SJB Interiors v Council of the City of Sydney

Land and Environment Court (NSW)|2015-02-20

Solicitors: Mr M Winram of Maddocks Lawyers (Applicant)

Mr A Hawkes of Council of City of Sydney (Respondent) File Number(s): 10831 of 2014

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of the City of Sydney (council) of a development application (DA/2014/1101) for alterations and additions to convert an existing warehouse building into four attached dwellings, with Torrens title subdivision, at 198 Liverpool Street, Sydney (site).
The key issues in dispute between the parties are whether: 1. the breach of the height standard is well founded; 2. the alterations and additions will have an acceptable impact on the significance of the Heritage Conservation Area; 3. adequate open space is provided.

Site and locality

The site is irregular in shape with an area of approximately 231.1sqm and frontages to Liverpool Street (7.32m), Riley Street (20.13m) and Seale Street (8.23). It is developed with a two storey brick warehouse building with a pitched metal roof and brick gable ends, which has vehicular access off Liverpool and Riley Streets. The building has a nil setback to each boundary and is currently used for automotive panel beating, spray painting and repairs.
To the west on Liverpool Street, the site adjoins a three storey (including one storey below ground level) terrace (186-196 Liverpool Street). To the east, on the opposite side of Riley Street, is a two storey terrace (134-140 Riley Street) and a two storey building (200-200A Liverpool Street). To the north, on the opposite side of Seale Street, is a two storey terrace (151-153 Riley Street). To the south west of the site, on the corner of Liverpool and Riley Streets, is a part two-part nine storey residential flat building (8 Norman Street). On the south east corner there is a four storey mixed use development (144-150 Riley Street).
Development in the locality is a mix of residential and commercial uses in buildings of different heights and styles, with predominantly two storey terraces.

Planning controls

The site is in Zone R1 General Residential under Sydney Local Environmental Plan 2012 (the LEP). The parties agree that the development proposes four attached dwellings and is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives for development in the zone.
Under cl 4.3 the maximum height of the building is 9m and under cl 4.4 the maximum floor space ratio (FSR) is 1:1.75. The maximum height of the proposal is 11.16m which contravenes the standard. The applicant has submitted a written request under cl 4.6 of the LEP (written request) that seeks to justify the contravention.
The site is located within the East Sydney Heritage Conservation Area (HCA) under the LEP and is in the vicinity of a number of heritage items, including 186-196 Liverpool Street and 200-200A Liverpool Street. Clause 5.10 Heritage - Conservation includes the requirement that the effect of the proposed development on the HCA must be considered (cl 5.10(4)).
Clause 6.21 - Design Excellence aims to deliver 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) and bulk, massing and modulation of buildings (subcl (4)(d)(v).
Sydney Development Control Plan 2012 (the DCP) is relevant. The existing building is identified as being contributory on the Buildings Contribution Map of the DCP. Section 3.9 - Heritage provides objectives and provisions, which are relevant to the development, including Heritage conservation area (s 3.9.6) and Contributory buildings (s 3.9.7). Section 3.10 provides objectives and provisions for Significant Architectural Building Types, including Warehouse and industrial buildings older than 50 years (s 3.10.1). It relevantly provides: 3.10.1 Warehouses and industrial buildings older than 50 years The City has a variety of warehouses and industrial buildings including Victorian, Federation, and Interwar periods. These different architectural periods result in various built form characteristics and detailing. Central Sydney, Haymarket, Chippendale, Pyrmont, Ultimo and Surry Hills have examples of Federation and pre-war, interwar and post-war warehouses. These often draw inspiration from Romanesque architecture and feature arched windows and sandstone trimmings. Federation warehouses are typically utilitarian in character and often have simple cubic or rectangular forms reinforced with vertical brick piers terminating in arches and articulated bays at regular intervals. The following objectives and provisions relate to alterations and additions to warehouse buildings that are heritage items on Schedule 5 of the Sydney Local Environmental Plan 2012, draft heritage items or are located within a Heritage Conservation Area Objectives (a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use. (b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building. Provisions …. (2) Alterations and additions are to maintain significant fabric and building elements. (3) A proposed change of use must not compromise the significant fabric and building elements. (4) A proposed increase in floor space outside the existing building envelope is not permitted where it would compromise the significant fabric and building elements. …… (6) Where scope exists for a roof addition, it is to be complementary to, rather than dominate the original building; be simple in form; and able to be distinguished as new work. (7) Additional storeys or roof additions must not result in the removal of the original roof structure where that roof is an essential component of the original building form. (8) Alterations and additions are to: (a) retain the essential geometric form of the existing building when viewed from the public domain; and (b) complement the materials and articulation of existing façade elevations, including distinguishing features that occur at regular intervals. (9) The original or significant pattern of windows and openings is to be retained. (10) All original window frames, sashes and lights are to be retained on prominent elevations and on secondary elevations where considered critical to the significance of the building. (11) Work to the facade is to: (a) retain original and significant elements and finishes including catheads, hoists and face brick detailing; (b) reinstate or restore missing original elements; (c) remove detracting elements; (d) minimise new elements; and (e) not obscure original elements. ….. (14) Face brick and sandstone must not be rendered, painted or otherwise coated. …… (16) Any internal subdivision and change to the layout of floor areas such as the creation new units, is to respect the existing pattern of windows and openings and have minimal heritage impact including on significant structure and views into the interior. ……..
"Attached dwellings" are not a type of development specifically identified in s 4 - Development Types of the DCP but "All development proposals must reference the provision or provisions that best describe that type of development". The parties agreed that s 4.1-Single Dwellings, Terraces and Dual Occupancies best described the development but the conversion of the existing building form would constrain compliance with some controls, such as the provision of private open space at ground level (s 4.1.3.5). The parties disagreed whether the proposed upper level comprised an "attic" or an additional storey and consequently whether the proposal complied with the two storey building height referred to in s 4.1.1(1) of the DCP. Although, Mr Fraser, for the applicant, conceded that it was a storey but nevertheless met the objectives of this control.

