Aung v Hornsby Shire Council

[2016] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aung v Hornsby Shire Council [2016] NSWLEC 1474
Hearing dates:	4 October 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1) The appeal is dismissed. 2) Development application (DA 27/2016) for demolition and construction of a new two storey dwelling, double garage and pool at 1 Lochville Street Wahroonga is refused. 3) The exhibits are returned with the exception of exhibits 1,2 and B.
Catchwords:	DEVELOPMENT APPEAL: demolition of contributory item – impact on significance of heritage conservation area – compatibility of new dwelling
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Tang v Hornsby Shire Council [2013] NSWLEC 1123 Helou v Strathfield Council[2006] NSWLEC 66 Kalkanas v Hunters Hill Council [2016] NSWLEC 1141 Zhang v Canterbury City Council [2001] NSWCA 167 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
Texts Cited:	Heritage Impact Statement, Proposed subdivision 1 Lochville Street Wahroonga, Leona Goldstein 2011. Wahroonga (North) Heritage Conservation, Godden Mackay Logan 2005. Wahroonga (North) Conservation Area Review, Sue Haertsch Planning & John Oultram Heritage & Design August 2010
Category:	Principal judgment
Parties:	Zaw Zaw Aung (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: Saw, L (Applicant) Solicitors: P Jackson, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/191041
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1)(a) of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application DA 27/2016 for demolition and construction of a new two storey dwelling, double garage and pool (the proposal) at 1 Lochville Street Wahroonga (the site) by Hornsby Shire Council (the Council).

2. The appeal was subject to mandatory conciliation on 4 October 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34AA(2)(b)(ii) LEC Act.

Issues

3. In summary Council maintains that the development application should be refused because the proposal:

1. requires the demolition of a contributory dwelling house that would detract from the qualities of the Wahroonga (North) Heritage Conservation area (WNHCA), and which is a positive element in the streetscape;

2. the applicant has not established that it is unreasonable to alter or extend the existing dwelling in a manner that can retain the contributory item; and

3. the replacement two storey dwelling house would not complement, or be sympathetic to, the existing established character of the WNHCA and the elements that are significant to that character. The proposed dwelling is inconsistent with the features of the WNHCA in its setback, form, height, bulk and scale, materials and garaging.

The site and its context

4. The site is located at the corner of Woonona Avenue and Lochville Street Wahroonga. The existing home is a single storey dwelling with a vehicular crossing on Lochville St. The site has approximately 2m cross fall from the boundary with Woonona Avenue and the eastern boundary.

5. The original site of the dwelling was subject to subdivision through development consent DA/474/2011 approved in late 2012. This subdivision resulted in two lots being created, each of approximately 500sqm. The original house was retained on the lot fronting Lochville st (the subject property). A new dwelling was constructed at the rear of the subject property, with frontage to Woonoona Avenue, authorised by development consent DA/815/2012 issued in late 2012.

6. The site is located in the WNHCA and in the immediate vicinity of listed street trees in Woonona Avenue [heritage item 769] as demonstrated in the following extract of LEP 2013 Heritage map, sheet HER 17D:

7. The WNHCA is bounded by Edgeworth David Avenue, the M1 motorway, Fern Avenue, Myra Street and Oleander Road.

The proposal

8. Development Application DA 27/2016 seeks approval for demolition and construction of a new two storey dwelling, double garage and pool.

9. The court granted leave for the applicant to rely on amended plans on 8 August 2016.

Public submissions

10. The development application was notified in accordance with the Council’s Development Control plan 2013 (DCP 2013) and one submission was received. The submission raised concerns about the possible release of asbestos during any demolition of the existing dwelling. If the appeal was upheld, this issue could be addressed by appropriate conditions of any consent.

11. No members of the public addressed the Court at the commencement of the hearing; however objections received during Councils assessment of the application were tendered (exhibit 3).

Planning framework

12. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy (exhibit 3).

