Land and Environment Court of New South Wales CITATION : Zic Zac Pty Ltd v Sydney City Council [2006] NSWLEC 302 APPLICANT Zic Zac Pty Ltd PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11239 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and additions to heritage building, heritage, building height character and form City of Sydney Local Environmental Plan 2005 LEGISLATION CITED: Central Sydney Local Environmental Plan 1996 State Environmental Planning Policy No 1 - Development Standards Central Sydney Heritage Local Environmental Plan 2000 DATES OF HEARING: 19-20/04/2006 DATE OF JUDGMENT: 06/06/2006 APPLICANT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 6 June 2006 11239 of 2005 Zic Zac Pty Ltd v Sydney City Council JUDGMENT Introduction 1 This appeal relates to Development Application No. D/2005/531 which is for alterations and additions to the existing four-storey commercial building known as the Former Paramount Pictures Studios ("the Paramount Building") at Lot A DP 190326, being land situated at the north-east corner of Commonwealth and Brisbane Streets, Surrey Hills. 2 The existing four-storey building is partly vacant with works under way in accordance with recently granted development consents to use the ground and first floors respectively for restaurant and office purposes. 3 More particularly the alterations and additions comprise: - The addition of two penthouse levels on the existing rooftop level consisting of 12 apartments in a mix of studio, one-bedroom and two-bedroom apartments ("the rooftop extension"). - ground floor cafe/retail fit-out and new entrance involving alterations to the Commonwealth Street façade. - construction of a basement car park to accommodate 21 car parking spaces within a mechanical car stacker. 4 The irregular shaped site has an area of about 830 sq m with a 35 m frontage to Commonwealth Street and a 27 m frontage to Brisbane Street. Statutory provisions 5 The site and the immediately surrounding lands are included in the City Edge Zone under the recently gazetted City of Sydney Local Environmental Plan 2005 ("the 2005 LEP"). However, having been lodged prior to this gazettal the development application is, pursuant to the transitional provisions in the 2005 LEP, thus subject to the Central Sydney Local Environmental Plan 1996 ("the 1996 LEP"). Relevant to this application these two local environmental plans contain the same provisions. In the City Edge Zone the proposal is permissible with development consent. 6 The objectives of the City Edge zone include the encouragement of a mixed-use commercial medium density area that will provide a physical transition between the city centre and nearby lower density residential areas. It seeks to encourage an increase in the permanent residential population, subject to the recognition and enhancement of the character of special areas and the conservation of items of heritage significance. 7 The particular building height objectives in cl 29 of the 1996 LEP relating to heritage comprise: (g) to nominate heights which integrate with existing building heights in Special Areas, (j) to ensure an appropriate height relationship between the development and heritage items or heritage streetscapes. 8 The maximum permissible height for the site as provided for in cl 32 is 15 m. The proposal exceeds this development standard and an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) has been provided dealing with the above objectives as well as the other amenity objectives in cl 29. 9 Under the 1996 LEP the applicable maximum permitted floor space ratio for a commercial/residential development is 3.65:1. The proposal complies with this development standard having a floor space ratio of 3.45:1. 10 The Paramount Building is listed as a heritage item of local heritage significance in Sch 1 of the Central Sydney Heritage Local Environmental Plan 2000 ("the Heritage LEP") and in Sch 2 of the 2005 LEP. Consent for the proposed works is required by virtue of cl 7 of the Heritage LEP, the building being a heritage item. Relevantly cl 8 provides that consent must not be granted unless consideration has been given to the heritage significance of the item and any conservation management plan or heritage impact statement. 11 The site is situated in the Wentworth Avenue East Special Area ("the Special Area") under both local environmental plans. The character statement for this special area is contained in Sch 6 of the LEP and includes the following: The area is generally characterised by diversity of building form and subtle variation in development scale and style. It primarily includes two types of development: low-scale residential development, mainly 2 storey Victorian and Federation terrace groups, significant for their continued residential use with some including commercial use at ground level and medium scale commercial and industrial buildings, predominantly of 5 - 7 storeys. The function of these buildings is reflected in their forms, with the industrial buildings tending to be of a relatively functional and utilitarian form, while the commercial (hotels and clubs) exhibit greater architectural detailing and ornamentation. 12 The objectives of this special area include the need to conserve and reinforce its heritage significance and the retention and reinforcement of built form. 13 Being in a special area maximum and minimum street frontage heights and front setbacks for buildings as detailed in the Central Sydney Development Control Plan 1996 ("the DCP") are applicable. 