Land and Environment Court of New South Wales CITATION : Svedas v Sydney City Council [2010] NSWLEC 1323 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Sanda Svedas PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10471 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT APPLICATION - HERITAGE :- demolition of a contributory item within a heritage conservation area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development CASES CITED: Helou v Strathfield Municipal Council [2006] NSWLEC 66 TEXTS CITED: Building Code of Australia Residential Flat Design Code DATES OF HEARING: 26, 27 October and 18 November 2010 DATE OF JUDGMENT: 24 November 2010 APPLICANT Mr C McEwen SC SOLICITOR Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms A Pearman, Barrister SOLICITOR Mr a Singh JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 23 November 2010 10471 of 2010 Sanda Svedas v Sydney City Council JUDGMENT 1 Commissioner: This is an appeal under s97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Sydney City Council (the council) of development application No. D/2010/540 which proposes the demolition of two existing dwellings and the construction of a nine-storey mixed use development comprising basement carpark, ground floor retail/commercial area, and 30 residential units at Nos. 533-535 Elizabeth Street, Surry Hills (the site). 2 There are a number of contentions in dispute however two principal issues need to be assessed. Those are, firstly, whether consent should be granted for the demolition of the two dwellings, which are contributory items within the Cleveland Gardens Heritage Conservation Area. Secondly, if I find that demolition is appropriate, whether the proposed building is suitable for the site. The site and its context. 3 The site is dual-fronted and is located on the western side of Elizabeth Street between Bedford and Belvoir Streets, with Little Buckingham Street providing its secondary frontage and vehicle access. Frontage to each road is 13.44m and 13.455m respectively, depth of the site is 28.7m (north) and 29.205 (south) and area is 388.5m2. The site falls approximately two metres from front (Elizabeth Street) to rear. 4 Two terrace houses are erected on the site, the northern dwelling, No. 533 being two-storey and the southern dwelling, No. 535, a single storey building with attic. Both buildings are internally connected and have been approved for use as business premises by the council. 5 The main pedestrian access to the site is from Elizabeth Street, a major collector road. Little Buckingham Street provides vehicular access to a carparking area, which can currently accommodate four to five vehicles in a stacked arrangement. 6 Immediately to the north of the site is an eight-storey commercial building, built, according to evidence provided, in the 1960's and used as the Sydney Building Information Centre and recently upgraded for commercial and restaurant use. A two storey commercial building occupying the entire lot and fronting Belvoir Street adjoins the site to the south. The latter building is also identified as a contributory item within the CA. 7 In the vicinity of the site, along Elizabeth Street, are a range of buildings that vary in height from two to nine storeys and are used for residential, retail and commercial purposes. 8 Development on the western side of Little Buckingham Street is more regular and is primarily two-storey residential development erected to the street boundary. The Belvoir Street Baptist Church, a heritage item, is located opposite the site on the corner of Little Buckingham and Belvoir Streets. The proposal 9 The proposed development involves the demolition of the two terrace houses and the construction of a nine-storey building setback 6.555m from Elizabeth Street and erected to the side and over the rear boundary. The setback to Elizabeth Street is consistent with the building to the north. A glass, screening element erected approximately four metres from the front boundary is proposed within that area rising to the height of the second floor. A small portion of the building, being the angled sections of the rear façade, encroaches onto Little Buckingham Street for a distance of approximately 400mm. The council did not raise any issue in relation to this encroachment however, a condition requiring the deletion of the encroachments has been proposed in the draft conditions before the Court. It would appear that none of the existing buildings extend into Little Buckingham Street. The top floor is setback from the main front and rear façade a further distance of approximately 2m. 10 Two professional suites would front the courtyard area and are separated by the proposed main residential entrance and lobby area. Two, one-bedroom units are proposed at the rear of the ground floor level. 11 A basement carpark is proposed to occupy the entire site with access at the southern end of the site from Little Buckingham Street. Parking for nine cars and eight bicycles and garbage storage areas are provided at this level. A lift, centrally located within the building, provides access to all floors of the proposed building. 