Nader v Strathfield Council

[2015] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nader v Strathfield Council [2015] NSWLEC 1370
Hearing dates:	2-3 September, 2015
Decision date:	11 September 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed 2. Development Application No 2014/188 for the demolition of an existing dwelling at 2-4 Barker Road, Strathfield, is refused 3. The exhibits, other than exhibit 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of a heritage item.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Helou v Strathfield Municipal Council (2006) LGERA 322 Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118
Category:	Principal judgment
Parties:	Rachelle Nader (Applicant) Strathfield Council (Respondent)
Representation:	Counsel: Ms L. Saw barrister (Applicant) Mr A. Seton solicitor (Respondent) Solicitors: - (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10471 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 2014/188 for the demolition of a heritage listed dwelling, ‘Lyndoch Place’ and associated structures (the proposal) at 2-4 Barker Road, Strathfield (the site) by Strathfield Council (the Council). The appeal was not subject to conciliation.

Issues

2. The Council’s contentions in the matter can be summarised as:

• The proposal will have an adverse impact on the heritage significance of the property identified as an item of heritage and known as ‘Lyndoch Place’, as the existing dwelling retains its heritage significance and is a good example of the work of the Australian architect John Brogan and an example of the Inter-War Old English style of architecture.

• The proposed demolition of the existing dwelling and associated structures will have an unacceptable impact on the character of the local built environment, including the heritage significance of a number of dwellings identified as items of heritage in the vicinity of the site and on the conservation area in the vicinity of the site.

• Approval of the proposal would set a planning precedent for the demolition of items of heritage in the area.

3. The applicant contends that the existing condition of the dwelling, following the removal of much of its original fabric, does not warrant its reconstruction when balanced against both the heritage significance of the remaining original fabric and the cost of reconstruction.

4. The applicant seeks the inclusion of an additional condition of consent, requiring development consent to have been granted for the construction of a new dwelling before the demolition of the existing dwelling can be carried out. The Council opposes such a condition on the basis that it provides no certainty that a suitably decorous dwelling would replace the existing dwelling.

The site, the existing dwelling and its context

5. The site is on the southern side of Barker Road, on the corner of Chalmers Road, with a 25m frontage to both roads and an area of approximately 1,215sqm.

6. The existing dwelling is two storeys and built in the Inter-War Old English style of architecture. It has been partially demolished. All the internal linings have been removed, leaving the bare structure of the dwelling exposed, including external and internal brickwork and the timber framing of floors, walls and ceilings, with areas of timber flooring remaining. The stair treads and risers and part of the timber skirting are intact. Some internal doors are stored on-site. The external brickwork of the rear elevation has been partially demolished. Most of the windows and external doors have been removed, of which some are stored on site. Some roof tiles are missing. Areas of the external brickwork have been poorly repointed using an inappropriate mortar. Some in situ original fabric has been damaged. Former out-buildings, the garden and the fence have been demolished or substantially demolished.

7. The site is on the south-western corner of the intersection of Barker Road, Chalmers Road and Elwin Street. There are heritage listed Inter-War bungalows located on the both the northern and southern side of Elwin Street, at the intersection with Chalmers Road. There is an Inter-War bungalow on the opposite side of Barker Road, on the north-western corner of the intersection.

8. There are contemporary dwellings on the properties adjoining the site, to the west and south.

Background and the proposal

9. The current owners of 2-4 Barker Road, Strathfield purchased the property in 2014 and were not the owners at the time that the demolition works, which included unauthorised works, were carried out. The two mature bunya pines (Auracaria bidwilli) on the site, flanking the corner entry, died recently.

10. The proposal is to demolish the remaining fabric of the existing dwelling.

Planning framework

11. The site is zoned R2 Low Density Residential pursuant to Strathfield Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

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

• To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

12. The site is listed as an item of heritage in Schedule 5 of LEP 2012, as Item 91 “Lyndoch Place” – Inter-war Old English style house. 26 Elwin Street and 4 Chalmers Road, which are also located fronting the Barker and Chalmers Road intersection, are both listed as heritage items in Schedule 5 of LEP 2012, as Inter-war bungalows.

13. The relevant objectives of the heritage conservation clause at sub-cl 5.10(1) of LEP 2012 are:

(a) to conserve the environmental heritage of Strathfield,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views

14. Development consent is required for the demolition of a heritage item, at sub-cl 5.10(2)(a)(i) of LEP 2012.

15. The effect of proposed development on the heritage significance of a heritage item must be considered, at sub-cl 5.10(4) of LEP 2012.

