Cracknell Lonergan v Sydney City Council [2005] NSWLEC 765

Land and Environment Court of New South Wales

CITATION : Cracknell Lonergan v Sydney City Council [2005] NSWLEC 765

APPLICANT Cracknell Lonergan PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 10964 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Alterations and additions to an existing temple building and construction of a five storey residential building comprising 16 dwellings - impacts on heritage - on-site parking - traffic - amenities - fire safety

LEGISLATION CITED: Central Sydney Local Environmental Plan 1996

DATES OF HEARING: 22-23/12/2005

DATE OF JUDGMENT: 12/23/2005

EX TEMPORE JUDGMENT DATE : 12/23/2005

APPLICANT Mr G Green, solicitor With: Ms J Reid, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr S Kondolios, solicitor With: Ms P Adraskelas, solicitor SOLICITORS Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

23 December 2005

10964 of 2005 Cracknell Lonergan v Sydney City Council

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication.

1 On 19 March 2004 council approved a development application for the retention of part of the heritage listed co-Masonic temple at 54 Regent Street, Chippendale, and its reuse for commercial purposes. Also approved was the demolition of the existing hall at the rear and construction of a six storey residential building comprising 18 dwellings. No on-site parking was provided in that proposal. 2 This appeal relates to development application No. D/2005/01046 which is for the same site and also involves alterations and additions to the existing temple building and the construction at the rear of a five storey residential building comprising 16 dwellings plus carparking and a rooftop terrace. The remaining temple building is to be modified for commercial purposes and the large arched opening in the façade will be converted from pedestrian use to both vehicular and pedestrian use enabling access through the heritage building to the new dwellings and ground floor carpark at the rear. 3 This involves the removal of timber front doors and entry steps and the lowering of the floors by about 1.3 m. Access to the ground floor commercial use in the temple building is off the newly constructed central entryway. Access to the upper level commercial floor space is via either the new lift or the stair, which are common to both the residential and commercial uses. 4 The application effectively seeks to incorporate some provisions of the existing consent into a new development consent. The respondent has provided a set of without prejudice conditions that incorporate many of the conditions of the existing consent. 5 The site is effectively sandwiched between the major railway reserve to the east and the heavily trafficked Regent Street to the west. The site is zoned City Edge under Central Sydney Local Environmental Plan 1996 ("the LEP"). 6 Whilst the temple building has been a listed heritage item under the LEP since 9 December 2005 the consequence of the transitional provisions of the relevant amending local environmental plan are that the building is a draft heritage item. However, little turns on this distinction. 7 Council's heritage data base inventory report describes the building as follows: A simply detailed institutional building of two storeys at the front, sitting on a raised plinth and a single storey addition at the rear. The main elevations have a strong symmetry. The Regent Street elevation featuring a curved head entry flanked by curved windows and topped with a gable roof form. A small projection of the front central bay and a series of string courses relating to the openings articulate the elevation. The rear wing is a simple hall extension with a low pitched gable roof and simple openings. 8 The statement of significance in the inventory report explains that: Of historic significance, due to its strong physical link to the Wesleyan Church and the Co-Masons, the Co-Masonic temple is a rare and intact example of a Co-Masonic hall. Of aesthetic significance as a rare example of this building type in the city, for its strong streetscape contribution to Regent Street, for its continuity of the precinct centred around the Mortuary Station and the adjacent commercial terraces as a well-designed modest institutional building. The site has archaeological potential in relation to the earlier Wesleyan Church that occupied the site. 9 Given the circumstances of the hall at the rear, including its rebuilding in 1975 and the consent for its demolition, in my view the building can no longer be described as an intact example of a Co-Masonic hall. The hall is clearly a major feature in terms of the functionality of the temple and without it the remaining building takes on a substantially different character notwithstanding that the streetscape presentation is largely unchanged. In this regard I agree with Mr Davies and, as a consequence, it's significance as an item of local significance must be diminished and the conservation policy to which I will again refer should be interpreted in this context. 10 Eleven on-site carparking spaces are to be provided and this exceeds the maximum number of eight parking spaces provided for in the LEP. The application has now been modified by converting three of these spaces into storage areas. In the circumstances I am satisfied that the number of carparking spaces is no longer an issue although the access to these car spaces through the existing building continues to be a heritage issue. 11 The application was advertised and four submissions were received, including three objections. A fifth objection was subsequently received. Matters of concern to the objectors include: · traffic aspects associated with the high traffic numbers in Regent Street, · on-site parking for cars should be discouraged, adverse impacts on the heritage significance of the building, mainly resulting from the provision of vehicular access through it, · poor residential amenity in the dwellings. 12 Whilst on-site I heard from two of the objectors who elaborated on their written concerns, particularly in relation to the matters I have just described, Mr B Lay on behalf of the South Sydney Heritage Society and Ms J Brockman on behalf of the East Chippendale community group. 13 The application has not been determined by the council hence the appeal is against its deemed refusal. The issues for the determination of the Court are as follows: 1. Whether the conversion and utilisation of the central opening to the temple building for vehicular and pedestrian access will have an adverse impact on the heritage significance of the building. 2. Whether the modifications to the internal spaces within the temple building will have an adverse impact on its heritage significance. 3. Whether some of the rooms in the dwellings in the residential building will have a satisfactory access to daylight and whether these rooms will comply with the requirements of the BCA in terms of daylight access. 4. Whether the proposed dwellings would have sufficient natural ventilation and whether the proposal meets the BCA requirements in relation to fire safety. 14 On behalf of the respondent council expert evidence was given by: § Ms S Grebe, a town planner, § Mr A Smith, an architect and heritage specialist and § Mr P Conroy, a building surveyor.