12 Eight floors of residential units are proposed above the mixed-use ground floor area. Levels 1- 5 are identical and each comprise four, one-bedroom units. Levels 6 and 7 would contain two, one-bedroom and one, two-bedroom units and the top level, level eight, a communal terrace area, a one bedroom and one, two-bedroom unit. A small terrace area is provided for each unit enclosed with weatherproof glass louvres. Two central voids running the entire height of the building allow for cross ventilation of the units. 13 The dwelling mix proposed comprises twenty-seven one-bedroom and three, two-bedroom units. The planning controls 14 The site is zoned 10-Mixed Uses pursuant to the provisions of South Sydney Local Environmental Plan 1998 (the LEP). Objectives of that zone are: - (a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and (c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and (f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. The proposed development is permissible with consent in the Mixed Use zone. Clause 10 of the LEP requires that development must be consistent with these objectives to allow consent to be granted. 15 The site is located within the Cleveland Gardens Heritage Conservation Area (the HCA), the LEP defining the boundaries of that area as Devonshire, Elizabeth, Cleveland and Chalmers Streets. Neither of the buildings on the site is listed as a heritage item under the provisions of the LEP. 16 The LEP also includes the site within the Elizabeth Street Heritage Streetscape area (the HSA), an area that includes the western section of Elizabeth Street from Devonshire St to Cleveland St and the eastern section from Devonshire St to Dawson Street. 17 Specific heritage provisions are contained within the LEP and require consent for the demolition of any building within the HCA or HSA and lists matters which must be considered in the assessment of any application for works within these areas. 18 Due to the site's proximity to the Belvoir Street Baptist Church, a listed heritage item under the LEP, clause 24 also applies and states:- The consent authority must not grant consent to development on land in the vicinity of a heritage item, a heritage conservation area, a heritage streetscape area, an archaeological site or a potential archaeological site unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item, on the heritage significance of buildings within the heritage conservation area, or on the heritage significance of the streetscape within the heritage streetscape area or of the actual or potential archaeological site, as well as the impact of the development on any significant views to or from the heritage item, heritage conservation area or streetscape. 19 The South Sydney Development Control Plan 1997 (the DCP) applies to the site and contains development controls that relate to the application including urban design principles, social planning and environmental design criteria, heritage provisions and specific development type controls. The issues 20 The issues in the case are: - Whether consent should be granted to demolish the dwellings; - Impact of the proposed development on the HCA, HSA and adjacent heritage item; - Bulk, scale and floor space ratio (FSR) of the proposal; - Apartment mix; - Floor to ceiling height/building height; - Amenity; and - Privacy/overlooking The evidence 21 The hearing commenced on site when evidence was heard from two residents, both of whom had lodged submissions with the council. The first, a resident of Buckingham Street whose property has rear access from Little Buckingham Street, spoke of his concerns in relation to the height of the building, its non-compliance with the council's DCP provisions and the likely precedent that would follow, which, he says is likely to allow similar development in proximity of his property thereby adversely impacting his amenity. He is also concerned about the development increasing noise in the area. 22 The second resident is an owner of a dwelling in Little Buckingham Street who is concerned that the development will overshadow her property and affect her amenity through more noise and traffic. She was also concerned about the lack of parking available in the area and the cumulative impact that the development, which only provides parking for nine cars despite containing 30 units, will have on parking availability. 23 A view of the surrounding area, the HCA, the Belvoir Street Baptist Church, the Elizabeth Street HSA and two terrace houses in Waterloo Street was conducted in the presence of the parties and their experts. The interior of both dwellings on the site was inspected to observe the current condition. 24 Expert evidence was heard from, for the applicant: - Mr N Dickson, urban designer; - Mr A Betros, planner; - Mr R Staas, heritage; - Mr S Waters, engineer; - Mr A Chahda, builder; and for the council: - Mr T Wise, planner; - Mr H Wang, heritage; - Mr B Moisidis, engineer Demolition 25 The two dwelling houses are nominated as contributory items within the HCA and accordingly, an assessment of the impact of demolition on that HCA is required. The parties referred me to Helou v Strathfield Municipal Council [2006] NSWLEC 66 where Moore SC established planning principles for the demolition of contributory items within heritage conservation areas. Six questions are raised and these were addressed in the evidence. 