Public submissions

16. Three resident objectors provided evidence at the commencement of the hearing on site. They object to the demolition of the existing dwelling as it would diminish the historic character of the area.

Expert evidence

17. Expert heritage evidence was provided by Mr Jeff Madden on behalf of the applicant and Mr David Logan on behalf of the Council.

18. A joint structural engineering report was provided by Mr Leigh Appleyard on behalf of the applicant and Mr Simon Wiltshier on behalf of the Council.

19. Mr Michael Dakhoul, a quantity surveyor, provided expert evidence and an indicative budget estimate for works to the existing dwelling (exhibit D).

Consideration

Terminology

20. Throughout the judgment the terminology used is consistent with the definitions in the Australia ICOMOS Charter for Places of Cultural Significance 2013 (The Burra Charter), as follows:

1.3 Fabric means all the physical material of the place including elements, fixtures, contents and objects.

1.4 Conservation means all the processes of looking after a place so as to retain its cultural significance.

1.5 Maintenance means the continuous protective care of a place, and its setting. Maintenance is to be distinguished from repair which involves restoration or reconstruction.

1.6 Preservation means maintaining a place in its existing state and retarding deterioration.

1.7 Restoration means returning a place to a known earlier state by removing accretions or by reassembling existing elements

without the introduction of new material.

1.8 Reconstruction means returning a place to a known earlier state and is distinguished from restoration by the introduction of new material.

1.9 Adaptation means changing a place to suit the existing use or a proposed use.

Structural integrity of the dwelling

21. The structural engineers agreed that the remaining original structural elements of the building are sound and stable and suitable to be retained; subject to the works being completed in a timely and satisfactory manner, in order to maintain the building in a structurally sound condition in the long term.

Heritage significance of the existing dwelling

22. The heritage experts referred to the NSW heritage assessment criteria and gradings of significance (Assessing Heritage Significance, NSW Heritage Office publication 2001, exhibit 5) as follows:

(a) An item is important in the course, or pattern, of NSW’s cultural or natural history (or the cultural or natural history of the local area);

(b) An item has strong or special association with the life or

works of a person, or group of persons, of importance in

NSW’s cultural or natural history (or the cultural or

natural history of the local area);

(c) An item is important in demonstrating aesthetic

characteristics and/or a high degree of creative or

technical achievement in NSW (or the local area);

(d) An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons.

(e) An item has potential to yield information that will

contribute to an understanding of NSW’s cultural or

natural history (or the cultural or natural history of the

local area);

(f) An item possesses uncommon, rare or endangered

aspects of NSW’s cultural or natural history (or the

cultural or natural history of the local area);

(g) An item is important in demonstrating the principal characteristics of a class of NSW’s

• cultural or natural places; or

• cultural or natural environments.

(or a class of the local area’s

• cultural or natural places; or

• cultural or natural environments.)

Grading	Justification	Status
EXCEPTIONAL	Rare or outstanding element directly contributing to an item’s local and State significance.	Fulfils criteria for local or State listing.
HIGH	High degree of original fabric. Demonstrates a key element of the item’s significance.
MODERATE	Altered or modified elements. Elements with little heritage value, but which contribute to the overall significance of the item.
LITTLE	Alterations detract from significance. Difficult to interpret.	Does not fulfil criteria for local or State listing.
INTRUSIVE	Difficult to interpret. Damaging to the item’s heritage significance

23. The heritage experts agreed that the existing dwelling, in its current condition, is of heritage significance. They disagreed on why the existing dwelling was of heritage significance and the grading of that significance.

24. According to Mr Madden, the existing dwelling, in its current state, is of heritage significance under criteria (a) and (d) and the grading of that heritage significance is between little and moderate. The dwelling is of historical significance in his view and its value to the local community was demonstrated by the passion of the objectors wanting to save what remains of the dwelling. In Mr Madden’s opinion, the dwelling has been severely compromised by the recent demolition works and as it is no longer substantially intact, it does not warrant its local heritage listing.

25. According to Mr Logan, the existing dwelling, in its current state, is of heritage significance under criteria (a), (b), (c) and (g) and the grading of that heritage significance is high, as the dwelling still retains historical values and its external architectural features which led to its heritage listing. In Mr Logan’s opinion, the integrity of the existing dwelling has not been significantly reduced by the removal of original fabric, as the dwelling retains its roof form and profile, its chimneys and its appearance and the changes made to the exterior of the dwelling are readily repairable and the rear could accommodate an addition. In Mr Logan’s view, the dwelling remains worthy of its local heritage listing.

