David Road v Hornsby Shire Council - [2008] NSWLEC 1461

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
David Road v Hornsby Shire Council [2008] NSWLEC 1461

PARTIES:
Applicant:
David Road Pty Ltd

Respondent:
Hornsby Shire Council

FILE NUMBER(S):
10189 of 2008

CATCHWORDS:
Development Application :- demolition of hertiage item

LEGISLATION CITED:

CORAM:
Roseth SCSullivan AC

DATES OF HEARING:
11 November 2008 and 12 November 2008

JUDGMENT DATE:
14 November 2008

LEGAL REPRESENTATIVES

Applicant:
Mr M Craig, SC instructed by Mr J Hones, solicitor of Hones LaHood
Respondent:
Mr I Woodward, solicitor of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Roseth SC
Sullivan AC
14 November 2008
10189 of 2008 David Road Pty Ltd v Hornsby Shire Council
JUDGMENT

Senior Commissioner and Acting Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to demolish the existing heritage-listed building, known as Glenowen, on lot 2 DP 286138, David Road, Castle Hill.
The heritage item
The site is rectangular, 1,063m2 in area, and on the south side of David Road, northeast of its intersection with Treetops Road. The original Victorian Georgian single-storey house, Glenowen, is on the northeast side of the allotment. A two-storey addition, built in the 1930s, adjoins it. The area around, once an orchard, is now low-density housing.
History
In 2004/2005 the council considered an application to subdivide into eight allotments the 6,000m2 parcel on which Glenowen, a property listed as being of local heritage significance, then stood. A Statement of Heritage Impact, prepared by Mr Tony Prescott, a heritage architect, accompanied the application. The Statement was predicated on the premise that Glenowen would be retained and concluded that the subdivision would not adversely affect the significance of Glenowen. Another report, Landscape Heritage Assessment, prepared by Mr Chris Betteridge, also accompanied the application. That report stated:
Glenowen has recently changed hands and the new owner wishes to subdivide the property, not only to obtain a financial return from the investment, but also to help defray the cost of restoring the heritage values of the property and managing them in the future (emphasis added).
In April 2005 the council granted deferred commencement consent to the application. In order to obtain an operational consent, the applicant was required to submit a Conservation Management Plan for Glenowen. The deferred commencement condition said:
The conservation of the existing heritage listed home and treatment to the existing areas within the curtilage shall be carried out in accordance with a detailed conservation report prepared by a qualified heritage architect. The report shall be submitted to Council's Heritage Officer for consideration and approval granted prior to commencement of the consent.
The applicant submitted the Conservation Management Plan in July 2005, whereupon the council released the consent. The Conservation Management Plan undertook to restore and conserve Glenowen. The subdivision works are now complete and several allotments have been sold. No work has been done on Glenowen or its garden.
Some time between 2005 and 2007 the council widened David Road and resumed a 3m wide strip from Glenowen’s front curtilage. As part of the widening, trees and bushes were removed from the front.
In April 2007 the applicant commissioned Mr J Mathias, a heritage architect, to prepare a Reassessment of Significance Following Removal of Most Contributing Elements. The reassessment stated that
…because of the removal of most of the elements contributing to the significance of the property and the house, it is considered that they both now have very low levels of significance such that they no longer need to be conserved.
In June 2007 the applicant lodged an application proposing the demolition of Glenowen. Following notification, the council received one submission. The council refused the application in August 2007 on the basis that Glenowen is a “rare example of a Victorian Georgian style brick homestead”, the demolition of which was not sufficiently justified. The applicant lodged the appeal in March 2008.
Relevant controls and documents
Local Environmental Plan 1994 (LEP 1994) zones the site Residential A (Low Density). Clause 18 deals with Heritage. The objective of cl 18 is
To provide for continuity with the past by conserving the heritage of the Hornsby area and to ensure that Aboriginal heritage is preserved and conserved wherever possible.
Schedule D of LEP 1994 lists local heritage items, including “Glenowen and garden”. Schedule D is based on the Hornsby Shire Council Heritage Inventory, which provides the following statements of significance for Glenowen:
Glenowen Farm:
Significance: rare example of a Victorian Georgian style brick homestead. Fine quality original brickwork and windows. Integrity partly compromised by alterations, but most are reversible. Local significance.
Glenowen Farm Garden:
Significance: rural garden with oak and flame tree remaining from c1850s and remnant windbreaks of well-known' Show Farm' of the 1930s. Of local significance.
The Heritage Development Control Plan is not particularly relevant to an application for demolition.
The Conservation Management Plan of July 2005 that was required to obtain operational consent states that Glenowen has
historical significance as representative surviving local evidence of the history of a typical farm that characterised the orchard industry that originally dominated the rural areas of Hornsby and Baulkham Hills.
and
aesthetic significance as a locally rare example of a farmhouse bungalow in its original street front and garden setting, demonstrating the former rural nature of the district.
The Plan recommends that “the original house should be conserved and adaptively reused”.
Matters in contention
The principal matter in contention is whether Glenowen retains sufficient heritage significance to justify conservation. The council’s Statement of Contentions lists five reasons against allowing demolition, of which it presses four:

Demolition is contrary to the objectives of cl 18 of LEP 1994.
Demolition is inconsistent with the Conservation Management Plan of July 2005 prepared for the site as required by the consent for subdivision.
There is no justification for demolition.
The applicant has not demonstrated exploring options for retention or restoration.

The experts’ evidence

The Court heard the evidence of Mr Harry Partridge, a structural engineer, who was engaged by both parties. According to Mr Partridge, Glenowen is in poor condition but it has no structural problems. The cracks above several openings do not indicate serious problems of settlement and may be repaired relatively easily and cheaply. Underpinning would not be necessary.
15 In response to the council's contention that the applicant has not demonstrated exploring options for retention or restoration, the experts had been requested to consider a range of four options, as follows:

Option A:
Demolish 1930s additions; renovate original Glenowen;
Option B:
Demolish 1930s additions; renovate original Glenowen; add new two-storey wing;
Option C:
Demolish original and additions; build new house on footprint of original Glenowen; and
Option D:
Demolish original and additions; build new house on footprint of original Glenowen; add new two-storey wing.
Mr P Elphick, a quantity surveyor engaged by both parties, prepared a report of the cost of developing the site corresponding to the four options above. The parties accepted Mr Elphick’s figures, and Mr Elphick was not cross-examined.
Mr T Large, a valuer engaged by both parties, prepared valuations of the site as well as of building Options A, B, C and D. The parties accepted Mr Large’s figures, and Mr Large was not cross-examined. The information provided by Mr Elphick and Mr Large may be summarised as follows:

Option A	Option B	Option C	Option D
Land value	$470,000	$470,000	$470,000	$470,000
Bldg costs	$472,000	$678,000	$427,000	$624,000
Total costs	$942,000	$1,148,000	$897,000	$1,094,000
Sale price	$700,000	$900,000	$650,000	$850,000
Loss	$242,000	$248,000	$247,000	$244,000

The heritage experts were Mr P Rappoport, for the applicant, and Mr P Romey, for the council, both of them heritage architects. The experts agreed that the property had undergone substantial alterations. These alterations led to the removal of some original elements and the replacement of others. They agreed that the condition of the cottage has deteriorated during recent years, due to vandalism and lack of maintenance. They agreed that, despite this deterioration, the cottage maintains its basic plan, form and scale and a number of its original or early elements.
In summary Mr Rappoport and Mr Romey agree:
From the west, south and east, including views from the public realm of David Road, the cottage is recognisable as an early building in a remnant rural landscape.
In oral evidence, Mr Rappoport added that the rural landscape would not be in evidence after the surrounding allotments had houses built on them.
The experts disagree on all the matters in contention. Mr Rappoport’s opinion is that, given the overall reduction in intactness, integrity and curtilage, too much conjecture would be required to rehabilitate the house and that at this stage it is not capable of meaningful conservation. He therefore believes that demolition is the appropriate course of action. Mr Rappoport summarised his reasons for his as follows:

The continuing reduction in curtilage has reduced its historical significance. That significance has also been dislocated by the change in land-use patterning in Cherrybrook from agriculture to residential.
It is in poor condition and the structural damage has resulted in a demonstrable loss of integrity.
Reduction in significance had already occurred in the mid-1930s, with inappropriate additions such as brick verandas and the addition of a wing.
The neglect of the last four years has led to a worsening state of disrepair.
The retention of Glenowen would result in the loss of about $240,000 to the owner. In these circumstances, there was a poor prospect for future effective management.

Mr Romey took issue. In his opinion, Glenowen should be retained for the following reasons:

Despite the additions and poor repair, it remains an item of local significance. It is rare, as there are only three buildings of similar significance within a 3.3km radius of the site.
·
While vegetation has been destroyed, there is still ample space around the building to suggest its original rural setting, and judicious replanting can restore a lot of the feel and scale of the garden setting.
The loss of the building would be the loss of a link with the area’s past as an agricultural area, which Glenowen still demonstrates.

In cross-examination, Mr Romey agreed that, in reaching his opinion, he had not taken the cost of regtention into account.
Findings
Is there sufficient heritage significance left to justify retention?
It is common ground that, at the time the council approved the Conservation Management Plan, the Glenowen house and garden were of local heritage significance and were worth conserving. The Conservation Management Plan unequivocally indicates this intent.
We note that the Hornsby Shire Heritage Inventory lists the house and garden separately and attributes individual local significance to each element. There was considerable discussion as to whether the LEP listing of 'house and garden' constitutes one listing or two. We are inclined to the view that both the house and garden can be said to have individual local significance. This is because the LEP is based on the assessment of heritage significance of items as described in the Heritage Inventory. However, it is also clear that the significance of each is augmented by the existence of the other. We have therefore discussed these elements separately, but also taken into account their interrelationship.
The experts agree, and we accept, that, since July 2005 when the Conservation Management Plan was prepared the significance of the house and garden has been reduced by changes to the curtilage, the removal of vegetation, vandalism and lack of maintenance. All of these events are regrettable. We note that the council’s widening of David Road outside the property ignored heritage advice in favour of engineering objectives and caused considerable damage to its heritage significance. This ill-considered action has contributed to the strength of the applicant’s argument that Glenowen’s heritage significance is now so diminished that it should be demolished.
Taking all of this into account, the key question to be resolved is whether the property now retains local heritage significance. We reject the findings of the Reassessment of Significance report commissioned by the applicant and completed in April 2007. We agree with Mr Romey that the property still retains heritage significance for the following reasons:
As in 1994, the house itself retains most of the elements for which it was listed. It remains a rare example of a Victorian Georgian style brick homestead with fine quality original brickwork and windows. It still represents the previous history of the area. It has a prominent position and will still be visible as a heritage building representative of the area’s history. The accretions of later development, which are without heritage significance, can be removed. The cracks that have appeared in the original brickwork are common in houses of this vintage, do not detract from significance and are remediable. Since the basic structure of the house remains and additions are readily apparent, it is feasible, using Burra Charter principles, to restore it in a way that will enhance the heritage values noted at the time of listing.
Mr Rappoport has argued that too much conjecture would be required to rehabilitate the cottage because there is little original fabric remaining. On the contrary, in our opinion the original fabric of the cottage that was present in 1994 is still largely there.
We accept that the garden has been more seriously impacted. The loss of landscape elements certainly diminishes the significance, but enough curtilage remains to allow the restoration of elements of the historic garden setting, albeit in a modified and diminished form. This in turn will augment the significance of the house. All historic gardens alter over time and replacement plantings are inevitable. The Landscape Heritage Assessment and other documentation provide sufficient evidence of previous plantings to allow sympathetic re-landscaping. This landscaping can partially restore the significance of the setting and screen out adjacent unsympathetic development.
