Land and Environment Court New South Wales Medium Neutral Citation: Modog Pty Ltd v North Sydney Council [2020] NSWLEC 1342 Hearing dates: 25-26 June, 9 July 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) That development application DA175/19 for the demolition of the existing dwelling and construction of a new dwelling, carport and landscaping at 24 Cranbrook Avenue, Cremorne is refused. (3) The exhibits are returned with the exception of Exhibits A, B and 3. Catchwords: DEVELOPMENT APPLICATION – demolition of a heritage item and construction of a new dwelling – conflicting assessments of significance of the item – suitability of the replacement dwelling agreed – whether the demolition of the existing dwelling will have an unacceptable impact on the heritage significance Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 Cases Cited: Nader v Strathfield Council [2015] NSWLEC 1370 North Western Surveys v Baulkham Hills Shire Council [2005] NSWLEC 666 Regent Street Constructions v Ku-ring-gai Council [2006] NSWLEC 743 Sandoval Investments v North Sydney Council [2006] NSWLEC 721 Tova Pty Ltd v Parramatta City Council [2004] NSWLEC 282 Texts Cited: Heritage New South Wales, "Search for NSW Heritage" <https://www.heritage.nsw.gov.au/about-our-heritage/> accessed 30 June 2020 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March, 2020) New South Wales Office of Environment and Heritage, Assessing heritage significance, (July 2001) North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Modog Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: J Reid (Applicant) D Birch (Respondent) Solicitors: Legal Helpdesk Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2019/340894 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/175/19 that seeks the demolition of the existing dwelling and construction of a new dwelling, carport and landscaping at 24 Cranbrook Avenue, Cremorne (the site). The existing dwelling is a locally listed heritage item. The proposed new dwelling is three storeys, the suitability of which is agreed between the parties. The principal contested issue in the hearing is whether approval for the demolition of the existing dwelling on site should be granted. 2. The Council maintains that the application should be refused because: 1. The proposed demolition of the heritage listed dwelling house is contrary to the heritage controls in the North Sydney Local Environmental Plan 2013 (LEP 2013) and the North Sydney Development Control Plan 2013 (DCP 2013). 2. The approval of the development application would be contrary to the public interest. 1. The appeal was subject to mandatory conciliation on 25 June 2020 under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). The parties accepted that no agreement could be reached on whether the dwelling could be demolished. Following conciliation and amended plans, granted leave by the Court at the commencement of the hearing, the parties were able to reach agreement on the form of the proposed dwelling, subject to the resolution of the threshold question of the merits of the demolition of the existing dwelling by the Court. That part of the proceedings dealing with the demolition was dealt with pursuant to s 34AA(2)(b)(i) of the LEC Act as a hearing. 2. By consent at the commencement of the hearing the Applicant was granted leave to rely on amended architectural plans for the proposed dwelling (Exhibit B). The parties agreed that the amendments were minor by reference to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Site and locality 1. The subject site is legally described as Lot 17, DP 8862 and otherwise known as 24 Cranbrook Avenue, Cremorne. The subject site is 682sqm in area and is irregular in shape. It has a 22.2m frontage to the northern side of Cranbrook Avenue, and is located adjacent to the intersection between Cranbrook Avenue and Allister Street. 2. The subject site contains a single storey detached dwelling house, positioned over the central portion of the site and aligned within its western boundary. The dwelling is predominantly of masonry construction, with limited use of weatherboards and a pitched terracotta tile roof. 3. The subject site is located within a residential precinct, with a range of residential accommodation from one to two storey detached dwelling houses to 9 storey residential flat buildings. 4. Immediately to the north of the subject site is 136 Holt Avenue, which contains a three storey residential flat building of brick and concrete tile construction. Further to the north predominantly lie a mixture of 1 to 2-storey detached dwelling houses of masonry and terracotta tile construction with pitched roofs and two to four storey residential flat buildings of brick and concrete tile construction. 5. Immediately to the east of the subject site is 26-30 Cranbrook Avenue, containing a nine storey residential flat building over basement car parking likely constructed in the 1960s, of brick and concrete slab construction with flat roof. Adjoining the flat building is two residential dwellings, 32 and 34 Cranbrook Avenue that are listed as local heritage items. 6. To the south of the site, on the opposite side of Cranbrook Avenue is a single storey detached dwelling known as "Belvedere" at 7 Cranbrook Avenue. This property is listed on the State Heritage Register (No. 00320). Adjoining Belvedere to the east is a dwelling house, 11 Cranbrook Avenue which is listed as a local heritage item. 7. Immediately to the west of the site, is 18-22 Cranbrook Avenue, containing a nine storey residential flat building over basement car parking. The building, which was likely constructed in the 1960s, is of brick and concrete slab construction with a flat roof. 8. The location of the properties in relation to the subject site is shown in the following aerial map: Site location map: Source: Sixmaps Subject site 1. On 23 February 2018 an amendment to LEP 2013 came into force which identified the site as a heritage item under Schedule 5 of LEP 2013. The site is located nearby local and state listed heritage items, including: * 7 Cranbrook Avenue (State Significance) * 11 Cranbrook Avenue (State Significance) * 32 Cranbrook Avenue (Local Significance) * 34 Cranbrook Avenue (Local Significance) * 53-57 Cranbrook Avenue (Local Significance) * 59 Murdock Street (Local Significance) 1. An extract of the LEP 2013 heritage Map HER_003 is provided below: 1. It is common ground that the site, and the existing dwelling, were recently listed in under Schedule 5 of LEP 2013 as a heritage item. The site is not within a Heritage Conservation Area (HCA). 