Land and Environment Court New South Wales Medium Neutral Citation: Belle Living Pty Ltd v Randwick City Council [2024] NSWLEC 1364 Hearing dates: 22 and 23 February 2024 and 18 March 2024 Date of orders: 03 July 2024 Decision date: 03 July 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application No. 432/2022 for the demolition of the existing dwelling, Torrens title subdivision into two allotments and construction of two semi-detached dwellings at 3 Berwick Street, Coogee is determined by refusal of consent. (3) The exhibits are returned except for A, B and 11. Catchwords: DEVELOPMENT APPLICATION – Demolition of a heritage item – semi detached dwellings – heritage significance Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Act 1979, s 39 Randwick Local Environmental Plan 2012, cl 5.10, Sch 5 Cases Cited: Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 199 LGERA 147;[2023] NSWLEC 147 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v North Sydney Council [2023] NSWLEC 1207 Texts Cited: NSW Heritage Assessing Heritage Significance Guidelines 2001 NSW Heritage Assessing Heritage Significance Guidelines 2023 Randwick Development Control Plan 2023 The Burra Charter: The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 2013 Category: Principal judgment Parties: Belle Living Pty Ltd (First Applicant) Environa Studio Pty Limited (Second Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr M Wright SC (Applicants) Mr J Lazarus SC with Mr M Harker (Respondent) Solicitors: Boskovitz Lawyers (Applicants) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/192844 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application number DA432/2022 for demolition of the existing dwelling, Torrens title subdivision into two allotments and construction of two semi-detached dwellings (DA) at 3 Berwick Street, Coogee (site). 2. Relevantly, during the life of the DA the site was subject to a planning proposal to list the building as a local heritage item in the Randwick Local Environmental Plan 2012 (RLEP). The planning proposal was gazetted on 8 December 2023 without a savings provision. Amended Issues and DA 1. At the commencement of the hearing, the parties foreshadowed that leave would be sought to amend the DA (Ex B) and Statement of Facts and Contentions (ASOFAC) (Ex 11). As a consequence, Belle Living requested an adjournment, with the consent of Council, as the ASOFAC raised new issues in relation to controls in the Randwick Development Control Plan 2023 (RDCP) relevant to the demolition of a heritage item. The Court initially did not grant the adjournment on the basis that the foreshadowed amended contentions were in relation to a proposed heritage item, the parties' and their heritage experts were aware of the gazettal and should have been aware of the impacts of the listing. 2. Unopposed by Council, Belle Living sought and was granted leave to amend the DA pursuant to s 39 of the Land and Environment Court Act 1979. These amendments, primarily responsive to the agreements reached by the experts in the joint reports, included a reduction in overall height, retention of the front fence, internal modifications with subsequent reduction in the building envelope, changes to materials, increased landscaped areas, reduced excavation and cut and fill, reduction in gross floor area, an increase in private open space areas and incorporation of heritage design elements. The amended DA also contained amended reports. 3. Council requested leave to amend the ASOFAC. Belle Living objected to part of the ASOFAC, contention 4 particulars (i) and (ii) in relation to controls in the Randwick Development Control Plan 2023 (RDCP) regarding demolition of a heritage item. The basis of the objection was the lateness of the notice on the day of the hearing, the prejudice to the Applicant and that the Applicant can only respond to the contentions shaped by Council. The objection was not allowed for the same reasons as the adjournment was not allowed and that the central issue of demolition of a heritage item had not changed. 4. Leave was granted for Council's ASOFAC. The amendments generally reflected the issues resolved through the joint expert reporting and an amended demolition contention to reflect the now gazetted heritage item and relevant demolition planning controls. The contentions are: 1. Heritage – Demolition of 3 Berwick Street 2. Heritage – Impacts on heritage items in the vicinity of the site (1 and 5 Berwick Street and 21 Carr Street) 1. Council no longer pressed contentions in relation to building and wall height, earthworks, excavation, floor space ratio, setbacks, building design, streetscape, amenity, parking and garage, landscaping, public domain interface and character, lot frontage and insufficient information. 2. On day two of the hearing, the parties jointly sought to adjourn the proceedings to deal with the issues, produce further evidence to address the RDCP contention and allow sufficient time for the proceedings. Ultimately, the Court granted the parties' joint request to adjourn and also granted leave for further evidence to address the RDCP provisions for heritage and demolition. Site Description 1. 3 Berwick Street, Coogee is legally described as Lot B in DP 313214. With frontage to Berwick Street, the site is irregular in shape. Set out in the ASOFAC, the frontage is 15.24m, rear boundary is 12.35m, western side boundary is 34.27m and eastern side boundary is 25.35m. The site area is 368m2 and has a topography that generally slopes to the street. 2. The site is zoned R3 Medium Density Residential in accordance with the RLEP. The site and directly adjoining properties are locally listed heritage items. There are heritage items in the vicinity of the site. The site is not located within a heritage conservation area. 3. Development within the area is mixed and contains dwellings, dual occupancies, and residential flat buildings. Background 1. The site has an extensive background that formed the basis of evidence and submissions in the subject appeal. I have summarised the primary background events below. 2. As part of the comprehensive LEP review process, Randwick City Council (Council) conducted a review of heritage items and heritage conservation areas (HCA) across the local government area for inclusion or otherwise in the comprehensive RLEP (LGA planning proposal). This process involved a review of existing heritage items and HCAs as well as nominations from the community (281 nominations were received). 3. Council engaged Extent Heritage consultants to provide heritage assessments for existing and potential new heritage listings for the LGA planning proposal, who prepared the Randwick Heritage Study dated March 2021 (2021 Heritage Study) (Ex C, Vol 2). This was ultimately considered by Council in progressing the LGA planning proposal. As part of the report, a previous DA that included this site and adjoining site 5 Berwick Street were referenced, including an Interim Heritage Order (IHO) for 5 Berwick Street (an IHO for 3 Berwick Street was not made at that time). 4. The report stated that Extent Heritage had reviewed the previous DA for 3 and 5 Berwick Street. The advice provided to Council stated that 5 Berwick met two of the heritage criterions for listing and that Extent Heritage did not recommend the site for heritage listing. Page 209 of the 2021 Extent Study states in relation to 3 Berwick Street: "Modified Inter-War Bungalow. Loss of significant fabric to interior and exterior (e.g. removal of timber trim elements, verandah enclosure) which has affected its integrity and significance. 3 Berwick Street is not recommended for listing." 1. 3 Berwick Street was not recommended for listing. The LGA planning proposal progressed to gateway. As part of the exhibition process, a submission was received from 1 Berwick Street seeking its own heritage listing. The submission was reviewed by City Plan Heritage who considered merit in listing 1 Berwick Street. The 30 August 2022 report to Council recommended a separate future planning proposal for the heritage listing of 1 Berwick Street. 2. On 30 August 2022, the DA was lodged with Council. At the date of lodgement, the site was not a listed heritage item or proposed to be a listed heritage item through the LGA planning proposal or any other means. 3. At the 27 September 2022 Council meeting, a notice of motion was moved as part of 'urgent business' in relation to the site. Council resolved to undertake a preliminary heritage assessment of 3 Berwick Street, noted that 1, 3 and 5 Berwick Street formed a cluster of inter-war buildings and to place an IHO on 3 Berwick Street (should the preliminary heritage assessment suggest local heritage significance). 4. On 13 October 2022, City Plan Heritage provided a heritage assessment and found that 3 Berwick Street met the criteria for local significance for criterion (a), (b), (c), (f) and (g) of the NSW Heritage Assessing Heritage Significance Guidelines 2001 (2001 Guidelines). 5. On 14 October 2022, an IHO was made over the site to list as a heritage item of local significance under Sch 5 of the RLEP. 6. On 24 November 2022, the Randwick Local Planning Panel considered a report (2022 LPP report) and provided advice to progress a planning proposal to list the site and 1 Berwick Street as local heritage items (planning proposal). The planning proposal relied on the Heritage Assessment and Advice prepared by City Plan Heritage dated 13 October 2022 (City Plan Study). 