Land and Environment Court of New South Wales CITATION : Manawar Pty Ltd v Sydney City Council [2007] NSWLEC 299 APPLICANT Manawar Pty Ltd PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10758 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- mixed commercial building, conservation area, scale and character, articulation and modulation. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 199-Urban Design City of Sydney Heritage Development Control Plan 2006 DATES OF HEARING: 3/04/2007 and 4/04/2007 DATE OF JUDGMENT: 30 May 2007 APPLICANT Mr G. Green, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr C. Leggat, SC instructed by Home Wilkinson and Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 30 May 2007 10758 of 2006 Manawar Pty Ltd v Sydney City Council JUDGMENT Introduction 1 Included in the Elizabeth Bay Conservation Area ("the conservation area") is a peninsular site on the prominent corner of Roslyn Street and Kellett Way in Kings Cross. The triangular shaped site is identified as 5 – 9A Roslyn Street, Kings Cross and has frontages to both Roslyn Street and Kellett Way. The site is occupied by several older style buildings of 2-3 storeys presently utilised for a restaurant, residence, cafe and shop. These buildings have little heritage significance. 2 This appeal involves a proposal for the demolition of the existing buildings and their replacement with a contemporary four-storey building (plus basement), to be used for a restaurant on the ground floor and for commercial purposes on the other levels. There are to be semi-enclosed balconies at levels 1 and 2 and the majority of level 3 is to be a roof garden behind a high parapet punctuated with a number of window styled openings. 3 The council issued development consent for this proposal in late 2006 subject to conditions involving the building's floor space ratio and an altered design for the Roslyn Street elevation. This judgement concludes that the appeal should be upheld and that these conditions be deleted from the consent. The proposal 4 The proposed building is described by the design architects Durbach Block Architects ("the proposal" and "the architects") as: The building has a gentle curving shaped in plan and in elevation, and is clad in (irregular shaped) mosaic tiles; in a pattern of gloss and matt finishes. It aims to resemble fine porcelain, a smooth shaped vase. 5 According to the architects, the design philosophy for the proposed building is as follows: In the existing fine-grained area of Kings Cross, the surrounding buildings hold their site boundaries and are between two and five storeys high. Generally the expression of the buildings is load-bearing masonry with detailed small-scale openings. Most buildings have an active public or commercial use on the ground floor, with commercial and/or residential uses above. Architectural features such as bay windows, awnings and cornices overhang the streets. The proposed design for 5-9A Roslyn Street follows these basic principles: o The building is built to its site boundaries; o The building is three and four storeys in height from street level; o The building is load-bearing masonry with deep windows; o A restaurant is proposed for the ground floor with commercial space above; o A decorative cornice and canopy overhang the Street. In this way the design directly follows the cues of its immediate context acknowledging existing predominant alignments, massing and building modulation of the area. 6 The Statement of Environmental Effects ("the SEE") that accompanied the development application contends that the design adopts a modern interpretation of the design of the period of the conservation area, which includes a form of "Art-Deco", combined with an "expressionist style" and that: This is an appropriate avant-garde and bohemian style that relates to the surrounding buildings of the 1920's and 1930's period . 7 In relation to the building's style the SEE explains: It also adopts a "Gaudi-like" expressionist roof feature that extends the traditional parapet above the roofline to create a roof garden. The "broken" random tiling of the facade provides texture and reinforces this expressionist style whilst reflecting the articulation of adjacent buildings. In this way it creates a well-designed building that fits within its context by providing an highly textured facade with visual interest and articulation whilst building on the period elements. Advertising and council's decision 8 The application (Development Application D2005/2046 ("the application")) and was lodged with the council on 1 December 2005 and as a result a total of 51 objections were received plus petitions with more than 2000 signatures also objecting to the proposal. Those objections express concerns mainly comprising: o The existing buildings on the site make an important contribution to the conservation area and should not be demolished. o The existing buildings should be incorporated into any redevelopment of the site. o Amenity impacts on neighbouring properties including loss of sunlight and loss of privacy. o The proposed new building would be out of scale and out of character with surrounding development. It would not be sympathetic to the conservation area. o The proposed building looks more like a "battleship" and would not be sensitive to the fine-grained texture of the streetscape. 