14 The minimum set back for additions above a heritage item is 10 m, in accordance with cll 2.3.5 and 2.9.5 of the DCP. Lesser setbacks are available for non-heritage items so as to achieve amenity benefits in relation to matters such as overshadowing and daylight access and unpleasant wind conditions. Clause 2.9.5 reasserts the minimum 10 m set back for upper extensions to a heritage item. The associated aim in cl 2(d) of the Heritage LEP is to ensure that any development does not adversely affect the heritage significance of heritage items. Advertising and council's decision 15 The application was advertised and two submissions were received. One submission comprises a letter of support from the South Sydney Heritage Society. The other submission from the St Johns Ambulance sought confirmation that clear access to and along Commonwealth Street would be maintained at all times. 16 The application has been the subject of considerations and discussions between the applicant and council officers. These discussions culminated in the applicant being advised that the application could not be supported and recommending that it be withdrawn. No decision has been made by the council in relation to the application. The evidence 17 On behalf of the respondent council expert evidence was provided by: o Mr J. Poulton, heritage o Ms T Kennedy, architecture and town planning 18 On behalf of the applicant expert evidence was provided by: o Mr R Staas, heritage, o Mr A. Smith, town planning. 19 In addition to the evidence of the experts the Court was also assisted by the following documents prepared on behalf of the applicant: o Conservation Management Plans (May 2004 and December 2004) o Statement of Environmental Effects (February 2005) o Heritage Impact Statement (December 2004). The issues 20 Having considered the Statement of Issues and the evidence, the relevant issue for the determination of the Court is: Whether as a consequence of its height, setbacks and form the proposed rooftop extension would tend to overwhelm the Paramount Building and be out of character with it, thus negatively impacting on its heritage significance and that of the adjoining Motor Traders Association Building ("the MTA Building") and the Special Area. 21 There was no evidence to suggest that the proposed alterations to the remainder of the building were unsatisfactory and, but for my adverse findings in relation to the heritage issue, these works would have been approved. 22 In dealing with the heritage issue it is of course necessary to consider the applicable height and setback standards. Height and setback standards 23 The SEPP 1 objection contains a table showing that in relation to the 15 m standard, the Brisbane Street addition exceeds this by 0.640 m and the Commonwealth Street addition exceeds this by 0.90 m. The two town planners agreed that these figures are correct. 24 Clause 29 of the LEP contains objectives for the control of height of buildings. These objectives include considerations of: solar access to the public domain; transition of building heights between street blocks; sky exposure and daylight; pedestrian amenity associated with wind speeds; transitional built forms; and view sharing. As detailed above there are also particular objectives relating to the heritage issue. 25 Having considered the evidence of the town planners (recognising that Ms Kennedy only had a very limited opportunity to assess it) and the arguments contained in the SEPP 1 objection I agree with the applicant that the non-compliance is not significant and the objection could be upheld. The complying floor space ratio is a positive consideration. The heritage issue 26 According to the May 2004 conservation plan the Paramount Building was erected in the Functionalist Style of architecture that emerged in Australia in the 1930's emphasising functional and efficient building forms with clean lines. This style is characterised by the use of simple geometric shapes, light colours, extensive glassed areas and horizontal bands of windows and doors to give a streamlined effect. Flat roofs concealed by parapets are important characteristics. The building is a fine, intact example of this style of architecture displaying a high level of craftsmanship. It is a distinctive building within the streetscape having landmark qualities further enhanced by its location adjacent to the MTA building. 27 Taking this significance into account the conservation management plans recognises that a range of uses for the Paramount Building may be permissible provided that they do not negatively impact upon its significance. Also any additional levels above the existing roof level need to be well set back from the facade line and the introduction of new materials must not have the effect of undermining or overpowering the significance of the building. More particularly such upper floors must be set back a distance sufficient to promote a visual separation between the existing facade and the extension in accordance with the prevailing planning controls so that the original building from ground to parapet can easily be discerned from street level. It is recommended that the setback be: a minimum of 5 - 7 m or in accordance with the prevailing authority's Development Control Plan. 28 The more recent December 2004 conservation plan omits this minimum 5-7 m requirement instead recommending that should extra floors be required, future extensions should: … be well set back from the facade by a minimum of 3 m or in accordance with the prevailing authority's development control plan or equivalent planning controls. 