Land and Environment Court of New South Wales CITATION : Curnick v Sydney City Council [2007] NSWLEC 43 APPLICANT Ryan Douglas Curnick PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10760 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Alterations and additions, streetscape, heritage streetscape, heritage item, conservation areas Environmental Planning and Assessment Act Sydney Local Environmental Plan 1998 LEGISLATION CITED: Local Environmental Plan 1998 Heritage Development Control Plan 2006 City of Sydney Development Control Plan 2006 Development Control Plan 1997 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 7/12/2006 and 23-24/01/2007 EX TEMPORE JUDGMENT DATE : 24 January 2007 APPLICANT Mr H Robilliard, solicitor SOLICITORS Robilliard Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor With Ms C Rose, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 24 January 2007 10760 of 2006 Ryan Douglas Curnick v Sydney City Council JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against the City of Sydney Council's refusal of a development application for alterations and additions to the property known as 538 Bourke Street, Surry Hills. 2 The subject site is on the eastern side of Bourke Street and has vehicular rear lane access from Olivia Lane which is a relatively wide laneway of some 7 m. The subject terrace is the middle terrace in a row of three that are three storey mid Victorian construction, built approximately 1880. The area is also a conservation area and has significance in terms of heritage streetscape as well as the item itself being a heritage listed item listed under the Local Environmental Plan. 3 The relevant controls are contained in the Sydney Local Environmental Plan 1998 (LEP) This provides for the heritage listings, as I said, three separate listings in terms of the heritage significance of the dwelling, the streetscape and the conservation area. 4 The heritage aims of the plan are that the consent authority must not grant consent unless it is of the opinion the proposal is consistent with the following aims. These include to conserve the environmental heritage of the land to which it applies. e) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items, conservation areas and streetscapes f) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from those in the vicinity h) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings that contribute to the character of conservation areas, items and streetscapes, and it has the standard, or relatively standard heritage provisions. 5 The special provision for heritage conservation and the protection of heritage conservation areas and streetscapes is that one cannot demolish or alter a building, damage a relic, excavate … except with the consent of the council. 6 The consent authority must not grant consent unless it has made an assessment of: a) the pitch and form of the roof b) the style, size, proportion and position of the openings for windows and doors, and c) whether the colour, texture, style, size, materials and finishes is compatible with the conservation area streetscape and the impact on the landscape. 7 The subject site is zone 2B and is known as the medium density zone under the 1998 Local Environmental Plan. The zone objectives include: to enhance the amenity of the existing medium density residential areas and to ensure that building form, including alterations and additions is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. 8 The other relevant control or guidelines in terms of the council's planning regime is the Heritage Development Control Plan 2006 City of Sydney adopted by the council on 2 January 2007. It is noted this does not contain any savings provisions. 9 I have considered the Development Control Plan as the relevant document for an assessment of this development application. In terms of the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 the Court must give this D C P "central focus and real, proper and genuine consideration". 10 The Court was assisted by Mr Hankey in understanding the difference in the guidelines between the previous Development Control Plan, under which the development application was submitted, and the Development Control Plan 2006. It transpires that here are no substantive differences, but rather a difference in emphasis and the wording of many of the provisions that in some respects strengthens the reading of the Development Control Plan. 11 The philosophical approach outlined in the plan for heritage planning aims to ensure that the significant elements of the past are appropriately managed and respected by new development. Heritage conservation does not preclude change but rather responds to different constraints and opportunities. 12 The Development Control Plan is based on the underlying principles that change should be based on an understanding of heritage significance, and the level of change should respect the heritage significance of the item, building site, streetscape and or area. The intention of this DCP is to ensure that decisions about change are made with due regard to heritage significance and that opportunities to improve the understanding and appreciation of this significance are undertaken. 13 The plan provides guidelines for the heritage of the area and also contributory buildings to which the subject one is. That is "the appearance of a principal or significant frontage should generally be conserved, however alterations and additions may be possible to the rear of contributory buildings". I recognise it is also an item as well. 14 There was some discussion about whether the proposed development should be assessed streetscape not only in terms of Bourke Street but whether that should also include Olivia Lane. The plan identifies the need to respect intact and coherent groups of terraces at the rear as well, but there is also an emphasis on the streetscape of Bourke Street. 15 For additions Division 6 states "additions to a building generally consist of a change in the building envelope through external alterations often resulting in an increase in floor space… the potential for additions to heritage items and buildings within heritage conservation area streetscapes is they depend upon many factors, including size of the site, curtilage, significant elevations and the impact on neighbouring properties". 16 The plan states "roof extensions to the rear of a building are to be set back a minimum of 500mm from side walls; set down a minimum of 200mm below the ridge; set back a minimum of 200mm from the rear wall; and roof extensions are to use skillion or single pitched roofs with a minimum of five degree pitch and sloping down from the ridge towards the rear. Rear extensions are not to be more than 4 m in width and rear roof extensions are not to interrupt the repetitive roof patterns, particularly on pairs, rows and groups of buildings". 