The merits - cl 32(4)
24Ms McCabe and Mr Byrnes disagree as to whether the proposed development satisfactorily addresses the following subsections of s 32(4) that must be taken into consideration before consent is granted:
(a) the impact of the proposal on the scale and streetscape of the surrounding locality,
(b) the impact on surrounding properties, particularly in respect to overshadowing, loss of privacy, and visual intrusion,
.
(k) the degree of modification of the footprint, façade and height of the building,
.
(m) the size and mix of units or apartments,
25As I understand, the disagreement in relation to s 32(4)(b) related only to "visual intrusion" and this was addressed as part of the discussion on "scale and streetscape of the surrounding locality" (s 32(4)(a)).
26Mr Brian McDonald for the council and Mr Paul Davies for the applicant provided expert heritage evidence and disagreed on whether the proposed development satisfactorily addresses the following subsection of s 32(4).
(e) the heritage aspects of the existing building,
The evidence - scale and streetscape (cl 32(4)(a))
27Mr Byrnes states that the existing building form has a height and scale greater than ordinarily permitted in the zone due to the buildings historical land use. The extension of the existing building provides for an increase in height (up to 3.24 m) and broadening of the existing building envelope. Even accepting the generous provisions for the conversion of industrial buildings in cl 32; Mr Byrnes states that it was never contemplated that it would change the buildings fundamental form through substantive addition, extension or increased height. The proposal is excessive having regard to the bulk and scale being greater than the predominant two-storey built form in the area.
28Mr Byrnes further states that while no objection can be raised to the retention of the existing lawful building, any increase in height is unacceptable, as it will result in a building of excessive scale. The height of the proposed building will be visible from surrounding properties and streets and will result in a three-storey residential flat building form. The three-storey form will protrude upwards out of the existing building and is an excessive addition that is incongruent with the scale of existing buildings. Considering that the existing form of the building provides the capacity for two full levels of residential units and considering the general two-storey nature of surrounding development, the increase in scale and height brought about by the proposed development will have an unacceptable impact.
29Ms McCabe disagrees. She states that the streetscape comprises a variety of building forms and scale. The existing building occupies 100% of the site and is constructed boundary to boundary. The existing building at RL 15.21 at the ridge has a height between 7.2 m and 7.6 m and is essentially the scale of a two-storey structure. The height of the building is increased by 3.24 m from RL 15.21 m to 18.45 m. This results in the third level element being 1.48 m above the similar form on the adjoining industrial building to the east, and 1.5 m higher than the structure on the corner of Shelleys Lane (142a Juliett Street). Ms McCabe notes that the new level is setback from the parapet such that the prevailing form from Shelleys Lane and Empire Lane reads as two levels: essentially consistent with the existing gutter line. While the third storey element can be viewed at a distance along the northern end of Shelleys Lane, at the first floor level of the buildings fronting Victoria Road and Juliett Street and buildings from Victoria Road, Ms McCabe notes that these viewing locations are a significant distance from the site. The increased height, while greater than the existing height, is a modest increase when combined with the roof area of the new level that occupies approximately only 53% of the building footprint.
30Ms McCabe states that building footprint remains essentially unchanged. The eastern and southern facade also remains essentially unchanged whereas the western facade maintains the essentially solid elements with minimum openings for the residential use of the building. The degree of modification to the facade is minimal. Overall, and given the eclectic nature of the neighbourhood, the proposal does not result in any unreasonable impacts on the scale and streetscape of the surrounding locality.
Findings- scale and streetscape
31There was general agreement that the building was appropriate for conversion and that the treatment to the facades of the building was acceptable. The major issue between the parties was the height of the third level and the impact on the scale and streetscape of the surrounding locality.