Background and proposal

The development application was lodged on 24 July 2014 and sought approval for alterations and additions to convert an existing warehouse building into four dwellings (original application). The proposal involved the removal of the existing roof and the construction of a new roof with increased ridge height (11.16m) and clerestory windows to be used as an "attic" accommodating a bedroom with ensuite. The original application had a "garden light well" at the ground floor of each dwelling to provide light to the second bedroom of Units 2 and 3 and to serve as private open space. Council accepted the written request for an exception to the height standard under cl 4.6 and raised no heritage issues but refused the original application on 25 September 2014 principally on the basis that it did not provide private open space.
The applicant lodged a Class 1 appeal on 7 October 2014. A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held on 7 November 2014 but the parties did not reach agreement and the conference was terminated. The applicant was given leave to rely on amended plans on 27 November 2014 (application). The key change was the deletion of part of the proposed roof and increase in the parapet height to provide roof top terraces for each dwelling. The ridge height and slope of the roof remain the same as that proposed in the original application.
The Amended Statement of Facts and Contentions describes the proposal for which consent is now sought as being for: Alterations and additions to convert an existing warehouse style building into 4x3 bedroom dwelling houses. Each dwelling is three storeys. The works include: Partial demolition of the existing building; Minor excavation; Removing the existing roof to construct an additional storey with rooftop terraces; New openings, refurbishment of the existing façade and windows and the partial infill of existing garage door openings; and Torrens title subdivision into four (4) separate dwellings.
Each dwelling is three levels with a garden light well at the rear. Each dwelling has two bedrooms and a bathroom at ground level, a kitchen, dining and living area at the middle level and a bedroom with ensuite and roof terrace at the top level.

Evidence

The Court visited the site and surrounding area. Objections in response to the advertising and notification of the original application and the application were tendered into evidence. The primary issues raised in the submissions reflect those raised by council. Additional issues include: adverse amenity, visual and acoustic privacy impacts, increased parking demand, contamination and construction impacts. These matters were addressed by council in its consideration of the application and were not found to be reasons to refuse the application.
The Court heard expert planning evidence from Mr G Cirillo, for the applicant and Ms E Robertson, for the Council. Mr S Davies and Mr M Harrison, for the applicant, and Ms J Hill, for the council provided heritage and urban design evidence.

