Hamilton v Woollahra Municipal Council

[2019] NSWLEC 1313

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hamilton v Woollahra Municipal Council [2019] NSWLEC 1313
Hearing dates:	13 –14 June 2019
Date of orders:	01 August 2019
Decision date:	04 July 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development consent is granted for DA 208/2017 for the demolition of an 1890's single-storey timber cottage fronting Gap Road, the construction of 2 x two-bedroom serviced apartments fronting Gap Road, the retention of the existing sandstone building fronting Military Road and the excavation and construction of provision of three parking spaces and turntable, garbage storage at basement level, with access from the Military Road frontage, subject to conditions in Annexure ‘A’. (3)   All exhibits are returned, except for Exhibits D, P and 10.
Catchwords:	DEVELOPMENT APPEAL – proposed demolition of heritage item – Watsons Bay heritage conservation area – adaptive reuse – statement of heritage significance
Legislation Cited:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Berk & Kersch v Woollahra Council (Land and Environment Court of New South Wales, Assessor Bly, 13 May 1996)
Texts Cited:	Burra Charter, Australian ICOMOS Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Robyn Hamilton (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) J Cole (Respondent)   Solicitors: Hartley Solicitors (Applicant) Woollahra Municipal Council (Respondent)
File Number(s):	2018/120996
Publication restriction:	No

Judgment

Introduction

1. COMMISSIONER: The applicant, Ms Robyn Hamilton, is the owner of 25 Military Road, Watsons Bay. Ms Hamilton is appealing the refusal of Development Application DA 208/2017 by Woollahra Council, pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the demolition of an 1890's single-storey timber cottage fronting Gap Road, the construction of 2 x two-bedroom serviced apartments fronting Gap Road, the retention of the existing sandstone building fronting Military Road and the excavation and construction of provision of three parking spaces and turntable, garbage storage at basement level, with access from the Military Road frontage.

2. The site is located on the eastern side of Military Road, close to the intersection with Gap Road. The two roads meet at an acute corner, and so the site spans between Military Road and Gap Road.

3. It has a western boundary along Military Road of 15.62m and is fronted by a single storey sandstone building. The eastern boundary, which fronts Gap Road, is 13.07m in width and is fronted by a timber weatherboard cottage with a modest setback. The subject site has an area of 297.2m².

4. The Court attended an on-site view on 13 June 2019 in the presence of the parties, their experts and the owner of the site. There were no objectors who wished to speak.

5. As the contentions include the relevance of views of, from and around the site, the Court was taken by the parties to a number of locations in the area during the on-site view including a walking tour of Cove Street, Cliff Street, Robertson Park opposite the site, the Gap Bluff, and the former tramway corridor.

6. Of particular interest to the parties during the on-site view were the vantage points at which the timber cottage on the site could be seen, as well as the views to the Watsons Bay Town Centre, and the distant views to the CBD, Sydney Harbour and the Sydney Harbour Bridge.

7. It is common ground between the parties that the site is a heritage item listed in Schedule 5 of the Woollahra Local Environmental Plan 2014 (WLEP) as Item 446, Building and Interiors, at Lot 3, DP 76137, located within the Watsons Bay Heritage Conservation Area (Watsons Bay HCA) and the Military Road commercial centre which is zoned B1 Neighbourhood Centre.

8. The aims of the WLEP include, relevantly, at cl 1.2(f) “to conserve built and natural environmental heritage”.

9. Clause 2.3 of the WLEP requires a consent authority to have regard to the objectives of the zone when determining a development application in that zone. The objectives of the B1 Neighbourhood Centre zone are as follows:

Zone B1 Neighbourhood Centre

•  To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

•  To provide active ground floor uses to create vibrant centres.

•  To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.

•  To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

•  To provide for a range of other uses, including light industrial, that serve the surrounding neighbourhood without impacting on the amenity of the adjoining uses.

10. The parties agree that the proposed development is within the height limit set out in cl 4.3 of the WLEP, and does not breach the allowable floor space ratio found in cl 4.4 of the WLEP.

11. According to the respondent, the proposal is inconsistent with a number of the provisions of the Woollahra Development Control Plan 2015 (WDCP) for the Watsons Bay HCA including:

1. The proposal offends the statement of significance for the Watsons Bay HCA found at C3.2.3, which states:

“Watsons Bay is a place of great natural and scenic beauty. It is a rare combination of a dramatic and varied coastal landscape and a village that evolved from the first landing point in Sydney Harbour in 1788, the third permanent settlement in New South Wales from 1790 and a pilot station established in 1792. It conveys a strong sense of its maritime heritage in its built and landscape features that evidence four key historic themes:

• The growth of a village: Evident in the subdivision and development pattern that occurred during the 19th century and continued throughout a number of phases. These phases are demonstrated in the range of building types still present in the area, from moderately scaled fisherman’s cottages, more substantial houses and marine villas to Inter-war period housing and community buildings.

…

• Recreation and tourism: Dating from as early as 1803, there has been a strong emphasis on water related tourism facilities, such as hotels, beach promenades and parks. Tourism was further enhanced as a result of the area's association with shipwrecks and by association with important cultural figures such as Christina Stead and Zane Grey. The extensive and varied landscape and village character also contributes to the appeal of Watsons Bay to tourists.”

2. The proposal does not reflect the key heritage values found at C3.2.4, including:

“• Historic (evolution)

• Historic (association)

• Aesthetic

• Social

• Scientific (ability to yield information)”

3. The proposal is contrary to the following aspects of C3.2.5 which outlines the methodology adopted by Council when assessing development applications in the Watsons Bay HCA as follows:

“O1 To conserve the heritage significance of the Watsons Bay HCA.

O2 To conserve heritage items and contributory items (i.e. those properties, landscape elements and other features identified as contributing to the significance of the Watsons Bay HCA), including significant fabric, curtilages and settings.

O3 To retain the key heritage values of the Watsons Bay HCA, including its natural and cultural scenic beauty the built and landscape evidence of its historical development, the low-scaled village character, views and vistas to landmarks and water, the backdrop of vegetation, the predominance of landscape over buildings, sheltered beaches and tranquil ambience.

O4 To encourage the reconstruction of heritage items and contributory items that have been unsympathetically altered, including reinstatement of missing elements.

…

O6 To ensure that proposed development is compatible with the significance and character of the Watsons Bay HCA.”

4. The proposal does not meet the objectives, or comply with the controls found in:

“C3.3.1 – Topography and vegetation

C3.3.2 - Townscape

C3.3.4 – Views and vistas (including Map 4)

C3.3.5.2 - Building siting and alignment, objectives 04 and 05

C3.3.5.3 – Building height, objectives 01, 03-04

C3.3.5.4 - Building Form, objectives 01-03

C3.3.5.5 - Building character, objectives 01-03

C3.3.5.6 - Building materials and details, objective 01

C3.3.6 - Landscaping and private open space, objectives 01, 04 and 07

C3.4.4 – Character statement, controls C1, C5, C21, C22, C24, C25, C32, C33, C35, C41 (including Figure 24)

C3.4.12 – Character Statement and Guideline, G2

C3.4.15 - Character Statement and Guideline G2

C3.4.4.1 - Townscape, and control C5

C3.4.5 - Character statement, and controls C1, C6, C8-C10, C15, C19, C21, C23 and C26-28

C3.5.4 – Views and Vistas, controls C1, C2, C4 and C5

C3.5.5 – Built Form, controls C42-C45

C3.6 - Contributory items: additional built form controls, objectives 01, 02, 04, 05 and controls C1 and C2

C3.7.1.1 - Alterations and additions to contributory items, objectives 01-04

C3.7.1.2 - Siting and alignment, controls C1 and C3

C3.7.1.3 - Height of additions, controls C1 and C2

C3.7.1.4 - Form and character, control C2”

12. The parties agree that the site, having two frontages, appears in the WDCP controls for both Precinct D – Commercial and Residential Flat Buildings, and Precinct E – Gap Road/Dunbar Street, despite errors contained in Maps 2, 3 and 4 of the WDCP which appear to incorrectly identify the subject site.

13. To assist the Court on these aspects, expert evidence was provided by:

• Mr James Phillips, the Applicant’s heritage expert, and Ms Flavia Scardamaglia, the Respondent’s heritage expert;

• Mr Anthony Betros, the applicant’s town planning expert, and Ms Eleanor Smith, the Respondent’s town planning expert; and

• Mr John Romanous, the applicant’s engineering expert, and Mr David England, the respondent’s engineering expert.

14. At the commencement of the hearing, the applicant sought leave, unopposed, to rely on amended plans that it said were responsive to the agreed position of the town planners in the joint expert report (Ex 2) to the effect that a flat roof was preferred to the curved and vaulted forms shown on the previously amended plans (Ex A).

15. Leave was granted and the further amended plans were entered as Exhibit P.

The issues

16. In essence, this appeal is firstly about whether the single storey timber cottage that forms part of the heritage item 446 may be demolished, and secondly whether the form and character of the proposed contemporary addition to the rear of 25 Military Road has an adverse effect on the Watsons Bay HCA, and should be permitted.

17. The parties agree that the timber cottage is not in its original state, and has been modified a number of times between the 1890’s and the present day.

18. The respondent is of the view that the timber cottage is rare and integral to the understanding and heritage significance of the item as a whole, and so the proposed development is unacceptable with regard to cl 5.10 of the WLEP Heritage Conservation.

19. Clause 5.10(4) of the WLEP provides that a consent authority, or the Court exercising the functions of the consent authority on appeal, must consider the following:

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

20. As the relevant provision of cl 5.10 requires that I consider the effect of the proposed development on the heritage significance of the item, or the Watsons Bay HCA, I propose to consider both limbs of the provision, and in the order in which they appear in the provision, under the following headings:

1. Effect on the heritage significance of the item

2. Effect on the significance of the area concerned

21. Following consideration of the above, I will then consider the proposed development located to the Gap Road frontage.

Effect on the heritage significance of the item

22. The respondent submits that the applicant has failed to appreciate the special heritage significance of the site, given that Watsons Bay was the location of the first landing in Sydney harbour by the First Fleet in 1788, was the third permanent European settlement in Sydney, was a strategic defence site and marine/fishing village that retains a character of low-scaled built form enhanced by natural vegetation and parklands.

23. The WDCP, at C3.2.1 and C3.2.2, documents the contribution made by Watsons Bay to sustaining the early settlement at Sydney Cove through fishing and the establishment of the pilot station and lighthouse and, as early as 1803, being a place for recreation and tourism.

24. The site itself is said to have heritage significance for its connection to a stonemason-turned-businessman, alderman and Mayor of Vaucluse, Mr William Johnston who built the stone and timber buildings on the site in the late 1890’s.

25. Through the association with Mr Johnston, the respondent maintains that the site has significance to the Roberston Park contributory item, and the Tramway corridor heritage item as Mr Johnston is said to have been instrumental in their development, and so views between the sites are significant.

26. Failure to understand this wider historical context has, according to the respondent, led the applicant to focus overly on the condition of the timber cottage’s building fabric at the expense of considering the significance of the site to the townscape of Watsons Bay. The applicant has also failed to consider alternative development and conservation options, or the incentive provisions found in cl 5.10(10) of the WLEP.

27. According to the applicant, the respondent seeks to conflate the considerable historical significance of Watsons Bay to the story of European settlement in Australia, with an objective assessment of the heritage significance of a site that was first developed over a century after the arrival of the First Fleet, and well into the late 19th century.

28. To this end, while the applicant accepts the association with Mr William Johnston is unquestionably of local historical interest, that does not make it significant. The applicant submits many homes, businesses and sites in NSW can claim an association to a local member of parliament, Councillors, or Mayor and that, of itself, does not deem the property to be of heritage significance.

29. The applicant submits that records show the Johnston family originally lived and worked at another site, behind the then large home called ‘Clovelly’, and only occupied the subject site for a relatively short time, moving out of the property in 1911 despite the family maintaining ownership of the property until the 1950’s.

30. Throughout the life of the timber cottage, it has been regularly modified with unsympathetic additions and changes to original materials and finishes that mean the original form of the cottage, built by Mr Johnston, is no longer apparent.

31. Due to its age and condition, the timber cottage is now a risk to adjoining properties and to life safety, according to the applicant. A Building Code of Australia assessment report, prepared for the applicant by Australian Certifying Group dated 28 March 2019 (Ex B) concludes that existing window openings, the roof, floors and walls in the timber cottage must be reconstructed in order to achieve fire rating appropriate to the close proximity of the structure to neighbouring properties, which is around 500mm on the southern boundary.

32. In essence, the applicant asserts that the extent of reconstruction required to make the property safe for occupants, and for neighbouring properties, would further compromise what remains of the original features fabric and so would further diminish the heritage significance of the item.

33. During the hearing, the respondent sought leave to rely on an opinion of the likely cost for certain upgrade works to the timber cottage. While the applicant objected on the basis that the methodology used to develop the estimates was unclear, and lacked detail, I allowed the document to be entered as Exhibit Q and noted that appropriate weight would be given.

34. In his evidence, Mr England acknowledged that no attempt had been made to consider the scope identified in Exhibit B which includes works that would be required to make the building safe with such items as fire sprinklers and/or fire rated windows, underfloor works and the like. As a result, I do not consider the opinion of costs to be a relevant consideration.

35. Mr Tomasetti SC, for the applicant, maintains that the test required by cl 5.10(4) is to have regard, not to one’s own view of the significance of the heritage item, but to the significance established by a statement of significance of the heritage item, properly prepared in accordance with the criterion developed by the NSW Heritage Office guidelines, published by the Office of Environment and Heritage (OEH) (Ex 5, Tab 5), and that are reflective of the Burra Charter.

36. To this end, the applicant submitted that three statements of significance had been prepared for the site and were relevant. They include:

• Woollahra Heritage Study 1997 (Ex 5, Tab 14)

• Heritage assessment, prepared by Colin Israel in 1999 (Ex 5, Tab 15)

• Heritage Impact Statement, prepared by Mr James Phillips (Ex C)

37. The applicant notes that the heritage assessment prepared by Colin Israel also concluded that the timber cottage was of lower heritage significance, and its removal was not without merit

38. Mr Philips’ statement of significance, contained in Exhibit C, also includes an assessment of the item against the assessment criterion in the NSW Heritage Manual, and relies on drawings and information originally contained in the heritage assessment prepared by Colin Israel.

39. During their evidence, Ms Smith and Ms Scardamaglia both stated they disputed aspects of Mr Philips’ statement of significance, with reference to the criterion used to develop the statement of significance in Exhibit C. For example:

1. it failed to include reference to significant local people such as the original builder and owner of the site, Mr Johnston, which is required to be considered by criterion (b) of the OEH guidelines, and

2. it did not recognise that the site was unique in the area for the grouping of a stone and timber building, and

3. for this to be in the commercial zone with a formerly commercial use, and representative of the growth of tourism in Watsons Bay, as is required by criterion (d) of the OEH guidelines, and

4. it overstates the impact on the aesthetic significance of the item following the final extension to the timber cottage in the 1960’s, and

5. omitted the potential for the item to yield research value in the origins and species of weatherboard and other construction techniques.

40. In her evidence, Ms Scardamaglia advised that she had also prepared a statement of significance which was marked ‘draft’ and was entered as Exhibit 10.

41. The heritage experts also considered a plan developed by Ms Scardamaglia (Ex 1, Figure 8) which broadly outlined an alternative development opportunity for the site that retained areas of the timber cottage identified by Ms Scardamaglia as being of exceptional or high significance, while providing a basement car park accessed from Military Road.

42. Mr Philips’ view is that the development opportunity proposed by the respondent adversely affects the heritage significance of that portion of the timber cottage that would remain as it would be partly obscured by the new additions, and does not address the underlying difficulties in achieving life safety compliance given the location of the cottage on the site. For these reasons, it is not a viable alternative.

43. The heritage experts also did not agree on the rarity of the item, the ability to conserve the item by reversing past modification, its significance for research in weatherboard or construction techniques, or in its contribution to the area.

40. In my view, the concerns held by Ms Scardamaglia and Ms Smith in relation to the statement of significance prepared by Mr Philips should be accorded less weight given aspects claimed by Ms Scardamaglia to be missing or lacking, are either evident, or without basis.

41. Ms Scardamaglia asserts that the association with Mr Johnston is not given sufficient weight. However, there are three explicit references to Mr Johnston and/or his family in the statement’s three short paragraphs.

42. Furthermore, Ms Scardamaglia notes the potential loss of research value in the history of timber weatherboard in general terms, without identifying the grounds on which reasonable assertions of research value are advanced.

Effect on significance of area concerned

47. As stated earlier, the respondent took the Court to a number of vantage points during the on-site view, including Gap Park, Gap Bluff, the tramway corridor and Roberston Park. From all locations it was possible to see, to varying degrees, the timber cottage.

48. Of particular significance to Ms Smith were the views possible from the tramway corridor to the timber cottage across Gap Road, as well as a glimpse of Robertson Park through the site from the tramway corridor, and from Robertson Park to the cottage. These views reinforce the association between the tramway corridor, and Roberston Park with Mr William Johnston who, the respondent asserts, was instrumental in having the tramway extended, and having Robertson Park reserved as a public park.

49. Views in the area are also identified on Map 4 of the WDCP which shows, according the applicant, the area has a plethora of desirable views, providing residents and tourists with multiple vantage points. In this context, any glimpses of the existing timber cottage on the site makes only a minor contribution to the iconic panorama gained from Gap Park and Gap Bluff, and so views of the proposed development will also be minor in the wider context.

50. Mr Betros is of the view that the contribution made by the timber cottage to its Military Road context is neutral at best, as the setting of the item is diminished by adjoining properties that present large, blank walls to the boundary with the site, as shown in C3.4.5 at Figure 33.

51. In seeking to define the Military Road streetscape within the Watsons Bay HCA, the applicant relied on an excerpt from a decision of the Court in Berk & Kersch v Woollahra Council (Land and Environment Court of New South Wales, Assessor Bly, 13 May 1996) before Assessor Bly (as he was then) which refers to an assessment of the streetscape made by Prof Kollar, a professor of architecture, for the then applicant, as follows:

“Prof Kollar analysed the buildings in Military Road in detail and concluded that:- ‘there is no established architectural character, indeed no coherence, continuity fit or rhythm of any kind which one could uphold or emulate’. As a consequence ‘..it is rather impossible task to strive for compatibility’…”

52. Ms Smith acknowledged that this statement may still hold true today, although a significant difference over the intervening period has been the development and adoption of the WDCP which places a greater emphasis on the retention of heritage and contributory items.

53. For example, Ms Smith noted the provisions of C3.6, Control 1 which provides:

“Contributory items are to be retained unless overwhelming physical constraints (such as structural integrity, extensive damaged fabric and fire safety requirements) preclude this option.”

54. The definition of contributory items appears to vary within the WDCP, and was contested by the parties. A note found commonly in the text of the WDCP advises that:

“Note: Heritage items are identified in Schedule 5 of the Woollahra LEP 2014. For the protection of heritage items refer to clause 5.10 of the LEP.”

55. The definitions within the WDCP also state that a contributory item is:

“A building, work, archaeological site, tree or place and its setting, which contributes to the heritage significance of a conservation area”

56. The applicant submits that the Court cannot rely on the provision of the WDCP at [53] as it is inconsistent or incompatible with the test found in cl 5.10(4) of the WLEP, and that instead, the Court should consider the statements of significance to inform its assessment.