32I am satisfied that the proposed third level roof form unacceptably adds to the bulk and scale of the building in the streetscape of the surrounding locality. While I accept that the third level cannot be viewed from the streets immediately surrounding the site, it was agreed that the new level could be viewed from more distant locations. I have given no weight to the perspectives provided by the applicant (Plan No DA-01 and Plan No DA-03 of Exhibit A) as they focus on the views from the immediate streets where it was agreed that the third level cannot be viewed. Perspective SL 08 on Plan No DA-03 provides a view looking west from Shelleys Lane where the third storey would be visible however this perspective provides only the form of the proposed development and does not distinguish the existing building from the proposed third level.
33Similarly, the architectural plans are also unhelpful in terms of considering the proposed third level. Much attention is made in the architectural plans to identify the changes to the existing buildings through colour, shading and notations of different features however the proposed floor is poorly represented in the architectural plans, being uncoloured and represented only by a single line that identifies only the outline of this level (Plan No DA-10 and Plan No DA-11 of Exhibit A). The detail of the third level is only available through the sections (Plan No DA-12 of Exhibit A).
34Notwithstanding the inadequacy of the architectural plans, I can comfortably conclude that the proposed development will unacceptably impact on the scale and streetscape of the surrounding locality. The proposed third level will run almost the entire length of the building at a height some 3.4 m above the existing height and this will create a scale that is inconsistent with the scale of development in the area. The fact that the proposed third level will not be visible from the streets immediately adjoining the site is not the end of the inquiry. The ability to view the site and the proposed development from other locations is equally important in the assessment of scale and streetscape. In this regard, the scale of development is predominately one and two-storey residential with some industrial uses to the east. The existing building sits comfortably within the scale associated with the nearby residential and industrial uses, notwithstanding the different forms of land use. The proposed development will disrupt this existing compatible scale with a building that would largely overpower the one and two-storey residential dwellings and even exceed the height of nearby existing industrial uses.
35Principles 1, 2, 3, and 4 of SEPP 65 are also relevant for scale and streetscape. These state:
9 Principle 1: Context
Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.
Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.
10 Principle 2: Scale
Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings.
Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
11 Principle 3: Built form
Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
12 Principle 4: Density
Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents).
Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.
36For the reasons set out in the preceding paragraphs, I do not accept that the proposed development represents "good design" when considered against Principles 1, 2, 3, and 4 of SEPP 65.
37Having considered the impact of the proposed development on the scale and streetscape of the surrounding locality, pursuant to cl 32(4)(a), I am satisfied that impact is sufficient to warrant the refusal of the application.
The evidence - heritage aspects (cl 32(4)(e))
38The contention states that:
"the proposed development fails to respect the heritage significance of the building and inadequate information has been submitted that the application that shows that there has been proper consideration of the articles and Guidelines of the ICOMOS Australian Burra Charter (Articles 15, 21 and 24 of the Burra Charter) and a detailed assessment of the significance of the components of the building fabric and its spatial qualities".
39Expert heritage evidence was provided by Mr Brian McDonald for the council and Mr Paul Davies for the applicant. Both are architects with expertise in heritage matters. The experts acknowledge that the site is not identified as a heritage item under LEP 2001 but it is identified as a heritage item and is within a heritage conservation area under LEP 2011.
40Mr McDonald and Mr Davies agree that the Burra Charter (the Charter) underpins heritage assessments even though it is not noted or quoted in the LEP 2001. They agree that the Charter also needs to be read as a whole and that an understanding of the level of heritage significance of the place is essential to understand how to apply the Charter to a particular place.
41Mr McDonald states that Article 15 addresses change, particularly that decisions are to be guided by the significance of the place and its appropriate interpretation. Article 21 is relevant because it addresses adaption and provides that adaption is acceptable where it "has a minimal impact on the cultural significance of the place" and involves "minimal change to fabric, achieved only after considering alternatives". Article 24 is also relevant because the statement of significance in the heritage inventory sheet clearly identifies the historical significance derived from the manufacture of boxes since the 1920s and as a local workplace. The ability to interpret these associations is embodied in the fabric of the building.
