Williams v Ku-ring-gai Council

[2008] NSWLEC 1354

Land and Environment Court

of New South Wales

CITATION:

Williams v Ku-ring-gai Council [2008] NSWLEC 1354

PARTIES:

APPLICANT
Kieran Williams

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10393 of 2008

CORAM:

Hussey C

KEY ISSUES:

Development Application :- demolition of a heritage listed dwelling and its subsequent replacement with a detached dual occupancy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
DCP 38 – Residential Design Manual
SREP 20 (Hawkesbury Nepean River)
Dual Occupancy Code
DCP 31 - Access
DCP 40 – Waste Management
DCP 43 – Car Parking
DCP 47 – Water Management

CASES CITED:

Sandig v Ku-ring-gai Municipal Council [2000] NSWLEC

DATES OF HEARING:

7 August 2008

 
DATE OF JUDGMENT: 

5 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hones
Solicitor
Hones La Hood

RESPONDENT
Mr A Hudson
Solicitor
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

5 September 2008

10393 of 2008 Kieran Williams v Ku-ring-gai Council

JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application for the demolition of a heritage listed dwelling situated at 81 Grosvenor Street, Wahroonga and its subsequent replacement with a detached dual occupancy.

2 The threshold issue is whether the heritage dwelling should be demolished. Insofar as issues were initially raised about the dual occupancy, following amendments by the applicant, the Court was informed that it was acceptable for conditional consent, subject to the resolution of the demolition issue.

3 A secondary issue concerns the impact on the existing vegetation, particularly the proposed removal of 2 mature Turpentines in Boundary Road.

The Site

4 This site is described as Lot 10 in DP 788934. It is situated on the corner of Grosvenor Street and Boundary Road and has a total area of 1350 sqm. It also has a 37.1m frontage to Grosvenor Street and 30.25m frontage to Boundary Road.

5 The site contains “Grosvenor Cottage”, which a local heritage item listed in Schedule 7 of the KPSO.

6 This proposal involves the demolition of the heritage building, fence and removal of mature trees. It also proposes a dual occupancy comprising:

• Dwelling A (Boundary Road entry); 2-storey dwelling containing 3 bedrooms and ancillary rooms.
• Dwelling B (Grosvenor Street access); 2-storey dwelling containing 3 bedrooms and ancillary rooms.

Planning Controls

7 Ku-ring-gai Planning Scheme Ordinance (KPSO); under which the site is zoned Residential 2(c) and the development is permissible with consent.

8 Clause 61D requires the council to assess and consider the impact of development on the heritage significance of the item and any horticultural features of its setting.

9 Clause 61E requires the council to make an assessment of the proposed works on the significance of the nearby heritage items.

10 Clause 61F and clause 9(1) of SEPP 53 requires council to refer an application for demolition of a heritage item to the NSW Heritage Office for comment.

11 The other relevant controls include:

• DCP 38 – Residential Design Manual
• SREP 20 (Hawkesbury Nepean River)
• Dual Occupancy Code
• DCP 31 - Access
• DCP 40 – Waste Management
• DCP 43 – Car Parking
• DCP 47 – Water Management

12 Detailed evidence was presented by:

• Mr P Rappoport; Consulting heritage architect for the applicant,
• Mr P Dignam; Council’s heritage architect.
• Mr T Beaven; Council’s landscape expert.
• Mr A Morton; Consulting arboriculturist.
• Ms N Sonter; Consulting landscape architect.

13 Both heritage experts undertook assessments of “Grosvenor Cottage” and agreed that it has a moderate level of heritage significance. According to Mr Rappoport’s heritage impact statement (HIS):

“The subject dwelling at 81 Grosvenor Street, Wahroonga has been established in this report to have some historic and aesthetic significance in the local area. The existing dwelling, constructed in the c.1910’s, provides evidence of local residential development around WW1 and is a modest example of the Arts and Crafts style of architecture. The subject dwelling exhibits some of the typical Arts and Crafts characteristics, especially the multi-gabled roof form, solid rock-faced stone footings, bay windows, tall chimneys with terracotta pots, a variety of external finishes (including the weatherboards forming an apron to the sleep outs, similar to the existing bay window treatment), exposed joists (instead of the usual rafters), as well as the high-waisted front door with Art-Nouveau-style swirled coloured glass side and fanlights, fanlights, face brick fireplaces, square wooden detailing and a robust staircase. However, there have been extensive internal and external modifications since original construction, in particular the alterations to the street front facades, the addition of the garage and the enclosure of the sleep out and undercroft. The dwelling has been so altered that it is difficult to read the existing interior and exterior as an Arts and Grass house as it was originally intended. The street facades have been muddled by ad hoc additions and replacement of the original fenestration resulting in an incoherent street presentation. The additions are intrusive and in our opinion, have dramatically reduced the significance of the dwelling.”