7. As part of the 2022 LPP report and other reports to Council about the planning proposal, reference was made to a Complying Development Certificate for demolition that was said to be received by a neighbour on or around 13 October 2022 (Ex 1 folios 584-585). An objection in Ex 1 makes reference to a neighbour receiving a notice about an application for demolition in this same period. 8. On 13 December 2022, Council resolved to forward the planning proposal to the Department of Planning and Environment for a gateway determination and if received, exhibit the planning proposal. 9. On 2 March 2023, the Department of Planning and Environment issued a gateway determination subject to conditions. The gateway determination also delegated plan making authority to Council. 10. The planning proposal was exhibited between 17 April 2023 to 12 May 2023. 11. On 11 May 2023, the Randwick Local Planning Panel refused the DA. 12. On 7 June 2023, the IHO was revoked by the Court. 13. On 7 June 2023, Complying Development Certificate CCDC-3BER/2022 was issued for demolition works (2023 CDC). 14. On 13 June 2023, Council commenced Class 4 proceedings to invalidate the 2023 CDC and restrain demolition works on the site as the site contained a draft heritage item. Belle Living filed a cross-summons that the 2023 CDC was validly issued as the site did not contain a draft heritage item. Belle Living also sought a declaration that Council had not complied with the conditions of the gateway determination and sought an injunction from further progress of the planning proposal until the conditions had been met. 15. On 16 June 2023, the subject Class 1 appeal was filed by Belle Living. 16. On 4 October 2023, in relation to the Class 4 proceedings, the Court found that the site did contain a draft heritage item, ordered that the 2023 CDC was invalid and dismissed the cross-summons in relation to the gateway determination. 17. On 24 October 2023, Council, as the plan making authority, resolved to finalise the draft planning proposal and make the draft LEP. 18. On 8 December 2023, the planning proposal was gazetted and the building on the site became a locally listed item in Sch 5 of the RLEP. Objectors 1. The DA was first publicly notified for 14 days, ending on 10 October 2022. 22 submissions were received. An amended DA was publicly notified from 6 February 2024 to 20 February 2024. The submissions received from these notifications were tendered (Ex 1, Vol 2 and Ex 3). 2. At the commencement of the proceedings, the Court met on site with the parties and heard oral submissions from objectors. 3. The written and oral concerns raised are summarised as follows: * Heritage grounds, including: * Support to protect the building's heritage * Group heritage significance * The three heritage items are landmarks in Coogee in a highly visible location * Owner should have been aware of the heritage listing * History as the first dental surgery in Coogee * Detailed submissions and research on the heritage significance of the building, its values and links to Coogee, architectural characteristics of the bungalow, and significance of the use and former occupants * Impacts on adjoining properties including visual bulk, solar access, privacy and views (outlook and sea views) * New dwellings being incompatible with the character of the area (height, landscaping, tree removal, lot size/subdivision, building envelope) * Traffic and loss of parking * Extent of excavation, property damage and services * Overdevelopment of the area * Inadequate notification * Commentary on State Government proposals and affordable housing * Compliance actions unrelated to the site The onsite view 1. The first day of the hearing commenced on site. After hearing from the objectors described at [36], the Court's attention was drawn to the heritage item, internal viewing of the building, views of the surrounding heritage buildings and a streetscape observation. Evidence 1. In accordance with its usual practice, the Court directed experts in heritage, town planning and urban design to confer in relation to the relevant contentions prior to the commencement of the proceedings. 2. Expert evidence for the planning and urban design issues was submitted in joint expert reports by Ms Amy Sutherland (planning) and Mr Rohan Dickson (urban design) for the Applicant and Ms Ros Read (planning) for the Respondent. 3. Expert evidence for the heritage issues was submitted in joint expert reports by Mr Stephen Davies for the Applicant and Ms Kerime Danis for the Respondent. 4. Leave was also granted for Mr Tone Wheeler for individual architectural evidence for the Applicant. 5. Both parties agreed to rely on and tendered the transcript from the IHO hearing. In particular, the oral evidence given in relation to the heritage significance of the now heritage item. At the Court's request, the parties specified which parts of the IHO transcript were relevant. The heritage joint expert report was also tendered as evidence (IHO JER). Issues Demolition of a heritage item 1. In essence, the parties agree that there are no remaining issues about the merits of the proposed new semi-detached dwellings, as amended, consistent with the agreement of the experts. 2. The remaining issue in dispute is the demolition of a heritage item and impacts to nearby heritage items. 3. The heritage item is locally listed in Sch 5 of the RLEP. The parties agree that the key RLEP provision is cl 5.10 heritage conservation, which states: 5.10 Heritage conservation Note— Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Randwick, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following— (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)— (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land— (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land— (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. (3) When consent not required However, development consent under this clause is not required if— (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development— (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or (b) the development is in a cemetery or burial ground and the proposed development— (i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and (ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or (c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or (d) the development is exempt development. (4) Effect of proposed development on heritage significance 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 subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development— (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. … 1. The relevant provisions in relation to demolition of a heritage item in the RDCP are contained at Chapter B2 Heritage as follows: "1.1. Objectives • To clarify the consent requirements for the conservation of Aboriginal objects, Aboriginal places of heritage significance and archaeological sites • To provide detailed guidelines for change to heritage items and properties within heritage conservation areas, which will allow their heritage significance to be retained. 1.2. Heritage places in Randwick City This DCP section applies to the following types of heritage sites and places within Randwick City: • Aboriginal objects and places of heritage significance • Archaeological sites • Landscape elements • Heritage items • Heritage conservation areas The requirements, objectives and controls in this section apply in addition to the heritage conservation requirements of RLEP Clause 5.10 and development requirements of other relevant parts of this DCP. Heritage items, heritage conservation areas, some archaeological sites and significant landscape elements are listed in Schedule 5 of the RLEP. 1.4. Burra Charter Development affecting a heritage item or property within a heritage conservation area is assessed having regard to the principles and practices contained in the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter). The Charter is widely adopted as the standard guidelines for heritage conservation in Australia and sets out a standard of practice for those who provide advice, make decisions about or undertake works to places of cultural significance, including owners, managers and custodians. … 1.8.2. Development requiring consent A DA is required for the carrying out of development which relates to a heritage item, development in a heritage conservation area, Aboriginal place of heritage significance or archaeological site (unless it falls into the minor development categories outlined in section 5.1). RLEP Clause 5.10 (2) identifies those instances where development consent is required. Buildings within a heritage conservation area fall into one of two categories: • Contributory buildings − Contributory buildings provide good evidence of the main development period(s) and make a positive contribution to the character and/or heritage significance of heritage conservation areas. They have a collective significance and their retention is essential if the character of the area is to be maintained. • Non-contributory buildings − Non-contributory buildings display qualities which do not add to the character of the heritage conservation area. They are not to be considered as a precedent for new work when assessing the merit of an application. Non-contributory buildings may be demolished and replaced by new development sympathetic to the character of the heritage conservation area (see section 7 Infill Buildings). 