Xu v Council of the City of Sydney

The Site

1. The subject site is located at 12 Sparkes Street, Camperdown and is legally described as Lot 1 in DP 71880. The site has s site area of 236.9m².
2. The site has primary frontage to Sparkes Street and a secondary frontage to Sparkes Lane.
3. The site contains a two storey mid-Victorian terrace house with a single storey rear skillion wing comprising of two sections: one adjoining the main part of the house and a second narrow and lower section. The site also includes a small brick outhouse to the rear that is part of the terrace house and a double carport frame structure at the rear facing Sparkes Lane. The outhouse has recently been partly demolished.
4. The terrace house is listed as a local heritage item (I95) under the Sydney Local Environmental Plan 2012 (LEP 2012) as a "terrace house including interior" and is not within a heritage conservation area.

The Locality

1. The area comprises a mixture of residential and commercial uses.
2. The adjoining terrace house at 14 Sparkes Street is also listed as a heritage item (I96).
3. To the south and the west of the site are residential flat developments of recent construction.

The proposed development

1. The subject development application seeks consent for: 1. Alterations to the two storey part of the existing dwelling including the reinstatement of original features and a cantilevered balcony over Sparkes Street, as well as internal reconfiguration works. 2. Reinstatement of the partially demolished outhouse 3. Internal alterations including demolition of original walls, changes to the ceilings, timber joinery, stair and floor structure. 4. Demolition of the single storey rear wing and partial demolition of the rear wall of the original terrace residence. 5. Two storey rear addition built to the full width of the site. 6. Subdivision of the site into two Torrens title lots as follows: 1. Lot 1 will comprise an area of 113.9 square metres having primary street frontage to Sparkes Lane. 2. Lot 2 will comprise an area of 122.99 square metres having primary street frontage to Sparkes Street. This lot contains the heritage building.
2. The extent of demolition involved in the further amended proposal is as follows:

• The single storey rear skillion wing comprising of two sections: a kitchen adjoining the main part of the house and a narrow and lower bathroom section;
• Partial demolition of the rear wall of proposed Bed 3 (ground floor);
• The internal stair to both levels;
• Partial demolition of the two storey rear wall of the principal building form of the terrace, being the front four rooms. The extent of conservation works proposed by the Applicant is detailed in Exhibit C.

Public Submissions

1. The application was notified by the Council in accordance with the requirements of Sydney Development Control Plan 2012 (DCP 2012). Two submissions were received. The objections raise the following concerns:

• disruption of the area due to construction works.
• impact on the sewer line.
• inadequate information on materials, colours and finishes proposed.
• privacy impacts.

1. At the commencement of the proceedings on site the Court heard from the adjoining neighbour to the development. He made the following submissions to the Court:

• the rear balcony on the proposed second floor addition creates the potential for overlooking into the rear of his property,
• He remains uncomfortable with the potential that the new "boundary wall" will require access to his property for construction or scaffolding, neither of which he would give permission for.

1. The adjoining resident seeks for the application to be amended to ameliorate the potential privacy impacts and for any construction to place no reliance on access to his property for scaffolding and the like.
2. It is accepted by the parties that the above concerns of the adjoining resident are addressed in the changes to the design incorporated in the further amended plans.

