Clarke v Willoughby City Council

[2011] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clarke v Willoughby City Council [2011] NSWLEC 1151

Hearing dates:

31 March 2011

Decision date:

27 May 2011

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The parties are to file short minutes of order that reflect the findings in the judgment by 10 June 2011.

2. Liberty to restore on two days notice.

Catchwords:

APPEALS - Section 96 application and s 97 to delete deferred commencement condition requiring design changes. Impact on heritage significance.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995

Cases Cited:

Over our Dead Body Inc v Byron Bay Community Association Inc [2001] NSWLEC 125
McClenahan v North Sydney Council [2007] NSWLEC 312
Leal & Anor v Woollahra Municipal Council [2008] NSWLEC 1253

Category:

Principal judgment

Parties:

Jennifer Clarke (Applicant)

Willoughby City Council (Respondent)

Representation:

Counsel:
Mr N Eastman, Barrister (Applicant)

Ms D Townsend, Solicitor (Respondent)
Solicitors:
Mallesons Stephen Jaques (Respondent)

File Number(s):

10954 of 2010 and 11012 of 2010

Judgment

1. Willoughby City Council (the council) approved a development application (2009/79) on 14 December 2009 for internal alterations to the existing dwelling at 40 Findlay Ave, Roseville (the site). The development consent was subject to a deferred commencement condition (A) that required amended plans to be prepared which included:

(a) retain the built-in entry hall furniture including seat, mirror, lining and storage table;

(b) amend the proposed enlarged openings to the ground floor such that they allow for the retention of the built in hall furniture; and

(c) demonstrate that the existing stair will not be impacted by the proposed alterations, the internal door between the hall and the kitchen is to be retained and closed off on the kitchen side, and that the parquetry flooring will be retained and restored.

1. The deferred commencement condition provided a 12 month period from the date of the deferred commencement notice for the plans to be submitted.

1. Appeal No 10954 of 2010 is against the refusal by council of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify the development consent to delete sub conditions (a) and (b) of the deferred commencement condition. Plans that satisfy sub condition (c) but remove the built in entry hall furniture and the wall between the entry hall and dining room have been submitted as part of the s 96 application.

1. Appeal No 11012 of 2010 is an appeal under s 97 of the EPA Act to delete the deferred commencement condition. Under s 95(6) of the EPA Act the deferred commencement consent would have lapsed on 15 December 2010. Pursuant to s83(2) of the EPA Act the lodgement of the s97 appeal saves the consent from lapsing while the appeal is heard.

Site and its locality

1. The site is located on the southern side of Findlay Avenue. It is developed with a two storey house designed by the architect Dr Henry Epstein with interior/furniture by the industrial designer, Paul Kafka.

1. The surrounding locality is characterised by detached dwelling houses

Background and proposal

1. The development consent approved internal alterations to the house including:

Ground floor

• Close off an existing door between the entry hall and kitchen,
• Provide a new kitchen work area, and
• Enlarge openings between the kitchen and dining rooms and the entry hall and living room.

First floor

• Incorporate new WC into enlarges bathroom with new fittings,
• Existing landing increased by shortening existing WC and connecting to a storeroom, and
• New free standing cupboards to bedrooms.

1. The development application also sought approval to remove the wall between the entry hall and the dining room and the built in furniture which comprises a cloak cupboard, seat and telephone bench under a large mirror. This would also result in the removal of the bulkhead, ceiling and lights. The deferred commencement condition required the retention of these elements.

1. The s 96 application seeks approval for a smaller opening between the entry hall and the dining area than that for which approval was originally sought. It also proposes to remove the existing built in furniture and provide new built in furniture with new storage cupboards and a sliding mirror door.

1. Council approved an earlier application for internal alterations to the house in September 2001. This application retained the wall between the entry hall and dining room but proposed the removal of the built in furniture. Condition 9 of the consent required that the built in furniture not be removed. The development consent also maintained the access to the kitchen from the entry hall.

Planning framework

1. The site is zoned Residential 2(a) under Willoughby Local Environmental Plan 1995 (WLEP). The proposal is permissible with consent.

1. The house is listed as a local heritage item under Schedule 7 of WLEP and is within the Findlay and Wyvern Avenues Conservation Area.

1. The aims in cl 2 of WLEP include:

(h) to conserve specific buildings and items of the environmental heritage and to retain the character of urban conservation areas, and

1. Clause 56 of WLEP provides heritage aims and objectives:

(a) to conserve the heritage of the built and natural environment to which this plan applies, and

(b) to integrate heritage conservation into the planning and development control processes, and

(c) to provide for public involvement in matters relating to the conservation of the City of Willoughby's heritage, and

(d) to ensure that new development does not adversely affect the heritage significance of heritage items and conservation areas and their settings, including streetscapes and landscapes and the distinctive character that these impart to the City's heritage.

1. Clause 57 of WLEP provides:

(1) This clause does not apply to:

(a) exempt development, or

(b) development for the purposes listed in clause 52A (a)-(c) with respect to the land commonly known as part of 217 Pacific Highway, being Lot B, DP 444493.

