Land and Environment Court New South Wales Medium Neutral Citation: Grigorakis v Bayside Council [2016] NSWLEC 1573 Hearing dates: 23 November 2016 Date of orders: 01 December 2016 Decision date: 01 December 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot is refused. 3. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an approved 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment - unacceptable impact on the heritage significance of heritage item – unacceptable bulk and scale Legislation Cited: Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Marinos Grigorakis (Applicant) Bayside Council (Respondent) Representation: Counsel: Mr M Mantei, solicitor (Applicant) Ms J Reid, barrister (Respondent) Solicitors: Michael Mantei, Planning Law Solutions (Applicant) Alice Spizzo, Landerer & Company (Respondent) File Number(s): 2016/155412 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot (the site). It is located on the corner with Tramway Street. 2. The council maintains that the development application should be refused because the proposal will have: * an unacceptable impact on the heritage significance of the group of buildings that make up Heritage Item I28, and * excessive bulk and scale which will adversely impact on the streetscape. The site 1. The site is Lot 1 in DP 784041 and is a rectangular shaped allotment with an area of 278.7 sq m. It is a corner allotment and has a frontage of 9.14m to Botany Road and a secondary street frontage of 30.48m to Tramway Street. 2. The site is presently occupied by a two storey mixed use development containing a restaurant/cafe on the ground floor and a function room/bar on the first floor. A concrete hardstand car parking area accommodating four car parking spaces is located at the rear of the site with vehicular access from Tramway Street. 3. To the west of the site, on the opposite side of Botany Road are commercial and retail uses and to the east are the Newmarket Hotel and the Manhattan Superbowl. To the south are a series of two storey mixed use buildings fronting Botany Road as well as residential development including single dwellings and residential flat buildings. Adjoining the site directly to the north are a series of two storey mixed use buildings which, along with the building on the site, form the group heritage item known as Item No. I28 with street address 891 - 917 Botany Road, Mascot. Relevant planning controls 1. The site is zoned B2 - Local Centre under Botany Bay Local Environmental Plan 2013 (LEP 2013). The proposed development is a permissible use with consent, in this zone, as "shop top housing". Clause 2.3(2) provides that the Court "must have regard to the objectives for development in a zone when determining a development application". The zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling 1. Clause 4.3 provides for a maximum height of 14 m whereas the proposed development satisfies this standard with a maximum height of 13.7 m. 2. Clause 4.4 provides for a maximum floor space ratio (FSR) of 2:1 whereas the proposed development satisfies this standard with a maximum FSR of 1.85:1. 3. Clause 5.10 Heritage is relevant as the site is identified as one building in a group of buildings collectively identified as group heritage item No. I28 in Sch 5 to LEP 2013 and shown on the heritage map. Clause 5.10(2) relevantly states: 2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, 1. Botany Bay Development Control Plan 2013 (DCP 2013) applies. Part 3B addresses Heritage and Part 5 addresses Business Centres. The site falls within the Roseberry Neighbourhood Centre in pt 5.2.2.6 where specific controls are provided for this area. What is the effect of the proposed development on the heritage significance of the item? 1. Expert evidence on this matter was provided by Ms Luisa Alessi for the application. Mr David Logan provided a written report and a joint report with Ms Alessi, for the council however he was not able to attend the hearing for personal reasons so a colleague, Ms Joyti Somerville, adopted the content of Mr Logan's individual report and his comments in the joint report with Ms Alessi. Ms Alessi and Ms Somerville agree that the views to the Tramway Street elevation of the heritage item are important because the side elevation contributes to the Botany Road streetscape although they disagree on the effect on the heritage significance of the heritage item. 2. Ms Somerville states that the heritage item comprises 13 contiguous two-storey commercial buildings in two components, north and south of Tramway Street respectively. The whole group can be viewed obliquely from a range of positions in Botany Road to the north and south of the subject property. 3. These views have aesthetic value and contribute to the streetscape appreciation of the heritage item as a whole. Ms Somerville states that in her assessment, the approved third level would be partly visible from these positions. The proposed fourth level would be significantly more intrusive than the third level in these views and would adversely affect the aesthetic value and visual setting of the northern component of the heritage item. 4. The heritage significance of the heritage item also relates to its historic values. These values can be attributed in large part to the uniformity of its form, character and two-storey scale although Ms Somerville accepts that this existing uniformity will be altered to a degree as a result of council's approval of the third level addition above the subject building. The heritage impacts of this approved development will, however, be mitigated by the limited additional height of the new level above the existing parapet as well as the setbacks from both street frontages. These provisions were relevant factors in Council's approval at the time. 5. Ms Somerville acknowledges that the fourth level would be set back a considerable distance from Botany Road and this would mean that it would be unlikely to be visible from points north of Tramway Street. Nevertheless, from various parts of Botany Road, south of Tramway Street however the fourth level would be visually dominant above the heritage item. The setback of some of the walls and the roof/eaves overhang from the Tramway Street frontage would be quite small, varying between 1.5-2.0m, without any appreciable additional setback above the approved third level. Absent the proposed changes to the form of the approved third level, this would mean that the full height of the proposed fourth level would be seen from Tramway Street and also in oblique views from Botany Road south of Tramway Street. 6. Ms Somerville states that with the approved DA for the third level, the Tramway Street component was only two storeys in height at the boundary, matching the lowest part of the adjacent heritage item's parapet which steps down Botany Road towards the rear of the site. It is evident that this lower street wall height was deliberately chosen to respect the scale of the heritage item. The proposal to increase this street wall height by a further storey would have an adverse impact on the item's streetscape qualities and setting which are important to its heritage significance. This would also be inconsistent with the DCP requirement that rear additions to a heritage item be lower than the item (Control C4 of Part 3B.3.1). 7. Even though the proposal does not block views of the heritage item, Ms Somerville considers that it would adversely affect its aesthetic value and appreciation. 8. Ms Alessi states that the heritage significance of the group item relates to the historic associations (early subdivision, re-subdivision and development of the group) and its early 20th century built character. The proposed additional storey will have no impact on the historic associations. Elements and details that contribute to the aesthetic character will be retained and continue to be highly visible and contribute to the aesthetic significance of the group. 9. The heritage significance also relates to the ongoing retail and residential uses of site which will continue and will be enhanced. The provision of additional housing in the area can have a positive effect on the group item which currently has a number of vacant shops. The lack of use and lack of maintenance that follows as a result is generally visible in the listed group and has clearly impacted on the primary architectural elements that contribute to the aesthetic significance and condition of the group. 10. Ms Alessi relies on pt 3B.1 3 of DCP 2013 which states: Heritage Conservation is not aimed at forcing owners to return their buildings to their onginal condition. It is primarily concerned with conserving the underlying characteristics or features of buildings, landscapes, artefacts and place, which define the building's heritage significance. 1. Ms Alessi also notes that: The Burra Charter recommends a range of possible conservation actions in relation to heritage buildings depending on the circumstances of each case. Heritage conservation cannot be seen in isolation from the evolution of cities or society. All urban areas change over time. It is important to strike a balance between reasonable contemporary uses and the maintenance of the fundamental characteristics of a Heritage item. 1. As one of the general rules under this clause, Ms Alessi also notes the following comments: Do as much as necessary to care for the place and make it usable..." and further: "Do not alter a place so much that the original building or place can no longer be understood". 1. Ms Alessi suggests that this implies that change is recognised and that there are a range of possible actions and measures which can be taken relative to each case. The subject building and associated group have undergone some change over time and it is not unreasonable to expect further change will occur particularly following interpretation of pt 5.2.2.6 of DCP 2013 which also recognises change and illustrates four storeys as part of the future desired character of the area which is also located on a main road and consists of a commercial strip. 2. Ms Alessi agrees that the addition will be visible from positions south of the site and in Tramway Street, however, the addition has been setback and is separated from the parapet and contributory components of the group. The "underlying" and "fundamental characteristics" of the buildings, their physical and visual relationship and congruity of the two storey facades and parapets along Botany Road will be retained. The Tramway Street facade of the subject building and its corner presentation will also remain clear. 3. Overall, and accepting that the addition will be visible, its primary scale, form and character will also remain able to be interpreted and understood. Findings 1. Clause 5.10(4) states: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. The subject building forms part of a group of buildings identified as "Commercial Building Group" that extends from 891 to 917 Botany Road Mascot in the Botany Heritage Study 1996. The Statement of Significance describes the item as "The building group is a representative example of federation free style". The building group is identified in Sch 5 of LEP 2013 as heritage item I28 of Local Significance. 2. Clause 5.10(4) requires the Court to "consider the effect of the proposed development on the heritage significance of the item". If there is a finding that there is an effect; it is necessary to determine whether the effect is of such significance that it unacceptably affects the significance of the heritage item and warrants the refusal of the application. 3. With the benefit of the site inspection and the evidence of Ms Somerville and Ms Alessi, I am satisfied that there is an effect and that effect is of such significance that it adversely affects the significance of the heritage item and warrants the refusal of the application for a number of reasons. Firstly, the earlier approval provides only two storeys in height at the boundary. This is consistent with the lowest part of the parapet and reflects the scale of the subject building. The proposal to increase this street wall height by a further storey disrupts this consistency and undermines the compatibility of the relationship between the modern additions and the existing building. I agree with Ms Somerville's comments that the new relationship of a three storey wall height on the boundary and the original building would have an adverse impact on the item's streetscape qualities and setting which are important to its heritage significance. 