Land and Environment Court of New South Wales CITATION : MSP Architects Pty Limited v Leichhardt Municipal Council [2008] NSWLEC 93 APPLICANT MSP Architects Pty Limited PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11001 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- s96 Modification to incorporate lift, heritage impact, view impact Environmental Planning and Assessment Act 1979 LEGISLATION CITED: SREP 2005 Leichhardt Local Environmental Plan 1995 DATES OF HEARING: 14/02/2008 EX TEMPORE JUDGMENT DATE : 15 February 2008 APPLICANT Ms S. Jellie, barrister instructed by PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: RESPONDENT Ms J. Walsh, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 15 February 2008 11001 of 2007 MSP Architects Pty Limited v Leichhardt Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal is against councils refusal of part of a s96 application to modify the consent granted for a 4 apartment residential development at No. 19A Wharf Road, Birchgrove. The part of the development concerns the inclusion of an external lift, within an existing gantry void, from the ground floor level to the carport area. Condition 2AA required the deletion of this lift component. Accordingly I have considered the merits of the lift component within the context of the overall development. 2 The subject property is part of the redevelopment of the Stannard Bros. waterfront site that was previously used for marine/industrial type activities. The proposal involves the redevelopment of the existing structures, which included the open gantry/overhead crane structure. 3 The property is listed as a local heritage item under the Leichhardt Local Environmental Plan and is also in a heritage conservation area. 4 The detailed assessment of the original proposal resulted in the grant of conditional consent, which required the retention and restoration of the gantry structure. The conditions also required the provision of a viewing platform, incorporating a small seat with access directly from Wharf Road. This view platform is approximately 2 m wide x 4 m in depth. 5 The subject appeal now is against the proposal to incorporate a small lift within the gantry structure. The issues concern: o the impact of the lift on the heritage item o visual impacts Planning Controls 6 This site is subject to the following controls: o SREP 2005 (Sydney Harbour Catchment) o Leichhardt Local Environmental Plan 1995 - under which it is zoned residential and the proposal is permissible with consent o The Wharf Road Development Control Plan o Leichhardt Development Control Plan 2000 The Proposal 7 The lift shaft is proposed to be located within the gantry void with access from the approved car parking area, travelling to the lower unit 4. 8 The lift shaft will have dimensions 1.345 m x 1.070 m and rises to 1.1 m above the adjacent viewing platform. The lift framing structures is metal and enables viewing through the structure. The lift car has 3 of its 4 walls of glass and it is proposed that the car would have a default position at the lower level, which is some 7.5 m below the viewing platform. The evidence 9 Detailed technical evidence was submitted by: o Mr B. McDonald; consulting architect/heritage planner for the Respondent. o Mr S. Davies, heritage consultant for the Applicant. o Dr R. Lamb; urban designer/visual impact assessment consultant for the Applicant. 10 A number of written objections were received and these have been considered in conjunction with the oral evidence given by neighbours on the site. The residential objections mainly concern: o adverse impacts due to the lifts detraction from the heritage significance of the gantry. o unsatisfactory appearance of the lift and its interruption of important harbour views from the street and viewing platform. o upsets the balance previously agreed to by council in the consent. Heritage 11 With regard to the heritage impact issue, I have carefully considered the disparate evidence of the heritage experts who initially agreed that the subject application will not alter the contribution of the gantry as seen from the water. 12 However, Mr McDonald says that the lift will otherwise have an adverse impact on the setting of the historic gantry because: " The ability to interpret the use and meaning of the gantry will be severely impaired by insertion of the lift within the frame, where there has always been a clear area for moving the crane itself and the items it conveyed. The proposed works will physically impact on significant fabric requiring removal of three sections of horizontal members in the western side of the structure, which will also necessitate other structural interventions to ensure it stability." 13 Consequently he does not support the inclusion of the lift and says that the public benefit of meaningful retention of the significant gantry structure, intact and maintaining the structural integrity of the frame, should outweigh the private benefit of provision of a lift for Unit 4. He also considered relevant that, if a lift was seen as an important requirement for Unit 4, it should have been incorporated in the original design in some other way in some other location. 