(2) A person must obtain development consent to carry out the following development:

(a) demolishing, altering or damaging a heritage item or a building, work, relic, tree or place within a conservation area, or

(b) moving a relic or excavating land for the purpose of discovering or moving a relic, or

(c) erecting a building or subdividing land on which a heritage item is located or which is located in a conservation area, or

(d) damaging any tree on land which comprises the place or site of a heritage item.

(3) The Council shall not consent to development described in subclause (2) unless it has considered the extent to which the proposed development would affect the heritage significance of the heritage item or the conservation area.

Note. The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).

(4) In considering applications for consent to erect any building (or to alter or add to an existing building) on land to which this plan applies, the Council shall assess whether:

(a) the patterns of building and open space, and of front and side setbacks, are consistent with those characteristic of the locality, and

(b) the pitch and form of the roof and the size, shape and proportion of the openings for windows and doors complement or are consistent with those in the locality, and

(c) the colour, texture, style, and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the locality, and

(d) any stylistic, horticultural or archaeological features of the building or its site should be retained.

(5) In considering applications for consent to development involving a building in a conservation area, the Council shall assess the compatibility of the proposed development with:

(a) the heritage significance and integrity of the building, and

(b) the heritage significance of the conservation area, including the character of the streetscape and the scale, setbacks and horticultural features of nearby existing buildings and works in the conservation area.

1. 'Alter' and 'demolition' are defined under WLEP to mean:

alter in relation to a heritage item or to a building, work, relic, tree or place within a conservation area means:

(a) make structural changes to its exterior, or

(b) make non-structural changes to the detail, fabric, finish or appearance of the exterior, but not including any such changes resulting from maintenance, this being the continuous protective care of the existing detail, fabric, finish or appearance of the item or component.

demolition , in relation to:

(a) a heritage item or a building, work, relic, tree or place within a heritage conservation area, means the total or partial destruction or dismantling of the heritage item or building, work, relic, tree or place, or

...

1. The parties disagreed whether cl 57(4) applied. Mr Eastman, for the applicant, submits that it does not apply as the proposal is not 'erect a building' and that 'alter' includes only works to the exterior. Ms Townsend, for the council, submits that cl 57(4) applies to erection of a building, which includes demolition. She referred to Over our Dead Body Inc v Byron Bay Community Association Inc [2001] NSWLEC 125 to support this proposition. It is not necessary for me to adjudicate on these competing submissions as the parties agreed that the works involved demolition for which consent is required (cl 57 (2)) and that the extent to which the proposed development would affect the heritage significance of the heritage item must be considered under cl 57(3). Clause 57(5) is of little relevance as the works are internal and will not adversely affect the conservation area.

1. Draft Willoughby Local Environmental Plan 2009 (Draft LEP) has been exhibited and is a relevant consideration under s79C. The house remains listed as a local heritage item and is within a conservation area under the Draft LEP.

Evidence

1. The Court visited the site and heard objections from Ms A Watson, Ms A Kabos, Ms A Higham, on behalf of the Royal Australian Institute of Architects (RAIA) and Mr S Robertson, on behalf of Docomomo Australia, which is an international organisation that advises UNESCO on modern movement buildings. These objectors stated that the house, known as the Hillman House, is a significant modernist 20th century house. Its significance is recognised by its listing as a heritage item on WLEP as well as on other lists including the RAIA's Register of 20 th Century Buildings of Significance and the International Register of Docomomo, as one of only 18 Australian houses.

1. The objectors emphasised the importance of the interior of the house including the furniture and spatial arrangement of the rooms as an important example of modernist design and philosophy which demonstrated the collaboration between the architect, Epstein and the furniture designer, Kafka. They considered that the proposal would remove a significant component of the interior and impact on the manner in which the house is entered, its spatial arrangement and the appreciation of the interrelationship between the interior and exterior of the house. They expressed concern that Kafka furniture had already been removed from the house and that this, and the proposed changes, impacts on the significance of the house.

1. Ms J Hill, for the council, and Mr P Rappoport, for the applicant, provided heritage evidence.

Heritage significance

1. Ms Hill and Mr Rappoport agreed that:

The heritage significance of the Epstein design...is acknowledged as an exponent of the work of a group of pioneering 20 th century emigrant European Sydney based architects.

The design of the residence does contribute to the significance and historical importance of the group's work and therefore has been appropriately listed on WLEP.

The planning and aesthetic aims of the Hillman House are notably allied to the 20 th century movement in Modernism and Functionalism as an architectural style.

The exterior has high significance and therefore should not be altered.

Paul Kafka is highly regarded as constituting an important contribution of Sydney's housing in the form of joinery and furniture.

The piece ( built in entry hall furniture ) while damaged is capable of restoration.

1. The experts held different opinions about the significance of the interior of the house and the furniture. In Mr Rappoport's opinion, the significance of the house was primarily its exterior and that 'modernist architects were concerned with architecture as an object to be contemplated in the round'. He considered the Kafka furniture to be a mediocre piece in poor condition.