1.9. Demolition Demolition of a heritage item or contributory building in a heritage conservation area is generally not supported, unless there are overriding reasons such as structural damage. The demolition of a non-contributory building and replacement by an appropriately designed infill building is generally supported. In assessing a DA for the demolition of a heritage item or a contributory building, Council will consider: • The heritage significance of the item or building • The structural condition • Comparative analysis of all options; and • The contribution the item or building makes to the streetscape. Council may require the submission of a report by a structural engineer with heritage experience to determine whether the building is, or is not, structurally capable of reasonable and economic use. Where demolition of a heritage item or a contributory building within a heritage conservation area is approved it will generally be conditional upon the submission of a photographic archival recording using either film or digital capture to provide a stable and long term record. A photographic plan sheet of the building should be used to show the location and direction of all photographs and the sequence in which they were taken. The Heritage Branch guidelines include requirements for cameras, film and digital image storage. Applications for demolition of a heritage item or buildings in a heritage conservation area are required to provide details on the replacement development. 1.10. Infill buildings A new building within a heritage conservation area, referred to as an infill building, must respect and be sensitive to its neighbours, and should be in keeping with the street's established setbacks, scale, form and materials. In accordance with the Burra Charter principles, an infill building should however be clearly seen as a new building and not attempt to replicate original buildings or copy traditional detailing. 1.11. Adaptive reuse Council supports the continuation of the original use of a building as it achieves the retention of the original floorplan and decorative features and enhances its heritage significance. However due to changes in technology and market/social trends, adaptive reuse of a heritage item may be acceptable on heritage grounds, provided the use is compatible and the heritage significance of the item is not adversely affected. The Burra Charter includes a definition for compatible use as follows: • "Compatible use means a use which involves no change to the culturally significant fabric, changes which are substantially reversible, or changes which require a minimal impact." 1.12. Development in the vicinity of heritage items and Heritage Conservation Areas All new development adjacent to or in the vicinity of a heritage item or heritage conservation area needs to be considered for its likely effect on heritage significance and setting. Applicants should address in their Statement of Environmental Effects any potential impacts of the development on a heritage item or heritage conservation area and measures to minimise this impact, with reference to Part 12 of this section of the DCP and the relevant statement of heritage significance. …" The heritage assessment criteria 1. The starting point for this issue is cl 5.10 heritage conservation of the RLEP. It was agreed between the parties that cl 5.10 contemplates and allows for demolition of a heritage item (cl 5.10(a)). Clause 5.10(4) requires the consent authority, or the Court on appeal, to "…consider the effect of the proposed development on the significance of the item or area concerned". 2. The objectives of cl 5.10 seek to conserve the heritage significance of heritage items and heritage conservation areas, which includes fabric, settings and views. 3. To consider the impacts from the proposed development on the locally listed heritage item, the heritage significance of the heritage item needs to firstly be understood. 4. Both experts relied on the criteria in the 2001 Guidelines. What ultimately became apparent during the hearing, was that the 2001 Guidelines had been replaced by the Assessing Heritage Significance Guidelines 2023 published by the NSW Department of Planning and Environment (2023 Guidelines). 5. The criteria from the 2023 Guidelines are as follows: "Criterion (a) Historic significance 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). Criterion (b) Historical association An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (c) Aesthetic/creative/technical achievement An item is important in demonstrating aesthetic characteristics and/ or a high degree of creative or technical achievement in NSW (or the local area). Criterion (d) Social, cultural, and spiritual An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural, or spiritual reasons. Criterion (e) Research potential 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). Criterion (f) Rare 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). Criterion (g) Representative An item is important in demonstrating the principal characteristics of a class of NSW's cultural or natural places; or cultural or natural environments (or a class of the local area's cultural or natural places; or cultural or natural environments)." What is the significance of the Item? 1. The parties agree that the planning proposal was gazetted in December 2023, without a savings provision. The site is now listed as local heritage item I538 (Item) for an inter-war bungalow in Sch 5 of the RLEP. 2. The Statement of Significance (Ex 1) contained within the Heritage Data Form, attached to the planning proposal, states as follows: "3 Berwick Street, Coogee, is of local heritage significance as evidence of the re-subdivision of large landholdings and subsequent suburban development of Randwick in the first half of the twentieth century and following the construction of a tram line. The house is a highly intact example of an Inter-war bungalow within the area featuring face brick walls, a prominent gable with half-timber detailing supported on brick and sandstone columns, a recessed verandah and entrance, and single hung timber windows with venetian glass. It was constructed for Victor Emmanuel Pugliese of Ulan (Dentist) in 1924, the first registered Dentist in the village of Coogee. The house remained in the ownership of Victor's family until 1949, soon after Victor's death in April 1948. The residence is representative of Coogee's first purpose-built registered surgery from 1924 with dental surgery and residence, which has been continuously used most of its 96 years of history. The Inter-war bungalows with intact architectural characteristics of the style are now unusual and seldom found in the area and are now "rare" items in Coogee. The house is a highly intact example of an Inter-War bungalow, including examples of interior fixtures and finishes dating from its construction in c1924." 1. Within the same Heritage Data Form, an assessment of the heritage significance of the (then proposed) heritage item was undertaken against the 2001 Guidelines. This was also a requirement of the gateway determination. There have been no further changes and this has been relied on for the hearing. The heritage significance assessment is reproduced below: Historical significance SHR criteria (a) The house demonstrates the suburbanisation of Coogee following the subdivision of the nineteenth century estates in the area and the period of prosperity in the Municipality of Randwick following World War 1. 3 Berwick Street also represents Coogee's first purpose-built registered dental surgery from the 1920s with dental surgery and residence that have operated continually as a dental practice for the last 96 years and still functioning as one. Historical association significance SHR criteria (b) 3 Berwick Street was constructed for Victor Emmanuel Pugliese of Ulan (Dentist) in 1924, the first registered Dentist in the village of Coogee. The house remained in the ownership of Victor's family until 1949, soon after Victor's death in April 1948. Aesthetic significance SHR criteria (c) 3 Berwick Street is a good example of an Inter-War bungalow in Randwick. The house exterior includes face brick and sandstone walls, a prominent gable with half-timber detailing supported on brick and sandstone columns, a recessed verandah and entrance, and single hung timber windows with Venetian glass. Social significance SHR criteria (d) The social significance of the site cannot be ascertained without undertaking community consultation. Notwithstanding, as an example of urban expansion during the Inter-War period, the site has some potential to provide a further sense of place and belonging to the local community. In addition, its long history of dentistry occupation for most of its 96 years history may have importance to the local community. Technical/Research significance SHR criteria (e) The residence contains examples of early twentieth century domestic brick and sandstone construction details. Rarity SHR criteria (f) The house is a highly intact example of an Inter-War bungalow, including examples of interior fixtures and finishes dating from its construction in c1924. The Inter-War bungalows are now unusual and seldom found in the area and are now "rare" items in Coogee. Representativeness SHR criteria (g) 3 Berwick Street is representative of the Inter-war suburban residential development constructed in Randwick in the first half of the twentieth century. The residence is also representative of Coogee's first purpose-built registered dental surgery from 1924. Integrity The exterior of the building is highly intact, exhibiting building materials and details (including a prominent gable with timber detailing, brick and stone columns in front facing verandah, rockface sandstone cladding, and single hung timber windows with Venetian glass) dating from its initial construction in 1924. 