26 The first matter is the need to determine the heritage significance of the area. Both experts agree that the HCA reflects an older part of Sydney and that in HCAs, most buildings are contributory rather than being individual heritage items. 27 In this regard, Mr Staas considers that the significance of the HCA has been lost due to the redevelopment of the area and in particular the number of detracting buildings that have been built. He also cites a number of heritage and urban design studies undertaken on behalf of the council that have recommended removal of the site and other sections of the HCA from the listing. He shares a similar view in relation to the HSA. 28 Mr Wang considers the area to have high heritage significance as, according to the council's heritage inventory report, "it reveals layers of development beginning with Cleveland House (a listed heritage item built c1924 and believed to be the only surviving example of domestic work of Francis Greenway) and estate, its subdivision and development into narrow terrace lots. It provides evidence of the decline of the inner city as a residential area and subsequent demolition of terraces and replacement with industry in the early twentieth century and the rejuvenation of the inner city as a place to work at in the late twentieth century." Mr Wang is of the view that the area demonstrates an evolution of built form and land use and that this is its significance, rather than the need, as Mr Staas advocates, to having maintained the original built form and subdivision pattern to be worthy of retention. 29 Mr Wang also notes that none of the recommendations to alter the extent of the HCA have been adopted by the council, and therefore places little weight on the conclusions. With regard to the HSA, Mr Wang is of the opinion that the history of development along Elizabeth Street is important and should be retained. 30 The second question is what contribution the building makes to the significance of the conservation area. Both experts agree that contributory buildings should be retained unless they are structurally unsound or other reasons prevent retention. They also agree that the basic form and detail of the original terraces remain and that the dwellings were part of a larger terrace group. 31 Mr Staas considers the buildings make no contribution in terms of the setting as the context has changed dramatically. Mr Wang disagrees and considers the two houses to be important to the HCA as they are examples of the earlier buildings built along Elizabeth Street and contribute to both the HCA and HSA, are part of a grouping of three buildings (including the adjacent two storey building to the south) and provide an important link from Cleveland Street north to "bookend" buildings at the corner of Bedford Street. 32 It was agreed that the answer to the third question in Helou of whether the building is structurally safe is yes. 33 Next, it is necessary to explore whether there is any scope for extending or altering the building to achieve the development aspirations of the applicant that would have a lesser effect on the integrity of the HCA than demolition. 34 Mr Wang considers that it is possible to upgrade the dwellings and replace like for like and he estimates that, from his experience working with owners of similar buildings within the council area, that an amount of between $150,00 and $300,000 would be required to carry out this work. 35 Mr Staas considers that it would not be economically feasible to upgrade the buildings from their current state. 36 Mr Wise considers that it would be possible to retain the front, main portions of the dwellings and build a mixed use development at the rear and referred to a similar development that had been constructed further to the north along Elizabeth Street. This development had been referred to in resident submissions and was viewed during the hearing. 37 Mr Dixon considered that this would not be practical and could not envisage how the dwellings could be retained and how the necessary lobby space to access the residential component would be introduced. He considered the development referred to by Mr Wise to be a "poor and unfortunate outcome" and that, if applied to the site, would juxtaposition built form, reduce significantly the number of units to such an extent that the project may be unviable. He considered there to be little value in only leaving the facades of the buildings. 