Touma v Council of the City of Sydney

Judgment (5 paragraphs)

[1]

Solicitors: Hartley Solicitors (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2016/288457

[2]

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building (the proposal) at 63 Moore Park Road, Centennial Park (the site) by the Council of the City of Sydney (the Council).
The appeal was subject to mandatory conciliation on 25 January 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, it was terminated pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 9 March 2017 for the applicant to rely on an amended proposal. Leave was unopposed and granted by the Court at the commencement of the hearing to rely on an amended proposal and again during the hearing for the applicant to rely on a further amended proposal (exhibit J). Issues The Council's contentions can be summarised as:

Heritage

The heritage experts agreed that the contribution made by the building to the Furber Road CA goes to its external appearance in the streetscape when viewed from the public domain.
According to Mr Poulton, the interior of the bungalow is an integral part of the building, notwithstanding that there is no specific provision in the planning regime requiring the interior of a contributory building to be retained. He noted that alterations and additions to a contributory building are to retain significant fabric and the interior of the existing bungalow is highly intact, including the original surviving timber wall panelling and fretwork to the main hall, timber doors, fire places, battened ceilings, timber joining including skirtings and plate rails and timber flooring and the total removal of the interior does not respect the integrity of the existing building. In his view, the proposal has not demonstrated why the retention and reuse of the existing bungalow, including internal fabric, is not feasible. It is Mr Poulton's opinion that the extent of demolition proposed is not consistent with retaining the contributory building and the proposal will result in a diminution of its contribution the heritage significance of the Furber Road CA.
In Mr Poulton's opinion, the scale and form of the rear addition are uncharacteristic of the conservation area and disproportionate to the existing building; the mansard roof is not typical; the proposed additions are not subservient to the existing building, but dominant; and the seven storey building adjacent is an anomaly in the Furber Road CA.
According to Mr Staas, the intention of the planning controls and objectives is to retain the streetscape appearance of the area and not to restrict internal alteration and additions which do not have a significant impact on the views from the public domain. The Statement of Significance for the Furber Road CA identifies two areas of significance, the subdivision pattern which remains unchanged by the proposal and the aesthetic value of buildings visible from the public domain and the retention of a substantial portion of the existing building in the streetscape of Moore Park Road maintains that level of significance.
In Mr Staas' opinion, development on the site in the form proposed is permissible with consent; respects the development standards; and protects views from Moore Park Road which contribute to the character of the Furber Road CA. He noted that there are several substantial contemporary infill buildings within the Furber Road CA that do not adopt traditional residential built forms and their substantial setback from the front of the site maintains the contribution of original and early buildings to the Furber Road CA. In Mr Staas' opinion, nothing proposed in this application results in any diminution of the historical evolution values of the area and views to and along Poate Lane are not significant.
I accept the agreement of the experts that the existing dwelling is appropriately identified as contributory to the collective heritage significance of the Furber Road CA. It has a reasonable to high degree of integrity and dates from the key period of residential development that contributes to the character of the area.
The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. This objective does not point to a requirement to simply retain a streetscape façade or the appearance of a contributory dwelling dating from a key period of the conservation area. In order to keep the roof structure, the form and the appearance of an older dwelling, it is necessary to retain more than the front façades and front gables of the bungalow.
The applicant relies on cl 3.9.7(5) of DCP 2012, 'significant interior features… designed to be visible from the street, are to be retained especially where they form part of the building's contribution to the character of the heritage conservation area', to justify the complete gutting of the interior of the dwelling on the basis that the interiors are not designed to be visible from the street. I do not accept that it necessarily follows that a finding that the interiors of a contributory building are not designed to be visible from the street, means that the interior fabric can be completely demolished. Original interior fabric of a contributory building contributes to the integrity of that building and the degree of integrity of a building within a heritage conservation area forms part of the consideration of whether it contributes to the collective heritage significance of that area.
I accept Mr Poulton's evidence that the gutting of this bungalow to form a new spatial layout for three apartments that bears no relationship to the existing spatial layout and interior fabric of the dwelling and the removal of a significant portion of the form of the original dwelling will diminish the contribution of this Federation bungalow to the character of the Furber Road CA. As a consequence, the significant amount of demolition proposed will erode both the historic and aesthetic values of the Furber Road CA and its collective significance. It is necessary to retain more than a front façade and partial side elevations in order to retain the integrity of the building, because the contributory value of a building to a conservation area is not confined to its external appearance and streetscape presence (Cracknell & Lonergan Architects Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1159 [27]).
The proposal has not dealt skilfully with the constraint of retaining the integrity of the existing bungalow and the proposal makes an awkward transition between the old and new fabric. Retaining the integrity of a contributory building does not preclude sympathetic alterations, including contemporary styled additions, with appropriate massing, scale, proportions, materials and details, which marry into the original building in a thoughtful and elegant way.

Planning and urban design

The proposal complies with the development standards in LEP 2012 for the site. Council's remaining planning and urban design contentions in relation to the overall built form of the proposal seem to ignore the significant density of development envisaged for the site as embodied in the development standards in LEP 2012 combined with the considerable constraint of retaining the contributory dwelling. In order to achieve development commensurate with the scale of development envisaged by LEP 2012 for the site, some flexibility will have to be applied in relation to side and rear setbacks and the overall building envelope of the proposal. This is, however, a matter for a future application.
It is difficult to reconcile the principle in DCP 2012 at cl 2.9.4(k) of encouraging multi-unit dwellings on sites with non-contributory buildings with the FSR for the nearby site containing a 3 storey residential flat building identified as intrusive to the Furber Road CA with a FSR of 1:1, when compared to the site and its western neighbour, both identified as contributory buildings to the Furber Road CA, with a FSR of 1.25:1. Conclusion
Having considered the effect of the proposed development on the heritage significance of the Furber Road Conservation Area, I am not satisfied that the proposal achieves the objective of cl 5.10(1)(b) of LEP 2012 to conserve its heritage significance. Orders
The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building, at 63 Moore Park Road, Centennial Park, is refused. 3. The exhibits, other than exhibits 1 and J, are returned.

Susan O'Neill Commissioner of the Court

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