Kalkanas v Hunters Hill Council

[2016] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kalkanas v Hunters Hill Council [2016] NSWLEC 1411
Hearing dates:	18,19 August 2016
Date of orders:	14 September 2016
Decision date:	14 September 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application No 2015/1205 for the demolition of the existing dwelling and construction of a new dwelling and swimming pool at 2 Vernon Street, Hunters Hill is refused. 3. The exhibits are returned with the exception of exhibits 1 and A.
Catchwords:	DEVELOMENT APPLICATION: demolition of the existing dwelling and construction of a new dwelling and swimming pool – whether the demolition of the existing dwelling will have an unacceptable impact on the heritage significance of the heritage conservation area – whether the proposed dwelling does not properly respond to the heritage significance of the heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979
Texts Cited:	Conservation Areas: Guidelines for Managing Change in Heritage Conservation Areas
Category:	Principal judgment
Parties:	Liane Kalkanas (Applicant) Hunters Hill Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Ms J Reid, barrister (Respondent)   Solicitors: Wilshire Staunton Webb Beattie (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00158882
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No 2015/1205 that seeks the demolition of the existing dwelling and construction of a new dwelling and swimming pool at 2 Vernon Street, Hunters Hill (the site). The proposed new dwelling includes excavation, double carport, large car park partly underground, roof deck and shed.

2. The council maintains that the application should be refused because:

• the demolition of the existing dwelling will have an unacceptable impact on the heritage significance of the heritage conservation area where it is located, and,

• if the existing dwelling can be demolished, the proposed dwelling does not respond to the heritage significance of the heritage conservation area.

3. The appeal was subject to mandatory conciliation on 18 August 2016 under s 34AA of the Land and Environment Court Act 1979. The parties accepted that no agreement could be reached on whether the dwelling could be demolished. It was agreed that the separate matter of the proposed new dwelling was a matter that would be best addressed after the threshold question of demolition was answered by the Court. That part of the proceedings dealing with the demolition was dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).

The site

4. The site is Lot 110 in DP 1207609. It is located at the northern side of Vernon Street and the eastern side of Brookes Street. It effectively has three road frontages as Brookes Street curves around the southern and western frontages of the site. A pathway to Mornington Reserve, which forms part of the Great North Walk runs along the eastern boundary.

5. The site is a conventional shape with a frontage to Brookes Street of 38.31 m, and a frontage to Vernon Street of 51.64 m. The total site area is 1223 sq m. The depth of the site ranges from 19.81 m to 38.31 m. Mornington Reserve is located immediately adjacent to the northern boundary of the site and shares a boundary length of 46.675 m with the site. Mornington Reserve is a waterfront reserve on the Lane Cove River and is a heritage item. The site slopes down to the waterway and waterfront s.

6. The site currently contains a single storey with basement under croft, brick and stone dwelling house with slate roof. The lot contains a double car and a single car garage fronting Vernon Street and a brick shed on the southern alignment of the site. The original 1913 dwelling was subject to alterations and additions in 1989.

7. The site and dwelling are clearly visible from the Lane Cove River including the ferry channel.

Relevant planning controls

8. The site is zoned R2 Low Density Residential under Hunters Hill Local Environmental Plan 2012 (LEP 2012). Clause 2.3(2) requires that the Court must have regard to the zone objectives when determining a development application. The objectives are:

♦ to provide for the housing needs of the community within a low density residential environment.

♦ To enable other land uses those provide facilities or services to meet the day to day needs of residents.

♦ To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.

♦ To provide for high levels of amenity that are consistent with a low density residential environment.

9. Clause 4.3(2) states that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map and cl 4.4(2) states that the maximum floor space ratio (FSR) for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. The compliance, or otherwise of a new dwelling would be addressed if it was found that the exiting dwelling could be demolished.

