Land and Environment Court New South Wales Medium Neutral Citation: Scentre Group Limited v The Council of the City of Sydney [2022] NSWLEC 1101 Hearing dates: 17-18 February 2022 Date of orders: 28 February 2022 Decision date: 28 February 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: 1) The Appeal is upheld. 2) Development Application No. D/2021/670 for alterations and additions to the existing awning, at 65-77 Market Street, Sydney, is approved, subject to the conditions of consent at Annexure A. 3) The exhibits, other than Exhibits A, are returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an awning – local heritage item – impact of the development on the heritage significance of the heritage item Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Sydney Local Environmental Plan 2012, cll 5.10, 6.21, 6.21B, 6.21C, Sch 5 Category: Principal judgment Parties: Scentre Group Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: A. Galasso SC (Applicant) J. Reid (Respondent) Solicitors: Corrs Chambers Westgarth Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2021/223729 Decision under appeal File Number(s): 2021/223729 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2021/670 for alterations and additions to the existing awning (the proposal) at 65-77 Market Street, Sydney (the site) by The Council of the City of Sydney (the Council). 2. The appeal was subject to conciliation on 2 November 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposal will have an unacceptable heritage impact on a locally listed heritage item. * The proposal is not considered to exhibit design excellence, as required by cl 6.21(3) of Sydney Local Environmental Plan 2012 (LEP 2012). * The proposed awning changes are inconsistent with the footpath awning objectives and provisions contained in Section 3.2.4 of the Sydney Development Control Plan 2012 (DCP 2012). 1. The Applicant invited the Court to delete a (without prejudice) condition of consent (Ex 7), condition 2(a), not approving the proposed recesses or shadow lines in the travertine cladding to interpret the position of the existing awning and requiring amended plans to demonstrate compliance with the condition. The site and its context 1. The site is legally described as Lot 1 in DP 538917. The site is irregular in shape and has a site area of 2,533m2. There is a fall of 2.36m from the south-eastern corner to the north-western corner of the site. 2. The site contains a 10 storey commercial building, which formerly accommodated the David Jones department store from 1938 to 2020. The existing building was constructed in a number of stages, between 1938 and 1969 (Ex E, fig 8). 3. On the opposite north-eastern corner of the intersection of Market and Castlereagh Streets is the David Jones Elizabeth Street department store. The site is connected to Westfield Shopping Centre on the opposite side of Market Street by a pedestrian bridge at the first floor level and a tunnel beneath Market Street. Figure 1: The existing awning, viewed from the intersection of Market and Castlereagh Streets, prior to the commencement of construction (from Ex 1). Figure 2: The existing building, viewed from the intersection of Market and Castlereagh Streets, prior to the commencement of construction (from Ex 1). Background and the proposal 1. The proposal is part of a larger redevelopment and adaptive re-use of the former David Jones department store, including separate retail tenancies on the lower levels, commercial tenancies on the upper levels and residential in a new 22 storeys tower. The approved development is currently under construction. 2. The approved development includes a new corner entry to an individual retail tenancy on the corner of Castlereagh and Market Streets. The approved development includes enlarging the ground floor retail windows by raising the window heads. The existing Castlereagh Street entry will access the corner tenancy and the existing Market Street entry will access the internal circulation space for the retail component of the approved development. There are new entries from Castlereagh Street for the residential lobby and the commercial lobby, and a new express escalator entry and an exit to Market Street (Ex K, tab 4, S455-200R3 Rev 04). 3. The existing awning has been dismantled during construction of the approved development, with the intention of reinstating as much original fabric as possible of the awning in its original position. 4. The proposal is described in the (Amended) Statement of Facts and Contentions (Ex 1) as follows: * Inversion of the existing awning 'step' on the Castlereagh Street frontage and relocation of awning 'step' on Market Street frontage eastwards towards the corner intersection, so as to raise a section of the awning around the corner of the building, over the approved new corner entry to one tenancy; * Interpretation of existing awning location through a recessed band of re-used and matching new travertine within the previous awning location; * Repair and reinstatement, and matching new awning soffits and fascia. Figure 3: Proposed change to the position of the awning and section (from Ex 1 and Ex D p 8). 