Height and request under clause 4.6 of the LEP

The planning experts agreed on the approach to measuring the "vertical distance between the ground level (existing) and the highest point of the building" in accordance with the definition of building height in the LEP, given that the site contains an existing building. The existing building and the buildings in the immediate context exceed the maximum height limit in cl 4.3 of the LEP. The experts agreed that the maximum height of the existing building is 10.16m at its northern parapet and the maximum height of the proposal is 11.16m at its northern roof ridge, which both exceed the 9m standard. The existing building and the proposal are below the 9m height limit at the southern end of the building but due to the slope of the land the proposed roof ridge would exceed the standard by a maximum of 2.16m at the northern end, which would be 1.368m higher than the existing roof ridge. Mr Cirillo and Ms Robertson disagree on whether the upper level is a "storey" or an "attic" as defined under the LEP and consequently whether the proposal is two storeys and complies with s 4.11 of the DCP.
Clause 4.6 of the LEP provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and …….
Mr Cirillo provided a written request pursuant to cl 4.6(3). The written request states that compliance with the height standard is unreasonable and unnecessary as the proposal will remain a two storey building with the addition of an attic and satisfies the relevant objectives of the standard. The existing building already exceeds the height standard by 1.16m and the proposal will exceed the standard by 2.16m, an increase of one metre. The proposed height is appropriate in its context as it is lower in height (2.96m) than the adjoining terrace and substantially lower than surrounding office buildings and residential flat buildings and meets objective (a) of the standard. The proposal provides an appropriate transition between the site and heritage items and buildings in in the HCA and meets objective (b). The proposal does not impact on any views and meets objective (c).
The written request states that there are sufficient environmental planning grounds to justify contravening the development standard because the proposal is of a form that is compatible with its local setting. The development will retain and enhance significant elements of a contributory building within a HCA, being external walls, structural grid and window openings. The architectural response results in a better building than one which would comply with the standard and adaptively reuses an existing building. Furthermore, the proposal will be in the public interest as it converts a non-conforming panel beating use into four attached dwelling, which is consistent with the objectives for the R1 zone.
The conclusions of the written request are supported by Mr Davies and Mr Harrison who agree that even if the upper level is an additional storey the additional height is justified because of the variety of building types, scales and heights in the immediate visual context and that the proposal is compatible with the heritage qualities of the building and the area. Mr Davies considered that the terrace buildings primarily contribute to the significance of the HCA and that while the warehouse is contributory building it is a form of development that is different to the terrace typology and consequently a flexible approach to the number of storeys and height control is appropriate.
Ms Robertson considered that compliance with the development standard was reasonable and necessary as the proposed height does not meet the objectives of the standard. In her opinion, the height of the building is not appropriate to the condition of the site and its context nor does it ensure appropriate height transitions between the development and the heritage items and HCA. She acknowledged that the surrounding development generally exceeded the height control but considered that the proposal does not respect the two storey nature of existing development and that the clear intent of the height in metres control in the LEP in combination with the height in storey control in the DCP is for a maximum two storey building.
Ms Hill also considered the non-compliance with the height standard to be inappropriate, principally because the removal of the original roof form and parapet to provide an additional storey and terrace is uncharacteristic of the HCA and an unsympathetic change to a contributory building. In her opinion, the additional storey would be visible from the street, result in a building that exceeded the number of storeys and which does not reinforce the existing and desired future character of the area.

Findings

In Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, Brown C outlines an appropriate assessment framework for cl 4.6. He states at [39] to [41]: 39 Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 40 In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 41 A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. Is the proposed development consistent with the objectives of the zone? (cl 4.6(4)(a)(ii))
The objectives of the R1 Zone under the LEP are: To provide for the housing needs of the community. To provide for a variety of housing types and densities. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To maintain the existing land use pattern of predominantly residential uses.
The parties did not raise consistency with the zone objectives as an issue in the proceedings. They generally supported the change from the existing non-conforming panel beating use to a residential use.
Pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is consistent with the zone objectives and is therefore in the public interest.

Is the proposed development consistent with the height standard objectives? (cl 4.6(4)(a)(ii))