10. Clause 5.10 provides requirements for Heritage Conservation. Clause 5.10(2)(a)(iii) requires development consent for demolishing “a building, work, relic or tree within a heritage conservation area”. Clause 5.10(4) requires that the Court “must, before granting consent under this clause in respect of a …. heritage conservation area, consider the effect of the proposed development on the heritage significance of the …. area concerned”. As the site is located within the Hunters Hill Heritage Conservation Area No. 1- the Peninsula (the HCA) and is in close proximity to at least 7 heritage items listed under Schedule 5 of the LEP 2012, these clauses are relevant.

11. The site is land classified as "River Front Area" on the River Front Area Map under cl 6.7 of LEP 2012 and part of the site, at the northern boundary, is identified as 'Riparian' Land on the Riparian Land and Waters Map under cl 6.5 of LEP 2012.

12. Hunters Hill Development control Plan 2013 (LEP 2013) relevantly applies in relation to Part 2-Character and Heritage of the Hunters Hill Municipality, Part-3 Residential Developments and Part 5-General Controls.

13. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site.

14. Conservation Areas: Guidelines for Managing Change in Heritage Conservation Areas (the Guidelines), Heritage Office and Department of Urban Affairs and Planning, 1996 is relevant.

Can the building be demolished?

The evidence

15. Expert heritage evidence was provided by Mr David Logan for the council and Mr Graham Hall for the applicant. As no detailed statement of significance was contained in the council documents for the HCA, Mr Logan and Mr Hall agreed on the following Summary Statement of Significance for the HCA:

The historical, aesthetic and social significance of the Hunter's Hill Peninsula derive from particular inter-relationships between its history and the quality of the natural and built environment.

Hunter's Hill is considered to be Australia's oldest suburb. It was established in the 1860s as a suburb of free-standing villas and cottages on wooded allotments. It was an appreciation of the area's landscape and peninsular location that attracted the first developers, long before suburbs developed in other areas similarly distant from Sydney. Not only this original character, but much of the early built and natural environment, remains in many precincts in the defined area. (There are exceptions, however, notably around Luke's Bay, Pulpit Point and smaller waterfront areas which have been largely subdivided and developed since about 1960.)

The pattern of streets, subdivisions, houses and institutional and commercial buildings portrays the setting of Australian suburban life from its inception. The street pattern and the extensive stone walls reflect the original land grants. The variations in the size and shape of allotments, building lines, and house styles demonstrate the original subdivision of both greenfield sites and established estates, and the resubdivision of large residential lots, from 1860 to the present day.

The Conservation Area is outstanding for the aesthetic significance of its townscape. The most notable aspect is the consistently high quality and the diversity of the domestic architecture of the area. Important contributing elements include the houses from the key period of development ie from the 1860s to 1920s. Other important contributing elements include landmark institutional buildings, stone walls, gardens, mature trees, particular streetscapes, views and harbour glimpses, and natural landscape features. Also evident, in streets and gardens, is the replacement of native vegetation with exotic trees and shrubs, and successive styles of landscaping.

The area demonstrates developments in domestic and institutional architectural design from 1850 onwards. Domestic buildings are mostly free-standing. The majority were built between 1920 and 1960, but the most noticeable are those built between 1860 and 1920. Architectural styles vary, corresponding with the periods of construction, but share some characteristics, which contribute to the aesthetic quality of the townscape. Forms are articulated, for example by pitched roofs, gables, and verandas. Proportions of openings to wall area are relatively small. Over time many houses have been altered and extended, often sympathetically and in a way that, does not detract from their significance or that of the area.

Materials are varied and unobtrusive. Walls are of generally of weathered stone, brick of a type commonly used at the period of each house, or painted timber. Roofs are of weathered slate, tiles or corrugated iron. Paving is also unobtrusive in colours and texture. The appearance of the houses is further softened by large street trees and mature, informal private gardens of trees and shrubs.

The repetition of weathered sandstone in buildings, the extensive boundary walls, paving and the natural landscape further unifies the townscape.

The effect of the design of the houses, the patina of age which they have acquired, their siting, and the built and natural landscape elements, is such that even the larger houses do not have a dominating or intimidating appearance. The buildings both respect and reveal the landform of the peninsula.