4. Second, and even though the heritage item comprises 13 contiguous two-storey commercial buildings in two components, north and south of Tramway Street, the subject building is in a relatively visible location from various parts of Botany Road south of Tramway Street. From these locations the proposed fourth level would be clearly visible above the heritage item and would appear to physically overpower the existing building. The proposed changes to the form of the approved third level would mean that the full height of the proposed fourth level would be seen from parts of Tramway Street and also in oblique views from Botany Road south of Tramway Street. Even though the subject building only forms part of the heritage item, the effect is significant given its visibility from the public domain. 5. Third, DCP 2013 provides a number of specific controls for carrying out work on heritage items. The controls in pt 3B.3.1 and pt 3B.3.7 provide specific guidance in assessing works to heritage items, including those in Business zones. The controls helpfully reflect the matters that are relevant in considering the question posed by cl 5.10(4). For example, Control C4 in pt 3B.3.1 under the heading General requires: C4 The building height of new development must not exceed that of the original Heritage Item and provide a transition in height to preserve and maintain an appropriate scale and the visual prominence of a Heritage Item. 1. Control C11 in pt 3B.3.1 under the heading Form and Scale requires: C10 The massing of the rear additions must be located to the rear of the Heritage Items away from the principal elevation (refer Figure 1). 1. I have taken these, and other matters into account when concluding that the proposed development adversely affects the significance of the heritage item, pursuant to cl 5.10(4) and warrants the refusal of the application. 2. Fourth, and contrary to the submissions of Mr Mantei, I find no inconsistency in considering the heritage provisions in cl 5.10 and the more general planning provisions in DCP 2013, particularly Control C7 in pt 5.2.2.6 Roseberry Neighbourhood Centre, which states: C7 The maximum height of buildings identified under BBLEP 2013 is 14 metres. Whilst a maximum of four storeys is permitted, buildings must have a maximum height of two storeys along the street frontage with a continuous parapet line, consistent with existing development. The top two stories must be setback (a minimum of three metres) from Gardeners Road and Botany Road to create articulation of the street facades. A setback to the rear is also required and is to be determined following a detailed site analysis at development application stage and must satisfy Council that the amenity of neighbouring residential properties are protected in terms of sunlight and natural daylight access, privacy and visual amenity in accordance with Figure 22. Applicants must therefore demonstrate at development application stage that impacts on the residential area are minimised. 1. There is no question of primacy or ranking of the planning controls that influence development on the site. Put simply, the heritage provisions in cl 5.10 and the more general planning provisions in DCP 2013 both apply. The heritage considerations are only an additional layer of planning controls to consider. In this case, the heritage provisions in cl 5.10 have the effect of limiting development on the site such that the full potential, as set out by Control C7 in pt 5.2.2.6 may not able to be achieved. It is not unusual for local environmental plans to have no specific controls for heritage items in areas where more general controls apply. This however does not diminish or dilute the importance of cl 5.10. Importantly, there is nothing in LEP 2013 or DCP 2013 that guarantees the maximum requirements in Control C7. 2. I also note that the height and storey controls in Control C7 are expressed as a "maximum" and there is no suggestion that the maximums can be achieved or even if the maximums are achieved, that approval would automatically follow. This is confirmed in pt 1.9 of the DCP where it states: Compliance with the provisions of this DCP does not necessarily guarantee that consent to a Development Application (DA) will be granted. Each DA will be assessed having regard to the Botany Bay Local Environmental Plan 2013, this DCP, other matters listed in Section 79C of the Environmental Planning and Assessment Act 1979 (the Act), and any other policies adopted by the Council from time to time. 1. In considering the question asked by cl 5.10(4) to "consider the effect of the proposed development on the heritage significance of the item", I have found that there is an effect and that effect is significant and warrants the refusal of the application. Bulk and scale and impact on the streetscape. 1. This is a separate issue raised by the council and was the subject of expert evidence from Mr Jeff Mead for the council and Mr Steven Layman for the applicant. This issue however, is largely if not fully subsumed by the issue relating to heritage impacts where bulk and scale and impact on the streetscape were appropriately addressed in a heritage context. This heritage context requires a more rigorous assessment regime than would exist if there was no heritage item involved. This assessment regime has found that the proposed development is unacceptable. To undertake any assessment, absent the heritage context, is only artificial and serves no practical purpose given the findings in previous paragraphs. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot is refused. 3. The exhibits are returned. ______________ G Brown Commissioner of the Court 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. Decision last updated: 01 December 2016