Land and Environment Court New South Wales Medium Neutral Citation: O.T.A.R Investments Pty Ltd v Burwood Council [2018] NSWLEC 1272 Hearing dates: 28, 29 May 2018 Date of orders: 07 June 2018 Decision date: 07 June 2018 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The applicant is granted leave to rely on amended plans. 2. The appeal is allowed. 3. Development Application DA 2017/56 for alterations and additions to a heritage listed police station and court house for use as a boarding house at 24 Burleigh Street, Burwood is approved subject to the conditions set out in Annexure "A". 4. The exhibits are returned except for Exhibits A, C, D and 1. Catchwords: DEVELOPMENT APPLICATION: Alterations and additions to heritage buildings for a boarding house; heritage impacts of height; no parking provided; objections Legislation Cited: Burwood Development Control Plan 2013 Burwood Local Environmental Plan 2012 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy – Affordable Rental Housing Cases Cited: Otar Investments Pty Ltd v Burwood Council [2014] NSWLEC 1252 Category: Principal judgment Parties: O.T.A.R Investments Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: J Reid, (Applicant) M Wright, SC (Respondent) Solicitors: Landerer & Company (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2017/262440 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal lodged under then section 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Burwood Council (the Council) of Development Application 2017/56 (the application). The application proposes alterations and additions to the former Burwood Police Station and Courthouse, including a new building addition, for the purposes of a boarding house. The site is at 24 Burleigh Street, Burwood. 2. The site has an area of 921.5m² and frontages of 42.595m to Burleigh Street to the west, 21.67m to Elizabeth Street to the north and 21.665m to Belmore Street to the south. 3. Both buildings on the site are listed heritage items and single storey although appear in scale as one and half to two storeys. The buildings currently contain commercial uses including a café. Space exists on-site for two cars accessed from a driveway to Elizabeth Street. 4. Adjoining the site to the east is the new Burwood Police Centre which is 3-4 storeys. As part of the development of the new Police Centre in 2009, alterations were undertaken to the former police station and courthouse (the heritage buildings). Further to the north at 12-22 Burleigh Street are 2 storey terraces which are also heritage listed. 5. The site is situated within the Burwood Town Centre and is zoned B4 Mixed Use under the provisions of the Burwood Local Environmental Plan 2012 (the LEP). Boarding houses are permitted in the B4 zone with consent. 6. Under the LEP, the maximum permissible height is 70 metres. The proposed height of the amended proposal is 13.72m. The maximum permissible floor space ratio (FSR) is 4.5:1, or 3:1 for residential development, with the proposed FSR substantially less than this. Building height plane controls also apply and are complied with. 7. Clause 5.10 of the LEP deals with heritage conservation. The objectives of cl 5.10 relevantly include the following: (a) to conserve the environmental heritage of Burwood, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. 1. Sub-clause 5.10(4) states as follows: (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. Development for the purposes of the boarding house is also subject to the provisions of State Environmental Planning Policy – Affordable Rental Housing 2009 (the SEPP). 2. The site is within 260m of the Burwood Railway Station and closer to bus stops on Burwood Road. The proposed development therefore meets the requirements under the SEPP for boarding houses to be in an accessible area. 3. Development on the site is subject to the provisions of the Burwood Development Control Plan 2013 (the DCP). The relevant DCP provisions include those for heritage buildings and onsite parking as well as controls for new residential development. The residential development controls are met including the minimum front setback of 3m to Burleigh Street. Lesser setbacks to Belmore and Elizabeth Streets are as a result of retaining the existing heritage buildings. The proposed new addition is setback from all adjoining streets being effectively behind these buildings. 4. Development in the area comprises a range of uses and forms ranging from low to mid-rise residential development to the south fronting Belmore Street, to mixed use development to the west, lower rise former terraces to the north and high rise mixed use development to the north east. 5. The application as originally lodged comprised 29 boarding rooms and a manager's room. No on-site car parking was proposed although 28 bicycle parking spaces and 6 motor cycle spaces were provided. The application proposed conversion of the two heritage buildings for use as a boarding house with additional accommodation proposed in a three level addition in the north eastern corner of the site. 6. The application was accompanied by a Statement of Environmental Effects (SEE) and a Heritage Impact Statement (HIS) (Exhibit C). Both documents referenced former proposals for the site which had been refused due to their heritage impacts including for an 18 storey mixed use development. 