Cracknell and Lonergan Architects v Manly Council

[2003] NSWLEC 341

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Cracknell and Lonergan Architects v Manly Council [2003]  NSWLEC 341

PARTIES:
APPLICANT
Cracknell and Lonergan Architects

RESPONDENT
Manly Council

CASE NUMBER:      10140 of        2003

CATCH WORDS:     Development Application

LEGISLATION CITED:
Manly Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979

CORAM:        Bly C

DATES OF HEARING:          6/11/03  and 7/11/03

DECISION DATE:     16/12/2003

LEGAL REPRESENTATIVES

APPLICANT
Mr Adrian Galasso, barrister
Instructed by
Mr Michael Staunton, solicitor
of
Staunton Beattie

RESPONDENT
Mr Stephen Griffiths, solicitor
of
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10140 of 2003

Bly C

16 December 2003

Cracknell and Longergan Architects

Applicant

v

Manly Council

Respondent

Judgment

Introduction

1. This appeal relates to development application No. 122/02 for the demolition of the existing heritage listed "Auckland Garage "building at No. 2 West Promenade, Manly ("the site").

1. The building was apparently constructed in 1933, replacing two boarding houses and a dwelling house which had been destroyed by fire in 1930. It was used the for the repair of motor vehicles and the sale of petrol and was also used as a base for the local taxi fleet. These uses continued until the 1980s when the building was variously used as a dry cleaning agency and a car accessory agency.

1. The Auckland Garage is said to have been built in the Spanish Mission style, typical of many service stations in the late 1920s and early 1930s. It comprises rendered brickwork with a terracotta tile gabled roof and has a number of other features typical of the style.

1. There are a number of other heritage listed items in West Promenade including residential flat buildings, a church and  Gilbert Park opposite

Statutory provisions

1. The site is situated within Zone No. 3 - Business under Manly Local Environmental Plan 1988 ("the LEP"). 

1. The Auckland Garage falls within the definition of item of the environmental heritage, having been listed in Schedule 4 of the LEP. Relevantly clause 18 contemplates the demolition of an item of the environmental heritage and provides , in effect , that such demolition shall not take place other than with development consent. Prior to the granting of any such consent an assessment of the significance of the item and the extent to which the demolition would affect its heritage significance is required. Also required to be considered is whether any particular features of the item's setting should be retained.

1. Clause 19 of the LEP requires that consent shall not be granted to a development application for development in the vicinity of an item of the environmental heritage unless there has been carried out an assessment of the effect of that development on the significance of the item and its setting.

Advertising and council's decision

1. The application was advertised and no objections were received. A petition was received from the Manly Civic Club (the owners of the site) which was signed by about 350 people,  supporting the demolition application on the basis that it would enable future expansion of the club to provide greater facilities for the members and for the community at large.

1. The application was also referred to the Corso Precinct Community Forum which advised that it:

strongly supports the preservation and restoration of the historic Auckland garage, on the corner of Gilbert Street and West Promenade, Manly as one of the most significant items of motor transport heritage in Manly, Warringah and Pittwater.

1. The council's decision to refuse the application was communicated to the applicant by way of a Notice of Determination dated 16th December, 2002. The reasons for refusal essentially refer to :  the loss of an item of environmental heritage which is worthy of preservation ; and site contamination and remediation.

The Issues

1. Having considered all of the evidence and the submissions of the advocates and having visited the site and its environs the critical issue before the court is whether the demolition of this heritage item is warranted taking into account its heritage significance and whether it is capable of being adapted for re-use. This issue for needs to be considered  in the context of the requirements of the applicable statutory provisions.

1. The question of site remediation, given its long term use as a garage and a service station, was effectively resolved by the applicant's agreement to the imposition of appropriate conditions of consent should approval be granted. In this context  the applicant's environmental and engineering geologist carried out for a detailed site assessment and concluded that this site was suitable for continued commercial use, there being a minimal risk for human health.

The evidence

1. On behalf of the respondent council expert evidence was given by:

   Mr H Watson - town planner
   Mr I Kirk - heritage consultant
   Miss L Fraser - heritage planner

2. In addition, evidence was given by Mr T Metherhall, the President of the Manly, Warringah and Pittwater Historical Society.

