Posted on October 28, 2014 by

Heritage impact planning principle repealed

In Comino v Council of the City of Sydney,  the Land and Environment Court has repealed the planning principle relating to development affecting, or affected by, the curtilage of an item of heritage significance. The Court held that the planning principle in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 should no longer apply and rather indicated that a Statement of Heritage Impact should evaluate proposals against the principles of the Burra Charter.

The subject site was in the Pitt Street Mall Special Character Area.

On one side of the site was the heritage listed ‘Liverpool Arms Hotel’, and on the other side was 400 George St, a contemporary building that incorporates the heritage listed ‘Sydney Arcade’ facade.

The DA proposed the replacement of the ground floor facade cladding with aluminium cladding, and the replacement of metal mesh screening to the facade of the existing building above the awning with new fibre cement sheet cladding and painted render, resulting in a solid screen proud of the existing facade.

In Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 (here), the Court previously held that there were four main principles that apply to an assessment of impact in a heritage context:

  1. new development should not unreasonably reduce the public views of the heritage item and it’s setting;
  2. new development should not visually dominate the heritage building;
  3. new development should not unreasonably overshadow the heritage building; and
  4. new development should relate to the character and form of the heritage item.

However, in Comino the Court said that ‘[T]he Commissioners have collectively concluded that the heritage planning principle, ‘Impact of adjacent development’, should no longer be applied.’ The primary shortcoming of the principle was identified to be that the principle did not ‘engage with the long established methodology of defining a heritage curtilage’ but only approached the assessment from the perspective of the new development’s impact on the heritage item.

The Court considered that a more holistic approach was required that identifies ‘constraints and opportunities in relation to the assessment of significant values and the setting of the heritage item, based on the definitions of terms in the Burra Charter‘ and [most relevantly, Article 8].

‘Conservation requires the retention of an appropriate setting.  This includes retention of the visual and sensory setting, as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place.

New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not  appropriate.’

The Court held that the assessment against the Charter should be contained in a Statement of Heritage Impact  (SHI).  At [29]:

[A] SHI requires research, analysis and when appropriate, the identification of visual catchments and significant views and vistas, which should inform the proposal’s siting, envelope and design development and finally, the SHI must assess what impact the proposal will have on the heritage significance of an item and what measures are proposed to mitigate any impacts. Such an analysis is specific to the context and cannot be appropriately or adequately substituted by a planning principle’ [emphasis added].

Applying this approach , the Court found that the construction of a solid screen beyond the facade of the adjoining Liverpool Arms Hotel would not be suitably deferential to it’s immediate context and would obstruct oblique views of the facade of the heritage item.  This also made the proposal inconsistent with the design excellence provisions in the Sydney Local Environment Plan 2012 (which instructs the consent authority to consider the how the proposed development addresses ‘any heritage issues’ (cl. 6.21(4)(d)(iii)).

In essence, the Burra Charter will now be the primary document that the Court will have regard to when assessing the impact of new development on a heritage setting.

The proposal was refused. The decision in Comino can be read here.