2. The site is located within the Murdock Neighbourhood in the North Cremorne Planning Area Character Statement in accordance with DCP 2013. Public Submissions: 1. As a result of the notification of the development application by the Respondent, the Council received 53 submissions. The objections raise the following issues: * Concern in relation to the demolition of a heritage item, * The proposed new dwelling would appear uncharacteristic in the streetscape of Cranbrook Avenue, * That the proposed development will impact on privacy and increase noise impacts, * The setbacks proposed are inadequate and the bulk and scale is excessive, and * The new dwelling will result in a loss of views and light. 1. Further, written submissions were provided to the Court by residents as part of the proceedings. Consistent with the Court's COVID-19 Pandemic Arrangements Policy these submissions were provided in written form. I have read these submissions, along with the earlier submissions, and taken them into consideration in determining the application. The issues raised by the residents in submissions to the Court related to the demolition of the dwelling can be summarised as follows: * The existing house is of local heritage significance and should be preserved, * The heritage item is in a street located with other heritage properties, * The subject site is an integral part of a grouping of heritage items in Cranbrook Street, * The items recent relisting resulted from community input, the Council was supported by a reputable heritage consultant. The house should not be demolished, * The Applicant has failed to provide any justification for the proposed demolition, * That the house and its historical and aesthetic significance should be preserved and protected for current and future generations, * If the demolition of the heritage item is permitted it will create a 'dangerous' precedent for other listed items, * The existing house is visually prominent and aesthetically pleasing, adding to the historical distinctiveness of Cranbrook Avenue, * The subject property was designed by a significant lower north shore architect and is a good example of his work. The property by virtue of its age, scale, materials, details, design style or intactness is consistent with the street and neighbourhood, therefore reinforcing its heritage significance, * To allow demolition after such a recent re-listing process (February 2018) would undermine the integrity of the planning system, * The claim in the Applicant's heritage impact assessment, by Cracknell Lonergan Architects, that the subject site 'does not merit its heritage status' is not well justified, * The existing building, a traditional Californian bungalow, is well maintained and retains many important characteristic details of the period both externally and internally. The building is structurally sound and in good condition, the demolition is not warranted on these grounds, * The significance of the property is important to Cranbrook Avenue and Cremorne as a whole. Issues: 1. The primary issue in dispute between the parties is whether the effect of the demolition of the dwelling on the heritage significance of the item warrants refusal of the application. Planning Controls: 1. Pursuant to LEP 2013, the subject site is zoned R4: High Density Residential. The proposed development is permissible in the zone. The objectives of the zone are a matter for consideration in the determination of the development application: cl 2.3(2) of LEP 2013. The objectives are: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a reasonably high level of residential amenity is achieved and maintained. 1. Clause 5.10 of LEP 2013 provides the requirements for heritage conservation. Clause 5.10(2)(a)(i) mandates that consent is required for the demolition of a heritage item. Clause 5.10(4) states: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This consideration is a precondition to the grant of consent. 2. The Dictionary to LEP 2013 provides the following relevant definitions: heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5. … heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value. 1. The provisions of the North Sydney Development Control Plan 2013 apply to the development. Section 13 of DCP 2013 is relevant to heritage and conservation. Section 13.5: Heritage Items provides: 13.5.1 Protecting heritage significance Objectives O1 Ensure changes to heritage items are based on an understanding of the heritage significance of the heritage item. Note: Council does not support demolition of heritage items as a matter of principle. … O2 Allow change to occur to heritage items to meet amenity and contemporary safety, sustainability or technological standards, provided that those changes are sympathetic to and does not detrimentally affect the heritage significance of the heritage item. Note: Development to heritage items should be sympathetic, and achieve a reasonable balance between contemporary expectations, environmental sustainability and protecting heritage significance. … O3 Ensure significant features of heritage items are retained and that development is sympathetic to these features with particular regard to bulk, form, style, character, scale, setbacks and materials. O4 Acknowledge changes over time to heritage items, as subsequent layers may also be of significance. O5 Encourage reinstatement of missing details and the removal of past unsympathetic changes, to improve overall outcomes to the heritage significance of the heritage item. O6 Allow changes to the rear of heritage items where the new work does not impact the heritage significance of the heritage item. O7 Ensure that new uses of heritage items are compatible with the fabric and heritage significance of the item. O8 Encourage changes to be reversible where possible and appropriate. Provisions P1 Retain features (including landscape features) that contribute to the significance of the item. P2 Remove unsympathetic elements, especially where substantial changes are proposed to a heritage item, and there is potential for an improved heritage outcome. P3 New work is to be consistent with the setback, massing, form and scale of the significant features of the heritage item. P4 Retain significant fabric, features or parts of the heritage item that represent key periods of the item's history or development. P5 Locate change away from original areas of the heritage item that are intact. For example, where a building's significance is related to the front of a building, locate new work to the rear. P6 All works are to be consistent with an adopted Conservation Management Plan/s where applicable. 