Fite v Lane Cove Council

[2008] NSWLEC 85

Land and Environment Court

of New South Wales

CITATION:

Fite and Anor v Lane Cove Council [2008] NSWLEC 85

PARTIES:

Applicants:
David Fite and Danita Lowes

Respondent:
Lane Cove Council

FILE NUMBER(S):

10881 of 2007

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- demolition of local heritage item

LEGISLATION CITED:

Lane Cove Local Environmental Plan 1987

DATES OF HEARING:

30/01/2008, 31/01/2008 and 01/02/2008

 
DATE OF JUDGMENT: 

26 February 2008

LEGAL REPRESENTATIVES:

Applicant:
Mr T Robertson SC instructed by Mr J Cole, solicitor of HWL Lawyers

Respondent:
Mr S Griffiths, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

26 February 2008

10881 of 2007 David Fite and Danita Lowes v Lane Cove Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Lane Cove Council of an application to demolish the existing buildings, consolidation of two allotments, a boundary adjustment and the construction of two dwellings on lots 1 and 2 DP 333694 (10 Poole Street), lot 11 DP 601751 (12A Poole Street) and lot 10 DP 601751 (12 Poole Street), Longueville.

2 Of all the proposed actions above, the only one in contention is the demolition of Derwent House, which stands on 10 Poole Street and is an item of local heritage.

The site

3 The site consists of three allotments. 10 Poole Street adjoins the Lane Cove River and contains Derwent House, an item of local heritage, which is well set back from the foreshore with a sloping garden towards the water and a swimming pool at the water’s edge. It is a battle-axe allotment accessible from Poole Street and its area is 3,206m2.

4 12A Poole Street is also a battle-axe allotment. It has an area of 613m2. It contains a two-storey house with an in-ground swimming pool.

5 12 Poole Street has an area of 570m2 and direct frontage to Poole Street. A two-storey house and an in-ground swimming pool now occupy the site.

6 Longueville is a waterside suburb characterised by large houses on large allotments with leafy gardens.

The proposal and its history

7 The applicant proposes to demolish the buildings on the site and to erect two dwellings on it. The demolition of the dwellings on 12 and 12A Poole Street is not in contention. The merits of the proposed replacement buildings are in contention only in respect of the question whether they promote ecologically sustainable development. The demolition of Derwent House on 10 Poole Street is the principal matter in contention.

8 The applicant lodged the application in December 2005. Following notification, the council received 20 submissions, of which one was in favour of the proposal, while nineteen were objections. In August 2007 the council considered its town planner’s report recommending refusal. In September 2007 the council accepted the recommendation and refused the proposal. The applicant filed the appeal in September 2007.

Relevant controls, policies and advisory documents

9 Local Environmental Plan 1987 (the LEP) zones the site 2(a) and lists Derwent House as an item of local heritage. Clause 18A(3) states that, in respect of development applications altering or demolishing an item of heritage:

When determining a development application required by this clause, the council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area.

10 The applicant’s first contention is that Derwent House has no heritage significance. Its second contention is that, even if Derwent House has some heritage significance, the new development is so meritorious that, on balance, it should be approved, notwithstanding demolition of the heritage item.

11 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the REP) and Sydney Harbour Foreshores Areas Development Control Plan. The REP makes reference to heritage items, however the reference is probably to those items that are specified within the REP itself, and Derwent House is not among them. The relevance of the REP is only that it requires the assessment of a development on the foreshores from the point of view of its impact on the scenic quality of the Harbour. Since the proposal would change the appearance of the site by replacing Derwent House with a modern building, albeit in the same alignment, the REP has relevance.

12 The NSW Heritage Office’s publication Assessing Heritage Significance provides the criteria for assessing heritage significance. The NSW Heritage Office’s publication Statements of Heritage Impact provides guidelines for assessing heritage impact.

The objectors’ evidence

13 During the Court’s visit to the site about one hundred people were in attendance. (The list of attendees appears unreliable since it contains some names more than once.) I am aware that one of them (Mrs Lynch, see below) was a supporter of the application. While it was not possible to establish each person’s opinion of the proposal, it appeared that the majority of people on the site came to object to the demolition of Derwent House. I note that a flyer had been placed in letter boxes, which said

This beautiful home will be replaced with compound six times the size of a large five-bedroom home.

