Ryleton Pty Ltd v Parramatta City Council - [2008] NSWLEC 1397

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Ryleton Pty Ltd v Parramatta City Council [2008] NSWLEC 1397

PARTIES:
APPLICANT
Ryleton Pty Ltd
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10017 of 2008

CORAM: Murrell C

KEY ISSUES: Development Application :- demolition of heritage item and erection of new dwelling; heritage assessment of item of local significance.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan
Parramatta Local Environmental Plan Heritage
Parramatta Development Control Plan

DATES OF HEARING: 22/05/2008 and 23/05/2008

DATE OF JUDGMENT:
10 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
Instructed by Mr T. O'Connor
of Houston Dearn O'Connor
RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

10 October 2008

10017 of 2008 Ryleton Pty Ltd v Parramatta City Council
JUDGMENT

1 The Applicant in these proceedings is seeking to demolish the local heritage item and construct a two storey dwelling house on the land known as 12 York Street Oatlands.

2 The subject site is lot 8 DP 217963 and has an area of 1409 square metres. The site enjoys views over the dwellings opposite in York Street to Oatlands Golf Course to the south, refer to Figure 1.

3 The site is adjoined by residential dwellings to the north and east with a vacant allotment to the west at No.14 of 1,681 square metres that once formed part of the garden of the cottage on the subject site.

4 The site is within an established residential area characterised by relatively large lots created by a subdivision in 1963

5 The original part of the existing dwelling was built in or about 1885. The heritage report of Jeff Madden and Associates provides a history of the land in the locality and includes the following.

The property was part of 90 acres is in the Municipality of Dundas… granted to Percy Simpson by Crown grant on the 25th July 1833…

The subject site is part of 20 acres and one rood of Simpson's Grant sold on 1st January 1835 to George Thomas Palmer
23 April 1952 - Half the property containing the subject site or 10 acres and three rds 37 p, remained in the ownership of Beaumaurice Clark until 1963 when it was subdivided and individual allotments were sold off.

The Proposal

6 The proposal is for the demolition of the heritage cottage and its additions and the construction or a two-storey dwelling and garages on the subject site.

The Council raises no objection to the merits of the replacement dwelling as it complies with the Council controls and guidelines. The fundamental contention is that the original dwelling should not be demolished.

Contentions

7 The first contention identified by the Council is Heritage. In that the application should be refused because the site is listed under the Parramatta Heritage and Conservation Local Environmental Plan 1996 as a heritage item of local significance and its demolition and replacement with a new dwelling is contrary to the provisions of the LEP and the Parramatta Heritage Development Control Plan 2001. The Council has no objection to the additions to the original cottage being demolished but maintains that the original cottage should be retained, restored and repaired and the cost would be reasonable in the circumstances.

8 The second contention is that the proposal is inconsistent with objectives (a) and (b) of the 2A residential zone in the Parramatta LEP 2001.

Statutory Planning Framework

9 The Parramatta Local Environmental Plan 2001 zones the subject site 2A and the zone objectives relevantly include

10 Development Control Plan 2005 is a relevant document for the assessment of the proposed new dwelling house only.

11 The Parramatta Local Environment Plan 1996 (Heritage and Conservation) lists the subject site in Schedule 2 as an item of local heritage and it is described as a Victorian Italianate Cottage. The inventory form number 647 provides the following:

Description : single storey rendered masonry late Victorian cottage. Applied plaster decoration. Hipped roof clad with metal tiles. Front and door and porch altered. Set well back from street in large lavish garden.

historical details : land subdivided as the Oatlands Estate.

historical themes : private housing

evaluation criteria

significance

category

neighbourhood

12 The heritage objectives of the 1996 LEP at clause 2 are:

13 Clause 11 of the heritage LEP requires consent for demolishing or altering a heritage item. Sub clause 4 states

when determining a development applications required by this clause a consent authority must assess the extent to which the carrying out the proposed development would affect the heritage significance of the heritage item…

14 Subclause 5 requires the assessment to include but is not limited to consideration of;

Clause 11 (relevant sections)

Clause 14

(2) The consent authority may refuse to grant any such consent unless it has considered a heritage impact statement that will help it to assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item…

15 The Parramatta Heritage Development Control Plan 2001 is also relevant to the assessment of this application.

16 The document states that “heritage items in schedule 1 are not considered more important than those listed in schedule two. The distinction simply helps to describe why the item is listed. Items in schedule 1 are important because they help describe the history of the State or Region. Items in Schedule 2 are important because they help describe the history of local area”.