1. Of relevance to the proceedings is Section 13.8: Demolition, which contains the following objectives and controls: 13.8: Demolition Objectives O1 To ensure that heritage items and buildings which positively contribute to the significance and character of a heritage conservation area retained. O2 To outline the criteria which need to be considered by Council should applicant still seek to demolish the heritage item or building which positively contributes to a heritage conservation area. Provisions Demolition of heritage items P1 Heritage items must not be demolished and demolition will not be supported by Council. P2 Despite P1 above, Council may consider the demolition of a heritage item, but only where an applicant can satisfactorily demonstrate: (a) why it is not reasonable to conserve the heritage item taking into consideration: (i) The heritage significance of the property; and (ii) the structural condition of the building; and (iii) pest inspection reports; and (iv) whether the building constitutes a danger to the public. Note: A report from a qualified quantity surveyor is required where the costs of retention are part of the justification for the proposed demolition. … (b) that alternative options to demolition have been considered with reasons provided as to why the alternatives are not acceptable. … 1. The statement of significance for the subject site as located on the NSW Heritage Register is: "See also under 'Cranbrook Avenue Group' NSHS1052. This house is a fine example of a single storey Inter-war California Bungalow of modest scale, with detailing, colour scheme and curtilage intact and is representative of residential design work by the eminent architect Edwin R Orchard, noted for his contribution to an evolving Australian style. The interior is also of significance. It benefits from comparisons to the more stylistically individual houses opposite and contributes to their setting." 1. The listing on the NSW Heritage Register contains the following physical description of the item: "A Californian bungalow with characteristic offset shingled double gable and a flat roofed side verandah (now enclosed) supported on rendered piers with brick cappings and a side entry. The larger gable is half battened. The forward gable has a projecting bay window. The dwelling has open projecting expressed timber eaves, decorative battening to eave soffits, continuous horizontal casement windows, terracotta roof tiles and a single asymmetrically placed chimney with brick capping. Walls are of cream painted roughcast render with expressed face brick. The design of the front gate and use of a stone wall echoes those of Esplin and Mould's house at No. 7. Original rough cast rendered garage at rear with battened gable ends, terracotta tile roof and contemporary roller door. The original room configuration is still evident. Original stained timber joinery present including but not limited to beamed ceilings, three paneled doors, plate rails, skirtings, cornices and window seat. Geometric leadlights internally and externally. Garden is laid with gravel to front with perimeter shrubs with unusual low sandstone wall to the street with hedging." Source: https://www.heritage.nsw.gov.au/search-for-heritage/search-for-nsw-heritage/ 1. 'NSW Heritage Manual: Assessing Heritage Significance' by the NSW Office of Environment and Heritage, printed in 2001 (the NSW Heritage Manual) sets out the method of determining whether an item has heritage significance. The types of local heritage significance are: 1. An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area); 2. An item has a strong or special association with the life or works of a person, or group of persons, of importance to NSW's cultural or natural history (or the cultural or natural history of the local area); 3. An item is important in demonstrating aesthetic characteristics and/or a high degree of creativity or technical achievement in NSW (or in a local area); 4. An item has strong or special association with a particular community or cultural group in NSW (or local area) for social, cultural or spiritual reasons; 5. An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area); 6. An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area); and 7. An item is important in demonstrating the principal characteristics of a class of NSW's cultural or natural places or environments (or a class of the local area's cultural or natural places or environments). 1. According to the NSW Heritage Manual, only one of the above criteria needs to be satisfied for an item to have local heritage significance. 2. The planning proposal that sought to amend LEP 2013 include the subject site as a local heritage item was supported by an Assessment of Heritage Significance prepared by Lucas Stapleton Johnson in June 2017 (June 2017 HIA) (Exhibit 1). Against the criteria listed in the NSW Heritage Manual the June 2017 HIA identified that: * Criterion (a): The place meets the criteria for historical significance on a local level: "The property at 24 Cranbrook Avenue is of historical significance, along with the majority of properties in the immediate locality, as forming part of the 1917 subdivision of the Cremorne Heights Estate and this association is evident in the period style of the house as well as the site boundaries of the property which remain unchanged." (Exhibit 1) * Criterion (b): The place meets the criteria for historical associational significance on a local level. "The house at No. 24 Cranbrook Avenue is of historical associational significance as being an example of the work of early 20th Century Sydney architect Edwin Roy Orchard, a noted exponent of Arts and Crafts architecture. Orchard was a prolific and talented architect with his work being featured on numerous occasions in the architectural periodical Building magazine." (Exhibit 1) * Criterion (c): The place meets the criteria for aesthetic significance on a local level: "No. 24 Cranbrook Avenue is of aesthetic significance as a good example of a modest Californian bungalow, constructed in 1919 that is distinguished by being architect designed as demonstrated through the interesting mix of materials and detailing. The house displays all of the principal characteristics of the Californian bungalow style including the double gable frontage with timber battening, shingles and vent grille, boarded soffits and exposed rafters, face brick decorative motifs, leadlight glazing, casement windows which together with the carefully detailed roughcast rendered walls (with roughcast window hoods and bellcast skirt over sandstone plinth) makes the house an interesting example of its type. The subject property is also of aesthetic significance as forming part of a group of interesting and distinctive residences located on Cranbrook Avenue. Together with Nos. 