Zabakly v Ryde City Council

[2004] NSWLEC 240

Land and Environment Court

of New South Wales

CITATION:	Zabakly v Ryde City Council [2004] NSWLEC 240
PARTIES:	APPLICANTS Richard Zabakly and Helen Zabakly RESPONDENT Ryde City Council
FILE NUMBER(S):	10221 of 2004
CORAM:	Nott C
KEY ISSUES:	Development Application :- Whether one of five house in a group listed as a heritage item may be demolished - brickwork of house irreparably damaged by being cement-rendered and painted - consent granted
LEGISLATION CITED:	Ryde Planning Scheme Ordinance Environmental Planning and Assessment Act 1979, s 97
CASES CITED:
DATES OF HEARING:	14/05/2004
EX TEMPORE JUDGMENT DATE :	05/14/2004
LEGAL REPRESENTATIVES:	APPLICANTS Mr N A Hemmings, QC SOLICITORS Allens Arthur Robinson RESPONDENT Mr R K Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


10221 of 2004

Nott C

14 May 2004

Richard and Helen Zabakly
Applicants

v

Ryde City Council
Respondent

Judgment

1 . This is an appeal against the council’s refusal of a development application to demolish the house and other structures at 27 Amiens Street, Gladesville. The application was recommended for refusal by the council's heritage officer Ms K Keteleby, and council resolved to refuse the application on 14 October 2003.

2 . At the hearing, I had helpful evidence presented from two heritage consultants, Mr Mark Moore who was retained for the council and Mr P Woodley for the applicants. I also took into account the evidence of other residents in the locality and the documents that were tendered. I have been helped with a view of the site and locality.

3 . The issues are as set out in a statement of issues dated 20 April 2004. The crux of the matter, as Mr Moore said, is whether the proposed demolition will detrimentally affect the heritage significance of the heritage item as a whole and adversely impact upon the group setting as an item.

4 . The subject house is not listed individually as a heritage item but under the Ryde Planning Scheme Ordinance (as amended) it is listed with four other houses. The item is described as “Amiens Street 23 – 31, Gladesville, Houses” . This item has local significance only. The houses Nos 23-31 are not part of a conservation area.

5 . In considering whether to grant the development consent, I take into account the matters under s 79C of the Environmental Planning and Assessment Act 1979 , in particular the heritage objectives and the matters set out in cll 86 and 88. For the reasons which I will elaborate on further, I have come to the conclusion that it is appropriate to grant consent for the demolition of the house, subject to a condition that the applicants were prepared to agree to, namely: Demolition of the building shall not take place unless and until development consent has been granted for infill development having regard to Pt IX of the Ryde Planning Scheme Ordinance .

6 . There was only one local resident who objected to the proposal. That objector’s residence is at the very rear part of one of the side boundaries of the subject land. The other letters written to the council from residents supported the granting of consent for demolition. In particular, there were letters of support from residents at 18, 20, 25, 29 and 31 Amiens Street. Typical of the letters that were written in support of the applicants’ proposal is the letter from the adjoining neighbours at No. 29, which by common agreement between the heritage experts is the most intact dwelling in the group of five. The residents of No. 29 stated:


We are of the opinion that as the house in question has been substantially altered from its original condition, it has little or no heritage value. Subject to our comment below, we would have no objection to the removal of the heritage order that currently affects that house.

However, in these days of large houses on small blocks we believe that the line of cottages in this part of Amiens Street contributes to a streetscape that is becoming increasing unique. Accordingly, any future development of No. 27 should be done with the existing streetscape strongly in mind.


7 . Because of the matters raised by the residents of No. 29, and from the consideration of all the evidence, it is appropriate that there be a condition preventing demolition until a development consent is granted for a new house.

8 . The situation might be different if No. 27 were not in the centre of the group, with two relatively intact dwellings on either side. It would be unfortunate, for example, if the dwelling was demolished and perhaps some other owner might delay in replacing what would be a “missing tooth” within the group. Of course, that could still occur with the consent that the Court intends to grant, but the likelihood of that occurring is much less if it is a condition of consent that another consent must first be granted for a new house before demolition of No. 27takes place.