Section 2.2.2

Section 2.3.3

clarify why the building is significant
describe what the impact will be of the proposed work
explain what measures have been taken to minimise that impact

Section 2.3.5

17 Under the section on demolition the DCP states

Council will consider not just the outside appearance of the building whether or not it looks run down. Council will weigh up the heritage significance of the property, it contribution to the history and identity of its street and neighbourhood, and its importance to Parramatta as a whole.

Evidence and submissions

18 It was submitted on behalf of the Respondent that the relevant questions in the assessment of the application in relation to the DCP are

What is the heritage significance of the item?

What is the relationship to history?

What is the importance to Parramatta ?

Is the property capable of reasonable use or would it be too costly to make the item re-useable?.

19 It is not the Council’s position that the building should be retained at all costs. The Council no longer contests that the Court does not have the necessary information in terms of the heritage impact statement to make a determination.

20 It was submitted on behalf of the Applicant that under the provisions of the Heritage LEP that demolition is a matter that requires development consent and that the Heritage LEP calls for specific consideration when an item of heritage is proposed to be demolished. It was submitted that the task for the Court is to weigh up the heritage significance of the property and that a cost benefit analysis is the second question that may be asked in the assessment but in the first instance is retention warranted.

Residents

21 The Court met on site with the parties and heard from with a number of residents, some of who supported the proposed development while others objected. Ms Shayla of Immarna Place, a member of the Parramatta Historic Society, informed the Court that the existing dwelling is historic because it was the original house on the original farm estate. She said the front section of the house represents the original dwelling and should be retained whereas the rear extensions could be demolished. In her opinion he retention of the dwelling is important for its history and aesthetics. She also said that the old mature Bunya Pines should be retained. Ms Dennis of Immarna Place informed the Court that there is little evidence of history left in the district and it would be a pity to destroy history by the demolition of the dwelling. She informed the Court that over the last two years the front door has been left open most of the time and for sixteen years it has been neglected.

22 Mr Beddell of Immarna Place said he had no objection to the demolition of the dwelling or the removal of the Bunya Pines that dropped large nuts onto his property that adjoins the subject site. He said the existing house was an eyesore in its present condition. Ms Azar also of Immarna Place, adjoining the subject property at the rear, supports the demolition and would be happy to see the tree removed. On cross-examination, she said she would be happy to see the front section of the dwelling retained.

23 Mr Maroon of York Street is of the opinion that “the house should be demolished as it doesn’t suit the streetscape and its demolition would clean the area up because it would not be easy to fix the house up”. Mr Saad of York Street supports the demolition of the dwelling to improve the street. Mr J Saad of Gowanbrae Ave said the existing heritage house “sticks out like a sore thumb and should be knocked down”.

24 Ms Youssef of Greens Avenue said there should be respect for the heritage greenery.

25 Ms Head of York Street grew up in the area and she said that several members of her family were against it being knocked down, however it is in poor condition and there are at times people in the house. She expressed concern and frustration about the vermin, snakes and that no one cares for the house that was previously owned by an elderly lady in her nineties. The subject property has since been sold twice.

Experts

26 A number of experts gave evidence to the Court and provided joint reports. Evidence for the Applicant was given by Mr David Furlong, consultant town planner, and Mr Robert Staas, heritage consultant. On behalf of the Respondent evidence was given to the Court by Mr Peter Romey, heritage consultant and Ms Maya Sarwary, an assessment officer with Parramatta Council.

27 Mr John Meredith, a Quantity Surveyor, is the single expert to the proceedings. He was asked to prepare a report on the estimated construction costs of certain identified construction work required to reinstate and make habitable the heritage listed dwelling on the site. He relies on a report by a structural engineer as to what works are required to make the original cottage structurally adequate.