Planning Controls

1. The subject site is zoned B4: Mixed use under LEP 2012. The development complies with the principal development standards (Height and Floor Space Ratio) under LEP 2012.
2. Subdivision of the site is permissible with consent and LEP 2012 provides no minimum allotment size (cl. 1.4 LEP 2012).
3. Council argues that the development does not satisfy the provisions of cl.5.10: Heritage Conservation in LEP 2012. The objectives of cl. 5.10 at sub. cl. (1) are to conserve the environmental heritage of the City of Sydney and the conserve the significance of items including associated fabric, settings and views.
4. Pursuant to cl. 5.10(4) of LEP 2012 the consent authority must, before granting consent in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item.
5. Clause 6.21 Design Excellence of LEP 2012 applies to the proposed development. Relevantly at cl.6.21(4) the consent authority must have regard to the following matters in determining whether a development exhibits design excellence: … (d) how the proposed development addresses the following matters: … (iii) any heritage issues and streetscape constraints. …
6. The following sections of DCP 2012 are of relevance to the proceedings: Clause 3.9: Heritage Objectives: (a) Ensure that heritage significance is considered for heritage items, development with a heritage conservation area, and development affecting archaeological sites and places of Aboriginal heritage significance. (b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain. Controls: cl. 3.9.1 … (6) Where the development application proposes the full or substantial demolition of a heritage item, or a contributory building within a heritage conservation area, the Heritage Impact Statement is to: (a) Demonstrate why the building is not capable of retention or reuse; (b) Include a statement from a quantity surveyor comparing the cost of demolition to the cost of retention and if the demolition is recommended primarily on economic grounds; (c) Include a report by a suitably qualified structural engineer if the demolition is proposed on the basis of poor structural condition; and (d) Include a pest inspection report if the building is a weatherboard building. Clause 4.1.1: Building Height Objectives: … (c) Retain and conserve the principal building form and its relationship to the street for heritage items and contributory buildings in the heritage conservation area. Clause 4.1.2: Building Setbacks Objectives: (a) Ensure that new development relates to the existing setback patterns (b) Maintain the setting of heritage items and buildings within a heritage conservation area. Clause 4.1.3 Residential Amenity Objectives: (a) Maintain or enhance residential amenity by ensuring adequate solar access, landscaping, deep soil planting, visual and acoustic privacy and ventilation. Clause 4.1.4: Alterations and Additions Objectives: (a) Achieve sympathetic development and maintain the fabric of existing terraces. (b) Protect and respect the traditional character and heritage significance of heritage items and heritage conservation areas and contributory buildings by: (i) ensuring additions are of an appropriate scale and appearance and relate to the scale and character of the existing building and the street; (ii) minimising alteration of the original building and respecting the uniformity of an intact pair, group or row of buildings. Clause. 4.1.4.1: General (1) Additions must not remove significant building or site elements or outbuildings that contribute to the heritage significance of the heritage item or conservation area. (2) Additions must maintain the profile and form of the original building, including the roof form, and allow the original building to be discerned.

Expert Evidence

1. The applicant relies on expert evidence of Mr Phillips, heritage consultant who also prepared the Heritage Impact Statement (Exhibit B) and the Schedule of Conservation Works (Exhibit C) which forms part of the application.
2. Council relies on expert evidence of Mr Roehrig, heritage consultant. Mr Phillips and Mr Roehrig provided a joint report (Exhibit 4) and gave oral evidence.

Is the impact of the proposed works on the significance of the item acceptable?

1. The inventory sheet for the item (terrace house including interior) contains the following statement of significance: "Carinya dates from the key period of development for Camperdown and is a representative example of a mid-Victorian terrace which is largely intact externally and makes a positive contribution to the streetscape" (Exhibit 6)
2. The inventory sheet details the assessment of significance against the criteria for listing on the State Heritage Register as follows:
3. The Heritage Impact Statement prepared by Weir Phillips Heritage (Exhibit B) does not include a recommended amendment to the Statement of Significance for the item.
4. However in the joint expert report (Exhibit 4) Mr Phillips argues a differential of significance between the two storey principal building form of the terrace (the front four rooms) and the rear skillion wing. He states: The rear section appears to be later and is in very poor condition. The proposed removes this section on the basis that its removal will have little impact on the significance of the original, principal building form. The addition sets bulk behind the principal building form and while visible from the street along the side of the principal building form, will read as a recessive modern addition. (Exhibit 4)
5. In his oral evidence Mr Phillips acknowledged that the listing of the item extends to the whole of the site, however asserted that in his view the principal significance of the item lies in the front elevation.
6. Further he argued that, on the basis of future development fronting Sparkes Lane, there is little view available to the rear section of the item.
7. In forming his view that the proposal will not have a detrimental impact on the heritage significance of the item Mr Phillips gives weight to the following factors: 1. the beneficial restoration of significant missing elements in the building, such as the first floor balcony 2. his assessment that the rear skillion wing has no aesthetic significance and does not contribute meaningfully to the heritage significance of the terrace. 3. that the proposed dwelling is in poor condition and provides unsuitable amenity for use as a dwelling. It is his evidence that the proposed works will allow for the sustainable continuation of the residential use of the property. 4. the proposal includes significant and necessary conservation works which will impede further deterioration of the item
8. In contrast Mr Roehrig does not support the gradation of significance between the principal building form and the rear skillion wing. He notes that the Heritage Impact Statement (Exhibit B) does not undertake a ranking of significance for fabric within the item, which he argues would be required to substantiate such a conclusion.
9. In the joint report Mr Roehrig argues: The proposed demolition of original fabric relating to the c.1895 rear extensions will diminish the understanding and interpretation of the particular character of the subject Victorian terrace. All built elements on the site contribute to the special character of the place and its setting. Although the rear extensions are assessed as being in fair to poor condition, they are not beyond repair and conservation. The exterior volume of the original two storey residence and terracing of the rear yard allow the rear extension to read as secondary to the original structure. The stepping of volume and form is typical of the typology of terraces within this section of the municipality. … The proposed development, with its resulting loss of fabric internally and externally, will have a detrimental effect on the subject item's heritage significance. There has been no consideration paid to sufficiently articulating the proposed boundary to boundary, two storey extension and the conjunction of new and old, and no concern paid to the proposed elimination of the existing garden setting and internal courtyard. Overall, the cumulative level of negative physical and visual impacts of the current proposal is demonstrated. The design has not considered or addressed the relevant heritage clauses in either the City of Sydney LEP2012 or the DCP 2012. The clauses as contained in both statutory legislation aids provide valuable information and guidance so that all future development within the City of Sydney may respect the heritage significance of the individual heritage site as valued within the wider, local community. (Exhibit 4)
10. In his oral evidence Mr Roehrig accepted that the conservation works and the reinstatement of the front balcony are a positive heritage outcome arising from the proposal. Further it was his evidence that, whilst the conservation works proposed more generally are positive.
11. In contrast to the submissions of Ms Byrne, Mr Roehrig states that in his view the principal building is in sound condition. However he accepted that in its current state the item overall is deteriorated and generally uninhabitable.
12. Mr Roehrig does not accept that the rear addition (kitchen, bath) is unable to be retained or that retention is not warranted.