7, 11, 32 and 34 Cranbrook Avenue, the house contributes to an aesthetically significant streetscape (although no longer intact) of early 20th century residences of varied styles and forms, that are architect designed by notable architects." (Exhibit 1) * Criterion (d): The place does not meet the criteria for social significance on a local level. * Criterion (e): The place meets the criteria for scientific significance on a local level. "As an example of the work of Edwin Roy Orchard, architect, No. 24 Cranbrook Avenue has the potential to yield further information into (sic) the history of early 20th [century] architecture in Sydney and in particular the stylistic development of the Californian bungalow by a noted architect of the time." (Exhibit 1) * Criterion (f): The place has the potential to meet the criteria for rarity at a local level. "Orchard designed buildings are not well represented on local council heritage lists, although their locations are known and as a noted architect, his work should be acknowledged as part of the history of architecture in Sydney and NSW more broadly. As the work of Orchard is not fully recognised the rarity of No. 24 Cranbrook is unknown as we are still finding out about his surviving body of work. Certainly, in the North Sydney Council area, only a small number of Orchard's work has been identified, although their integrity and intactness compared to No. 24 Cranbrook is unknown at this time." (Exhibit 1) * Criterion (g): The place meets the criteria for representativeness on a local level. "No. 24 Cranbrook Avenue is significant as a good, mostly intact example of an architect designed California bungalow that, although modest in size, displays all of the key attributes associated with the style. The place is also significant as forming part of a group of residences that together represents the rang of styles, forms and detailing that accomplished architects such as Orchard, Jolly, Esplin and Mould were practicing in early 20th century Sydney." (Exhibit 1) The effect of the proposed demolition on the heritage significance of the item 1. The Court was assisted by town planning experts, Mr James Lovell for the Applicant and Mr Luke Donovan for the Respondent. Their joint town planning report was tendered as Exhibit 4 in the proceedings. The planning experts were not required for cross examination. Their evidence is directed to the suitability of the replacement dwelling. The amendments and refinements proposed by the planning experts form part of the amended application before the Court. As such the Council no longer press contention 2 (refer to par [3]). 2. Expert heritage evidence was provided by Mr Ian Stapleton for the Respondent and Mr John Oultram for the Applicant. The experts participated in joint conferencing and produced an expert report which was tendered in the proceedings as Exhibit 5. The heritage experts were called for cross examination and gave oral evidence. 3. The principle disagreement between the heritage experts is whether the assessment of significance of the property is well founded and whether the property should be identified as a local heritage item (Exhibit 5). 4. In the joint report the heritage experts list the following areas of agreement: "2.1 JO and IS agree that the subject property is listed as a local heritage item pursuant to Schedule 5 Part 1 of the NSLEP. 2.2 JO and IS agree that the subject property is not located within a statutory Heritage Conservation Area pursuant to Schedule 5 Part 2 of the NSLEP. 2.3 JO and IS agree that the subject property is located in the vicinity of a number of heritage items: Nos. 7, 11, 32 and 34 Cranbrook Avenue, two of which (Nos. 7 and 11 Cranbrook Avenue) are included on the State Heritage Register. 2.4 JO and IS agree that the properties either side have been developed in the 1960s by high rise residential development, of the order of 9 storeys in height. 2.5 JO and IS agree that as the place is listed as a local heritage item, the proposed demolition of the dwelling and associated structures would fail to conserve the heritage significance of the local heritage item contrary to objectives (a) and (b) in Clause 5.10(1) in NSLEP 2013. 2.6 JO and IS agree that the proposed demolition of the dwelling and associated structures would extinguish the property's significance as a surviving single-storey Californian Bungalow built in the 1920s designed by notable architect Edwin Roy Orchard. 2.7 JO and IS agree that the proposed demolition of the dwelling and associated structures would extinguish its contribution to the adjacent streetscape of Cranbrook Avenue. 2.8 JO and IS agree the subject house was built in c1919 and designed by Edwin Orchard. 2.9 JO and IS agree that the house has been altered. 2.10 JO and IS agree that the front elevation of the house, apart from the infill verandah which was sympathetic though it altered an important element in the composition, is very intact. 2.11 JO and IS agree that given the nature of the changes to the rear of the house, that subject to other planning laws and policy, substantial alterations/additions could be made to the rear of the house to increase accommodation or make it more liveable for 21st century use." (Exhibit 5) 1. In the joint report Mr Oultram indicates his agreement that the subject house was 'designed by Edwin Orchard' and "the association [of the house] with Edwin Orchard is not disputed…" (Exhibit 5). However, in his oral evidence Mr Oultram provided the following qualifications to this evidence: 1. That Edwin Roy Orchard was recognised for his work in the Arts and Crafts style and was not recognised as a notable architect for his work in the interwar Californian bungalow style. 2. That the association of Edwin Roy Orchard with the subject property was incidental and related, at best, with the site plan associated with the approval of the development in 1917. 3. That he would not have identified it as an Edwin Roy Orchard design, and did not, from his visual inspection of the property in 2007. 1. Mr Oultram concludes that the subject property does not warrant listing as a local heritage item. As an annexure to the joint report Mr Oultram provides his own assessment of the heritage significance of the site against the criteria in the NSW Heritage Manual (HIA Oultram 2019). 