14 Despite the above qualifications, one hundred people on a site during a Court visit is a relatively large number. The only inference I draw from this is that the proposal has attracted a certain degree of public awareness. The number of attendees had no influence on my decision.

15 The following objectors gave evidence on the site. Ms A Burke, said that she was related to the previous owners. She believed the house could be altered so as to suit a modern family. Ms A Dodds, who was also related to the previous owners, supported Ms Burke’s view.

16 Mr T Murray, who lives at 3 Poole Street adjoining the proposal, mentioned his dread of a huge structure invading his rear yard. Mr M Bennett, who lives at 1 Stuart Street, thought that the proposal would appear like the Great Wall of China. I note that the council did not support the last two objectors. Mr R Boyer, who lives at 1 Stuart Street, said that he was concerned about a high building next to him. It was common ground among the experts that the proposal’s impact on neighbours was acceptable.

17 Ms P Bradley said that she has restored an old house that was in far worse condition than Derwent House. Mr D Smith, the President of the Lane Cove Historical Society, said that his group has received many requests to fight the proposal. He pointed out that “heritage is not something that can be achieved overnight”. Ms R O’Conner, supported the retention of Derwent House. She pointed to the large size of the proposal and its demolition of three existing properties. Ms C Cook, a member of the Northwood Action Group, pointed to the cultural links of Derwent House, particularly with the painter Brett Whiteley.

18 A further objector, Mr J Kensh, gave evidence in Court. Mr Kensh used to live at 12A Poole Street between 1989 and 1995. He considered Derwent House attractive. He often sailed the Harbour and found that Derwent House stood out from the rest of the buildings, which were undistinguishable from each other.

19 Three supporters gave evidence in Court. Mrs D Lynch, who lives at 5 Stuart Street in a heritage-listed property, said that she supported the application. She is not fond of Derwent House and does not see it from her place. Mr A van Heyst told the Court that he made a bid for Derwent House when it was on the market two or three years ago. He found it a difficult house and realised that he would try to demolish it or, if not allowed because it is a heritage item, he would do extensive renovations. Ms K Leslie said that she had looked at Derwent House when it was on the market. She did not consider it suitable for her family of five children and consequently she did not bid for it.

The issues

20 The council submitted its Statement of Contentions listing nine matters. At the commencement of the hearing, the council’s advocate, Mr S Griffith, nominated two matters as being the principal issues in the case:

• Is the proposed demolition of Derwent House acceptable?
• Does the proposal meets the ESD objectives of the EPA Act?

Proposed demolition of Derwent House
The experts and their points of agreement

21 The heritage experts were Mr M Robinson, a heritage architect retained by the council; Mr G Jahn, an architect and an expert on the history of Sydney architecture retained by the applicant; and Mr S Davies, a planner and heritage consultant also retained by the applicant.

22 The experts agreed on a number of points of which the following are relevant:

• Derwent House is in good condition and retains most of its original detail.
• The landscaping to the waterfront, which is to be retained, contributes to the character and amenity of the Lane Cove River.
• The heritage significance of Derwent House has not been established in the Inventory of the Moore-Pike-Tropman study (see below). The heritage significance of an item listed in an LEP should be reassessed when a development application is submitted.

The listing Derwent House

23 The inclusion of Derwent House as an item of heritage in the LEP followed the recommendation of a heritage study carried out by three heritage experts, Robert Moore, Penny Pike and Lester Tropman, in 1987. The study resulted in an Inventory on which Derwent House was one item recommended for inclusion in the list of local heritage items. The inclusion dates from the gazettal of the LEP; thus Derwent House has been a heritage item for more than twenty years. The Moore-Pike-Tropman study has the following note against Derwent House:

Substantial house of mid-Wars period in picturesque cottage style. The present appearance of the house may be a modernisation of a Queen Anne style residence.