38 Mr Dickson considered that the option of a commercial building to the rear of the dwellings was also problematic and would not positively contribute to the integrity of the HCA. 39 Whilst there is agreement that some form of development could occur to the rear of the building the parties disagree as to the viability of such development and whether there is a positive contribution to the HCA. I note that little consideration had been given to the options of extending the dwellings across the site. 40 Accordingly, it is necessary to move to the fifth question, which is in two parts, if development can occur would the costs be so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted? 41 In this regard, I heard evidence in relation to the extent of works that would be required to firstly, bring the building up to a standard that is suited for use for residential purposes, secondly, its use for commercial purposes and thirdly, the costs of rectification works so that the building is fully compliant with the Building Code of Australia (the BCA) and use for residential or commercial purposes. None of the scenarios considered by the parties involved the retention of any part of the building and its incorporation into another building. Ms Pearman for the applicant, did raise the question of whether subdividing the site would increase its value however, no evidence was available to quantify this scenario. 42 Those issues that were considered relevant in all scenarios were the loading of the floors, the extent of work that was required for the building to be brought into compliance with the BCA for the particular use and the certification of works that would be necessary. 43 All experts agreed that the correct floor loading for residential use is 1.5Kpa and 3Kpa for commercial use. Mr Waters was of the opinion that the existing footings of the building would require extensive upgrading, including underpinning, to achieve both load standards. Mr Moisidis considered that work was required in approximately six locations and that on completion of that work he should be able to certify the structural adequacy of the building for a 1.5Kpa load. Both engineers agreed that significant work would be required for the 3Kpa standard to be met. 44 It was also agreed that any change of use would trigger the provisions of the Act which requires the grant of an occupation certificate and accordingly, compliance with the BCA for the particular building classification. There was disagreement as to the extent of works that could be carried out without the need to obtain development consent. Mr Wang stated that works which replaced like for like did not require consent whereas Mr Staas was of the opinion that such works would require consent. 45 Mr Moisidis, Mr Waters and Mr Chahda prepared scope of works and cost estimates for the use of the existing buildings for commercial or residential purposes. Each scenario included three options. In the case of commercial the works were: a Minimum works to address internal and external repairs without addressing floor loading. b Internal and external repairs and increased rating of floor to 3Kpa at ground and first floor. c Major works to strengthen the building to comply with the 3Kpa loading involving total underpinning to ground floor. 46 The cost estimates for the works are $660,000, $1,007,600 and $1,227,600 respectively with a $55,000 contingency considered to be reasonable in all circumstances. 47 For residential use, the works would involve: a Minimum works to address internal and external repairs, no work to footings but remove and replace entire ground floor timber flooring. b Minimum works as above and localised underpinning to meet 1.5Kpa loading. c Major works to bring the building into compliance with the BCA including total underpinning. 48 The cost estimates for the residential scenario are $660,000, $726,000 and $1,190,000 respectively and again the experts recommend a $55,000 contingency allowance. 49 Mr Waters and Mr Chahda do not accept that either of options 1 or 2 in both scenarios is appropriate as the works would not achieve compliance with the BCA. Mr Moisidis is satisfied that the works would be appropriate in the circumstances based on the level of structural cracking evident to the building which he considers is minimal. In relation to the residential works, Mr Chahda raised the need to provide Home Warranty Insurance and accordingly, would not be prepared to support any work other than the third option of the major works. 50 Further evidence in the form of a joint expert report from quantity surveyors, Mr Madden for the council and Mr Baum for the applicant, was tendered during the proceedings however no cross examination of those experts occurred. Mr McEwen, for the applicant, advised that he was prepared to proceed on the basis of those costings provided by Mr Madden. 51 For the sake of completeness, the costings from both experts ranged from $586,880 (Madden) to $1,137,374 (Baum) for the least extensive commercial and residential option to $991,625 (Madden) and $1,912,874 (Baum) for works that would achieve full compliance with the BCA and allow use for commercial purposes. 52 Valuation evidence, also not questioned during the proceedings, was tendered by the applicant. That evidence shows that the site was acquired by the applicant for $840,000 in 2006, is currently valued at $1,250,000 and would be valued at between $1,300,000 and $1,550,000 on completion of the works described above. The valuer concludes that the ascribed added value is significantly less than the proposed costing and therefore does not equal value. 