9 There were also a number of letters of support for the proposal explaining that: o The proposed building represents a fine corner treatment with a conservative fenestration arrangement. It will be sympathetic to the Art Deco buildings of Kings Cross and its qualities will benefit the conservation area. o Sensitive and high-quality developments such as this will enhance the bohemian atmosphere of Kings Cross. o The proposed building will be outstanding and will set a high standard for future development in the area o The existing buildings are in poor condition and cannot survive economically. o The development has the potential to reinvigorate the locality and improve general safety and security. 10 On 31 July 2006 an officer's report was prepared incorporating the supporting recommendations of council's town planning, heritage, architecture and urban design personnel. It also took into account the expert town planning and heritage advice provided by the applicant. Public submissions were also considered. That report recommended that a deferred commencement development consent be granted. 11 On 7 August 2006 the council refused the application for reasons relating to matters of: floor space ratio; the fine-grained scale of the Elizabeth Bay Conservation Area; the Roslyn Street streetscape; the possible retention of the existing building; and the public interest. The appeal was lodged in response to this refusal. Concurrently the applicant sought a review of the development application pursuant to s 82 A of the Environmental Planning and Assessment Act 1979. 12 The report prepared for the purposes of the s82A review incorporated the opinions of experts that had not been involved in the original consideration of the application. This input included town planning and heritage advice from consultants independently appointed by the council at as well as from the applicant's heritage and urban design consultants. Having taken into account these opinions and the public submissions, that report concluded that the council's refusal be reversed and that deferred commencement consent be granted. The recommended deferred commencement requirement involved the reduction of the floor space ratio of the building (which has now been effected). 13 The council officers' reports and the consultants' reports associated with the original consideration and the s 82A review were made available to the Court. 14 On 11 December 2006 the council granted conditional development consent ("the consent"), for the proposal. This consent is subject to a number of deferred commencement conditions relating to: floor space ratio; the original Victorian villa; and the building's Roslyn Street elevation. Deferred commencement conditions (A)(1)(a) and (b) provide as follows: (a) The provision of a revised design reducing the FSR to a total of 3.0:1. Details shall be submitted by a registered surveyor confirming compliance with 1(a) above. (b) The provision of an altered design to the Roslyn Street elevation allowing for improved articulation and modulation of the facade in keeping with the fine-grain of the Elizabeth Bay Conservation Area. Such revisions are to be made to the satisfaction of the Director City Planning, in consultation with a Design Review Panel to be convened including interested councillors. Consideration should include the potential to retain the original Victorian villa within the revised design. 15 The appeal is against these conditions. Condition (A)(1)(a) dealing with floor space ratio was not pressed, the matter having been resolved by the provision of the sought advice from a registered surveyor. That aspect of condition (A)(1)(b) relating to the original Victorian villa was also not pressed. In this context I note the following conclusion in the s82A report: The heritage significance of the existing buildings has been reviewed and they are considered to be of low significance at a local level. There has been a loss of integrity to the point where the group would not qualify as contributing buildings and retention is not warranted. 16 This conclusion was not in dispute notwithstanding that there are resident concerns about demolition of the existing buildings. 17 The applicant also objects to condition 28, which seeks to impose an external colour scheme comprising predominantly earthy tones. 18 Hence, the issue for the determination of the Court involves the question of whether the Roslyn Street elevation of the proposed building is inappropriate in the conservation area and needs to be redesigned. Planning controls 19 The site is included in the Mixed Use 10 Zone under South Sydney Local Environmental Plan 1998 ("the LEP") and in this zone the proposal is permissible with development consent. Schedule 2A identifies the Elizabeth Bay Conservation Area (CA 19) which includes the site. 20 Clauses 22 and 23A(1) and (2) in Division 1: Heritage Conservation of the LEP relevantly provide that: 22. The consent authority must not grant consent to the carrying out of development on the site of a heritage item, or within a heritage conservation area or heritage streetscape area, unless it is of the opinion that the proposal is