1. The raised awning sections of the proposal will require new structural fixings through the façade, as shown above in Fig 3. 2. The existing awning was 4260mm above the footpath at the Castlereagh Street entry; 4150mm above the footpath at the corner of Castlereagh and Market Streets; 5000mm above the footpath at the Market Street entry; and 4390mm above the footpath near the western end of the Market Street elevation (Ex D, pp 10-11). The proposal is to retain the 4260mm height above the footpath at the Castlereagh Street entry, raise the awning to 5220mm at the corner; retain the 5000mm above the footpath at the Market Street entry and continue this height to the west of the northern elevation so that the awning is 5780mm near the western end of the Market Street elevation (Ex D, pp 10-11). 3. The purpose of the proposal is to emphasise the corner entry by maximising the height of the awning at the corner, in order to improve the activation of the street frontage (Ex C, pp 1 and 13; Ex E, p 41 and Ex D, p 8). Planning framework 1. The site is zoned B8 Metropolitan Centre pursuant to LEP 2012 (Land Zoning Maps LNZ_014 and 015 of LEP 2012). The objectives of the B8 zone, to which regard must be had, are: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages within podiums that contribute to the character of the street. • To promote the efficient and orderly development of land in a compact urban centre. • To promote a diversity of commercial opportunities varying in size, type and function, including new cultural, social and community facilities. • To recognise the important role that Central Sydney's public spaces, streets and their amenity play in a global city. • To promote the primary role of the zone as a centre for employment and permit residential and serviced apartment accommodation where they complement employment generating uses. 1. The site is identified as a local heritage item (Item 1888, "David Jones Department Store" including interior, Sch 5 to LEP 2012). There are a number of heritage items in the vicinity of the site, including the David Jones Elizabeth Street department store (Item 1697). Clause 5.10(4) of LEP 2012 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the item, before granting consent under cl 5.10. 2. The approved development was the subject of a competitive design process. The design excellence provisions in LEP 2012 apply to the proposal, at cl 6.21B(1) of LEP 2012, because the proposal is an external alteration to an existing building. The relevant terms of cl 6.21C are: (1) Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (2) In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (d) how the proposed development addresses the following matters— (iii) any heritage issues and streetscape constraints, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area 1. DCP 2012 includes the following objectives and provisions for footpath awnings, at section 3.2.4: "Objective (a) Encourage footpath awnings to enhance pedestrian amenity and provide weather protection. Provisions (2) New awnings are to be compatible with the scale of host and adjacent buildings and the architectural features of the host building. (4) Awnings where provided are to be located between the ground and first floors to maximise weather protection. The height of an awning may vary between 3.2m and 4.2m above the footpath. The height of the awning must ensure continuity in appearance with adjacent awnings and to relate to any distinctive features of the building." 1. DCP 2012 includes the following objective for heritage items, at section 3.9.5: "Objective (a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item." Expert evidence 1. The Applicant relied on the expert evidence of Tim Blythe (planning), Rohan Dickson (urban design), James Phillips (heritage) and Dr Graeme Wood (wind engineering). 2. The Council relied on the expert evidence of Mia Music (planning), Cindy Ch'ng (urban design), Hui Wang (heritage) and Kevin Peddie (wind engineering). 3. The planning and urban design experts prepared a joint report (Ex 6) and gave oral evidence. The heritage experts prepared a joint report and a supplementary joint report (Exs 3 and 4) and gave oral evidence. The wind engineering experts prepared a joint report (Ex 5) and gave oral evidence. Consideration Amenity 1. The wind engineering experts agreed that the increase in the height of the awning would primarily affect rain penetration near the corner of Castlereagh and Market Streets for wind driven rain from the north and east quadrants, and that in Sydney, wind driven rain from these directions occurs about 50 hours per annum. The experts agreed that the wind-rain exposure at the corner of Market and Castlereagh Streets as a result of the raising of the awning would be an additional 360mm. They agreed that the change in wind-rain exposure at the street corner as a result of the raising of the awning, considering the duration of wind driven rain from the north and east quadrants, represents a minimal reduction in amenity. 