13. Hornsby Local Environmental Plan 2013 (LEP 2013) applies to the site. Relevant to this appeal LEP 2013 has the following aims (cl 1.2):

To facilitate development that creates

…

(ii) a well-planned area with managed growth to provide for the needs of future generations and people enriched by diversity of cultures, the beauty of the environment and a strong economy,

To guide the orderly and sustainable development of Hornsby, balancing its economic, environmental and social needs;

To permit a mix of housing types that provide for the future needs of the community near employment centres, transport nodes and services;

…

to protect and enhance the heritage of Hornsby, including places of historic, aesthetic, architectural, natural, cultural and aboriginal significance.

14. Pursuant to LEP 2013 the site is zoned R2 Low Density Residential and the proposal is permissible with consent. The objectives of the R2 zone are as follows:

To provide for the housing needs of the community within a low density environment;

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

15. Given the site is mapped within the WNHCA, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2013, ‘Heritage Conservation’ at sub-cl (1), are:

a) To conserve the environmental heritage of Hornsby

b) To conserve the heritage significance of heritage items, and heritage conservation areas, including associated fabric, settings and views.

16. Under sub-cl (2) consent is required for demolition or erection of a building on land on which a heritage item is located, or is contained within a heritage conservation area.

17. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).

18. The following clauses of LEP 2013 are relevant to the application, but it is agreed between the parties that the development meets the required controls:

4.1 Minimum lot size

4.3 Height

4.4 Floor space ratio

19. The following definitions in the dictionary of LEP 2013 are relevant:

heritage conservation area (HCA) means an area of land of heritage significance:

(a)  shown on the Heritage Map as a heritage conservation area, and

(b)  the location and nature of which is described in Schedule 5,

and includes any heritage items situated on or within that area.

20. The Hornsby Development Control Plan 2013 (DCP 2013) applies to the proposal. DCP 2012 has the following objectives relevant to this appeal:

…

To protect and enhance the natural and built environment, and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from development, „

To encourage high quality development that contributes to the existing or desired future character of the area, with particular emphasis on the integration of buildings with a landscaped setting,

To protect and enhance the public domain,

…

21. DCP 2013 is structured in such a way that each provision contains a ‘desired outcome’ and ‘prescriptive measures’. Desired outcomes are written as statements that describe the development outcome sought by the council. The prescriptive measures are described as the specific requirements that are likely to achieve the desired outcome. In accordance with s79C3(a)(b) the objective (desired outcome) of the relevant DCP clauses are relevant in considering the flexible application of the provisions.

22. For demolition works in a Heritage Conservation Area cl 9.1.2 states that development applications normally require a Heritage Impact Statement (sub-cl (d)).

23. As identified in [6] the site is located in WNHCA. Section 9.3 of DCP 2013 provides controls for development within a heritage conservation area. Specific controls for the WNHCA are contained in the DCP at 9.3.10, including statement of significance:

a. The Wahroonga (North) Heritage Conservation Area is closely associated with the opening of the North Shore Railway line in the 1890s, and includes land in the early estates of the locality, Bundarra Estate (1892) and its subsequent Federation development. It also includes the pre War and Inter War subdivisions of the Bundarra (Ingalara) Estate (1913), Wahroonga Heights Estate (1926) and the two divisions of the Highlands Estate (1933 and 1938) that led to the Inter War development of the area.

b. The Heritage Conservation Area is strongly associated with significant local persons including the Hordern Family and particularly the family matriarch, Caroline Hordern and the Hordern Family Estate which centered on their mansion, ‘Highlands House.’

c. The Heritage Conservation Area is aesthetically distinctive, with a strong collection of Federation residential buildings. This includes ‘Highlands House’ (1892), ‘Neringla’ (1895) and ‘Cherrygarth’ (1897). The overlay of Inter War houses is unified and made complementary by the landscaped setting.

d. The Heritage Conservation Area is important as a reference site for Hornsby, particularly in relation to the early development of the area. The area has potential to reveal its pre Victorian development and use through research.

e. The Heritage Conservation Area demonstrates the post 1892 residential development of the area, exhibiting built and landscape qualities that are becoming rare within Hornsby and which are endangered by continuing unsympathetic development.

