Land and Environment Court of New South Wales CITATION : The Turnbull Group Pty Ltd v Hunters Hill Council [2004] NSWLEC 390 APPLICANT The Turnbull Group Pty Ltd PARTIES : RESPONDENT Hunters Hill Council FILE NUMBER(S) : 10172 of 2004 CORAM: Nott C KEY ISSUES: Development Application :- Proposed demolition of a waterfront sandstone cottage (c. 1905) and the erection of a new house - conservation area - evidence from Court-appointed expert - possible alternatives involving retention of the cottage - consent refused LEGISLATION CITED: Hunters Hill Local Environmental Plan No. 1 CASES CITED: DATES OF HEARING: 24 and 25 June 2004 EX TEMPORE 06/25/2004 JUDGMENT DATE : APPLICANT Mr S Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy, solicitor SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 25 June 2004 10172 of 2004 The Turnbull Group Pty Ltd v Hunters Hill Council JUDGMENT 1 This is an appeal against the council's deemed refusal of a development application to demolish a dwelling at No. 20 Wybalena Road, Hunters Hill, and to erect a new dwelling house. 2 The existing cottage on the site was constructed circa 1905 and is not listed as a heritage item but it is located within the Hunters Hill conservation area under the Hunters Hill Local Environmental Plan No. 1. 3 The principal issue in the hearing was whether the existing cottage could be demolished. 4 I have had the benefit of evidence from a Court-appointed expert on the question whether the cottage may be demolished. The practice direction envisages that the Court may appoint a particular expert relating to an issue between the parties. It was considered that this matter was suitable for the appointment of a heritage consultant. The parties were requested to agree upon an expert and they did so; and Mr D Logan (architect, planner and heritage consultant) was the expert who produced a statement of evidence dated June 2004, exhibit 5. Mr Logan annexed to his statement relevant reports produced to him by both parties. Perhaps the most important report from the applicant's point of view was the statement of heritage impact by Ms A Roche of Graham Brooks and Associates Pty Ltd. 5 The application had been advertised and there were a large number of written objections from members of the public, and some of those objections were from immediately adjoining neighbours at Nos 7, 9 and 11 Fern Road. 6 On behalf of the neighbour at No. 11, a six-page letter dated 20 January 2004 was submitted from heritage consultant Mr Robert Moore, who was strongly of the opinion that the existing cottage should not be demolished. 7 The applicant then commissioned another heritage assessment, this time by Mr J Oultram. Among other things, Mr Oultram in his report dated 12 March 2004 said: I consider that the property is of some heritage significance at the margin of what could be considered to preclude its demolition. In the light of this, the demolition of the building rests on a realistic consideration of the current condition and intactness of the building, the extent of original fabric, likely conservation and development scenarios and the owner's requirements. The Brooks report is more realistic in this regard and is an honest consideration of the case for demolition. However, it is not indisputable. Both cases are supportable and can be strongly argued. 8 There was a statement from structural engineer Mr N Haddo, also annexed to Mr Logan's report. Certain structural inadequacies were highlighted by Mr Haddo. He was unable to certify the building as being structurally adequate or at least that part of it relating to the slabs and footings. He referred to other problems with the property, in particular the clearance of the floor bearers and joists from the ground and problems of rising damp and problems with expansion joints, among other things. 9 Also annexed to Mr Logan's report were letters from the Hunters Hill Trust and the National Trust. The Trusts were of the opinion that the existing cottage should not be demolished. 10 Mr Logan's report was tendered without objection to the report itself or to the annexures. Mr Logan was available to answer questions, and was cross-examined at length by Mr S Klinger, solicitor who represented the applicant. The authors of the other reports and of letters and documents annexed to Mr Logan's report were not called to give evidence. It was therefore not necessary to decide the question whether it would have been appropriate to receive their additional evidence, having regard to the fact that one of the purposes of the appointment of a Court expert is to avoid costs and to seek to have an expert whose views are respected by both parties present an independent report to the Court. 11 I wish to make it clear that there is no rule or guideline that a Court-appointed expert should have his report given determining weight. However, in this case I have been considerably assisted by the report of Mr Logan, and in general I tend to agree with his views. 12 For the reasons I will elaborate on more fully now, I have come to the conclusion that I am not persuaded that it is in order to grant consent for the demolition of the existing cottage. I have taken into account all the documents, not only in Mr Logan's report but other documents presented that might tend to favour the applicant's case. I have been considerably assisted by the report of Ms Roche insofar as it refers to the historical development of the suburb and of the particular locality of the subject land. 13 In 1904 a lot was purchased by Mrs Bartlett which included the subject land. It appears that about 1905 or 1906 a house was erected on the lot. The lot was then subdivided in 1910, so that the subject land has a water frontage to the Parramatta River, and the rear part of the lot became the property upon which (in 1910) two semi-detached Federation-style cottages were erected and which are now standing today. These are the dwellings at Nos 9 and 11 Fern Road. 14 Ms Roche's report usefully sets out in photographic form, together with captions, the surrounding development including the two Federation semi- detached dwellings I mentioned, photographs from the waterway, and photographs of the interior and exterior the subject building itself. 