Tony Legge v Council of the City of Sydney

The site and its context

1. The site is located in King Street, at its intersection with Erskineville Rd. The site has frontages to both streets, as well as Wilson St to the southeast. The site contains the heritage-listed Newtown Post Office (item number 1008), and a recently constructed rear addition. The site has been identified, in the Sydney Local Environmental Plan 2012 (LEP 2012), as a heritage item and a contributory building in the King Street conservation area (KSCA). The original post office building was designed by NSW Government Architect Walter Liberty Vernon.
2. The immediate vicinity of the site includes other heritage items at 280A-290 King St, including the Newtown Mission Uniting Church (item number 1005) and commercial buildings (item 1006 and 1007), as demonstrated in the following extract of LEP 2012 Heritage map, sheet 003:
3. The building has undergone a recent contemporary four storey addition at the rear, fronting Wilson St. The extension contains food and drink premises at the ground floor, with residential apartments above. The completed development included the refurbishment of the post office building.

The proposal

1. The applicant seeks approval for a fifth storey addition containing a one bedroom apartment and the consequential amendment yo the roof top open space.

Public submissions

1. No members of the public addressed the Court at the commencement of the hearing; however objections received during Councils assessment of the application were tendered (exhibit 2).

Planning framework

1. As the development is a residential flat building of three or more floors, containing four or more apartments the consent authority is required to into consideration the requirements of SEPP 65, including the 9 design principles. These principles and controls are further articulated in the ADG.
2. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Tony Legge, registered architect (6409).
3. State Environmental Planning Policy (Infrastructure) 2007 applies to the site as it has frontage to a classified road. The proposal is considered to satisfy the requirements of this SEPP.
4. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
5. State Environmental Planning Policy 32- Urban Consolidation (redevelopment of urban land) applies to the site. The proposal is considered to satisfy the aims and objectives of this policy.
6. Sydney Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2): … (e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing, … (h) to enhance the amenity and quality of life of local communities, (i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres, (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, (k) to conserve the environmental heritage of the City of Sydney, …
7. Pursuant to LEP 2012 the site is zoned B2 Local Centre and the proposal is permissible with consent,. The objectives of the B2 zone are as follows: ● To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. ● To encourage employment opportunities in accessible locations. ● To maximise public transport patronage and encourage walking and cycling. ● To allow appropriate residential uses so as to support the viability of local centres.
8. The maximum height control for the site (cl 4.3) is 15m. The height of the proposed development, and whether it complies with this control, is a matter of contention between the parties. The relevant objectives of cl 4.3 are as follows: (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, …
9. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. Whether the current proposal requires a cl 4.6 variation request for a variation to height is a matter of contention between the parties.
10. Given the site is mapped within the KSCA heritage conservation area, and contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
11. Clause 6.21 of LEP 2012 requires consideration of design excellence. The objective of the clause is to deliver the highest standard of architectural, urban and landscape design. Pursuant to sub-cl (4) consent must not be granted to development unless, in the opinion of the consent authority, the proposed development exhibits design excellence. In determining design excellence, the consent authority must have regard to the following matters: 1. whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, 2. whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, 3. whether the proposed development detrimentally impacts on view corridors, 4. how the proposed development addresses the following matters: a) the suitability of the land for development, b) the existing and proposed uses and use mix, c) any heritage issues and streetscape constraints, d) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, e) the bulk, massing and modulation of buildings, f) street frontage heights, g) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, h) the achievement of the principles of ecologically sustainable development, i) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, j) the impact on, and any proposed improvements to, the public domain, k) the impact on any special character area, l) achieving appropriate interfaces at ground level between the building and the public domain, m) excellence and integration of landscape design.
12. The following definitions in the dictionary of LEP 2012 are relevant: Building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. Ground level (existing) means the existing level of a site at any point
13. The following clauses are relevant to the application, but it is agreed the development meets the required control:

• The floor space ratio (FSR) control for the site (cl 4.4) is 2.5:1, the proposed development has an FSR of 2.31:1. It is agreed between the parties that the development complies with this clause.
• Airspace operations (cl 7.16). The proposal will penetrate the Obstacle Limitation Surface as mapped. The proposal has received approval from the relevant authority.