16. Mr Logan and Mr Hall were unable to reach agreement on whether the existing house is contributory or intrusive to the HCA and, consequently, whether its demolition would be appropriate.

17. Mr Logan states that the existing dwelling dates from the Federation period; being one of the key periods of development in the HCA. Notwithstanding the 1989 alterations and additions, most of the original form, structure, and fabric of the original dwelling is evident. It is still an historic dwelling.

18. When viewed from the Lane Cove River, the dwelling was designed and sited to face the river. Much of the original form, character and fabric remains intact and visible from this location compared to the visible length of the western addition which is relatively small; about 4.5m wide. Most of what is seen from the water and Mornington Reserve is original building envelope; the main northern gable, most of the northern roof plane and ridge line, most of the verandah, including its roof, brick piers and timber posts; original front door and adjacent projecting bay; and the top of the western chimney.

19. Mr Logan states that after discussion with the person who undertook the work (Mr Griffiths); the brickwork of the original walls was repointed to match the new jointing to obtain a uniform appearance for the entire dwelling. Most of the bricks used in the north elevation of the addition were from the existing dwelling, carefully cleaned and then reused, hence their close match with the original brickwork adjacent. The vertical expansion joint at the original northwest corner denotes the junction between new and old, thus enabling a comparison with the existing dwelling and the alterations.

20. Mr Logan further states that the slates in the original part of the roof are mostly original. This was also confirmed by Mr Griffiths who also advised that second-hand slates were inserted as needed to replace/patch damaged slates. While it is now not possible to discern the junction between the new and old sections of the front and rear roof planes because the slates on both roof planes were fully removed and re-laid. This was (and is) also common practice. If this was the case, it would support the historic value of the existing dwelling.

21. When the front of the dwelling is viewed from the water and the Public Reserve, the northern gable is the most prominent and striking feature of the main elevation. The 1989 octagonal turret, located at the rear of the dwelling, is relatively recessive when viewed from the north. The turret does not disrupt the prominence of the original historic envelope (with the sympathetically designed and subserviently scaled addition on its western side) that is seen from the water and Mornington Reserve.

22. When viewed from the rear (Vernon Street) the turret is more prominent and partly obscures some views of the dwelling's rear and eastern roof planes. Nevertheless, in these views, the dwelling is only partly visible due to the sloping topography and the presence of the original outbuilding, itself a contributory element, and garage. It is mainly the dwelling's rear roof plane that is visible. The eastern three-quarters of the roof, including the western chimney, is original while the western-most quarter dates from 1989.

23. Viewed from Vernon Street, the house and original outbuilding have historic streetscape value notwithstanding the presence of the 1990’s garage and the octagonal turret. The latter, while having minor historic value as evidence of the philosophical approach to heritage conservation in the late 1980s, is nevertheless inconsistent with contemporary standards as it has the potential to confuse interpretation. However, it is a relatively narrow element within the streetscape and does not compromise the building's overall contribution to the historic and aesthetic value of the HCA. Further, the turret's visual prominence could be readily overcome by lowering the pitch of its roof, to create a lower form, should a future owner wish to do so. The impact on the streetscape of the turret is not irreversible.

24. Mr Logan rejects the comments of Mr Hall in his comparison of the building with the examples of faux historic dwellings shown in his Heritage Impact Assessment as inappropriate. Mr Logan accepts that these dwellings are 'fake' and have no historic value, as they are new buildings 'pretending' to be old, whereas the subject building is an historic building that has had additions and alterations made to it. It retains historic value and, unlike the examples shown by Mr Hall, this contributes to the HCA. Mr Hall's concerns over the building partly stems from his original opinion that all of the external brickwork in the original dwelling was replaced by a new skin of brickwork, is clearly incorrect.