14 Mr Rappoport made his assessment of significance based on the 7 separate criteria established by the Heritage Office of NSW. From this he concluded that the dwelling could be demolished because:

• Although the subject dwelling is listed as a locally significant heritage item, this listing was incorrect as it was based on historical information relating to other buildings in Grosvenor Street. Furthermore, the Arts and Crafts style interior and exterior have been muddled by unsympathetic modifications, reducing the aesthetic contribution of dwelling to the street. The interior layout has become incompatible with current lifestyle expectations.
• The dwelling is currently in an overall state of disrepair and the owner has also been advised that it is not financially viable to maintain the dwelling in its current condition. The costs associated with the maintenance works has further contributed to the decline of the dwellings physical fabric. This, combined with a number of inappropriate modifications that have been carried out in the past has altogether reduced the aesthetic significance of the place to the point out that photographic archival recording could be capable of capturing the significance of the place. Further, the diversity of house styles in the streetscape is such that the proposed new dwellings would be capable of being absorbed into it.
• The demolition of the dwelling should be permitted, subject to preceeding photographic archival recording in accordance with the guidelines set by the NSW Heritage Office.

15 Against this, Mr Dignam says that:

• The significance is not related to the size of the item and that other comparable sized dwelling are recognised as having exceptional heritage significance.
• That archival recording is useful for recording change to an item such as when minor demolition occurs associated with additions and alterations or when demolition is unavoidable due to conditions or other factors such as road widening but is not a substitute for retaining them.
• It is preferable to retain this dwelling and the later infill of verandahs, introduction of other inappropriate materials and alterations are relatively minor and could be readily removed.
• The house is structurally sound and capable of continued use and could sustain alterations, additions to suit contemporary living standards consistent with accepted conservation practice.
• Repair and refurbishment of the item is viable and it can be retained as a house in its existing residential setting. The heritage significance of the house justifies its retention and conservation.

16 In order to address these disparate conclusions, various conferencing was undertaken by the heritage experts. This resulted in the final joint report entitled ‘synopsis of essential differences’ dealing with the agreed evaluation criteria (Ex 5). This prioritises to some extent, the relative high (1), medium (2) and low (3) levels of heritage significance. Unfortunately this synopsis is of limited value because of the multiple groupings within these 3 levels, i.e. there are some 10 high significance level criteria.

17 Accordingly I deal with these 10 high significant criteria on the following basis.

Reason for listing

18 One of the original reasons for the listing was that the dwelling was thought to be designed in 1910 by the architect James Peddle. As this is now considered unlikely, Mr Rappoport says the building does not warrant retention on this basis. Notwithstanding this, Mr Dignam still maintains the listing is correct because of its architectural and cultural features.

19 In this regard, reference was made to Sandig v Ku-ring-gai Municipal Council [2000] NSWLEC (Appeals 10924 & 10925 of 2000), wherein the Senior Commissioner said:

9. During the hearing there was a great deal of discussion whether the existing house is appropriately listed as a heritage item. The applicant submitted that there was not an adequate assessment of the significance of the house to justify its heritage status. This is not a matter for the Court to determine. The fact is that the house is a heritage item.

20 As the circumstances are similar in the current matter, I accept the dwelling is a listed heritage item and consider the applicant therefore must demonstrate demolition is warranted. I do not consider the applicant’s evidence on this criterion demonstrates demolition is warranted.

Contribution to the LGA

21 Mr Rappoport says that the building makes a moderate contribution, while Mr Dignam considers it a high contribution. On the evidence before the Court, I am satisfied on balance that the building makes contribution, which is positive and therefore does not warrant demolition on the basis of this criterion.

Degree of architectural interest

22 According to Mr Rappoport, the item presents as a mediocre piece of architecture inspired by the work of Green & Green an American firm who were responsible for the fashionable Californian Bungalow style adopted and applied in Sydney. But successive modifications have reduced the cogency of the original. Against this, Mr Dignam now considers there is a strong possibility that Kent, Budden and Greenwell were responsible for the design. But in any case, says it has high retention value because it is one of the few, possibly the first and only transitional Arts & Crafts and Californian Bungalow styles in the LGA.

23 On the basis that the item is of a transitional style, I accept Mr Dignam’s opinion that it has heritage interest. Accordingly, I do not consider any compelling evidence was presented by the applicant to support the demolition on this criterion.

Extent to which changes have reduced significance.

24 Mr Rappoport says that there has been an accumulative degrading of significance as a result of interior modifications, roof, enclosure of balcony, kitchen, bathrooms, undercroft areas and northern addition, to such an extent that any heritage value is diminished, thus allowing the demolition.

25 However, Mr Dignam believes that the modifications are easily reversible and the house can be refurbished. He says that the changes have not eliminated the significance.