consistent with the following aims and objectives: (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, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting. And: 23A. (1) a person must not: (e) erect a building or subdivide (otherwise than by a strata plan) within any such area, except with the consent of the consent authority. (2) The consent authority must not grant consent to a development application required by subclause (1), being an application to erect a new building or to alter an existing building, unless it has made an assessment of: (a) The pitch and form of the roof, and (b) The style, size, proportion and position of the openings for windows and doors, and (c) Whether the colour, texture, style, size and type of finish of materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the heritage conservation area or heritage streetscape area in which the building is situated. 21 Also relevantly applicable is Part B: Urban Design Principles of the South Sydney Development Control Plan 199 - Urban Design ("the Urban Design DCP"). Those principles deal with linear design elements; buildings and heritage; and urban village character and include the following provisions in relation to the block and street pattern of the city: Development is to provide a sense of cohesion and continuity to the streetscape. 22 In relation to streetscape fit and general character: Development is sympathetic to the prevailing height, bulk, scale, design and external appearance of adjacent buildings. 23 In relation to urban village character and identity: Development is to respect the discipline inherent in the townscape. Buildings are to maintain the visual cohesion of the streetscape taking into account: o the site's position in relation to the streetscape; o the continuity and figural character of the street in terms of use, scale and architectural entity; o the intrinsic domestic scale, local flavour or the atmosphere of the place. 24 Of particular relevance to the Roslyn Street elevation or facade of the building is s 2.5 Facade treatment in Part E: Environmental design criteria, which includes the following: Facade treatment deals with design and architectural details that determine how a building "reads" from the street. It must suit the context of the development. The dominant design parameters for new development are the existing built form and in particular that of adjacent buildings. For development in conservation areas the design must achieve a higher level of compatibility, taking into account the unique fabric and character of heritage streetscapes and buildings nearby. Certain forms, patterns and details, which help to establish an attractive theme or character for the locality, are to be maintained, while seeking to create an innovative and sustainable built environment. It is neither essential nor even desirable to replicate the appearance of adjacent buildings. Council encourages contemporary design solutions based on sound design principles, which recognise and make reference to the underlying elements that create the character of the area. 25 Section 4.2 Provisions of the City of Sydney Heritage Development Control Plan 2006 ("the Heritage DCP") is also applicable to the effect that development in a conservation area should be compatible with the surrounding built form and pattern of development. Existing form, massing, setbacks, scale and architectural style, character and streetscape are to be taken into account. 26 Section 7 of the Heritage DCP deals with infill development where a new building is to be introduced into an established and developed area. Section 7.1 requires that buildings should respond positively to the character of adjoining and nearby buildings and section 7.2 requires the use of compatible materials and finishes and that colour schemes have a hue and tonal relationship with traditional colour schemes. Community objection and support 27 When the hearing began on-site I heard from a number of residents and representatives of community groups some expressing support for the proposal and others expressing objections to it. 28 Supporters of the proposal explained that the proposed building was an innovative design providing a strong element on this important street corner. Suggestions by the council that the Roslyn Street elevation is inappropriate are not supported and the building should be read as a whole. In particular there is no need for additional articulation of the building taking into account its punched windows with metal projections, the awnings and the openings in the facade through to the roof garden and balconies. In terms of modulation within the area, the building fits within the measure and proportion of other buildings in the conservation area. The windows have similar proportions to other buildings in the locality. Whilst the materials to be used in the facade are not the same as the predominant masonry materials used in the area they are nevertheless of a similar masonry type and are responsive to a number of other buildings in the locality. 