1. The heritage experts were generally in disagreement about the heritage significance of the heritage item for every criterion. The previous heritage studies 1. In evidence, are a number of heritage studies undertaken on behalf of either the Council or Belle Living. The historical Randwick Heritage Studies of 1986 prepared by Lester Firth Associates Pty Ltd (1986 Heritage Study) and Randwick Heritage Study Specialist Report Architecture and Townscape prepared by Perumal Murphy Pty Ltd 1989 (1989 Heritage Study) (Ex C, Vol 1, Tabs 3 and 4) were tendered. 2. Heritage studies that were submitted as either not supporting the listing or found inadequate heritage significance to meet the requisite thresholds included: * Independent Peer Review of HIS prepared by Extent Heritage dated October 2020; * Heritage Study prepared by Extent Heritage dated March 2021; * Weir Philipps Heritage Peer Review dated 9 March 2023 (Weir Philipps Peer Review); and * Peer Review prepared by Heritage 21 dated 10 March 2023 (Rappaport Peer Review). 1. Heritage studies that supported the listing included: * Heritage Assessment and Advice prepared by City Plan dated 13 October 2022 1. The amended DA was also supported by a Heritage Impact Assessment prepared by Urbis, which has been amended throughout the proceedings. The final iteration is the Heritage Impact Statement prepared by Urbis Dated 22 February 2024 (2024 HIS). The Class 1 application was also accompanied by a Statement of Heritage Impact prepared by Graham Hall dated August 2022, which focused on the nearby heritage items and relied on the previous assessment's that the site not a proposed or listed heritage item (Ex A). Agreed Evidence 1. The heritage experts agreed that Mr Pugliese was not the first dentist in Coogee, that there were no plans of the original 1924 building and that the residence was likely initially accessed from the front entry way and internally along the western elevation. It was agreed that the site was not further subdivided after 1924. The experts gave evidence that it was common for practitioners to practice from residential buildings. 2. Both experts generally agreed with the extent of existing and changed material shown in Ex 6. The experts agreed in oral evidence that there was likely an internal side entrance to the west. The disagreement about the initial construction of the building remained, particularly in relation to the purpose built nature as a dentist surgery-residence and extent of internal alterations. 3. Criterion (e) technical/research significance was not considered to be met for either the 2001 or 2023 Guidelines. 4. There was no dispute that the heritage item was structurally sound. It was agreed that the proposed semi-detached dwellings would be acceptable should demolition be supported. Council's Evidence 1. The Heritage Data Forms state that they were completed by City Plan Heritage and inspected by Ms Danis (Ex 1 folio 515). Ms Danis considered that the heritage item still met those criteria and now met the threshold for criteria (d) social significance. The impacts to the streetscape and adjoining heritage items from demolition include a loss of the collective three inter-war buildings in a visually prominent location and loss of a sense of place and its links to Coogee's past in this pocket. 2. Ms Danis in oral evidence agreed that the plans before the Court (Ex 6) had been derived from the 1975 alterations and additions approval, and that the plans for the 1924 and 1949 approvals were not available. 3. Ms Danis agreed that Mr Pugliese could not be important to current residents as he passed in 1948. It was agreed that he was not a prominent local figure, except for operating as a dentist for a long period of time. 4. As stated in the 2023 Guidelines, Ms Danis argued that a place should not be excluded on the basis that other similar heritage items had already been listed. 5. Responding to Chapter B2, Section 1.9 of the RDCP and the comparative analysis of all options, Ms Danis considered that three of the four options could be implemented and would be in line with the International Council on Monuments and Sites (ICOMOS) Burra Charter principles, subject to further detailed design changes. Modifications to the heritage item that did not diminish the existing layout were possible and could come closer to current living standards of amenity. The options for two dwellings would be able to accommodate an additional uncovered car space to the west. The commercial option was not supported given the extent of changes likely required to provide accessible egress. Ms Danis considered that the level of amenity could be commensurate with other heritage buildings and that the residential options would be almost half the cost of a new dwelling. 6. Ms Danis provided further evidence in relation to the heritage significance assessment she undertook in the Heritage Data Form for the planning proposal. In relation to the 2001 Guidelines, Ms Danis' evidence is summarised below: 1. Criterion (a) historical significance: 3 Berwick Street is physical evidence of a key historical period of Coogee from a holiday/weekend destination to a residential area. The building was the first purpose built dental surgery that has remained in use for nearly 99 years. The subdivision from 1922 remains unchanged. Internal changes for operational requirements have not changed its significance. 2. Criterion (b) historical association significance: further to the Heritage Data Form, the building has been utilised as a dental surgery for over 90 years which is evidence of a significant activity in Coogee's cultural and natural history and provided a sense of place to the community. 3. Criterion (c) aesthetic significance: further to the Heritage Data Form, despite the alterations the inter-war bungalow displays aesthetic and key characteristics such as inter-war roof gables, sandstone walls and base, front fence and internal elements including the fireplace. The infill of the front verandah is able to removed and the garage modification does not detract. 4. Criterion (d) social significance: this criterion was agreed to not be met, though Ms Danis said that further consultation and investigation was required. This is discussed further below under the 2023 Guidelines. 5. Criterion (f) rarity: further to the Heritage Data Form, there are few free standing bungalow dwellings in Coogee, which is dominated by inter-war period residential flat buildings. The RLEP only lists 5 inter-war bungalows, some of which are slightly different types. The comprehensive LEP review identified only 11 inter-war bungalows across the Randwick LGA, with seven that are similar to the site. 6. Criterion (g) representativeness: further to the Heritage Data Form, Ms Danis argued that the heritage item is a similar or equally good example of inter-war bungalow that is both intact and identifiable as an inter-war building. The building and 5 Berwick Street make a significant contribution to the Mount and Carr Street intersection. 1. In relation to the 2023 Guidelines, Ms Danis gave the below evidence: 1. Set out in Ex 12, Tab C and elaborated throughout Ex 12 and oral evidence, the stated heritage significance for criterions (a), (b), (c), (f), (g) remained substantially similar as the assessment in the Heritage Data Form which considered the 2001 Guidelines. Ms Danis identified the significance criteria and local significance thresholds that she considered had been met. The following criterions were elaborated on, and criterion (d) has now been included. 2. Criterion (a) historical significance: provided further detail, where Ms Danis said that the local threshold of 'demonstrates an important period or phase in the history of local area' was met as the heritage item demonstrates '…evidence of the key inter-war period development boom that shaped Coogee from holiday/weekend destination into a residential suburb'. 3. Criterion (c) aesthetic significance: included additional details, where Ms Danis argued that the heritage item contributed strongly to the setting of the adjoining inter-war heritage items and the Carr Street and Mount Street intersection catchment. 4. Criterion (d) social significance: Ms Danis said that this criterion was now met. The communities' submissions show the heritage item is valued and important to them. This has enabled the site to meet the threshold indicator for social significance. The heritage item met significance indictor 'highly regarded by a community as a key landmark … within the physical environment' and met the local threshold as 'a landmark that is visually prominent and possesses picturesque attributes or aesthetic qualities acknowledged by the local community'. 5. In cross examination, Ms Danis gave evidence that in order to satisfy criterion (d) her definition of the local community in these circumstances included Berwick Street and the confines of the subject site and adjoining neighbours. Further, Ms Danis agreed in cross examination that she considered that submissions of adjoining neighbours received during the process of a development application might be sufficient to satisfy criterion (d). Council's submissions 1. Council's position is that cl 5.10(4) of the RLEP presumes that there is heritage significance through the expression of 'the heritage significance of the item' and construed in the context of the clauses' objectives. Demolition of a heritage item does not promote the objectives of the clause. 