17 The plan also provides for guidelines in terms of development on lanes: "the development along a lane should generally be subsidiary in bulk and scale and simpler in design than a development fronting a main street. It is particularly important to ensure that development on rear lanes respects the predominant scale of the area, particularly where the existing scale of rear lane buildings and structures is single storey". The objectives are: "to ensure that the development is of a scale and type compatible with the width of the lane, does not dominate the lane and retains and respects significant rear development and original built form". 18 The objectives for terraces and semi-detached buildings under part 14 include: to encourage the continued viability of terraces for residential and commercial uses by permitting sympathetic alterations and additions and to maintain the heritage significance, architectural integrity and character of terraces. With respect to changes to street elevations the plan states "the quality and consistency of repetitive features of street elevations and alterations and additions is to be compatible with the original character… intrusive and non-original features are to be removed, and characteristic detailing where missing is to be reinstated or restored". 19 The Court also must have regard to the Development Control Plan 1997 and extracts were provided that show a floor space ratio of 1:1 and a maximum height of 6 m. In the circumstances of this case, the existing height is 9 m and this will not be altered. The floor space ratio of the proposal is substantially the same as what exists today for the premises. That is 1.3:1. The FSR does not include the garaging. 20 The proceedings commenced as an on-site hearing, 7 December 2006. On that occasion there was a great deal of discussion about the rear elevation in particular, the first floor addition. I will describe the existing building there is what is known as a lower ground level, partly below street, then there is what I will refer to as the ground level, or the mid level which is above Bourke Street, and then there is a first floor level. 21 The proposed alterations and additions to the dwelling house are generally within the current envelope that we see today. However, there is a reconfiguration in terms of floor levels. The current building does not provide for an adequate floor to ceiling height in terms of the lower ground floor and as such the application is to raise the level of the floor for the lower ground floor, and also then not as a consequence but to maintain the 3 m floor to ceiling height that we see for the mid level, the ground floor through from the front of the dwelling house through to the rear, and the rear portion contains the kitchen area. There is an addition at the rear in terms of the bathroom at the upper level. 22 At the onsite hearing there was discussion about the appropriateness and consequences of increasing the ceiling heights for the levels below and what was referred to as the knock on effect for the bathroom at the rear and whether in fact the addition is in sympathy or is consistent with council's controls for heritage buildings. 23 Mr Lonigan, an architect with heritage expertise, gave evidence for the applicant on the heritage significance of the building and Ms Vaughan, the architect for the proposal, also gave evidence on behalf of the applicant. For the council, as I stated Mr Hankey, heritage expert, and Mr Carr, townplanner gave evidence. 24 The experts conferred and provided joint reports and subsequent to the adjournment on site on 7 December 2006 to allow the applicant to submit an amended plan to detail the proposed alteration to the bathroom at the rear, the experts conferred further and provided a joint statement to the Court on heritage. 25 In summary the amendments from 7 December 2006 to the plans that now appear in Exhibit B are: the skylight in the main roof and skillion roof has been deleted; the roof amended at the rear to a mansard roof; and the chimney added to the skillion wall, that is the chimney breast is reinstated. The bathroom has also been reconfigured and the window openings next to the chimney have been narrowed. 26 I will say at this point given it is an extempore judgment, the Court has carefully considered council's controls and the aims and objectives of the Local Environmental Plan and the zone objectives and the controls as articulated in council's Development Control Plan 2006 heritage and I am satisfied that the development proposal as now shown in Exhibit B is satisfactory and the impacts on the heritage are such that they are not inconsistent with the Development Control Plan provisions for extensions to the rear of dwelling houses. 27 It is noted that the development application provides for the restoration of the front elevation and this terrace is the middle in a row of three. The adjoining terraces at the front have verandahs that have been in-filled. This terrace is more intact in its front elevation and the proposal is to further re-instate the front facade. 28 For the rear elevations, I agree with the applicant's experts that they are not in the original form and it is clear that the extensions are more recent than the original fabric of the building. One of the reasons why I consider the proposed extension is appropriate is that the rear elevation of the row of terraces is not in its original form. This does not mean that where there are altered pairs or rows that any development should be allowed as each proposal should be sensitive to the heritage significance of the building, be capable of being read as an extension and not detract from the main elements or rhythm of the terrace houses. 29 I also agree with the council in that while there are extensions, not just to this row of terraces but also there are a row of terraces to the north, some seven terraces and there is a group to the south of two terrace houses, but there is still a rhythm in the streetscape of the laneway even though it has been altered in terms of the rear additions observed today. 30 I am also satisfied that the proposed extension will not unreasonably detract from the rhythm of the skillion roofs. The mansard option that is now proposed by the applicant in my assessment is one that it will be visible from the rear laneway, however it will not overwhelm the heritage significance. It will be clearly identified as the new extension in keeping with the heritage significance of the item, the streetscape, and in terms of the conservation area. In my assessment in terms of council's controls the proposal is compatible development and a reasonable development in the circumstances. Clearly, this dwelling with three layers of heritage controls within council's Local Environmental Plans requires sensitive design and I am satisfied the alterations and additions as now shown in the amended plans are worthy of approval. 