal as aiming "to provide a very modest increase in the living area and amenity of the existing building", and notes (p 7) that the main items of work are "the construction of a new living area (enclosed verandah) at ground floor level and the addition of a sunroom at lower ground level". The plans submitted with the application (ex C) show on Drawing DA-09 "new steel grilles to shop door and front door, to provide security when doors are open for ventilation".
The development application is for integrated development requiring approval under the Heritage Act 1977, and the Council referred the application to the Heritage Council on 24 September 2015. The Council received draft General Terms of Approval (GTAs) by email on 14 December 2015 (ex 2, tab 3). The draft GTAs required certain design changes and processes, including site protection works and archival records. The draft GTAs were used as the basis for the Council's heritage assessment (ex 2, tab 2, p 6).
A previous development application for alterations and additions to the building, including a new roof addition (DA/2014/754), was refused by the Council. An appeal against that refusal was unsuccessful: Rowell v Council of the City of Sydney [2015] NSWLEC 1246.
In these proceedings, the matter commenced with a conciliation conference pursuant to s34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). No agreement was reached and the matter proceeded to hearing pursuant to s 34AA(2)(b) of the Court Act.

The issues

In her Statement of Facts and Contentions (ex A), filed after the Notice of Determination dated 12 January 2016, the applicant identified three conditions that should be amended.
Condition (2) requires that use of the shop on the ground floor be in conjunction with the residence for "home occupation" as defined in the LEP. In its Statement of Facts and Contentions (ex 1) filed on 23 December 2015 the Council had noted that the plans submitted with the application label the front ground floor room as "shop"; that the Conservation Management Plan (prepared for the site by Tropman and Tropman Architects in March 2012 for the NSW Department of Finance and Services, and referred to in the applicant's Statement of Heritage Impact; ex 2, tab 16) and Statement of Heritage Impact note that the subject building was purpose built as a shop and residence and remained as such since its construction in 1928 until the premises were vacated in December 2011; that use of the front ground floor room as a shop would require a change of classification of the building under the Building Code of Australia (BCA) which would require upgrading of the building including fire separation requirements; and that the Statement of Environmental Effects and Heritage Impact Statement did not address the use of the ground floor room as retail, or address the suitability of the building for adaptive re-use as required by cl 7.22 of the LEP. The Development Application Assessment report recommending conditional approval noted (ex 2, tab 2, p 5) that on 5 January 2016 the application had been amended to include a "home occupation" use in the former shop, which retained the class 1(a) classification under the BCA.
In her Statement of Facts and Contentions (ex A) the applicant stated that the notation on the plans referred to the commercial area of the mixed commercial/residential building; that the shop has always been used by the residential occupier of the premises; that there is no need to address a change of use as there is no such change; and that there was no requirement in the development application to refer to the shop except in respect of restoring the outside façade and installing a security door, the shop having been repaired internally in 2013 under an exempt works order.
The Council agreed to the deletion of condition (2).
Condition (3) provides Heritage Design Modifications, some of which are derived from the Heritage Council draft GTAs. Condition (3)(g) and (h) provide: (g)The extent of the new opening between the proposed living room on the ground floor and the proposed verandah is to be limited to 2,300mm, between the outer (western) edge of the door opening and the outer (eastern) edge of the central window opening. (h)To reduce the visual impact of the security grilles on the shopfront, the grilles are to be installed in front of the doors rather than across the entry to the recess.
The applicant sought clarification of condition (3)(g), as to the extent of removal of the wall. That matter was clarified, and the Council agreed to the amendment of condition (3)(g) to provide a reference to an annotation on plan DA-09.
In relation to condition (3)(h), there was no issue as to the location of the security grille at the front door to the residence, however the location of the grille at the shop front door remained in dispute. The applicant seeks to have approval for the security grille in line with the building envelope, for the following reasons (ex A, paragraph 2.2): A security door to the shop recessed entry can only serve its function if it is in line with the building envelope. The shop has a solid fire rated door. A security door abutting this door will enable ventilation but limit the security benefit. A principal purpose of the security door is to restrict access to the shop recess, particularly after dark. This is to prevent trespass and unsociable behaviour associated with pub patrons and others which includes sheltering, smoking, urinating etc in this area. There are numerous examples of shop security doors in Argyle & Kent Streets where recessed entries have been protected along the building boundary line. Allowing an effective security door will allow removal of the temporary planter pot which is used to deter access to the recess.
The Council accepts that a security grille is appropriate, however opposes the location of the grille as proposed by the applicant.