2. Mr Lazarus submits that the Applicant has failed to engage with the fact that the dwelling has heritage significance, by reason of its listing. The RDCP requires this to occur through a comparative analysis of options based on conservation principles in the Burra Charter, a heritage scope of works and costings. The comparative analysis had not been undertaken until the hearing and incorrectly relies on assumptions that alterations to a heritage item should meet modern standards. 3. Mr Lazarus submits that the 2023 Guidelines no longer make any reference to determining heritage significance within the context of the local government area. The focus is on 'local significance' within an undefined local area and views of the local community. Council's position is that local area in this context should be Berwick Street and surrounding streets. Council does not adopt the definition of local area and local community given in evidence by Ms Danis during cross examination. 4. Mr Lazarus submits that the task is for the Court to form a view of the heritage significance in order to consider the impact of demolition on that significance. Not to determine if there is heritage significance. The building's heritage significance will be lost through the proposed demolition. The Applicant has failed to discharge its persuasive burden to justify demolition of a heritage item and consent should be refused. Applicant's Evidence 1. Mr Davies overall position was that demolition of the heritage item would not have any impacts on the heritage significance of the heritage item, as the heritage significance does not meet any of the criteria thresholds for local listing. In relation to the heritage impacts on adjoining heritage items, Mr Davies stated that the proposed semi-detached dwellings had been agreed by all experts as acceptable in this context. 2. Mr Davies said that without the 1924 approval, it was not possible to ascertain if the building had been purpose built as a dentist surgery with residence, but accepted that the intention could have been for Mr Pugliese to operate as a dentist from home. 3. Mr Wheeler, registered architect for Belle Living, addressed Chapter B2, Section 1.9 of the RDCP for a comparative analysis of all options (Ex F). Following leave being granted on 23 February 2024, Mr Wheeler prepared four options, a design statement and costings. Mr Wheeler says that during the IHO period, potential options for alterations were considered but not pursued. The four options prepared for these proceedings and attached to Ex F, are for a single dwelling (essentially rationalising the existing two use layout), two dwellings (front and rear), two dwellings with rear addition and commercial premises. 4. Mr Wheeler sets out that for all options, maintaining the front setback and much of the building envelope would result in poor amenity that does not meet contemporary standards, inadequate internal layout, undersized rooms, inadequate car parking and small private open space areas. The commercial option would require accessibility upgrades such as ramps, which would create an unsightly frontage. 5. In the Supplementary Heritage Joint Expert Report (HJER), Mr Davies argued that the options would not provide adequate amenity (due to the former surgery-residential uses and spatial arrangement, constrained outdoor space, limited solar access, BCA/accessibility upgrades), require extensive works and loss of building fabric to achieve contemporary living standards, and would not be attractive enough for the financial investment required. Mr Davies relies on the New Uses for Heritage Places Guidelines prepared by NSW Heritage dated 1 January 2008, which provides that "…the adaptation needs to create enough financial value to cover the costs of both conservation and adaptation, as well as the long-term maintenance of the building". 6. A detailed comparative analysis of listed and unlisted inter-war bungalows in Coogee and the Randwick LGA was undertaken in the 2024 HIS and Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282 (IHO Proceedings). The analysis concluded that there are numerous bungalows in Coogee and the LGA, that 3 Berwick Street was not rare and was comparable to the other dwellings. Some unlisted dwellings were considered to be more intact and refined. 7. In relation to the 2001 Guidelines, Mr Davies gave the below evidence that none of the criterion thresholds were met: 1. Criterion (a) Historical significance: Mr Davies says that Coogee has experienced successive periods of development since the first world war with a mix of residential dwellings and residential flat buildings. The suburb contains different types of interwar development and this building does not reach the threshold for heritage listing. Berwick Street itself is an example of the mixed character of the area. 2. Mr Pugliesi was not the first dentist in Coogee and there is no evidence the building was purpose built as a dental surgery. 3. The 2024 HIS says that the dwelling reflects the development of Coogee in the early 20th Century, has undergone multiple subdivisions up to approximately 1924, is a restrained example of the period and has been altered internally and externally. 4. Criterion (b) Historical association significance: Mr Davies says that the ongoing dental surgery use and associated alterations have contributed to the degradation of the heritage fabric externally and internally. The Register of Dentists records other dentists operating in the early 1900's in the Randwick LGA and Coogee prior to Mr Pugliese and prior to construction of the building in 1924. Further, there is little historical importance in being the first registered dentist of Coogee. Historical research has not identified Mr Pugliese as a significant person in the local area or notable contributor in his field. 5. Criterion (c) Aesthetic significance: Mr Davies says that the inter-war bungalow is altered, painted and has lost its rear public open space. Further, that the restrained and generic building does not contribute to the mixed character and period demonstrated on Berwick Street. There are no creative, technical or distinctive aesthetic attributes shown. 6. Criterion (d) Social significance: The experts were in agreement that this criterion was not met. 7. Criterion (f) Rarity: Mr Davies argues that the site contains a typical inter-war bungalow which are not rare in the Randwick LGA. He says that the interiors are not highly intact and have been modified, including separation between the uses, refurbished kitchens and bathrooms, an altered fireplace, and painting of characteristic joinery. Mr Davies conducted a comparative analysis survey of the immediate area as shown in Attachment 8 (Ex C, Volume 3, Tab 10) and identified a number of inter-war dwellings. 8. Criterion (g) Representativeness: Mr Davies states that the building is a generic example and is not a rare or fine example of either the period or typology. The 2024 HIS states that the building is a typical representation and is not an exceptional representation in relation to the local area's culture, natural place or environment. 1. In relation to the 2023 Guidelines, Mr Davies gave the below evidence: 1. In cross examination, Mr Davies agreed that the 2023 Guidelines replaced the 2001 Guidelines and that the 2001 Guidelines were no longer applicable when considering heritage significance. Mr Davies agreed that the amended Heritage Impact Assessment prepared by Urbis dated December 2023 (December HIS), amended Heritage Impact Assessment prepared by Urbis dated February 2024 (2024 HIS), HJER and Supplementary HJER did not contain an assessment against the 2023 Guidelines. 2. Mr Davies agreed in cross examination that he had not specifically considered the 2023 guidelines and that this was a mistake. Mr Davies said that he hadn't responded to the 2023 Guidelines discussion in the Supplementary HJER (including attachment C) as there was no additional information than the previous assessments. 3. Mr Davies agreed in oral evidence that there was no change to his evidence on heritage significance as a result of the 2023 Guidelines. 4. Mr Davies accepted that his assessments and previous evidence had been based on the local government area, but that he had undertaken a survey of streets in the vicinity of the heritage item. 5. Mr Davies argued that the local area for these proceedings should not be limited to the subject street and surrounding streets. He argued that the local area should be broader to understand the heritage significance of a place to an area. A local area would depend on what was being considered. 