Alex Roth Trading as Roth Design and Project Management v Waverley Council

[2006] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION:

Alex Roth Trading as Roth Design and Project Management v Waverley Council [2006] NSWLEC 208

PARTIES:

APPLICANT
Alex Roth Trading as Roth Design and Project Management

RESPONDENT
Waverley Council

FILE NUMBER(S):

11496 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Heritage item, addition of 2nd storey and a 2nd two storey house and subdivision of property, internal alterations, demolition of rear section of heritage house, demolition of original garage and driveway, heritage significance of item, and its setting, streetscape, privacy, overshadowing, minimum setbacks for detached dwellings

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development

DATES OF HEARING:

09-10/03/2006 and 13/03/2006

 
DATE OF JUDGMENT: 

05/02/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, barrister
Instructed by: Ms A Kiely
Of: Cowley Hearne

RESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 May 2006

11496 of 2005 Alex Roth Trading as Roth Design and Project Management v Waverley Council

JUDGMENT

1 This is a class one appeal No. 11496 of 2005 between Alex Roth trading as Roth Design and Project Management v Waverley Council in regard to the deemed refusal of consent for additions and alterations to a heritage item house and the erection of a second two storey house on the same property at No. 249 Birrell Street, Bondi. The proposal includes the subdivision of the land under Torrens Title to give each house a separate block.

2 The locality is zoned Residential 2(a) Low Density under the Waverley Local Environmental Plan 1996. There are a number of three storey walk-up flats dating from perhaps the 1960’s or 1970’s, but the majority of properties are detached dwellings of Edwardian, Queen Anne and Late Victorian, Federation and Californian bungalow styles. Adjoining and adjacent property on the west are No. 245 and 247 and on the east No. 251 Birrell Street. All are single storey Federation style houses some with alterations and additions. No. 253 is a three storey block of flats.

3 At the rear of the subject property is No. 70 Belgrave Street, a single storey house and at No. 68 a two storey brick house.

4 Number 247 Birrell Street has one wall of its living room on the west boundary of the property. The eave has been cut back to avoid any overhang.

5 Number 249 comprises two existing lots. Lot 3 DP 455105 is a narrow lot 4.95 m wide that runs the length of the property alongside No. 247. It contains the existing front fence, the brick driveway and the brick garage. Near the rear corner, according to the neighbour in No. 68 Belgrave Street, a wine press was installed in the 1950’s. There are a number of fruit trees across the rear of the property on both allotments.

6 Lot 4 DP 2397 of the subject property has a frontage of 12.19 m and a depth of about 41 m giving a total site area for both lots of 701 sq m. The site falls about 1 m from the street to the rear boundary. Birrell Street rises to the west uphill and there is about 0.5 m rise across the width of the site.

7 In front of the existing house is an imposing Norfolk Island pine tree.

8 The property is listed under Sch 5 of the Waverley Local Environmental Plan as a heritage item and part of the dispute between the parties is whether the listing applies only to the house or to the whole property or only to Lot 4 DP2397. The title of Lot 3 was issued in 1997 under Torrens Title and prior to that was part Lot 3 DP 2397.

9 There was speculation that Lot 3 may have been acquired by No. 249 at some time early in the life of the house so as to erect the garage and driveway. There was some speculation the garage was actually a stable before it became a garage and had been erected with the house on No. 249.

10 The issues are:

Heritage

1. The proposed development should not be approved as it does not comply with the Specific aims for heritage conservation contained in Waverley Local Environmental Plan 1996 ("WLEP"), with respect to the impact of the proposed development on the heritage significance of the existing heritage house on the site - Clause 3 (6)(a), (d), (e) and (f) of WLEP.
Particulars:

(a) The heritage house on the site is recorded in the Sands Directory in 1897 and is known as "Carthona" (hereinafter referred to as Carthona).

(b) Carthona is 108 years old and stands in a set of Federation cottages.

(c) Council's 1990 heritage study listed Carthona as a "very good example" of intact local heritage and the house itself is in excellent condition.

(d) Council's recent heritage study confirmed Carthona as a good example and added neighbouring cottages (241 and 247 Birrell Street) to the list.

