Owen Haviland Pty Ltd v Willoughby City Council
[2004] NSWLEC 265
•05/25/2004
Land and Environment Court
of New South Wales
CITATION: Owen Haviland Pty Ltd v Willoughby City Council [2004] NSWLEC 265 PARTIES: APPLICANT
RESPONDENT
Owen Haviland Pty Ltd
Willoughby City CouncilFILE NUMBER(S): 10102 of 2004 CORAM: Tuor C. KEY ISSUES: Development Application :- demolition of a contributory house in a conservation area
impact on the heritage significance of a conservation areaLEGISLATION CITED: Willoughby Local Environmental Plan 1995 CASES CITED: DATES OF HEARING: 24/05/2004 EX TEMPORE
JUDGMENT DATE :05/25/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr M Ball
Ms H Irish, Barrister
Solicitors
Mallesons Stephen Jaques
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10102 of 2004
25 May 2004Tuor C
- Applicant
- Respondent
Introduction
1 This is an appeal against the refusal by Willoughby City Council (the council) of a development application (DA 2003/810) to demolish an existing house and construct a new house at 13 Horsley Avenue, Willoughby.
The site and its context
2 The site (being lot 13 DP14241) is located on the northern side of Horsley Avenue. It has an area of 638.6m2 with a frontage of about 14.2m to Horsley Avenue and a depth of about 44.5m. There is a fall of about half a metre from the rear to the front.
3 The site is developed with an inter war bungalow (c 1928). The front of the house is double brick with a lean to addition at the rear. There is a separate fibro garage, which is accessed from a single driveway along the eastern side of the house.
4 The house is located within the Horsley Avenue Conservation Area. This conservation area includes Horsley Avenue and Summerville Crescent. Other houses in the street are single storey, built at a similar time although some have been altered and appear as later houses.
Statutory framework
5 The site is zoned 2 (a) (Residential) under Willoughby Local Environmental Plan 1995 (LEP 1995). The proposal is permissible with consent. Under this LEP the site is identified as being within the Horsley Avenue Conservation Area. Willoughby Development Control Plan No 19-Heritage and Conservation (DCP 19) and Willoughby Development Control Plan No 16-Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones (DCP 16) are also relevant to the application.
Issues
6 The Statement of Issues before the Court contains 2 issues. These can be summarised as whether the demolition of the existing house and the construction of a new house has an acceptable impact on the heritage significance of the conservation area.
7 After the site visit, amended plans were prepared. The heritage experts disagreed on the impact of the demolition of the existing house but agreed that if it were allowed to be demolished the proposed dwelling in the amended plans was acceptable.
8 The following experts provided Statements of Evidence:
· For the council
- Ms J Hill, heritage architect
· For the applicant
- Mr W McPhee, heritage architect
· Court appointed experts
- Mr P Connett, structural engineer
9 The Court also heard evidence from a resident objector, Mr C Ray, the son of the owner of 19 Horsley Avenue, who supported retention of the existing house as it contributed to the conservation area.
10 Clause 57(3) requires that:
- The Council shall not consent to development described in subclause (2) unless it has considered the extent to which the proposed development would affect the heritage significance of the heritage item or the conservation area
11 Section 4.2.8 of DCP 19 refers to the Horsley Avenue Conservation Area. The statement of significance states that:
- Horsley Avenue is an intact example of a late 1920’s residential development in near original condition. Few additions or irreversible alterations have occurred to the original housing stock, and its coherent character is retained. The area has a uniformity of housing style and setting including form, materials, detailing, fencing and setbacks that gives the area an harmonious appearance. The predominance of the 1920s bungalow type illustrates the important influence of American housing ideals and styles on Australia.
12 The desired future character includes:
- Retain the dominant Bungalow character of Horsley Street by maintaining all original 1920’s-1930’s buildings and their consistency in scale, style, detailing, spacing, and setbacks and subdivision pattern.
- Any new development (including car parking structures) should retain the principal elevations of the bungalow and be set back behind the main body of the original building envelope.
13 Section 3.4 of DCP 19 sets out Objectives and Requirements for demolition of a heritage item or a building with a conservation area. The objective is:
- To conserve both individually listed heritage items and the general building stock which contributes to the character of the Conservation Areas, and to ensure that replacement development enhances the character of any Conservation Area.
14 The requirements of this section include an assessment of:
- a) the heritage significance of the building or work, including its contribution to the streetscape in Conservation Areas, and whether its permanent conservation is considered necessary; and
b) the opportunities for the adaptation and whether the building or work would be incapable of reasonable or economic use; and
c) whether the building or work constitutes a danger to its users or occupiers or to the public; and
d) whether, in the case of an application for total demolition, redevelopment is a reasonable alternative to retention.
15 The heritage expert's agreed that 13 Horsley Avenue was an original bungalow, which contributes to the conservation area. The key area of disagreement between the experts was their philosophical approach to the removal of a contributory element within a conservation area.
16 Mr McPhee’s opinion was that removal of a contributory component and construction of a replacement dwelling which complies with the aims and intent of DCP No 19 is a reasonable heritage architectural approach for carrying out changes to a conservation area.
17 Ms Hill held the contrary opinion that the purpose of a conservation area is to conserve those elements which contribute to its significance. To replace those elements which contribute with similar volume buildings will eventually erode the character and undermine its significance. She stated that only 17.5% of the 27,500 rateable properties, being 1,950 are located within conservation areas and of these 1,950 not all elements are contributing, therefore council's requirements to retain a contributing element in conservation areas is reasonable… DCP 19 anticipates that changes can occur to contributing components to the rear which do not impact on the significance to the streetscape and area.
18 In adjudicating between these two conflicting points of view, the question before the Court is which opinion reflects the planning framework under which the application must be assessed. The desired future character controls for the Horsley Avenue Conservation Area clearly state that original bungalows are to be retained with additions behind the main part of the original building. If demolition is proposed, s 4.2.8 sets out the requirements against which the proposal must be assessed. The key area of disagreement between the parties was whether criterion (b) is met.
19 The applicant’s submission was that the existing house was in poor condition and required significant expenditure such that its retention was unreasonable and it therefore could be demolished and a new dwelling constructed which better met the needs of its owners. Council submission was that the main part of the existing house could be repaired with a suitable addition to meet these needs at a reasonable cost. Council submitted that opportunities for adaptation had not been explored and therefore it could not be concluded that the existing dwelling was incapable of reasonable or economic use.
20 Mr Connett undertook an assessment of the structural stability and state of repair of the existing dwelling. He prepared a schedule of recommended remedial works to make the building structure stable, watertight and fit for human habitation to its previous level only. His main concern was that the front and rear western corners had subsided probably due to leaking pipes in this area. The source of the leak needed to be fixed to prevent further deterioration, replacement of the sewer and underpinning of the wall may be necessary. The lintel above the front bay window had also failed. He recommended that the lintel, bay window, brickwork and fibro cement gable above the lintel should be replaced. The North Eastern hip of the roof sags and needs to be replaced. The recommended works included other less significant works such as rebuilding the existing WC, waterproofing the shower and replacing timber floors in the pantry and laundry.
21 Mr Wilde costed the works recommended by Mr Connett, which correctly included replacement of the sewer and underpinning the western wall but which may not be necessary upon further investigation. He also costed the proposed new dwelling, based on the original drawings. The figures were about $172,000 (including 10% GST, 15% contingency and 20% builders preliminaries) to repair the existing dwelling, which is about 137sqm in area and $480,000 (including GST) to build a new house, which is about 224sqm in area plus a verandah of 61sqm.
22 To compare these figures it is useful to examine the cost of repairing the existing house compared to the cost of providing the same amount of area. I note that the area of the existing house includes the WC and verandah that are likely to be demolished if an addition were provided. Based on Mr Wylde’s square metre rate of $1595 for the new dwelling, the cost of providing the equivalent amount of new space would be $218,515. These figures are not directly comparable as bathrooms and a kitchen would add extra cost as well as redecorating. Although Mr Wylde’s figures for the repair work do include $7000 for internal decoration, $5,500 to reconstruct the WC and $6,000 to fix up the shower (these figures do not include the extra 45%). He priced the kitchen fit out for the new house at $20,000 (plus GST). If these adjustments are made the cost of retaining the existing house and building the same area appear to be similar.
23 Ms Hill’s evidence was that the retention of the existing house with an addition to provide a total area equivalent to that proposed in the new dwelling would be in the order of $427,000 to $511,000. Mr Wylde stated that the square metre rate for an addition is greater than for a new dwelling and that the overall cost would be more likely $550,000.
24 The cost of works for both the retention of the existing house with an addition and the construction of a new house would vary depending upon the owner's requirements and the quality of what is proposed. The analysis undertaken by Mr Wilde and Ms Hill is useful to the extent that it demonstrates whether the existing house would be incapable of reasonable or economic use. I find that this is not the case. From the evidence before me the existing house is capable of reasonable or economic use.
25 Ms Hill’s opinion was that the existing house could be adapted. The applicant did not provide evidence to demonstrate that alternatives to demolition had been examined other than the square metre rates discussed above. I do not accept that this is sufficient to satisfy the requirements of s.4.2.8 (b) and to justify demolition.
26 The clear intent of the planning controls for the Horsley Avenue Conservation Area is that existing bungalows should be retained and added to meet owner’s requirements, except if they do not contribute to the significance of the conservation area or if there are not opportunities for adaptation and they are incapable of reasonable or economic use. The existing house does contribute to the conservation area. While it has been poorly maintained it can reasonably be repaired and the cost of doing this does not place an economic burden upon the owners that is unreasonable when compared to the cost of constructing the same amount of area.
27 The proposed dwelling, as shown in the amended plans, may be an appropriate addition to the conservation area on a site with a non-contributory building or where a building was incapable of retention or adaptation. However, in this case, it is not a reasonable alternative to retention. In considering the application under clause 57(3) of LEP 1995, I accept Ms Hill's evidence that the replacement of original buildings, which contribute to the significance of the conservation area with a replica building will erode the significance of the conservation area and on this basis the application must fail.
Orders
1. The appeal is dismissed.
3. The exhibits may be returned.2. The development application (DA 2003/810) to demolish the existing house and construct a new house at 13 Horsley Avenue, Willoughby, is refused.
- ____________________
Annelise Tuor
Commissioner of the Court
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