57. Clearly, heritage items are defined in Schedule 5 of the WLEP. I consider it reasonable that a heritage item can also be considered, as appears to be the case in the WDCP, a contributory item to the extent that it contributes to the heritage significance of a conservation area.

58. Clause 5.10(4) requires a consent authority, or the Court exercising the functions of a consent authority on appeal, to consider the effect of the proposed development in respect of the heritage significance of the site or the area concerned.

59. In order to do this, two things that are inter-related, must be established. Firstly, the heritage significance of the site or area concerned, and secondly, the effect of the proposed development on that significance which has been established.

60. I agree with the applicant that a statement of significance greatly assists an understanding of the significance of the heritage item that is in situ. But this is only part of the assessment required of the Court in this matter.

61. The controls at C3.6 Contributory items: additional built form controls, would appear to be of reasonable assistance when considering the effect of the proposed development on the heritage item.

62. Rephrased, Control 1 seeks to retain heritage item 446 for the contribution it makes to the Watsons Bay HCA unless overwhelming physical constraints preclude this option, and Control 2 seeks to ensure the significant fabric of the heritage item is retained.

Proposed Development

63. The proposed development comprises a new two-storey contemporary, steel-framed form to the rear of the site when viewed from Military Road. Due to the natural rise in the site, the addition will be visible over the sandstone shop and form a backdrop of around the same height as the existing boundary wall to the neighbouring property to the south.

64. The height of the rear addition is of concern for reasons stated at [48], although the town planning experts consider the amended roof form in the amended plans (Ex P) to be preferable to the curved and vaulted roof form originally proposed.

65. Ms Smith accepts that the amended plans in Exhibit P improve the view from the tramway corridor by allowing more of the view of the Central Business District beyond and the harbour, but does not address her primary concern which is that the key compositional element of the view from the tramway is the heritage item that is proposed to be removed.

66. The addition proposed to the Gap Road frontage is, according to the respondent, an example of poor design that fails to recognise the unique natural setting. The façade treatment to Gap Road, which is timber cladding, blocks any view to the tramway corridor vegetation, but shows full height glazing between the upper level bedrooms in each apartment that will compromise the privacy of its occupants.

67. The façade treatment also includes sliding and louvred operable timber screens to the East and West elevations. According to Ms Smith, those screens that are operable are likely to be left open, exposing an excessive amount of glazing that, to Ms Smith, fails to achieve the desired ratio of ‘solid’ to ‘void’ in the Watsons Bay HCA as required by C44 and C45 in C3.5.5 of the WDCP. Furthermore, there are no details of the screens, and there is conflicting information contained in the application.

68. The result is a form that does not contribute positively to the streetscape as it fails to respond to the character of existing development.

69. However the applicant notes that the zone objectives seek development of a height and scale that achieves the desired future character of the neighbourhood.

Conclusion

70. There is no doubt that Watsons Bay is a significant site in the history of early European settlement, and so it is appropriate that a consent authority, and the Court, carefully considers the potential for incremental change to adversely impact on the ability to read history in a place.

71. In considering the statements of the significance at [36], I note that all appear to place a greater value on the heritage significance of the stone shop fronting Military Road. The Woollahra Heritage Study includes three short sentences related to the timber cottage identifying it, inaccurately, as a “two-storey timber weatherboard extension to the rear, with Colorbond roof”. The recommendations contained in the same study make no mention of the timber cottage at all.

72. Additionally, the Heritage Assessment prepared by Mr Colin Israel in 1999 identifies the sandstone shop on the site as the sole surviving example of the early commercial development on the Gap Estate subdivision dating from the 1980’s, and that the timber cottage is of lesser significance.

73. The controls at C3.6 of the WDCP seek to retain significant fabric of a contributory item, that also being a heritage item. I accept that the greater heritage significance on this site is vested in the sandstone shop fronting Military Road, and therefore the significant fabric of the heritage item is proposed to be retained.

