Valore Cellars v Fairfield City Council

[2007] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION:	Valore Cellars v Fairfield City Council [2007] NSWLEC 221
PARTIES:	APPLICANT Valore Cellars RESPONDENT Fairfield City Council
FILE NUMBER(S):	10429 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of all existing structures and the Torrens title subdivision of site into 4 lots - heritage item - significance - adaptive reuse
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 1994
DATES OF HEARING:	11/04/07
DATE OF JUDGMENT:	24 April 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr D Briggs, solicitor SOLICITORS D Briggs & Associates RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 April 2007

10429 of 2006 Valore Cellars v Fairfield City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Fairfield City Council (the council) of Development Application 1472/2005 for the demolition of all existing structures and the Torrens title subdivision of 10 Kaluna Avenue, Smithfield (the site) into 4 lots.

The site and surrounding area

2 The site is Lot 30 in DP 31162. It is irregular in shape with a 6.4 metre frontage to the cul-de-sac head of Kaluna Avenue and an area of 2321 square metres. The western boundary adjoins a pathway from Kaluna Avenue to the open space area adjoining Prospect Creek to the north. Existing residential dwellings adjoin the site to the west, south and on the opposite side of the pathway. There are no significant trees or vegetation located on the site.

3 Existing development on the site consists of buildings previously associated with the early production and processing of wine and more recently a liquor outlet. The buildings were damaged by fire over Christmas 2006.

4 Kaluna Avenue and the surrounding area consist predominantly of single storey dwellings.

The proposal

5 The proposal is to remove all existing improvements from the site and subdivide the land into 4 Torrens title lots for residential use.

Relevant planning controls

6 The site is within Zone 2(a) Residential A under Fairfield Local Environmental Plan 1994 (LEP 1994). The proposed use is permissible with consent. The site is a heritage item identified in Schedule 4 to LEP 1994 as "Kuluna Cellars". It is listed as having Local Significance. The relevant LEP 1994 requirements for these proceedings are Restrictions applying to heritage items (cl 30).

7 Development of flood-liable land (cl 11), Development in the vicinity of creeks and waterways (cl 12), Landfill and clearing (cl 13), Subdivision (cl 21) and Subdivision in the Residential A Zone (cl 22A) apply but were not relevant to the issues raised by the council.

The issues

8 The council's Statement of Issues has been amended over time through amendments to the proposal and/or additional information. The sole remaining issue is whether the heritage item should be demolished considering the significance of the heritage item and the absence of any consideration of the adaptive reuse of the buildings.

The evidence

9 The parties agreed to the appointment of Ms Judith Rintoul as the Court appointed heritage expert. Mr Robert Staas provided additional heritage evidence for the applicant and Mr Graham Hall provided additional heritage evidence for the council. The experts provided amended statements of evidence following the fire damage to the buildings.

10 Mr Simon Wiltshier for the council and Mr Andrew Cutuk for the applicant, both structural engineers, provided a joint report on the structural stability of the buildings before and after the fire.

11 Local residents, Ms Samantha Robson of 11 Kaluna Avenue and Mr Raymond Reynolds of 4 Kaluna Avenue provided evidence on site, as did Mr Jim Spain, a member of the council’s Heritage Sub Committee. They opposed the demolition of the buildings on heritage grounds.

The heritage item

12 The Statement of Significance in the council’s Heritage Study (1992) states:

Former winery, possibly the oldest industrial building in Fairfield City. Good condition. Interior render detail of interest. Historical significance for its association with the development of wine industry in Australia. (See also archaeological inventory.) Local significance.

13 The council’s Heritage Study describes the history of the site as:

Possibly the last 19th century industrial building in the City of Fairfield. The winery was established by JAM McLean during 1887. It was later managed by Ambrose Laraghy. It appears that Laraghy was taught viticulture by Henry John Lindeman of Cawara. The vineyard was purchased by the Laraghy’s from Maclean during 1918. The vineyard continued production until the late 1950s. It was subdivided for housing in 1959. The Kaluna Vineyard has played a historic role in the development of the Australian wine industry. The only substantial numbers of Chardonnay vines in Australia were preserved at Kaluna from 1924. These Chardonnay grapes are believed to originate from Cawara. (George, TK)

14 Further research was undertaken in the Heritage Impact Statement prepared by Jeff Madden and Associates and submitted with the development application. Additionally, Ms Rintoul, Mr Staas and Mr Hall also conducted further research into the heritage significance of Kaluna Cellars to varying degrees and with varying conclusions. Some aspects of the history in the council’s Heritage Study were in dispute between the experts. However, the description that the buildings were the possibly the last 19th century industrial building in the City of Fairfield was not challenged. Also, the fundamental proposition that the site was associated with the development of wine industry in Australia and was one of only two remaining examples of early wine production in Sydney was not in dispute. The experts agreed that Kaluna Cellars had heritage significance but disagreed on the appropriate means of representing this significance.