28 Mr Meredith provides costs estimates on different options for the restoration refurbishment of the heritage item. One option is to refurbish only the front portion of the dwelling and the other option looks at retaining the wings known as 1A and 1B and area 2. Refer to Figure 2. He says in his opinion 1A and 1B are somewhat disconnected from each other and the existing ceiling heights and roof profile is different from the original building. In his opinion the condition of this section of the building is not as good as the original house.

29 Mr Meredith then provides a table to show the costs of different scenarios. Scenario two is the refurbishment of the original part of the house, excluding wings 1A and 1B but with a new extension. Scenario three is for a new house including the demolition costs. After adjustments, for example to provide garages and similar size dwellings to make the two scenarios comparable, for scenario two the cost is some $1.12 million and for scenario three, a new dwelling house - $770 000.

30 In Mr Meredith’s opinion the cost premium in scenario two is due to the additional cost of salvage and demolition of the onsite buildings while retaining and protecting the existing heritage building. In his opinion the existing heritage building is not in bad condition and can be readily refurbished and upgraded and the resulting house would have the same areas and inclusions.

31 Mr Hemmings questioned Mr Romey as to what we learn by the retention of the heritage dwelling and Mr Romey replied that “it is evidence of history before suburban subdivision and the type of houses being built”. He was further questioned as to the fact that the house no longer sits in its original context of agricultural land use and Mr Romey stated that we will not fully understand the previous agricultural setting but an observer would see the late 19th Century dwelling even though it is now surrounded by other houses.

32 In Mr Romey’s opinion what is relevant is that “one will see a building in it’s placement, style and scale as evidence of a different kind of development and that will still appear with a significant setback and modest scale compared with surrounding development”. Mr Romey agreed that you would not be able to interpret the long driveway and approach to the house as in its former days, however, there were four elements that allow an understanding that is the type of house, setback, remnant garden and the scale. Mr Romey said the heritage house is the next phase between Oatlands House and the gradual subdivision of the area. He agreed that one could record the item but maintaining the dwelling would be a real indicator.

33 Mr Staas for the Applicant is of the opinion that the test for demolition is can it be used and that it has marginal heritage significance.

34 Mr Romey and Mr Staas prepared a joint heritage report and the agreed facts are as follows:

The relevant Heritage listing of the property covers Lots 7 & 8 in DP217963 relating to No. 12/14 York Street Oatlands which is identified in Parramatta Local Environmental Plan 1996 (Heritage & Conservation) Schedule 2 as an item of local significance.

The property which is the subject of this application is No. 12 York Street Oatlands (Lot 8) and does not include No. 14 York Street (lot 7) which is included in the Parramatta LEP listing but is under separate title and capable in principle of independent development as a single residence or other conforming use.

The agreed statement of significance in the State Heritage Inventory prepared by Meridith Walker in 1993 and adopted by Council in 2002 states (inter alia):

"Evidence of history before suburban small lot subdivision."

The subject site together with Lot 7 has been assessed on the NSW Heritage Branch Website as being:

"...historically significant. "(SHR Criteria a)
"...representative." (SHR Criteria g)

Council previously approved a development for the site (11th December 2006). That approval included demolition of the existing structure and development spanning both sites subject to archival recording but that decision was subsequently rescinded and now has no standing in the present consideration.

Subdivision of the surrounding land was approved in 1963 and followed the development character of the wider area representing Post War urban consolidation.

All of the surrounding lots have some historical association with the former farmland and setting of the original farmhouse. Many of these sites contain remnant landscape elements and may contain archaeological elements of the earlier farm. None of these sites are affected by any heritage listing.

The site contains a Bunya pine (Tree No. 27) identified by heritage landscape specialist David Beaver to be of `Some Significance'. The proposed development does not affect any significant trees on the subject site or any adjoining sites.

The proposed two storey residential development in the current application conforms to Parramatta Council's (numerical) planning controls and is in keeping with the established character of the surrounding residential area. It has no identified adverse heritage impacts on adjoining properties.
Demolition of a heritage item is permissible with consent subject to an assessment of any potential adverse impacts on the heritage significance of the item under the relevant sections of the LEP.