74. The application proposes to carry out restoration works including the reinstatement of the timber framed awning to Military Road that will enhance the contribution made by the site in the Watsons Bay HCA, and will no doubt strengthen the visual connection to the site from Robertson Park.

75. In considering the effect of the proposed development on the association between the site and the tramway corridor, I note that no provision has been made along the tramway corridor to appreciate the associative value claimed to exist with the site. There is no place to pause alongside the narrow pedestrian path. There is also no dedicated outlook, interpretive signage or balustrade to encourage visitors to stop and make the historical connection.

76. The amended plans will not obstruct a view from the tramway corridor to the trees marking the location of Robertson Park, and while the view of the grass in Robertson Park will be lost, the respondent’s development opportunity plan would, in my judgment, have the same result.

77. I am satisfied that an assessment of the proposed development is consistent with C3.2.5 Management Policy in the WDCP that seeks to conserve the significance of Watsons Bay HCA by retaining and enhancing the presentation of the sandstone shop, and reinstating missing elements such as the awning to Military Road, and by ensuring the proposed development is compatible with the significance and character of the Watsons Bay HCA.

78. I intend to grant consent to the proposal for the following reasons:

1. The proposed development is consistent with the objectives of the B1 Neighbourhood Centre, by proposing a development that is of a height and scale that achieves the desired future character of the neighbourhood

2. The application does not propose to remove the heritage item on the site, but only a portion of the item, and proposes to retain that which is significant fabric of the heritage item.

3. The portion of the heritage item proposed for removal appears typical of Victorian-era timber cottages, has been substantially, and unsympathetically modified over a number of decades, and I am not satisfied that further modifications required to attain the required level of fire safety can be achieved without having a fatal effect on the heritage significance of that portion of the item.

4. The WDCP states that applications for demolition of a building in the Watsons Bay HCA should only be considered in conjunction with a development application for proposed replacement development.

5. The applicant proposes to reinstate the awning that originally stood in front of the sandstone shop on Military Road. That will, in my view, considerably restore the setting in which Mr Johnston’s shop can be understood.

6. The proposed development to the Gap Road frontage provides a respectful, contemporary backdrop to the sandstone cottage with a compatible use.

Directions

79. For the reasons already stated, I have considered, and I am satisfied that the effect of the proposed development is an acceptable one on the heritage significance of the item and the Watsons Bay HCA. However the amended plans in Exhibit P contain information that is inconsistent across the drawing set in relation to key components of the final design.

80. Further amended plans are required, and the Court directs that within 14 days of these orders:

1. The applicant is to provide details, materials and colour selection to the proposed awning to the Military Road frontage of the sandstone shop

2. The applicant is to resolve the conflict in the documents and provide details of:

1. the roof construction and finish over the serviced apartments, given the highly visible nature of the roof from the tramway corridor; and

2. the extent and design of timber cladding, screens and operable louvres.

3. The parties are to confer and file agreed conditions of consent within 21 days of these directions.

4. In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.

Addendum made 1 August 2019

81. In accordance with the terms of my directions in [80] of my judgment of 4 July 2019, the applicant has prepared amended plans and the parties have provided me with agreed conditions of consent, both of which were filed on 18 July 2019. I am satisfied that the amended plans and conditions of consent respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans. As a result, and in accordance with those findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent. Accordingly, I make the following orders:

1. The appeal is upheld.

2. Development consent is granted for DA 208/2017 for the demolition of an 1890's single-storey timber cottage fronting Gap Road, the construction of 2 x two-bedroom serviced apartments fronting Gap Road, the retention of the existing sandstone building fronting Military Road and the excavation and construction of provision of three parking spaces and turntable, garbage storage at basement level, with access from the Military Road frontage, subject to conditions in Annexure ‘A’.

3. All exhibits are returned, except for Exhibits D, P and 10.

…………………………….

T Horton

Commissioner of the Court

Annexure A (569 KB, pdf)

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Amendments

01 August 2019 - See addendum with final orders at [81]

Decision last updated: 01 August 2019