1. The Sydney Development Control Plan 2012 (DCP 2012) applies to the proposal. DCP 2012 aims to guide development in order to: a) encourage development to respond to its context and is compatible with the existing built environment and public domain; b) recognise and reinforce the distinctive characteristics of the City of Sydney's neighbourhoods and centres; c) build upon the detailed objectives and controls under Sydney LEP 2012; d) protect and enhance the public domain; e) achieve the objectives of the City's Sustainable Sydney 2030 Strategy; f) encourage design that maintains and enhances the character and heritage significance of heritage items and heritage conservation areas; and g) encourage ecologically sustainable development and reduce the impacts of development on the environment
2. The site is located in the locality of North Newtown (cl 2.3.3). The locality statement defines the characteristics of this locality as: North Newtown's character is de fined by King Street as a retail and entertainment centre with a dynamic blend of traditional and contemporary buildings and shop fronts, dominated by the grand silhouettes of the upper floors of the heritage buildings. Retail activity extends down Missenden Road towards the Hospital precinct creating a secondary neighbourhood centre. Fringe retail activity is encouraged on lanes behind King Street to ensure a diversity of activity. The active street front of King Street buffers the quiet residential areas behind. Residential areas are mainly comprised of terrace rows with a consistent scale and proportions, roof design and materials palette. This contributes to the quality of the streetscape. High quality additions and alterations are encouraged to maintain the character and protect residential amenity.
3. Section 3, cl 3.9: Heritage within DCP 2012 has the following objectives: a) ensure that heritage significance is considered for heritage items, development within a heritage conservation area, and development affecting archaeological sites and places of aboriginal significance b) enhance the character and heritage significance of heritage items and heritage conservation area and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features in the public domain. c) [emphasis added]
4. cl 3.9.5 Heritage Items, contains the following specific provisions relevant to this proposal: (1) Development affecting a heritage item is to (a) minimise the extent of change to significant fabric, elements or spaces; ... (c) enable interpretation of each of the significant values of the item through treatment of the items fabric, spaces and setting; (d) provide a use compatible with its significance and which with any changes proposed, including BCA upgrade or the introduction of services will have minimum impact on significant fabric, elements or spaces; ... (f) not reduce or obscure the heritage significance of the item ... (3) Alterations and additions to buildings and structure and new development of sites in the vicinity of a heritage item are to be designed to respect and complement a heritage item in terms of: (a) building envelope; (b) proportions; (c) materials, colours and finishes; and (d) building and street alignment (4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by: (a) providing adequate area around the building to allow interpretation of the heritage item; ... (d) retaining and respecting significant views to and from the heritage item

Expert evidence

1. The joint conferencing process sought to address the issues in contention as detailed in [3].
2. Mr Lindsay Fletcher (for the applicant) and Mr Ben Chamie (for the respondent) provided a joint report on planning issues (exhibit 5). Mr Graham Brooks (for the applicant) and Mr Tony Smith (for the respondent) provided a joint report on heritage issues (exhibit 6).
3. An expert report was also provided by the respondent in relation to the contention of building height exceedance. This report (exhibit 7) was prepared by the Councils 3D Cad/ physical modeller and utilised the footpath spot levels adjacent the boundary from the October 2014 survey (exhibit H) to prepare a 15m height plane for the site. Council pressed that this represented the maximum height control under LEP 2012.
4. At the conclusion of the joint conferencing process a joint report was prepared. The planning experts concluded that Contention 1, insufficient information in relation to current site levels, had been resolved.
5. All experts agreed that compliance with LEP 2012 requirements for Design Excellence followed from analysis of the planning and heritage issues. In other words, a finding of satisfaction (or otherwise) of the proposed developments compliance, as such the objectives of the planning and heritage controls would mirror the same finding in relation to design excellence.
6. As a result of the relevant planning controls there are two jurisdictional preconditions to consent: 1. Subject to a determination of whether the proposal complies with the LEP height controls, the acceptance of the clause 4.6 variation request; 2. Consideration of the impact of the proposal on the significance of the heritage item, and the impact of the proposal on the significance of the heritage conservation area (cl 5.10(54))
7. Given these provisions must be satisfied to provide the consent authority power to approve the proposed development I will address those first, prior to consideration of the merit contentions.

Does the development achieve compliance with height controls?