1. On behalf of the applicant expert evidence was given by:

   Mr P Lonergan - heritage architect
   Mr F Fuccenecco - environmental and engineering geologist

Heritage significance of the item

1. The Auckland garage is included in the NSW Heritage Office's Heritage Inventory as:

   A well preserved and rare example of a petrol service station in the Inter War Spanish Mission style dating from the 1930s

1. It is described as a:

Single story rectangular building in Inter War Spanish Mission style with roofed forecourt and garage attached at the rear. Gabled tiled roof with slightly off-centre gable bay to the facade, brick walls with white painted stucco. The building is set at a diagonal to the two streets, the forecourt forming a triangle at the street corner. The gabled bay to the facade and the end walls feature stepping brickwork, windows and doors have semi-circular fanlights and               windows are 12 paned timber framed double hung.

1. Its historical significance is described as:

Rare early petrol service station dating from the 1930s.

1. Its aesthetic significance is described as:

Good example of service station in the Inter War Spanish mission   style.

1. The 1986 Manly Heritage Study describes the Auckland Garage building as follows:

The garage on the corner of Gilbert Street and West Promenade, Manly, is a well preserved example in the Spanish Mission style. Its importance is both architectural and archaeological by association with the motor vehicle. Technologically, little remains above ground apart from the caps to the petrol reservoirs under the forecourt. This type of building should be preserved for its rarity since many examples from the earlier part of this century have been destroyed by road-widening and advances in garage facilities.  It is the location of this garage on a minor street, characteristically on the corner which has allowed it to survive.

Heritage significance criteria

1. According to the NSW Heritage Office's heritage manual ("the heritage manual" ) update titled Assessing Heritage Significance an item's significance can be determined by applying a number of different criteria. Mr Kirk and Mr Lonergan generally applied these criteria insofar as they believed them  to be relevant to the local significance of the Auckland Garage generally as follows.

Criterion (a): an item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area).

1. Mr Kirk said that the Auckland garage met criterion (a) because it is largely intact and has a high historic significance dating from the key period  of development of Inter war service stations in New South Wales. It is one of the very few remaining buildings of this kind that are relatively intact.  Mr Lonergan disagreed because the use has ceased; it does not exhibit the social custom of driving from Manly to Barrenjoey;  there no evidence of a significant human activity; and  no historical process has been continued. The process and activity originally involved were not important and the historical importance is dubious. The building has been altered.

Criterion (c): an item is important to demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area).

1. Mr Kirk said that criterion (c) was a met because  the Auckland Garage has high aesthetic significance as an outstanding example of the style, demonstrating many of the key elements of that style. It is one of the few examples in the Sydney metropolitan area.  Mr Lonergan disagreed because it is not associated with any creative or technical innovation; it is not aesthetically distinctive nor does it have landmark qualities and has been affected by the Civic Club building; and it does not exemplify the style.

Criterion (e): an item has potential to yield information that will contribute to and understanding of NSW's cultural or natural history (or the cultural or natural history of the local area).

1. Mr Kirk said that in relation to criterion (e) the Auckland Garage has a high technical significance because of its intactness and having outstanding research potential. It is therefore an important benchmark as a reference site. It is one of few such buildings in the state that can be readily interpreted for its original design and use and is the only one of its type in the Manly area.  Mr Lonergan said that even though it has some value as an archaeological resource it is not an important reference site; there are others service stations in the vicinity; and the little research potential that this site has would not be affected by the proposal .

Criterion (f): an item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural and natural history of the local area)

1. Mr Kirk said, in relation to criterion (f), and to the best of his knowledge the building is rare in the state and the only Spanish Mission service station in the Manly council area.  Mr Lonergan disagreed because the building does not provide evidence of a defunct custom, human activity or process; is not the only example of its type and it does not demonstrate designs or techniques of exceptional interest.

Criterion (g): an item is important in demonstrating the principal characteristics of a class of NSW's: cultural or natural places; cultural or natural environments; (or a class of the local areas ); cultural or natural places; cultural or natural environments.

