> Land and Environment Court of New South Wales CITATION : Michael Hesse v Parramatta City Council [2003] NSWLEC 313 revised - 24/11/2003 PARTIES : Michael Hesse Associates Pty Ltd v Parramatta City Council FILE NUMBER(S) : 10675 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application - Existing Use Rights :- heritage impact LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/11/2003 to 21/11/2003 EX TEMPORE JUDGMENT DATE : 11/21/2003 Applicant: Mr Green, solictor Pike Pike & Fenwick, solicitors LEGAL REPRESENTATIVES: Respondent: Mr P Tomasetti, barrister instructed by Mr C Gough of Storey & Gough JUDGMENT: - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10675 of 2003 Roseth SC 21 November 2003 Michael Hesse Associates Pty Ltd Applicant v Parramatta City Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Parramatta City Council (the council) of a development application to convert the Mercure Motel on lot 101 DP 840898, known as 104-106 Hassall Street, Rosehill, into an apartment building. The site 2 The site is on the north side of Hassall Street, between James Ruse Drive and Arthur Street, 500m from the Parramatta River, 1.5 km from the east of Parramatta CBD and 500m from the Rosehill Gardens Race Course. Its area is 5,000m2. The existing nine-storey high building accommodates 165 motel suites, 181 car spaces and associated facilities. 3 To the north is an undeveloped parcel with light industry and recreation beyond. To the south is Hassall Street, which is a four-lane arterial road. To the east is the Rosehill Bowling Club. To the west are several single-storey houses fronting Arthur Street. The majority of development in the vicinity is single-storey houses. 4 The site is in a locality, called the Harris Park Precinct, which is replete with historic associations, landscape and buildings. The Parramatta Regional Planning Strategy identifies it as a Nationally Significant Heritage Precinct. It contains three significant items related to the earliest days of white settlement: Elizabeth Farm House, Hambleton Cottage and Experiment Farm. Elizabeth Farm House is about 300m to the south. Hambleton Cottage is about 500m west of the site. The Female Orphan School, which is outside the Precinct, is also a significant heritage item, from which the Mercure Motel is visible. Relevant planning instruments 5 It is common ground that the Mercure Motel has existing use rights. As a consequence the planning instruments that would otherwise apply to the site have no application. (They do, however, indicate the planning regime that applies to the site's surroundings.) As for this proposal, it must be assessed only under s79(C) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 6 Sydney Regional Environmental Plan 28 – Parramatta zones the site (and the area around it) Residential 2(e), a zone in which motels and residential flat buildings (among other things) are prohibited. The planning controls restrict the height of buildings to RL 14, which allows a two-to-three-storey building. SREP 28 is accompanied by a regional strategy. 7 Sydney Regional Environmental Plan 22 – Parramatta River establishes a framework for the coordinated planning of the Parramatta River and its foreshores. Development Control Plan for SREP 22 applies to all sites to which SREP 22 applies. The Harris Park Precinct Development Control Plan provides guidelines for development assessment in the precinct. 8 State Environmental Planning Policy 65 – Design Quality of Residential Flat Buildings is directed to better-designed residential flat buildings. Whether or not it applies to this proposal, was in dispute. In my opinion, it applies, since the requirement that apartment buildings be well designed does not derogate from existing use rights. However, since the matter is in dispute, I have not relied on SEPP 65. The proposal and its history 9 The Mercure Motel was constructed in 1987, at a time when a motel was a permissible use. The applicant now proposes to convert the motel into an apartment building by: · Converting the motel suites to 97 apartments, a gym and other common facilities; · Demolishing the existing façade, porte cochere and internal walls; · Reconstructing the building's façade, mainly by the addition of balconies; · Constructing two levels of apartments on top of the existing roof replacing the plant room; · Upgrading the existing tennis court, swimming pool and spa; · Providing new landscaping. 10 The applicant lodged the development application in August 2002. Following notification, the council received three objections. The council considered the application in June 2003 and refused it for 16 reasons. Those reasons included the major issues in this case, though they were expressed differently. The issues 11 The council submitted a Statement of Issues containing 20 issues, of which it pressed twelve. During the hearing the issues were reduced to five: · Is the proposed strata titling of the building appropriate? · Is the visual impact on the Harris Park Precinct, and the heritage items within and outside it acceptable? · Is the cross ventilation of the proposed dwellings adequate? · Is the solar access of the proposed dwellings adequate? · Is the impact on the privacy of adjoining houses acceptable? 12 It was common ground that the existing building was bulky, unattractive and related poorly to its surroundings. The essence of the dispute was whether the proposed alterations and extensions would improve it or make it worse. 13 The applicant submitted that there was an inherent public benefit in the adaptive re-use of this building and that the other issues should be considered in the context of this public benefit. This raises an important question and I propose to consider it as the first issue. Is there a public benefit in every case of adaptive re-use? 14 In the applicant's submission, there was a public benefit in this proposal due to its involving the adaptive re-use of an existing building. The notion that there was inherent virtue in this proposal because it was adaptive re-use, ran through the evidence of most of the applicant's experts. Mr A Smith, a planning consultant, drew up a balance sheet in which he attributed a "net benefit" to the "conservation of the majority of the existing fabric" and "net reduction in energy consumption with residential use". Dr S King, an architect and associate director of the UNSW's Centre for Sustainable Built Environment, justified the proposal's mediocre (though in his view, acceptable) performance on cross ventilation and solar access on the grounds that the new apartments were in a converted building. Mr M Hesse, an architect and the designer of the proposal, said that the building contained constraints that made it difficult to achieve better internal amenity. 