7. The HIS states that the significance of the two heritage buildings is set out on the State Heritage Inventory as follows: This pair of buildings are of local significance for their Federation Architectural details and for their association with the suburban development of Burwood Municipality. 1. The HIS notes that the rear of the former police station was removed with the new Police Centre was built in 2009 as part of a new Justice Precinct to the east of the site. The HIS states that the two heritage items are overwhelmed by the new development in the Justice Precinct and that the proposed addition would reduce the juxtaposition of the heritage items from this new adjoining development. In particular, the application proposes to retain both heritage buildings in a manner that permits them to be understood as surviving heritage components on the site and as a civic pair, and will provide a neutral backdrop to screen 'the intrusive façade' of the adjoining Police Centre. 2. The HIS claims the development was 'in response to criticisms of earlier proposals for the site to achieve a viable development that does not unreasonably detract from the surviving heritage values of the retained structures and to allow for their continued conservation and maintenance' (p26). Finally, the HIS states that the development provides incentives to preserve the heritage items, does not restrict any views to the items and that, by proposing the new addition at the rear, would enable the retention of substantial landscaped setbacks to Burleigh and Belmore Streets. Proposed conservation works include removing a later canopy addition in front of the courthouse and reinstatement of external wall features. 3. The application was notified and three objections were received. One was from the owner of an existing business located within the former police station who raised concerns with the impacts on the heritage buildings and their setting as well as requiring their business to relocate. 4. The remaining two objections were from owners of properties in Belmore Street. The first raised concerns with the lack of on-site parking and potential traffic impacts given the narrowness of the streets. Concern was also raised at the heritage impacts associated with modifying the police station building and the new addition. The objector notes the decision of the Court in Otar Investments Pty Ltd v Burwood Council [2014] NSWLEC 1252 ("Otar Investments") in which O'Neill C found that the development potential of the site was very limited as it is constrained (by the heritage items) which would have been evident when the applicant purchased the site. Therefore the retention and conservation of the heritage items being reliant on an economically viable use of the site, as argued in the HIS, was not relevant. References to the heritage value of the existing buildings on the site in that decision were also quoted by the objector. 5. The second objector was an elderly resident who raised a concern with the type of residents that may be attracted to the boarding house who could adversely impact existing residents of his building. 6. In responding to the appeal, the Council lodged a Statement of Facts and Contentions (SFC) outlining grounds for refusal of the application. These included the inadequacy of solar access and private open space for the boarding house, the size of the rooms, and the lack of parking. However, the majority of the contentions related to the impact of the development on the two heritage buildings and the failure to appropriately respond to the heritage significance of these buildings. 7. Concerns included impacts to the original fabric associated with proposed demolition and internal works and with the height of the proposed addition which cantilevered over the former police station and was considered to dominate both heritage buildings given their lower height and scale and their suburban character setting. 8. The Council contended that the development should be lower, rather than higher, than the adjacent new Police Centre and provide a transition to this building otherwise an appropriate setting for the heritage buildings would not be retained when viewed from key viewpoints in surrounding streets. 9. The façade treatment of the addition was also of concern with the Council arguing it would result in a complicated backdrop detracting from the heritage items. 10. The appeal was the subject of conciliation under section 34 of the Land and Environment Court Act 1979. Following termination of the conciliation, leave was granted by the Court to amended plans which sought to address the contentions. 11. In summary, the amended plans reduced the width, bulk and scale of the new addition resulting in a reduction in the number of boarding rooms from 28 to 23, with the number of bicycle and motor cycle spaces reduced accordingly, and improvements made to the facade treatment and landscaped setting. The cafe on the corner of Belmore and Burleigh Streets was retained. 12. The amended plans addressed the Council's concerns with regard to the provision of private open space, solar access, and accessible rooms and in terms of the works proposed to the existing heritage buildings. 