1. Ms Hill's opinion is that the significance of the Hillman House also relates to the combined architectural design by Epstein with Kafka interiors and furniture. Further, interiors and exteriors of buildings were of equal importance to modernist architects. In her opinion, the Kafka furniture should not be assessed in isolation but is integral to the design of the interior.

Impact on heritage significance

1. In Mr Rappoport's opinion, the custom designed interiors are no longer apparent and the remaining staircase would provide sufficient indication of Kafka's work in the house. He considered that there were other conservation options for the furniture such as temporary removal and storage. In his opinion, the current layout of the kitchen, entry and dining room are unsuitable for contemporary lifestyles. The changes, including removal of the entry hall wall, were not unreasonable and not disrespectful to the key aspects of the heritage significance of the house.

1. Ms Hill considered the 'custom designed interiors of the Hillman House are apparent in the spatial planning and key joinery elements by Kafka'. In her opinion, the removal of the entry hall wall and Kafka furniture would 'fundamentally change the flow of internal spaces of the dwelling, destroy the spatial integration and finishes of this significant heritage item'. She considered that that the development consent already approved changes to the house, which would meet the reasonable expectations of the occupants.

1. Mr Rappoport and Ms Hill also disagreed on whether the proposal met the aims of WLEP (cl 2(h)) and the objectives and controls for heritage (cll 56 and 57). The key difference being that Mr Rappoport considered these principally relate to the exterior and not the interior of heritage items. Whereas, in Ms Hill's opinion, they are relevant to interior and exterior modifications to heritage items that may impact on significance.

Findings

1. The key difference of opinion between the heritage experts is whether the interior of the house and the built in furniture is part of its heritage significance and whether the considerations in cl 57(3) are relevant to the interior of heritage items.

1. Mr Eastman and Ms Townsend did not submit that cl 57(3) did not apply to interiors of heritage items. The clause requires a consideration of the extent to which the proposal would impact on the heritage significance of the item. It makes no distinction between the interior or exterior of the item.

1. However, Mr Eastman submits that the significance of the item is the Epstein design of the exterior of the building in its landscape setting. The interior is of secondary significance and the Kafka furniture is not significant. In his submission, removal of an internal wall and the built in furniture therefore does not impact on the overall significance of the item. Mr Eastman referred to two cases to support his submission. However, these are distinguishable from this case as McClenahan v North Sydney Council [2007] NSWLEC 312 deals with an interior staircase which Brown C found not to be a "significant internal feature" and that its retention would restrict the adaptation of the dwelling for a more intense use (apartments) permissible within the zone. Leal & Anor v Woollahra Municipal Council [2008] NSWLEC 1253 considers alterations to the interior of a building, which is not a heritage item but is within a conservation area. The internal changes to the building did not affect the exterior of the building and the significance of the conservation area. For the following reasons, I do not accept Mr Eastman's submission.

1. From the various inventory sheets, listings, the Heritage Impact Assessments for the development applications and the expert evidence, the interior is clearly of heritage significance. The design of the interior of the house, the approach to the entry, its relationship to the exterior, and the spatial arrangement of rooms are part of the significance of the item. The built in furniture is also an integral part of the design of the house and part of its significance. While these elements may not be graded as being of exceptional significance or be as significant as the exterior of the house, they still contribute to the significance of the house and conservation policy would generally seek to conserve original fabric and elements which are of significance. This does not mean that change cannot occur but that it should be limited to as much as necessary but as little as possible.

1. Mr Rappoport considers that the removal of the wall and built in furniture is necessary because the 1940s layout of the house does not meet contemporary lifestyle expectations. In his opinion, the closing off of the door from the entry hall to the kitchen necessitates a new entry being created from the entry hall to the dining area. Further, this will enable views from the front door and entry hall into the house and the garden beyond and provide open and free flowing space. In his opinion, this represents a tolerable level of change.

1. I acknowledge that the proposed arrangement will better meet the needs of the applicant but this is not the test required to be undertaken by cl 57(3) of WLEP.

1. I accept Ms Hill's evidence that the removal of the wall and built in furniture will change the appreciation of the entry to the house and the internal flow of spaces, which will affect its significance. The built in furniture that has been removed earlier has already reduced the significance of the item. The removal of original fabric, which contributes to the significance of the house, will impact on its significance. The proposed glass sliding door and 'facsimile' built in furniture will mitigate this impact but not to the extent that the change can be justified. The change is not necessary for the house to provide contemporary living standards. It is possible to design a kitchen to maintain the entry off the hall to meet the needs of the applicant for direct access to the kitchen, as was approved in then 2001 consent.

1. I therefore find that the deletion of the deferred commencement condition sought by Appeal No 10954 of 2010 and Appeal No 11012 of 2010 should not be approved. Mr Eastman submits that this would have the effect that the development consent will lapse pursuant to s83(3). Therefore, I will defer my final orders to allow the applicant time to make an application for an extension of the lapsing period of the consent.

Directions

1. The parties are to file short minutes of order that reflect the findings in the judgment by 10 June 2011.

2. Liberty to restore on two days notice.

Final orders will be issued in Chambers.

Annelise Tuor

Commissioner of the Court

Decision last updated: 14 June 2011