The relevant objectives of the height standard in cl 4.3 of the LEP are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views,
The parties agree that any consideration of the breach of the height standard must involve a consideration of the impact on the existing building and its contribution to the heritage significance of the HCA, which for the reasons that I discuss below, are acceptable.
Brown C in Bates Smart at [47] discussed the intent of objective (a) and I agree with his conclusions that the words "condition of the site", should be given: a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case. I have taken "context" to be principally the visual catchment from the site.
If considered on this basis, I agree with the conclusions of Mr Cirillo, Mr Harrison and Mr Davies. Due to the slope of the land, the end of the existing building and the proposal at the corner of Liverpool Street and Riley Street complies with the height control, whereas the northern end of both the existing and the proposal exceeds the control. For the reason, which I discuss below, the changes to the building do not diminish its contribution the HCA. The context of the site is varied and the proposal will be substantially lower than other buildings and the additional height is appropriate within this context.
Objective (b) of cl 4.3 seeks an appropriate transition, in relation to height, between the proposed development and heritage items and buildings in the heritage conservation area. The principal relationship of the building is to the adjoining terraces in Liverpool Street, which are higher than the proposal and are also three storeys, albeit the lower level is below street level. The additional height and changes to the roof will be visible from the public domain but the existing transitional arrangements between heritage buildings and buildings in the HCA will remain largely unchanged by the proposal, I am therefore satisfied that the development is consistent with objective (b).
The parties agree that the proposal is consistent with Objective (c) and does not impact on the sharing of views.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is consistent with the objectives of the height standard and is therefore in the public interest . Is compliance with the development standard unreasonable or unnecessary? (cl 4.6(3)(a) and cl 4.6(4)(a)(i))
The request seeks to justify that that compliance with the height standard is unreasonable and unnecessary in the circumstance of the case by demonstrating that it meets the objective of the standard (see Wehbe v Pittwater Council [2007] NSWLEC 827). As discussed above, the proposal meets the objectives of the height standard and the matters required to be demonstrated have been adequately addressed. Are there sufficient environmental planning grounds to justify contravening the development standard? (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
The proposal is of a form that is compatible with its context and will retain and enhance significant elements of a contributory building within a HCA, in particular its external brick form, including gable ends, structural grid and window openings. The existing building exceeds the height limit and the proposal is a minor increase in height which enables the adaptive reuse of the building to provide dwellings with appropriate amenity and converts a non-conforming panel beating use. I am satisfied that the request has provided sufficient environmental planning grounds to justify contravening the development standard.