15 In essence, the applicant argued that normal standards of performance should be applied less stringently to this proposal because it involved the adaptive re-use of an existing building. This raises an important question of planning principle: is adaptive re-use per se in the public interest? 16 I accept that in most cases of adaptive re-use there is a saving of resources, because building materials, and the energy used in producing and erecting them, are used for a second time. Saving resources is one element of ecologically sustainable development, the promotion of which is one of the aims of the EPA Act. However, the saving of resources occurs only in comparison with a similar project that would demolish the existing building and construct a new one, not in comparison with the project not occurring at all. If, for example, a soup kitchen were converted to a TAB betting office, few people would think that the saving in building materials was sufficient reason to consider that the conversion was in the public interest. Similarly, if a building that is generally regarded as ugly and out of context were given a new lease of life by adapting it to a more profitable use, most people would consider the conversion undesirable because it prolonged the building's life. In my opinion, to be in the public interest, an adaptive re-use project must have an element of public benefit apart from resource conservation. One or more of the following circumstances must be present: · the building is of historical or heritage value; · the building is attractive and fits into its urban design context; · the building is much loved by the community; · the new use serves the public interest better than the existing use; 17 In the present case, none of the above circumstances applies. It is common ground that the building is not attractive and does not fit into its surroundings. The new use does not serve the public interest better than the existing. (In fact motels are often considered to be in the public interest because they encourage tourism and job creation.) 18 None of the above suggests that the proposal is against the public interest just because it is adaptive re-use. The conclusion is only that there is no justification for assessing this proposal any differently from a proposal that does not involve adaptive re-use. Strata titling 19 Mr A Bas, a planning coordinator with the council, and Professor J Toon, an architect and planner, suggested that the Strata titling of this proposal would reduce the chances of its eventual demolition. For this reason they considered the Strata titling element of the proposal sufficient to justify refusal. In the view of the applicant's experts, however, the building was likely to remain. Whether or not it was Strata titled would make no difference to its longevity. 20 I note that there is no plan for the acquisition of the site. There is no arrangement for the transfer of floor space to another part of Parramatta. It is unlikely therefore that the building would be demolished. Strata titling may make it more difficult to achieve demolition, but demolition is so unlikely anyway, that Strata titling will make little difference. Visual impact 21 It is common ground that the Harris Park Precinct contains heritage items of State or national significance, that it is a Nationally Significant Heritage Precinct, and that the majority of development in it is single storey houses. It is also agreed that the Mercure Motel can be seen from many points within and outside the precinct, including from Elizabeth Farm Cottage and the Female Orphan School. The experts disagreed on the extent of visibility; and exactly which points one can see it from, however, in my opinion little turns on this. Arguments about the extent to which certain olive trees obscure the view of the motel appear to me to be irrelevant. The visit to the site demonstrated that the Mercure Motel looms large in the field of vision of anyone visiting or driving past the area. 22 The real issue in this case hinged on the question whether the proposed building (ie the existing building after the alterations and additions) would relate better to the Precinct and the heritage items than the existing building. In addition to Mr Smith and Dr King mentioned above, the applicant's experts were Mr R Dickson, an architect and urban designer, Professor N Quarry, an architect, Mr R Staas, a heritage architect, and Mr S Davies, a heritage consultant. In their opinion the renovated and extended building would have an improved relationship to its surroundings. There were two major reasons for this. First, the substitution of two residential floors for the plant room and the addition of balconies, while it would increase the volume of the building, would have a negligible impact on the perceived bulk. Second, the new treatment of the elevation would enliven what everyone agreed was a bland building with interest, colour, vertical emphasis and articulation. The vertical emphasis would change the "squat and dumpy" proportions of the existing building. 23 In essence, the applicant's experts said that the converted building would be less intrusive in its urban context. The attractive new façade would more than counteract the minor addition to the building's volume. 24 In addition to Mr A Bas and Professor Toon mentioned above, the council's experts were Ms P Pike, a heritage consultant, and Ms K Higgins, a heritage advisor to the council. They saw the proposed alterations and extensions to the building in quite a different light. They considered the replacement of the plant room by two additional two residential floors, coupled with the external balconies, as a considerable increase in bulk. As for the new façade, the council's experts disliked it precisely because it was livelier and drew more attention to itself. In their opinion, a building that is grossly out of scale with its surroundings should recede into the background to the maximum extent possible. 