(e) Carthona sits in a traditional intact suburban allotment, complete with orchard, driveway and garage.

(f) The garage is a relatively rare, tuck pointed brick and skillion roofed coach house.

(g) The proposed new dwelling on the adjacent allotment, attached to the south wall of Carthona will have a substantial adverse impact on the heritage item.

(h) The proposed re-configuration of the interior of Carthona will render the building no longer a good local example of an intact Federation cottage.

(i) The proposal is to completely demolish the rear wing of Carthona including the attached outbuildings to the rear, which have not been assessed for historical and social value. It will no longer be a good example of an intact Federation cottage.

(j)) The two dwellings as viewed from the south completely ignore the importance of the heritage item, which would become indistinguishable from any other new building.

2. The proposed development should not be approved as it does not comply with Part 4 - Heritage Provisions of WLEP, with respect to the impact of the proposed development on the heritage significance of Carthona.

Particulars:
(a) Clause 45(4) of the WLEP provides that Council may refuse to grant consent until it has considered a conservation plan that fully considers the impact of the proposal on the heritage significance of the item and its setting, and:
(i) The plans of the existing dwelling are inadequate
(ii) There is no fabric surveyor historical or social survey of the existing house and garden.
(iii) There is a lack of adequate detail of what is to be kept of the heritage item and a restoration plan for the item.
(b) The re-subdivision removes the curtilage from the heritage item.
(c) The re-subdivision slices through the heritage item and would result in a portion of the heritage item being demolished.
Overdevelopment
3. The proposed development should not be approved as it does not comply with Waverley Development Control Plan (DCP) No. 2 - Dwelling House and Dual Occupancy Development and results in the over-development of the site:
Particulars:
(a) The proposed new dwelling is attached to the heritage item but is not a dual occupancy and therefore minimum setbacks must apply.
(b) From the rear (south) the proposed dwelling and the existing dwelling read as one resulting in the proposed development appearing bulky and out of scale.

Public Interest

4. The proposed development should not be approved as it is not in the public interest and will create an unacceptable precedent. The proposed development should not be approved having regard to the submissions received by Council.

11 At the hearing on site evidence was heard from:

• Ms C Creswell and Mr C Tuckfield of No. 70 Belgrave Street
• Mr T Panebianco of No. 68 Belgrave Street
• Ms S R Barsejhian of No. 66 Belgrave Street
• Ms M Davis and Mr G Davis of 247 Birrell Street
• Ms M Kapsalis, Mr L Kapsalis ad Mrs I Kapsalis of No. 251 Birrell Street and
• Mr T McKenney of 245 Birrell Street.

12 The respondent’s expert heritage architect, is Mr I Stapleton.

13 For the applicant Mr B Lonergan is the expert heritage architect. Mr A Roth the architect and applicant explained the plans and aspects of the existing buildings on site.

14 There were arborists reports also, but in the end these were not tendered. Whilst on site, the various fruit trees were identified within the band of trees on the rear boundary of the property. It was agreed and verified by the neighbour at No. 68 Belgrave Street that most of the fruit trees had been planted by an owner of the subject property dating from about the 1950’s. A few fruit trees including one dead olive tree probably dated before the 1950’s.

15 There was no dispute between the parties about the method of insuring the retention and health of the Norfolk pine at the street front.

16 There arose in evidence the streetscape and heritage impacts of the removal and relocation of the existing drive entry and brick paved driveway. This includes removal of some substantial existing vegetation and the existing brick front fence. The latter had a lean on it that the parties agreed could be remedied. Mr Stapleton saw value in the existing vegetation in the backyard and the size of backyard and the side yard as being important as part of the character and sense of place of the heritage item.

17 I should note the references to the heritage item as “Carthona” in the issues. The name appears on the statement of significance. The heritage experts agreed in joint conference and oral evidence that name is a mistake as the house had been called “Wynola” dating from 1901 but never called “Carthona”.

18 There is another house further west on Birrell Street called “Carthona” but that was not shown to have any relevance for this hearing. The experts agreed the nomination of the subject property as a heritage item and the statement of significance related to the subject site and included on the statement of significance a picture of the subject site.

