Land and Environment Court New South Wales Medium Neutral Citation: O.T.A.R Investments Pty Ltd v Burwood Council [2021] NSWLEC 1290 Hearing dates: 27 April 2021 Date of orders: 26 May 2021 Decision date: 26 May 2021 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: 1. The Applicant is granted leave to rely upon amended plans at Exhibit A. 2. The appeal is dismissed. 3. Development consent for Development Application 2019/121 for alterations and additions to boarding house development at 24 Burleigh Street, Burwood is refused. 4. The Exhibits are returned, except for Exhibits B, F and G. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to boarding house development – whether the proposed development will have an acceptable impact on the heritage significance of the heritage item Legislation Cited: Environmental Planning and Assessment Act 1979, cll 5.10, 8.7, 8.15 Burwood Local Environmental Plan 2012, cl 5.10 Cases Cited: O.T.A.R Investments Pty Ltd v Burwood Council [2018] NSWLEC 1272 Texts Cited: Burwood Development Control Plan 2013 Category: Principal judgment Parties: O.T.A.R Investments Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) M Wright SC (Respondent) Solicitors: Conomos Legal (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2020/189737 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Burwood Council (the Respondent) of Development Application 2019/121 seeking consent for alterations and additions to boarding house development at 24 Burleigh Street, Burwood (the site). 2. In general terms, the application initially before the Court seeks to alter the development for which consent was granted in 2018 ('2018 Consent'), from 24 boarding rooms (plus manager), to 29 boarding rooms (plus manager). 3. The precise nature of the alterations and additions are set out by the Respondent in the Statement of Environmental Effects (Exhibit 1) to comprise the following: * Level 1 – increase GFA by 43.48m² to provide 1 x accessible room known as 104 and 1 x new single room known as room 105; * Level 2 – increase GFA by 16.3m² to provide 1 x new single room known as room 205; * Level 3 – increase GFA by 16.3m² to provide 1 x new single room known as room 305; * Level 4 – increase GFA by 16.3m² to provide 1 x new single room known as room 405; * Roof – extend roof to cover the extent of building footprint increase for Level 1 to 4 below; * Changes to the western facade proposed to be finished in the same approved "corten" screen finish. 1. At the commencement of the hearing, the Applicant sought leave of the Court, unopposed by the Respondent, to amend the application and rely upon amended plans that it says arise from the conferring of heritage experts. 2. The Applicant was granted leave and the amended plans, which the parties agree includes amendments that are minor for the purposes of s 8.15(3) of the EPA Act, were marked Exhibit A. The site and its context 1. The site is bounded on three sides, having a frontage of 42.595m to Burleigh Street to the west, 21.67m to Elizabeth Street to the north, and 21.665m to Belmore Street to the South with a total site of 921.5m2. 2. The site is located within the B4 Mixed Use zone identified in the Burwood Local Environmental Plan 2012 (BLEP) in which boarding house development is permitted with consent, and wherein the objectives of the zone are as follows: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. 1. The site is currently occupied by the former Burwood Court House and the former Burwood Police Station. Both buildings are works attributed to the architect Walter Liberty Vernon and are identified in Schedule 5 of the BLEP as items of local heritage significance. 2. To the north of the site is a row of two-storey terrace houses at 10-22 Burleigh Street that are also listed for their local heritage significance. 3. To the south of the site are two residential flat buildings, known as 'Orontes' and 'Monterey' at 22-24 Belmore Street that are also listed for their local heritage significance. 4. The site adjoins the current Burwood Police Area Command building to the east. 5. The proceedings commenced with an onsite view at which Detective Chief Inspector Ian Pryde, of the Burwood Police Area Command, supported by Sergeant Wilkins, provided an oral submission in support of a written submission contained behind Tab 2 of the Respondent's bundle of document marked Exhibit 2, and which may be summarised as follows: * Sensitive police operations take place in rooms addressing the site at which audio visual material is presented that is incompatible with a sightline from the proposed development. * Police officers and staff are often approached and harassed at entrances and exits and there is concern that this behaviour would be exacerbated by residents of the proposed boarding house, whose background may be unknown. * Clear access and egress for emergency vehicles is essential to maintain at all times. Impact on heritage significance 1. In respect of the heritage contentions, the Court was assisted by expert evidence from Ms Jennifer Hill, for the Respondent, and Mr Stephen Davies, for the Applicant. Two joint reports were prepared by the heritage experts. The joint heritage report filed 22 March 2021 was marked Exhibit 4, and a supplementary joint report, filed on 26 April 2021, was marked Exhibit 5. 2. Following joint conferencing of the heritage experts, there is essentially only one issue on which the Court is asked to make a determination. In broad terms, the issue is whether the alterations and additions now proposed to the 2018 Consent adversely impact the heritage significance of the former Police Station. 3. It is commonly held that the proposed alterations and additions, set out at [3], have an effect on the external bulk and scale of the proposed development. As this bulk and scale is the subject of the contentions, it is helpful to describe the built form that was the subject of the 2018 Consent, and that which is the subject of the application now before the Court. 