Hermanto v Randwick City Council
[2006] NSWLEC 683
•18/07/2006
Land and Environment Court
of New South Wales
CITATION: Hermanto v Randwick City Council [2006] NSWLEC 683 PARTIES: APPLICANT
RESPONDENT
John Hermanto
Randwick City CouncilFILE NUMBER(S): 10213 of 2006 CORAM: Tuor C KEY ISSUES: Development Application :- Multi unit housing development
demolition of a heritage item
impact on heritage significance of item and other items in the vicinity
significance of the item and structural conditionLEGISLATION CITED: Randwick Local Environmental Plan 1998 DATES OF HEARING: 17-18/07/2006 EX TEMPORE JUDGMENT DATE: 07/18/2006 LEGAL REPRESENTATIVES: APPLICANT
Ms S Hill, solicitor
SOLICITORS
Susan Hill & AssociatesRESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens Law Group
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
18 July 2006
JUDGMENT10213 of 2006 John Hermanto v Randwick City Council
1 This is an appeal against the refusal by Randwick City Council (the council) of a development application (70/2004) to demolish two houses and construct a multi-unit housing development at 1 to 3 Villiers Street, Kensington (the site).
2 The issues in dispute between the parties were resolved. The concerns of the residents remained in issue and due to the late resolution of conditions; the matter did not proceed as consent orders before the Court. However, council did not present any expert evidence or press the issues.
3 The Court had the advantage of a site inspection and heard resident evidence, both on site and in Court.
4 The site, its context, history of the proposal and the statutory controls are in the Statement of Basic Facts.
5 Briefly, the site consists of two properties, being Lot 1, DP 959826 (1 Villiers Street) and Lot 1, DP 1050599 (3 Villiers Street).
6 The site is occupied by two single storey houses. 3 Villiers Street is an Edwardian brick cottage known as “Bradford” which is listed as a heritage item under Sch 3 of Randwick Local Environmental Plan 1998 (LEP1998).
7 The site is zoned 2C Residential under LEP 1998. Multi-unit housing is permissible within this zone with consent.
8 Clause 43 of LEP 1998 requires that the impact of a proposal on the heritage significance of an item must be considered. The proposal involves the demolition of Bradford which will obviously adversely affect its significance. The key issue in the proceedings was whether the proposed demolition was justified, given the significance of the item and its condition.
9 The other issue was whether the demolition would have an adverse impact on the heritage significance of other heritage items in the vicinity of Bradford, which is required to be considered under cl 46 of LEP 1998. The other heritage items are 4 Villiers Street and 14 to 16 Villiers Street.
10 Council did not press these issues but they were central to the concerns of the residents.
11 In summary, the position of council and the applicant is that the proposed demolition has undergone a rigorous assessment process with a number of heritage reports being prepared by the applicant (Di Verdi Report and the Statement of Evidence of Mr R Staas), council’s heritage officer’s report and an independent peer review undertaken for council by Megan Jones of Howard Tanner and Associates.
12 These reports examined the heritage significance at Bradford, both individually and in relation to other houses in the municipality. The significance was considered against the structural condition of the building, the remediation works required, the costs associated with these works and the impact on the significance that would result from these works.
13 The heritage reports refer to numerous other reports including: Inspection Report by Mr S Wiltshire of Hughes Trueman; Dilapidation Report by JDT Design; Pest Inspection Report by Apex Pest Services; Geotechnical Report by Michael Adler and Associates, as well as quotes to undertake the remedial work.
14 Mr Wiltshire, structural engineer, also provided a statement of evidence on behalf of the applicant.
15 Mr Wiltshire’s Inspection Report was undertaken in June 2003, shortly after the house was purchased by the applicant. The statement of evidence was prepared following a further inspection on 27 June 2006.
16 In summary, Mr Wiltshire’s main concern is the severe cracking and tilting of the walls which would require underpinning. His conclusions are stated as:
I consider that, in its current condition, the rear section of the house is structurally unsafe.
In terms of the front section of the house, the walls - which are the primary concern - are in very poor condition. The likelihood that the cause of cracking has permanently ceased or stabilised is reasonably low and, if underpinning is not carried out, the front section of the house is also likely to become unsafe over time.
I consider that the whole house is currently in a substandard condition for habitation.
17 Mr Wiltshire also noted the extensive termite damage and that for underpinning to be carried out it will require the floor to be substantially lifted.
18 In his Investigation Report Mr Wiltshire stated that:
Unless the heritage significance of the building is very high (i.e. of State Significance or of extremely high local significance) we would consider such works, coupled with the extensive termite damage repairs, to be an unreasonable impost on the owners and would recommend demolition.
19 The heritage reports considered whether the significance of the item justified its retention, given the structural issues and costs of remediation. The opinion of these reports is best summarised by Ms Jones as follows,
The building is a representative example rather than a rare example of its type. Therefore the extensive structural works required to ensure its long term stability is not warranted, especially when the repair work will result in extensive loss of original fabric. It is reasonable to permit the cottage to be demolished, provided that a detailed archival record is made prior to its demolition and the earlier bathroom, kitchen and laundry fittings and pictures are salvaged from the demolition and offered to the New South Wales Historic Houses Trust.
20 Ms Jones conclusions were consistent with those of council’s heritage officer who advised that demolition of the property and the proposed replacement building are acceptable in heritage terms, subject to a number of conditions of approval.
