Tova Pty Ltd v Parramatta City Council

[2004] NSWLEC 282

Land and Environment Court

of New South Wales

CITATION:	Tova Pty Ltd v Parramatta City Council [2004] NSWLEC 282
PARTIES:	APPLICANT Tova Pty Ltd RESPONDENT Parramatta City Council
FILE NUMBER(S):	11545 of 2003
CORAM:	Bly C
KEY ISSUES:	Development Application :- Demolition of heritage listed cottage
LEGISLATION CITED:	Environmental Planning and Assessment Act; s 97
CASES CITED:
DATES OF HEARING:	26/03/2004 and 14/05/2004
DATE OF JUDGMENT:	06/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Campbell, barrister SOLICITORS Matthews Folbigg Pty Ltd RESPONDENT Mr J Johnson, barrister SOLICITORS Storey & Gough

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11545 of 2003 Bly C 9 June 2004

Tova Pty Ltd
Applicant

v Parramatta City Council
Respondent Judgment


Introduction

1 . This appeal relates to a development application for the demolition of an existing heritage item comprising a cottage prominently sited in the centre of the large site being 328 Woodville Road, Guildford. The building has recently been damaged by fire and vandalism.


Statutory provisions

2 . The whole of the site, being the cottage and its grounds, is a listed heritage item under the provisions of Parramatta Local Environmental Plan 1996 (Heritage and Conservation) ("the heritage LEP") and development consent is required for demolition. The site is also subject to council's Development Control Plan - Heritage ("the DCP") .


The issues

3. The identified issues in the case are whether the demolition of the cottage is warranted, taking into account:

(a) the structural adequacy of the heritage item.
(b) the heritage significance of the item in its present state; and

The evidence

4 . On behalf of the respondent council expert evidence was given by:
• Miss J. Somerville – architect and heritage specialist,
• Mr S. Wiltshier – structural engineer,
• Mr A. Caledine – town planner

5 . On behalf of the applicant expert evidence was given by:
• Mr N. Ghosn – structural engineer
• Miss G. Cowell – architect and heritage specialist

Structural adequacy

6 . Mr S. Wiltshier the respondent's structural engineer inspected the building and formed the conclusion that the majority of the heritage listed component of the building is, notwithstanding fire damage, structurally sound. Where elements of the building are unsound they are readily repairable or replaceable using conventional building techniques. He acknowledged that there are currently potentially unstable components of the building, referring in particular to the unsecured roof. However this could be rendered reasonably safe with some fairly simple temporary remedial works. He did not accept that the damage caused to the building by fire and general deterioration was sufficient to warrant demolition on the basis of structural unsoundness.

7 . Conversely, Mr N Ghosn the applicant's structural engineer having inspected the building concluded that the existing damaged timber frame of the building is not structurally adequate to support the roof and the walls. He pointed out that many frame members have been reduced in size or even completely burned down. Wind bracing units in the walls and tie-down connections between the roof and wall frame have all been fire damaged. He concluded that the existing damage to the building might not be able to withstand strong winds and collapse is possible. In the circumstances demolition would be appropriate.

8 . Mr Ghosn may well be correct in his assessment that the existing damaged roof framing is presently unsafe but this does not indicate that demolition is necessary. Having inspected the building and paying particular attention to its structural adequacy I agree with the evidence of Mr Wiltshier that it could be readily repaired thus making it safe and ready for restoration, using conventional building techniques. In the circumstances the present structural condition of the building is not such that the appeal should be upheld on this basis.


Heritage significance of the item

9. Prior to the cottage being damaged by fire a conservation management plan was prepared detailing how the cottage would be retained as part of the redevelopment of the site with seven townhouses. This plan provided details as to how the significance of the building would be enhanced through conservation and restoration as well as by the removal of intrusive elements.

10. The two heritage experts, Miss J. Somerville for the respondent and Miss D Cowell for the applicant provided a joint report which identified a number of points of agreement as well as the points of disagreement which resulted in their opposing views as to whether or not the building should be demolished.

11. The joint statement recognises the summary statement of significance in the applicant's conservation management plan, which was prepared prior to the fire:

• The cottage, now located on a large suburban site forms a valuable contribution to the evolution of the district from rural settlement to suburban life in Sydney.
• Constructed in 1906, the extant house at 328 Woodville Rd. is an example of early Australian rural architecture which has been overtaken by the growth and development of western Sydney. The degree of intactness of the main section of the house distinguishes the building as a good example of the building type of the period.
• The prominent siting of the house in the centre of a large site also makes the property of landmark value on Woodville Road as one of the few remaining early buildings still remaining along this stretch of road.
• The original decorative finishes such as the ornate pressed metal ceilings and internal cedar doors and joinery are of value for their ability to demonstrate the craftsmanship of the time, particularly in regard to the detailing of the simple rural residence.
• The house and grounds are historically and socially significant for their association with the early development of Guildford and as the home of William Skinner, Alderman on Granville Council from 1910 to 1913.