Submissions

1. Ms Byrne submits that the significance of the item lies in its presentation to Sparkes Street and that it is that significance that must be considered by the Court in the context of the changes setting of the item. Relying on the decision of Brown C in Bates Smart Pty Ltd v City of Sydney [2014] NSWLEC 1001 at [47] Ms Byrne argues weight should be given in the assessment of the impact of the works to the "setting of the item" being the visual catchment. She argues that the items setting in Sparkes Street is significantly altered by recent high density developments.
2. Ms Byrne argues that any detrimental impacts on the heritage significance of the item are offset by:

• The retention of the residential use of the site;
• The benefit arising from the completion of the conservation works detailed in Exhibit C;
• The fact the interiors are in a significantly altered state;
• the retention of the configuration of the floor plan of the two storey primary building form of the terrace;
• retention of the fenestration pattern within the rear façade; and
• that demolition of the rear skillion wing will not be visible from Sparkes Street where significance of the item is demonstrated.

1. Further Ms Byrne submits that the aims of LEP 2012 and the objects of the Act are promoted by the proposed development in that:

• the heritage fabric is conserved by the restorative works (cl. 1.2(k) of LEP 2012)
• the proposal allows for the orderly and economic use of the land (cl. 1.3(c) of the Act)
• the proposal allows for the sustainable management and use of cultural heritage (cl. 1.3(f) of the Act)
• The proposal promotes good design and safety (cl. 1.3(g) and (h) of the Act).