Impact on the heritage significance of the HCA

Ms Hill and Mr Davies agree that the existing warehouse contributes to the significance of the HCA. Mr Davies prepared a Statement of Significance for the building which was accepted by Ms Hill that states: 198 Liverpool Street, erected c1925-27 is a utilitarian workshop building of the interwar period. Whilst it is not distinguished aesthetically it presents as a functional building providing characteristic elements stylistically of small workshop buildings in the inner city erected to service the growing automobile industry. The building is not technically, socially or associatively significant however it presents as a contribution to the complex nature of the history of East Sydney.
The experts agree that the contributing characteristics of the building include the brick form of the building and its gable ends and the simple rhythm of openings. Ms Hill considers that the existing timber windows should be retained, which was accepted by Mr Davies. The experts support the removal of the later paint and other detracting elements, such as the exhaust vents.
Ms Hill considered the roof and its relationship to the parapet is an essential component of the original building form. She acknowledged that the original application also involved removal of the original roof structure and the ridge height exceeded the height control to the same extent as the current proposal. However, the original application generally retained the roof form and only inserted a clerestory window, which had less impact. In her opinion, the proposal results in the total loss of the existing roof line and is an unsympathetic third storey addition which dominates the building. The proposal will significantly alter the appearance of the existing building, with a new parapet along the Riley Street elevation, additional windows, and major changes to the form of the roof including balconies, privacy screens and balustrading
Ms Hill considered that the proposal did not comply with a number of LEP and DCP controls and concluded that the extent of change to the building would reduce its contribution to the HCA and therefore adversely impact on its significance.
Mr Davies considered that the essential contributing characteristic of the building is its brick form, including the gable ends, which has been retained and enhanced by the proposal. The proposed addition is setback from the eastern edge of the building and is a simple contemporary design that does not dominate the building and complements its essential characteristics. He referred to other recent examples of warehouse conversions in conservation areas, which provide additional storeys. In comparison, the proposal is a modest addition which involves only a minor increase in height and the change to the roof form is sympathetic in scale and style to the existing building. It is preferable to the roof form and clerestory window proposed in the original application, which also did not retain the original roof structure or its form and exceeded the height control but would confuse what is original and what is new fabric. In his opinion, the proposal meets the objectives of the controls in the LEP and DCP, fits well within the HCA and does not diminish its significance. Open space
Ms Robertson considered that the roof top terraces did not meet the requirement for attached dwellings to have private open space at ground level with a minimum area of 16sqm, minimum dimension of 3m (s 4.1.3.5) and two hours of solar access in midwinter to 50% of the minimum area (s 4.1.3.1) as they were too small, not off a living area and do not receive adequate solar access. Although, she acknowledged that the amenity of any ground level open space would be poor and that the roof top location of the terraces maximises amenity, particularly solar access. Ms Hill considered that the terraces would be better located on the first floor at the rear of the building, to be directly accessible off the living area and minimise heritage impacts. Ms Hill and Ms Robertson considered that only three dwellings should be provided to improve the amenity of the ground floor bedrooms and the size of the living areas and terraces.
Mr Harrison and Mr Cirillo considered that as the proposal is a conversion of an existing building that occupies the whole site it is not feasible to provide 16sqm of ground level open space and that the controls in s 4.1 are directed at "terrace style" dwellings which have open space at the rear. These experts consider the roof top is the optimum location for open space as it maximises solar access to the terraces, provides a pleasant easterly outlook and visual relationship with the street. The proposed terraces range in size from 12sqm to 18sqm and are about 2.21m wide, which is sufficient to provide usable open space. Although they are off what is shown on the plans as the main bedroom, this area could be used as a second living area and therefore provides flexibility for the occupants. The alternative suggested by Ms Hill of providing open space at the rear of the first level would result in reduced solar access and an outlook to a blank wall. It would require the deletion of the light well at ground level and a "snorkel" design to provide light and air to the second bedrooms, which in Mr Harrison's opinion would provide less amenity not only to the bedroom but to the open space and living areas. Findings
The original application was refused by council primarily on the basis that it did not provide private open space to any of the dwellings. The amended application sought to address this by providing terraces on the upper level. However, in doing this, council raised contentions about the height of the building and the heritage impacts of the proposal.
Mr Hawke, for the council, accepted that as the proposal involves the conversion of an existing building it is not feasible to comply with the numerical requirements for private open space in s 4.1.3.5. The provision of the terraces on the roof level needs to be balanced against the heritage impacts of changing the roof form, which in his submission, is unacceptable.
I accept the evidence of Mr Cirillo and Mr Harrison, that the proposed location of the terraces optimises their amenity in terms of open space and outlook and that the terraces are of sufficient size to be usable. While it is preferable that the open space should relate to a living area as required by the DCP, I do not accept that this needs to be resolved by providing open space at the rear of the first level or by reducing the number of dwellings to three as this would provide less amenity for the dwellings to that which is proposed. The option of using the upper level as a living area is available to the occupants if they prefer to have direct access to the terrace off a living area, rather than off a bedroom. Given the constraints of retaining the existing building, the proposal therefore meets the objective for residential amenity in s 4.13 of the DCP to: (a) Maintain or enhance residential amenity by ensuring adequate solar access, landscaping, deep soil planting, visual and acoustic privacy and ventilation.
The question then becomes one of whether the terraces and the changes to the roof form have an acceptable heritage impact.
Clause 5.10(4) of the LEP provides that before granting consent the Court must consider the effect of the proposed development on the heritage significance of the HCA. The inventory sheet for the HCA provides the following statement of significance: The East Sydney Conservation Area has historic and aesthetic significance for its ability to demonstrate the development of an inner city suburb during the mid to late nineteenth century, with later overlay. The area demonstrates the predominantly small lot subdivision, along a grid pattern based on Darlinghurst Road and Oxford Street, that followed the subdivision of the Riley Estate in the 1840s and the incremental subdivision of the Darlinghurst villa estates during the second half of the nineteenth century. This pattern of subdivision, and the predominately terraced housing that developed from it, reflects the rapid population growth in Sydney particularly during the period 1850 to 1900. Development related to institutions as well as residential flat development during the inter-war period (c.1919-1940) is also demonstrated. The topography and dense urban form of the area create a strong sense of place and significant district vistas from higher areas. The area contains a number of aesthetically significant and prominent buildings such as the former St Peter's Church, Burton Street Tabernacle, former Palmer Street Presbyterian Church Group, Caritas House and the former Darlinghurst Police Station, as well as a number of fine terraces and inter - war residential flat buildings.