Development of the site incorporating the significant portion of the existing building is possible and the preferred option of the Council. Such development could be attached or detached and of single or two storeys subject to heritage and other planning issues. Garaging could be located forward of the original building without adversely affecting its identified significance.

35 The following is an extract from their joint report on the heritage contentions in the proceedings:

Mr Staas notes that there are substantial unsympathetic 20th century changes to the original cottage including the front verandah, front entry door and windows, roof form and covering, side terrace and internal alterations to original fabric in the area of the original cottage. It would appear that the extent and impact of these significant changes were not properly assessed when the property was originally nominated for heritage listing.

If the original fabric were to be retained in any development of the site a substantial amount of conjectural reconstruction would need to take place to provide a representation of the original form and detail of the former farmhouse building. He questions the public benefit of such reconstruction and the ability of the general public to interpret the principal heritage significance of the place as evidence of the history of the area prior to small lot subdivision.

Mr Romey considers that, despite the substantial changes to the fabric and detail of the original cottage that have occurred during the second half of the 20th century, these changes were already in place when the cottage was listed on Schedule 2 of the Parramatta LEP. The original components of the cottage, comprising the three (originally four) front rooms and hallway, retain sufficient (internal and external) integrity to warrant listing of the house as an item of local significance on Schedule 2 of the Parramatta LEP. These components collectively comprise a floor area of approximately 94m2, or around 41 % of the floor area of the existing cottage. If wings 1 A and 1 B (which are at least early additions, if not original) are included, the floor area of the significant components of the cottage increases to approximately 135m2, or 60% of the total.

e) The original cottage presently consists of a projecting bay, a verandah and a central hallway with two rooms to the north of the hallway and one room to the south of the hallway.

Mr Staas notes that the whole of the front verandah is a later construction with no obvious original fabric evident and that there is a large amount of later fabric within the area defined as original. No accurate evidence of the form or detail of the original verandah exists in any available archival material. Reconstruction of a new verandah sympathetic to the period of the original house would be only conjectural. The internal fabric of the rooms identified by the Council as `original have also been modified through removal of fabric as well as addition of new fabric such that the interiors have little significance: The main roof form has also been modified by the addition of a gable that is not characteristic of the style of the original. Mr Romeys approach in his evidence above indicates that the house has marginal local heritage value and that its restoration to 'demonstrate its earlier character is not critical for the area. It is not the quantity of highly modified fabric that is critical in this circumstance but the quantity and quality of any surviving intact and significant fabric that would lead to the imposition of costly retention and conservation of this highly modified building for a limited heritage outcome.

Mr Romey accepts that there have been substantial changes to the fabric and detail of the original cottage, but notes that most of the basic structure and layout of rooms, and a substantial amount of the detailed fabric, is as originally constructed. The building is clearly recognisable as an early cottage, both from close proximity and from longer views from York Street.

Mr Romey considers that the two rear wings (noted as 1 A and 1 B in the Partridge report) are of similar construction to the 1880's cottage, are either original or early additions, and should therefore be considered as having some degree of heritage significance.

f) The original cottage is structurally sound and is in generally fair condition despite lack of maintenance of the original cottage.

Mr Staas accepts the structural reports that the surviving structural building fabric of the original portion of the building comprising the main rooms and hallway is stable. He does not consider the building to be in 'fair' condition as suggested in the reports given the amount of detailed repair required to make it habitable.

i) The additions are in poor condition. The additions have little heritage significance.

Mr Staas and Mr Romey

j) That part of the Development Application which seeks the demolition of the later additions is acceptable.

Mr Staas accepts the Council's opinion that the later additions have no heritage value in terms of the identified significance statement in the heritage study. In his opinion this would include changes to the roof including its metal tiling as well as the later joinery to the front and side elevations and internal changes and fabric in the surviving original portion of the house.

Mr Romey considers that, although the two rear wings are either original or early additions, and have some degree of heritage significance, their demolition would be acceptable if it was necessary to allow for a viable adaptation and extension of the cottage.