24. The relevance of the statement of significance and the fact that the building on the current site is a contributory building to the WNHCA is agreed between the parties experts.

25. The general design principles in the heritage conservation zone (cl9.3.1) are seeking to produce development: that complements and is sympathetic to the existing character of the conservation area and the elements that are significant to that character.

26. Relevant to this appeal, to achieve this objective the DCP provides prescriptive measures that: maintain and reinforce characteristic details (sub- cl a); require new work to be designed to complement the existing streetscape in terms of both building and landscape elements (sub- cl d); and be single storey where streetscapes that are predominately single storey (sub- cl f). In terms of building setbacks (sub- cl h) new buildings are required to located so that they are compatible with predominant front setbacks in the street, particularly the setbacks of immediately adjoining buildings and roof form and pitch should be compatible with characteristic roof forms of the conservation area (sub- cl i).

27. Contemporary design (sub- cl j) is required to be sympathetic to the characteristic built form of the conservation area, particularly in terms of bulk, scale, height, form or materials. Construction materials used in new work should complement the period and style of the building, and the conservation area and the use of modern materials are required to be compatible with the WNHCA.

28. The following objectives of cl 9.3.2 Garages, Carports and Driveways are applicable to the proposal:

a. Development that retains the integrity and setting of heritage conservation areas.

b. Garages and carports that are designed as secondary structures and do not dominate the streetscape of heritage conservation areas.

29. The following objectives of cl 9.3.3 Gardens, Fences and Gates are applicable to the proposal

Landscaping that retains original and traditional garden layouts and plantings.

30. In relation to the assessment of applications for demolition DCP 2013 has the following desired outcome:

Development that does not detract from the qualities of the Heritage Conservation Area and which are positive elements in the streetscape.

31. Pursuant to cl 9.3.4 demolition has the following prescriptive controls:

a. Demolition of buildings that are characteristic of the heritage conservation area and are intact, or easily capable of having characteristic details reinstated, should be avoided (refer to Character Statements for details).

b. Demolition of a building that is compatible with the characteristic built form as described in the Character Statement, should only be considered where it is not reasonable to alter and extend to meet contemporary amenity and living standards.

c. Replacement buildings and associated landscaping elements should be sympathetic to the characteristic features of the Heritage Conservation Area.

32. As a result of the above relevant planning controls the consideration the impact of the proposal on the significance of the heritage conservation area LEP 2013 (cl 5.10(4)) is a jurisdictional precondition to the grant of consent. Accordingly, I will address first the impact, or otherwise, of the proposed demolition prior to any merit consideration of the new dwelling proposed for the site.

History of the Heritage Conservation Area

33. In 2005, Godden Mackay Logan prepared the Wahroonga (North) Heritage Conservation Review (GML Study) which recommended that the area be identified as a conservation area. In 2006, Council resolved to exhibit an amendment to Hornsby Local Environmental Plan 1994 (LEP) to include the heritage conservation area in the LEP. The amendment did not proceed at this time as the then Department of Planning was undertaking a review of heritage conservation areas with the NSW Heritage Office.

34. In 2010, the Wahroonga (North) Conservation Area Review dated August 2010 (Review) was undertaken by Sue Haertsch Planning in association with John Oultram Heritage & Design. The Review included an assessment of the impact of development undertaken in the area since the GML study. The review supported the proposed HCA with the suggestion that the conservation area be divided into two precincts (North and South) due to the differences in historical development, housing stock and character between the two parts. The Review also found that recent development had not diluted the character of the area to the point where it would no longer merit the status of a conservation area. The report stated:

It is accepted that not all elements within a heritage conservation area will have heritage value. The presence of elements with little or no heritage value does not diminish the value of the area

The area was included as a conservation area in the LEP in September 2011.

35. It is agreed between the parties that the subject property was identified as a contributory building in both studies.

Can the building be demolished?

Expert evidence

36. The Court heard heritage evidence from Ms Erdelyi, for the applicant, and Mr Oultram, for the Council. Both experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention as detailed in [3]. As a result of the conferencing process they prepared a joint expert report which was tendered as exhibit C.