19 The confusion about how much of the property is heritage listed arises out of the published map of heritage items only colouring Lot 4 in yellow. However, the schedule in the local environmental plan lists No. 249 as an entity being the heritage item. Lots 3 and 4 have been one property with a succession of owners since 1908.

20 Mr Lonergan agreed that the apparent intention of the heritage listing had been to list both lots.

21 In order to understand the heritage issues I state the significance as recorded:

Description: Very good Federation cottage.

Standard: Asymmetrical form. Tuck pointed brick. Verandah roof continuous with main roof. Marseilles pattern tiles with ridge capping and finials. Outstanding flying gable over canted bay, decorated in timber and roughcast. Leadlight sash windows (not original) with moulded sills. Turned timber verandah posts. Decoration lost to frieze? Also of note is end glazing to verandah, in multi-paned coloured glass. Minor alterations only. Brick fence is sympathetic if not original.

History: First appeared in the Sands Directory in 1897. Known as “Carthona” until about 1914.

Significance: Good local example of a Federation cottage, in excellent condition. One of the best old houses in the area. Local significance.

22 The reasons for listing were noted on the statement as historical, architectural and aesthetic.

23 Mr Stapleton had found “Wynola” was first listed in the Sands Directory in 1901 and believes that is the date of construction not 1897. This is taken in part from a real estate sales map showing the name Wynola on the subject and the name Merton on No. 251 next to the site.

24 Mr Stapleton noted that prior to the subdivision of other large properties in the street, the house “Carthona” now at No. 225 Birrell Street had once had the same street number as the subject site, and the 1990 heritage study had somehow mixed the two.

25 There could be no confusion of houses because the official description of the subject heritage item is particular to Federation cottage design. “Carthona” is a two storey Victorian Italianate style and quite different to the subject property.

26 Mr Stapleton had drawn a sketch of the total property showing the garage, the driveway, the front fence, the pedestrian entry path, the original brick lavatory by the back fence, a derelict garden shed, and the concrete tubs alleged to be with the wine press and the fruit trees and other vegetation. He regarded the total property as the heritage item including its gardens and outbuildings that illustrated the house and lifestyle of its period.

27 The garage he saw as having considerable importance although it is not mentioned in the Statement of Heritage Significance. The lot on which the garage stands became part of the total property in 1908. Tuck pointed face brickwork on its street facade and the east side facing into the back yard of the subject site indicate it was built to match the house. The east façade also has a circular brick ornamental window, an unusual feature now, but part of the style of the period. The bricks at the rear of the garage and facing No. 247 are common bricks, so it is unlikely to have been built to serve that house.

28 At the rear of the garage is an earlier opening which is larger than a standard door. It had been bricked up. This gave to the speculation it may have originally been a stable and carriage shed. The vehicle entry door had been raised in height at some time in the past, but the original width of the door could be discerned in the brick work and would have allowed a carriage to enter. It was not built as an outhouse or tool shed in the experts’ opinions.

29 The bricks in the driveway are also of a period to match the house. Since cars began to be imported in number to Australia in 1901 it is not improbable that the garage, if not previously a stable, had been built around 1908 when Lot 3 became part of the site.

30 A garage as old as that is of some rarity in Mr Stapleton’s experience, and illustrates a domestic household at the commencement of the automotive age. Mr Lonergan said the garage could have been built any time up to around 1928. The design style was current until then.

31 The house itself had apparently changed somewhat from the time of its original heritage listing, but not to the extent its value had been substantially eroded. Externally it is intact if a little run down including a collapsing rear porch that had at some time been made into a laundry. The kitchen floor had been demolished due to rot. The kitchen walls had been penetrated internally with archways to open up the rear part of the house. A bathroom had been built inside probably in the 1930’s to 1940’s. And either a rear verandah had been closed in around the 1940’s or a rear section of the house built on adjacent a fifth bedroom that is part of the original house and probably a scullery at the time of construction.

32 Glass fan-lights to the doors of the major rooms of the house had been painted with ornamental scenes by an artist signed C Norman and dated 1916. The house had been occupied by a C Norman between 1914 and 1920. He is not listed in the Collections Australia Network as an artist. The house continued in the ownership of Norman family until 1931.

33 There are four fire places in the house, three original and one dating from about the 1940’s. Some of the chimneys appear to have been removed since the house was listed.

34 Compared to the time of listing Mr Lonergan noted on the current external condition of the house that:

• Original tuck pointed face brickwork has been painted.
  • Some ridge capping to the roof and gable is missing.
  • Little rough cast to the gable remains.
  • Little of the timber decoration remains.
  • Only two turned wooden verandah posts remain.
  • The leadlight windows do not remain.
  • The front door appears to be 1950 style.
  • The front fence has been painted and had pickets installed on top.
  • The flying gable has lost timber decoration and does not appear to be an outstanding example as stated at the time of listing.

35 Mr Lonergan’s chronology research more or less confirms Mr Stapleton’s. He notes also that in 1908, Lot 3 and the house on Lot 4 were sold to a Mr W Wall, a builder. He may well have built the garage on Lot 3 at that time.

36 Number 247 Birrell Street, the western neighbour of the proposal, did not list in Sands Directory until 1914 and appears to have encroached on Lot 3’s boundary. Number 247 was originally called “Aldona” and was probably built earlier than 1914 as an amendment to Lot 3 occurred in that year when the small allotment of the subject site was part Lot 3 DP 2397. The amendment sold a narrow strip of Lot 3 to Aldona in order to accommodate that part of the house wall that is on the common boundary.

37 Turning to the proposal, it demolishes the rear section of “Wynola” and also affects two of the main front rooms and the entry hall by demolition. Behind the main front rooms, the kitchen, bathroom, 3 bedrooms, rear entry, side entry and a central room are to be demolished. The demolished rear section is rebuilt with two storeys to give bedrooms upstairs and the kitchen and family room at the ground level. The roof at “Wynola” is changed by installing Dutch gables transverse across the roof to accommodate new rooms in the roof. Behind this traditional form of the roof there is the rectilinear two storey flat roofed new rear section. This new section will be visible from the street.

38 The “Wynola” land is then proposed to be subdivided with a lot boundary on the west that has zero side setback to the existing heritage item house and actually requires an easement for the eaves to overhang. The new common boundary zigzags to the shape of the new rear section. At the street the new “Wynola” allotment is 10 m wide to just fit the existing house width and narrows to 6 m wide in the new rear yard. The yard will be about 17 m deep from the house façade reducing to 13 m depth from the edge of the rear deck to the back fence.

39 Although the original brick lavatory and the brick front fence are proposed to be removed the applicant said during the hearing that they could be retained.

40 “Wynola” is not to have any vehicle accommodation on site.

41 The new house on the property is proposed to have its garage setback a little behind “Wynola’s” front alignment. There is an upper storey deck on its flat roof. A new drive entry and driveway gives access to the garage.

42 The front entry to the new house is accessed by walking down the western façade of “Wynola” to an entry porch adjacent the existing dining room window in “Wynola”. The window is to be bricked up. Day Light to the dining room inside “Wynola” is proposed to be obtained thereafter by a skylight in the roof and a changed ceiling.

43 A 900 mm setback is proposed to the western side of the new house adjoining “Aldona”. The ground floor of the new house accommodates living rooms, kitchen, study and garage. The upper floor has bedrooms and bathrooms.

44 On the east side the new house has zero side setback against the new two storey section of “Wynola”. The master bedroom sits above the new garage but setback 4.5 m from its front façade to give the deck 3.5 m deep referred to above. The garage façade is located about 1 m past the deck towards the street.

45 The large gable in the roof above the master bedroom is about 1.5 m higher than the flying gable of Wynola. It faces the street and projects forward over the deck 2.5 m. At the rear of the gabled roof is another rectilinear flat roofed two storey rear section of the new house. The rectilinear section will be visible from the street.

46 Due to the zigzag of the boundaries the proposed allotment for the new house has a 7 m street frontage and at the rear an 11 m wide back yard having about 11 m depth from the rear façade reducing to 9 m depth from the edge of the rear deck to the rear boundary.

