Nisbet v Newcastle City Council

[2017] NSWLEC 1480

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nisbet v Newcastle City Council [2017] NSWLEC 1480
Hearing dates:	24 August 2017
Date of orders:	05 September 2017
Decision date:	05 September 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 2016/01351 for the demolition of the existing dwelling and construction of a new dwelling at 60 Turnbull Street, Merewether, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of dwelling in a heritage conservation area; dwelling assessed as making a neutral contribution to the heritage significance of the heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107 Helou v Strathfield Municipal Council [2006] NSWLEC 66 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Olga and Alan Nisbet (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: Mr G. Long, solicitor (Applicant) Mr R. O’Gorman-Hughes, barrister (Respondent)   Solicitors: Long Legal (Applicant) Newcastle City Council (Respondent)
File Number(s):	2017/132305
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2016/01351 for the demolition of an existing dwelling and construction of a new single storey dwelling (the proposal) at 60 Turnbull Street, Merewether (the site) by Newcastle City Council (the Council).

2. The appeal was subject to mandatory conciliation on 24 August 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b) of the LEC Act.

3. The parties consented to the admission of evidence given during the conciliation conference, pursuant to s 34(12) LEC Act.

Issues

4. The Council contends that the existing dwelling should be retained because the unsympathetic elements later added to the dwelling could be removed and sympathetic additions constructed, so that the existing dwelling contributes to the heritage significance of the Hamilton South ‘Garden Suburb’ Heritage Conservation Area (Hamilton South ‘Garden Suburb’ HCA).

5. The Council does not raise any contentions in relation to the proposed new dwelling.

6. The applicant submits that condition 7 of the Conditions of Consent (exhibit 4), requiring the applicant to prepare an archival record of the building and yard and provided to Council, should be deleted.

The site

7. The area of the site is 595.26sqm, with a frontage to Turnbull Street of 13.106m. The site contains a single storey timber framed dwelling, with a garage at the rear of the site.

The proposal

8. The proposal is to demolish the existing single storey dwelling constructed c1940 and the garage at the rear of the existing dwelling and construct a new, single storey dwelling and garage.

Planning framework

9. The site is zoned R2 Low Density Residential pursuant to Newcastle Local Environmental Plan 2012 and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, 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 accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

10. The site is identified as flood prone land. The flood planning level (FPL) is defined by Newcastle Development Control Plan 2012 (DCP 2012) as the level of the planning flood (1% Annual Exceedance Probability flood) plus an additional freeboard of 500mm, at 4.01 Flood Management. The floor levels of all occupiable rooms of all buildings are not set lower than the FPL, at 4.01.03 control 1 of DCP 2012. On-site refuge is to be provided for all development where the life hazard category is L4 unless the proposed development is less than 40m from the perimeter of the PMF extent and the higher ground is accessible.

11. The site is located within the Hamilton South ‘Garden Suburb’ HCA (Heritage Map Sheet HER_004G of LEP 2012). Before consent can be granted, regard must be had to the effect of the proposal on the heritage significance of the heritage conservation area, at cl 5.10(4) of LEP 2012. The statement of heritage significance for the Hamilton South ‘Garden Suburb’ HCA, at section 5.07 of DCP 2012, is as follows:

The Hamilton South “Garden Suburb” Heritage Conservation Area is significant to the local community for the surviving evidence of an early twentieth century subdivision pattern made up on single dwellings on large “suburban” style allotments generally over 600 square metres. The precinct has associational significance with the eminent Australian architect and planner Sir John Sulman and as such, its original form is important evidence of his work and ideas. The suburb is one of Newcastle’s earliest and largest examples of a planned garden suburb and as such is historically important. The evidence of Sulman’s original design is reflected in the road layout, allotment shape and pattern, and form of housing – single storey detached bungalow and cottage style houses, with a consistent palette of face brick and painted weatherboard houses.

12. A contributory building is defined by DCP 2012 as ‘a building that is associated with a significant historical period, substantially intact; and a building associated with a significant historical period, altered yet readily identifiable.’

13. The Council prepared a ‘Review of Heritage Conservation Areas Final Report’ in June 2016, which was exhibited and adopted by the Council. The report identifies three levels of contribution to the collective heritage significance of a HCA, as follows:

Contributory buildings

Contributory buildings make a significant contribution to the character of heritage conservation areas and streetscapes. Typically they will retain a high proportion of original features and alterations are generally reversible. Contributory buildings are an important resource for the interpretation and understanding of the history and development pattern of the area. Such buildings will contribute to the overall heritage value of the area. The appearance of a principal or significant frontage should be retained, with alterations and additions located at the rear of contributory buildings.

Neutral buildings

Neutral buildings do not contribute or detract from the significant character of the heritage conservation area or streetscape. They include buildings that are associated with an area’s historic development but may have been altered, or their intactness reduced over time. Neutral buildings may also be new sympathetic development or infill that sits well within a streetscape. It is preferable to keep such buildings and restore elements to increase the contribution of the buildings to the streetscape.