1. Mr Kirk said in relation to criterion (g) that  the Auckland Garage has a high significance dating from the key period of development of Inter war service stations in NSW and demonstrating the characteristics of the motor trade, the working-class and the people who operated such service stations. It is a fine example of its type.  Mr Lonergan however said that it was not a fine example of its type indeed it is a poor example of its type. It does not have the principal characteristics of an important class of items; it is not outstanding because of its setting, condition or size or because of its integrity or esteem in which it is held.

The heritage evidence

1. Considering all of the heritage significance criteria together Mr Kirk believed that the Auckland Garage was rare and demonstrates many of the key elements of the period and style and is potentially of State heritage significance.  Its demolition would destroy  this significance which could not be appropriately recognised by recording.

1. In support of these conclusions he argued that the building is reasonably well preserved and in fairly good condition. It is not in such a state of disrepair that demolition would be appropriate . There would be little difficulty in interpreting the building as a former service station because it has not been so altered that this would not be possible. The alterations including the removal of columns, the bowsers and advertising signs are not critical to this conclusion

1. Whilst it is to be recognised that the context of the building has been somewhat compromised it nevertheless reads as being separate from the Civic Club and adaptive re-use could be effected in such a way that it can be appropriately interpreted.

1. The fact that the Auckland Garage is a less exuberant example of a Spanish Mission style garage by comparison with the King Street Motors garage at 426 King Street, Newtown to which Mr Lonergan referred , does not diminish its own inherent significance, notwithstanding that it does not have as many identifying features. it was his opinion that the Auckland Garage is one of the best examples of a Spanish mission service station on the Manly Peninsula despite the existence of a number of other examples of the style in the Sydney metropolitan area and beyond .

1. Miss Fraser essentially agreed with Mr Kirk's arguments as to why the Auckland garage should not be demolished and added further reasons , which derive from an examination of the building in its context ,  in support of its retention. She was concerned at the loss of the building as evidence of Manly's development and its range of architectural styles from the inter - war period.

1. She noted that some of the flats in West Promenade shows signs of Spanish Mission influences which together form a streetscape and backdrop to the heritage listed in Gilbert Park. All of the inter - war buildings in West Promenade compliment each other in terms of architectural style and historical significance and provide cohesiveness in the streetscape. More particularly the Auckland Garage complements the picturesque quality of Gilbert Park especially given its openness, low scale and attractive style.

1. She was also of the opinion that  demolition would have an adverse impact on the heritage significance of the heritage items in the vicinity because the historic links with Manly's development would be lost as would the building's own contribution in terms of architectural style to the setting of the nearby heritage items.

1. As a result of his own assessment of  the significance of the Auckland Garage and a drive-by survey of the eastern suburbs and the Manly peninsula, Mr Lonergan reached a number of conclusions. First the item is not rare, there being a number of other such garages in the local government area which are largely intact or have been adaptively re-used. Second  it is not well preserved as a result of the deterioration of the fabric and having been intrusively altered. it is not a superior example of the Spanish Mission style and its  setting is degraded.

1. Third whilst the item illustrates some of the characteristics of the style that style is better illustrated in other buildings. Fourth , significant use of the item has ceased and this use cannot recommence because of a prohibitive covenant on the title. Fifth the item has lost its association with historical themes and its context has been compromised.

1. He did not accept that the other heritage items in the vicinity illustrated any of the characteristics of Spanish Mission influences. They would nevertheless not be adversely affected by the proposal and if redevelopment of the site could significantly improve the setting and the streetscape presentation.

1. Finally it was his opinion that the demolition of the garage would not mean that its heritage significance would be lost. To the contrary its history, its themes and its context can be preserved by appropriate recording.

Conclusions

1. As earlier identified the central issue in this case is whether the demolition of the Auckland Garage is justified and in this regard it is for the applicant to persuade the Court that, given its listing as an item of the environmental heritage in the LEP, its heritage significance is not sufficient to warrant retention.

1. The requirement in clause 18 of the LEP that an assessment of the significance of the item and the extent to which demolition would affect this significance has in effect been carried out as a result of the various documents and reports provided to the Court. These documents and reports examine in considerable detail the heritage significance of the Auckland Garage as well as its potential for adaptive re-use. They also consider , in terms of clause 19 of the LEP , the impact of the removal of the Auckland Garage from this precinct which contains a number of other close by items of the environmental heritage.