29 The December 2004 conservation plan provides no explanation for the change from a minimum of 5 - 7 m to a minimum of 3 m. The Heritage Impact Statement (December 2004) makes no reference to these recommendations, but having made reference to discussions with the council when it was suggested that the otherwise required 10 m set back may not be necessary, argues that: The design of the additional (residential) floors is not intrusive, as the proposed extension will be reassessed back from the external perimeter line thus preserving the setting of the building. Visually, there will be no detrimental effect generated by the proposed extension because of the setback as well as the clear demarcation of existing and new at the present roofline of the building, which has been achieved in the design. 30 According to the Statement of Environmental Effects: The roof top addition will be in the form of a two-storey structure placed above the existing roof level. Divided into two separate but related volumes, the roof top addition offers 12 boutique apartments, with all upper-level apartments benefiting from dual frontages, cross ventilation, sunlight and views. The roof profile is a contemporary interpretation of the "mansard" roof type and is designed to be read as an extension of the existing building (ie a roof on top of a building). Its curved profile steps back from the street, allowing for maximum height fronting onto the courtyard and garden space, significantly reducing the impact and scale from street 31 In the joint report the heritage experts agreed that the Paramount building and the MTA building contributes to the character and architectural significance of the special area. They also agreed that the principal area of concern involves the roof level additions to the building especially at the corner of the site and their visibility from the public domain. 32 According to Mr Poulton, the visibility of the rooftop extension at the margins is the problem and being almost 7 m above the existing roof level behind the parapet, too much of it can be seen. This results in a visual dominance over the Paramount Building. By exceeding the 15 m height control in the DCP and having setbacks behind the parapet of only 3 m compared to the 10 m requirement the rooftop extension fails to respect the Paramount Building's original form and massing. He was concerned that the form, massing and overall design of the proposed extension is out of character with the functionalist architectural style of the Paramount Building which is characterised, by clean sharp lines and a simple form. He was especially concerned that the unsympathetic roof was mansard like and where the two roofs join produces a complex, confused and distracting built form. More generally the extension would read as a roof on top of the Paramount Building especially as it is positioned so close to the parapet. As a consequence of the inadequate setbacks the roof top extension will not read as being separate from its host building. 33 Mr Poulton was also concerned that the rooftop extension will, by extending to the site's boundary with the MTA Building, which has the same architectural style with a similar parapet height to that of the Paramount Building have similar adverse impacts on that building. As a consequence of it being appreciably higher than immediately adjoining buildings and its impacts on the Paramount Building and the MTA Building especially its disregard for the overall uniformity of these buildings, the rooftop extension will also have an adverse impact on the character and significance of the special area. 34 Mr Staas was of the opinion that the rooftop extension comprises an appropriate form of adaptation that will enhance the existing building. He did not agree with Mr Poulton, arguing that the design approach was subtle and sophisticated and given the proposed setbacks and the recessive building form and different materials that the extension would not detract from the special area or the MTA building or the Paramount Building itself. It would not overwhelm could detract from the character of either of these buildings notwithstanding that the extension would be visible from a number of viewing positions, also taking into account that it will be read against taller background development. 35 Mr Staas acknowledged that the design of the rooftop extension was contemporary in style and different in form and materials but nevertheless respects the Paramount Building. It will be easily read as an addition or structure on the roof and will not dominate, taking into account the strong architectural style of the original building in a manner not dissimilar to other roof level additions in the locality. He also pointed out that the proposed design was the result of a competitive process. 36 Whilst the town planning experts agreed to defer to the heritage experts in relation to heritage impacts they nevertheless considered the rooftop extension in terms of urban design. Ms Kennedy said that the extension would be highly visible due to its height and inadequate setbacks and taking into account the prominent location of the site this was a matter of concern because it would have an overwhelming effect on the Paramount Building. 37 Conversely, whilst acknowledging that the rooftop extension would be visible from a number of vantage points in surrounding streets, Mr Smith did not agree that the impact would be unsatisfactory. He pointed out that many successful additions to upper levels of heritage buildings are visible, pointing out that the higher scale built form and background would minimise any perceptions of excessive bulk, scale and height. Also the robust design and strong horizontal lines of the Paramount Building provide a capacity for such a well mannered and sympathetic extension. Heritage - conclusions 38 Whilst Mr Poulton is correct in his assertion that the built form envelope of the Paramount Building is increased and changed above the parapet and will be able to be seen from various vantage points, this is not in itself a reason to conclude that the rooftop extension is unacceptable. Indeed, it is now well established that sensitively designed contemporary extensions to buildings with heritage significance can be acceptable even when those extensions are apparent from the public domain. 