4. The development the subject of the 2018 Consent is variously described by the heritage experts as being either an 'uneven C shape' or a 'narrow inverted 'C'' when viewed in plan. The centre of the 'C' shape is created by a recess in the façade which coincides with the lobby serving the vertical circulation, which is evident in the Level 2 plan from the 2018 Consent (taken from Exhibit 5), re-produced below: 1. In the joint report, Mr Davies sets out his view that the lobby in the 2018 Consent 'was very generous' and that additional rooms could take advantage of the excess space without compromising the heritage significance of the former Police Station so long as the resulting bulk did not extend beyond its principal ridgeline. 2. The Applicant now proposes additional boarding rooms at each level of the building in the location of the recess, with the result being a 'stepping' of the western façade in plan from the Elizabeth Street frontage where it is narrowest, to the widest point between the former Police Station and Court House buildings. 3. Ms Hill believes the development the subject of the 2018 Consent to have considered the heritage significance of the former Police Station by stepping in slightly to form the recess so that the new development sat behind, and was partly concealed by, the existing roof. As now proposed, the western elevation suggests the additional form will appear to sit upon the south gable, and the north elevation suggests the additional form will appear to sit on the north gable. 4. That said, at the commencement of the proceedings, the parties advised that further joint conferencing between the heritage experts agreed that the boarding room projecting westward into the former Police Station on level 1, identified as Room 105, would be deleted. 5. Plans showing the deletion of Room 105 were prepared by the Applicant (later marked Exhibit F), including a section drawing that appeared to show the floor slab to Room 205 forming a physical connection with the roof of the former Police Station building. 6. As it was the understanding of the heritage experts that the deletion of Room 105 would avoid any physical connection with the heritage item, the Court granted a short adjournment during which time the parties sought instructions, and consulted the respective heritage experts who were otherwise not called by the parties to provide oral evidence. 7. Following the adjournment, the parties advised the Court that the views of the heritage experts remained unchanged and the Applicant invited the Court to consider three pathways to the grant of consent: 1. Firstly, on the basis of the application before the Court, so amended that Room 105 is deleted, as shown in Exhibit F. 2. Secondly, for the Court to make preliminary findings that Room 205 should be reduced in size by 300mm to ensure clearance between the proposed development and the former Police Station, for which plans were prepared later marked Exhibit G. 3. Thirdly, for the Court to direct that Room 205 also be deleted. 1. As the site is listed for its local heritage significance, the Court is required to consider the effect of the proposed development on the heritage significance of the site in accordance with the provisions of cl 5.10 of the BLEP, which is in the following relevant terms: (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Burwood, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. Section 3.8 of the Burwood Development Control Plan 2013 (BDCP), which the Applicant submits should be the focal point of the Court's consideration, deals with Heritage in Centres and Corridors. The objectives applicable to the section are in the following terms: "O1 To support the retention of heritage properties and maintain their heritage significance. O2 To ensure that alterations or additions to heritage properties are sympathetic to the heritage significance of the property and in keeping with its character. O3 To ensure that development located in the vicinity of a heritage item is designed and sited in a manner sympathetic to the significance of the heritage property and its setting. O4 To facilitate adaptive re-use of heritage properties where such a use would contribute to the ongoing maintenance and viability of that item or place." 1. The BDCP sets out Provisions in support of the objectives that relevantly include: "… P4 Major re-development of a heritage property shall have regard to the NSW Heritage Branch's "Design in Context: Guidelines for Infill Development in the Historic Environment." P5 Development of a heritage property must: … Be sympathetic in terms of its design, bulk, scale and character. Adopt materials/finishes, form, proportions and detailing that responds to the traditional style of the heritage property. Provide adequate setbacks around the heritage property to ensure the maintenance of its historic setting and facilitate interpretation. P6 Development in the vicinity of a heritage property must be designed to have regard to the heritage property's: Scale and character. Form and proportions. Materials, colours and finishes. Street alignment and established setbacks in the surrounding area. … P10 Where a larger development proposes to incorporate a heritage item or significant place, the design must include appropriate measures to: Retain an appropriate setting to allow for the continued appreciation and integrity of the heritage item. Ensure the heritage item is not visually obscured or adversely altered, particularly regarding sight lines from the public domain." 1. The Respondent submits that the additional bulk now proposed in the location of the recess provides an inadequate setback around the former Police Station to ensure the historic setting is maintained, results in a form that is unsympathetic, and is not an appropriate setting to allow for the continued appreciation and integrity of the heritage item. 2. In the alternative, Mr Pickles SC, counsel for the Applicant, submits that the setback around the former Police Station is unchanged from the 2018 Consent, and that the alterations and additions now proposed would be indiscernible from the 2018 Consent to passers by, and can only be understood by standing on the site in close proximity. 3. To this end, the ridgeline of the former Police Station and the gable end facing Elizabeth Street remain intact, and the overall perception of the built form proposed to be added to the site acts as a backdrop in a similar manner to the development the subject of the 2018 Consent. 