24 With subsequent research carried out in conjunction with this application, it is clear that the second sentence in the above note is a mistake. The house was designed by the architect Forsyth Evans, and built during the 1930s. Forsyth Evans was an architect who designed mainly hotels and apartment buildings. Derwent House may be the only house he designed. It was common ground among the experts that the house incorporated a melange of styles, though it was a matter of dispute whether the lack of architectural purity should disqualify it from being a heritage item.

25 The applicant made much of the note about modernisation of a Queen Anne style residence, claiming that this indicated just how superficial and mistaken the original assessment by Moore, Pike and Tropman was. I do not think that this is a fair conclusion. The assessment was clearly based on a visual inspection, though this could not have been from a windscreen survey, since Derwent House is not visible from Poole Street.

26 The assessment and recommendation for listing in the heritage study was preliminary, related to the resources available for examining a very large number of buildings, and it was not based on historical research; however it was neither careless nor thoughtless.

27 The applicant’s advocate, Mr T Robertson, pointed out that only Derwent House is listed as an item, and not its site including the landscaping between it and the foreshore. He reasoned from this that those responsible for the listing intended that the foreshore landscaping be developed with another building. I reject that the listing of only the building justifies the assumption that those responsible for listing had the intention of obscuring Derwent House from the water, thus making it invisible from any aspect.

The view of the Heritage Council of NSW

28 Clause 18C of the LEP requires the council to notify the Heritage Council of a development application in respect of an item of local heritage and to take the Heritage Council’s comments into consideration. The Heritage Council commented on the subject application as follows:

Although the property is not listed on the State Heritage Register, the residence is an imposing architect-designed building, visible from the Harbour, purpose designed to take advantage of all views and is intact. While not the consent authority in this instance, the Heritage Council does not generally support the demolition of any heritage item, especially if there are alternatives to it. In this instance the Heritage Council would recommend that Lane Cove Council consider alternatives to the demolition of this locally significant building.

29 The experts disagreed on what precisely this letter means. It seems to me beyond doubt, however, that, at the very least, it suggests that the council (and therefore the applicant) should consider alternatives to demolition.

The significance of listing

30 The Moore/Pike/Tropman study includes the following paragraph:

Council must acknowledge that the Inventory, as first published, is preliminary and will remain an open document for the addition of further heritage items as they are recognised, or deletions as the status of listed items may be further clarified or affected by other decisions.

31 Mr Robertson, submitted that being listed as a local heritage item does not carry with it a presumption against demolition. The fact that an item is listed means only that further assessment of its significance is required before demolition or alteration is given consent. I accept this submission, with one proviso. While in respect of a non-listed item a purchaser would normally assume that demolition or alteration within the constraints of development control is likely to be given consent, in respect of a listed item, a prudent purchaser would assume that demolition might not be given consent.

Listing criteria

32 The NSW Heritage Office’s publication Assessing Heritage Significance lists seven criteria for assessing whether an item has heritage significance. According to Mr Robinson, Derwent House qualifies on three of these criteria, namely:

Cultural or natural history;
Creative or technical achievement; and
Representativeness.

33 Mr Davies and Mr Jahn disputed that Derwent House qualifies under any of the above criteria; however, it was common ground that the above three criteria are the only ones under which the heritage significance of Derwent House should be assessed.

Cultural or natural history

34 According to Mr Robinson,

The house is a prominent and distinctive building on the foreshore of the Longueville peninsula and the Lane Cove River, and demonstrates the significant inter-War phase of domestic building in the evolution of the development of the suburb.

35 Mr Jahn and Mr Davies disagreed. They did not think that the house was either prominent or distinctive. Because its designer had failed to select a single architectural style (such as, for example, the Mediterranean style favoured by Professor Leslie Wilkinson and his disciples), it cannot claim any architectural excellence or originality.

36 I find Mr Robinson’s evidence more persuasive than Mr Davies’s or Mr Jahn’s, who seem to me to have an academic approach. Why is it better to borrow one single architectural style, such as the Mediterranean or Californian bungalow, both of which were imported from other places, than to borrow several styles adapting them to one building? It seems to me that the argument rests entirely on semantics: if experts like a mixture of styles, they call the building eclectic, while, if they dislike it, they call it a melange of styles.