42Mr McDonald states that the primary structural elements of the building comprise the timber posts and trusses in a three-gable form and brick wall. These elements are of a higher order of significance (moderate) than the envelope materials and concrete floor (low). Mr McDonald notes that the "metal rod trussed factory building" is a specific description in the Statement of Significance in the heritage inventory sheet SHI 2030294. The west doors and sign are a higher order of significance as original fabric of interpretive value (moderate). The envelope materials are susceptible to repair and replacement over time; the primary structure is not. In his opinion the proposal removes the more significant "bones" completely and substantially reconfigures or internally obscures the lower significance envelope elements.
43In considering the conversion, Mr McDonald states that it is appropriate to consider what components of the buildings demonstrate the former use and character of the building. The removal of the components that comprise the underlying structure and shape severely diminishes the significance of the item and the ability to interpret its historical meaning and associations with an industrial activity.
44Mr Davies states that the Charter is not referenced in LEP 2001 or 2011 and does not have a specific role in assessment of a development application. It is a document that provides broad guidance and the terms on which a DCP should be based. It is not relevant to refer to isolated clauses from the Charter, where the LEP and DCP have already been based on it. Importantly, the Charter should be read as a whole and not relied upon selectively.
45Mr Davies states that the building, apart from some changes such as the addition of a doorway and the internal addition of a mezzanine, is largely as it was built and that the nature of the lightweight and minimal construction is that there is no particular element of the building that has a level of significance above any other element. The building is a large shed where the framing and cladding cannot be separated from other features, in terms of heritage value. Overall, the building has modest or moderate heritage value and the various elements share that modest assessment of value. There are no aspects of the building that have high or exceptional heritage value.
46Overall, Mr McDonald states that the extent of change to the buildings facade, height an overall massing would turn it into a totally different built form, negating the simple three bay gable industrial shed character that reflects its former use and construction. Mr Davies on the other hand states that under LEP 2001 the extent of change does not have a major or even significant impact on the form of the building. It will continue to be seen and understood as a form industrial building that has been converted to a new use and the openings and change to the roof area are typical of, and consistent with the types and extent of change widely seen in the adaption of small industrial buildings for residential use
Findings- heritage aspects
47Even though under LEP 2001, the site was not a heritage item nor located within a heritage conservation area, the heritage aspects of the building still need to be considered pursuant to cl 32(4)(e).
48The council's contention relates firstly, to the lack of consideration to certain articles within the Charter, and secondly, an assessment of the significance of the components of the building. The latter was provided during the hearing although there was disagreement between Mr McDonald and Mr Davies.
49On the first matter, I agree with Mr Davies that the role of the Charter is to set a framework for heritage assessments that forms the basis for LEP and DCP requirements. It is not usually used as a means of assessing a development application in the absence of a specific heritage listing in the LEP although the broad principles of heritage conservation are relevant in assessing heritage impacts.
50On the second matter, the term "heritage aspects" is not defined and is not commonly used in heritage matters. Notwithstanding the uncertainty of the term, I am satisfied that it should be given a broad meaning. Even though the site is not a heritage item under LEP 2001; at the time of the hearing, the "heritage aspects" of the site were addressed in a joint report of Mr McDonald and Mr Davies, and also the Statement of Heritage Impact prepared by Graham Brooks and Associates (November 2011). Given the broad meaning of "heritage aspects", I propose to rely on these documents in my consideration of cl 34(4)(e).
51The Statement of Heritage Impact describes the Statement of Significance) as:
The building is of local historical significance for its continuous industrial use for box and case making since the 1920s. Of social significance as a local workplace manufacturing boxes and cases over the same time period. Of research/technical significance as a locally representative c.1920s metal rod truss factory building. Rare for its continual i use for manufacture of boxes and cases since the 1920s.
Description
Three bay factory building located at the southern corner of Empire Lane and Shelleys Lane, of brick and corrugated steel with a gabled corrugated steel roof with box gutters between the gables. The gable ends face Shelley Lane. Timber and metal rod trusses. Larger timber double doors, no window openings. The building is built to the street alignment along both the laneway frontages.
52Mr McDonald and Mr Davies agree that the significance of the building is principally (but not only) related to its now historic use for box manufacturing. That is an associational heritage value. There is also significance embodied in the fabric of the building as a representative example of a modest minimally built industrial building from the inter-war period. The building has streetscape value embodied in the physical fabric and for that, while not characteristic of the heritage conservation area should be retained as evidence of the former industrial uses throughout the area.
53Where Mr McDonald and Mr Davies depart is the extent of the modification of the building and the consequent impact on the heritage significance of the building, including the significance of different elements of the building. I agree with Mr McDonald that the post and truss construction is an important feature of the building and that the loss of this elements is a significant negative aspect of the proposed design. Mr McDonald calculates that 100% of the posts will be lost and 80% to 100% of the trusses lost. There is no valid reason why the heritage significance of the building should not be appreciated from within the building through the retention of the posts and trusses. I am not satisfied that the poles and trusses could not reasonably be included in the conversion of the building for residential purposes. There was no dispute that the posts and trusses are capable of being used in the conversion of the buildings as both experts describe their condition as "good". While the building is simplistic in its design, the posts and trusses are a substantive part of the building, both structurally and visually from within the building. I agree with Mr McDonald that they should be included as part of the conversion of the building. No evidence was provided to suggest that the posts and trusses unacceptably limited the conversion of the building, beyond potentially reducing the number of units. This, in itself is not a matter that would support the removal of the posts and trusses. Mr McDonalds unchallenged evidence was that they could be included in any conversion for residential use, albeit in a different design.
54I am also mindful of Article 21 in the Burra Charter that relates to adaption, and states that adaption is acceptable where it "has minimal impact on the cultural significance of the place" and involves "minimal change to fabric, achieved only after considering alternatives". Mr McDonald states that he is unaware of any alternates being considered and there is no discussion on alternatives in the Heritage Impact Statement.
55I have addressed the height of the proposed building in the previous paragraphs and have found it unacceptable because of the size of the proposed new roof and the significant loss of one of the dominant features of the building; i.e., the three gable roof form. It follows that a loss of this feature of the building is also unacceptable if considered in a heritage context. Additionally, I find the form of the third level unacceptable. The proposed third level roof form is a non-symmetrical form that does not display any characteristics or consistency with the triple gable form that it replaces. The proposed roof form has a fall to the north of 3° and 12° to the south. When viewed from the east and west, the different roof pitches are an obvious and contradictory element within a simple and uncomplicated industrial building.
56Having considered the heritage aspects of the existing building, pursuant to cl 32(4)(e), I am satisfied that additional height and form of the proposed roof is sufficient to warrant the refusal of the application.
The evidence - degree of modification (cl 32(4)(k))
57The degree of modification was largely addressed by the experts under the other considerations in s 32(4) with Mr Byrnes stating that the modification is excessive having regard to the bulk and scale are being greater than the predominant two-storey built form in the area, the heritage value of the building, and the visual intrusion on private and public spaces.
58Ms McCabe states that building footprint remains essentially unchanged. The eastern and southern facade also remains essentially unchanged whereas the western facade maintains the essentially solid elements will minimum openings for the residential use of the building. Overall the degree of modification to the facade is minimal.
59Mr McDonald states that conversion implies that the building would substantially retain most of its form and fabric. In this case, the level of demolition proposed creates an unacceptable level of physical change. The height is also excessive as an outcome of altering the roof of the existing building to create a third floor level because it extends over almost the entire length of the building and introduces a scale greater than the predominantly one and two-storey of surrounding buildings and greater than the existing industrial building to the east.