29 Objectors argued that the council's decision to approve this 'cold and intrusive' building was wrong. Despite the eccentric nature of King's Cross this new building would not be a good fit in the locality, lacking harmony with its neighbours and the close by public park. It has an inappropriate colour, scale, style and finish, an antithesis of the area. Its bright finish, slab-sides indicate that it is just too monolithic, lacking articulation. Sculptural statements such as this belong in galleries not on buildings. 30 Another neighbour complained about possible impacts on her adjoining property both during the demolition of the existing buildings and subsequently regarding overshadowing. I understand that these matters were dealt with during the development application/approval process and are not raised as issues by the council. The deferred commencement conditions do not seek any changes to the proposal that might alter it in this regard. Expert evidence 31 In addition to the expert materials referred to above as considered by the council during the approval process expert urban design evidence was provided by Ms J. Hill on behalf of the respondent and by Mr R. Staas on behalf of the applicant in the form of a joint report. 32 Prior to the hearing Ms G. Morrish was appointed by the Court with the agreement of the parties as an urban design expert to comment on the issue in dispute. Ms Morrish 33 In her final report Ms Morrish concluded, having taken into account certain changes to the design of the proposal, that: 1. The design of the ground floor can now be better understood and I consider it is now providing a reasonable response to the shopfront grain of the rest of the area. 2. The applicant has altered the facade to provide an inset to the Roslyn Street adjacent to No. 3 Roslyn Street and has also introduced a subtle line within the facade of the building to respect the height of No. Roslyn Street. Both these alterations improve the response of the building to No. 3 Roslyn St. and in my opinion are a satisfactory response. 3. The building has not reduced in scale to the corner and no redesign has occurred to this end of the building. Ideally the design would have been amended so that the curved treatment of the facade parapet occurred at the top of the third-floor therefore delivering a three-storey form rather than a four-storey form. 4. However there are now no remaining issues pertaining to bulk within the conditions. 5. Council has required alteration to only one facade in its condition - Roslyn Street. The wording of the conditions appears to accept the height and bulk of the building. Therefore to achieve that "fine grain" would be by the imposition of a greater variety of materials and introducing vertical alignments or something similar into only one facade. 6. In my opinion it would be a poor result if the building was altered to achieve a different elevational treatment to Roslyn Street that was not carried through to the rear lane. This building is viewed in the round from the park with both elevation visible and therefore they must be designed as a whole. 7. The design concept is a strong and elegant concept for a taller form for this corner. To achieve finer grain around the corner I consider that the design should continue another horizontal line in the facade around the corner perhaps along the heads of the windows turning the corner in recognition the lower heritage buildings at 1 Kellett Way. This line should be continued around to the laneway so that it responds to the corner form. 34 Taking into account the above conclusions Ms Morrish recommended that additional details be added to the facade of the building as it turns the corner in the form of another horizontal line and if this is done the proposal would, relevant to the conditions of approval, be satisfactory. Ms Hill and Mr Staas 35 In addition to their written reports Ms Hill and Mr Stass also gave concurrent evidence together with the applicant's architects Mr N Durbach and Ms C. Block. 36 In order to understand the council's deferred commencement condition (requiring an altered design for the Roslyn Street elevation of the building so as to provide improved articulation and modulation of the facade in response to the fine-grain of the conservation area), Ms Hill and Mr Staas considered the terms articulation and modulation and fine grain. They agreed that the term fine grain is normally used in urban design and town planning to describe the road patterns and subdivision patterns that constitute the basis for development of an area or precinct. However Mr Staas disagreed with Ms Hill in so far as she says that the interpretation of the term has now been broadened to refer to the established character of streetscapes, taking into account built forms. In this regard I agree with Ms Hill especially as the approach enables sense to be made of Council's use of the term in the context of the suggested need for further articulation and modulation of the building. 37 On the basis of her interpretation of fine grain, Ms Hill explained that the proposed building form would be inconsistent with the general character of the area for a number of reasons including: the loss of the variety of building forms; the introduction of a taut skin facade with an absence of articulation and modulation; an unprecedented curved top parapet treatment; and the absence of a variety of building heights. She also expressed concern that the proposed building was not of a traditional masonry character being incompatible in terms of colour, texture, style, size and type of finish. She nevertheless acknowledged the consistency of the building's street alignment in its context. 