25. Mr Logan notes that while the building's interior has undergone significant alteration, it nevertheless retains sufficient of its original internal structure to enable an understanding of the original layout. The former sitting room with its bay window and adjacent hallway leading from the northern front door, including original walls, ceilings, floors, and fireplace, are intact. Elsewhere, there are new floors, ceilings and fenestration. Despite these changes the integrity of the major part of the original form and internal and external structure (for example, walls and roof framing) remains.

26. Mr Logan maintains that the existing building is best described as an historic building that has had additions and alterations. The western addition is modest in scale and was designed in a sympathetic manner. When the property is viewed from the Lane Cove River and from Vernon Street; this addition neither overwhelms nor detracts from the contributory value of the original dwelling. While the 'seamless' manner in which this addition was undertaken does not enable the distant viewer to distinguish between the new and old portions, this can nevertheless be identified on close inspection through the presence of the vertical expansion joints on the front and rear elevations. The lack of a clearer distinction between the new and old parts of the main form is not detrimental to the HCA and does not make the building 'intrusive'.

27. The balcony addition and new fenestration (bay window and side windows) to the northern elevation of the front projecting gable do not overwhelm the original form. I acknowledge that the octagonal turret has an intrusive effect due to the prominence of its roof form fronting Vernon Street and its potential to interpreted as part of the original historical dwelling. Nevertheless, its narrow width makes it a relatively small component of the property's streetscape presentation. Further, it is recessive in views of the property from both the water and Mornington Reserve and its visual prominence to Vernon Street could be readily reversed by lowering the pitch of its roof.

28. In summary, Mr Logan states that the dwelling is a 1913 Federation period bungalow with additions dating from 1989. It is visually distinctive historic bungalow in an attractive landscape setting which contributes to the riverscape and the streetscape. It enhances the aesthetic value of the HCA. Within this portion of the HCA, that is otherwise more contemporary when viewed from the river, it contributes to an understanding of the area's development in the Federation period in that it contributes historic values. There are very few dwellings (heritage and contributory items included) that have not had additions and alterations made over time. Those made to the subject building were mostly sympathetic and did not destroy its contributory value, to the HCA. For these reasons, Mr Logan considers that the existing dwelling contributes to the historic and aesthetic significance of the HCA. Therefore the building can be regarded as a contributory item within the HCA.

29. Mr Hall comes to a different conclusion. He states that although the HCA has been listed in successive local environmental plans since before 1989; the current council documents provide no lists, maps or definitions for identifying the varying contributions which buildings make to the heritage significance of the HCA. A basis of assessment is required, and Mr Hall proposes the following:

• a contributory item is one dating from the key period of development, remaining recognisable, with minor and/or reversible alterations.

• a neutral item is from the key period of development, and remains recognisable despite major and/or irreversible alterations.

• an intrusive item from the key period of development is unrecognisable due to major, irreversible and/or unsympathetic alterations.

30. The definitions are, in the opinion of Mr Hall, consistent with the agreement with Mr Logan that the key factor in assessing whether a building is contributory is whether it contributes to the area's historical and/or aesthetic significance.

31. Based on the assessment of the different classification a building makes to a conservation area, Mr Hall concludes that the building is an intrusive item from the key period of development and is unrecognisable due to major, irreversible and/or unsympathetic alterations. Much of the original fabric has been lost such that the process of reinstatement would amount not to reconstruction, as defined by the Burra Charter, but to the creation of a replica.

30. The original house was built in 1913, which is within the key period of significance in the agreed Statement of Significance for the HCA. The alterations were carried out in 1989 and have destroyed the contribution the house, which was intact, made at that time to the area's historic and aesthetic significance. According to Mr Hall, it follows that the house is intrusive to the HCA.

31. While some may see visual appeal in the house, the visual appeal of an item whose appearance dates mostly from 1989 is not a factor in assessing its contribution to an area where the significant period of development is 1860-1920. Mr Hall describes the building as having no visual appeal however any visual appeal an item may be seen to have is an issue of amenity and perhaps character however maintaining amenity or character does not require the retention of particular fabric.