Creative or technical achievement

37 According to Mr Robinson, Derwent House has several features that qualify it as a heritage item under this heading. He referred the Court to a quote from Apperley, Irving and Reynolds, A Pictorial Guide to Identifying Australian Architecture that is relevant in the context of these proceedings, ie:

Australian architecture of the inter-War period was highly eclectic and generally rather conservative.

38 Mr Robinson drew attention to the following elements of Derwent House:

• It is a good and intact example of inter-War residential architecture, one of the principal characteristics of which is described in the above quote.
• The design by respected Sydney architect Forsyth Evans successfully combines elements of the closely related inter-War Georgian revival and Mediterranean styles into an integrated composition which fits comfortably in its landscaped waterfront setting resulting in pleasing visual presentation of a picturesque cottage style.
• The house has been purpose-designed for its prominent riverfront setting with a number of notable features, including its informal asymmetrical massing, angled wing facing the river, cantilevered balcony with two-storey columns off the master bedroom, and consistent but restrained detailing.
• The interior also has a number of notable features including a circular stair hall containing an elegant self-supporting spiral staircase, parquetry flooring, Huon Pine wall panelling and doors with Sycamore panels, telephone room off the stair hall, large one-piece sandstone mantelpiece in the living room, sprung sunroom floor and restrained plaster cornices and other decorative elements.

39 Mr Jahn and Davies took issue. While they agreed with the above description of the building, they considered every one of the above features, apart from the intact nature of the property, as a reason to disqualify Derwent House from being a heritage item. Forsyth Evans was not a good architect, having designed only one building of any note, the Chilterns apartment building in Rose Bay. Derwent House, being the only house he designed, was badly planned; the rooms were unsuited to modern living, the melange of styles was a negative feature; the informal asymmetrical massing was a liability for a modern owner, the cantilevered balcony and two-storey columns off the master bedroom were examples of form not expressing function; and the restrained detailing was unexceptional. Finally, the circular stairway, praised by Mr Robinson, was an example of bad planning because one could bump one’s head against it. It was one of the reasons given in support of demolition.

40 In my opinion, the only thing the above disagreement demonstrates is the highly subjective nature of architectural and heritage assessment. In my opinion, Mr Robinson’s evidence is more convincing than that of Mr Jahn and Mr Davies. It seems to me wrong to assess the architecture of the 1930s from the vantage point of the twenty-first century. Architects now believe that modern contemporary buildings should express contemporary architectural form. We would now not build a library looking like a Greek temple, but when the NSW Public Library was built, some two thousand years after the era of Greek temples, that was the style adopted.

41 It appears that the strongest single criticism of Derwent House by Mr Jahn and Mr Davies was that it had borrowed from a number of architectural styles. Possibly Forsyth Evans was a maverick among architects and did not follow the rules of the then architectural establishment. Wherever the truth of that lies, Derwent House is a good and intact example of inter-War residential architecture. It fits comfortably in its landscaped waterfront setting and is a pleasing and highly visible building from the Lane Cove River.

Representativeness

42 According to Mr Robinson, Derwent House is a good representative example of architectural design in the inter-War period, applied to a substantial detached residence in a prominent waterfront location. It is important in demonstrating the aesthetic tastes and practices of wealthier upper middle class Australians in the period. Its intactness and integrity and its waterfront setting make it an outstanding example of its type.

43 Mr Jahn and Mr Davies disagree. For the reasons mentioned above, I prefer Mr Robinson’s evidence. In my opinion, Derwent House has heritage significance and its listing as an item of local heritage is justified.

Alternatives to demolition

44 The NSW Heritage office’s publication Statements of Heritage Impact suggests that the following questions should be asked when considering the demolition of a heritage item.

• Have all options for retention and adaptive reuse been explored?
• Can all of the significant elements of the heritage item be kept?
• Is demolition essential at this time or can it be postponed in case future circumstances make its retention and conservation more feasible?
• Has the advice of a heritage consultant/specialist been sought? Have the consultant’s recommendations been implemented? If not, why not?