38 Despite his disagreement with Ms Hill, Mr Staas acknowledged that the fine grain of the area can be the result of varied building forms determined by their facade presentation to the street and that materials and textures can be considered. He noted that buildings surrounding the site are three, four and five storeys in height and have rendered wall finishes above the ground floor with cantilevered awnings and accepted that the materials here proposed are different to those utilised on existing buildings. The articulation and modulation of nearby buildings is limited to shallow projecting window sills or string courses and more pronounced cornice treatments together with shallow projecting bays. It was his opinion that the proposal is responsive to these matters. 39 In relation to the sought articulation and modulation of the proposal, Ms Hill explained that this should comprise a number of matters including: a stepping of the facade and the parapet; articulation of vertical and horizontal elements; the provision of an awning; a responsive window pattern and details; and the use of more appropriate facade materials. It does not do this. Conversely Mr Staas said that the building has an appropriate level of articulation and modulation although this could be improved by the provision of an additional horizontal line around the corner of the building at the head of the third-floor windows as suggested by Ms Morrish. Overall he believed that the organic form of the building including its concave form projecting window units and recessed openings and the projecting awning provide an appropriate level of modulation to the Roslyn Street facade. 40 Although not required by the deferred commencement condition Ms Hill said that the building needed to be lowered by about three metres including a reduction of the top floor parapet height and the articulation of the facade by the introduction of bay windows. The window pattern needs to be regularised, the awning needs to be extended and the shop window treatment varied. Mr Staas observed that it would be possible for the building to be reduced in height by about one metre without affecting the building's design integrity but that this was not really necessary. Also the awning could be extended over the entry to the proposed restaurant although such an extension across the whole facade would not be desirable or necessary. He also explained that the deletion of the upper facade (around the roof garden) would not be desirable in relation to the intent and integrity of the design approved by the council. 41 Ms Hill concluded that the building would be so different and would have no reference to any characteristics of the conservation area such that it would read as a foreign element that would erode the character of the area. Conversely Mr Staas said that the proposal would result in a building of distinction that provides interest and continues the spirit of variety that characterises King's Cross. It will add to the architectural quality of the area and enhances its distinctive "bohemian character". Conclusions 42 I agree with Miss Morrish's explanation that it would be a poor result if the proposal were altered to achieve a different elevational treatment to Roslyn Street that was not carried through to Kellett Way. The building is viewed in the round from the park with both elevations visible and therefore they must be considered together. Hence if changes to the Roslyn Street elevation where necessary this would most likely necessitate responsive changes to the Kellett Way elevation. Therefore, it is necessary to consider the fine grain aspects of the conservation area and the concept of articulation and modulation by applying these matters to the building as a whole. 43 Ms Hill's approach to these matters is essentially that the proposal fails to respond to its surroundings in the manner required by the planning controls, particularly those for the conservation area. More particularly, a number of the proposal's characteristics such as its taut curved skin facade and its absence of articulation and modulation are said to stand in stark contrast to the more traditional masonry character of the surrounding area. 44 As agreed earlier I accept the approach of Ms Hill in relation to how the term fine grain is to be interpreted. However I do not agree with her that the proposal fails to be responsive to the fine grain of the surrounding area, accepting instead the opinions of Mr Staas and others, including the architects, that in its own way the proposal achieves this. Indeed I find appropriate the design philosophy utilised by the architects (as reflected in the statement of environmental effects) including the proposal's scale, materials and fenestration and the use of the building to be appropriate. 