6. In relation to criterion (d) social significance and the community, Mr Davies said that social significance should be associated with a group or community that values a particular place, before a DA is known. Mr Davies considered that the local community was broader than adjoining neighbours or an interest about the redevelopment of site. Mr Davies argued that use as a dentist was not socially significant and that there was no evidence of a community group that would satisfy criterion (d) for the site. 7. Mr Davies stated that he had not factored in the opposition of the local community in his assessment of heritage significance. This was on the basis that unless a heritage matter was raised that would change the evaluation against the criteria, it's not usual professional practice to evaluate objections to a DA. Applicant's submissions 1. Mr Wright submits that the impetus of the heritage listing of this site was driven by community objections to this DA and was never sufficiently supported by evidence to justify the local listing as a heritage item. The proposed demolition would destroy the item but submits that there is no heritage significance to be lost despite it being listed. Where there is no heritage significance, the application does not need to contemplate the other provisions of Section 1.9 of RDCP. 2. The Applicant submits that the building is less than modest and has been substantially altered. It therefore has no intrinsic value as an inter-war bungalow. Regarding impacts on nearby heritage listed items, Mr Wright submits that no evidence has been presented about those impacts. 3. Mr Wright submits that there is no group relationship between 1, 3 and 5 Berwick Street. There is no heritage conservation area. 1 and 5 are distinctly different. 1 Berwick is associated with a prominent family in Coogee, a different typology and designed by a known architect. 5 Berwick is associated with a known architect and contains highly intact interiors. 4. Mr Wright submits that the local community has not been identified by Council. Much more is required than relying on residents who have made objections, even on heritage grounds. 5. The Applicant submits that the findings of the IHO hearing are persuasive and relevant to these proceedings. The changes to the guidelines would not lead to a different conclusion. 6. In response to questions from the Court about any presumptions that should be made to the heritage listing in Sch 5 of RLEP, it was submitted that there is no conclusive presumption of heritage significance and that the Court can make its own assessment. 7. The Applicant submits that there is no impediment to the Court considering the merits of the heritage significance in both cl 5.10 of the RLEP and Section 1.9 of the RDCP and granting consent for demolition. Findings Approach 1. From the outset, I have empathy for Belle Livings position. I accept the submissions that the original DA was made in good faith on a property that was not listed and not being considered by Council to be proposed as a heritage item. The DA is also being considered in a context where housing supply is much needed. 2. However, I am required to consider the planning controls as in force during now. With regard to the submissions made about the process, I understood these to be made in the context of understanding the site's heritage significance and listing. The planning proposal process inherently requires decision making from a Council's elected councillors. The process itself is ultimately of little assistance in considering the merits of the DA. It has been completed and the site has been listed as a heritage item. 3. In considering the applicable provisions of the RLEP and RDCP, Mr Lazurus submits that the decision of the Senior Commissioner in IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v North Sydney Council [2023] NSWLEC 1207 (IOF Custodian) should be followed. In particular, that the community has an expectation that listed heritage items will be retained and that demolition would only be approved as permitted by the relevant planning controls (see [162]). I accept these submissions. The community has an expectation that planning controls which have been exhibited and gazetted would be implemented by the consent authority. This includes the protection of listed heritage items except where allowed on merit by the planning controls. 4. I accept Mr Lazarus' submissions that there is a presumption of heritage significance by virtue of a heritage item's listing in Sch 5 of the RLEP. However, it is required through cl 5.10(4) of the RLEP and open through Section 1.9 of the RDCP to conduct an assessment of what the heritage significance is during the DA process. This is necessarily required to understand the proposed impacts. 5. Mr Wright submits that IOF Custodian has some relevance. The Senior Commissioner needed to determine the heritage significance, as is required here. However, Mr Wright submits that the provisions of the DCP considered in IOF Custodian were in different terms to the RDCP. I accept these submissions. Whilst both DCP's generally do not support demolition of a heritage item, the North Sydney DCP is in much stronger terms. The North Sydney DCP states that heritage items must not be demolished and will not be supported. The controls then provide a list of matters that must all be considered to answer why it is not reasonable to conserve the heritage item. 6. Section 1.9 of the RDCP states that demolition is generally not supported. It then provides a list of matters that Council will consider when assessing a DA for demolition of a heritage item. The provisions are not as forceful in the assessment criteria for demolition. I accept that the terms of the RDCP are relevantly different and not as prohibitive as those considered in IOF Custodian. 7. Consideration of the heritage significance evidence has been approached carefully, complicated by the reliance on the IHO transcript. The following factors have been weighed, as relevant, when considering the evidence: * The evidence provided during the IHO proceedings for heritage significance addressed different legislation, different provisions and tests, and as ultimately borne out through these proceedings, considered different guidelines (the 2001 Guidelines). Clause 5.10 of the RLEP and Section 1.9 of the RDCP, the subject of these proceedings, were not relevant to the IHO. * Both experts, as required of them, considered the exclusion/inclusion tables against the 2001 Guidelines criterion and the heritage significance in the context of the local government area. * Whilst the heritage experts were the same, Ms Danis stated in her evidence in the IHO proceedings that some of these were preliminary findings. Notwithstanding the IHO findings, the parties' reliance on the experts evidence from the hearing is a different consideration to the findings in the judgment about that evidence. * Further expert heritage evidence was put forward in these proceedings. 1. As submitted by Belle Living, I have considered the reasoning and findings from the IHO hearing (Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282). However, a number of factors have changed since that judgment. 2. In these proceedings Council pursued that the heritage item met criterion (d) social significance, considered separately below. I also accept the submissions of Council that a number of findings were made on the basis of the 'inclusion/exclusion' criteria, which are now not applicable. Whilst there may be professional opinions that still validly import those inclusions/exclusions as relevant in a general sense, I am unable to give significant weight to the Commissioner's findings in those proceedings for the reasons outlined above. My decision does not necessarily depart from the findings in Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282, I am considering different legislative provisions with additional evidence. Heritage Significance 1. The heritage experts agreed and adopted that the NSW Guide to Assessing Heritage Significance Guidelines were an appropriate way to understand the heritage significance of a heritage item. The guidelines are intended to assist when making decisions to retain a heritage item and assess the heritage significance of a heritage item (page 4 2001 Guidelines) and (page 4 2023 Guidelines). The guidelines do not have determinative weight. 2. Several key changes were made between the 2001 Guidelines and the 2023 Guidelines. In addition to removing the inclusion/exclusion criteria, the changes relate to the definition of 'local area' and inclusion of the 'local community', though these terms are utilised inconsistently and through different phrases in the 2023 Guidelines. These changes were said by Council to be fundamentally different when considering the heritage significance of a heritage item. Belle Living submitted that the criterion was the same. 3. I accept that the 2023 Guidelines seek to view the local area through the context of the heritage significance instead of the LGA context. Here, the majority of the evidence from both heritage experts was that the disputed heritage significance was in relation to either Coogee or the wider Randwick LGA, be it the built form relationship to Coogee, historical significance to Randwick or prominence as a dentist of Coogee or Randwick. This is consistent with the Statement of Heritage Significance and Heritage Data Form assessment (notwithstanding they were prepared against the 2001 Guidelines). With consideration of the expert's evidence, Statement of Heritage Significance and previous assessment, the 2023 Guidelines and 2024 HIS, I find that the relevant local area for considering this listing's heritage significance is primarily Coogee, with some criterion requiring consideration of the wider Randwick LGA as the local area. 4. With respect to consideration of the local community or local group for the purposes of understanding heritage significance, I address this at [114] - [115]. To construe the local community on the basis of objections against a DA would set a precarious precedent and, in my view, is not what is intended by the 2023 Guidelines. 