The DCP includes detailed provisions which must be considered in assessing the effect of the proposed development on the heritage significance of the HCA. The key disagreement between the heritage experts focused on the requirements of s 3.10.1 which provides specific objectives and provisions for warehouses. The existing warehouse contributes to the significance of the HCA. The main contributory characteristics of the building that contribute to the HCA are its brick form, including the gable ends and the simple rhythm of openings. The experts agree that the original roof structure could be removed. Consequently it can be concluded that this is not "an essential component of the original built form" as it meets the requirement in s 3.10.1(7) that: (7) Additional storeys or roof additions must not result in the removal of the original roof structure where that roof is an essential component of the original building form.
In recognising that the original roof structure can be removed, the question is whether the replacement structure is appropriate and meets the requirements of s 3.10.1(6). Council experts accepted that the replacement roof with a clerestory window proposed in the original application was acceptable. However, they consider the amended application to be unacceptable, principally because it does not retain the original roof form. While, I acknowledge that the original proposal more closely replicates the original roof form, I do not accept that the amended proposal would reduce the legibility of the building and its historic use to the extent that it would result in the building that no longer contributes to the HCA. I accept the evidence of the applicant's experts that the proposed roof addition is complementary to, and does not dominate the original building; is simple in form; and able to be distinguished as new work and consequently meets the requirements of s 3.10.1(6) and the other requirements in s 3.10.1 that it does not compromise significant fabric and building elements, retains the essential form of the building when viewed from the public domain, complements the materials and articulation of the existing façade and reinstates the original face brick. The amended proposal has significant benefits to the occupants of the dwellings by providing open space in a location which maximises its amenity. In balancing this against the changes to the contributory building, which is to be adaptively used for residential development, I find that the changes are appropriate and maintain the contribution of the building to the HCA.
Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the HCA, I am satisfied that the effect is acceptable and would not be a reason to refuse the application. Conditions
The conditions of consent were agreed between the parties with the exception of Condition 22(c) which provides: (c) The new windows and doors on the existing building must match the original material, which is timber joinery.
The development proposes to replace the existing timber windows with steel framed windows for the existing and proposed openings to achieve a consistent approach that is compatible with the style of the building. Section 3.10.1(10) requires: (10) All original window frames, sashes and lights are to be retained on prominent elevations and on secondary elevations where considered critical to the significance of the building.
Mr Davies does not consider that the existing windows are 'critical to the significance of the building' but has accepted Ms Hill's position that on balance they should be retained, if in acceptable condition. Mr Harrison does not consider that it is essential that the timber windows are retained and that the proposed steel framed windows are acceptable and a consistent approach to the existing and new windows is preferred.
Although not raised by the parties there is also a contradiction between Condition 22(d) and Condition 23 (c) which require: 22(d) New brickwork to fill in part of existing openings is to match as closely as possible the existing brickwork and bonding pattern, and be slightly recessed to interpret the original openings. 23 Amended architectural plans and materials sample/s shall be submitted to, and approved by, the Council's Director City Planning, Development and Transport prior to the issue of a construction certificate and addressing the following matters in accordance with the philosophy that new work shall be identified as clearly new: …… (c) All new work should be contemporary and the proposed brick infill for the redundant openings shall be redesigned to be constructed of steel or an alternative contemporary material.
Ms Hill suggested the approach in Condition 23(c). Mr Davies and Mr Harrison supported the current design approach but accepted the change proposed by Ms Hill. Findings
Given that the heritage experts have agreed that it is preferable that the timber windows are retained it is appropriate that there be a consistent approach to the whole building and that the new windows also be timber. However, information as to the condition of the existing windows was not provided at the hearing. If upon further investigation, it is found that the condition of some existing windows precludes their retention, then the replacement of the existing and new windows with steel framed windows would be appropriate.
The contradiction between Condition 22(d) and Condition 23 (c) should be resolved by the deletion of Condition 23(c). The proposed design approach where new brickwork matches existing but uses a different bonding pattern and slight recess is acceptable and clearly distinguishes new work from original fabric, upon close inspection.
I have therefore deleted Condition 23(c) and amended Condition 22(d) to read as follows: 22(d) New brickwork to fill in existing openings is to match as closely as possible the existing brickwork but employ a different bonding pattern, and be slightly recessed to interpret the original openings.
I have added a new Condition 23(c) as follows: 23 Amended architectural plans and materials sample/s shall be submitted to, and approved by, the Council's Director City Planning, Development and Transport prior to the issue of a construction certificate and addressing the following matters in accordance with the philosophy that new work shall be identified as clearly new: …… (c) The existing timber windows are to be retained and the new windows and doors on the existing building must match the original material, unless a survey of the condition of the existing windows demonstrates that it is not reasonably feasible to retain the existing timber windows, in which case steel framed windows and doors to existing and new openings may be used.
The other contentions raised by the council would not be reasons to refuse approval of the development application.

Orders 1. The appeal is upheld. 2. The development application (DA/2014/1101) for alterations and additions to convert an existing warehouse building into four attached dwellings, with Torrens title subdivision, at 198 Liverpool Street, Sydney, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 7, A and B, are returned. Annelise Tuor Commissioner of the Court 10831 of 2014 Tuor (C)_Amended on 26.05.2015 (126 KB, pdf)

Amendments 26 May 2015 - Amended Conditions 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: 26 May 2015

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