53 The final question to be asked, following Helou ,is, if I find the cost of works to be prohibitive and demolition is appropriate, whether the replacement building is of such quality that it will fit into the conservation area. I therefore need to move to a merits assessment of the proposed development. Impact of the proposed development on the HCA, HSA and adjacent heritage item 54 The LEP requires, at clause 23A, consideration of the heritage significance of the HCA or streetscape within the HSA and the impact of the proposed development on the significance of that HCA or streetscape. In addition, as stated in paragraph 19 above, the impact of the development on an adjacent heritage item must also be assessed. 55 All planning/urban design and heritage experts agreed that the former Building Information Centre (BIC) building adjacent to the site is a detracting element within the HCA. It was agreed that any building on the site should ameliorate that building and transition from the adjoining development. The extent of transitioning was not agreed. Mr Dickson and Mr Betros considered the building as proposed was appropriate however Mr Wise considered that it was too high and should address the desired future character of the area rather than reflect the bulk and scale of the BIC. 56 Mr Staas and Mr Wang agreed that it is important to protect the settings of Heritage Items. They also agree that the proposed three-storey freestanding screen structure at the front setback area is not in keeping with the character of Elizabeth Street. I agree. 57 Mr Wang considers that the amalgamation of the site will affect the Victorian character of the HCA which is demonstrated by the narrow Victorian subdivision pattern and consequent fine grain and low scale Victorian buildings. Mr Staas considers that much of the original subdivision patterns along Elizabeth Street have previously been lost through site amalgamations and redevelopment and that preservation of the remaining isolated remnants of the earlier development would not result in any significant heritage outcome. 58 Mr Wang considers that the new building's height and scale compete with the BIC and that the combination of two buildings of similar height exacerbate the detraction of existing unsympathetic buildings on Elizabeth Street. He says that this will negatively impact on the established street pattern by changing the skyline and building distribution along the west side of the street and that the proposed building would present an unsympathetic build and height that overwhelms the dimension and scale of Little Buckingham Street, a narrow street, predominately flanked by 1 to 2 storey street walls with occasional 3 to 4 storey walls. Mr Staas considers that the predominate character is established by the six to eight storey developments on this side of Elizabeth Street and that it would be unreasonable to restrict development to one and two storey. 59 Mr Wang considers that any new building should minimise the impacts on the Church building and that the proposed development does not do this. He considers that the new building should not be visible, or at best, only partly visible from vantage points to the south west of the site and that the proposed building is too big and would dominate the current sky backdrop from this viewpoint. He considers that the ridgeline is the dominant feature of the church and that any development should be no higher than the church ridge. 60 Mr Staas agrees that the ridge is the dominant feature and aggress that the new building has a marginal adverse impact on the wider setting of the Church but does not consider it affects its identified heritage significance or value, being part of an existing layer of development which forms a backdrop to Buckingham Street along the ridge line of Elizabeth Street. He considers the church to be within a mixed area dominated by the BIC and the Chinese Embassy building (on the corner of Belvoir and Elizabeth Streets) and that the context of buildings will change dramatically over time. He is of the opinion that the proposed building would form a neutral background to the heritage item. Bulk, scale and floor space ratio of the proposal 61 The experts agreed that the height of the proposed building is 28.6m. Mr Wise stated that the current planning controls for the site are a maximum height of 15m and that a draft LEP, which is not considered to be imminent or certain, may increase this height control to 22m. Mr Dickson referred to the street wall height provisions of the DCP, which would allow a building of 21.6m height on the site utilising this provision. Mr Wise advised that such provision related to infill development. The maximum FSR control for the site is 2:1 and the proposed development has a FSR in the vicinity of 5.3:1 or 6.2:1 if the enclosed balconies are included. Mr Dickson and Mr Betros did not consider