13. The applicant argued the amended application improved the amenity of the proposed boarding house and the impact on the heritage items by better reflecting the heritage setting and context of surrounding development. The new addition was setback further and narrowed to remove the cantilevered element albeit the number of upper levels increased from 3 to 4 (being from 4 to 5 storeys). It was no longer proposed to undertake works to the existing buildings opposed by the Council instead proposing only restoration works. 14. As modified, the development complied with all of the requirements of the SEPP including height, FSR and room sizes. Compatibility with the character of the local area required under clause 30A of the SEPP was not in contention. 15. However, the Council maintained a concern with the lack of parking provided and with the impact of the new addition on the existing heritage buildings. 16. Conferral was undertaken between heritage experts, planners and traffic engineers for the parties with Joint Expert Reports filed for the hearing. 17. The hearing commenced on site where the Court heard from two objectors from an existing business within the former police station. They stated that a number of community members had spoken to them of their concerns with the development, that they themselves were concerned with proposed alterations at the rear of the historic police station building, and with potential conflict and safety issues given the transporting of prisoners to the adjoining Police Centre. Further, there was a general concern about the loss of heritage buildings in Burwood and with the extent of redevelopment (which meant there was already enough residential accommodation), as well as the loss of on-site parking. 18. The Court viewed the site from all three adjoining streets in the presence of the parties and their experts. The Council advised that the police had been contacted for comment but had only objected to the original application on the basis of an overlooking concern which had now been addressed. The heritage experts confirmed that no changes to original fabric were proposed in the amended application, as contended by objectors, and in fact improvements to the buildings were being undertaken by removal of later elements. They also agreed that the landscaping now proposed improved the setting of the heritage items on the basis of revised landscape plans. 19. The applicant also advised that an offer had been made by way of a Voluntary Planning Agreement (VPA) to provide a monetary contribution in lieu of the 6 car parking spaces the Council had indicated would be required for the boarding house. This offer was in line with the Council's DCP which facilitated such an arrangement in the Town Centre. The Council confirmed this but required a contribution for 7 car spaces if the café remained. As a consequence, the applicant sought and was granted leave to amend the application to convert the café to an additional boarding room. 20. Accordingly, the Council agreed that a contribution for only 6 spaces would be required. Subject to an agreed condition requiring the offered VPA on these terms, the Council's contentions in terms of parking were resolved. 21. Following the site view, the parties advised the Court that the heritage experts, Mr Davies for the applicant and Ms Hill for the Council, believed an agreed position could be arrived at in terms of a façade treatment for the new addition which would be acceptable to both parties. The hearing was briefly adjourned and the façade treatment resolved subject only to an agreed condition of consent. The Council was therefore satisfied that the simple planar façade proposed would be a desirable neutral backdrop for the heritage buildings. 22. The expert planners in their Joint Report (Exhibit 4) agreed that there is likely to be further intensification of development in the vicinity of the site as permitted by the planning controls including up to 70m in height for surrounding properties to the north (including directly opposite the site) and up to 30m for land to the south of Belmore Street. Further, that there was no established consistent existing character of buildings in the area with buildings varying from 2 storey terraces to 9 storey apartment buildings and up to 16 storeys north of Elizabeth Street. 23. Similarly the form of buildings in the area varied with dominant forms including the new Police Centre with minimal setbacks and articulation, apartment buildings built to the street alignment, and other buildings setback within a landscaped setting including on the appeal site. 24. The planners also agreed that the siting and positioning of the proposed addition was appropriate, as were the modifications undertaken to the ground level which improved the setting of the heritage items, and that the adaptive reuse of the heritage buildings as a boarding house was an appropriate use. 25. The heritage experts agreed that positive aspects of the proposed development included the conservation works proposed to be undertaken and that the addition would screen the side elevation of the new Police Centre. The only remaining issue between the parties was the height of the proposed addition. In essence, the Council sought one less level than was proposed on the basis of the heritage impacts associated with the additional floor, in particular that it would dominate the heritage buildings. 