2. Focussing on each of the criterion in which the June 2017 HIA concluded listing of the item as an item of local significance was warranted, Mr Oultram argues: 1. Criterion (a): he does not concur that the place meets the criterion for local listing under Criterion (a). In summary he argues that: * the 1917 subdivision of the Cooperville Estate was a common pattern of development. * Further, he argues that similar patterns of development can be seen in the local area. He references the Honda and Arden Estates around Bogota Avenue, that were subdivided by William Bennett, and the Miss Priors' Estate around Prior Avenue that was subdivided by the Prior sisters around 1919 (the subdivision was formalized in 1942). * That given construction of houses generally follows subdivision, arguably "is not surprising that the houses in Cranbrook Road show evidence of the Inter War styles as the Cremorne Heights Estate was released in 1917." * That a number of early houses to the northern side of Cranbrook Avenue have been demolished and the subject house sits between two, modern, high-rise buildings. 1. Criterion (b): Mr Oultram does not concur that the place meets the criterion for local listing under Criterion (b). In summary he argues: * that the association with Edwin Roy Orchard is incidental and is not readily identifiable as his work. * That the house was designed for a developer and used a style that was common at the time. * In the conclusion of the HIA Oultram 2019 further reasoning in relation to Criterion (b) is provided as follows: "A question is whether any house designed by an architect, of note or otherwise, should be identified as a heritage item simply for that reason alone, regardless of its aesthetic qualities or intactness. We would argue that this is not sufficient justification particularly for houses that were speculative development where the architect was unlikely to be responding to a bespoke brief or a site that had qualities that would generate a designed response to those qualities" (Exhibit 5) 1. Criterion (c): At the conclusion of the HIA Oultram 2019, he summarises that, in his assessment, the place does not meet this criterion and lacks aesthetic excellence. Mr Oultram argues the criteria is not met on the following grounds: * That whilst the house is a modest Californian bungalow, and is the work of an architect, it does not demonstrate the style well. He argues: "it is modestly detailed and is more akin to the builder-built houses of the period that were in a stripped, Australian version of the Californian bungalow style." (Exhibit 5). He concludes that the house lacks the complexity of the true Californian bungalow style. * The house displays "no technical prowess that would identify it as a good example of an architect designed house". (Exhibit 5) * Edwin Roy Orchard is not recognised as an architect for his work in the California Bungalow style. * The house has been altered. 1. Criterion (e): Mr Oultram disagrees that the place meets the criteria for listing at a local level. He concludes that "The style, form, layout and detail of the house are self-evident, and its history is well established." (Exhibit 5) 2. Criterion (f): In contrast to the June 2017 HIA, Mr Oultram concludes that the house is a typical example of the Californian bungalows that are common in the area. He argues criterion (f) is not met for listing at a local level. Further, he argues that the subject property is not the only example of a house of Edwin Roy Orchard's from the interwar period. He lists the following examples: "1919, 9 Silex Road, Clifton Gardens 1920, 19 Kardinia Road, Clifton Gardens 1922, 7 Morella, Clifton Gardens 1923, 12 Buena Vista Avenue, Clifton Gardens 1923, 14 Buena Vista Avenue, Clifton Gardens" (Exhibit 5) 1. Criterion (g): Mr Oultram disagrees that the place warrants listing on the basis of representativeness. He argues the criteria is not met on the following grounds: * The house is not mostly intact, * It does not display all the key attributes of the style, and * The relationship with the other period buildings in the street has been severely compromised by the high-rise development close by. 1. In contrast to the assessment in the HIA Oultram 2019, which concludes that none of the NSW Heritage Manual criteria are met by the place, in the body of the joint report Mr Oultram states that: "the property may meet criterion (a) Historical Manual criteria but only in the most general terms." (Exhibit 5). 2. Mr Oultram concludes that, on the basis of the HIA Oultram 2019, the "property is not at a level of significance that would preclude its demolition." (Exhibit 5). He maintained this view in his oral evidence. 3. In the alternative, Mr Stapleton concludes that: "there is a core of original fabric and in my opinion, this is sufficient to justify a description of the building as being relatively intact and is sufficiently intact to be heritage listed". (Exhibit 5). In relation to the proposed demolition he agrees with Mr Oultram that: "… the demolition of the property will extinguish its significance". (Exhibit 5). 4. Mr Stapleton makes scant comment in the remainder of the joint report in relation to the merits of the proposed demolition or in response to the HIA Oultram 2019. 5. Mr Stapleton annexes to the joint heritage report a Fabric Inspection Survey prepared by Lucas Stapleton Johnson in September 2017. Also annexed is a series of exterior and interior photos again taken in 2017. Mr Stapleton made reference to this survey in his oral evidence and in response to cross examination. The survey, which he jointly authored, concludes: "Externally the overall form and detail of the house, with its double gabled tiled roof, is mainly intact as perceived from the street, including the chimney characteristic of Orchard's work. Most of the exterior joinery remains intact along with the carefully detailed roughcast rendered walls and overhanging eaves. The front verandah has long been enclosed but is otherwise intact and could be restored. The house sits within its original site boundaries and retains its front stone wall. Although its immediate neighbours have been replaced with blocks of flats, the house is highly visible from the street and in combination with the surrounding group of early 20th century houses, contributes to the residential character of the street. Internally, the front part of the house comprising the entrance hall, lounge, front bedroom is mainly intact. Unusually for this period of house, much of the internal joinery (e.g. front bay window and seat) retains its original dark stained finish. It would be unusual for a house of this date not to have been modernised and opened up to the garden at the rear. This house is no exception. But the changes are relatively sympathetic and do not negate the house's cultural significance from the point of view of the streetscape and as an example of the work of the noted architect Edwin Roy Orchard." (Exhibit 5) 1. In cross examination Mr Stapleton provided the following further evidence: 1. He acknowledged that the site plan submitted and approved for the site in 1917 was clearly signed by 'Edwin R Orchard, architect'. He agreed that the subsequent site plan submitted and approved for the site (which resulted in the construction of 24 Cranbrook Avenue) did not include a signature. It was Mr Stapleton's view that the address provided was that of Orchard's office and he would have remained the principal architect responsible for the architectural work of the office but may rely on draftspersons to prepare the plans. 