The assessment approach

15 Clause 30 of LEP 1994 relevantly states:

30 Restrictions applying to heritage items

(1) A person must not, in respect of a building, work, relic, place or tree which is a heritage item:


(a) demolish or alter the building or work,

….

except with the consent of the Council.


(2) The Council must not grant consent to a development application relating to a heritage item unless it has considered:


(a) the heritage significance of the item and its setting,

(b) the extent to which the carrying out of development in accordance with the consent would affect the heritage significance of the item or its site,

(c) whether any features of the item or its site should be retained, and

(d) whether the item constitutes a danger to the users or occupiers of that item or to the public.

16 The document, Assessing heritage significance by the NSW Heritage Office provides guidelines for the investigation, assessment and management of heritage items and relevantly the grading of the significance of a heritage item. Part 4 provides heritage assessment criteria, being:

• Criterion (a) –Historical.
• Criterion (b) – Historical association.
• Criterion (c) – Aesthetic.
• Criterion (d) – Social.
• Criterion (e) – Technical/research.
• Criterion (f) – Rarity.
• Criterion (g) – Representativeness.

17 Part 4 also states that an item will be considered to be of State (or local) heritage significance if, in the opinion of the Heritage Council of NSW, it meets one more of the above criteria.

18 The gradings in Part 6 are Exceptional, High, Moderate, Little and Intrusive. Part 6 also provides a statement of justification for each grading and corresponding listing status such as Local or State significance.

Should the building be demolished?
Rintoul evidence

19 Ms Rintoul maintains that the building retains its Local heritage significance and that the recent fire damage does not materially impact on that significance. She states that Kaluna Cellars satisfies Criteria (a), (b), (d), (e), (f) and (g) of the heritage assessment criteria in Assessing heritage significance.

20 The gradings in Part 6 are different for different parts of the existing building and represent different stages of construction over the period between c1890 and c1950. The different gradings and approximate ages were marked on a plan (Exhibit 10). For clarity this plan is attached and marked as Attachment 1. In general terms, the older brick construction to the south are graded High, the gabled structure directly to the north of the older brick construction are graded Moderate and the most recent structures at the northern end of the building are graded Low. While originally accepting that the Moderate and Low ranked parts of the building could be removed, Ms Rintoul stated in her oral evidence that the Moderate ranked part of the building should be the subject of further investigation due to the uncertainty of the available research.

21 Ms Rintoul states that Kaluna Cellars could be adaptively reused as there is no structural impediment to this approach. All options for retention and adaptive reuse should be explored and all significant elements of the heritage item be kept and new development be located elsewhere on site. In her opinion, this has not been addressed in the application. Not only could this approach enhance the overall development with a unique historical character but it could create a very special home featuring the older section of the winery. This will promote an understanding of the history of the area both now and into the future. The bland dormitory suburb, which now exists, will be enhanced by the memory of former vineyards and Kaluna Cellars.

Hall evidence

22 Mr Hall adopts a more cautious approach and advocates further research into parts of the building that, in his opinion, have not been adequately researched. Mr Hall agrees that Kaluna Cellars has at least Local heritage significance although he would not rule out a State heritage listing. While he would not commit to a particular ranking without further research, he generally accepted that Ms Rintoul’s Low ranked part of the building is likely to be suitable for demolition.

23 In the absence of additional research no findings can be made in relation to the gradings of significance of various parts of the building. Consequently, the demolition of any part of the building should not be contemplated.

Staas evidence

24 Mr Staas accepts that Kaluna Cellars has Local heritage significance although he states that it satisfies only criteria (a) and (b) of the heritage assessment criteria in Assessing heritage significance. He grades the whole building as Moderate but because of the limited association with early wine making operations he is satisfied that all structures could be removed but with a suitable archival record and Interpretation Strategy.

25 The form of the structures now identified as being the core of the early winery plus later additions which are visible from the street do not provide an accurate impression of the appearance or extent of the former operations on this site or any significant evidence of the processes that were involved in grape production, harvesting and distribution of wine making. Mr Staas considers that the option of adaptive reuse of the present structure is an unreasonable imposition on the owner of the property given the limited value of the remaining building fabric and the changes to the setting from planning change over the last 40 years. For these reasons, demolition of the existing structures can be supported.