2. Based on the wind engineering experts' agreement, I am satisfied that the change in the penetration of wind driven rain under the awning, for on average one hour per week, as a result of the raising of the awning is negligible and is not determinative. Whether the awning is reinstated to match the original position, or it is raised as proposed, the awning will satisfy the objective for footpath awnings to enhance pedestrian amenity and provide weather protection. 3. There is no requirement in the DCP 2012 provisions for footpath awnings for the proposed new location of the awning to necessarily enhance pedestrian amenity to a greater degree when compared to the former position of the awning. The objective is to encourage footpath awnings for the purpose of enhancing pedestrian amenity and providing weather protection. The objective is met by the provision of an adequate footpath awning. Both the proposal, and the reinstatement of the former awning, are continuous and generous awnings around the two external façades of the existing building at heights that the wind engineering experts agreed would provide adequate weather protection at the most exposed corner from wind driven rain. 4. I am satisfied that the proposal meets the DCP 2012 objective and provisions for footpath awnings, other than the numerical controls for the height of awnings and the height of step downs in response to topography (at 3.2.4(4) and (13) of DCP 2012). I accept the Applicant's submission that the existing awning does not meet the numerical control at 3.2.4(4) and that it is appropriate to exercise the flexibility of s 4.15(3A) of the EPA Act in relation to those numerical controls, because the objective of the provision is met. The design of the proposed awning is a response to the brief, to enhance the retail offering; to the constraints of retaining the existing style of the awning and as much physical fabric as possible; and to the approved elevations at the ground floor level within the context of the existing façades. Heritage and urban design 1. In summary, the difference between the parties' submissions and expert evidence is as follows: * The Council's view is that the existing awning is an essential element of the heritage significance of the item (rated by the Conservation Management Plan (CMP) as being an element of exceptional heritage significance) and the proposal diminishes the functionalist style of the awning, which subtly denotes the existing entries to the building on each façade by locating the step down in the awning adjacent to each entry. The changes to the awning are for the benefit of a single retail tenant on the corner of the existing building and this is not justified by the impact of those changes on the heritage significance of the item. There is no evidence that the raising of the awning around the corner will enhance the activation or success of the retail tenancy and it is not necessary to make any change to the awning, the proposal is merely a preference. The Applicant's "preference" has to be weighed against the heritage impact of the proposal. The approval of the enlarged ground floor windows, new openings and oculi within the awning are intended to improve the retail activation of the façades in lieu of any changes to the awning. The awning soffit is likely to be the first application of aluminium with a satin finish. The changes to the awning will result in less original fabric being reinstated. The proposal is not reversible and it is an irreversible change to the proportions of the façades. * The Applicant's view is that the changes proposed to the awning are consistent with and a minor aspect of the overall changes already approved to the existing building, including the new corner entry and the changes to the ground level facades, including the enlargement of the windows. The changes to the awning maintain the existing design and materiality of the awning and are to be executed using as much of the existing fabric as possible. The changes to the awning are necessary for the retail activation of the façades and the new retail tenancy on the corner. 1. I agree with the Council's experts that proposal erodes the very horizontal, functionalist style of the awning, with step downs consistent with the fall of the footpath and which, along with the glass bricks above the entries, subtly denote the existing entries to the building. I am, however, persuaded by the Applicant's submissions and expert evidence for the following reasons: 1. The approved changes to the ground floor façades to change the proportions of the display windows by raising the window heads; the insertion of new openings including the corner entry; and changes to the western entry on the Market Street elevation; have significantly altered the solid to void proportions of the ground floor façades and their relationship to the awning, by eroding the strong horizontal emphasis within the proportions of the ground floor façades (as demonstrated by the elevations of the ground floor façades showing the approved changes to openings (Ex C, p 11). The step down of the awning adjacent to the original entries as a visual cue to the building's entry was reinforced in the low head height of the window adjacent to the entry and below the step down (see the photograph in the journal, "Building Magazine" May 24, 1938 on p 21, Appendix E to Ex 6). As the window is to be increased in height, those visual cues are altered. 