this control to be a relevant indicator of built form for the site and considered that the infill controls of the DCP would inform an appropriate envelope. They considered that the height and scale of the proposal would ensure a streetscape fit. Mr Wise disagreed and stated that the building ignores the streetscape, needs to consider more than the elevation to Elizabeth Street as it is visible from more than one angle and accordingly, should incorporate a podium or a material change. Whilst there is agreement that there is scope to vary the controls that apply to the site, Mr Wise considered that the proposal was too high and needed to be stepped. The experts drew lines on plans, which demonstrated their opinion of appropriate building height. This varied from a position of Mr Dickson, that the proposed building was satisfactory in the form proposed to Mr Wang's opinion that the building should be no greater than around five storeys at its rear. Mr Wise took a midpoint of around six storeys at the rear, stepping to seven with a height equating to around seven and a half storeys at the Elizabeth Street frontage, or around 21m. The encroachment of the building onto Little Buckingham Street, described as "borrowing floorspace from the lane" was not supported by Mr Wang due to the narrow width and built form within that lane. Mr Dickson and Mr Betros considered this appropriate and common practice in the area. Apartment mix 62 The DCP contains controls that require developments to provide a range of housing options in terms of building and dwelling types, tenure and levels of affordability to maximise housing choice and maintain the cultural and socio-economic diversity in the local population. Figure D-1 in Part D of the DCP establishes requirements for social mix in new developments and is based on dwelling types identified in the 1991 census. For Surry Hills the mix of 0-1 bedroom units required is 30%, 2 bedroom is 42%, 3 bedroom is 18% and 4+ bedroom is 10%. The proposed development provides for twenty-seven one-bedroom and three two-bedroom units, which represent a ratio of 90% two bedroom and 10% two bedroom. 63 Mr Wise referred to a recent Mayoral minute, which apparently acknowledged the change in demographic of the Sydney City area, and based on this more recent assessment, no more than 60% of the dwellings should be studio or one bedroom. Mr Betros referred to more recent census data, which indicated the occupancy rate for Surry Hills was now 1.94 persons/dwelling and accordingly he argued that the development would suit that need. He also referred to the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) which he construes advocates the provision of studio and one bedroom apartments near the CBD, universities and public transport facilities. Floor to ceiling height/building height The experts agree that the Residential Flat Design Code referred to in SEPP65 recommends a floor to ceiling height of 2.7m. Mr Dickson stated that the 100mm increase required for the development can be accommodated within the proposed building envelope, i.e. a maximum height to the roof of the lift overrun of RL64.72 and this issue can be addressed by way of consent conditions that establish a maximum building height. For non-habitable rooms, which, he says, are the areas that require plumbing/servicing, the code allows for the height to be reduced to 2.4m. Mr Wise was concerned that the structural and utility elements could not be accommodated within the available 200mm for the floor slab and accordingly, to increase the height, the building would increase by a further 700mm. Amenity 64 This contention was addressed by the applicant through the amended plans which reconfigured the internal layout of the units. Privacy/overlooking 65 The experts agree that the proposed development will not have any adverse impacts on the privacy of adjoining residents, nor impact on the solar access of the resident of Little Buckingham Street. Findings 66 When assessing the six tests posed in Helou, I am of the view that the Cleveland Gardens HCA has a medium to high level of significance and, when comparing the form of development in that area with the Statement of Significance in the council's Heritage Database, it is clear that evidence of the history of the area remains. I do however agree that the "streetscape has a low level of integrity due to extensive redevelopment in the latter half of the twentieth century". Accordingly, it is necessary to assess whether the demolition of the two contributory dwellings and the replacement building will have an adverse affect on the HCA. 67 I do not agree with Mr Staas that, as there are already a number of detracting buildings within the HCA, the significance of the area has been lost. There is sufficient evidence of the historical development remaining including the subject site. The extent of development that has taken place therefore needs to be balanced against the importance of maintaining what is remaining in terms of contributory buildings. 