2. That the subject house contained architectural detailing and stylistic features that are consistent with a building designed by Edwin Roy Orchard. He was strong in his conclusion that these features were recognisable, specific and were not of a quality that would arise from a building seeking to replicate an architect's work without their oversight. 3. That the relevant stylistic features that demonstrate that the work is Edwin Roy Orchard's are: * The use of rough casting over the whole of the building, * The projecting 'skirt' at the base of the wall that is covered in rough cast, * The projection of the rafters beyond in the eaves, and that they carry beyond the gutters and are cut square, and * The quality and type of interior joinery. 1. That the place remains worthy of local heritage significance on the grounds established in the June 2017 HIA. 1. During the proceedings the parties also made reference to, and relied on, the following assessments of significance undertaken on the subject property (in addition to those detailed in the preceding): * September 2017: John Oultram Heritage & Design * September 2017: Weir Phillips Heritage * 18 January 2018: Graham Brooks of GBA Heritage * 13 May 2019: Peter Lonergan, Cracknell and Lonergan Architects (submitted in support of the proposed development) * 25 July 2019: Kate Denny and Ian Stapleton of Lucas Stapleton Johnson 1. In undertaking the assessment of the proposed development I have read and considered the reports listed at par [43]. Submissions 1. Mr David Birch, on behalf of the Respondent, argues that given the proposed development involves demolition of the heritage item it will destroy its heritage significance completely. Further, he argues that it will adversely impact on the significance of the nearby heritage items in the Cranbrook Avenue Group (Respondent's written submissions 24 June 2020, p 2). 2. Relying on the evidence of Mr Stapleton and his June 2017 HIA, Mr Birch argues: "This Court should be very reticent to grant a development approval which will permit demolition of a heritage listed item. The Applicant bears a significant onus in such an application. The fact that the site was recently inserted as a local heritage item itself carries significant weight." (Respondent's written submissions 24 June 2020, p 2). 3. In his submissions Mr Birch notes that the previous decisions of the Court involving the demolition of a heritage item have only been approved in circumstances where either the dwelling was damaged or required significant repair (North Western Surveys v Baulkham Hills Shire Council [2005] NSWLEC 666; Regent Street Constructions v Ku-ring-gai Council [2006] NSWLEC 743), or where there was agreement between the heritage experts that the site did not satisfy the threshold for listing as a local heritage (Sandoval Investments v North Sydney Council [2006] NSWLEC 721 at [15]). 4. Mr Birch argues that the decision of the Court in Tova Pty Ltd v Parramatta City Council [2004] NSWLEC 282 at [13]-[14] (Tova v Parramatta) where the Court held that the Applicant "bears an onus to demonstrate that demolition is warranted, and must overcome the weight which must be given to the fact that the item has been listed under the local environmental plan." (Respondent's written submissions 24 June 2020, p 14). 5. Mr Birch notes that in Nader v Strathfield Council [2015] NSWLEC 1370 at [37], the question was framed as whether the heritage item "remains worthy of its local heritage listing". In the current proceedings Mr Birch argues the Court should give significant weight to the recent nature of the listing, and the robust process that supported it. 6. In addition to the statements of Mr Stapleton in the joint report and his oral evidence, Mr Birch draws the Court's attention to Mr Stapleton's further report titled 'Heritage Referral', dated June 2019 that formed part of the Council's assessment of the development application. He notes that in that report Mr Stapleton concluded that: "… the existing local heritage listing of 24 Cranbrook Avenue was warranted on the bases of: (a) the property's historical association with Edwin Roy Orchard; (b) the property's aesthetic significance as a good example of a modest Californian bungalow style; and (c) the property forming part of a group of distinctive and significant early 20th century residences located on Cranbrook Avenue" (Respondent's written submissions 24 June 2020, p 16) 1. Mr Birch argues Mr Stapleton's evidence should be preferred on the basis that his conclusions are detailed, well researched and his reasoning is convincing. Further, he submits that Mr Stapleton was firm in his oral evidence; able to identify and explain the characteristics and details of the dwelling that, in Mr Stapleton's mind, that mark the dwelling is an Edwin Roy Orchard building. Finally, Mr Birch argues his evidence should be preferred on the basis that Mr Stapleton is acknowledged as an authoritative expert in the work of Edwin Roy Orchard. 2. Mr Birch submits that, over the course of the delisting and relisting of the dwelling as a heritage item, the evidence of Mr Oultram as to its significance had been inconsistent. In his written submissions Mr Birch summarises this inconsistency as follows: "11. From about 2008, the Council engaged Mr Oultram (the expert upon whose opinions Modog now relies) to undertake a review of the heritage listings, a review which included 24 Cranbrook Avenue. 12. Mr Oultram's initial position (which he appears to have taken in 2008) was that 24 Cranbrook Avenue remained worthy of retention on the heritage schedule. It appears that Mr Oultram concluded that the property met criteria (a), (c) and (g) of the standard heritage assessment criteria, and had the potential to meet inclusion under criteria (b) and (e). 13. As a consequence, 24 Cranbrook Avenue was not included in a list prepared by Mr Oultram in December 2008 of recommended heritage properties to be removed or downgraded. 