Planning controls

The site is zoned R1 General Residential under the LEP and the proposed development is permissible with consent.
Clause 5.10 of the LEP relevantly provides: (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, …… (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, …. (iii) a building, work, relic or tree within a heritage conservation area, ….. (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, …… (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.
Clause 6.21 Design Excellence provides the objective of delivering "the highest standard of architectural, urban and landscape design", and requires that regard must be given to certain matters, including how the proposed development addresses heritage issues and streetscape constraints (subcl (4)(d)(iii)).
Sydney Development Control Plan 2012 (the DCP) applies. Section 2.8 provides a Locality Statement for Millers Point, and includes the principle to "retain and conserve the heritage significance of Millers Point". Section 3.9 Heritage provides objectives and provisions, which are relevant to the development, including Heritage items (section 3.9.5) and Heritage conservation areas (section 3.9.6). Development affecting a heritage item is to "(a) minimise the extent of change to significant fabric, elements or spaces" (3.9.5(1)(a)). Section 3.10.4 provides for Significant Shopfronts, with the objective to "encourage the retention of original, early significant shopfronts and ensure the design of street frontages is not detrimental to the aesthetic quality of the street", and includes the provision that "alterations and additions to significant shopfronts within heritage conservation areas must not compromise the heritage significance". Figure 3.18 shows "typical building elements within early shopping strips", including an overhanging awning, hamper, glazed display window, and recessed entry area.
The Inventory Sheet for the item (I564) under the LEP includes the following Statement of significance, and Recommended management: Statement of Significance: No. 75-77 Lower Fort Street is a rare surviving example of a purpose designed and built Inter-War Period Free Classical Style shop and residence. With the Hero of Waterloo hotel at No. 81-83, and its neighbour at No.79 Lower Fort Street, it represents the commercial-retail hub that played an important part in servicing the local community. The building has social significance as it has been used for its intended purpose as a local shop and residence continuously for 83 years (from 1928 until 2011) serving the local community. It demonstrates the intervention of the Sydney Harbour Trust in promoting local community facilities in the context of the major reconstruction works undertaken following the outbreak of the Bubonic plague. This purpose built retail and residential building is an important component in the long line of important structures along the western side of Lower Fort Street which have contributed to the character of the State significant Millers Point Conservation Area. Date significance updated: 30 Jul 14 … Recommended management: The building should be retained and conserved. All conservation, adaptive reuse and future development should be undertaken in accordance with the Australian ICOMOS Charter for Places of Cultural Significance (The Burra Charter). A Heritage Assessment and Heritage Impact Statement, or a Conservation Management Plan, should be prepared for the building prior to any major works being undertaken. There shall be no alterations to the façade of the building other than to reinstate the original features. Any additions and alterations should be confined to the areas of less significance, should not be visually prominent and shall be in accordance with the relevant planning controls. The principal room layout and planning configuration as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces should be retained and conserved. Any additions and alterations should be confined to the rear in areas of less significance, should not be visually prominent and shall be in accordance with the relevant planning controls.