Non Contributory buildings

Non-contributory buildings are intrusive to the streetscape of a heritage conservation area owing to their inappropriate scale, bulk, setback, roof treatment, atypical garage arrangements or materials. Non-contributory buildings may detract from the heritage conservation area streetscape and are suited to redevelopment. The redevelopment of non-contributory buildings provides an opportunity for new development to reinforce the character of the area. Non-contributory buildings provide locations for appropriate infill development.

14. The description of the Hamilton South Garden Suburb HCA in the Report includes the following:

This chapter examines the Hamilton South 'Garden Suburb' Heritage Conservation Area. Its' cultural significance, as its name suggests, is embodied in the surviving physical elements of the 'garden suburb' movement of the early 20th century. The layout of roads such as Parkway, Gordon and Stewart Avenues, and public open space including Learmonth and National Parks, creates a distinctive character planned around large residential allotments containing single dwellings on allotments of between 520m² and 820m². The suburb today is defined by elements that reflect the ideas of the garden suburb movement. Key visual elements include:

• California and Inter-War bungalows built as single storey detached dwellings on large lots

• Consistent front and side setback a soft ‘edge’ between the public domain and gardens in the private domain

• a strongly symmetrical pattern of streets supporting a grid layout

• Parkway, Gordon and Stewart Avenues as the obvious dominant feature streets, parts of which contain the street trees planted by the AA Company

• Newcastle High School

• Learmonth Park. The park contains a pair of masonry monuments that originally formed the southern gateway at the intersection of Gordon Ave and Glebe Road

• Parkway Avenue is important in demonstrating the “garden suburb” design principles.

15. Figure 3.2 of the Report includes the following “Contributory buildings map”:

16. The site is identified as “Neutral” on the map.

17. Contributory buildings

Contributory buildings may be defined as those buildings that are part of the original building stock, or have historic or aesthetic significance, or make a positive contribution to the streetscape. Generally buildings in this category had not been heavily altered or where alterations were evident these were of a scale or style that retained the character of the building. Removal of contributory buildings is detrimental to the heritage conservation area because these elements establish the prevailing character and reinforce its sense of place. On the other hand, demolition of and alterations to non-contributory buildings is encouraged if the replacement design is more in character with the streetscape. The contribution of any particular building to streetscape, character or heritage significance will guide the approach to development and assist in determining the degree of change that will be permitted.

Expert evidence

18. The applicant relied on the expert planning evidence of Ms Shay Riley-Lewis and the Council relied on the expert planning evidence of Mr Bradley McCarron. As the experts had no expertise in heritage conservation, their evidence was, in relation to the contribution of the existing dwelling to the heritage significance of the Hamilton South ‘Garden Suburb’ HCA, unhelpful. This is not a criticism of the experts themselves, but as the Statement of Facts and Contentions (exhibit 1) made plain, the critical issue in the appeal was heritage and the experts were only able to provide limited relevant evidence in relation to this issue.

Consideration

19. As the Review of Heritage Conservation Areas Final Report has been exhibited and adopted by Council, I accept that it is a relevant consideration in regard to this appeal as a policy adopted by Council (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 [92]).

Contribution of the existing cottage to the heritage significance of the HCA

20. The existing building dates from the key period of development identified by the Hamilton South ‘Garden Suburb’ HCA.

21. Contrary to the Council’s expert’s evidence, the existing dwelling does not have any distinctive elements that could be identified as representative of the ‘Californian Bungalow’ style of architecture. The inter-war Californian Bungalow style is distinguished by its horizontal proportions, oversized or tapering pylons with cappings or grouped posts supporting a flat or low pitched roof to a verandah or gabled porch, shingled gable ends and chunky carpentry details, usually built in brick with rough cast render, wide eaves and exposed roof timbers and chimneys. The existing dwelling exhibits none of these characteristic elements, other than it has a front porch. There is, however, a number of Californian Bungalow styled dwellings, including timber clad versions, within the Hamilton South ‘Garden Suburb’ HCA.

22. The existing dwelling has been significantly altered, including the replacement of windows with aluminium frames and the replacement of wall and roof cladding and elements of the front porch.

23. In my opinion, the existing dwelling was appropriately identified by the Review of Heritage Conservation Areas Final Report as making a neutral contribution to the collective heritage significance of the Hamilton South ‘Garden Suburb’ HCA. The existing dwelling does not detract from the HCA or disrupt the established streetscape character; it is a single storey detached dwelling on a typically sized site and its scale and placement on the site is consistent with the surrounding development. It does not, however, contribute to the collective heritage significance of the HCA, because it is a modest and expedient un-styled building that has been significantly altered.