14. In response to that conclusion, on 12 February 2009 the then-owner of 24 Cranbrook Avenue provided a submission to the Council that the property's heritage listing be removed. That submission included a report by NBRS Partners disputing the heritage value of the property. Notably, the author of that report was not aware of any connection between the property and Edwin Roy Orchard. Nor did it advert to any heritage value to be gained from the property forming part of the "Cranbrook Avenue Group". 15. Subsequently, Mr Oultram then prepared a response to those submissions. Mr Oultram adhered to his position that the property was worthy of a heritage listing, and explained his reasons for rejecting the landowner's submissions, as follows: … 18. For reasons which are not entirely clear, on 4 August 2009, following a request from the owners, Mr Oultram changed his views and recommended removal of 24 Cranbrook Avenue from the heritage schedule. 19. In the Council's draft LEP as 30 November 2009, 24 Cranbrook Avenue was still listed as a local heritage site. However, in the draft LEPs as at 4 July 20116 and as at 13 February 20137 it was removed from the heritage schedule. It did not appear in the heritage schedule of the final NSLEP published on 2 August 2013." (Respondent's written submissions 7 July 2020, pp 3-4) 1. Finally, Mr Birch submits that the Court should take a conservative approach to its decision making given the permanent nature of the impact to any heritage significance of the item arising from its demolition. 2. Ms Reid's submissions on behalf of the Applicant can be broadly summarised as follows: * On the basis of Mr Oultram's evidence, that the recent listing of the subject site as a heritage item was not well founded. Adopting his evidence, the Court would conclude that the place does not meet the threshold for listing under any of the criterion identified in the NSW Heritage Manual. * That the consideration detailed at cl 5.10(4) of LEP 2013 is a mandatory precondition to consent but does not prohibit demolition of a heritage item. * In the application of cl 5.10(4) of LEP 2013 each case must be considered on its merits. The decisions relied on by Mr Birch (Nader v Strathfield Council [2015] NSWLEC 1370 and Tova v Parramatta) do not establish a legal principle to be applied. * The history of the circumstances of the listing is a relevant matter in the proceedings. Ms Reid submits that the process by which it was undertaken occurred in a 'politically charged environment' (Applicant's written submissions, 9 July 2020, p 5). * That the Court has the benefit of the HIA prepared by Mr Lonergan, heritage architect, as part of the development application (HIA Lonergan 2019) which conclude that the place does not meet the threshold for listing under any of the criterion identified in the NSW Heritage Manual. Further, she argues that the HIA Lonergan 2019 "undertakes a detailed assessment and critique of Mr Stapleton's earlier assessments." (Applicant's written submissions, 9 July 2020, p 8). Ms Reid submits that these criticisms have not been addressed by Mr Stapleton's evidence. * That the subject site is not listed in Schedule 5 of LEP 2013 as part of a group. This is not part of the significance of the place as a local heritage item. * That the Court would accept the evidence of Mr Oultram, and detailed in the HIA Lonergan 2019, that whilst the design may have originated from Mr Orchard's office it as not his design as: "(a) It was not in the more original style that he generally expounded; (b) The proposal was generally a pattern type development that was common at the time, and there are better examples; (c) There is no detail of what was originally intended other than a footprint plan; (d) There is no evidence that the builder built the dwelling with finishes designed or directed by Mr Orchard; (e) The original design was for a 'pair' of dwellings. The other side of the pair has been demolished; (f) The dwelling is not intact due to the demolition of the pair and the substantial alterations to the dwelling, including a major renovation in the period when Council delisted the item." (Applicant's written submissions, 9 July 2020, p 10) 1. Finally, Ms Reid concludes that, based on the detailed analysis contained in the HIA Oultram 2019 and the HIA Lonergan 2019, the existing dwelling does not reach the threshold of local significance and that demolition should not be opposed on heritage grounds. The impact on the heritage significance warrants refusal of demolition 1. 24 Cranbrook Avenue, Cremorne has been the subject of a number of assessments of heritage significance. These assessments occur broadly in two clusters of time: 2008-2010 and then in 2017 through to the present. The authors of those assessments differ in the conclusions which they reach of the dwelling significance against the criterion detailed in the NSW Heritage Manual. 2. Excluding the documentation prepared in support of the current development application and the joint expert report of Mr Stapleton and Mr Oultram, all of those assessments were firstly before North Sydney Council in its consideration to submit a planning proposal to the (then) Department of Planning and Environment (the Department) to seek to list the subject site as a local heritage item, and secondly before the Department and the Greater Sydney Commission in determining to make the amendment to LEP 2013 to list the subject site. I note that this process included public exhibition of the proposed amendment to LEP 2013. In determining the appropriate resolution to the dispute between the parties I am satisfied it is appropriate to give significant weight to the fact of the subject site's heritage listing in LEP 2013. This conclusion is supported by the comparative recentness of the listing (2018) and the fact that it was subject to public exhibition and, in my view, a robust process. I accept Mr Birch's submission that the fact that the site was recently inserted as a local heritage item itself carries significant weight. 3. Pursuant to cl. 5.10(4) of LEP 2013 I am required to consider the impact of the proposed works on the significance of the item. Applying the conclusions of Mr Stapleton on the effect of the proposed development on the heritage significance of the item to that test, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. My reasoning is as follows: 1. The proposed demolition of the heritage item would be contrary to the objectives of the heritage conservation clause, at subcll 5.10(1)(a) and (b) of LEP 2013, to conserve the environmental heritage of North Sydney and the heritage significance of heritage items. 