31 Where there are no changes or additions to the rear of heritage terrraces and the original fabric is intact then rear extensions generally are not favoured. However, in the circumstances of this case I am satisfied that the rear extension will sit comfortably in the streetscape of the laneway. 32 It is noted that the rear laneway is not identified as a laneway/streetscape in council's controls. Nonetheless I have given consideration to ensuring that development is consistent with the aims and controls of council's heritage Development Control Plan. 33 By way of comment, I note that the controls within council's 1997 Development Control Plan are relevant to the site, however, given the more comprehensive plan in terms of the heritage Development Control Plan 2006 Council should consider whether all of those controls should be activated. For example, a 5.4 m metre ridgeline for rear garage structures would not be appropriate in the context of this conservation area. 34 I requested the parties provide sight lines in terms of council's control for 3.3 m high garaging along the rear laneway. I note the proposed extension will be visible above a 3.3 m garage at the rear of this property and if the height equivalent of 3.3m is also invoked by adjoining properties. However, the rear extension will not detract from the heritage significance of: the dwelling as an item; the streetscape; or the conservation area. 35 While it was not submitted as highly by the respondent the test is not whether Exhibit 11, Mr Hankey's alternative or more particularly the sketch on p 11 of Exhibit 1 is more appropriate. The test for the Court is whether the development application is satisfactory in terms of an assessment against council's controls and planning regime. In this regard I have undertaken a comprehensive assessment, in particular, with respect to rear extensions, skillion roofs and respecting the integrity of the heritage items. With heritage buildings/ items, streetscapes, conservation areas there is a far stricter test in terms of whether the external impacts are satisfactory to allow for the internal amenity to be enhanced. In the circumstances of this case I am satisfied that, the proposed extensions will enhance the amenity of the dwelling but they will not unreasonably detract from the heritage significance of the building to warrant refusal of the application. 36 The council argued that the knock-on effect of increasing the ceiling heights, in particular for part of the kitchen, impacted on the heritage and lowering the ceiling did not compromise the amenity of the dwelling. I am of the view that the 3 m ceiling height throughout the ground floor area can be accommodated without unreasonably impacting on the heritage significance. Clearly, it will also provide for much greater amenity for the occupants of the dwelling. 37 I am also satisfied that the bathroom with the mansard resolution is appropriate in the circumstances of this case and that it would be impracticable for a bathroom of the dwelling to be compromised to the extent that the ceiling height in places would not allow a person to stand up. 38 With respect to the tree in the rear yard I have not given weight to this as an ameliorative matter in terms of obscuring the visibility of the extension. I have looked at the extension in its context of the adjoining buildings and the adjoining modifications to the rear of the dwellings and have not relied on the tree to obscure or partially obscure it when viewed from the laneway. Clearly, the tree does provide amenity for the area generally and should be retained apart from providing a vegetated setting for the extension. However, I have not relied on the tree obscuring the view of the extension because in my assessment the extension is appropriate on its own merits. 39 The Court in its deliberations has also assessed the building as a contributory item and on balance and in its context the application as amended is appropriate in its heritage contexts. The experts agreed that the building is a contributory item to the conservation area and the streetscape (not just the group/row) and it must be respected as representative of the mid Victorian terrace era for its form, scale and composition. I am satisfied that the proposed development is consistent with this. 40 In my assessment I also have the benefit of the inventories in Exhibit 1. This allows for consideration in the context of the inventory and the significance of the buildings in that regard in terms of the item, the streetscape and the conservation area. 41 In terms of Bourke Street this has a rating of 'A', and I note this is a street of predominantly Victorian terraces and Bourke Street contains important street trees, and the section of sandstone kerbing should be retained. 42 The Court in terms of the streetscape also notes that the inventory states that "the streetscape possesses a coherent and strongly urban form deriving from the Victorian residential era on narrow lots and it is important that they be retained". The Council did not take issue with the front elevation to Bourke Street and indeed the front elevation to Bourke Street is more of the original fabric than the dwellings on either side and it will continue to represent the mid Victorian era in its more original form. 43 It is noted that in terms of streetscapes that additions are not to exceed the rear ridge height and the proposal complies. Even from the laneway I do not consider the extension at the upper level will be a dominant, although it will be a visible element. As stated earlier, the laneway is not identified in the heritage conservation area or streetscapes. In this laneway opposite the subject site to its east, there is a a 20th century residential flat building constructed several decades ago and this does not provide for the same consistency as where laneways have late Victorian dwellings on either side. I note Arthur Lane is included in the inventory. 44 In my overall assessment of the development application I have before me in Exhibit B, I consider it has merit and is worthy of approval. 45 Accordingly the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as 538 Bourke Street, Surry Hills, is upheld. 2. The development application submitted to the City of Sydney Council, and as amended and shown in Exhibit B is granted consent subject to the conditions contained in Annexure "A". 3. The exhibits with the exception of 1, 5, 6, 8, 9, 12, B and C are returned to the parties. ___________________ J S Murrell 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.