14 He does not consider the proposed lift is in accordance with Leichhardt LEP 2000, Heritage Objectives at Clause 15(a) and (b) and with regard to the matters that must be considered in relation to development with respect to: a heritage item (Clause 16(2)) and impacts on its fabric and setting and; the Conservation Area (Clause 16(8)), particularly with regard to the relationship between this part of the conservation area and the waterway. 15 Against this, Mr Davies supports the inclusion of the lift on the basis that: The subject gantry is now attached to what is a four unit residential development with roof top car parking. It does not, nor is it expected to pretend to be, a working industrial structure. The gantry has been appropriately retained to interpret the form of maritime use of the site and provide a link to the uses that once the along Wharf Road. The setting of the structure will not change with the insertion of the lift. The top of the frame of the lift is approximately the height of the carport and the size and proportion of the structure cannot affect the setting. The entire contemporary form of the additions and the walkway between the structures is contemporary. It is considered that they are an appropriate response to adding to the subject structure. There is no philosophical reason why a contemporary structure should not be associated with a historic structure if it is in an appropriate location and of an appropriate scale. 16 He does not agree that the capacity of the gantry structure to be interpreted will be severely compromised by the proposed lift. The ability to see the lift will not compromise the interpretation of the gantry or the understanding of its relationship to the site. Without the knowledge of this case, Mr Davies says that future viewers of the gantry will not be any less aware of its size and contribution to the streetscape and the site than exists at present - they will not be simply aware that the lift has been successfully integrated into the structure. 17 With respect to the necessity to remove some structural members, he says that this will in no way impede the appreciation or significance of the structure. He does not consider there will be any negative impacts because it will be difficult to look over the railing and look down into the corridor and discern that some steel members are missing when most of the structure towers above, stretch towards the horizon. The removed members are taken from the most discrete location. Views 18 In his evidence, Mr Davies expressed the opinion that the inclusion of the lift would not cause unsatisfactory view intrusion when viewed from the harbour or take out views from the Wharf Road viewing positions. 19 This assessment is supported by Dr R. Lamb, a visual assessment expert. His evidence is considerable weight should be given to the overall development, which includes provision of the viewing platform that has made public viewing opportunities form Wharf Road greater. Previously, these views could only be experienced by trespassing on private land. 20 Accordingly he supports the proposal because: o The development has designed and constructed a publicly accessible viewing platform. The views were previously available to the public by encroaching on private land. o The approved viewing platform, which formalises access to the private viewing location, will cause some view loss to the foreground of views previously available, but this is outweighed by the increased viewing access that it provides. o The improved view access includes views to the Birchgrove peninsula, Greenwich, extensive views of the waterway, the land/water interface between Snails Bay and the Birchgrove peninsula, Wollstonecraft and Balls Head Bay. o The proposed lift structure would have minimal visual presence in most views from the waterway, foreshore and indeed the landscape to which the views are directed. There would be no significant impact on any views from the waterway or foreshores. o The car of the lift will not be visible in the view from the street under most circumstances. The car at rest is at the bottom of the shaft and is not significantly visible from the street or viewing platform. o The car itself is of minimal visual presence and impact when considered in regard to how it can be experienced by viewers in the public domain. o The frame of the lift has some similarities in appearance to the open steel structure of the gantry crane, or to other utilitarian industrial structures and to that extent would have some intrinsic compatibility with the setting which would assist in diminishing its visual impact. 21 As I noted initially, the objectors expressed their dissatisfaction to the proposed lift because it would impede attractive views for the many users of the Wharf Street precinct and detract from the heritage value of the gantry. I have considered this in conjunction with the expert opinions. Conclusion 22 Having considered to evidence, the submissions and undertaken a view including from the waterway, I am satisfied to rely on the Applicant's submission that the inclusion of the lift is reasonable. 