1. Further Ms Byrne argues that the demolition of the interior stair is warranted due to its non-compliance with the National Construction Code (the Code). An assessment of the existing stair against the requirements of the Code is provided in Exhibit Q.
2. I note that Mr Seton submits that such an upgrade is not mandated by the Code whilst ever the stair is retained.
3. In these proceedings it has not been necessary to determine this matter.
4. Relying on the decision of Robson J in Abrams v City of Sydney (No 2) [2018] NSWLEC 85 at [39] Ms Byrne argues that the existing consent for the site is instructive for the purpose of informing the weight to be given to impacts on views from Sparkes Lane that arise from the development and that the impact of the works on any such view should be given little weight.
5. In the alternative Mr Seton submits that the fundamental concern of Council is that the demolition proposed is more extensive than is required to achieve the conservation of the item.
6. Mr Seton emphasises that the inventory sheet for the item identifies the terrace house and interiors as being 'the item'. Further he submits that the listing does not distinguish between the rear skillion wing and the two storey principal building form. Nor does the listing identify the front façade as the emphasis of the items significance.
7. Mr Seton submits that the Burra Charter should underpin the assessment of the impact of the works on the significance of the item pursuant to cl. 5.10(4) of LEP 2012. It is his submission that the works proposed by the application are inconsistent with Article 3 of the Burra Charter which states, in part: "Conservation is based on a respect for the existing fabric, use, associations and meanings. It requires a cautious approach of changing as much as necessary but as little as possible" Source: https://australia.icomos.org/wp-content/uploads/The-Burra-Charter-2013-Adopted-31.10.2013.pdf
8. Mr Seton argues that the necessity of the demolition has not been adequately established by the Applicant's evidence, nor that alternatives to the extent of demolition have been appropriately investigated.
9. In terms of the alterations proposed to the two storey principal building form of the terrace Mr Seton submits that Mr Roehrig's evidence establishes that these works will obscure the reading of the original volume of these spaces and that the demolition of key walls is not warranted when balanced by the amenity gained by the occupants.
10. Finally Mr Seton draws the Court's attention to the recommended management detailed in the inventory sheet which states (in part): The terrace house and rear outhouse should be retained and conserved. … There shall be no vertical additions to the building and no alterations to the façade of the building other than to reinstate original features. The principal room layout and planning configuration as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces should be retained and conserved. Any additions and alterations should be confined to the rear in areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls. The building is much need of maintenance which should be carried out regularly. The front balcony should be reinstated based on physical and documentary evidence. The façade should be painted in a colour scheme appropriate to the style and period of the terrace. (Exhibit 6)
11. Mr Seton submits that the application is contrary to this recommended management approach.

Significance

1. I do not accept the submission of Ms Byrne, or the evidence of Mr Phillips, that the significance of the item arises primarily from its contribution streetscape and aesthetic contribution to Sparkes Street. I have formed this view on the following basis: 1. the listing is specific in its reference to the site, and the interiors of the building; 2. whilst the recommended management measures in the Inventory refer to: "Any alterations and additions being confined to the rear;…" importantly the statement includes the words "in areas of less significance" (Emphasis added). I am satisfied that this should not be interpreted as meaning that the rear skillion wing, in its entirety, is of less significance; 3. there is no evidence before the Court to support a grading of the significance of fabric between the components of the item; 4. Mr Phillips discounts the public view to the item from the laneway on the basis of future development. I disagree with this approach. In assessing the impact of the works it is necessary to consider this view of the item. The impact of the works on the significance of the item may subsequently be discounted given the likely redevelopment (or the fact of the existing consent) but the consideration of the impact should not be excluded in its entirety. 5. The item is listed for its cultural significance and I accept the evidence of Mr Roehrig that this is reflected, in part, by the arrangements of rooms within the dwelling and its placement within the site. This significance is not restricted to the front elevation.
2. On the preceding basis I accept the broader description of the significance of the item detailed in the inventory sheet remains relevant.

Impact of the works

1. Pursuant to cl. 5.10(4) of LEP 2012 I am required to consider the impact of the proposed works on the significance of the item. The extent of the works is detailed earlier in the judgement.
2. After considering evidence of the experts on 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. My reasoning is as follows:

• I accept the evidence of Mr Roehrig that all the built elements on the site contribute to the significance of the item
• I am satisfied that the demolition of fabric proposed is substantial when considered in the context of the item. I am satisfied that the DCP control at cl 3.9 (6) applies (refer paragraph [24)] and has not been satisfied by the applicant.
• the heritage impact statement in support of the application does not meet the requirements of the DCP at cl 3.9, sub-cl. (6) and fails to establish justification for the proposed works.
• I accept the submission of Mr Seton that the applicant has failed to demonstrate that alternative options that would retain more of the significant fabric have been explored.
• I am satisfied that a variation to these controls is not warranted as the development fails to meet the objectives of cl. 3.9 of DCP 2012.
• I note the oral evidence of Mr Phillips that the rear skillion wing is not incapable of being rectified.
• I accept the evidence of Mr Roehrig that the ability to read the two storey primary building form of the terrace and the lower scale single storey extension is important to the retention of the items significance. I am satisfied that the proposed demolition and additions will detrimentally impact this significance.
• I accept the agreed evidence of the experts that the conservation and reinstatement works are a positive contribution to the significance of the item, but I find that they are not sufficiently so to offset the detrimental impacts identified in the preceding.