5. I turn to my consideration of understanding the heritage significance of the heritage item. I am not making any findings about whether the heritage item should or should not be listed. In order to understand what the impacts are here, I am required to understand the disputed heritage significance, based on opposite heritage opinions from experienced and qualified heritage experts. 6. My findings on the local significance are with consideration of the evidence and the 2023 Guidelines. I accept that the 2023 Guidelines are a tool to assist in understanding the heritage significance of the heritage item and are not determinative (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; ([2004] NSWLEC 472 at [88]– [92] and as submitted by the Applicant, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420). 7. I generally adopt the approach taken by the heritage experts. 8. Consideration of criterion (a): I accept Ms Danis' evidence, as also set out in the Statement of Significance and Heritage Data Sheet, that the building has heritage significance and demonstrates the boom in residential suburbanisation of both Randwick and Coogee following World War 1 and the change from a seaside area to a residential area in the 1920's and 1930's. This in part was supported through the extension of the tram, which at one time ran along Berwick Street with a nearby stop (Ex C, Tab 5) and referenced in the 1986 Heritage Study. The 1986 Heritage Study, 1989 Heritage Study and 2024 HIS detail that the delayed but encouraged residential growth in Randwick and beyond into Coogee (and other areas) strongly grew from the 1920's and 1930's. 9. With consideration of Belle Living's evidence that the dwelling is a restrained example of an inter-war bungalow from this period and therefore lacks sufficient heritage significance, I find that this modesty element forms part of the heritage significance. This is detailed in the 1989 Heritage Study, where the architectural features of bungalows in the 1920's had some different features but could be modest in their architectural elements. The 1986 Heritage Study also details that the Coogee and Randwick area in this period were characterised by a mix of residential flat buildings of various densities and residential bungalows. The guidelines encourage a comparative analysis but do not exclude listings on the basis relied on by Mr Davies. 10. With consideration of the historic significance of residential development in Coogee in the 1920's, I accept that the site's 1924 inter-war bungalow demonstrates an important evolution of Coogee and the broader Randwick LGA from a fishing and weekend area to a residential area that occurred from the 1920's and 1930's. 11. With respect to the heritage significance attributed to the building being a purpose-built dentist-residence and long standing operation as a dentist, I accept the evidence of Mr Davies that there is no heritage significance associated with these elements. When compared against the criterion, significance indicators and local threshold examples in the 2023 Guidelines, for the reasons set out by Mr Davies and the 2024 HIS, the association as one of the first dentists or a purpose-built dentist-residence does not exhibit qualities or meet the threshold of being historically important for the course or pattern of Coogee's history. I accept Belle Living's submissions that there is no evidence that the building was purpose built as such, but even if it were, I find that nothing turns on this as I accept the evidence that it was not uncommon for professionals to work from home. 12. Consideration of criterion (b): I accept Belle Living's evidence that Mr Pugliese was not the first registered dentist in Coogee as evidenced in the 2024 HIS through the Register of Dentists records showing prior registered dentists in the early 1900's and the Sands Directories from 1908, 1917, 1924 and 1925 (Ex 14). At its highest, Mr Pugliese was potentially one of the first dentists in Coogee. I accept that the building has been used as a dentist-residence for over 90 years. 13. The 2023 Guidelines identifies that historical association is through an important person, organisation or group. Of these associations, an important, notable, innovative or exemplary contribution has been made over an extended period. I accept Mr Davies evidence that, with respect, dentistry has dubious historical importance and that research into Mr Pugliese's achievements has not uncovered anything notable. Council's evidence does not demonstrate any important, notable, influential or innovative achievements of Mr Pugliese to the local community or dentistry. I am unable to accept Council's evidence that Mr Pugliese's dentist services, despite its continuous use at 3 Berwick Street, has any heritage significance or rises to the local significance threshold and indicators. Where it was submitted that the purpose-built nature of the building meets this criterion, this element is not relevant within the context of criterion (b). 14. For completeness, I accept that there is no evidence relevant to the heritage significance of 3 Berwick Street related to family associations. 15. Consideration of criterion (c) aesthetic/creative/technical achievement: To have aesthetic significance, the local thresholds seek to recognise distinctive, landmark, notable or representations of blending of classes. I accept the Council's evidence that the inter-war bungalow is distinctive (albeit it, modestly) and displays characteristic features described by Ms Danis including the prominent gable, sandstone walls elevated on a sandstone base, sandstone front fence and other external decorative features, within the Coogee context. These elements were also recognised as having some heritage significance throughout the heritage reports (particularly in the peer reviews), though with varying conclusions on their retention or reuse. I accept Mr Davies evidence that the building is a restrained example and that several alterations have occurred to the verandah, front façade (from the garage) and internally. I accept and observed on site that the internal area previously operating as a dental area displays little original fabric. However, I accept Ms Danis' evidence that a large amount of the building fabric is intact and has heritage significance. 16. Consideration of criterion (d) social significance: To have social significance, the 2023 Guidelines identify that the heritage item has 'strong or special association with a particular community or cultural group' or where the community exhibits strong feelings or identity to a place. I accept Belle Living's submissions that the 'local community' for this criterion has not been identified by Council. I do not accept Council's submissions that, in essence, I consider amount to objectors to a DA forming the particular community group. As submitted by Belle Living, I agree that the 2023 Guidelines address this under criterion (d) on page 36, set out below: "Care must be taken not to confuse heritage significance with preference. For example, a community may seek to retain an older building in preference to replacing it with a more contemporary development of a site. In such cases, there must be evidence that the place or object is separately valued in accordance with this criterion or one of the other criteria to be considered a significant place." 1. The evidence does not show that there are separate heritage values outside of this DA process from an identified local community to demonstrate any heritage significance under this criterion. However, the objections received still form an important part of the DA process and are a separate mandatory matter for consideration under s 4.15(1)(d) of the EPA Act. 2. Consideration of criterion (e) research potential: Notwithstanding that the Heritage Data Sheet included a description against criterion (e), I accept the evidence of both experts that the heritage item does not exhibit heritage significance relating to this criterion. 3. Consideration of criterion (f) rare: The criterion indicates that heritage significance is shown through an item being a rare example of evidence related to an event, phase or period. The local threshold describes the significance as being one of a few comparable places in the local area that is intact. The emphasis being 'few in number'. Both experts gave evidence about comparative examples, with opposing views. Mr Davies undertook a detailed comparative analysis of the local catchment in Coogee and mostly nearby areas of listed and unlisted bungalow dwellings, which I accept is relevant and an appropriate 'local area' in the context of the 2023 Guidelines. I have given more weight in my consideration to the bungalows located in Coogee. I generally adopt this catchment as the local area and have primarily considered Coogee examples for the reasons set out at [101]. 