37. During the proceedings, and in the joint report, the experts agreed that:

1. The statement of significance for the WNHCA contained in DCP 2013 (cl 9.3.10) is appropriate;

2. The building on the subject site makes a contribution to the WNHCA, noting this was qualified by Ms. Erdelyi to exclude the site itself due to the change in subdivision pattern;

3. The application will result in the removal of a building that contributes to the WNHCA;

4. That the demolition will have a detrimental impact on the WNHCA, noting this was qualified by Ms. Erdelyi whose opinion is that the most significant negative impact on the significance of the WNHCA occurred with the subdivision of the original site of the dwelling, and the resulting change to the subdivision pattern and the siting of the dwelling;

5. the building is in reasonable repair and the development application does not seek to justify its demolition on the grounds of its condition;

38. The experts disagree in relation to:

1. the ability of the existing building to undergo alterations and additions to create appropriate amenity for the residents;

2. the appropriate weight to be given to the controls given the sites constraints;

3. the impact of the potential presence of asbestos in the current dwelling; and

4. whether demolition would act as a precedent for future development applications and how this would impact the WNHCA.

These disagreements are explored in further detail in the following.

The question of alterations and additions

39. In the joint report Ms Erdelyi describes the constraints to undertaking alterations and additions to the dwelling as follows:

The current house, although of the period characteristic of the Conservation Area, is located on an atypical small corner site and is of a style that limits alterations and additions that would meet the characteristic elements listed in the [Hornsby] DCP (Heritage). The current house is a small two bedroom fibro dwelling set 900mm from the rear boundary with the attached garage setback approximately 2 metres from the drainage easement to the east. The small room sizes and internal layout are of questionable amenity. There is minimal area and scope to extend the existing dwelling as a single storey dwelling in full compliance of the prescriptive measures of the [Hornsby] DCP (Heritage). In addition, the building is clad in fibro, which is a hazardous material, and any alternations to the dwelling will need to be undertaken with appropriate safeguards…

(emphasis added)

During the concurrent evidence process Ms Erdelyi argued that these constraints, as well as the current overlooking experienced from the rear property and the cross fall of the land, required the application of a flexible approach to the consideration of the demolition of a contributory item.

40. In her evidence Ms Erdelyi also expressed concern as to whether an alteration and addition could meet the accommodation requirements of the client (four bedroom, two bathrooms, double garage) whilst providing a form that would not overbear the contributory building. In her view the scope for alterations and additions are further complicated by the inability to extend to the rear due to the previous subdivision of the land.

41. Mr Oultram took an alternative view to the question of the whether alterations and additions were a practical alternative to demolition. His evidence was that it is not the approach of planning controls to allow development of all forms in all locations, and that planning controls applied to land to give boundaries to appropriate forms of development. His view was that purchasing in a heritage conservation area was such a constraint and the controls that apply to such locations are clear in DCP 2013. His evidence was that the site provides scope for alterations by extension over the existing garage (which could be demolished), and making use of the slope towards the eastern boundary to provide a two storey element in this location of the site.

40. No options were presented to the Court, or considered by the experts, including retention of the building, that demonstrated that the dwelling could not be retained or altered to achieve a reasonable standard of accommodation.

41. The DCP is a mandatory relevant consideration under s 79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). The consent authority is not entitled to put aside the standard set by the DCP and apply its own standard of what is reasonable (see Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226). Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is to “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.

42. As a result of the preceding, it is incorrect to say that any development of the existing building by alterations and additions would be required to comply with all the prescriptive elements of DCP 2013. However, for the appropriate application of flexibility, it would be required to meet the objectives, or in this case the ‘desired outcomes’ of the relevant controls. The retention of the existing building may provide the impetus for the application of such flexibility to other controls, if such an application met the objectives of the planning controls.