Evidence

The parties consented to observations on the site and in the locality during the conciliation conference forming part of the evidence in the hearing. The view of the locality included a number of retail/commercial premises and residences in Argyle Place and Kent Street.
The Council relied on expert evidence from Mr John Poulton, heritage specialist, who prepared a statement of evidence (ex 3) and gave oral evidence. Mr Poulton's statement of evidence included photographs of 7 Argyle Place, 23 Meagher Street Chippendale and 78 Erskine Street Sydney, and in Attachment B a survey of shopfronts in the Millers Point area. All those shopfronts, with the exception of residences at 68 Bettington Street and 67 Windmill Street, were included in the view. Mr Poulton states that the building is the only purpose built designed shop and residence in the Millers Point area that dates from the 1920, and forms an important later layer of built fabric to the Lower Fort Street streetscape; it has retained high integrity and is clearly able to be read as an Inter-War period local shop and residence, and the original shopfront with its angled, recessed entry and show windows and the suspended riveted steel awning enables a clear understanding of the building's original use. The site is one of five purpose built combined shops and terraces in Millers Point built after the land resumptions in the 1900s by the Sydney Harbour Trust (the others being 68 Bettington Street, 1-7 Argyle Place, 6-12 Argyle Place, and 21-29 Kent Street), and all are listed on the State Heritage Register as well as by the Council. Mr Poulton referred to his survey, noting that on the nine recessed shop entries viewed, none had security grilles across the entry to the rest while two, Nos 7 and 8 Argyle Place, had grilles adjoining the doors similar to what is required by condition (3)(h). He did not support on heritage grounds the proposed grilles, as they will detract from the character of the shopfront and have a negative impact on an element of high significance; they will not be in keeping with other recessed shopfronts of purpose built shops and residences in the area, none of which have grilles across the entry to the recess at the street boundary; the recessed entries to shopfronts were not designed to be enclosed, which grilles across the entry to the recess from the street effectively do; there is no precedent in the Millers Point area for such an approach, which if approved could encourage others to install grilles across the entry of recesses to shopfronts or open entry porches to houses; they are contrary to Policy 10.6 of the Conservation Management Plan that no new work "shall alter or negatively impact on elements of the external façade that have been identified as elements of High or Exceptional Significance"; and they are not in line with section 3.10.4 Significant Shopfronts of the DCP.
In Mr Poulton's opinion placement of the grilles directly in front of the shop doors rather than across the entry to the recess from the street will lessen the visual impact of the grilles on the shop front, and still allow for security of the shop space and ventilation when the doors are open while retaining the openness of the recess. The residence within the building does not require access through the recess entry of the shop front, there being a separate entry door. Mr Poulton's opinion was that the approach advocated in condition (3)(h) is a reasonable sensible and consistent approach that will result in an acceptable visual impact on the shopfront while providing for ventilation and security for the shop, as has been used with other heritage listed recessed shopfronts within the Millers Point area.
In oral evidence Mr Poulton commented that the photographs of Erskine Street and Meagher Street are examples of what a grille could look like, with Meagher Street an example of a detracting element. There is insufficient evidence as to what the proposed grille would look like. He accepts that fig 3.18 in the DCP is not the same configuration as the subject site, however its purpose is to show what the elements of a shop front are; the subject site is a later building, and is different to others in the area. He agreed that the Burra Charter does not state that change cannot occur, however it is about managing change and ensuring that there is minimal impact.
The applicant provided a witness statement responding to Mr Poulton's statement of evidence (ex B). In that statement the applicant noted that there had been no issue relating to the security doors to both openings raised by the Council in the previous development application DA2014/754 or in the Heritage Council's draft GTAs; and that the façade is not intact, as the awning and threshold to the recessed shop entry are not original and the front brickwork has been damaged over the years. The combined factors of the bus stop, nearby Hero of Waterloo Hotel, altered smoking laws and the large shop awning providing significant weather protection and no nearby neighbours opposite to overlook the site all contribute to the need to secure the recess. The applicant did not consider that Mr Poulson's examples to support the condition that the security doors must be set into the shop recess were appropriate: the property should be assessed based on its location in the Millers Point/Dawes Point conservation area, and notwithstanding that, neither 23 Meagher Street nor 78 Erskine Street are a good comparison; 7 Argyle Street has no residential element and one side of the recessed area is masonry; and 8 Argyle Street has a wider inset with a door and recess elevated from the street with two steps up and has no awning. The most compatible building with components of both residential and commercial mixed use is the corner of Kent and Argyle Streets, at 9a and 9b Argyle Place and 21a Kent Street with three examples of entry doors recessed into the property and security doors installed along the building line at the street frontage. Other former commercial buildings adapted for reuse as residential (24-26 Kent Street, 12 Kent Street, 73 Windmill Street) have security doors either at the building line or slightly set back. Residential properties at 1, 7, 25, 31, 33, 39 and 57 Windmill Street are built to street frontage with set back for the front door entry, and all have security gates on the building line approximately 1.5m high. The applicant states that it is reasonable and appropriate to utilise security doors either adjacent to the front door or at the street elevation in the conservation area, depending on the security requirements of the relevant property; the security requirement at the site requires prevention of access to the recess and it is appropriate to allow the grille to be at the street side. The applicant was not cross examined on her statement.
The Statement of Heritage Impact states in relation to the proposed grilles (ex D, p 13): The grilles are proposed so that the can be locked closed during the day when the doors are open, allowing natural ventilation into the shop space as well as through the house. There is currently no cross ventilation possible at this level of the building as the front door cannot be left open as this would allow direct public access into the house. The existing shop front, which does not contain any operable windows, is fabric of high significance and cannot be altered. Steel grilles were previously fitted to this opening but have been removed. At the front door, it is proposed that the frames for the grilles be set into the mortar joints so that the work is reversible if required at a later date. For the shop doors, it is proposed that the doors be fitted with pivot hinges that will fix into the structure above and below the door leaves, minimising the impact of the fixings on original fabric.
The Statement of Environmental Effects (SEE) contains a similar description (p7).