1. The planning experts disagreed on the level/s that constituted the existing ground level on the site, and therefore whether the development exceeded the LEP 2012 height control.
2. Building height is defined in LEP 2012 as the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. Given the framing of the definition, it is essential to nominate an existing ground level in order to be able to determine the height of the building.
3. The evidence of Mr Chamie, in summary, in relation to the calculation of height was as follows: 1. The site has been built out by the recent construction of the rear extension. As such within the site boundaries there is no point that meets the definition of Ground level (existing). 2. Therefore the appropriate approach is that outlined in Bettar v Council of the City of Sydney [2014] NSWLEC 1070. In applying this in his assessment of the application he utilised the October 2014 survey (exhibit H), and the footpath spot levels adjacent the boundary. He then extrapolated these points to establish a ground plane, and therefore the height plane 15m vertically above this plane.
4. In contrast Mr Fletcher utilised the same survey document, but took the internal spot levels in the centre of the site at the rear to establish the ground plane, and subsequently the height plane. During the proceedings Mr Fletcher distinguished the current matter from the particulars of the Bettar v City of Sydney case as survey information was available, the survey information had been accepted by Council as accurate under the development application for the rear extension and that it was preferable to utilise a consistent known datum for a site. He did acknowledge that the ground level he was advocating was a pre-existing level and not the level of the site at the time of the lodgement of the application.
5. I concur with the approach taken in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 which determines that in circumstances where the site is wholly built out it is appropriate to take the levels of the site at its interface with the public domain. This approach was reinforced in Stamford Property Services Pty Ltd v City of Sydney & Anor [2015] NSWLEC 1189 for the value it provides in placing 'the proposed building in its context, rather than relying on the present built form of any existing development on a site'.
6. This approach is appropriate in the circumstances of this case as the existing ground level of the intersection of the site with the footpath remains relevant before, during and after development and goes to the intent of the control (refer [16]) which is to consider the suitability of the relationship of the proposed building to its context. I don't accept the applicant position that a site survey of levels as they existed prior to an executed development is the starting point for the determination of height. The consideration of the development application relies on the consideration of all matters, including site conditions, at the time of the application.
7. On this basis I find that the proposal relies on an exceedence of the LEP 2012 height controls, and therefore on a cl 4.6 variation request is required, refer par 48.
8. In submissions the applicant asserted that by designating the site with a 15m height limit at the time of the heritage listing under LEP 2012 the Council had in effect designated the site with additional development potential. It is my view however the "core" controls in the LEP include objectives of the LEP (cl 1.2), and the zone (cl 2.3), which seek to ensure that development is compatible with the character and heritage of the locality. Notably the zoning in cl 2.3 is subject to the other provision of the LEP (cl 2.3(4)), including the heritage controls in cl 5.10 as well as the height and FSR controls.
9. The objectives of the height control [at 16] seek to ensure the height of the development is appropriate to the condition of the site and context as well as provide appropriate transition between new development and heritage items. The intent of the LEP controls is compatibility with the character and heritage of the locality. The DCP then provides guidance as to how that compatibility should be achieved consistent with s 74BA(1) of the EPA Act.
10. The DCP is a mandatory relevant consideration under s 79C(1)(a)(ii) of the EPA Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). The consent authority is not entitled to put aside the standard set by the DCP and apply its own standard of what is reasonable (see Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226). Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is to "allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development"
11. On the basis of the above any entitlement to achievement of the maximum height (the relevant control in this case) relies on an appropriate consideration of the other controls under the LEP and DCP, as wells as the other merit assessment considerations under s79C of the EPA Act.

Is the clause 4.6 variation accepted?

1. Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: (a) 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.
2. Mr Fletcher (for the applicant) provided a written request under cl 4.6(3) which seeks to justify the contravention of the FSR standard (FSR Request).
3. As outlined in Bates Smart Pty Ltd v Council of the City of Sydney [2014]NSWLEC1001, cl 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 standard in question (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)). 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)).
4. 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.

Consistency with the objectives of the zone

1. The objectives of the B2 zone are: ● To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. ● To encourage employment opportunities in accessible locations. ● To maximise public transport patronage and encourage walking and cycling. ● To allow appropriate residential uses so as to support the viability of local centres.
2. The objectives of the zone are essentially land use objectives that are not directly helpful in determining whether a height variation is acceptable. However I accept that it can be reasonably argued that the additional height is not incompatible with the above objectives, and compliance with these objectives was not raised as contentions by the Council.
3. Pursuant to cl 4.6(4)(a)(ii) I find that the development is consistent with the zone objectives.