12 . Also included in the points of agreement were the following:
1. The whole of the site is listed as an Item of Environmental Heritage in Parramatta City Council's LEP 2001. This includes house and grounds.
2. The area of the present building which is of major significance is the original front section constructed in 1906 without the rear kitchen which had been altered. This includes the living and dining rooms and bathroom (south side), central hall and rear hall/lobby with pantry and the northern three rooms (originally bedrooms but with bedroom two now a kitchen).
3. This original part of the building is the area least damaged by fire and is essentially structurally sound with the exception of the greater part of the roof framing and the rear (western) stud walls to the bathroom and rear hall.
4. The building before the fire was not intact but retained a significant amount of original features and fabric.
5. The level of integrity of the original fabric of the main building was a contributor to the overall heritage significance of the place.
6. Some of the building's original features and fabric have been damaged or destroyed by the fire and/or by vandalism and this has reduced the integrity of the building fabric.
7. Most of the damaged or destroyed elements were internal elements and finishes.
8. The original form, layout and character of the main building remains together with elements of its original fabric (as set out in the Joint Report on Condition of Structure and Fabric).
9. The front section of the building retains key elements of its original structure and fabric including panelled doors, sash and casement windows, timber floors and skirtings, pressed metal ceilings and lath and plaster walls.
10. The building retains its presentation to and relationship with Woodville Road in a manner similar to its pre-fire condition.
11. Key components of the original character and detailing of the exterior remain.
12. Apart from the roof framing, most of the external elements and fabric to the main building remain in pre-fire condition with the exception of the front door (stolen), some broken panes of glass in the windows and some cladding and joinery at the rear (west) end of the north elevation and south end of the west elevation.

Consideration of heritage significance

13. A development application seeking approval for a new development where that development is permissible with development consent is required to be dealt with on its own merits and in so doing the fact of that permissibility must be given some weight.

14. However an application for the demolition of a heritage item that has been listed under a local environmental plan needs to be dealt with somewhat differently. It must be assumed that any listed heritage item has been correctly and justifiably listed, and that the primary purpose of such listing is for the conservation of the item. In these circumstances weight must be given to the listing of the item and it is for the applicant to overcome this by persuading the consent authority that, notwithstanding the listing, demolition is warranted.

15 . In s 2.2.2 of council's Development Control Plan-Heritage ("the Heritage DCP") it is asserted that It is highly unlikely that council will give permission to demolish a heritage item… Whilst this assertion overstates the weight that should be given to the listing of the heritage item it is nevertheless an indicator that positive weight should be given to the fact of the listing. Consistent with this conclusion, s 2.3.5 of the Heritage DCP recognises that it is possible under certain circumstances for council to give consent to demolish a heritage item… However care needs to be taken because the loss of any one heritage property… will reduce the heritage value of Parramatta as a whole. Also, council is unlikely to approve demolition unless the property is incapable of reasonable use or would be too costly to make usable.

16 . No evidence was provided to suggest that the cottage would, with appropriate conservation work, be incapable of reasonable use . As to whether such conservation would be too costly , there was little evidence although Miss Cowell believed that the cost component of the replacement of the fabric would not be a major consideration.

17 . Despite this Miss Cowell was concerned that extensive repairs and replacement of fabric are now required following the fire which had the effect of fundamentally reducing the good or fairly good degree of intactness of the cottage. This work will reduce the significance of the building because the amount of original fabric remaining will be substantially reduced, notwithstanding that it can be replaced. The cottage will thus no longer be largely intact . This is because the proposed method of retaining original fabric is to retain quite minor portions of badly fire damaged elements and that the retention of its previous form and character will be related largely to the necessary reconstruction.

18 . Miss Somerville disagreed, explaining that subject to works being carried out using appropriate techniques the repairs and non-substantial reconstruction works will represent appropriate ongoing care for the place . She nevertheless accepted that whilst a significant amount of roof reconstruction and replacement work will be required, much of the cottage will remain including meaningful evidence of the original structure, external cladding and internal and external architectural detail. For example marble fireplaces can be reinstalled/repaired and the fire boxes replaced, pressed metal ceilings and walls can be cleaned and doors and associated joinery can be restored although some replacement is necessary. As a result there will be an effective conservation of the larger values of the place .

