Southern Cross Enterprise Group Pty Ltd v Parramatta City Council [2010] NSWLEC 1051

Land and Environment Court of New South Wales

CITATION : Southern Cross Enterprise Group Pty Ltd v Parramatta City Council [2010] NSWLEC 1051

APPLICANT Southern Cross Enterprise Group Pty Ltd PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : 10542 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing church hall and the construction of a hotel and use of an existing church building in association with the hotel - impact on significance of heritage items

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Parramatta City Centre Local Environmental Plan 2007

DATES OF HEARING: 1, 2, 3 February 2010

DATE OF JUDGMENT: 16 March 2010

APPLICANT Mr P Tomasetti SC SOLICITORS Harris & Company LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

16 March 2010

10542 of 2009 Southern Cross Enterprise Group Pty Ltd v Parramatta City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of Development Application No. DA/466/2008 for the demolition of an existing church hall and the construction of a hotel and use of an existing church building in association with the hotel at 356 Church St, Parramatta (the site). 2 The contentions raised by the council relate to whether the heritage incentive provisions in the councils planning controls apply to the extent relied upon by the applicant, whether the existing church hall should be demolished and if so, whether the proposed hotel adversely impacts on the significance of the existing church by way of its height, design, setbacks, appearance and the impact on heritage view corridors. The site 3 The site is Lot B in DP 154618. It is generally rectangle in shape with a frontage of 16.325 m to Church Street, 43.18 m to Palmer Street and 17.69 m to Palmer Lane giving a total site area of around 735 sq m. 4 The site contains two buildings that occupy most of the site. St Peter's Church (the Church) has a frontage to Church Street and Palmer Street and the church hall (the Hall) has a frontage to Palmer Street and Palmer Lane. Some off street car parking is provided on site and located off Palmer Lane and adjoining the Hall. 5 The surrounding area consists of a range of different land uses. Directly to the north of the site is a 2-storey commercial building with a 3-storey commercial building further to the north. Both sides have a frontage to Church Street and the latter site also has a frontage to Victoria Road. To the south of the site and on the opposite corner is a 7-storey mixed use building with the upper levels setback from the street. Development to the rear of the site consists of commercial development with a height between 1 and 3 storeys. The proposal 6 The proposal provides for the demolition of the existing Hall and the erection of a new building for a 50 bed hotel adjoining the Church. The Church will have alterations and additions and will be used in conjunction with the hotel for a restaurant and bar. Basement Level -1 will contain male and female toilets, staff amenities, keg room, cold store and dry store for the restaurant. The Ground Floor will contain the restaurant and some outdoor dining at the Church Street frontage and a mezzanine, known as Level 1 will be used for a bar. Access from the Church to the new building will be available on all levels. 7 The new building will have a basement area containing 3 levels of car parking accessed via a car stacker and providing a total of 20 car parking spaces, Basement Level -2 contains areas for services, a lap pool and amenities and associated plant and Basement Level -1 contains areas for services, a garbage room and a substation. The Ground Floor contains the reception area, entry foyer and access to the car parking from Palmer Lane. Levels 1 and 2 provide conference facilities and amenities. Levels 3 to 11 provides hotel rooms, Level 12 provides a bar and amenities and Level 13 provides air-conditioning plant, plant room and fire sprinkler tanks. The height of the proposed building to street level is around 42 m. 8 The documentation containing the architectural plans (Exhibit A) provides the comments on the design philosophy for the proposal. Under the heading of Architectural Statement, the following relevant comments are made: In our proposal, we intend to add colour and elegance to this corner of Parramatta. To resonate with St Peter's sustained glass windows, the proposed slender glass tower will appear subtly coloured and patterned by internal blinds, which are part of the facades environmental performance system. Such Environmental devices will offer a more pleasant atmosphere inside the building. 9 Under the heading of Massing, the following relevant comments are made: To achieve a viable Floor Space Ratio, whilst not exceeding the maximum height of 24 m, would require building over the existing St Peter's Church. This would significantly compromise the buildings heritage integrity. The massing of the vertical option is further subdivided into two vertical portions, the one closest to St Peter's raised and undercut so that the historic view of the eastern end of the Church is preserved for Palmer Street. The tower is pleated on the axis of the church's roof ridge forming a strong urban relationship and further accentuating the slenderness of the tower. 