2. Following a review of the evidence, I am not persuaded to accept the Applicant's argument that the subject property does not meet criterion (a): An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area, for listing at a local level. I accept the evidence of the June 2017 HIA that the significance arises from the site forming part of the 1917 subdivision of the Cremorne Heights Estate and that this association remains evident in the period style of the house as well as the site boundaries. I am not persuaded by the evidence of Mr Oultram that this significance is displaced. For example, Mr Oultram provides no evidence to support the assertion that such subdivision was 'common' at the time or prevalent in the local area. 3. Further, I disagree with the assertion in the HIA Lonergan 2019 that the significance of the item under criterion (a) is affected by the prominence of the later residential towers and its singularity. I prefer and accept the evidence of the June 2017 HIA that the property meets the threshold of significance under criterion (a) for local listing. The proposed development (demolition of the dwelling) would not extinguish this significance, as the lot boundaries would remain, however I find that the loss of the association of those historic lot boundaries with the dwelling would be a significant detrimental impact on the heritage significance arising from its association with the history of the local area. 4. I note that according to the NSW Heritage Manual, only one of the above criteria needs to be satisfied for an item to have local heritage significance. I find that the property meets the threshold of significance under criterion (a) for local listing. 5. In addition to the findings in relation to criterion (a) above, I am satisfied that on balance there is sufficient evidence to conclude that the subject property satisfies criterion (b): "An item has a strong or special association with the life or works of a person, or group of persons, of importance to NSW's cultural or natural history (or the cultural or natural history of the local area)". I accept and prefer Mr Stapleton's evidence, summarised at [42], and the conclusions of the June 2017 HIA that the dwelling is a work of Edwin Roy Orchard. When Mr Oultram's evidence is read as a whole, in particular his statements in the Joint report, for example: "The association with Edwin Roy Orchard (1891-1963) is not disputed and its accepted he is an architect of note'" (Exhibit 5), I am satisfied he accepts that on the dwelling is a work of Edwin Roy Orchard. I am not persuaded by the argument that this association is diminished on the grounds that: it is not in his more notable Arts & Crafts style, the dwelling is modest in scale, or that it was not procured by an individual client but rather by a builder. Further, I am not persuaded that the alterations that have occurred reduce its significance to a point that diminishes its value under this criterion. I find that the property meets the threshold of significance under criterion (b) for local listing. 1. The proposed development (demolition of the dwelling) would extinguish the ability to appreciate the heritage significance of the item that arises from its association with Edwin Roy Orchard. This would be an irreversible and significant impact. Whilst the impact may be offset by some degree by the documentation and production of a visual recording of the dwelling, its detailing and construction approach, in my assessment this is not capable of offsetting the loss of the experience of the building in the streetscape and as a series of spaces and rooms contained within the building's envelope. I am satisfied that the proposed demolition would have a significant and detrimental impact on the heritage significance arising from its historical association with Edwin Roy Orchard. 2. For completeness I am also persuaded that the property meets the threshold for listing under criterion (c): "An item is important in demonstrating aesthetic characteristics and/or a high degree of creativity or technical achievement in NSW (or in a local area)". I accept and prefer Mr Stapleton's evidence in this regard. I find that the property is a good example of a modest Californian bungalow which, as detailed in the June 2017 HIA, has a number of aesthetic and technical characteristics which warrant its listing. I am less persuaded by Mr Oultram's assessment of the property's aesthetic significance and the apparent inconsistency of his conclusions in relation to the aesthetic significance over the duration of his involvement. I find that it is appropriate to retain a diversity of modest and grand houses that are representative of a period. 3. The proposed development (demolition of the item) would self-evidently eliminate aesthetic characteristics, creative and technical skill that underpin the heritage significance of the property. I am satisfied that the proposed demolition would have a significant and detrimental impact on the heritage significance arising from this criterion. 4. Given the preceding, I am satisfied that 24 Cranbrook Avenue maintains significance as a local heritage item, and it is unnecessary to make findings in relation to the remaining criterion. 1. Clause 5.10(4) of LEP 2013 requires that the Court "must, before granting consent under this clause in respect of a heritage item…, consider the effect of the proposed development on the heritage significance of the item …". The heritage experts agree that "the proposed demolition of the dwelling and associated structures would extinguish the property's significance as a surviving single-storey Californian Bungalow built in the 1920s designed by notable architect Edwin Roy Orchard." (Exhibit 5). I accept their agreement. The demolition of the dwelling would have a significant, irreversible, detrimental impact on the heritage significance of the item. I accept Mr Birch's submission at [53] that it is appropriate to take a conservative approach to its decision making given the permanent nature of the impact to any heritage significance of the item arising from its demolition. 2. Considering that detrimental heritage impact in the assessment of the development application, along with the other matters for consideration under s 4.15(1) of the EPA Act, I am satisfied that the impact is such that it warrants refusal of the application. 3. As I have found that the existing building should not be demolished, it is not necessary to address the new dwelling proposed in the application. Orders: 1. The orders of the Court are: 1. The appeal is dismissed. 2. That development application DA175/19 for the demolition of the existing dwelling and construction of a new dwelling, carport and landscaping at 24 Cranbrook Avenue, Cremorne is refused. 3. The exhibits are returned with the exception of Exhibits A, B and 3. ……………………………….. D M Dickson Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2020