Contested statements

g) "The original cottage can, and should be retained, restored and repaired."

Mr Romey and Mr Staas agree that the cottage could be retained, restored and repaired.

Mr Romey considers that the condition of the original cottage (including wings 1 A and 1 B) is basically sound (as demonstrated in the Partridge report). Mr Romey has prepared sketch plans to demonstrate that the cottage would be capable of repair and adaptation, in conjunction with a T contemporary extension to the rear, to provide a high standard of family accommodation. Mr Staas has been provided with copies of these concept designs.

Mr Romey considers that the requirement to retain the significant components of the original cottage is not unreasonable given the residual development potential of the site, and because there is no substantial impediment to its adaptation and extension to provide a high standard of family accommodation.

h) "The cost of retaining, restoring and repairing the original cottage would be reasonable in the circumstances"

Mr Romey considers that the cost of repair and adaptation, in conjuction with a contemporary extension to the rear, to provide a high standard of family accommodation, would be reasonable (as demonstrated in the Meredith report). The additional cost of Scenario 2 (refurbish and extend) compared to Scenario 3 (demolition and new residence) provided in the Meredith report would be between $65,000 with 1A and 1B depending on whether wings 1A and 1B are retained. These estimates are not based on actual design options.

Mr Romey , on the basis of the sketch plans he has prepared, considers that it would be possible to achieve the required high standard of family accommodation (Including four bedrooms and generous living and family areas), for an expenditure that is equal to or possibly less than that estimated in the Meredith report.

Mr Romey considers that the methodology of repair and adaptation of a heritage building, in conjunction with a contemporary extension, is a well tested and accepted approach to conserving heritage buildings while providing a high standard of accommodation. Moreover, the owners of the property would have exercised due diligence in purchasing the property in 2003, particularly in regard to its condition and the fact that it was listed as it was on Schedule 2 of the Parramatta LEP, and presumably for a purchase price that reflected these circumstances.

k) "The proposed demolition of the original cottage is unacceptable"

Mr Romey understands that the cottage at No 2 Trott Street was in a very advanced state of dilapidation, and that demolition was supported by not only an independent Heritage Assessment Report and a Structural Engineer's Inspection Report..

Mr Romey considers that, in regard to Clause 14(1)(a) and (b) (of the 1996 LEP), the impact of the proposal 'on the heritage significance, curtilage and setting of the heritage item', and `on any significant views to ... the heritage item' will be profound and irreversible, as the proposal comprises demolition of the cottage that is the key element of the heritage listing.

Mr Staas considers that these provisions are in relation to development in the vicinity or attached to an item or within a conservation area and do not address the issue of demolition per se. In his opinion the identified significance of the place in the Heritage study as evidence of history before small lot subdivision is not well represented by the existing fabric or setting and could be addressed though other means. There is virtually no demonstrable evidence of the original extent of the farm, its original subdivision pattern or the former setting of the house in a 19th century setting.

Mr Romey considers that Section 2.2.2 (of DCP 2001) clearly demonstrates that the expectation of the consent authority is that demolition or substantial changes which would adversely impact on the significance of a heritage item would be unlikely to be approved, the implication being that demolition in particular would only be approved in exceptional circumstances… -

. Mr Staas considers that while it is appropriately cautionary to consider the reasons for demolition, such action is not prohibited by the LEP or the DCP, is not uncommon and has been approved by the Council in recent times… Clause 2.3.5 indicates that demolition is one of the potential outcomes envisaged for heritage items following an assessment of its importance to the street and to the city. In the present proceedings the Court must determine whether there is a public benefit in the retention of a fragment of a building within a substantially modified setting to allow for a conjectural restoration and the construction of new additions. In my opinion there is little benefit in doing so.

Mr Romey considers that there is extensive evidence to demonstrate the significance of 12 York Street Oatlands in its historical and geographical context as a rare remaining example of the 19th century agricultural landuse in the Dundas Valley that predated the late 20th century suburban development of Oatlands, and that as a consequence the place warrants its listing as a heritage item on Schedule 2 of the Parramatta LEP. The Meredith and Partridge reports demonstrate that retention and adaptation of the significant components of the cottage is both feasible and economically viable.

m) "The proposed demolition of the original cottage and its replacement with a new dwelling is inconsistent with objectives (a), (b), (c), and (d) of LEP 1996.