25 The Court had before it numerous photographs, including photomontages and views of the existing building provided by the applicant. On several photographs (in particular from Elizabeth Farm House and the Female Orphan School) the Mercure Motel appeared more distant than it did in real life. This is possibly explained by the use of a wide-angle lens. In fact the motel is much more prominent from these important viewing points than it appears on the photographs on which the applicant's experts based their argument. 26 In my opinion, the council's experts are closer to the true position than the applicant's experts. The proposed alterations and extensions of the building will make it appear larger and more noticeable. Because the building's incompatibility with its surroundings arises mainly from its size relative to the scale of the buildings around it, the increase in building volume will increase the extent of incompatibility. 27 I have reached the above conclusions by analysing the bulk that will be added to the building. However, I reach the same conclusion simply by looking at the pictorial representations of the building as it exists and as it would appear after the conversion. The converted building appears significantly bigger, and therefore more alien to its surroundings, than the existing building. I note that the applicant's experts have said that the change is negligible. I can explain this conclusion only by the possibility that they based it on photographs that do not represent the true position. 28 I note that the Heritage Office and the Historic Houses Trust of NSW have written to the council's solicitors indicating their opposition to the proposal more or less on the same grounds as the ones advanced by the council's experts. I do not take this opposition into account as expert evidence, however it strengthens the conclusions that I have reached based on the expert evidence. 29 Any change of use of this building should be achieved within the parameters of the existing building volume. For better or for worse, the existing volume is likely to stay for a long time. That is no reason, however, to accept additional bulk to a building that everyone acknowledged as being too large for its context. Internal amenity (cross ventilation and solar access) 30 The proposal is based on what architects call a double-loaded corridor, ie a central corridor with apartments on both sides. Consequently, a large number of apartments face south and few apartments have cross ventilation. Dr King assessed the proposal for solar access. He concluded that two thirds of the units had good solar access, while one-third faced south and had poor solar access. Reading the whole of his report, I understand his evidence to say that the solar access was acceptable, though a better performance could be achieved in a new building on the same site. 31 Dr King also assessed the proposal for cross ventilation as acceptable, because a breeze would pass through the apartments even when they were on one side of the corridor. However, he stated in his report that the single sided apartment was not ideal for cross ventilation. 32 Mr Hesse told the Court that he had considered many alternatives and concluded that it was not practicable to achieve a higher proportion of north-facing apartments with cross ventilation. He supported his evidence with a sketch of a cross over apartment that he decided not to adopt because he thought it had low amenity. My own reaction to the sketch was that it showed a lovely apartment with an interesting layout. However, since the sketch was not discussed in Court, I do not take it into account in my decision. 33 On balance I find that the proposal's performance on solar access and cross ventilation is just acceptable. Placed against the fact that on this site a nine-storey building should be able to achieve excellent, if not perfect, solar access and cross ventilation, the just acceptable performance is disappointing. It is not, by itself a reason for refusal, but it is a negative feature of the proposal. Overlooking of Arthur Street rear yards 34 According to Professor Toon, the conversion of motel suites and the addition of external balconies in the vicinity of the rear yards in Arthur Street would result in increased overlooking. I note that the balconies will have a solid panel towards the west and that there is some landscaping at the west boundary. While there would be more overlooking due to the change from temporary to permanent occupancy, I do not think that this impact is so significant as to justify refusal. Conclusion 35 The Mercure Motel is a nine-storey building in the locality of Harris Park, which is a nationally significant heritage precinct. It contains the significant heritage items of Elizabeth Farm Cottage, Hambleton Cottage and the Experimental Farm. It was common ground that the existing motel building is out of scale with its surroundings and that it is an intrusive element in a low-scale mainly residential area. 36 The applicant proposes to convert the motel into an apartment building and in the process replace the plant room with two residential floors and add external balconies on both sides of the building. In the Court's opinion, the proposed extension would increase the visual bulk of the building. It would make it more out of scale and even less appropriate in its surroundings. It would appear more prominent in views from heritage items. Its impact on the built environment is therefore unacceptable. 37 For the above reasons the appeal is dismissed. Orders 1. The appeal is dismissed. 2. Development application to convert the Mercure Motel on lot 101 DP 840898, known as 104-106 Hassall Street, Rosehill, into an apartment building is determined by refusal. 3. The exhibits are returned. _________________________ Dr John Roseth Senior Commissioner 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.