26. According to Mr Logan, the dwelling is significant as it is representative of the body of work of the architect John Brogan. Brogan is recognised as an important architect of the mid-Twentieth century and one of the leading practitioners of the ‘Stockbroker Tudor’ (or Inter-War Old English) style of architecture in NSW. In support of this view, Mr Logan quoted part of Brogan’s listing in The Encyclopaedia of Australian Architecture edited by Philip Goad and Julie Willis, p 108, as follows:

John Richard Brogan (1904-87) was born in Sydney NSW and attended Fort Street High School before being indentured to the architect Alfred Potter while studying architecture at Sydney Technical College. From 1922, Brogan was employed by the leading practice Ross & Rowe, working on the Commonwealth Savings Bank Building, Martin Place, Sydney.

In 1926, Brogan won an Ideal Home design competition run by Grace Bros department Store. This popular success allowed him to establish his own practice the following year, when he was registered as an architect. Brogan’s focus on cottage architecture let the publisher Florence Taylor to regularly publish Brogan’s cottage designs in her Commonwealth Home and Building journals; in 1935 these designs were collected in 101 Australian Homes. In his preface, Brogan stressed the importance of aspect, function, and economy as the first principles of cottage design, but his skilful renderings fuelled the between-wars boom in ‘stockbroker Tudor’ and other nostalgic styles, especially on Sydney’s North Shore.

27. Mr Madden agreed that Brogan is an important architect and is recognised as an exponent of the ‘Stockbroker Tudor’ style, but disagrees with Mr Logan that the dwelling has heritage significant under criterion (b) for this association.

28. The heritage experts agreed that there is sufficient evidence in the remaining external fabric and the many drawings and photographs of the dwelling from 2007 to enable the exterior to be reconstructed to its pre-2007 appearance, to match its appearance when it was intact. They agreed that it would not be necessary from a heritage viewpoint to reconstruct the interior of the dwelling to a known earlier state; instead it would be acceptable to retain the current layout and any surviving original fabric and features.

29. The heritage experts agreed that the dwelling was of heritage significance and worthy of its listing as a local heritage item before the recent demolition works. They disagreed on the heritage significance the dwelling would have if the façade is reconstructed. According to Mr Madden, the dwelling would be of moderate significance once the façade is reconstructed and in his view, the question is whether it is feasible or fair to require the new owners to reconstruct the dwelling only to achieve a moderately significant outcome.

30. In Mr Logan’s opinion, the dwelling would remain of high significance one the façade is reconstructed and the cost of achieving this is justified. Referring to the principles of the Burra Charter and the NSW Heritage Office publication Statements of Heritage Impact, Mr Logan said that demolition of a heritage listed building should be an option of last resort, after all other options had been excluded; however, that has not been the approach in this matter, as demolition is not essential and the option of reconstructing the exterior is viable. The siting of the existing dwelling on a large, level allotment provides substantial scope for additions to be made to the reconstructed exterior of the dwelling and it is entirely feasible to return the property to its former grandeur, including the retention of its key features, and if there was a will to do so, the occupants of the dwelling would have a very commodious home.

31. The heritage experts agreed that the site would have no heritage value following the demolition of the existing dwelling.

32. According to Mr Logan, the existing dwelling also makes an important contribution to the historic Inter-War setting of the group of nearby local heritage items. The heritage experts agreed that the dwelling remains a ‘prominent building’ on the corner site; in Mr Logan’s view the dwelling is a local landmark and in Mr Madden’s view, the recent death of the two bunya pines framing the corner entry to the site, the removal of fences and the removal of original fabric including window joinery have all compromised the presentation of the dwelling to the street, such that it is no longer a local landmark.

33. The Heritage Inventory Sheet for ‘Lyndoch Place’ (attachment 2, exhibit 7) includes the following statement of significance:

Lyndoch place is a good representative example of the Inter-War Old English style incorporating multiple gables, imitation half timbering, herringbone brickwork and tall chimneys. Of substantial size and retaining a large araucaria and located on a street corner, it is a prominent element in the streetscape.

34. I accept the agreement of the heritage experts that the existing dwelling, ‘Lyndoch Place’, is of heritage significance in its current condition. I accept and prefer Mr Logan’s evidence regarding the criteria under which the existing dwelling is of heritage significance, the grading of that significance and the potential for the dwelling to continue to be of high heritage significance following the reconstruction of its façade.

35. The existing dwelling retains its significant architectural features and elements that identify the dwelling as the Inter-War Old English style of architecture and as described in the statement of heritage significance in the Heritage Inventory Sheet; including the textured face-brick walls of the gables, imitation half-timbering to the upper storey gable, herringbone pattered brickwork, decorative timbered bargeboards and the arched entry to the gabled front porch. The reconstruction of the façade of the existing dwelling will recover the former grandeur and landmark significance of ‘Lyndoch Place’ and allow it to continue to provide a historic Inter-War setting and contribute to the collective significance of the group of Inter-War dwellings in the streetscape.