Merit assessment

1. Despite a finding under cl.5.10(4) of LEP 2012 that the works have a detrimental impact on the significance of the item, it is necessary to weigh this impact in a full assessment of the proposal under s4.15 of the Act.
2. The applicant relies on the report of Macartny Engineering Consultants (Exhibit F) to conclude the structural condition of the rear skillion wing is poor. This report makes the following statements about the state of the rear skillion wing:

• the bricks are of low strength, porous and damp
• there are a large number of cracks in the brickwork, which he concludes are likely to have arisen from the settling of foundations
• the timber floor is in poor condition and not level, and
• the timber roof framing is structurally inadequate and would require reconstruction.

1. For each of the above deficits in the rear skillion wing the Macartny report suggests methods of rectification.
2. It was accepted by the Court in Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118 and the related proceedings: Norm Fletcher & Associates Pty Limited v Strathfield Municipal Council [2014] NSWLEC 157 that it is appropriate to utilise the principles in Helou v Strathfield Municipal Council (2006) 144 LGERA 322 by analogy in considering the reasonableness of the costs of remediation and rectification in determining whether or not restoration was preferable to demolition.
3. The relevant principles are: 46 The following questions should be addressed in assessing whether the demolition should be permitted: 1. What is the heritage significance of the conservation area? 2. What contribution does the individual building make to the significance of the conservation area? The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought. 3. Is the building structurally unsafe? Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area. 4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition? If the answer is yes, the cost of the necessary remediation/rectification works should be considered. 5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted? If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding. 6. Is the replacement of such quality that it will fit into the conservation area? If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved.
4. In this matter there is no evidence of the costs of remediation and rectification of the rear wing or the whether they are "reasonable". However the state of repair of the fabric within the rear skillion wing is presented as a reason by the applicant in support of the demolition of this fabric.
5. Whilst Ms Byrne argues that the ongoing disuse of the building will continue its deterioration, the Court in David Road v Hornsby Shire Council [2008] NSWLEC 1461 noted at [36] that: If we accepted that recent deterioration is a justification for demolition, it would signify that, in order to be allowed to demolish a heritage item, an owner needs only to neglect it.
6. The above extract of the judgement is relevant to this case. The experts are agreed that the conservation and reinstatement of fabric is a positive heritage outcome.
7. In considering the competing submissions of the parties, on balance, I find that the impact of the demolition of significant fabric, and the alteration of the typology of the terrace by the proposed addition, is not outweighed by the benefit of the works proposed and the continuation of the residential use of the site.
8. I accept the submission of Ms Byrne that the sustainable use of the item for residential purposes will require modern amenities and some alterations to the item. However the existing consent (which retains the terrace in its entirety) establishes that the restoration and maintenance of all the fabric of the item is neither unfeasible nor prohibitive in all circumstances.
9. Further in applying the principles in Helou I am not satisfied that the applicant has established that, once rendered structurally safe, there is no scope for extending or altering the item to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the item that the proposed demolition.

The subdivision

1. The development application contains two components: firstly the demolition, alterations and additions to the item and secondly the torrens title subdivision of the lot (Exhibit D). In the preceding I have determined that consent should not be granted to the first component of the development.
2. In their oral evidence the heritage experts agreed that there was no objection to the subdivision on heritage grounds. Mr Roehrig however notes that a division of the site needs to be sensitive to the retention of the all the heritage fabric on one allotment (achieved by the further amended plans) and that the future use of the subdivided land should be sensitive to the setting of the heritage item.
3. It is unclear from the evidence and the submissions whether, in the event the Court declined to approve the works sought to the item, the applicant seeks the subdivision independently. No submissions were made by the Applicant seeking to sever these works in the event of such an outcome. In these circumstances I decline to make a determination under s 4.26(4) of the Act to grant partial approval to the application.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs. 3. The appeal is dismissed; 4. Development application DA D/2017/1051 for demolition, alterations and additions, and torrens title subdivision at 12 Sparkes Street Camperdown is refused. 5. The exhibits are returned with the exception of Exhibit 1. ……………. D M Dickson Commissioner of the Court

---

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: 10 July 2018