10 Under the heading of Materials + Heritage Interpretation the following relevant comments are made: The new building forms a glassed backdrop to St Peter's reflecting the sky from a distance. The facade colours and patterns are based on those of St Peter's stained-glass windows. At a smaller scale, the stained glass fleur-de-lis pattern will be set into the glass on prominent locations to add further detailed to the facade. Relevant planning requirements 11 The site is within Zone B4 under Parramatta City Centre Local Environmental Plan 2007 (LEP 2007). The proposed development is permitted with consent within this zone. Clause 2 provides aims of LEP 2007. Clause 9(2) provides State environmental planning policies and regional environmental plans that do not apply to the land to which LEP 2007 applies. Relevantly, State Environmental Planning Policy No 1 - Development Standards is included in this clause. Clause 12(2) provides that the Court must have regard to the zone objectives when determining a development application. 12 Clause 21(1) provides objectives for the control of height of buildings and cl 21(2) states that the height of a building is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height of Buildings Map indicates a height of 24 m for the site. Clause 22(1) provides objectives for the control of floor space ratio (FSR) and cl 22(3) states that the maximum FSR for buildings for which the maximum FSR shown on the Floor Space Ratio Map is specified in the Table to this clause. The appropriate FSR is 4:1. Clause 22C provides requirements the car parking. 13 There was agreement between the experts that the proposed development satisfied the FSR and car parking requirements but not the height requirement. 14 Clause 22G provides objectives for development within Parramatta city centre Special Areas. Clause 22G(2) states that the consent authority in considering a development application for land in or adjoining a Special Area identified in the City Centre Development Control Plan must have regard to the objectives for the Special Area set out in that Plan. The site falls within the Church Street North Special Area. 15 Clause 24 provides exceptions to development standards. Clause 24(2) provides that consent may be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument but subject to other provisions within this clause. 16 Clause 35 provides requirements for heritage conservation. Clause 35(1) provides objectives for the clause and cl 35(2) provides requirements for development consent, including demolishing a heritage item (cl 35(2)(a)), altering a heritage item (cl 35(2)(b)) and erecting a building on land on which a heritage item is located (cl 35(2)(f)). The two items are described separately in Schedule 5 and have different property descriptions although the reason for this was unclear. There was no dispute however that the descriptions reflected the buildings on the site. Clause 35(9) provides conservation incentives for buildings that are heritage items. 17 Parramatta City Centre Development Control Plan 2007 (DCP 2007) applies to the site. Clause 2 provides requirements for Building form, including street frontage heights (cl 2.2). Clause 7 provides Controls for special areas, including Controls for heritage and special uses and specific Special area controls, including objectives and controls for the Church Street North Special Area (cl 7.1). What is the significance of the Church? 18 Schedule 5 of LEP 2007 describes the Church as "St Peter's Uniting Church and potential archaeological site as heritage items of State significance. The State Heritage Inventory Listing provides the following relevant comments: Statement of Significance: Professional, trade and manufacturing practice - example of the work of notable architect. Evidence of social and cultural life. Site possesses potential to contribute to an understanding of early urban development in Parramatta. Description: Construction Years: 1871 - Physical Description: Victorian Gothic church of dressed sandstone with a small square tower and spire. Archaeological Site: AZP Cross Reference: PN 90 National Trust (Parramatta Branch): Fabric: Narrow rustic ashlar sandstone walls with smooth sandstone quoins and slate roof. Roof Construction: Gabled church with decorative metal finial on gable point and small square tower on south side with copper? bands covering spire. Buttresses between windows except front elevation where buttress divides large front stained glazed window. Verandah Decoration: Window Arch: Architraves are smooth sandstone quoins. Label moulds above windows end in decorative stops. Exterior Doors: Same as front doors. Archit Style: Victorian Gothic sandstone church with square tower and spire. Front Door: Diagonal panelled timber doors with decorative cast iron hinges either side of main window at front elevation. - Steps, pedestals and half columns and decoration to both front entrances. Constr Year: 1871 carved into ribbon shaped stone in gable.