43. The heritage controls in DCP 2013 emphasise the importance of retention of items, with flexibility to demolish fabric, to be provided in circumstances where it is not reasonable to alter and extend to meet contemporary amenity and living standards (cl 9.3.4(b)). In considering the differing opinions of Ms Erdelyi and Mr Oultram, and with the benefit of a view of the site, I prefer the evidence of Mr Oultram that such an alteration and addition is possible on the site with the retention of much of the existing building fabric that will achieve appropriate amenity for the residents.

Other site constraints

46. In her evidence Ms Erdelyi expressed concern about the privacy and amenity impacts to the existing building from the proximity of the newly constructed dwelling (29C) to the rear of the site. As a result of the subdivision the existing building maintains a 900mm setback to the rear boundary which, due to the subdivision pattern, is adjacent the side boundary of the new dwelling. Immediately adjacent the boundary is an elevated rear terrace.

47. From undertaking a view of the site I am satisfied that the privacy and overlooking impacts are addressed by the existing opaque glass privacy screen, and that any overlooking experienced is to a service area of the yard.

48. The site is burdened by a 1.75m wide easement for the drainage of water, along the eastern boundary of the allotment (exhibit B). The applicant argues that this provides a further constraint to the development of the site.

49. There was uncontested evidence from the council on site that a development proposal could extend over the easement adjacent the eastern boundary, and if it was compliant with specified controls and standards it would likely be approved by Sydney Water. Irrespective of certainty in relation to this, it is my finding that there is adequate scope for an extension to the existing building.

50. Both of the primary planning instruments that apply to the site place significant emphasis on the retention of heritage significance in the application of the planning controls. I accept that it is feasible to add to the dwelling to meet a reasonable increase in accommodation on the site, and in a way that will have a lesser effect on the significance of the conservation area than demolition.

51. As outlined in the preceding, I find that the site constraints are not sufficient to warrant the approval of demolition of the contributory item.

Fibro material

52. Ms Erdelyi in her evidence expressed concern in relation to the safety of the existing sheeting material that formed the external façade of the building. In expressing her concerns she relied on the description in the Heritage Impact Statement prepared by Leona Goldstien in 2011(Heritage Impact Statement) in support of the development application for subdivision (Exhibit 3) which states:

Generally the building is in poor condition. The house maintains most of its original form and details. Paint is peeling off the exterior fibro (asbestos cement) panels causing weathering…

53. During the proceedings it was confirmed that no specific testing had been undertaken to confirm that the sheeting is asbestos, but I accept that given during the period of construction of the dwelling in question the use of asbestos building products was ubiquitous and it is likely to be present in the existing building.

54. Whilst the heritage experts agreed that the presence of asbestos cement did not reduce the heritage significance of the item per se Ms Erdelyi expressed concern about the stability of the material and concluded that the removal of the sheeting would impact on the heritage significance of the building and therefore its contribution to the WNHCA.

55. Mr Oultram’s view was that the replacement of the sheeting with a modern cement sheet panelling could be undertaken as a form of maintenance of the building with no impact on the significance of the item.

56. It was agreed between the experts that the cost of removal of the asbestos would be consistent between such maintenance works and any demolition work.

57. Whilst it is clear that hazardous materials, if they are present on a site, provide a constraint to development, I find that the presence of asbestos (if verified) in and of itself is not sufficient constraint to warrant the approval of demolition of the contributory item.

Is the impact of demolition on the conservation are acceptable?

58. The Land and Environment Court has a practice, where appropriate, of establishing planning principles that outline a process of reasoning in making a planning decision, and may be applied to particular cases to promote consistency. In this case a relevant planning principal is that which was defined in Helou v Strathfield Council [2006] NSWLEC 66 (Helou), which at [45] states:

The demolition of a building which contributes to a conservation area will impact on the area’s heritage significance even if its replacement building "fits" into the conservation area. Although the replacement building may be a satisfactory streetscape or urban design outcome, this does not address heritage impacts as the original heritage element has been removed. Despite this, it is open to the consent authority still to permit the demolition of a contributory element, for example, if the replacement has other planning benefits that the original does not.