21 In coming to this conclusion the heritage officer noted that:
there are a number of other buildings in the Kensington, Randwick areas which are comparable to the subject cottage in terms of scale, period of construction and detailing. It is considered the building does not have extremely high level of Local significance which would warrant the extensive structural works required to ensure its long term stability. The cottage is also unusual in its high degree of intactness. It is noted however, that if the dwelling were to be adapted to current building standards, that extensive change to the building would occur, including provision of a modern kitchen and bathroom facilities. Subject to submission of required copies of archival recording of the property, demolition of the cottage is acceptable in heritage terms.
22 The main concern of the residents was the level of significance that was attributed to the building.
23 Mr Ironside of 7 Villiers Street, in his submission in response to the notification of the development application undertook extensive research of other similar houses in the municipality. He concluded that Bradford is the oldest and only Edwardian Federation cottage in Kensington. Its simple uncomplicated design features are a result of the slow picking up of housing after the effects of the 1890’s depression and the downturn of 1903. As such, Mr Ironside concluded that Bradford is an extremely important local heritage item.
24 Mr Ironside also stated that there were inconsistencies between the number of structural and dilapidation reports which brings into question their reliability.
25 Other residents who gave evidence shared Mr Ironside’s opinion. These residents were also particularly concerned about the precedent that would be set by allowing demolition of a heritage item due to its poor condition. They stated that the applicant knew that Bradford was a heritage item and that it was in poor condition when it was purchased. In their opinion the proposal constituted demolition by neglect to maximise the development potential of the site and considered that this process undermined the heritage listing of buildings in the area.
Findings
26 While I recognise the concerns of the residents, the key question is whether it is reasonable to require the retention of Bradford, given its significance and condition.
27 Bradford is listed as a heritage item and clearly makes an important contribution both individually and as part of the streetscape to the heritage of Kensington and Randwick.
28 Council’s heritage officer as part of her assessment considered the level of significance attributed to Bradford by Mr Ironside and the other residents. She acknowledges that Bradford is “unusual in terms of its modest scale and restrained detail with a number of distinctive features”. However, she concludes that the significance of the house, when weighed against the structural condition, does not warrant retention of the item. I do not consider that the residents’ evidence would overturn the evidence of the heritage experts.
29 In relation to the structural condition and remedial works. The evidence before the Court, including that from the residents, is that the house was in poor condition when it was purchased, having been lived in by the one owner for over seventy years, poorly maintained and exposed to hail damage and consequent water penetration and termite activity. The condition of the walls and the need to underpin them is not a requirement that has arisen since the purchase of the property.
30 The zoning of the land as 2C Residential clearly provides an incentive to redevelop the property that would not exist if the house were zoned 2(a). However, the condition of the house has not arisen from the development potential of the site but from the previous elderly owner.
31 While the applicant purchased the property with the knowledge that it is a heritage item and in poor condition this does not preclude the demolition of the house or justify that the remediation works must be undertaken no matter what the cost or impact on original fabric.
32 The residents considered that the remediation works and costs were inflated. The evidence before the Court from the applicant and the council is that underpinning of the house is required to ensure its ongoing structural stability. These works have been costed by both a builder and by Mr A Duncan, a quantity surveyor, who provided a Statement of Evidence on behalf of the applicant.
33 Mr Duncan estimated that the underpinning costs as about $247,700 without GST or fees and charges. He estimated the total cost of rectification works as being over a million dollars. Even if some of these works, such as painting and electrical, are excluded or if the cost estimate is considered to be inflated, it is still a substantial cost burden that is disproportionate to the value of the house.
34 In addition, the evidence before the Court is that the works, combined with works required to achieve reasonable contemporary living standard, would remove original fabric and impact on the heritage significance of the item. However, this argument has less weight, as the main significance of the item is its streetscape contribution and it would not be unreasonable if the house were in better condition for the front part to be conserved with internal alterations and a rear addition. However, due to its condition, such an option is not reasonable.
35 While I acknowledge that the loss of an item which clearly contributes to the heritage of the area is regrettable, I am satisfied that the requirements of cl 43 of LEP 1989 have been addressed. The demolition of Bradford will adversely impact on its significance but is justified, given its condition.
36 The demolition of Bradford will also remove an important element from the streetscape which will impact on the other heritage items in the street. However, for the same reasons, this is justified when considered under cl 46 of LEP 1998. The evidence before the Court is that the new development has an acceptable impact on the significance of these items.
37 The development complies with the controls in LEP 1998 and the Randwick Multi-Unit Housing Development Control Plan (the DCP), except for non-compliance with the setback controls. Council considers this non compliance to be acceptable as it improves the articulation of the building and does not result in adverse impacts on the street or adjoining properties.
38 The owner, Mrs S Threlfo, in her written submission to council raised the overshadowing of 5 Villiers Street. Mrs Threlfo did not seek to give evidence on site but allowed the Court to view her property. Council undertook an assessment of the overshadowing impact. The proposal generally complies with the requirements of the DCP in relation to solar access to the side windows. While there will be some reduction in solar access at certain times, there will also be an increase at other times.
39 In relation to outdoor area, I do not accept Ms Hill’s submission, for the applicant, that the requirement in the DCP includes the front landscaped area and therefore complies with the DCP. However, I accept the council assessment that the non-compliance is reasonable, given the orientation of the site, and is consistent with the impacts envisaged for redevelopment of the site. The overshadowing does not result from any non-compliance with the planning controls.
Orders
40 The orders of the Court are therefore:
1. The appeal is upheld.
2. The development application (70/2004) to demolish the existing buildings and construct a multi-unit housing development at 1 - 3 Villiers Street, Kensington, is approved subject to conditions in Annexure ‘A’.
3. The exhibits, except Exhibits 1, 6, A and B, may be returned.
___________________
Annelise Tuor
Commissioner of the Court
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