Carlode Nominees Pty Limited v Sydney City Council [2004] NSWLEC 759

Land and Environment Court of New South Wales

CITATION : Carlode Nominees Pty Limited v Sydney City Council [2004] NSWLEC 759 APPLICANT: Carlode Nominees Pty Limited PARTIES : RESPONDENT: Sydney City Council FILE NUMBER(S) : 11035 of 2004 CORAM: Lloyd J Development Application :- deemed refusal - heritage items - permissible use under local environmental plan - heritage impact and traffic issues - public interest KEY ISSUES: Construction and Interpretation - objectives - local environmental plan overrides development control plan

Environmental Planning and Assessment Act 1979 ss 72(2) and 97 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Pt 3 cll 15 and 16 Leichhardt Development Control Plan 2000 Development Control Plan No. 49 - 156-160 Bridge Road, Glebe CASES CITED: DATES OF HEARING: 16/12/2004 and 17/12/2004 EX TEMPORE 12/17/2004 JUDGMENT DATE :

APPLICANT: Mr G A Green (solicitor) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr M G Craig QC SOLICITORS: Maddocks

JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Lloyd J

Friday, 17 December 2004

LEC No. 11035 of 2004

CARLODE NOMINEES PTY LIMITED v SYDNEY CITY COUNCIL [2004] NSWLEC 759

EX TEMPORE JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of a development application to carry out the redevelopment of a site at Nos. 156 to 160 Bridge Road, Glebe. 2 The site is presently occupied by three buildings. The principal building is a former Presbyterian church which has been used in more recent times as a restaurant known as The Abbey and which occupies the middle of the site at No. 158 Bridge Road, Glebe. At No. 160 Bridge Road is a two-storey brick house in a somewhat deteriorated condition known as Reussdale. At No. 156 Bridge Road is a single storey house, also in a deteriorated condition, known as Hamilton. The two houses together with a house on the adjoining property at No 154 Bridge Road known as The Hermitage were all built in the late nineteenth century by an architect named Mr Ferdinand Reuss Snr. The former church was originally built in the late nineteenth century at the corner of Parramatta Road and Glebe Point Road and was relocated and reconstructed on the present site in about 1927 or 1928. 3 The site is a large one in the context of the inner city suburb of Glebe, having an area of about 3,362 square metres. It has a frontage to Bridge Road, its rear boundary is Reuss Street and one of its side boundaries is Hewitt Street. As I have noted, the other side boundary adjoins The Hermitage at No. 154 Bridge Road. 4 The development application has been amended on a number of occasions and what is now sought is the following: the restoration of, conservation and additions to the Reussdale building and its use as a single dwelling; the conversion of The Abbey building into commercial offices by the insertion internally of three additional floors; the demolition of the Hamilton building and its replacement with a three-storey residential flat building; the erection of townhouses along the Reuss Street frontage; excavation for basement car parking for 46 vehicles; and the removal and retention of a number of trees. 5 The development is permissible with consent under the relevant environmental planning instrument. The site is, however, located within the Glebe conservation area under the relevant environmental planning instrument being the Leichhardt Local Environmental Plan 2000. Moreover, Reussdale is listed as a building of state heritage significance; and The Abbey, Hamilton and the adjoining Hermitage building are listed as heritage items under the local environmental plan. This in turn calls for the consideration of cll 15 and 16 of the local environmental plan. Those clauses are found in Pt 3 of that instrument, which is headed "Heritage Conservation". 6 One of the objectives in cl 15 of the local environmental plan, in relation to heritage conservation, is para (e): to protect buildings of heritage significance and elements of conservation areas, including their setting and context, from loss of significance through inappropriate changes. 7 Subclause 16(2) requires the consent authority to take into consideration, amongst other things, the extent of the impact of the development on the conservation and heritage significance of the item in terms of its fabric, the age of the building or structure, any stylistic or horticultural features of its setting, any potential for archaeology, and any historic subdivision pattern in the vicinity. 8 Subclause 16(7) refers to development in the vicinity of a heritage item. It states that: … consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect that the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item. 9 Subclause 16(8) refers to conservation areas and requires consideration of the heritage significance of any building work et cetera and the contribution it makes to the conservation area. 10 The Court has had the benefit of a view in company with representatives of the parties. In the course of the view evidence was taken on the site from a number of local residents. 11 The issues which have emerged in the case are principally heritage issues and, to a lesser extent, traffic issues. Having regard to the provisions of the local environmental plan to which I have referred, it would seem to me that the retention of each of the three heritage items should be a primary aim, if at all possible. 