32. In response to Mr Logan’s evidence that the house is contributory in heritage terms, Mr Hall states that it is abundantly clear from the physical evidence that the house has been renovated, not conserved, since the extensions cannot be distinguished from the original house, even on close inspection. It is not possible to ascertain how the house appeared between 1913 and 1989 by viewing it now. The turret dominates the original form as seen from Vernon Street, and transforms its character from that of a comfortable suburban Federation bungalow with Arts and Crafts characteristics to that of an idiosyncratic Queen Anne villa.

33. In assessing whether the house contributes to the heritage significance of the Conservation Area, the issues of:

• whether the approach taken was commonly adopted;

• whether it was architecturally valid, or honest, in its time;

• whether there were viable alternative design solutions that would have distinguished the alterations and conserved the original cottage

• how visually attractive it may be, or

• whether it is perceived as a replica, a sympathetically altered Federation house, or an inappropriate renovation project

are, in the opinion of Mr Hall irrelevant, as the objective fact is the physical changes that have been made. Valuable evidence of the house's history and that of the HCA was embodied in its fabric before 1989. That evidence has been destroyed. Evidence of its aesthetic value has also been destroyed. The house is completely unrecognisable as a modest 1913 bungalow. That appearance cannot even be inferred. Worse, the house presents distorted evidence which will mislead future generations.

36. The turret is the most prominent feature of the house, according to Mr Hall and dominates the main street frontage when viewing down from the slope of Vernon Street, it is at eye level from the front boundary, and also visually dominates entering the property and approaching the front door. Furthermore, the turret obscures the original view of the main roof that was available from Vernon Street east of the workshop. The western extensions are built close to the boundary and screened by a high fence and landscaping but the original western elevation was set back. It was designed to be seen from Brookes Street, as well as forming part of the three-dimensional view from the north-west, and even the river.

37. As to the direct view from the river (or the adjoining Mornington Reserve), Mr Hall states that the original shingled gable is a key feature, however below it the bow-fronted bay window and curved stone balustrade that were part of the extensions perpetuate the removal of the hooded windows and brick steps. That the western extensions are indistinguishable at that distance is further evidence of the distortion of history. All that can be determined by a view from the river is that there is now a building with Federation characteristics on the site, and any scenic value it may be thought to have has been lost with the alterations and additions.

38. For these reasons, Mr Hall concludes that there is no heritage basis for the retention of the dwelling.

Findings

39. Mr Logan and Mr Hall agree that the question to be answered is whether a building is contributory is whether it contributes to the area's historical and/or aesthetic significance. Fundamental to the conclusion of Mr Hall that there is no heritage basis for the retention of the dwelling is the lack of visible evidence of the house's history that was embodied in its fabric before 1989. This was not a conclusion accepted by Mr Logan.

40. In considering the different conclusions of Mr Logan and Mr Hall, I prefer the evidence of Mr Logan. As a starting point, I do not propose to adopt the grading of buildings in HCA’s as suggested by Mr Hall. These gradings, while generic, have not been adopted by the council in any relevant planning instrument nor are they used in the Guidelines. Of greater importance is the agreed Summary Statement of Significance for the HCA and how the existing building relates to this description.

41. Even if the grading system adopted by Mr Hall is used, I do not accept that the building could be regarded as intrusive. It is not a replica as suggested by Mr Hall but is more appropriately described by Mr Logan, as “a 1913 Federation period bungalow with additions dating from 1989. It is a visually distinctive historic bungalow in an attractive landscape setting which contributes to the riverscape and the streetscape. It enhances the aesthetic value of the HCA”.

42. Mr Hall’s position that the 1989 extensions cannot be distinguished from the original house is not necessarily correct given that a close inspection by Mr Logan and Mr Hall established the existence of an expansion joint that separates the old from the new parts of the building. The reason for the difficulty in establishing the old from the new was that the additions used bricks that were sourced from the original house. The house has not been fully re-skinned as first thought. Similarly, slate tiles had been sourced that largely matched the original slate tiles and during the extension, it appears that all the tiles were randomly laid to avoid any appearance of two sets of different tiles.