Mr Staas considers that while these are general objectives there are parts of the document that specifically envisage the demolition of listed items for a variety of reasons which in his opinion apply in this location. These include the limited significance of the place, its inability to demonstrate the values ascribed to it and the poor condition and modified state of its fabric requiring substantial repair, restoration and conjectural reconstruction.

36 The following is from the summary position provided in the joint report.

considers that the application for the demolition of an 1880's cottage identified on Schedule 2 of the Parramatta Local Environmental Plan 1996 (Heritage & Conservation) should not be approved because:

1. The 1880's cottage in its remnant setting is rare evidence of the 19th century agricultural landuse in the Dundas Valley that predated the late 20th century suburban development that characterises Oatlands today. Very few similar examples survive in the district.

2. The original or early components of the cottage, being the three (originally four) front rooms, hallway and (probably) wings 1A and 1 B, collectively comprise a floor area of approximately 135m2, or around 60% of the floor area of the existing cottage (if wings 1A and 1 B excluded floor area is approximately 94m2, or around 41 % of floor area). These components retain sufficient (internal and external) integrity to warrant listing of the house and its curtilage as an item of local significance on Schedule 2 of the Parramatta LEP.

3. Despite the substantial changes to the fabric and detail of the original cottage that have occurred during the second half of the 20th century, these changes were already in place when the cottage was listed on Schedule 2 of the Parramatta LEP, and when the property was purchased by the current owners in 2003.

4. The impact of the proposal (which includes the total demolition of the cottage) `on the heritage significance, curtilage and setting of the heritage item', and on any significant views to ... the heritage item', will be profound and irreversible.

5. The expert reports by Meredith and Partridge demonstrate that retention and adaptation of the significant components of the cottage, in conjunction with a contemporary extension, is both feasible and economically viable.

6. A contemporary extension could be designed to be compatible with the retained significant components of the original cottage, and could be approved under the heritage provisions of the Parramatta LEP and DCP.

7. The methodology of repair and adaptation of a heritage building, in conjunction with a, contemporary extension, is a well tested and accepted approach to conserving heritage buildings while providing a high standard of accommodation, and would be applicable to the cottage at 12 York Street, Oatlands.

8. Given its rating as local significance, it would not be necessary to adopt an academic restoration/reconstruction based approach as would be appropriate for a building that is of a much higher level of significance, such as Old Government House for example. In economic terms therefore the costs of such an approach are likely to be far less than if a stricter restoration/reconstruction based approach was warranted.

9. The Statement of Heritage Impact prepared in support of the application does not adequately address the significance of the building, argues that the costs of repairs and restoration can diminish heritage significance which is contrary to the provisions of the Burra Charter, and does not adequately examine alternatives to demolition.

Mr Staas considers that the application for the demolition of the cottage and the erection of a new house should be approved because:

1. The remnant fabric of the existing building that the Council considers significant for the City of Parramatta is extremely limited in its value as a representative example of 19th century Italianate style house formerly associated with a large agricultural property. Much of the fabric that would distinguish it as such has been substantially modified or lost while the setting has been dramatically reduced in size and heavily modified in character.

2 The quality of what remains as opposed to the quantity of highly modified and dilapidated early fabric in the existing building does not warrant the retention of the item despite the existing listing of the structure and the two lots of land on the Parramatta LEP and the local heritage values associated with it as a remnant farmhouse of the late 19th century.

2 The original identification of the heritage item and the State Heritage Inventory listing of it were based on no detailed formation and were not based on the NSW Heritage Office Guidelines. The listing is little more than a windscreen survey listing and did not at that time investigate the history of the site, its associations or more importantly the physical integrity of the building. Many similar buildings exist throughout the Sydney region and there is no suggestion that the building is anything but a modified representative example of a particular style. As a representative example it is not outstanding and has low integrity with limited ability to be interpreted for its original character, use and setting.