Consistency with the objectives of the standard in question (height)

1. The relevant objectives of the height standard 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, …
2. In this matter importantly the assessment of the exceedence of height needs to be considered in relation to the impact on the heritage significance of the item.
3. I accept Mr Fletchers evidence that the intent of this objective (a) is to ensure that buildings are compatible with the height of development on the site and within the locality. The height of buildings in this locality varies significantly but it is the height of the buildings on the street frontages that primarily sets the context for development. In relation to this heritage building (both the original and new fabric) an additional consideration in determining the context for the development is the strong role of the perimeter street wall and the parapet, These primarily set the presence and character of the building, and its relationship to the streetscape.
4. This parapet line is strongly reinforced in the surrounding and adjacent buildings that form part of the sites context, in particular when viewed from the south. I concur with the evidence of Mr Smith that the parapet line creates a simple visual datum above which the silhouette of the clock tower is clearly visible and dominant. The recent extension of the building has also developed in a manner and materiality compatible with the heaviness and grand scale of the original building. This is not the case with the proposal which is light and expansively glazed. The applicant has indicated that this is in part to minimise its visibility and in part to provide high amenity to the apartment.
5. As demonstrated in the images at [79] the fifth storey will clearly break from this parapet line and detracts from the framing of the clock tower against the skyline. Based on the evidence of the experts and the view of the site by the Court, it is my view that the proposal will reduce the prominence of the parapet line and the singularity of the clock tower exceeding this datum.
6. I agree with the evidence of Mr Brooks that the recently erected rear addition was carefully modelled and scaled to relate the new massing with the existing massing of the post office and reinforce the visual strength of the side elevation of the post office as a visual base for the prominent tower. However I do not agree with him that the proposed development would be well separated from the heritage items and does not compete with it given its setback and change of materials, which he argues enhances its visual separation.
7. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is not consistent with objective (a) of the height standard and as such development consent must not be granted.
8. For completeness I will briefly deal with the other key issues in dispute.
9. Objective (b) seeks to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas.
10. Despite the conclusion in (a) in relation to the height being appropriate to the site and context, this objective asks a different question. It examines whether the height of the proposed development provides an appropriate transition between the development and the conservation area itself. In relation to objective (b) I accept the evidence of Mr Chamie that the proposal does not provide an appropriate transition as it does not follow the fall of the site, will alter the silhouette of the building, which is a focus of the North Newtown area character statement, and reduce the prominence of the King Street façade in terms of height. The proposed fifth floor extension will also exceed the height of other contributory buildings in the vicinity of the site (exhibit 5).
11. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is not consistent with objective (b) of the height standard.
12. Objective (c) seeks to promote the sharing of views. I accept the conclusion of Mr Fletcher, in the tendered clause 4.6 variation request (exhibit F), where he states that there are currently no views across the subject property from neighbouring buildings and the location and height of the proposed addition means that there will be no loss of views to any property.
13. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with objective (c) of the height standard.

Finding that compliance is unreasonable or unnecessary

1. Clause 4.6(3) requires demonstration that compliance with the development standard is unreasonable or unnecessary in the circumstances. This test was considered by the Chief Judge in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) and has variously been applied by the LEC court including in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 and subsequently in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90. For the purpose of cl 4.6(4)(a)(i), the Court in exercising its discretion must be satisfied whether the written request has sufficiently dealt with the question of whether compliance with the development standard is unreasonable or unnecessary in this case and may consider matters other than those addressed in Wehbe. The tests are outlined as follows (emphasis added): ... The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). [Test 1] …. .. A second way [Test 2] is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary …A third way [Test 3] is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable …A fourth way [Test 4] is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable. … A fifth way [Test 5] is to establish that "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary
2. The tendered clause 4.6 variation request (exhibit F) states that as the development satisfies the objectives of cl 4.3, the height control, it meets Test 1. As detailed in the proceeding, on the basis of the evidence, this is not the conclusion I have reached, i.e. I do not agree that the objectives of the development standard have been achieved.
3. The variation request alternatively argues that the third test is relevant as there are potentially approaches to development that would have greater impact on the heritage fabric than the proposal, even though it exceeds the height control. However I do not agree with the conclusion of Mr Fletcher that to strictly apply the building height standard would be to no public benefit and would result in a lesser design outcome. This presumes that further development is a given. It is agreed, between at least the heritage experts, that the recent extension to the post office, in Mr Brooks view is integrally linked with the older component.. and the two components are now read as one, albeit layered, building composition. There is no assertion by the experts that the proposed addition is required to provide balance or finality to the architectural form.
4. I do not accept that the applicant has justified contravention of the height development standard by demonstrating that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case.
5. The breach facilitates the achievement of a habitable space beyond the existing parapet line. The heritage item, and the previous extension, are a significant constraint on the site that acts to limit the achievement of the maximum height under the LEP.