24. I do not accept the Council’s submission that “reconstructing” lost elements or cladding of this simple building will elevate its contribution to the heritage significance of the HCA. Reconstruction is only warranted where there is sufficient evidence to reproduce an earlier state of the fabric (The Australia ICOMOS Charter for Places of Cultural Significance, 2013 “Burra Charter” Article 20). What the Council is actually referring to is adding new fabric and architectural details to the dwelling. Adding contemporary fabric with pastiche detailing might enhance the building’s aesthetic appeal to some, but it would not result in a building that contributes to the heritage significance of the HCA. The highest contribution this building can ever make to the HCA is a neutral contribution. A building sympathetic to the character of a HCA, but not contributory to the collective historic and aesthetic significance of the HCA, can only ever be neutral (or intrusive) in its contribution to the identified heritage significance. (Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107 [30]).

25. The proposal does not impact on the dominant spatial structure and garden suburb features identified as part of the heritage significant of the Hamilton South ‘Garden Suburb’ HCA.

The Review of Heritage Conservation Areas Final Report

26. The Review of Heritage Conservation Areas Final Report identifies three levels of contribution to each HCA and maps these levels in the report. Appropriately, the report states that ‘neutral buildings’ are those that do not contribute or detract from the significant character of the heritage conservation area or streetscape. According to the report, neutral buildings include buildings that are associated with the areas historic development but may have been altered, or their intactness reduced over time.

27. The context of the site includes a number of buildings that date from the key period of development and appear to make a significant contribution to the streetscape character, including some examples of the Californian Bungalow style, but have been added to with second storeys setback from the front façade or contemporary rear additions, and are identified as neutral. A building that dates from the key period and contributes to the collective heritage significance of the HCA should be, after a thorough assessment, identified as contributory to the heritage significance of the HCA. Contemporary and sympathetic additions do not necessarily diminish the contribution made by a building to the HCA. The test for contribution is not solely the integrity of the original building.

28. In my view, it is confusing to identify a building as making a neutral contribution to the heritage significance of a HCA, but to require building owners to “restore elements to increase the contribution of the buildings to the streetscape”. If the building makes a contribution to the heritage significance of the HCA, it should be identified as such. A contributory building with intrusive elements, as opposed to sympathetic additions, requires a different analysis to a neutral building. A neutral building cannot be made to contribute to the collective heritage significance of a HCA by adding architectural details similar to those of surrounding contributory buildings.

Flooding

29. The finished floor level (FFL) of the existing dwelling is 175mm below the FPL. The Council submits that, notwithstanding the DCP 2012 requirement for floor levels of occupiable rooms to be at the FPL or above, alterations and additions to the existing dwelling could be maintained at the existing FFL level.

30. The applicant submits that in making an investment to redevelop the site, either by retaining portions of the existing dwelling or building a new dwelling, the applicant should be entitled to rectify this issue by raising the floor level to the FPL.

31. I accept the Council’s concession that strict compliance with the numerical FPL for the FFL of an extension to an existing dwelling in an HCA would be unreasonable. This is a practical and balanced response to the issue of imposing FPL levels on existing dwellings in HCAs. I do not accept that the identification of a FPL would justify the demolition of a contributory building with FFL below the FPL in a HCA. There are other means of addressing a flood hazard and reducing the risk and cost of flooding, such as using flood compatible structural building components and flood proofing services in areas below the FPL.

32. Given my finding that this dwelling does not contribute to the collective heritage significance of the HCA, this issue is no longer relevant. I have not had any regard to the fact that the existing FFL is below the FPL in making a finding that the demolition of the existing dwelling is acceptable. The proposed new dwelling’s FFL is at the FPL.

Findings

33. I am satisfied that the effect of the proposal on the identified heritage significance of the Hamilton South ‘Garden Suburb’ HCA is acceptable.

34. The Helou planning principle in Helou v Strathfield Municipal Council [2006] NSWLEC 66 [46], raised by the experts, is not a relevant consideration in this appeal. The Helou planning principle concerns contributory buildings in a HCA. More importantly however, DCP 2012 and the Review of Heritage Conservation Areas Final Report, which should be given some weight as embodying the Council’s policy in relation to HCAs, together deal comprehensively with the heritage significance of the HCA and the appropriate consequences for each category of contribution to the heritage significance of the HCA.

35. Condition 7 (exhibit 4) requiring the applicant to prepare an archival record of the building and yard and provide it to Council is to be retained as the existing dwelling dates from the key period of development associated with the significance of the Hamilton South ‘Garden Suburb’ HCA. It is appropriate to have a record of the dwelling as part of the documentary evidence of the development of the suburb.

36. The Council does not raise an issue in relation to the proposed dwelling. I am satisfied that the replacement building is appropriately sympathetic to the Hamilton South ‘Garden Suburb’ HCA in terms of its scale and placement on the site. It will replace the existing ‘neutral’ dwelling with another ‘neutral’ dwelling in the HCA.

Orders

37. The orders of the Court are:

The appeal is upheld.

Development Application No. 2016/01351 for the demolition of the existing dwelling and construction of a new dwelling at 60 Turnbull Street, Merewether, is approved, subject to the conditions of consent at Annexure A.

The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

                                                                       **********

Annexure A (C) (341 KB, pdf)

Decision last updated: 05 September 2017