45 I note that the response of the Heritage Council (see paragraph 28) to the notification of the proposal involving demolition of Derwent House also suggests that Council consider alternatives to the demolition of this locally significant building. It seems to me that an honest search for an alternative solution is essential to the assessment of the application involving complete demolition.

46 Unfortunately little time was spent on discussing alternatives during the hearing. I note that Mr Jahn’s report does deal with the question of alternatives. On page 17 he presents two alternatives, which he calls Alternatives A and B. Alternative A retains Derwent House and places a new building between it and the foreshore. This is clearly undesirable, since, while retaining Derwent House, it would hide it from view from the water. Alternative B appears a much more viable solution, the garage of Derwent House is demolished and a new building is placed alongside and behind it. While Mr Jahn’s Alternative B shows the new building closer to the foreshore than Derwent House, a small amendment bringing it back to the same alignment would, in my opinion, make Alternative B a highly desirable alternative to demolition.

47 Mr Jahn dismisses both alternatives on page 19 of his report:

It is my opinion that, while there are alterative design approaches to the full demolition of the existing building, they are not as successful in architectural terms (building quality for the occupants) or in scenic landscape and urban design terms (public domain quality as viewed from Hunters Hill or the Lane Cove River) and do not preserve without significant intervention the dwelling/landscape relationship of the existing structure.

48 I do not accept the above evidence. While it is true that Alternative B does not suit the particular future occupants (ie the applicants) as much as complete demolition, this would not be true of other occupants who appreciate a heritage building. As for contribution to the scenic quality of the Lane Cove River, Alternative B, which retains the main part of Derwent House and places the new elements alongside and behind it, is far superior to a solution based on complete demolition.

Meeting the ESD objectives of the EPA Act

49 The proposal is to replace three existing houses (including Derwent House, with two houses, the smaller one of which appears functionally to be tied to the larger. (For example, it contains a private squash court in an otherwise average size house.) The new proposal has in excess of 2,000m2 of air-conditioned floor space.

50 It seems to me that the council’s contention that the proposal does not promote the Act’s objective of ecologically sustainable development arises from the perception that the proposal is too large and uses too many resources for the needs of a single family. However, its Floor Space Ratio is not high because the site is so large. I do not think that it is reasonable to refuse a proposal only because it is large, so long as it complies with the planning controls, which this proposal does.

51 The Court heard the evidence of Mr T Elgood, an ESD strategist engineer retained by the applicant, and Mr S King, a consultant architect. It is clear that the applicant has attempted to reduce the environmental footprint of a very large house by using energy from natural gas and from the sun. The experts had reached agreement on many points; the main difference between them was that Mr King considered that Mr Elgood’s figures depended on assumptions that could not be verified and any change in assumptions would significantly change the conclusions.

52 I found the evidence inconclusive. Clearly, the application was subjected to an analysis of green house emissions that is unusual in the assessment of single houses, indeed of any building. In my opinion, the environmental footprint of this building is a neutral element in the assessment of the application. I note that Mr Robertson’s submission that the environmental performance of the proposal should be a factor in favour of approval, however, I do not think it would be appropriate to identify this proposal as an example of ecological sustainability, given its 2,000m2 of air-conditioned floor space, two private swimming pools and a squash court. It seems to me that the future of sustainable design lies in more modest abodes.

53 As stated above, the environmental performance of this building is neither a reason for refusal, nor a factor in favour of demolition of the heritage item.

Conclusions

54 This judgment finds that Derwent House has local heritage significance. Demolition would destroy that significance. The proposal does not seriously consider alternatives to demolition, of which at least one is entirely feasible.

55 Mr Robertson submitted that the merits of the new house should be balanced against the demolition of Derwent House. While the new house is acceptable and would probably be approved on a site that does not contain a local heritage item, there is nothing so meritorious about it that it would justify the demolition of Derwent House. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings, including an item of local heritage, consolidation of two allotments, a boundary adjustment and the construction of two dwellings on lots 1 and 2 DP 333694 (10 Poole Street), lot 11 DP 601751 (12A Poole Street) and lot 10 DP 601751 (12 Poole Street), Longueville is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner