Land and Environment Court of New South Wales CITATION : 284 Bronte Road Developments Pty Ltd v Waverley Council [2005] NSWLEC 145 284 Bronte Road Developments Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10087 of 2005 CORAM: Hoffman C Appeal :- Section 96 development application to amend existing consent - streetscape - conservation area KEY ISSUES: Waverley Local Environmental Plan 1996 LEGISLATION CITED: Development Control Plan No. 6 DATES OF HEARING: 23/03/2005 EX TEMPORE JUDGMENT DATE : 03/23/2005 APPLICANT Mr V Conomos, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr G Hartley, solicitor SOLICITORS Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 23 March 2005 10087 of 2005 284 Bronte Road Developments Pty Ltd v Waverley Council JUDGMENT 1 This was a s 96 application in appeal No. 10087 of 2005 between 284 Bronte Road Developments Pty Ltd and Waverley Council. The application was to amend DA 174/2003 dated 20 June 2003 issued by Waverley Council for a 3-storey mixed use development of shops and apartments at 284-292 Bronte Road, Waverley. 2 The location was in a conservation area known as Charing Cross under Waverley Local Environmental Plan 1996. 3 The Statement of Significance of Charing Cross was mainly its streetscape which dated back to the 1800's. The Court was directed to Development Control Plan No. 6 that was specifically for Charing Cross. Clause 5 within that document was accepted as the Statement of Heritage Significance. The National Trust in 1987 identified Charing Cross as an urban conservation area containing well preserved examples of late 19th and early 20th century commercial architecture. Its buildings are rich in detail, presenting focal points of interest; each shopfront commanding individual attention, yet through their cohesiveness of style and height, provide a rhythm to the façade which presents an impressive vista when viewed, along the length of Bronte Road. 4 Charing Cross is recognised in its: o historic and aesthetic appeal o repetition of like building forms o relatively intact presentation 5 These shopfronts have been almost consistently retained along the length of this commercial precinct and have predominantly been developed in the following styles: o Victorian Italianate, o Federation freestyle, o Art-deco o inter-war Functionalist. 6 The single issue in the appeal was caused by a change sought to the street façade of the building, and the reasons for the dispute were: 1. whether or not the proposed openings would detrimentally affect the masonry quality of the building's parapet façade; 2. the streetscape presentation of the building; and 3. the character of the Charing Cross Conservation Area. 7 The parties attending the on-site hearing for the respondent were: o Mr G Hartley, solicitor and o Mr P Bull, town planner 8 Appearing on behalf of the applicant were: o Mr V Conomos, solicitor o Mr G Brooks, heritage consultant o Mr S Harding, town planner 9 The Court was shown the existing openings in the façade said to be those the applicant intended. But it became evident when looking at the building that the openings as built were not as large as shown on the s 96 application. They were as built the same size as the original approved recessed panels but were located a little higher on the facade. The correct location and size of the panels was marked in Red on Exhibit C which was a copy of Drawing No. DA04 Issue F by "The Architecture Company". 10 Also it was noticed on site that the façade as built was incomplete when compared to the approved drawings. The cornice just below the top of the parapet had not been built to be on the same level as the cornice of the building on the eastern side of the proposal at Nos. 296 - 302 Bronte Road. 11 The missing cornice was yet to be built the applicant said. The three experts had not remarked on the missing cornice in their reports, so they were asked their opinion on how the openings as built would look in the heritage streetscape once the façade was complete. Mr Brooks and Mr Harding said the essential rhythm of vertical bays in the façade established on the conservation streetscape was maintained without the cornice being built, and they did not see the need to install it, given the variety of Victorian and other architectural styles evident. 12 Mr Bull said he preferred the cornice to be built, as it developed the continuity of the façade details along the street as sought by Development Control Plan No. 6. He said, as built, the position of the panel openings would still give acceptable proportions to the façade. 13 In hearing the evidence on whether the panels should remain closed as in the original approval, or allowed to be opened, the following were the main points: o The applicant said the five openings gave a positive amenity benefit to the to the five roof decks. Each wall opening would relieve the enclosure of each deck that otherwise would only have the upward view to the sky. o The panels being open instead of closed would not compromise the conservation streetscape because the third-storey would remain screened. o The openings were beneficial to people on the roof decks because they could stand close to the opening and get a wide view. o People in the street were always at some distance from the openings and could see little through them so the tall parapet and the rhythm of the vertical panels of the façade in the conservation area remained dominant in the streetscape. 14 Mr Bull said the third-storey could be seen through the openings in a conservation streetscape characterised by two-storey buildings. The upper façade openings, instead of being decorative panels similar to the heritage buildings, created a counter point to the conservation character rather than a sympathetic fitting in. 15 In looking up from the street I noticed that from points close to the building on the opposite side of the street Mr Bull's evidence was correct. 16 However, Mr Harding had suggested an obscured glass panel be installed called "Clear Focus" as currently used for advertisements on Sydney Buses. It could be colour matched externally to the building to appear as a solid panel but from the inside it was "see-through". This appeared to the Court to be an obvious solution to the concerns of both parties and would preserve the character of the building as originally approved by the council as fitting into the Conservation Area. 17 Therefore the orders of the Court are: 1. The appeal is upheld. 2. (a) That condition 1(a) and (b) of DA 174/2003 be deleted and the following condition substituted: 1. Compliance in all respects with Plan Nos. M1-M3 dated 12th June 2003 prepared by Visona Pty Ltd and received by council on 18th June 2003; Plan Nos. DA 02 Issue K, DA 03 Issue G, and DA 11 issue C, prepared by The Architectural Company and lodged with council on 27 February 2004, and Plan Nos. DA01 Issue 1 and DA 04 Issue F as annotated in red in Exhibit C of the s 96 appeal hearing of 23/03/2005 prepared by The Architectural Company and received by council on 19 November 2004, except where amended by the following conditions of consent. Advice: A construction certificate must be obtained from council or an accredited certifier, prior to undertaking the works approved under this modification. (b) That condition 10 of DA 174/2003 be deleted and the following condition substituted. That the recessed panels as constructed above the first floor balconies facing Bronte Road shall be solid glass with an adhesive material called "Clear Focus" (as externally applied on Sydney Buses) which is monochromatic and colour matched to the existing façade. The panel shall be recessed externally to the depth of the existing panels and framed by a colour matched (matt finished powder coated) metal frame showing minimal external dimensions. The adhesive material shall be maintained and replaced as necessary through the life of the building. 3. The exhibits are returned to the parties except Exhibits C, D and Folio 36 of Exhibit 1. 4. No order as to costs. _________________ K G Hoffman Commissioner of the Court rjs/ljr 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.