47 The back yards of the two houses are to be separated by a fence and completely re-landscaped to give screen vegetation and lawn that may be termed “native species contemporary design”.

48 At the street front a picket fence is proposed on the common boundary between the street and the west wall of “Wynola” to separate the two new allotments, and prior to the applicant’s amendment to keep the existing front fence there was to be a new front fence in brick with pickets on top.

49 The existing Norfolk pine is to be kept and the rest of the vegetation to be replaced with a mix of Australian native species.

50 The respondent made the submissions that the definitions in the statutes did not provide for the proposal as two detached houses on separate blocks with zero side setbacks to each other. Detached houses required 900 mm side setbacks under the applicable controls.

51 The applicant put the proposal as semi-detached houses but they are not semi-detached because that type of development needs a common wall. There is none in this proposal.

52 The proposed lots are irregular and do not reflect the established streetscape or the pattern of allotment shape or size in the area. The main justification is the existence of Lot 3 DP 455105 as a small lot, but, having always been one property with Lot 4 it has never operated to jar the pattern of subdivision and development along the street. Several of the older properties in Birrell Street have frontages as wide or wider than Lots 3 and 4 combined. None are as narrow as those proposed.

53 Mr Stapleton said the change in frontage pattern affected the streetscape as well as the heritage item by inserting a new highly visible development in what is normally the space around the Federation house.

54 Mr Lonergan noted No. 249 the existing house had almost no setback to the boundary with No. 251. And, No. 247 had zero setback to the boundary with No. 249.

55 Mr Stapleton noted the driveway of No. 251 gave a separation to No. 249 as did the visual space of Lot 3 provide separation from No. 247.

56 Mr Lonergan put that the proposed second house maintained a 900 mm setback to the common boundary with No. 247, and a 1.4 m setback of the garage/master bedroom wing from “Wynola” together with a deeper front setback. These gave separation that is sufficient to allow “Wynola” to remain dominant.

57 Mr Stapleton felt even if that were sufficient separation in a streetscape sense it did not overcome the removal of the curtilage, the garage and driveway, and the space around the Federation house that are part of the total heritage item and provide the sense of place for the house called “Wynola”.

58 Mr Stapleton agreed that the site and the heritage item can probably sustain a second dwelling but not this design. When asked to sketch a suitable design, he said it would be a much smaller second dwelling that would not destroy the essential heritage characteristics of the house and grounds.

59 Also he said Torrens Title Subdivision would not be appropriate as it would in time ensure any second dwelling and “Wynola” and their sites would evolve differently to the detriment of the heritage significance. Strata Title may be an option so that the dwellings, if approved, must always be managed as one site by the body corporate.

60 The applicant put that none of the controls or the statutes prohibited the proposal, and there being no clarity on what definition of dwelling type the proposal fitted into, a sensible interpolation is required.

61 The applicant said the attached/semi-detached dwelling controls were the closest fit to the proposal in Waverley Development Control Plan No. 2 cll S8.2.1, .2 and .3.

62 The respondent noted that in respect of heritage items the Waverley Local Environmental Plan cl 45(1)(a) and (c) and cl 45(3) and (4) must be considered. A conservation management plan for the whole site had not been prepared. It was mainly in respect of the house and put that the gardens, the rear section of the house, the space around the house and the garage, driveway and toilet did not meet the NSW Heritage Manual Guide for inclusion in the conservation plan. Mr Lonergan was questioned on the plan in regard to the parts he recommended for conservation and it was shown to have many unclear terms that he said would need decisions to be made during the supervision of the work by a heritage architect. He said that was normal. The respondent submitted it made the conservation components of the proposal very uncertain and I agree with that.

63 The applicant said the lack of inclusion of Lot 3 on the map of heritage items show it, the driveway and the garage are not heritage fabric.

64 The respondent said cl 49 includes the setting of heritage items and cl 3(6) of the Specific Aims of the local environmental plan also includes the consideration of impact on heritage significance of items and their settings. So, even if Lot 3 does not contain heritage fabric and is not part of the item, it is an important part of the setting and must not be adversely affected.