60Mr Davies states the height increase to be approximately 10% above the current ridgeline and this could not be considered to be excessive. Mr Davies also states that there is no impact on the immediate setting of the building or from locations in adjoining streets. The impact could be described as modest and acceptable.
Findings- the degree of modification
61Mr McDonald and Mr Davies agree on a description of the existing building as :
The building on the site is principally a timber framed structure with a timber truss roof in three longitudinal bays. Two rows of timber columns are located along the internal bay lines. The building has a brick wall adjoining the backyards to the south (presumably to provide fire separation when built) and timber framed corrugated iron clad walls to the other three elevations. Internally the building is not lined. There is a major recessed door entry to the west (that no longer has level access) and a secondary vehicle opening to the north. The building has a range of small window openings and louvres around it. The roof was replaced in the recent past and has both metal and translucent sheeting. The floor is concrete, probably of later date than the original construction.
The floor level of the building is set slightly below street level.
The interior contains a framed mezzanine for storage and amenities within the northern bay. This is a relatively recent addition.
The building has been used until recently for both timber and cardboard box construction and manufacture. It is presently vacant.
Overall the building is in deteriorated but stable condition.
+ The roof is sound.
+ The internal timber posts and roof trusses are generally sound.
+ The walls are damaged with considerable sheet degradation, some rust and evidence of repair work and replacement sheeting.
+ The brick wall appears sound but in need of maintenance.
+ The timber wall framing is generally sound but requires some repair work and stabilisation.
+ The concrete floor has some deterioration
+ The joinery is deteriorated, however the main elements such as the large timber doors remain intact, but weathered.
In its present form the building has a limited range of uses as it is not weatherproof, has no climate control and basic services only.
The building is not BCA compliant and is unlikely to be without significant work.
The building services are basic.
62In general terms, the modifications proposed by the application include:
- External wall sheeting is to be retained in situ on the existing timber framing for all sections of the building that are retained with metal cladding.
- Where sections of wall are to be removed for new openings, re-usable cladding will be salvaged and used to repair or replace damaged cladding elsewhere on the building.
- The external and, where exposed, internal cladding is be painted as required with a grey metallic paint that would be consistent with its industrial character.
- The timber wall framing will be repaired and patched as required to make it sound from the interior of the building.
- Where the existing timber framing is visible within the building envelope, it will remain unlined with its current finishes. It will be cleaned but not refinished.
- It is proposed to retain the existing louvres and minor openings. They will be treated with wood preservative. In time if they fail they will sheeted over to match the exterior cladding.
- In the future as the external cladding fails it will be replaced with new galvanised iron cladding in short sheet lengths. The aim is to replace a facade at a time and to stagger this work over a period of years to avoid a complete change to the exterior of the building.
- The main entry doors (timber) are to be fixed against the splayed walls in an open position, with their current external face facing the street. This will display the painted signage on the doors. The doors will have minor and careful repair work done to ensure they are sound. They are not to be repainted or refinished apart from conservation.
- The small Acme Box Factory sign is to be retained in situ.
- The rear brick wall is to be retained in its entirety. The south face will remain unaltered with its present finishes. The internal face will be cleaned and left in its current form apart from any required structural work.
- The concrete ground slab will generally be retained in situ. It will form the finish for the parking area. Small areas of change will be ramping to provide vehicle access through the new wall opening and provision of stormwater drainage. Drainage will be designed to minimise cuts into the slab. The area of slab under the new units will be retained and penetrations minimised. However the new wall construction will require penetrations through the slab.
- The roof is to be dismantled or, if possible, trimmed in position. The internal columns and roof trusses are to be dismantled. The two end roof trusses are to be retained. It is noted that the current roof cladding is of recent origin.
- The roof trusses are to be cut down and placed back into position (where they are retained) to interpret some of the earlier form and structure of the building. They will not however be continuous.
- The perimeter timber columns are all to be retained in situ.
- The dismantled internal columns are to be re-used to frame the sides of the new street openings.