Consideration

The applicant submits that the proposed grilles provide security and ventilation. The shop front entry has different characteristics to other shopfronts in the area, with glazing on both sides of the recessed entry, and a lower alcove which extends only to the height of the door. They have been living there for three years and people huddle under the awning to stay out of the weather, and urinate. The proposed location is not unusual, as most of the premises that are not shops have a barrier at street level. She would agree to a condition requiring Council approval for the design of the grilles. In reply, the applicant agreed that it is a significant shopfront, however it has been altered, and there has been damage to the brickwork and the front façade is not as intact as it once was. This is the only Inter-War infill shop and has a different layout.
The Council submits that the site is significant in heritage terms, which requires appropriate treatment of the façade. There is no other example of a shop front with a grille at street level. The entry to the residence is through another door which will have a security grille, and it is not the case that this is the only entry to the property. Given the significance of the site it is not appropriate to put the grille at street level.
The plans submitted with the development application do not provide detail of the proposed design and construction of the proposed security grilles, which Mr Poulson acknowledged made assessment of impact more difficult. The Statement of Heritage Impact and SEE address the method of fixing with pivot hinges, and do not provide any detail as to design. In submissions the applicant stated that the grilles would be simple, in a dark colour the same as the fire rated door to the shop so as not to be visually intrusive; and consist of fixed sections on each side with two doors opening into the recess.
Assuming that any grilles could be designed in a form and colour considered appropriate by the Council's heritage assessment pursuant to any amended condition, the issue is whether it is appropriate to permit the installation of a security grille at the street level entry rather than adjoining the solid entry door to the shop.
Based on the view, I accept Mr Poulson's evidence that none of the entries to shops or other commercial premises in the locality have grilles at street frontage, and that those properties that do have grilles at the street frontage, including the converted post office at 12 Kent Street and the other properties at 9a and 9b Argyle Place and 21a Kent Street relied upon by the applicant, are residential uses.
The view confirms the applicant's evidence that the recessed entry is different to other retail and commercial premises in the vicinity: it is glazed on both sides, rather than having only one splayed section, and glazing and masonry; and the recess extends only to the height of the door rather than to the first floor of the building. I accept that it is not identical to the shopfront illustrated in fig 3.18 of the DCP, which is more reflective of the entries to other retail or commercial premises in the vicinity. I accept that there have been changes to the façade as described by the applicant, which include removal of a heavy metal grille extending across the entire shop frontage as shown in a photograph annexed to the applicant's statement of evidence. However, notwithstanding those factors, based on the view I accept Mr Poulson's evidence that the building is still clearly able to be read as a local shop with its angled, recessed entry and show windows and suspended awning.
The Inventory Sheet recommended management (ex 2, tab 12) includes that there should be no alterations to the façade other than to reinstate original features, and that any additions and alterations not be visually prominent. Section 3.9.5 of the DCP provides that development affecting a heritage item is to "minimise the extent of change to significant fabric, elements or spaces" (3.9.5(1)(a)). Section 3.10.4 provides that alterations and additions to significant shopfronts "must not compromise" the heritage significance
I accept the applicant's evidence that she seeks security to prevent trespass and unsociable behaviour in the recessed entry to the shop, and ventilation. However, security and ventilation would be achieved with a grille adjoining the solid door. A grille in that location would, based on the view and the photograph of 7 Argyle Place provided in Mr Poulson's statement of evidence, be in keeping with other recessed shopfronts of purpose built shops in the area, and have less visual impact on the shop front than one at the street frontage. That would be consistent with the recommendations of the Inventory Sheet for the subject site and with the provisions of sections 3.9.5 and 3.10.4 of the DCP. I accept the evidence of Mr Poulson that requiring installation of the grille adjoining the solid door will result in an acceptable visual impact on the shopfront while providing for ventilation and security for the shop, as has been used with other heritage listed recessed shopfronts within the Millers Point area. On that basis, condition 3(h) should be confirmed.

Conclusion

For the reasons above, the appropriate determination is that development consent should be granted, subject to the conditions imposed by the Council in its determination of 12 January 2016 with the deletion of condition (2), and amendment of condition (3)(g) and annotated plan DA-09. Those conditions include condition (3)(h) in the form imposed by the Council.
The orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2015/1378 for alterations and additions to an existing dwelling and shop at 75-77 Lower Fort Street Dawes Point is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, A and C. Linda Pearson Commissioner of the Court 11091 of 2015 Pearson (C) (179 KB, pdf) 11091 of 2015 Annotated plans (599 KB, pdf)

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: 16 February 2016

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (1)