23 While the property has a local heritage listing, the important element in respect of the subject application is the gantry, which has been retained. I then accept Mr Davies' evidence that it is possible in heritage considerations to introduce modern elements, which integrate with the item. 24 It appears to me that the gantry structure is the dominant element, which is readily interpretable. The proposed lift is subordinate with the gantry framework and I agree with Mr Davies evidence that the "light" design (i.e. metal/glass lift car) and its size is unlikely to compromise the ability to interpret the gantry structure. In this regard I note that the lift car with mostly be parked at ground level and out of sight. 25 Accordingly I give determining weight to Mr Davies' heritage assessment and consequently reduced weight to Mr McDonald's opinion. 26 Insofar as Mr McDonalds states that the area under the gantry "has always been a clear area for the moving of the crane itself and the items it conveys, it seems to me that bearing in mind the lift car is stationed at ground level, the occasional view of the lift car is not inconsistent with the former use of this area, which involved some movement to convey goods. 27 In the ultimate, I am satisfied that the gantry structure is a relatively large steel structure, which is a dominant feature of the site and part of the Sydney Harbour foreshore. The proposed lift has minimal impact on the setting of the gantry structure, through the use of transparent materials and discrete default positioning. The proposed lift is designed to use the historic gantry structure in a discrete yet contemporary way, and is therefore compatible with the heritage fabric of the site, so as to merit consent. 28 The other issue concerns the potential view intrusion caused by the lift. In this regard I note that the experts agreed that no unsatisfactory view impacts occur when viewed from the waterway. I agree with this assessment based on my observations at the view. 29 The more critical view consideration is that from Wharf Road and the new viewing platform. It appears to me that the viewing platform has improved public access viewing opportunities of the harbour and associated features, from that previously existed and this is a positive aspect of the proposal. 30 Insofar as Dr Lamb considers the impact on views from the lift car minimal, I have assessed this from the 2 m wide platform. Whilst I accept the degree of impact varies according to the location of the viewer on the platform, nevertheless from the eastern side of the platform, the lift is with the backdrop of the carport, whereby no waterway view or other significant item is obscured. This is also most likely the case when sitting on the bench on the platform. 31 I accept there is likely to be some intrusion to the view at short range from the western side of the platform but consider this incremental change is marginal and not sufficient to warrant rejection of this proposal. 32 Each of the objectors was asked to identify any material change to the viewing opportunities, but I do not consider they presented any compelling evidence to overturn the expert opinion of Dr Lamb, on which I rely. 33 I have also considered the impacts of the lift structure within the gantry void as observed from Wharf Road and surrounds and do not consider there will be any significant effect on the area. Therefore this is not an incremental change, which reduces the heritage significance of the item or locality and I consider it reasonably complies with cl 15(D). 34 My ultimate assessment is the proposed development, when considered as a whole, will maintain, protect and enhance views to and from Sydney Harbour. The predominant glass composition of the proposed lift structure, with 1.34 m x 1.07 m dimensions within the gantry open space, represents a reasonable balance between the competing private interests and public interests by minimising any adverse impacts on views and vistas to and from public places, landmarks and heritage items. In any event, the provision of viewing platform enhances views from the eastern side of the site and from Wharf Road. The fact that the proposed lift will default to the 'down' position, minimises any adverse impacts on views, as required by the conditions. 35 Accordingly, I am satisfied that this modification in respect of the lift: i) Relates to the same development, ii) The objectors have been notified and their objections considered in conjunction with aforementioned merit assessment. iii) The modification demonstrates reasonable compliance with the relevant planning controls, particularly cl 15(a) to merit consent. Court Orders 1. The appeal is upheld. 2. The s 96 modification for the inclusion of a lift at 19A Wharf Road is approved subject to: A. Delete Condition No. 2AA. B. Insert the following new conditions: 3. (g) Only non-reflective or low reflective glass shall be used for the lift shaft and lift car. (f) The colour of the frame of the shaft, roof and floor finish of lift shall be the same as the existing gantry. C. Insert the following new condition and heading: 'On-going Condition of Consent' 61A. The lift car shall be programmed to be parked at the bottom of shaft when not in use. 3. The exhibits be returned except for Exhibits 2, 4, A, B, C, D and E. ___________________ R Hussey Commissioner of the Court 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.