1. It is clear that the building and its heritage values could be recognised and to a degree preserved by the use of written descriptions, photographs and drawings. However the most effective way of doing this involves its retention by means of appropriate adaptive re-use even though this is not something specifically required to be taken into account in terms of clauses 18 and 19 of the LEP. Moreover adaptive re-use would be the most effective way of maintaining the heritage character and significance of this precinct

1. Whilst there is no doubt that the Auckland Garage is capable of being adapted and re-used in conjunction with the redevelopment of the Manly Civic Club's site this is not something which by itself can be determinative of the central issue. If there were no adaptive re-use possible this might support the demolition argument, but adaptive re-use is possible. Moreover it would be possible to adapt the building in such a way that there would be little difficulty in interpreting it as a former service station. This is because the building has not been so altered as to make this impossible. These matters support the conservation of the building.

1. Despite the fact that adaptive re-use is possible, there can be no doubt that the retention of the building restricts the use of the site, a common consequence of a heritage listing. However I do not accept that this is an justifiable reason in support of demolition . Moreover the consequences of any such restrictions, for example in terms of floor space, could be compensated for in other ways. 

1. Notwithstanding that this precinct is not included in a conservation area or identified as having heritage significance in the tendered tourist brochures I am satisfied that the precinct has heritage significance based upon the number of items of the environmental heritage which it contains. Whilst Miss Fraser may not be correct in her assertion that the residential flats in West Promenade shows signs of Spanish Mission influences I nevertheless agree that these heritage listed buildings compliment each other and given their relationship to Gilbert Park  attract a significance which justifies protection.  Although I accept that the context of the building itself has been somewhat compromised it nevertheless reads as being separate from the Civic Club and adaptive re-use could be effected in such a way that it can be appropriately interpreted.

1. Whilst it can be accepted that a photographic record, historical display and interpretive panels can be used to understand the history of the Auckland Garage it cannot be denied that this would be more effective if it were done in conjunction with the adaptive re-use of the building.

1. I also agree that the Auckland Garage would with appropriate rehabilitation complement the picturesque quality of the park. It does not need to be re-used as a service station to achieve this.  I therefore agree that the removal of the Auckland Garage would have an adverse impact on the heritage significance of this precinct.

1. In relation to the condition of the Auckland Garage I am satisfied that the building is reasonably well preserved and in all the circumstances is in a relatively good condition. I do not accept that it is in such a state of disrepair that demolition is necessary. The alterations which have been carried out in the past, including the removal of columns, the bowsers and advertising signs, are not critical to this conclusion.

1. It cannot be denied that the Auckland Garage is a less exuberant example of a Spanish Mission style garage by comparison with the King Street Motors garage at 426 King Street, Newtown. However I agree with Mr Kirk that this does not diminish its own inherent significance, notwithstanding that it does not have as many identifying features. It is however, somewhat unusual being set at a diagonal to its two street frontages especially given its conspicuous position on the street corner when viewed from the park.

1. Although Mr Lonergan may be correct in his opinion that the Auckland Garage is of a Mediterranean style rather than Spanish mission I do not accept that on balance, this affects the heritage significance of this inter-war building.

1. There was considerable dispute as to the number and quality of Inter-war garages on the Manly Peninsula and in the absence of a verifiable study have decided to adopt a conservative position essentially along the lines argued by Mr Kirk that the Auckland Garage is one of the best examples of a Spanish Mission service station on the peninsula. It at least has local heritage significance.  The likely existence of a number of other examples of garages of this style in the Sydney metropolitan area and beyond perhaps indicates that the Auckland Garage does not have state significance, but this does not justify demolition.

1. In all of the above circumstances and taking into account that it attracts at least some importance in terms of the history of motor transport, I have therefore decided that the heritage significance of the Auckland Garage is such that the sought demolition should not be permitted.

Orders

1.The appeal is dismissed .

2.Development application No. 122/02 for the demolition of the existing heritage listed "Auckland Garage " building at No. 2 West Promenade, Manly is determined by the refusal of development consent.

3.The exhibits are returned.

T A Bly
ComMissioner of the Court

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