39 It is also correct as suggested by Mr Staas, that the public interest will be well served by the continued use and maintenance of the building by modifications and additions to facilitate an appropriate land-use of the kind here proposed. Such land uses are consistent with the objectives of the City Edge Zone. Mr Staas and Mr Smith are also correct in their contention that the Paramount Building has a strong and robust character that can accommodate a contemporary extension that would be able to be seen from the public domain and which would not adversely affect the Wentworth Avenue East Special Area. 40 The Wentworth Avenue East Special Area is generally characterised by a diversity of building form and variations in scale and style and in principle, a rooftop extension having a scale and form very much like what is here proposed would not necessarily be inappropriate. Despite this, I have been persuaded that the rooftop extension as proposed would detract from the Paramount Building to such an extent that it would not reinforce existing built form and would not conserve and reinforce the character of the Special Area as required by the applicable objectives. 41 Whilst the DCP mandates a 10 m setback for upper extensions to a heritage item, this standard is a matter for careful consideration but not necessarily strict application. It can be varied depending upon the circumstances of the case and the manner in which any particular design responds to the applicable heritage requirements. In this case I accept that a 10 m setback for an extension of the height proposed is not essential, taking into account the respondent's acceptance that a lesser setback would be appropriate (although not to the extent proposed). Also a 10 m setback would impose an unnecessarily severe design restriction on this building, given its particular configuration. 42 Conversely I do not accept the seemingly ad hoc approach in determining the setback from the parapet in the Conservation Management Plans. I reached this conclusion taking into account the absence of any persuasive justification for reducing the DCP requirement down to 5 - 7 m and then to 3 m, which coincides with what is now proposed. I expect that an appropriate setback for a rooftop extension similar to that proposed here would be somewhere between these two extremes. A setback somewhat greater than that proposed would reduce the apparent size of the rooftop extension. 43 I am not concerned that the roof profile is a contemporary interpretation of the mansard roof type, however I agree with Mr Poulton that it would be interpreted as a new roof on top of the Paramount Building and that this would be inappropriate. This interpretation results from the relatively small setback between the parapet and the roof form. The very narrow windows that are flush with the curved roof form will do little to obviate this. In this context I note the comments in the applicable character statement that the function of buildings in this area is reflected in their forms. I also accept Mr Poulton's contention that the juxtaposition of the two roof forms produces a complex, confused and distracting built form, a matter of particular concern at the prominent corner of the site. 44 Also, whilst I have some little concern about the relationship of the rooftop extension to the MTA building, a revised design, which I expect will be forthcoming, could deal with this relationship somewhat more sensitively. 45 During the hearing there was some discussion regarding the insertion of larger dormer type windows into the structure to resolve the concern that the rooftop extension would be interpreted as a new roof. Whilst this could have the effect of making the rooftop extension's true function more apparent I make no comment on whether this would represent a good design outcome. 46 My assessment of the proposed rooftop extension was not assisted by, in some instances, the lack of detail/accuracy/quality of the photomontages and it was necessary to interpret these images as best as I could to understand the totality of the extension and the manner in which it presents itself to the public domain and in relation to that MTA building. 47 I accept that the rooftop extension will be apparent from a number of viewing positions and am not greatly concerned at the extent of the built form that will be able to be seen above the parapet, taking into account that existing buildings in the background would mitigate some perceptions of scale and height. It is instead the form of the structure itself that is the main problem. 48 Finally, having considered the conservation management plans and the heritage impact statement and the expert evidence I have concluded that the objectives the LEP including those for the Special Area would not be met by the proposal in its present form. Orders 49 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No. D/2005/531 for alterations and additions to the existing four-storey commercial building at Lot A DP 190326 at the corner of Commonwealth Street and Brisbane Street, Surrey Hills, is determined by the refusal of consent. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court rjs 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.