26. In determining the significance of the heritage buildings, Mr Wright for the Council referenced Otar Investments, which dealt with an application involving the demolition of the former courthouse and was refused, in which O'Neill C states as follows: 39 I accept and prefer Ms Hill's evidence that the former courthouse is of local heritage significance. The former courthouse is of heritage significance as a representative example of the work of the then Government Architect, Walter Liberty Vernon and as part of the group of purpose built suburban courthouses and police stations designed by the office of the Government Architect under the direction of Vernon. The demolition of the rear portion and the alterations and additions to the former courthouse have not extinguished its heritage significance and it remains a good example of the Federation Arts and Crafts style for a suburban civic building. 1. It was agreed that one of the important viewing locations of the heritage buildings was the corner of Elizabeth and Burleigh Streets where the new addition would be seen behind the former police station. From this location, the addition would screen the side elevation of the Police Centre, other than the front portion due to the proposed setback. 2. Excluding the height of the lift overrun, which it was agreed would not be visible from the corner or from surrounding streets, the proposed addition would be 1.88m higher than the parapet height of the new Police Centre, and higher again than the gutter of its side elevation. 3. Ms Hill argued that this height, along with the scale proposed, would dominate the former police station and courthouse. It would not act as a transition to these heritage items being twice the height of the former police station. 4. Instead she supported the proposed addition at one storey lower. This had the benefit of screening the side elevation of the Police Centre whereas extending the addition to a greater height by a further storey would be 'problematic'. In oral evidence, Ms Hill elaborated on her concerns stating the height in the location proposed would add additional bulk in close proximity to the heritage items. 5. She argued that the role of the new addition as a transitional building was to reduce the impact of the new Police Centre by screening it as a backdrop to the heritage items. However, there was no benefit in increasing the height given adequate screening was achieved one storey lower. The taller the new building in close proximity to the heritage items the more she considered it would 'crowd in' these items. 6. Mr Davies noted that, other than the top storey, the proposal as amended and proposed to be conditioned, was acceptable to the Council from a heritage perspective. He accepted that one level lower would also be acceptable as a heritage outcome as it still screened the side of the Police Centre, but he considered the proposed height to be equally acceptable from a heritage perspective. He did not believe that there was any basis for the new addition to be of a lesser height than the Police Centre. 7. He reiterated that the amended proposal increased the setback of the new addition and removed the cantilever above the police station roof. The experts had agreed on a simple planar façade as an appropriate backdrop to both heritage buildings whilst screening the 'unfortunate and ill-conceived design' of the new Police Centre. Whether the proposal was one storey higher or not, in his view, made no difference to the impact on the heritage significance of the items or of the site. 8. In essence, Mr Davies argued that it was necessary for the Council to articulate why the additional floor was not acceptable and how it had an unacceptable adverse heritage impact when the development overall created a well scaled backdrop to the heritage buildings and screened the agreed inappropriate adjoining development. The top storey did not change these positive outcomes. He argued the development as now proposed would not impact on the ability to view, understand or appreciate the heritage items or their setting. 9. Mr Davies argued that a transitional building is often used to soften the edges of precincts where there is a scale change allowed. However, in this situation, the heritage buildings are the smallest structures in the locality and it was unnecessary to have an intermediary element between them and the new Police Centre as no transition, per se, was required or appropriate. The adjoining Police Centre building had no merit or value and did not provide a good backdrop to the heritage buildings. Therefore, the proposed addition was appropriate in adding a mediating and balancing structure between the heritage items and the new development to the east and would be an appropriate backdrop largely removing the Police Centre from view. A reduction of one level would not change that outcome. 10. In Mr Davies' view, the only issue was whether or not the scale and design of the proposed development was appropriate as a backdrop to the heritage buildings and he concluded that it was particularly given the height and scale of backdrop buildings elsewhere in the Town Centre. 