4. Furthermore, the overall scale and character, form and proportions, materials and street alignment are unchanged. To the extent that the 'C' shape in plan is now proposed to be altered, Mr Pickles submits that the decision by Commissioner Smithson in O.T.A.R Investments Pty Ltd v Burwood Council [2018] NSWLEC 1272 granting the 2018 Consent was not founded upon the shape of the plan, but on the question of height. In any event, the Court is not bound by the decision of Commissioner Smithson and must assess the application on its merits. 5. While it may be the case that the overall length and height of the proposed form are not changed from the 2018 Consent, I accept Ms Hill's assessment on p 11 of the Exhibit 5 that the effect of stepping forward at the location of the recess creates a stepped building that is significant bulkier. In my assessment, there are three reasons that support this view: 1. Firstly, while the additional bulk may appear wholly within the overall envelope of the 2018 Consent when viewed in elevation from the west as is suggested by the Applicant, the building will not be read in elevation, but in perspective. That said, the north elevation, re-produced below (Drawing SK-01 Issue A), is helpful in understanding the relationship of the additional bulk with the northern gable referred to by Ms Hill at [20] (addition highlighted). 1. Secondly, and given this, I accept Ms Hill's assessment that the projecting forward of the addition proposed in any of the scenarios set out at [23] will appear to impose itself on, and/or over, the roof form of the former Police Station. This is supported by reference to Section DD on Drawing D-1402 Issue B (Exhibit A), and is not remedied by the alternative at [23(2)], given the advice of the Applicant that the façade screen defining the bulk would be unchanged. 2. Thirdly, perspectives generated from the corner of Elizabeth Street and Burleigh Street (Drawing A-3001, Issue B), re-produced below, are in my view supportive of Ms Hill's opinion of the impact of the additional bulk in appreciating the heritage item. This is not due to the negligible loss of sky, as the Applicant puts it, but because the projecting forward of the additional bulk can be read against the sky, and so is not masked by the envelope of the 2018 Consent as suggested by the Applicant. 1. For these reasons, I consider the additional bulk now proposed to be highly visible at both its top where it is read above the parapet of the 2018 Consent, and its base, where it intersects, either physically or visually, or both, with the roof form of the former Police Station. 2. While not the subject of submissions, I note the heritage experts had regard to the Heritage Impact Statement prepared by Weir Philips dated November 2019 (Exhibit B, Tab 11) in the preparation of Exhibit 4 and 5, in which the statement of significance for the former Police Station is included as follows: "The former Burwood Police Station and Courthouse are small scaled public buildings designed by Walter Liberty Vernon, the New South Wales Government Architect. The original fabric is substantially intact but a subsequent addition of a modern entry vault is not in keeping with the character of the courthouse. The architectural detailing of the Burleigh Street and Elizabeth Street façade demonstrate Vernon's interest in the principles of the Arts and Crafts movement's use of materials and the then (though fleeting) popularity of the Neo-Romanesque style. The building makes a considerable architectural contribution to the setting of Burleigh Street and Elizabeth Street through careful use of materials, controlled scale, roof form and details." 1. The contribution made by the former Police Station to the setting of Burleigh Street and Elizabeth Street is identified as being of particular note, as is the roof form. Yet it is in this location that the additional bulk is most evident, and its intersection with the roof form most visible. 2. As it is put by Ms Hill, the increased bulk results from an increase in floor area and a reduction in the setback of the additional built form which has the effect of linking the 'wings' that were previously separated by the setback evident in the recess. 3. I do not accept Mr Davies' view that the additional bulk is acceptable whilever the actual junction between new and old is concealed behind the primary ridgeline of the former Police Station because the encroachment of the additional bulk on the roof form is easily understood by visually extrapolating the logical intersecting of new and old, and for which no architectural device or detailing is evident that would suggest a respect for, or recognition of, the existing fabric. 4. I conclude that the encroachment caused by the additional bulk is not consistent with objective O3 of Section 3.8 of the BDCP to be sympathetic in terms of its design or siting, and does not provide adequate setbacks around the former Police Station, including the air space above, to ensure the maintenance of its historic setting and allow for the continued appreciation and integrity of the heritage item. 5. As a consequence, I find that the development the subject of the development application has a detrimental impact on the former Police Station and does not conserve the heritage significance of the heritage item, including the associated fabric and settings as is otherwise required by cl 5.10 of the BLEP, and should be refused. 6. The Applicant invites the Court to provide preliminary findings and make directions to ameliorate the impact of the additional bulk by either reducing Room 205, which does not resolve the question of bulk for reasons set out at [31(2)], or to direct the removal of Room 205. I decline to do the latter as the implications of such an order are unknown, including the very real probability that the underside of Room 305 would then be visible from the public domain, the impact of which is uncertain. 7. In refusing the grant of consent, I note the Applicant has a 2018 Consent that is operational and may be acted upon. Orders 1. The Court orders that: 1. The Applicant is granted leave to rely upon amended plans at Exhibit A. 2. The appeal is dismissed. 3. Development consent for Development Application 2019/121 for alterations and additions to boarding house development at 24 Burleigh Street, Burwood is refused. 4. The Exhibits are returned, except for Exhibits B, F and G. …………………… T Horton 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: 26 May 2021