65 Mr Stapleton said based on the ICOMOS principles the whole site is the heritage item or place and the setting is the area on the map in Exhibit 2 Fig. 6 including the houses and streetscape between No. 239 and No. 328 Birrell Street.

66 Mr Stapleton put the heritage item to be:

• A good example of Federation style and household
• The house needs conservation and restoration
• It retains the space around it, the gardens and outbuildings typical of the period.
• The 1908 garage is rare
• It contributes to the group of Federation houses from No. 247 to No. 251 Birrell Street
• Interiors are largely intact or restorable
• The artworks on the fanlights and walls are not greatly significant but dating from 1916 they do show the social/cultural evolution of the house.
• There is social significance of the heritage item due to its revelation of lifestyle and facilities of a household at the time of Federation of Australia and the advent of the automotive age.
  
• There is also social significance in its being recognised and listed to be conserved into the future.

67. The applicant put to him the rear garden would essentially remain garden and the original outside toilet would be kept, and that would preserve its heritage significance as a setting.

68. Mr Stapleton said it would be very different to a Federation garden. It would be completely re-landscaped with plants not usual for the era, and divided into two, with the two storey rectilinear flat roofed rear extensions across almost the full allotment width. The yards and two storey buildings would be quite unconnected with the context of a Federation garden and sense of place for a Federation house. The two storey buildings being on the north of the yards would shade them and dominate them contrary to the open sunny amenity of backyards that is a characteristic of Federation style. The large yards of Federation contrasted so completely with the immediately preceding narrow and small back courtyards of Victorian terraces.

69. It was put to Mr Stapleton the rear garden at least is not seen by the public.

70. He replied from the street the public see the front and side gardens and into a portion of the backyard between the house and the garage. The impression of a house set in a garden is quite strong and part of Federation style.

71. The neighbours see more of the backyard vegetation over the fence and the pyramidal tiled roof and the sense of space around the house. A heritage item is appreciated in the round, not just from the street.

72. It was put to Mr Stapleton that if Lot 3 had not existed and “Wynola” the house was still a heritage item, the garage and Lot 3 would not relate to it.

73. He replied the space of Lot 3 had existed since “Wynola” was built, and it became part of the heritage item and the household in 1908. He agreed some parts of the heritage are more important to keep intact than others, but it destroys the significance if you just keep the more important parts and build over the rest.

74. He said the front garden including the width of Lot 3, the fence and paths and the front section of the house and its interior are more important, but they need the other parts to be understood in context.

75. Mr Lonergan agreed in oral evidence that the heritage item is the total household of No. 249 Birrell Street.

76. Based on the style of the garage he thought it and the front fence could have been built as late as 1928. Different parts of the heritage item have different contributions to make to its significance he said. The reasonable expectations of an owner have to be put into the equation. Except for the side setback non-compliances for detached dwellings, the proposal complied with the maximum permitted floor space ratio, height and landscaped area requirements he said. The design retained the front entry to “Wynola” as the apparent main entry to what a casual observer would think was a large house. The entry to the new second house is recessed and not seen from the street. The major parts of the front section of “Wynola” and the front garden are to be kept.

77. With only one driveway and one garage it would add to the impression that two dwellings proposed were actually a single house.

78. The interior, the applicant said, could be kept almost original in the living and dining and entry hall by the elimination of those demolitions on the subject plans. It would still need the dining room window to be bricked up or made obscure to protect privacy of persons in the dining room or at the front door of the proposed new dwelling. As a result there would still be a need for the skylight in the roof of “Wynola” and alteration to its dining room ceiling.

79. Mr Lonergan felt on balance the best parts of “Wynola” would be kept. The changes to its roof are typical of Federation style. He said the flat roofed second storey at the rear when seen from the street or the neighbours’ houses would be acceptable.

80. The backyard landscaping could be redesigned differently to the subject plans so it is not split into two and is kept as a communal open space. The existing fruit trees can be tendered by an arborist and retained. It would reduce the visibility of the second storey additions as seen from the neighbours’ yards in Belgrave Street.

81. Mr Stapleton said that the two storey component, apart from being a contrasting modern design to the Federation style is also contrary to the single storey character of Federation.