11. There was some discussion between the heritage experts on what the suburban character of the heritage buildings actually meant particularly given their location now within the Burwood Town Centre. However, it was agreed that it related to the style and context of the buildings when they were developed. Mr Davies argued the issue was how to best integrate these two remaining heritage elements in a setting that is now commercial and urban rather than suburban. The scale of surrounding development is generally greater than the two heritage buildings and the proposed development was appropriate in this context. 12. A set of agreed conditions was filed with the Court. These include requiring a Conservation Works and Management Schedule and a Cyclical Maintenance Plan for both heritage buildings with works to be undertaken prior and subsequent to occupation of the boarding house. A positive covenant is to be created over the site pursuant to section 88B of the Conveyancing Act 1919 requiring the ongoing works under the Maintenance Plan to be undertaken. Findings 1. As a result of the modifications undertaken to the application, all contentions of the Council were resolved other than the proposed height of the new addition, and specifically whether it was one level too high. 2. The parties agreed that the new adjoining Police Centre, and works to the heritage items associated with that building's construction in 2009, had adverse impacts on the two heritage items including on their setting. 3. The location of the new addition and the resultant screening of the side elevation of the Police Centre was agreed to be a positive aspect of the proposed development. The Council's evidence however, was that the addition was not required to be to the height proposed to achieve this outcome which could be adequately achieved with one less floor. 4. However, I agree with the applicant that the development must be assessed in terms of its impact on the heritage significance of the items and their setting, not whether there could be a better outcome or that the only supportable outcome was one which achieved the objective of adequately screening unsympathetic adjoining development. 5. The Council agreed that there were other positive aspects to the development in terms of the heritage buildings. These included the removal of later additions, commitment to further conservation and reinstatement works, modifications to the application to avoid any further removal of original fabric, and retaining and enhancing the landscaped setting. 6. On the evidence before me, I could not conclude, having regard to clause 5.10 of the LEP, that the development as amended, would have an adverse impact on the heritage significance of the items on the site which warrants refusal. To the contrary, it would have a positive impact not only in terms of screening the unsympathetic Police Centre adjoining but as it proposes adaptive reuse and appropriate works to the heritage buildings which will increase the appreciation of these buildings, improve their setting and assist in their long-term retention. 7. It may be, and the applicant's expert accepted, that a lower addition could also have a positive impact on the heritage significance of the items. However, this is not the appropriate test to apply nor what the application sought. Arguably also a lower building would retain the prominence of the Police Centre building which all parties agreed presented an unsympathetic facade and backdrop to the heritage items. 8. The proposed addition is substantially lower than previous applications for the site and than the permissible height under the LEP. It has a proposed height of 13.72m where the maximum permissible height of the site and surrounding sites is 70m. These adjoining sites have the potential to be developed into significantly higher buildings in the future, or already contain high rise development. They are not constrained by heritage items, are also located in the Burwood Town Centre and benefit from the planning controls which apply. 9. The experts agreed that development in the area was diverse both in building form and height and that there is no consistency in the streetscapes in which the existing heritage buildings are located. The planning experts also agreed that the proposed adaptive reuse of the buildings for a boarding house was an appropriate use and the heritage experts agreed on a facade design for the addition as an improved backdrop to the heritage items relative to the Police Centre which currently provides this backdrop. 10. At only some 1.88m higher than the parapet of the Police Centre, and set back behind the police station and next to the Police Centre with a neutral façade, I do not accept the addition would dominate the heritage items, 'crowd them in', or be unsympathetic to them. I also fail to see how requiring removal of a level which reduces the height to below the parapet height and even the side elevation of the Police Centre would improve the setting of the items. 11. The applicant modified the proposal in response to the Council's concerns in terms of the bulk, scale, siting and façade, including by significantly narrowing the proposed addition, removing the cantilever over the former police station and setting the addition further back. Part of the floor space in the former proposal was instead relocated to an additional level which, whilst 1.88m higher than the Police Centre parapet, screens an unsympathetic development adjacent to the heritage items currently detracting from their backdrop and setting. 