45 No doubt the proposal's sculptural form is different when considered against the existing built forms in the surrounding area and it is this form that has, amongst other things, generated considerable disagreement amongst the objectors. However this difference in form is not a reason for the refusal of the application as it is not essential nor is it even desirable for new development to simply replicate existing surrounding buildings even in a conservation area. Indeed I accept the applicant's submission that contemporary buildings can participate in the ongoing change that inevitably occurs in conservation areas and that this is a modern interpretation of the proposals surroundings. 46 Overall I have been persuaded by the expert evidence of Mr Staas and Ms Morrish together with the evidence provided to the council as part of the processing of the development application that provides extensive and detailed support for the proposal in its present form. This is an important corner site that requires and has received an unusual, yet high-quality design solution that I accept is responsive to the existing surrounding context. I have no reason to disagree with suggestions that it will attract visitors thus facilitating a reinvigoration of this area. In deciding to approve the proposal I have also taken into account the council's decision, which is essentially the approval of a building, subject to certain changes, of the kind here proposed. It is also inherent in this decision that the provisions of the applicable planning controls, subject to these changes, are satisfied by the proposal. 47 It is interesting and indeed somewhat unusual that a number of local residents including architects came to the hearing to express their support, describing the proposal as sensitive and having a high standard of design. Whilst this does not have the effect of setting aside the resident objectors concerns it is a matter that I have taken into account in deciding to approve the application. 48 As for the height of the proposal, whilst acknowledging Mr Staas' opinion that the building could be lowered I agree with him that this is not necessary. This building will comprise a strong architectural statement on this important corner and a reduction in height of a metre or so would make little difference in this regard. The applicant has now agreed to a revised version of condition 28 that deals with the external colour scheme of the building. The condition has the effect of reducing the ratio of gloss to matt tiles and increasing the ratio of dark tiles and grading their placement. As a consequence of this change and taking into account that there are some light coloured buildings in the locality I am now satisfied that concerns regarding the colour of the building have been alleviated. 49 Whilst it was suggested that the street front awning should be continued over the entrance to the restaurant I do not accept that this is necessary. Instead, the pitched awning as proposed should be retained because it not only gives emphasis to the entrance but also contributes to the articulation of the building. As for the ground floor I agree with Ms Morrish that it now provides a reasonable shopfront in the context of the shopfronts in nearby buildings even though as suggested by Ms Hill that a stepped arrangement would have produced a better outcome. 50 I also agree with Ms Morrish and Mr Staas that the design should continue another horizontal line in the facade around the corner perhaps along the heads of the third-floor windows and turning the corner in recognition of the heritage buildings in Kellett Way. This line should be continued around to the laneway so that it responds to the building's corner form. 51 Finally, I would adopt Ms Morrish's description of the contemporary design as a ..strong and elegant concept for a taller form for this corner, and as the s82A report concludes.. the proposed building is considered to be sympathetic to the character of the Elizabeth Bay Conservation Area. 52 In all of the circumstances I am satisfied that this innovative proposal would be sympathetic to and would not detract from the conservation area. More particularly I agree that its detailing and its height bulk and scale would-be appropriate for this site. To the extent that it will be different to surrounding buildings this does not make it unacceptable and in this context I do not accept that conservation areas cannot achieve their intended purpose by excluding modern buildings. As a consequence I have decided that the proposal satisfies the requirements of clauses 22 and 23A of the LEP and that, subject to the above-mentioned modification, the Roslyn Street elevation would not be inappropriate. Orders 53 I have therefore decided that the appeal should be upheld and the deferred commencement conditions deleted. Consequently condition 1 that refers to the architectural plans needs to be amended in accordance with Exhibit J and condition 28 in accordance with Exhibit H. 54 The orders of the Court are therefore: 1. The appeal is upheld 2. The development consent for the demolition of existing buildings and the construction of a four-storey building (plus basement), to be used for a restaurant and commercial purposes at 5 – 9A Roslyn Street, Kings Cross is amended by the deletion of conditions (1) and (2) and the inclusion of the replacement conditions in Annexure A hereto. 3. Exhibit B is retained. ___________________ T A Bly 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.