3 The substantial changes to the original fabric and detail of the cottage have reduced its potential heritage significance by removing evidence of its former form, character and detail. The condition of the building and the surrounding site were as a result of a previous owner and should not be ascribed to the present Applicant. The expectation of the owner was for redevelopment of the two sites to a standard commensurate with the expectations demonstrated by surrounding development in the area. The condition of the fabric of the existing structure on Lot 7 militates against economic development of that site to a similar standard.

4. Demolition of the house is not prohibited or precluded by the planning controls of Parramatta Council and was in fact previously approved by Council in the earlier application but rescinded in contested circumstances.

5 The proposed new development is in character with the surrounding urban character and is not opposed on planning grounds apart from the demolition issue.

6 While the expert reports by Meredith and Partridge demonstrate that retention and adaptation of the significant components of the cottage, in conjunction with a contemporary extension, is physically feasible, it would not be an economically viable alternative for the current owner given other financial circumstances which the experts have not taken into consideration.
7 A development incorporating parts of the existing fabric with a substantial addition and conjectural reconstruction of much of the building would have very limited cultural heritage value, minimal integrity and very low potential to demonstrate the pre subdivision character of the Oatlands area . It is also unlikely to be acceptable to a wide range of potential purchasers in this section of the property market.

8 A number of recognised heritage experts have provided information to the Council through an extended planning process that the place has such limited value as a partially intact and highly modified representative example of its type that retention is not warranted in the circumstances. These opinions must be considered in what is essentially a subjective assessment as to the benefits irrespective of its limited heritage value to the Parramatta area.

The experts do not agree on the basic premise that retention of the heritage item is warranted in this situation or that there would be a significant public benefit in doing so.

Assessment and Findings

37 I have carefully considered all the evidence to the Court including that of the experts, the site inspection, the submissions of the residents and the planning framework under which I must assess the application. The above extracts from the joint report of the heritage experts is provided to assist in an understanding of the heritage issue. Clearly decisions to allow demolition cannot be taken lightly and a proper assessment of all the facts must be undertaken. On balance I have concluded that retention of the local heritage item is not warranted in the circumstances of this case. The evidence of the applicant that demolition is a reasonable outcome persuades me.

38 The submission is made by Mr Hemmings that in an assessment of the heritage item it is inappropriate to start from a presumption that it cannot be demolished and there is a need to assess its heritage significance. He submits that the assessment should include whether the item sought to be protected is indicative of something else or whether the heritage item itself is heritage. The situation here is that there is an attempt to understand a locality/district before more recent events. That is, as “evidence of history before suburban small lot subdivision”. He submits that it is accepted that the dwelling house was situated on agricultural land but the distinction needs to be made that one is not talking about endeavouring to protect this but rather that the item is evidence of a farm house before suburban subdivision.

39 Mr Hemmings also submits that there is no dispute that the heritage item is Victorian Italianate architecture but it demonstrates nothing more and this in itself is not a reason to retain the original dwelling. Mr Romey states in the joint report that

further research would need to be undertaken to establish whether the verandah return had been extant, but certainly there are sufficient examples on similar houses elsewhere to be able to approximately reconstruct the front verandah, which is all that is warranted given the local significance of the cottage.

40 I agree with Mr Staas the existing subdivision pattern that occurred in the 1960’s means that in its current context the heritage item is difficult to read as an example of a former Victorian farm house in the area.

41 There is no dispute the dwelling has a generous setback from the street. The dwelling on the adjoining lot at 10 York Street has a side setback of 1 metre and has a setback to the street of about 10 metres compared to the heritage item that has a setback of some 28 metres to the street. Currently there is a significant curtilage on the south-eastern boundary with the vacant adjoining lot at No 14. .This formed part of the previous ‘large lavish garden’. There is now little that remains of the garden as it has been partly destroyed. However, many of the large trees remain, in particular the Bunya Pines and a number of the trees could be retained in the future development of the sites.