59. In order to assess whether demolition should be permitted the Helou case established a series of questions for the consent authority to consider in making the planning decision. The first question in Helou seeks to establish: what is the heritage significance of the conservation area? In this matter it is agreed between the parties that the statement of significance for the WNHCA contained in DCP 2013 (cl 9.3.10) details the heritage significance of the conservation area.

60. The second question in Helou asks: what contribution does the individual building make to the significance of the conservation areas? Both the GML report, and the Review, identify the house as a contributory item and is highly, or substantially, intact. I have considered the evidence of Ms Erdelyi regarding the impact of the previous subdivision of the site on the significance of the item, but find that the impact has not reduced its contribution to a point that it would be a neutral item in the WNHCA. Nor has its setting been eroded to such an extent that the dwelling it is context no longer contributes, especially when viewed from its primary frontage in Lochville Street. I accept the evidence of Mr Oultram that the building is from the predominant building period (1913-1950) that is identified (in DCP 2013) as a characteristic period for the northern precinct and the house is stylistically readable as being from this period.

61. The experts agree in the joint report that the existing dwelling house is a contributory item to the significance of the WNHCA. It is an example of an Inter War period dwelling within the northern precinct and surrounding streetscape and forms part of an area of contributory items that exemplify the character of the conservation area (exhibit 2).

62. The heritage impact statement prepared for the subdivision of the original lot (exhibit 3) is consistent with this statement:

No 1 Lochville Street, Wahroonga is representative of a modest fibro house with its asbestos cement cladding and tiled roof, but has lost some of its integrity due to its fair to poor condition. Constructed around 1940s-1950s, the house forms part of a small group in Lochville Street if small freestanding cottages of the same period.

63. The GML Report identifies at “4.6 : Significant characteristics of the WNHCA” that:

… examples of good, characteristic interwar-period houses, in styles ranging across the Old English, Mediterranean and California Bungalow fashions (eg 58 Woonona Avenue and 26-28 Myra Street) with some early ‘Moderne’ examples (eg 15 Ingalara Avneue) and a small group of austere postwar cottages in Lochville Street and Douglas Avenues. [emphasis added]

64. This is reiterated in the Review which states:

Lochville street is a short link road between Woonona Avenue and Douglas Avenue. New infill houses have been built on the southern side of the road. A group of single storey postwar austere buildings on the northern side are representative of the area’s later development. [emphasis added]

65. The role of the existing building in context of the street, and the adjoining dwellings is apparent from views of the site in and around Lochville Street. The existing building is read as part of a group of buildings on the southern side of Lochville Street that have consistent scale, setback and form.

66. It is clear that all three heritage assessments of this vicinity have recognised the heritage significance of these contributory buildings. This significance is given additional weight in consideration of the impact of the proposed demolition due to the intactness of the group. The recent subdivision has not impacted this significance to such an extent that the building no longer contributes to the WNHCA.

67. In answer to question 2 in Helou, I concur with the heritage experts that the demolition of the existing building will have a negative impact on the heritage significance of the WNHCA, not only as an individual contributory building but due to the contribution in makes as part of the group of austere post war dwellings.

68. The heritage experts agree that the building is in reasonable repair and the development application does not seek to justify its demolition on grounds of its condition (exhibit 2). Therefore the question three in Helou, in relation to the structural condition of the dwelling, is not applicable based on the current evidence before the Court.

69. Question four in Helou looks to the potential of an alternative approach to development that retains the contributory building… is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?

70. In the preceding discussion at [45] I concluded that on the evidence before the court there is scope for alterations and additions to be undertaken to the existing contributory building. In their evidence both experts agreed that demolition will have a detrimental impact on the WNHCA. I agree with this conclusion and find that the effect of demolition on the heritage significance of the WNCA is unacceptable. As a result given the construction of cl 5.10(4) of LEP 2013 there is no power to grant consent to the application and the appeal must fail.

71. The experts agree that question 5 in Helou, in relation to the costs of remediation, is not applicable based on the current evidence before the Court. For completeness there is no evidence before the court arguing that the costs of extending or incorporating the contributory building are so unreasonable that demolition should be permitted.