2. The proposal is consistent with the changed brief and suite of major changes to the original building. The proposal responds to the approved external and internal changes to the building, including celebrating the new corner entry to the retail tenancy and orientating the focus of the building at street level to the intersection and the urban space. 3. The proposal retains the style and materiality of the original awning and will reuse as much as the original fabric as practicable. I am not convinced that the proposal will necessarily result in less of the salvageable material from the original awning being reinstated, as it is likely that only a proportion of the salvaged material is able to be reinstated. 4. The relationship between the awning and the original entries on Castlereagh Street and Market Street is unchanged (other than the location of the step down adjacent to those entries). 5. The proposal has been an integral element of the overall design vision for the adaptive re-use of the existing building since the beginning of the project, as demonstrated by the following documentary evidence: * The CMP for the site, prepared by Urbis in consultation with the City's Urban Design and Heritage Team, contemplated the proposed modifications to the awning and a new entry to a retail shop on the corner of Castlereagh and Market Streets (Ex 11, "Architectural Design Competition Report 65-77 Market Street, Sydney" pp 32 and 36). * The design brief for the architectural competition for the site contemplated modifications to the awning to maintain its historic character and to achieve an improved presence for retail tenancies along Castlereagh and Market Streets, and to allow for legibility of the commercial and residential lobby entrances; (Ex 11, "Architectural Design Competition Brief 65-77 Market Street, Sydney" p 28); * The design brief for the architectural competition contemplated additional shop front openings to Castlereagh and Market Streets to respect the original department store use and shopfront design to promote activation in the façade and to promote the engagement of retail tenancies with the streetscape" (Ex 11, "Architectural Design Competition Brief 65-77 Market Street, Sydney" p 28). * FJMT Studio's winning design for the development included changes to the location of the awning (Ex 11, "Architectural Design Competition Report 65-77 Market Street, Sydney" p 18 and Ex L) and the jury recommended that prior to the detailed design phase, the matters that should be addressed included, "further resolve awning, shopfront and shop entry design to achieve the required retail planning objectives" (Ex 11, "Architectural Design Competition Report 65-77 Market Street, Sydney" p 19). 1. I accept Mr Phillips' evidence that the alteration to the awning will replicate and reuse the current detailing, fascia, soffit and replicate the structural system and that the detail will remain the same as the original awning, except for the step downs being reversed. I am satisfied that the proposal will have an acceptable impact on the identified heritage significance of the item and that the proposal is integral to the overall vision for the reinvention of the former David Jones men's department store. 2. I accept Mr Phillips' opinion that the proposal demonstrates design excellence because it is restrained and responsive to the changes to the principal elevations of the existing building. I am satisfied that the proposal will achieve a high standard of architectural design, materials and detailing appropriate to the building type and location; that the form and external appearance of the proposed development will improve the quality and amenity of the public domain; and that the proposal will not impact on the amenity of pedestrians. Condition 2(a) of the conditions of consent Exhibit 7 1. The proposal to slightly recess the relocated and added travertine cladding to the street elevations below the raised awning to denote the original profile of the awning is consistent with accepted heritage methodology (Ex 10, The Australia ICOMOS Charter for Places of Cultural Significance 2013 (The Burra Charter) Article 22.2). I accept the Applicant's submission and Mr James' evidence that the proposal to recess the relocated and new travertine cladding is appropriate and condition 2(a) of Exhibit 7 is deleted in the conditions of consent at Annexure A. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. D/2021/670 for alterations and additions to the existing awning, at 65-77 Market Street, Sydney, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than Exhibits A, are returned. ____________ Susan O'Neill Commissioner of the Court Annexure A (217759, pdf) ********** 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: 28 February 2022