Touma v Council of the City of Sydney [2017] NSWLEC 1231

Land and Environment Court New South Wales

Medium Neutral Citation: Touma v Council of the City of Sydney [2017] NSWLEC 1231 Hearing dates: 26-27 April 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building, at 63 Moore Park Road, Centennial Park, is refused. 3. The exhibits, other than exhibits 1 and J, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to contributory building to heritage conservation area for a residential flat building; whether the proposal results in adverse heritage impacts; bulk and scale; amenity of apartments. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Cracknell & Lonergan Architects Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1159 Category: Principal judgment Parties: Adam Touma (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr I Hemmings SC (Applicant) Dr S Berveling barrister (Respondent)

Solicitors: Hartley Solicitors (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2016/288457

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2016/1133 for alterations and additions to an existing dwelling for a residential flat building (the proposal) at 63 Moore Park Road, Centennial Park (the site) by the Council of the City of Sydney (the Council). 2. The appeal was subject to mandatory conciliation on 25 January 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, it was terminated pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 9 March 2017 for the applicant to rely on an amended proposal. Leave was unopposed and granted by the Court at the commencement of the hearing to rely on an amended proposal and again during the hearing for the applicant to rely on a further amended proposal (exhibit J). Issues The Council's contentions can be summarised as: * The proposal has an unacceptable impact on the heritage significance of the contributory building as the retention of the front façade, part of the side walls and front section of roof with total demolition of the interior and the rear two thirds of the roof and rear half of the house does not constitute adaptive reuse, nor is it retention of a contributory building. The proposed substantial demolition of the contributory building is inconsistent with the cl 3.9.7(1) of the Sydney Development Control Plan 2012 (DCP 2012) requiring the retention of contributory buildings. * The proposal, by way of the extent of demolition, excessive bulk and scale, design and materials, will not complement the character of the heritage conservation area contrary to cl 3.9.6(2) of DCP 2012. * The eastern and western side boundary setbacks do not comply with the required building separation distances. * The proposal is inconsistent with the rear setback established by existing development to the west of the site. * The proposal represents a poor outcome for the 3 apartments at the front of the site which do not have private open space and where the front setback is communal. 1. A number of contentions were addressed to the Council's satisfaction by amendments made to the proposal (exhibit J). The site and its context 1. The site is on the southern side of Moore Park Road and to the west of the intersection of Moore Park Road and Cook Road. The site has rear lane access from Poate Lane. The site falls towards the rear. The site contains a one and two storey Federation style dwelling and a garage fronting the rear lane. The original dwelling has a contemporary two storey rear addition. 2. There is a seven storey residential flat building adjoining the site to the east, on the corner of Moore Park Road and Cook Road. 3. The Federation era dwelling to the adjoining the site to the west is currently used as a childcare centre. The proposal 1. The proposal is to retain the front façade, parts of the side return facades including the side porch and front gables of an existing dwelling and construct a residential flat building, with 3 new apartments within the envelope of the front of the existing dwelling and 9 apartments in a rear addition of 3 storeys and an attic. The proposal includes the demolition of the garage structure fronting the rear lane. Planning framework 1. State Environmental Planning Policy 65 – Design Quality of residential apartment development (SEPP 65) applies to the proposal at cl 4(1). In determining a development application, the consent authority is to take into consideration the Apartment Design Guide (ADG) at cl 28(2)(c). Development consent must not be granted if, in the opinion of the consent authority, the development does not demonstrate that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, at cl 30(2). 2. The site is zoned R1 General Residential pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R1 zone, to which regard must be had at cl 2.3(2), are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain the existing land use pattern of predominantly residential uses. 1. The site is within a conservation area (Heritage Map Sheet HER_023 LEP 2012). The site has a height of building development standard of 12m (Height of Buildings Map HOB_023 LEP 2012) and a floor space ratio (FSR) development standard of 1.25:1 (Floor Space Ratio Map FSR_023 LEP 2012). 2. Clause 5.10 of LEP 2012 relevantly includes as an objective, at (1)(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. It is a precondition to the grant of consent, at sub-cl (4), that the consent authority consider the effect of the development on the heritage significance of the heritage conservation area. 3. The locality statement for Furber Road, which includes the site, at 2.9.4 of Sydney Development Control Plan 2012 (DCP 2012) includes the following relevant principles: (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Retain and conserve heritage items and contributory buildings including the pairs and rows of Federation terraces as well as inter-war residential flat buildings. (h) Consider site amalgamation on sites of non-contributory buildings on Moore Park Road adjacent to the corner lot with Cook Road, and on Poate Road to encourage high quality medium density development that benefits from efficient, north-south oriented lots. (k) Encourage multi-unit dwellings on sites with non-contributory buildings. 1. The site is identified as 'contributing' by the Buildings Contribution Map Sheet 023 DCP 2012. The relevant DCP 2012 provisions in relation to heritage are as follows: 3.9.6 Heritage conservation areas Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area. The contribution of these buildings is based on studies carried out by heritage consultants for the City. New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above. (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area. 3.9.7 Contributory buildings Contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. They have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. They are buildings: • from a significant historical period and are highly or substantially intact; or • from a significant historical period and are altered yet recognisable and reversible. (1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances. (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; (b) respect significant traditional or characteristic subdivision patterns; (c) retain significant fabric; (d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing; (e) remove unsympathetic alterations and additions, including inappropriate building elements; (f) use appropriate materials, finishes and colours; and (g) respect the pattern, style and dimensions of original windows and doors. (4) Where an addition to the building is proposed, significant external elements are to be reinstated. (5) Foyers or other significant interior features, including hallway detailing, panelling and significant staircases, designed to be visible from the street, are to be retained especially where they form part of the building's contribution to the character of the heritage conservation area. 1. The Statement of significance for the Furber Road Conservation Area (Furber Road CA) from the State Heritage Inventory is as follows: The Furber Road Heritage Conservation Area has historic significance as a substantially intact subdivision developed from the Federation Period through the Inter - war period. Its development reflects its controversial subdivision history of disputation between the State Government, the City Council and local residents (both nearby and within the subdivision). The area is of aesthetic significance as it possesses two distinct periods of residential development (Federation and Inter- war) with varying scale (1-2 storeys Federation,1, 2 and 3 storey Inter-war period) that contributes to the character of the area. 1. The maximum number of storeys for the site is 3 storeys. DCP 2012 includes, at 4.2.1.1, that the maximum may only be achieved where it can be demonstrated that the proposed development reinforces the neighbourhood character, is consistent with the scale and form of surrounding buildings in heritage conservation areas and does not detract from the character and significance of the existing building. 2. The objectives for building setbacks in DCP 2012 at 4.2.2 include an objective to be consistent with setbacks in heritage conservation areas. Public submissions 1. Representatives of the neighbouring childcare centre at 61 Moore Park Road provided evidence at the commencement of the hearing on-site and the Court and the parties viewed the site from the playground at the rear of the childcare centre. They object to the bulk and scale of the proposal and the inadequate side setback of the proposal to the shared boundary. Expert evidence 1. The applicant relied on the expert evidence of Mr Robert Staas (heritage), Mr Anthony Betros (planning) and Ms Karla Castellanos (urban design). The Council relied on the expert evidence of Mr John Poulton (heritage), Ms Erin Murphy (planning/urban design) and Ms Julie Pressick (planning/urban design).