Sufficient environmental planning grounds to justify contravention

1. For reasons outlined in the preceeding, I am not satisfied that the applicant has provided sufficient planning grounds to justify contravention of the development standard.
2. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.

Impact on the significance of the heritage conservation area

1. Both experts in their evidence concluded that the proposal does not have a significant impact on the KSCA. Mr Brooks holds the view that the works are at the rear of the site, at the greatest distance from Kings Street, and with the exception of filtered views would not be visible from the main street. It is his view that the KSCA contains a built environment and streetscape of rich and highly textured buildings and facades that are resilient to change. Mr Smith expressed concern in relation to the buildings impact on the prominence and skyline view from King Street and impact of the proposal 'breaking' the existing height datum in this location.
2. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the KSCA, I am satisfied that the effect on the conservation area is acceptable. I will now consider the effect of the development on the heritage item itself.

Impact on the significance of the heritage item

1. The heritage experts agreed, amongst other matters, that the whole of the former post office building and the recently constructed four storey addition to the rear, are all covered by the LEP heritage listing for the subject site (lot 1 DP 230907). Accordingly, the proposed development of the additional storey above the addition is part of a heritage listed site and not adjacent to it or "in the vicinity".
2. The heritage experts agreed the key heritage issues raised in the contentions could be stated as: 1. The proposed fifth storey addition exceeds the height of the parapet and ridge of the adjoining heritage listed former post office building; 2. The proposed fifth storey addition will obscure views and detract from the prominence and landmark qualities of the clock tower and the heritage listed former post office that make a significant contribution to the buildings heritage value; and 3. The proposed fifth storey addition would detract from the prominence and land mark qualities of the clock tower of the heritage listed former post office. It would block significant views from Erskineville Road to the silhouette of the clock tower and buildings original roof form, and would be detrimental to the character of the area.
3. In his evidence Mr Smith argued that the proposed addition (the fifth storey) was not designed to be complementary to the heritage item, or to serve the items significance. In his evidence the addition should be subservient to the item, which was not achieved by this design as its height exceeds the existing parapet line of the building. The parapet line should be maintained as the visual datum above which the silhouette of the clock tower is clearly visible and dominant. In addition he held strong concerns in relation to the visual prominence of the proposal, its competition with the existing silhouette of the building, and the ability of the observer to read the primary elements of the heritage building.
4. In Mr Smith's evidence he gave weight to the view of the clock tower from the south along Erskineville Road, and from the south east from Wilson Street as being the key public views. This was seen as a concern as the proposed fifth storey addition would be clearly visible from Erskineville Rd from a range of distances. It would complicate the clean lines of the dominant parapet/ street wall, clutter the setting of the clock tower beyond and so detract from its landmark character.
5. This issue is demonstrated by the following photos, extracted from the joint report (exhibit 2): Note the blue shading approximates the proposed development (although not correct in relation to height).
6. In contrast, Mr Brook's evidence was that as a result of the previous addition to the Post office building the two components are now read as one, albeit layered, building composition. The clock tower is an integral, visually distinctive and highly visible component of the overall architectural composition. He also holds that the views from the south (Erskineville rd and Wilson St) are not the 'key public views' as they are from King St.
7. Mr Brooks does not accept the claim that the proposal will obscure the view to the clock tower or impact on its prominence by the 'visual clutter' provided by the extension. In his evidence Mr Brooks argues that the proposal is well separated from the heritage item and does not compete due to the setback of the extension from the existing building edge, and the change in materials.
8. As identified in [14] LEP 2012 aims to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views. From the evidence of the experts, and the view of the site by the Court, it is clear that the proposed fifth storey addition is visible from a number of public vantage points, both south of the site, and to the north on King and Mary Street. However the issue is not whether it is visible, but what impact the development has on the significance of the heritage item.
9. The NSW Office of Environment and Heritage maintains an inventory of heritage items, and their statements of significance (exhibit 4). In relation the Newtown Post Office it provides the following statement of significance, and recommended management statement (relevant extracts): Newtown Post Office dates from the key period of development for King Street and the Newtown area as a direct result of industrial expansion and subdivision of large estates. It is a good example of Federation Anglo- Dutch style of architecture and demonstrates the supporting utility services for the commercial strip. It was one of the earliest buildings in the career of the NSW Government Architect Walter Liberty Vernon and marks a change from the classical style of his predecessor, James Barnet. The building should be retained and conserved… The existing face brick work and stone detailing shall not be rendered, coated or painted in any way… 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. (emphasis added)
10. The listing also notes, against the aesthetic criteria, that the building is a prominent element in the landscape and a good example of Queen Anne detailing.
11. In reviewing the statement of significance it is clear that the proposal will introduce a new built element above the parapet, and whilst the applicant has sought to design it to be recessive, I agree with the evidence of Mr Smith that the development would complicate the clean lines of the dominant parapet/ street wall, clutter the setting of the clock tower beyond and so detract from its landmark character. The recommended management of the item requires additions and alterations to be recessive. The proposed addition by exceeding the parapet line and introducing built elements into the previously clear building silhouette and setting of the clock tower is contrary to this management recommendation. I accept the evidence of Mr Smith that the proposed development will impact on the clean lines of the dominant parapet and street wall, clutter the setting of the clock tower and detract from its landmark character.
12. This is of significance as this impact is contrary to the essence of the buildings listing, and Councils character statement at cl 2.3.3, which seeks to maintain the view to the grand silhouettes of the upper floors of the heritage buildings on King Street, and cl 5.10(1)(b) of LEP 2012 which recognises that maintenance of views to, and settings of, heritage items is key to conservation.
13. As outlined in par 4, the site is identified in schedule 5 of LEP 2012 as Heritage Item number I1008. Clause 3.9.5 of DCP 2012 [par 25] provides controls that give guidance to the development of a site that contains a heritage item.
14. The site is also contained in the mapped KSCA, as such it is a contributory building (agreed by heritage experts) and clause 3.9 of DCP 2012 applies. Clause 3.9.6 of DCP 2012 states: Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area. The contribution of these buildings is based on studies carried out by heritage consultants for the City. New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes.
15. Contributory building controls are contained in cl 3.9.7 which states: Contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. They have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. They are buildings: ● from a significant historical period and are highly or substantially intact; or ● from a significant historical period and are altered yet recognisable and reversible. (1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances. (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: a) respect significant original or characteristic built form; b) respect significant traditional or characteristic subdivision patterns; (c)retain significant fabric; c) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing; d) remove unsympathetic alterations and additions, including inappropriate building elements; e) use appropriate materials, finishes and colours; and f) respect the pattern, style and dimensions of original windows and doors. (4) Where an addition to the building is proposed, significant external elements are to be reinstated.
16. Following consideration of the expert evidence, and the Courts view of the I am satisfied that the proposed roof top addition is in conflict with cl 3.9.7 3(a) as it does not respect significant original or characteristic built form and (2) as the proposal will significantly alter the appearance of a significant façade of the a contributory building.
17. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the item, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. Consequently there is no power to grant consent to the development application and the application must fail.