26 From my observations at the site inspection, where the various changes were identified, I am satisfied that some can be reversed so the building integrity is substantially retained as stated by Mr Dignam. In the absence of realistic costings for such rehabilitation, I am unable to accept Mr Rappoport’s opinion that the changes have diminished the heritage value to such an extent that demolition is warranted on this criterion.

Degree to which house is an exemplar of an architectural style (Representativeness)

27 Mr Rappoport considers the house is not a good representation and that there are better examples in the LGA of both Arts & Crafts and Californian Bungalow styles. Mr Dignam agrees that there are other better examples of both styles in the LGA, however this is of particular interest due to its transitional features between the two styles.

28 My assessment of this criterion is that it is neutral, and considered alone would not warrant the demolition of the building.

Significance of landscape and setting

29 Mr Rappoport’s opinion is that there is a low level of contribution to the setting of the house and it is not important. Mr Didnam generally agrees, subject to the protection of key plantings.

30 This evidence indicates to me that the consideration of this criterion does not preclude demolition.

Aesthetic considerations

31 Consistent with his other evidence, Mr Rappoport again states that modifications to fabric and setting have reduced significance and are not easily reversible. In this regard, Mr Dignam maintains his position that the transitional Arts & Crafts with Californian Bungalow is of high aesthetic significance for retention.

32 It seems to me that accepting the listing on the basis as previously stated, that the dwelling does make a heritage contribution, then reasonable consideration should be given to the dwellings retention. That consideration in my assessment does not solely depend on the “ease” of reversibility, or restoration. Instead, I consider other relevant factors would include the actual costs of staged/total restoration, resultant utility of the dwelling and consideration of design options to improve usability. The absence of these additional details does not support the case for demolition, in my opinion.

Rarity

33 On this criterion, Mr Rappoport says it has moderate significance, whereas Mr Dignam considers it high significance due particularly to the transitional design features. In applying the rankings to this criteria, it seems to me that if there was agreement that an item had low significance in this regard, that would support its demolition. As that is not the case in this matter because of its medium to high significance, I do not consider the degree of rarity then supports the proposed demolition.

Adaptive re-use

34 There was a reasonable amount of discussion on this criterion with Mr Dignam preferring that options for retention and restoration should be presented before consent is granted for demolition. He says that council would consider reasonable adaptations of the building to enable satisfactory usability, or other possible uses to ensure its retention. However Mr Rappoport says that adaptive re-use is possible but may make it prohibitive for current owner.

35 Insofar as adaptive re-use can apply to other uses of the item, no substantive evidence was presented. Notwithstanding this, the dwelling was listed as a heritage item because of its residential dwelling characteristics. It is currently being used as a residence, albeit with a reduced level of convenience because of its current relatively poor condition. However in the other medium and lower significant issues, the experts agreed that the buildings structural integrity is generally good. I am satisfied to rely on Mr Dignam’s evidence that reasonable works can be undertaken to enable the continuing residential use of the dwelling, whilst maintaining its heritage integrity.

Demolition

36 Insofar as this was a designated level 1 priority, Mr Rappoport supports the demolition because of the low level of significance of the item. But Mr Dignam says in this regard that due to the rarity of the transitional features, it should not be demolished. Accordingly, it seems to me that the cumulative effect of the foregoing criteria does not support the demolition based on the evidence presented to the court.

Conclusion

37 For my determination of this matter I have considered the evidence, the submissions and undertaken a view. The submissions included reference to some other heritage merit appeals. Of some relevance is the matter of Tova Pty Ltd v Parramatta City Council [2004] NSWLEC 282, where Bly C said:

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 list, demolition is warranted…
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 Ms Cowell believed that the cost component of the replacement of the fabric would not be a major consideration.

38 In line with approach, I am satisfied that the heritage listing must be given significant weight. Accordingly, that involves a reasonable assessment of the aforementioned criteria and options for conservation of the dwelling to enable its continuing residential use should be undertaken before demolition is allowed.

39 It is apparent to me that the dwelling is basically structurally sound and capable of reasonable restoration. I am also satisfied this could be undertaken on a staged basis for much less cost than the quoted amounts in the order of $600,000.

40 Reference to the agreed criteria indicates to me that a compelling case has not been made for the demolition of the dwelling, instead it is capable of continuing residential with the application of some restoration measures, the extent of which I do not consider is unreasonable. That outcome is consistent with the provisions of cl 61D of the KPSO, which is to conserve the heritage item.

41 I give diminished weight to the current owners preference to demolish the item and replace it so as to achieve other objectives. I consider a reasonable balance between the competing private and public interests in the circumstances of this case is that the demolition of the heritage item is refused and therefore the application fails.

Court Orders

1. The appeal is dismissed.
2. Development application No DA 0009/08 for the demolition of the dwelling and construction of a dual occupancy at 81 Grosvenor Street, Wahroonga is refused.
3. The exhibits may be returned except 5.

R Hussey
Commissioner of the Court
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