36. ‘Lyndoch Place’ is of high heritage significance as a good example of the work of the noted Australian architect John Brogan and for its association with other local identities of the period. I reject the applicant’s argument that there are other, better examples of Brogan’s work in the Strathfield area and therefore this should permit the demolition of ‘Lyndoch Place’; because ‘Lyndoch Place’ is a good example of the Inter-War Old English style and Brogan’s work, it is executed in the architectural style for which he is primarily recognised and it forms part of his important body of work.

37. Based on all of the evidence, I am persuaded that ‘Lyndoch Place’ is of high heritage significance and remains worthy of its local heritage listing, in spite of its current condition.

Cost of reconstructing the exterior of the dwelling and constructing new interiors

38. According to Mr Dakhoul, the “cost of restoration” is $1,997,653.00 (exhibit D). In determining this figure, Mr Dakhoul did not have a schedule or scope of works and he did not have any architectural or structural engineering drawings on which to base his calculation, instead, he made, in his words, “quite a few assumptions in the report”. In estimating the scope of works required, Mr Dakhoul referred to the ‘Heritage Report’ by Jeff Madden and Associates (exhibit C), the heritage experts’ joint report (exhibit 7) and he inspected the site.

39. Excluding the 15% Mr Dakhoul allowed for the builder’s margin and the 20% he allowed as a contingency, the sub-total of $1,315,977 includes $798,238 for the “main building” according to Mr Dakhoul, the remainder being for the construction of a pool and rebuilding of the summer house.

38. The pool and summer house are elements that would be desirable for both the reconstruction of the existing dwelling and alternatively the construction of a new dwelling. As the applicant is contending that the cost of reconstructing the existing dwelling is not warranted, given its diminished heritage significance following its partial demolition, the ‘cost’ argument can only be properly examined by isolating the cost of reconstructing the façade and constructing new interiors, and comparing it to the cost of demolishing the existing structure and constructing a new dwelling of a commensurate scale and quality to the existing dwelling. With those two figures distinguished, it would be clear what the additional financial impost on the owner is to retain the existing dwelling, over and above the cost of building a new dwelling, which is the basis of the applicant’s contention. The cost of the external works, including a pool, a pool house or summer house, landscaping, external paving and fencing and so on are not relevant to this argument as they are costs common to both options.

39. The $798,238 sub-total estimate for the reconstruction of the façade and construction of the interiors of the existing dwelling includes an amount of $170,427 for external works, including demolition of slabs and fences around the site, retaining walls, footings for fences and planters, pergola, carport, external sandstone tiling and landscaping (exhibit L). These are expenses common to both options and can therefore be subtracted from the sub-total estimate for the existing dwelling in order to isolate and identify the expense of reconstructing the existing dwelling.

40. The $798,238 sub-total estimate for the existing dwelling includes an allowance of $200,689 for underpinning, because in Mr Dakhoul’s experience underpinning is often required for heritage houses. However, the agreed evidence of the structural engineers is that the remaining original structural elements of the building are sound and stable and suitable to be retained, assuming the extant structure is properly maintained and the works are completed in a timely fashion. There is no evidence that any underpinning is required and so it can be subtracted from the sub-total estimate for the existing dwelling.

41. Subtracting the allowance for external works and the underpinning of the existing dwelling, the sub-total estimate for the restoration of the façade and the construction of the interior of the existing dwelling is $427,122. Allowing for Mr Dakhoul’s 20% contingency raises the estimate to $512,546 and adding his 15% builder’s margin brings the estimate to $589,428 plus 10% GST, equals $648,370. This estimate for the reconstruction of the façade and construction of interiors of the existing dwelling excludes, notably, the fit-out of the kitchen, laundry and bathrooms and finishes, fittings and fixtures. It also excludes professional fees.

42. Mr Dakhoul estimates that the construction of a new dwelling would be in the ‘ballpark’ of $1,000,000 to $1,200,000. He estimates that demolition of the existing dwelling would be in the ‘ballpark’ of $30,000. It is difficult to compare the figure for the cost of a new house to the cost of reconstructing the existing dwelling, because Mr Dakhoul indicated in his oral evidence that this ‘ballpark’ estimate includes all the works associated with a new dwelling, including external works such as a pool.