19 . Having inspected the cottage in its present condition I do not accept that the work that would be involved to conserve the fabric of the cottage would amount to what was suggested to be a re-creation. I agree that the cottage would be largely intact with a significant amount of original fabric remaining. I have thus been persuaded by the evidence of Miss Somerville that taking into account the necessary extent of repairs and reconstruction works, in the context of what I accept to be the high local significance of the cottage, it would not be unreasonable to require its conservation.

20 . The conservation management plan recognised the significant landmark quality and visual connection of the dramatic setting, the extensive grounds and the residence that were to be retained and conserved. The then proposed townhouses were to be contained at the rear so that there would be a negligible visual impact on the streetscape. It also recognised that the proposed new works (the townhouses) would respect the visual significance of the original cottage, which would be upgraded to contemporary needs so that the house and grounds (to) continue as a function in part of the established urban heritage of Guildford.

21 . I agree that the fabric of the cottage is only part of its significance. The important attributes of the cottage in its setting which supports its high local significance are referred to in the conservation management plan:

The landmark qualities of the property arising from the central siting of the residence, the overall layout of the original grounds in front of the house and its relationship to Woodville Road.
The building's overall form, proportion and scale of the residence, its architectural style and rural overtones.


22 . These attributes have not been affected by the fire in any significant way

23 . Miss Cowell was of the opinion that the loss and damage to the fabric has greatly reduced the overall heritage significance of the cottage and that matters of form proportion and scale, architectural style and detail are elements that do not impart a great deal of significance to the property. The reconstruction of the greater part of this building fabric is not in the best interests of retaining a heritage item, which was significant for its largely intact fabric. She also contended that the amount of required reconstruction and replacement work on the cottage would reduce its value as an example of a building reflecting the early subdivision of the area.

24 . The cottage is neither rare nor unique in its representation of an early building nor does it have such historical or technical significance that its recreation is demanded in order to preserve some great cultural value to the community. Moreover as a result of the required repairs the building will no longer present as an example of an earlier building of the area, but as an example of a building which has been largely reconstructed following a major fire.

25 . Miss Somerville said that it was very important to retain the cottage because the site as a whole will retain its significant and historic role within the wider streetscape and last continue to provide meaningful evidence of the early development of the area. She explained that following good conservation practice the required repair, restoration and reconstruction works the building in its setting will retain an appropriate level of its original character and fabric to provide meaningful evidence of its historical origins, style and use. The site as a whole will retain its civic and historic role within the wider streetscape and thus continue to provide meaningful evidence of the early development of the area.

26 . Whilst I accept that the necessary reconstruction work especially the roof will affect the heritage significance of the cottage I do not accept that this will adversely affect the landmark qualities of the cottage in its setting or its overall form proportion and scale. Apart from the roof, the fire caused damage and/or loss of fabric mostly in relation to interior components and finishes and to the rear and as a consequence these matters will not affect the exterior form and character of the main building and its relationship to the site and the street frontage. I also do not accept that the reconstructed roof from and replacement of the corrugated steel roof cladding will affect these qualities. As a consequence I am satisfied that the associated attributes of the cottage which point towards its significance are essentially unchanged.

27 . According to the conservation management plan the prominent siting of the house on the grounds makes it significant as a strong contributor to the streetscape even with the amount of development surrounding the site. I agree that this is an important aspect of the heritage significance of the item. Even with the fire this statement remains unchanged.

Conclusions

28 . In all of the circumstances I am satisfied that notwithstanding the fire and the vandalism that the cottage is capable of being conserved and utilised in a manner that would not be inconsistent with conservation. The decorative finishes and detailing to the interiors, which according to the conservation management plan demonstrate the fine craftsmanship of the time, particularly in regard to a semi -- rural residence can be restored and the form of the cottage and its setting can be maintained.
In relation to the historical/social significance of the cottage I accept the evidence of Miss Cowell that this is quite low and the fact of its occupation by a local Alderman does not generate any determinative significance but this has no bearing on the outcome of this appeal.


29 . Taking this into account together with the fact that the site is capable of reasonable redevelopment where such redevelopment incorporates the heritage item I have decided that the application for the demolition of the cottage should be refused. The case for the demolition of the cottage has not been made out and the appeal should therefore be dismissed.

30 . Orders
1. The appeal is dismissed.

2. Development Application No. JV/1957/03 for the demolition of an existing heritage item comprising the cottage at 328 Woodville Road, Guildford, is determined by the refusal of development consent.

3. The exhibits are returned.

________________________
T A Bly
Commissioner of the Court
Mp/rjs