Other matters in dispute

1. Given the findings outlined in the preceding there is no power to grant consent to the development application and any discussion of the other matters pressed by the Council would be superfluous.

Discussion of alternative design

1. During the course of the proceedings the applicant tendered, and sought feedback from the experts, on an alternative design of the fifth floor with a reduced foot print (exhibit J). An extract is reproduced below:
2. It was agreed by the experts that the reduction in the width of the proposal is approximated by the black line in the following image, with the proposed building mass to the right of the line to be deleted. (exhibit 9).
3. The intent of the applicant in tendering this alternative was for the Court to consider whether directions, seeking the applicant to amend the design consistent with this proposal, were an appropriate outcome in this matter.
4. Both the planning and heritage experts indicated that the alternative design was an improvement on the plans that are before the Court. Whilst the extent of the development on the fifth floor is reduced, given discussion in the preceding in relation the cl 4.6 variation request, I am not satisfied that the changes proposed in this alternative design cures the issues raised in par 58 and 59 in particular.
5. I am satisfied that a reduced roof top addition would remain in conflict with cl 3.8.7(3)(a) of DCP 2012 as it does not respect the characteristic and original built form of the strong parapet line and the singularity of the clock tower exceeding this datum. As such I have not made directions in relation to these plans.
6. The orders of the Court are: 1. The appeal is dismissed 2. Development application DA 2015/1247 for the addition of a new fifth floor to the existing four storey mixed use building at 292 King St. Newtown is refused. 3. The exhibits are returned with the exception of exhibit 1,C and F. ……………. D M Dickson Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2016