4. I prefer the evidence of Mr Davies that there is no heritage significance demonstrated in relation to rarity. As shown in the comparative analysis (Ex C, Vol 2, Tab 7), there are numerous inter-war bungalows in Coogee both listed and unlisted. Whilst I accept Ms Danis' evidence that Sch 5 of the RLEP contains many more inter-war residential flat buildings in Coogee, there are also numerous examples of bungalows in Coogee that are listed. I am unable to accept Council's evidence and submissions that the heritage item is rare based on a smaller local area and therefore containing almost no inter-war bungalows, none are in the same context when considered with the adjoining heritage items or the Carr Street intersection and that there are no other purpose built dentist-residential buildings. This is because the smaller local area defined by Council appeared based on objections and has a limited relationship with the heritage significance of the heritage item to either the Coogee area for some elements, the Randwick LGA. 5. Consideration of criterion (g) representative: the relevant significance indicator sets out that a class of places or objects should demonstrate an aesthetic composition, design or architectural style of historical importance. The criterion lists examples as being 'a good example of' or a 'representative example of' physical characteristics that are mostly unchanged and intact. I accept Ms Danis' evidence that the inter-war bungalow demonstrates a range of the physical characteristics of this architectural type that is largely intact. There is no requirement in the 2023 Guidelines that requires all examples to be rare or fine. Whilst some changes have been made to the building fabric, I accept that some of these works are reversible. I accept the Council's evidence and submissions that the heritage item demonstrates representative heritage significance. The impact of demolition on the heritage significance of the heritage item 1. Having identified the heritage significance of the heritage item, cl 5.10 of the RLEP requires consideration of the impact of demolition on the heritage significance of the item. Clause 5.10 of the RLEP does not preclude demolition irrespective of impacts on or a loss of heritage significance. The objectives seek to conserve the heritage significance of heritage items. 2. Section 1.9 of the RDCP generally does not support the demolition of a heritage item unless there are overriding reasons. It then provides criteria for these overriding reasons, being, the consideration of the heritage significance of the item, contribution of the item to the streetscape, structural condition and a comparative analysis of options. 3. Council was critical that Section 1.9 had not been sufficiently considered or addressed by the DA, particularly in addressing the structural condition and providing a comparative analysis of all options, which should exclude demolition as an option. Council was critical that the amended DA addressed these provisions as an afterthought during the hearing. 4. Belle Living submitted that at the time of lodgement, the building was not a heritage item or a proposed heritage item. Further, Council's 2021 Heritage Study had been completed and found that 3 Berwick Street had insufficient heritage significance to warrant listing. Belle Living submitted that it had always relied on the building lacking heritage significance and if that was demonstrated, there was no need to address the other parts of Section1.9 as they were not preconditions to the grant of consent. Notwithstanding, Belle Living submits that they do not rely on the structural condition of the building to justify demolition. The comparative and costed options prepared by Mr Wheeler, a registered architect, demonstrate that they are unviable as set out in his affidavit. 5. I accept Belle Living's submissions in relation to addressing Section 1.9. Satisfying all elements of Section 1.9 of the RDCP are not preconditions in these circumstances where the amended DA relies on a lack of heritage significance. It follows that the other matters would become irrelevant. In circumstances where a DA was already substantially progressed prior to the heritage listing, comparative analysis of options would necessarily occur after the DA was lodged. I also accept that the RDCP does not exclude demolition as a comparative option. 6. With consideration of the findings that 3 Berwick Street exhibits heritage significance, I find that the amended DA has not demonstrated sufficient overriding reasons to justify demolition of a heritage item. The total demolition of the heritage item would result in an almost total loss of heritage significance. This outcome is contrary to Section 1.9 of the RDCP, that demolition of an item is generally not supported, and contrary to the objectives of cl 5.10 to conserve heritage significance of a heritage item. 7. The amended DA proposes to retain the front fence, prepare a reuse strategy and provide other heritage related photography records. Having accepted that the heritage item demonstrates heritage significance through its built form and representation of a period of time, these proposed actions do not adequately overcome the detrimental impacts on heritage significance from the proposed total demolition. 8. In considering the evidence of the experts in relation to the comparative analysis of the options, the evidence about the options has not of itself led to the refusal of the amended DA. However, the evidence has also not overcome the loss of heritage significance from total demolition as intended by Section 1.9 of the RDCP. 9. With respect to the contribution of the item and impacts on the heritage items in the vicinity of the subject site, I accept the evidence of Mr Davies that the demolition of the heritage item would not have unreasonably impacted the setting of the adjoining heritage items. These heritage items demonstrate different elements of heritage significance. Council was required to clarify any group significance during the planning proposal process and elected individual listing. 10. I am unable to accept the evidence that there is a heritage relationship with 21 Carr Street. It was evident from my observations on site that given the spatial arrangement, physicality and mixed types of built forms in Berwick Street and Carr Street, 21 Carr Street is simply located within the broader visual catchment. 11. With respect to the subdivision, I accept that in this instance, it is simply a subdivision that occurred within a mixed pattern of multiple subdivisions in the 1800s - 1900s. There is no evidence that the proposed Torrens title subdivision would have unreasonable impacts on the heritage significance of the subject site or adjoining sites, subject to a sensitive built form design. Procedural Fairness 1. Belle Living made submissions that they have not been afforded procedural fairness during these proceedings for the following reasons: 1. The Council had a duty to identify the issues in dispute (Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 199 LGERA 147; [2013] NSWLEC 147 at [94]-[110] (Pet Carriers)). 2. Without notice, Council amended its contentions on the day of the hearing to include reference to the demolition provisions in the RDCP. 3. The amended contentions made no reference to the 2023 Guidelines. 1. I am of the view that procedural fairness has been afforded to the Applicant for the following reasons: 1. Belle Living and Council jointly sought and were ultimately granted leave to amend the SOFAC, amend the DA and adjourn the hearing. This included amendments to the Applicant's Heritage Impact Assessment, evidence to respond to the new RDCP contention and for both parties, further joint expert reporting of the heritage, planning and urban design experts to consider the new material. 2. Whilst the contention was amended late, the issue of demolition of a heritage item (draft or gazetted) was known to the Applicant. Upon gazettal of the site as a heritage item in December 2023, it was incumbent on Belle Living to address the DCP provisions in their DA in accordance with s 4.15(1) and s 4.15(a)(iii) of the EPA Act. 3. The amended contention does not depart from the decision in Pet Carriers. The issue of heritage and demolition was known between the parties. The amended contention was not abstract from that issue. In any event, the Applicant was ultimately granted leave to put on evidence to address the RDCP. 4. Lastly, the reliance on the NSW Heritage Guidelines, whether 2001 or 2023, was the choice of the heritage experts carried over from the IHO proceedings. The amended DA relied on a lack of heritage significance and demonstrating that the bungalow did not meet the criteria for heritage listing, which is a reference to the guidelines. Subdivision and the semi-detached dwellings 1. For completeness, had the demolition of the heritage item been supported, with consideration of the expert evidence I would not have found any other impediment to the grant of consent for the subdivision and construction of the two semi-detached dwellings. 2. Working with some of the original heritage fabric, I consider that a form of redevelopment for a Torrens title subdivision and semi-detached dwellings would not be precluded in the future for this site. Conclusion 1. My findings that the proposed demolition would unacceptably impact the heritage significance of the heritage item in relation to cl 5.10 (1) and (4) of the RLEP and Section 1.9 of the RDCP are determinative. The appeal is dismissed. 2. The Court orders: 1. The appeal is dismissed. 2. Development application No. 432/2022 for the demolition of the existing dwelling, Torrens title subdivision into two allotments and construction of two semi-detached dwellings at 3 Berwick Street, Coogee is determined by refusal of consent. 3. The exhibits are returned except for A, B and 11 S Porter 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: 03 July 2024