12. Whilst accepting the site is constrained, I consider it is both unreasonable and unnecessary to also require the removal of one level which would make the addition at least 1m lower than the parapet and marginally lower than the side elevation of the Police Centre which the Council is keen to screen. 13. On the evidence before me, I therefore can not conclude that there would be adverse impacts on the significance of the heritage items from the amended addition as proposed. It is in a recessed location supported by the experts behind the heritage items and will have a façade treatment also supported by the experts for a backdrop building. Despite the Council's concern that the addition at 5 storeys would dominate the heritage items given its width, setback, location and context, I fail to see how this would be the case. 14. Conversely, as I have already indicated, there are agreed benefits arising from the development, not only in terms of screening the Police Centre side façade, but in the proposed works and required ongoing conservation commitments to the heritage items including to their visibility, setting and retention. 15. The landscaped setting of the heritage items was agreed to be appropriate and enhanced with landscaping largely screening the new addition from Belmore and Burleigh Streets. The visibility of the new addition will largely be restricted to Elizabeth Street including at the corner with Burleigh Street. However, in this context, the new Police Centre dominates with this domination to be reduced by the proposed addition. The removal of unsympathetic elements to the Burleigh Street frontage will also improve the setting of the items to that street. 16. In Otar Investments, Commissioner O'Neill agreed at [42] that it was a critical failing that the conservation and adaptation of the two heritage buildings was not tied to the development of the new Police Centre as had been recommended by the Council's heritage advisor. In this application there is the opportunity to rectify that failing with adaptive and integrated reuse of both buildings for an appropriate use which respects the setting and fabric of the heritage items and links, through agreed conditions of consent, the approval of the boarding house to further conservation works and ongoing maintenance. 17. I agree that the site is constrained and with the heritage values ascribed to the buildings in Otar Investments. However, in my view, the amended application reflects an appropriate response to these constraints in terms of the proposed use of the buildings and in the height, location, design and scale of the addition proposed which will be a superior building outcome to that which has already occurred adjacent to the site with the Police Centre, agreed by all to have compromised the heritage values and visual setting of the site's heritage items. 18. In terms of the objectors, I was satisfied that their concerns with the alterations to the heritage items were unfounded, that the proximity to prisoners associated with the adjoining Police Centre was not a concern articulated by the police, and that their general concerns about the extent of development in Burwood is a function of the planning controls that apply and not a matter that can be altered by this application. 19. The Council was satisfied with the parking arrangements proposed which will result in a contribution for Town Centre parking elsewhere based on the full parking requirements of the SEPP. These could not be met onsite given the constraints of the retained heritage buildings and, had they been, they could not have been a basis for refusal. 20. Finally, the character of the future occupants of the boarding house is a matter of speculation and not a basis for refusing the application. 21. In summary, the development as amended is, in my view, an appropriate response to the site's constraints, controls, location and context and will not have an adverse impact on the heritage significance of the heritage items, their setting or views which would warrant the removal of one level being the only issue remaining in contention between the parties. I was not persuaded that removing this level was necessary or even appropriate in order for the development to meet the objectives or provisions of clause 5.10 of the LEP. 22. Given all of the other relevant and referenced planning controls of the SEPP, the LEP and the DCP are met, there is therefore no basis to refuse the application and it is approved accordingly with the conditions of consent imposed as agreed between the parties. Orders 1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans. 2. The appeal is allowed. 3. Development Application DA 2017/56 for alterations and additions to a heritage listed police station and court house for use as a boarding house at 24 Burleigh Street, Burwood is approved subject to the conditions set out in Annexure "A". 4. The exhibits are returned except for Exhibits A, C, D and 1. ............................ Jenny Smithson Commissioner of the Court Annexure A (724 KB, pdf) 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: 07 June 2018