9 . The subject house is the least intact of the five houses. In particular, the original face brickwork has been irrecoverably lost by the brickwork being rendered and painted. The original veranda at the front has been extended outward, and the original timber posts removed. Underneath the extended veranda, a billiard room has been constructed and an opening made in what was previously the undercroft of the original house. In addition, the front garden and steps leading up to the reconstructed balcony have apparently been provided in a form that is different from the original. As well, there is an unsympathetically rendered and painted masonry fence.

10 . Photographs of No. 27 are set out in the reports of Mr Woodley—I incorporate in my judgment two of his coloured photos of the front of the house:

11. I have taken into account all the other photos of the subject house that have been reproduced in Mr Woodley’s reports, both of the interior and of the exterior of the building, and the photos also of the other houses in the heritage item of which the subject house forms part.

12 . Although, as Mr Moore indicated, some works could be done to reduce the detracting nature of the appearance of the subject house, I am of the opinion that it is unlikely that those works would be carried out. Even if some changes were made, the adverse impact on the subject house is nevertheless unlikely to be overcome, namely, the impact of the cement rendering of the whole of the walls of the building.

13 . The subject building does still have some significance which as I indicated is detracted from, but the significance now lies more in its form, siting and scale. This form, siting and scale is what would have to be taken into account if and when any new development application is lodged for a new house on the subject site.
14 . The subject building does detract from the group, but it seems to me that the fear of the council is that another development would detract even further from the group and would destroy the cohesion of the group. However, if a new development application for an unsympathetic form of development is put forward, the council of course should have no hesitation is refusing the application.

15 . In relation to the existing group of houses in the heritage item, there was formerly another house (built around about the same time as the subject house) at No. 33. That house was demolished and a house that does not relate sympathetically to the group was constructed.

16 . Number 29 Amiens Street is the most intact of the houses, as I mentioned, in the heritage-item group. The face brickwork of No. 29 has not been painted, and illustrates the use of dichromatic brickwork and tuck-pointing. The original veranda posts and brackets are still in situ . The original slate roof with terracotta detailing is retained and in good condition.

17 . I should also mention that in coming to the decision which I have indicated, I have not overlooked the fact that there is still some original detailing evident in the upper part of the front gable of the house at No. 27, although it has been painted over in a pink colour like the rest of the walls of the house. Also, that there is an intact tiled slate roof with terracotta detailing at No. 27.

18 . So, to reiterate in another way, I quote from Mr Woodley at p 29 of his statement of evidence:

Numbers 23, 25, 29 and 31 Amiens Street retain a higher degree of intactness, especially 29 and 31 Amiens Street. Moreover, Nos 16 and 18 on the south side of Amiens Street were also built at about the same time as 21-23 Amiens Street and exhibit the same form and detailing. While both have been altered, they each retain a higher degree of intactness than 27 Amiens Street, but are not listed as heritage items. Number 27 Amiens Street is the least intact of the houses at 23-31 and 16-18 Amiens Street. The unsympathetic alterations made to the house at No. 27 detract markedly from its contributory value to the heritage item group, and indeed it could be considered to be intrusive to the group in its current appearance.


19 . At par 3.12 of Mr Woodley’s statement, he sets out certain principles that could guide new development at the subject site. I do not wish to adopt in advance, however, principles that might guide the new development. The council will no doubt have regard to the form, siting and scale of development that is proposed, its detailing and finishes, and materials used, and take into account the relevant provisions of the ordinance.

20 . There were a number of other conditions that were proposed by the council, apart from the condition proffered by the applicant that I referred to earlier, and the applicants agree to these conditions.

21 . The orders of the Court are:


1. The appeal is upheld.

2. Development consent is granted for the demolition of the house and other structures at 27 Amiens Street, Gladesville, subject to the conditions in annexure A. (Annexure A is to contain the conditions in exhibit 4 together with the condition which reads: “Demolition of the subject buildings shall not take place unless and until development consent has been granted for in-fill development to replace the subject buildings having regard to Pt IX of the Ryde Planning Scheme Ordinance as amended.”)

3. The exhibits, other than 1, 3-5 and A, may be returned.

_________
A J Nott
Commissioner of the Court
rjs