82. Mr Lonergan pressed that two storey additions to Federation houses are common.

83. It might be observed most of those houses are probably not heritage items. Mr Stapleton said if a two storey addition to a Federation heritage item is permitted, it must be designed very sensitively. He did not think the proposal is sympathetic or sensitive. He agreed a sensitive design of additions may be possible in a contemporary style and it is not a requirement to add onto heritage item in pseudo Federation.

84. Mr Lonergan thought retaining the front section single storey appearance of the “Wynola” house to the street is sufficient. Looking along the street the predominant building height is 2 – 3 storeys. “Wynola” would still appear as single storey to the casual observer. The proposed second new house on the site would be perceived as an infill building on the same site as the old house. The gable roof form, of the 2nd house and its separation from “Wynola” at the front would enable “Wynola” to retain its sense of individuality and space around it.

85. The objectors had a number of concerns in regard to impacts on the heritage item and impacts on the amenity of their properties.

86. I do not need to go into their amenity concerns as I have come to the conclusion the heritage impacts are determinative.

87. The heritage experts agreed that Lot 3 and the structures on it are part of the heritage item of No. 249 Birrell Street. The differences between the experts hinge around the relative importance of components of the heritage item to the retention of its significance.

88. Mr Stapleton agrees some components of the heritage item are more important than others, but the lesser important components create the sense of place within the item for the more important components. A key characteristic of the detached Federation house is the space around it in the form of front and back gardens and site setbacks.

89. In this case “Wynola” has an additional feature of a wider than usual paved driveway and a rare 1908 brick garage. It adds to the character and visual quality of “Wynola”.

90. Mr Lonergan has the opinion that this space can be filled with a large two storey second house that is visually if not physically attached to “Wynola”. He says it may appear to a casual observer as one house. It is my conclusion the drawings reveal that it would look like a Federation house with a massive contemporary extension at the rear and at the side.

91. If part of the “Wynola”s heritage significance is having a driveway and a garage that goes back to the advent of the automotive age then “Wynola” will have that removed.

92. If the part of the heritage significance is the garden of the detached Federation house, then “Wynola” will only retain its front garden. A Strata titled communal front yard is probably practical due to the lack of need for privacy there; but the original perception of space around the house will be drastically reduced.

93. The massive additions at the side and rear of the building would dominate the heritage house rather than being a house and its gardens that provided the amenity aspects that were so much part of lifestyle and household of the Federation period.

94. If part of the heritage significance of a detached Federation house is an open and sunny backyard, then that also will go. Even with the Strata Title I do not think it is realistic to expect the occupants of the two dwellings as proposed to tolerate a communal backyard. A fence to create a private yard each would result.

95. Retaining the existing fruit trees, which extend in a band some distance from the rear boundary, would deny the two proposed dwellings a reasonable area of lawn. The fruit trees are unlikely to remain. If they did remain shadow diagrams reveal in mid winter the backyards would be in permanent shadow from the two storey rear sections of the proposal. Whilst the yards would get more sun in other seasons, it should be noted the living rooms of the new second dwelling are all south facing and would receive little sun at any time of the year.

96. The demolition of the rear section of the heritage house and reconfiguration of its main pyramidal roof with a transverse Dutch gable is possibly a treatment that respects the heritage item if appropriately detailed. However, the rectilinear flat roofed two storey replacement of the rear section of the heritage item will be seen from the street as well as the sides and rear.

97. The heritage item is seen in the round and it cannot be said that the proposal has architectural merit that respects the heritage item. I agree with Mr Stapleton that its proportions and massing and bulk, window openings and other details are not sympathetic to the heritage house and would detract from the heritage significance of the item and its setting.

98. In my opinion, with the insertion of the name “Wynola” or No. 249 Birrell Street instead of “Carthona” in the issues, those that are determinative and fatal to the proposal are Issues: 19(c),(e),(f),(g),(h,)(i),(j), Issue 2 (a)(iii),(b)(c), Issue 3 (b) and Issue 4.

99. Therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties, except Exhibits 2, 3, 10, 11, 12, A, B, C, D and E.
___________________
K G Hoffman
Commissioner of the Court
Rjs