72. The final question in Helou is whether the replacement is of such quality that it will fit into the conservation area. The planning principle goes on to conclude that if the replacement does not fit, the building should be retained until a proposal of suitable quality is approved [46].

73. The development application, in addition to demolition, seeks to construct a new two storey dwelling incorporating a double garage, four beds, three bathroom and multiple living zones. In the evidence there was a difference between the experts as to what is the appropriate archetype for the new building.

74. As detailed in [26-27] DCP 2013 has the objective that development complements and is sympathetic to the existing character of the conservation area and the elements that are significant to that character.

75. In her evidence Ms Erdelyi states that the new development takes its approach from the more contemporary two storey developments, such as those at 31 & 33 Woonona Avenue, which are within proximity to the site. She notes that some of the prescriptive measures in the heritage controls of DCP 2013, in her view, do not relate to newer development. It is her view that the impact of the proposed dwelling on the streetscape is ameliorated by the change in level (to Woonona Avenue) and the proposed plantings to Lochville Street.

76. During the proceedings the Council tendered the consent for the construction of the dwelling at 33 Woonona Avenue (exhibit 5), which was determined in 1997. As such it was determined prior to the current controls, and the gazettal of the WNHCA.

77. In the joint report Ms Erdelyi provided an inventory of the surrounding precinct and the relevant characteristics elements of the WNHCA as detailed in DCP 2013. She concluded that the prescriptive measures in the HDCP (Heritage) are generally not typical of the surrounding streetscapes and locality of the subject site, as opposed to that of the wider conservation area.(exhibit 2)

78. Alternatively it was Mr Oultram’s view that the proposed dwelling design is of an inappropriate scale and form for the WNHCA, and that it does draw on historic precedents for bulk, scale and materiality. He concluded that the proposal is not compatible with the WNHCA and does not pay due regard to the objectives and the prescriptive measures of DCP 2013.

79. As was evident on the site view, the block bounded by Lochville Street, Woonona Avenue, Junction Road and Douglas Avenue has a number of contributory items and is predominately housing of a single storey form. The two double storey dwellings were constructed prior to the gazettal of the WNHCA and LEP 2013.

80. DCP 2013 cl 9.3.1 at sub cl (f) requires the streetscape to be single storey where they the building form is currently single storey.

81. It is clear from the architectural plans (exhibit B) that the proposed development will not follow the predominant setback of Lochville Street, which is contrary to cl 9.3.1 at sub cl (d). The proposed building has a significantly reduced front setback.

82. As discussed in [61-65] the streetscape of Lochville Street, and the consistency of this dwelling with the adjoining group of buildings, has featured in each of the heritage reports, including the HIA prepared for the subdivision. It is also clearly evident from a view of the site.

83. In considering Section 79C(3A)(b) of the Act, whilst it is clear that the development does not meet a number of the prescriptive controls, the consent authority must apply these controls flexibly where alternatives meet the objectives of the controls. In this case that objective is development that complements and is sympathetic to the existing character of the conservation area and elements that are significant to that character (cl 9.3.1). Based on the evidence before the court I do not accept that the proposal is compatible with the WNHCA or meets the objectives of DCP 2013 which would allow such flexibility to be applied.

84. The replacement dwelling responds to the character of the ‘new’ forms of development in the vicinity. I accept the view of Mr Oultram that this approach to the site is not in accordance with the planning controls and that these dwellings demonstrate the effect on the heritage significance of the precinct of development in uncharacteristic form in locations that are highly visible from the street.

Findings:

85. In applying the principles outlined in Helou in to this appeal, as detailed in the preceding, I find the demolition of the contributory item is not warranted in this instance.

86. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the WNHCA, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. Consequently there is no power to grant consent to the development application and the application must fail.

87. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA 27/2016 for demolition and construction of a new two storey dwelling, double garage and pool at 1 Lochville Street Wahroonga is refused.

3. The exhibits are returned with the exception of exhibits 1,2 &B

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 12 October 2016