42 There is also no dispute that the dwelling has a modest scale as shown in figures 3 and 4 and from the street it possesses charm. However, the original long driveway/approach of many hundreds of metres to the dwelling can no longer be seen or understood. The setback, style and scale are not evidence of history when the land was used for agriculture. Also I do not accept Mr Romey’s evidence that the four elements: type of house; setback; remnant garden; and scale allow an understanding of evidence of history before small lot subdivision. I agree with Mr Staas’s assessment that retention of the dwelling is of marginal heritage value and while archival recording of this local item is necessary its retention is not warranted.

43 I agree with Mr Staas that even the original front portion of the dwelling has been altered over the years and the level of conjecture and reinstatement/reconstruction of elements makes the retention of even the original dwelling to form part of a dwelling would be of marginal value. The retention of the dwelling as an understanding of a Victorian Italianate house that has undergone considerable changes by way of alterations and additions does not constitute the heritage that is sought to be conserved. That is, evidence of history prior to suburban small lot subdivision.

44 As submitted by Mr Hemmings the cost of retention is a matter to be considered following the assessment of the heritage significance. It is not disputed that the front portion of the dwelling is structurally sound and that it could be retained and extended for future home. The need to expend some $1.12 million for conservation of the original dwelling with an extension compared to $770,000 for a new dwelling house represents approximately half the cost of the new dwelling. The comparative costs also lead me to conclude that demolition is reasonable given the limited heritage value.

45 On this question of whether the cost of retaining, restoring and repairing the original cottage is reasonable in the circumstances, I accept Mr Staas’s comment in the joint that:

while money will enable anything to be achieved, the expenditure of funds on the reconstruction of a building with low heritage significance is unnecessary and unreasonable given the limited resulting benefits to the wider community…

46 As already noted there have been alterations to the original fabric in terms of the roof and the verandah on the original front part of the dwelling and the evidence of Mr Romey is that it can be further altered and changed. At the end of the day the question must asked what is the purpose in heritage terms of retaining the item. I agree with Mr Staas that the heritage significance is marginal.

47 It was submitted on behalf of the Applicant that consistency in decision-making is sought and the Council allowed the demolition of the Trott House built in 1880. However, I note that in the assessment for the Trott House to be demolished that it was in a state of significant disrepair. I do not rely on this and I am also satisfied that allowing the demolition of 12 York Street in the circumstances of this case does not create a precedent. Each heritage item must be considered on an individual basis where demolition is sought in accordance with the provisions of the LEP and DCP.

48 I have assessed the application under the Council’s planning regime and I am satisfied the proposal is not inconsistent with the zone objectives. I have also considered the application under the heritage provisions of the LEP and DCP and I have concluded that demolition of the subject heritage item should be allowed subject to appropriate archival recording required by the conditions of consent. In my overall assessment I have had regard to the public interest and the importance of conserving local heritage and given the facts of this matter archival recording is appropriate and demolition is allowed in the circumstances of this case.

49 Accordingly on the basis of my assessment above the formal orders of the Court are

1. The appeal in respect of the property known as 12 York Street Oatlands is upheld

2. The development application submitted to Parramatta Council for the demolition of the heritage item and the erection of a new dwelling house is approved subject to the conditions contained in Annexure A

3. The exhibits with the exception of 4 and A are returned to the parties

___________________

J S Murrell

Commissioner of the Court

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Ryleton Pty Ltd v Parramatta City Council [2008] NSWLEC 1397

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CITATION:	Ryleton Pty Ltd v Parramatta City Council [2008] NSWLEC 1397
PARTIES:	APPLICANT Ryleton Pty Ltd RESPONDENT Parramatta City Council
FILE NUMBER(S):	10017 of 2008
CORAM:	Murrell C
KEY ISSUES:	Development Application :- demolition of heritage item and erection of new dwelling; heritage assessment of item of local significance.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan Parramatta Local Environmental Plan Heritage Parramatta Development Control Plan
DATES OF HEARING:	22/05/2008 and 23/05/2008
DATE OF JUDGMENT:	10 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister Instructed by Mr T. O'Connor of Houston Dearn O'Connor RESPONDENT Mr P. Marincowitz, solicitor of DLA Phillips Fox