Xu v Council of the City of Sydney - [2018] NSWLEC 1332 - NSWLEC 2018 case summary — Zoe

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Xu v Council of the City of Sydney

[2018] NSWLEC 1332

Land and Environment Court (NSW)|2018-06-21

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-06-21

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

This judgment was given as an ex tempore decision. It has been revised and edited prior to publication.

COMMISSIONER: The applicant is appealing Council's refusal of Development Application D/2017/1051. That application seeks consent for alterations and additions to the existing dwelling including demolition of the existing single storey rear wing and construction of a ground and first floor rear addition to the full width of 12 Sparkes Street, Camperdown. The development application also seeks consent for the subdivision of the site into two lots.
The appeal is lodged pursuant to s. 8.10 of the Environmental Planning and Assessment Act 1979 (the Act) and was subject to mandatory conciliation on June 20 2018 (s34AA Land and Environment Court Act 1979). Agreement was not reached and the proceedings were dealt with as a hearing.
On 13 April 2018 the Court granted the applicant leave to amend their development application and rely on amended plans. The Council maintains the application should be refused on the following grounds: 1. the proposed development (partial demolition and alterations and additions) will have an adverse impact on the heritage item located on the site. 2. inadequate information has been provided to enable a proper assessment of the proposed subdivision of the site.
At the commencement of the hearing the applicant sought leave for a further set of amended plans, responsive to the evidence of the experts heard during the conciliation phase. The granting of leave for the amendments was not opposed by the Respondent. The Court granted leave to these further amended plans. No submissions were made by the parties that the amendments were not minor of which I am satisfied (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169LGERA 153 at [42]). Council no longer presses that there is inadequate information to assess the subdivision.
The issues for the Court to determine are: 1. Whether the impact of the proposed works on the heritage significance of the item is acceptable; and 2. Following an assessment of the application under s4.15 of the Act whether the application warrants approval.

[6]

Planning Controls

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.
Subdivision of the site is permissible with consent and LEP 2012 provides no minimum allotment size (cl. 1.4 LEP 2012).
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.
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.
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. …
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.

[8]

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

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)
The inventory sheet details the assessment of significance against the criteria for listing on the State Heritage Register as follows:
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.
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)
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.
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.
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
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.
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)
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.
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.
Mr Roehrig does not accept that the rear addition (kitchen, bath) is unable to be retained or that retention is not warranted.

[9]

Submissions

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.
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.

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).

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.
I note that Mr Seton submits that such an upgrade is not mandated by the Code whilst ever the stair is retained.
In these proceedings it has not been necessary to determine this matter.
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.
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.
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.
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
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.
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.
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)
Mr Seton submits that the application is contrary to this recommended management approach.

[11]

Impact of the works

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.
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.

[12]

Merit assessment

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.
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.

For each of the above deficits in the rear skillion wing the Macartny report suggests methods of rectification.
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.
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.
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.
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.
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.
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.
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.
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.

Xu v Council of the City of Sydney

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Judgment (15 paragraphs)

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Cases Cited (6)

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