43. It is the agreed position of the heritage experts that it would not be necessary to reconstruct the interior of the dwelling to a known earlier state; instead it would be acceptable to retain the current layout and any surviving original fabric and features. It follows that the cost of completing the interiors within the existing dwelling would then be commensurate to the cost of the interiors of a new dwelling.

44. The additional cost of retaining the existing dwelling, over and above the cost of constructing a new dwelling, would be essentially the costs associated with the bespoke conservation and reconstruction of the façade of the original dwelling, the cost of repairing and possibly augmenting the existing structural components and any additional costs associated with knitting the new work into the old. As the structural engineers agreed that the remaining original structural elements of the building are sound and stable and suitable for retention, there is arguably some cost savings in retaining the existing dwelling, when compared to demolishing it and constructing a new structure. However, as this has not been addressed by the evidence, I have not taken it into account.

45. The parties submit that the approach taken by the commissioner in Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118 (Norm Fletcher) is relevant to my consideration of this matter. In Norm Fletcher at [63] it was held that the planning principle in Helou v Strathfield Municipal Council (2006) LGERA 322 (Helou) was of assistance by analogy, and so it was appropriate and relevant to consider whether the cost of the reconstruction of a heritage item would be an unreasonable burden on the owner. While I accept that it is appropriate and relevant to weigh the additional financial impost on the owner against the public benefit of retaining and reconstructing a heritage item, it necessarily has to be compared to an alternative, such as demolition of the existing and construction of a new dwelling, to ascertain what the additional cost actually is, as discussed in Helou at [35] and [66]. It may be relevant to consider the resale value of the two options, because if the cost of reconstructing a heritage item can be recouped in resale, it may further justify its retention. It is also relevant to consider the development potential of the retained heritage item, as mooted in the Helou planning principle at [46], question 4. Ultimately, though, it requires consideration of unique, complex and subjective factors, such as balancing a monetary value against the intangible social value of conservation.

46. In this matter, to firstly identify the additional financial impost on the owner, the estimate of reconstruction needs to be accurate and this figure compared to the cost of a constructing a new dwelling and separated from the costs common to both options. From Mr Dakhoul’s evidence, the cost associated with the reconstruction of the façade and construction of interiors of the existing dwelling is in the order of $650,000 (excluding internal joinery, fittings and fixtures). By Mr Dakhoul’s own admission, he arrived at his estimate of costs without architectural plans, without structural engineering plans and without a schedule of works, so his estimate is indicative at best. I do not mean to imply any criticism of Mr Dakhoul, as he comprehensively responded to the inadequate brief he was given. There is not a reliable figure for the construction of a new dwelling, excluding site works, to compare the $650,000 indicative estimate to. Consequently, I cannot take Mr Dakhoul’s evidence any further than to conclude that there will likely be some additional costs associated with the reconstruction of the bespoke façade of the existing dwelling and the construction of new work within an existing shell, when compared to the cost of constructing a new dwelling.

47. The question is then, balancing some unspecified additional costs against the cultural heritage significance of the reconstructed existing dwelling, is the conservation and reconstruction of the façade of the existing dwelling warranted? I am persuaded by all the evidence that the reconstruction of the façade of the existing dwelling is warranted, as ‘Lyndoch Place’ is of high heritage significance and it remains worthy of its local heritage listing; the reconstruction of the façade will recover its former grandeur and landmark significance and it will continue to contribute to the collective significance of the group of Inter-War dwellings in the streetscape; and the siting of the existing dwelling on a large, level allotment provides substantial scope for additions, new outbuildings and a new garden setting to be created around the reconstructed exterior of the existing dwelling.

Conclusion

50. The heritage experts agreed that there is sufficient evidence in the remaining external fabric and the many drawings and photographs of the dwelling from 2007 to enable the exterior to be reconstructed to its pre-2007 appearance, to match its appearance when it was intact. The structural engineers agreed that the remaining original structural elements of the building are sound and stable and suitable to be retained. I am satisfied by the evidence that the reconstruction of ‘Lyndoch Place’ is both feasible and warranted.

51. The proposed demolition of the heritage item would be contrary to the objectives of the heritage conservation clause, at sub-cll 5.10(1)(a) and (b) of LEP 2012, to conserve the environmental heritage of Strathfield and the heritage significance of heritage items, and I am not persuaded by the evidence to accept the applicant’s argument that the existing condition of the heritage item does not justify its conservation and reconstruction, when balanced against both the heritage significance of the remaining original fabric and the cost of reconstruction. Therefore the proposed demolition of ‘Lyndoch Place’ is refused.

Orders

52. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2014/188 for the demolition of an existing dwelling at 2-4 Barker Road, Strathfield, is refused.

3. The exhibits, other than exhibit 2, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 11 September 2015