12 The evidence of the local residents is also important. The taking of evidence of local residents is no mere formal exercise. Their views are not only taken into account, but are seriously considered by the Court. I was particularly impressed with the evidence of Mr R A Smilde who owns and occupies The Hermitage building at No. 154 Bridge Road. Since purchasing The Hermitage Mr Smilde has restored it to its original, or near original, condition. Mr Smilde stated that the demolition of Hamilton and its replacement with a three-storey residential flat building would cut The Hermitage off from its contact with the other heritage buildings adjoining, thereby destroying the heritage value of not only his building, but also the other heritage buildings remaining on The Hermitage site. I must say that, having viewed the area, it is a view with which I concur. It is true that in this area of Glebe there has been some unsympathetic redevelopment but there is also in the vicinity of this site a number of buildings, obviously built in the nineteenth century, which have been successfully restored. 13 According to the structural report which is in evidence the most significant elements of Hamilton can be conserved. In my opinion, having viewed the building from the outside, it does seem to be in a relatively sound condition insofar as its external fabric is concerned. In applying the provisions of the local environmental plan to which I have referred, Hamilton should not be demolished: it should be retained and either used as a dwelling or put to some other adaptive use. Although the council's development control plan for the site - Development Control Plan No. 49 ("DCP No. 49") – countenances that Hamilton need not be retained, the application of the relevant provisions of the local environmental plan leads to the opposite conclusion and must prevail to the extent that the provision of the DCP No. 49 do not conform with the local environmental plan: s 72(3) of the EP&A Act. On 18 October 2004, however, the council resolved to repeal DCP No. 49 and adopted different design principles to guide future development of the site which include the retention of all the existing heritage buildings. 14 That part of the development concerning the restoration of Reussdle is, of course, not objected to and is consistent with the provisions of the local environmental plan which I have described. 15 There is a real concern about what is proposed within The Abbey building itself. As I have said, this is a former Presbyterian church. Since its deconsecration in 1970, it has been used as a restaurant. In order to put it to use as a restaurant it has undergone an unsympathetic interior fit-out. Again, having viewed the building and applying the provisions of the local environmental plan which I have described, any changes to that building should be directed towards restoring the former open space which previously existed within that building and to allow the interior space to be used in a manner more sympathetic to the architectural qualities of the church, including an understanding of its large interior volume, its height and its original timber-lined ceiling – which still exists above the false ceiling of the restaurant. 16 All of these conclusions are consistent with the opinions expressed by the council's heritage expert, Mr Anthony Smith. They are contrary to the views of the applicant's heritage experts, Prof Mackay and Mr Clive Lucas. 17 Prof Mackay was engaged at an early stage of by the applicant and was actively involved in the preparation of a conservation management plan for the building and, it seems, in the preparation of the development application. Mr Lucas was brought in by the applicant at a later stage to provide some independent advice. My preference for the views of Mr Smith to those of Prof MacKay and Mr Lucas is strongly influenced by the relevant provisions of the local environmental plan to which I have referred and which govern the consideration of development applications of this nature, together with the view of the site which confirms that the buildings are basically sound and worthy of restoration. Moreover, in reading Mr Lucas' report it seems that no reference at all is made by him to the relevant provisions of a local environmental plan to which I have referred and which govern consideration of developments of this nature. 18 It therefore follows that the development application should be refused. I note that the council adopted a resolution on 14 October this year relating specifically to future development of this site. The council does not oppose any future residential infill development on the site, but it should be strictly limited to low scale residential development along the Reuss Street boundary at the rear of the site, in scale and in sympathy with the location, bulk and scale of the surrounding area. This is consistent with the Leichhardt Development Control Plan 2000, which allows for small scale development at the rear of The Abbey. That, I must say, would seem to be a reasonable solution to the kind of development that might occur on this site and is something that should be commended. 19 This conclusion means that it is not necessary to consider the traffic issue. Any future residential development would, however, be of a lesser scale and it may in turn impact upon the future traffic assessment of such a development. 20 The formal orders of the Court, therefore, are that the appeal is dismissed and the development application is refused. The exhibits may be returned. I hereby certify that the preceding 20 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.