Mr Rappoport argued that the historic significance of the property has been dislocated by the land-use change from farming to residential. Certainly, little evidence of farming remains in the Cherrybrook/Castle Hill area, and in this sense the remaining building and curtilage can be said to be an anomaly. However, it is an important anomaly in historic terms, standing as a rare witness at a local level to previous history, land-use, and way of life. A restored house and garden in a sea of project housing would by its very difference assist in interpreting this past to the public.
In summary we find that the house and garden retain local heritage significance. In our opinion, cl 18 of LEP 1994 applies to Glenowen and the proposed demolition does not comply with the objective of that clause. The fact that this property is not one of the most significant heritage places in the Shire does not justify its demolition. All places of local significance contribute to the overall richness of the Shire’s heritage.
The economics of retention
The table at Paragraph 17 indicates that the four options that the parties investigated all result in a loss of about $0.25 million. In our opinion, however, only Option B has any relevance. This is because Options C and D involve the demolition of Glenowen, so they have no advantage from a heritage conservation viewpoint; and they also involve restricting new development to the footprint of the existing, which makes no sense at all. Options C and D would result in a financial loss to the applicant without any public benefit being achieved. Option A, which involves the retention and renovation of the original Glenowen without any new addition, would be desirable from a heritage viewpoint, however a house of 80m2 on a “quarter-acre” block in Castle Hill (a suburb in which houses of 500m2 are considered small) is likely to be unsaleable. We have therefore concentrated on Option B, which involves the demolition of the unsympathetic additions, the refurbishment of the original Glenowen and the sympathetic addition of a new two-storey wing. This option is more likely to have market appeal and therefore lead to the overall conservation of Glenowen. It is therefore acceptable on heritage grounds.
The Table in paragraph 17 indicates that, on the assumption that the land parcel is worth $470,000, the development of the site according to Option B would lead to the loss of $248,000. However, the Table also shows that it would cost $678,000 to construct and renovate according to Option B, and that the resulting development (ie a refurbished Glenowen with a sympathetic addition of a new two-storey wing) could be sold for $900,000. We reason from this that the value of the land parcel on which demolition of Glenowen is not permitted, is the difference between $900,000 and $678,000, ie $222,000. This means that the obligation to retain Glenowen reduces the value of the land parcel from $470,000 to $222,000.
We are sufficiently aware of the realities of development to know that the above does not guarantee Glenowen’s survival. There is no legislation to compel an owner to look after an item of local significance. The council missed its chance in 2005 to ensure Glenowen’s survival by failing to impose a condition of consent that would require renovation to be completed before the subdivided allotments can be registered. Mr Rappoport may well be correct in his suggestion that the refusal of this application will lead to continued neglect until Glenowen eventually collapses and its retention becomes impractical. However, the evidence in the Table in paragraph 17 justifies us in the conclusion that, as long as retention is required, there is more money in renovating Glenowen than in neglecting it.
We are strengthened in our conclusion by the fact that, in seeking approval for the subdivision, the applicant stated that it “wishes to subdivide the property, not only to obtain a financial return from the investment, but also to help defray the cost of restoring the heritage values of the property and managing them in the future” (see paragraph 3).
We accept that part of the reason for the diminution of Glenowen’s heritage significance is due to the council’s action in widening David Road and the subsequent removal of vegetation. While we agree with the applicant that this is regrettable, it is not sufficient reason to justify demolition. The primary motivation for our decision is the finding that Glenowen retains sufficient heritage significance to justify retention; however, we are also mindful of the fact that much of the physical deterioration of the building has occurred since 2005. If we accepted that recent deterioration is a justification for demolition, it would signify that, in order to be allowed to demolish a heritage item, an owner needs only to neglect it.
For the above reasons, the appeal is dismissed.

Orders

The appeal is dismissed.

Development application to demolish the existing heritage-listed building on lot 2 DP 286138, known as 3 Glenowen Way, Castle Hill is determined by refusal.

The exhibits are returned.
_______________ __________________
Dr John Roseth Sharon Sullivan

Senior Commissioner Acting Commissioner