43. While people such as Mr Logan and Mr Hall or other people with in–depth heritage knowledge and experience may look for features that distinguish the 1913 original dwelling from the dwelling after the 1983 additions, I am not convinced that people with a more general understanding of heritage values would be so inquiring. In my view, these people would look holistically at the building and not unreasonably conclude that it is a building that displays characteristics of a Federation house; not necessarily the original 1913 house but nonetheless characteristics that are consistent with the Summary Statement of Significance for the HCA. The fact that the existing house displays characteristics of a Federation house was accepted by Mr Hall. I note that the relevant section of the agreed Summary Statement of Significance for the HCA states:

Forms are articulated, for example by pitched roofs, gables, and verandas. Proportions of openings to wall area are relatively small. Over time many houses have been altered and extended, often sympathetically and in a way that, does not detract from their significance or that of the area.

44. In any event, I do not accept that the 1989 alterations have destroyed the contribution the house makes to the HCA. It is not unreasonable or unexpected that a relatively austere 1913 bungalow would be altered to accommodate the expectations of 20th century living, particularly given that it is not a heritage item. The fact that the alterations and additions altered the fabric of the 1913 building is also not unreasonable or unexpected. Even though a different approach to additions to a 1913 cottage may be adopted today; the additions were approved by the council in 1989. As stated by Mr Logan; this was considered appropriate at the time even though more contemporary views may have changed this approach. I note that the Guidelines make the following relevant comments (at [11]):

The degree to which an area retains the particular values and character that were an integral part of its original design or historical development must also be carefully considered. Its integrity may be evident from the retention of original materials or setting, or the maintenance of its associations. Alterations do not necessarily mean the compromise of integrity-indeed the alteration can become as significant as the original fabric.

45. The tendered drawings indicate the extent of original fabric removed or altered by the alterations and additions. In my view, Mr Logan’s statement that “the 1989 alterations and additions, most of the original form, structure, and fabric of the original dwelling is evident” is largely correct except that I would not necessarily describe the retained fabric as “most” of the building. There is a significant amount of fabric retained and certainly enough to establish the existence of an original historic building form but with sympathetically designed additions. Mr Logan states that:

The former sitting room with its bay window and adjacent hallway leading from the northern front door, including original walls, ceilings, floors, and fireplace, are intact. Elsewhere, there are new floors, ceilings and fenestration. Despite these changes the integrity of the major part of the original form and internal and external structure (for example, walls and roof framing) remains.

46. While the turret that forms part of the 1993 additions and is clearly visible from some locations; Mr Hall’s position that it dominates the original form as seen from Vernon Street, and transforms its character from a suburban Federation bungalow with Arts and Crafts characteristics to an idiosyncratic Queen Anne villa is, in my view, overstating the impact of the turret on the original form of the building. From the river, the turret is visible but appears to be a backdrop to the building or not physically attached to the house in many locations or screened from view by existing vegetation. From Vernon Street, the turret clearly forms part of the house although the historic building form can still be made out. Contrary to the evidence of Mr Hall, the existing service building along the Vernon Street frontage clearly adds to the historic context of the house as this building is largely intact with the exception of contemporary roof tiles.

47. Clause 5.10(4) requires that the Court “must, before granting consent under this clause in respect of a …. heritage conservation area, consider the effect of the proposed development on the heritage significance of the …. area concerned”. For the reasons in the preceding paragraphs, I am satisfied that the proposed development will have an unacceptable impact on the heritage significance of the Hunters Hill Heritage Conservation Area No. 1- the Peninsula and as such, development consent should be refused.

48. As I have found that the existing building should not be demolished, it is not necessary to address the new dwelling proposed in the application.

Orders

49. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 2015/1205 for the demolition of the existing dwelling and construction of a new dwelling and swimming pool at 2 Vernon Street, Hunters Hill is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

___________

G T Brown

Commissioner of the Court

Decision last updated: 14 September 2016