68 The heritage experts agree that the basic form and detail of the original terraces remain and the evidence shows that the buildings are structurally safe. 69 I do not consider that sufficient consideration of the third question in Helou has been given. Mr Dickson stated that he had not considered the option of development to the rear until the day of the hearing. Ms Pearman raised the option of subdividing the site and it was agreed that with minimal work in relation to fire-rating of the two dwellings, subdivision could occur as there is no minimum lot size prescribed under the council's planning controls. The fall of the site and the condition of the additions (which are not as important from a heritage perspective and could be demolished) that have been made to the rear of the original dwellings lend to the construction of additions that could suit residential or commercial use including the provision of on-site parking for each dwelling. Such development would have a lesser effect on the integrity of the conservation area than demolition. 70 Utilising the sales evidence provided in Exhibit K, I do not accept that the value of the two properties if subdivided would make the upgrading of the two dwellings economically unviable. I do not have any evidence to the contrary. I accept Ms Pearman's submission that if the cost of works was so high, there would be no restoration of terrace development carried out on the majority of sites within the city area. 71 Whilst I accept that the zoning of the land and the current planning controls allow for a larger development than that which I have described in the foregoing paragraphs, I note that the site is within both a HCA and HSA and accordingly, its development potential must be considered in regard to the importance of its location within such areas. 72 Whilst my attention was drawn to what was considered by Mr McEwen as the precedent set by the council in allowing the demolition of two terrace houses in Waterloo Street, I do not accept that this decision has any bearing on this appeal and a merit assessment of this application must be made. 73 I do not accept that the detracting building, the BIC should form the basis on which the redevelopment of the site is designed. This building far exceeds the height of other buildings along Elizabeth Street and that height is emphasised by it being located on a localised crest, the roadway falling generally from south to north. The BIC should not be used as the yardstick when ascertaining building height as it is a detracting building within the HCA and is out of character with the HSA. 74 I accept the council officers' opinion that the proposed building is too big and would have an unsatisfactory impact on the HCA and HSA. Therefore, it fails the sixth test in Helou. The contributory buildings do provide an important link to the past and development at the northern end of the block at the corner of Bedford Street, which is the "bookend" described by Mr Wang. 75 I do not consider that it is appropriate in this HCA to "borrow" floor space by extending the building into the road reserve of Little Harrington Street in the manner proposed due to the narrow width of that road and the proposed height of the development. That aspect of the building is particularly out of character with the HCA. 76 I also find that the building of the height and bulk proposed would have an adverse impact on the adjacent heritage item, the Belvoir Street Baptist Church. 77 The need to provide a mix of housing types is an important element of redeveloping any area. I am not satisfied that the council's DCP controls are appropriate in the circumstances however, nor can I accept Mr Dixon's contention that a high concentration of one-bedroom units is appropriate. A better test would be an assessment of housing mix to ascertain the makeup of occupants within the area. Whether the 1.94 persons per dwelling are singles or couples is an important factor. Conclusion 78 Given the significance of the HCA and the importance of the remaining contributory buildings on the site, the adjacent site and the south-western corner of Elizabeth and Bedford Streets, I consider that the two dwellings make an important contribution to the Cleveland Gardens Heritage Conservation Area. 79 I have not been provided with sufficient evidence that there are no other options available for the redevelopment and expansion of the site incorporating the existing buildings to justify allowing demolition of the two dwellings. 80 As I do not find it appropriate to allow the demolition of the two dwellings and I also find that the proposed building is inappropriate in its context, the appeal must be dismissed. Orders 81 As a consequence, the orders of the Court are that: 1. The appeal is dismissed; 2. Development Application D/2010/540 for the demolition of two existing dwellings and the construction of a nine-storey mixed use development is determined by the refusal of development consent; and 3. The exhibits are returned. ___________________ Sue Morris Commissioner of the Court 03/12/2010 - Incorrect judgment copied - Paragraph(s) Judgment 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.