Wiltshier and Cutuk evidence

26 Mr Wiltshier and Mr Cutuk agreed on the structural stability of the building. They state that after the fire and apart from the northern bay of the building (Ms Rintoul’s Low ranked part of the building) the walls are reasonably plumb and level but with some mortar loss and some areas of cracking. In relation to adaptive reuse options, they state that the retention of the entire structure is likely to be such unattractive option to any developer that the building is only likely be saved by public funding. However, if the building was constructed in stages there is the potential to retain and conserve part of the structure, which may be an appropriate compromise to allow some development to take place but retain the historically significant fabric. By good chance the section of the building in stable condition also appears to be the earliest and is positioned in a relatively compact form in the south western corner of the site.

Findings

27 I did not understand there to be any disagreement between the experts that Kaluna Cellars was appropriately listed as having Local significance. This was also a conclusion reached in the applicant’s Heritage Impact Statement prepared by Jeff Madden and Associates. While Mr Staas is correct in that there is no prohibition on the demolition of heritage items, cl 30(2) requires a number of matters to be considered in the assessment of a development application involving a heritage item, including demolition.

28 Mr Staas disagrees with Ms Rintoul and Mr Hall on the significance of Kaluna Cellars. The heritage significance of the item and its setting is a matter raised by cl 30(2)(a). I am satisfied that the heritage significance is more properly represented in the assessment by Ms Rintoul and Mr Hall using Assessing heritage significance. Even though Mr Briggs, for the applicant submitted there was no statutory obligation to rely on this document there is no other comparable document with the same level of recognition for the task of heritage significance assessment. It was also the only document used by Mr Staas, Ms Rintoul and Mr Hall in their assessment.

29 Using the Guidelines for Inclusion in Assessing heritage significance, I accept the association with the early wine industry in Sydney satisfies Criterion (d) in that it "it is important for its associations with an identifiable group", Criterion (f) in that it "provides evidence of a defunct custom, way of life or process" and Criterion (g) in that it "has attributes typical of a particular way of life, philosophy, custom, significant process, design, technique or activity". Potentially, Criterion (e) may also be relevant however there was no evidence to suggest that the heritage item "has the potential to yield new or further substantial scientific and/or archaeological information".

30 The significance of the heritage item would clearly be enhanced if the building was intact and grapes were still grown on the site however this is not the case and I accept the evidence of Ms Rintoul and Mr Hall that the significance of the heritage item is best portrayed through the retention of the building (or part thereof following further investigations and subject to the further comments on adaptive reuse) rather than its demolition and the use of an archival record and an Interpretation Strategy.

31 In terms of cl 30(2)(c), I accept the evidence that the older brick construction to the south and graded by Ms Rintoul as High should be retained (but ultimately considered in conjunction with the further investigation on adaptive reuse – see pars 32 to 35). Whether the remaining part of the building (excluding the most recent structures at the northern end) should remain is inconclusive at this time because of inadequate research into this area of the building.

32 Clause 30(2)(c) requires consideration of “whether any features of the item or its site should be retained”. Mr Staas stated that the building could not be economically reused notwithstanding the agreed position of the structural engineers that the majority of the building was capable of reuse. This was not a conclusion supported by Ms Rintoul or Mr Hall who maintained that the building could potentially be adaptively reused.

33 In considering the different positions of the experts, I am not satisfied that the obligations under cl 30(2)(c) can be properly discharged without evidence to support the conclusion of Mr Staas that the building could not be adaptively reused. Even though Mr Staas is an architect and an experienced heritage consultant, Ms Rintoul and Mr Hall are also similarly qualified and experienced heritage consultants. The conflict between similarly qualified and experienced experts clearly supports the need for more extensive evidence on this issue. The question is whether the costs of adaptive reuse are so high or there are no suitable uses that an unacceptable burden is placed on the owner of the building so that demolition should be permitted? If not, what is the most appropriate use. This question can only be properly answered through the submission (and approval) of a development application.

34 I am also mindful of the development incentives relating to heritage items in cl 32. These provisions are particularly relevant as this clause allows alterations to, additions to or use of a building that is a heritage item notwithstanding any other provisions of LEP 1994 (subject to other provisions within the clause). Clearly, these provisions provide a significant opportunity for the adaptive reuse of the site when combined with the structural soundness of the remaining fabric. In the absence of any evidence to address cl 30(2)(c) beyond the general comments of Mr Staas, the application is clearly inadequate in this regard and development consent must be refused.

35 Overall, the onus placed on the applicant to show why the building should be demolished has not been adequately discharged because the significance of part of the building and the potential adaptive reuse of the building (or part of the building depending on the results of the further investigation) has not been adequately addressed.

Orders

36 The Orders of the Court are:

1) The appeal is dismissed.
2) Development Application 1472/2005 for the demolition of all existing structures and the Torrens title subdivision of 10 Kaluna Avenue, Smithfield into 4 lots is refused.
3) The exhibits are returned with the exception of exhibits 1 and 2.
_____________
G T Brown
Commissioner of the Court