15 Under the LEP, the Court is required to take into account the extent to which the carrying out of the development in accordance with the consent would affect the heritage significance of the conservation area. One of the matters in this particular case that was of concern to me was the extent to which the immediate locality of the subject land has been changed from having an historic nature. Viewed from the waterway, large three-storey dwellings can be seen extending from Pulpit Point towards the subject land. Other modern homes have been erected to the west. 16 At No. 5 Fern Road a building having the appearance of three storeys, although technically it might only have two storeys, has been erected. This occurred after the coming into force of Development Control Plan No. 15 –Residential Development. It is important for the council to deal consistently with applications where that is appropriate. Sometimes it might be the case that there should be a departure from a former policy. It is not altogether clear to me why the conservation advisory panel constituted under cl. 19B of the LEP came to the view in respect of the house that was formerly on No. 5 that it could be demolished. In the particular case before me, however, the conservation advisory panel recommended that the cottage on the subject land should not be demolished. It considered the application on two occasions. The constitution of the conservation advisory panel is set out in section 4.4 of DCP 15. 17 It is interesting to note that one of the members of the conservation advisory panel is the council's heritage adviser, Mr Patch. It is not clear what view he took when considering the matter in his role as a member of the conservation advisory panel, assuming that he was in attendance at the relevant meetings. The panel had resolved (five votes to one) that the cottage should not be demolished. Mr Patch, however, in a separate memorandum to the council expressed views that were to the effect that the cottage could be demolished subject to certain conditions. Mr Patch said: Given the fact that the place has been "reconstructed" to a large extent and an addition made to the foreshore-facing facade, there is little of the original building remaining. 18 Mr Logan was of the opinion that that particular opinion of Mr Patch was not correct. Having reviewed all the evidence and having inspected the subject cottage, I agree with the opinion of Mr Logan. 19 Clause 2.1 of DCP 15 states: The most outstanding aspects of Hunters Hill's environmental significance is the quantity, quality and diversity of its 19th and 20th century domestic architecture, resulting in a distinct, characteristic and identifiable urban form. 20 In clause 2.2.5 of DCP 15, a most important provision is set out where it is stated: Although most buildings were constructed between 1919 and 1961 the most notable elements of its character on which its heritage significance rests are the buildings constructed between 1860 and 1920. Similarly, while only a small proportion of buildings are constructed of stone, it is a very noticeable element in the municipality. 21 It was the opinion of Mr Logan that allowing the demolition of the subject cottage (notwithstanding the changes and additions that have been made to it) would remove from the conservation area one of the buildings upon which the heritage significance of the conservation area rests. 22 The building has been constructed in the Federation Queen Anne style. Its orientation is towards the Parramatta River with a wrap-around verandah on two sides and on the waterfront side. That verandah has been enclosed, and in the 1960s a large addition was also added to part of the waterside frontage. The overall external form of the building, including all of its original roof hips and gables is intact and is able to be readily understood. The addition made to the front of the dwelling affects its original symmetric appearance when viewed from the water, although the historic nature of the house can still be understood from its roof form, in particular the central ridge line and gable with original chimneys located on either side of the main ridge. Despite the infilling of the verandah, the original sandstone character of the dwelling remains and is a notable feature within the streetscape of Wybalena Road. 23 This has not been an easy case to decide on the question of whether the house should be permitted to be demolished, because Wybalena Road on the western side is characterised by modern dwellings and there are three garages or parking areas close to the street. Nevertheless, on the eastern side where the subject land is there is a sandstone boundary wall along the street frontage at the end of Wybalena Road, which forms part of the boundary of the subject land, and there are the dwellings at Nos 9 and 11 Fern Road, although these dwellings, to some extent, have been altered also. 24 Internally the original room layout of the subject cottage largely survives with the exception of the removal of a masonry wall from one room and the partial removal of another. The original room layout can be readily understood. Nevertheless, there have been substantial changes to the internal detailing with a number of Victorian period elements introduced, including fireplaces, cornices, skirting and door joinery. Changes to the flooring were required because of rising damp problems. 25 Much weight was put on the engineer's report presented by the applicant. However, it was the opinion of Mr Logan, with which I agree, that the majority of the original sandstone portion of the dwelling is sound, albeit requiring maintenance and some repair. 26 Mr Logan was of the opinion, with which I concur, that the subject cottage does not have sufficient heritage significance on the available information to warrant its listing as an individual heritage item. Nevertheless, further information may come to light concerning its heritage and in particular concerning how rare or otherwise a sandstone cottage of about the era of the subject cottage is, where the cottage is located on the waterfront and is substantially built of sandstone. 27 Mr Moore was of the opinion that the subject cottage is unusual insofar as it is a harbourside house built of expensive sandstone masonry when most Federation cottages of its scale and "type" in other suburbs were built of brick and sited in suburban streets. 28 It is my opinion that the heritage assessment prepared on behalf of the applicant did not give sufficient weight to the historic and aesthetic significance of the subject cottage. It is important to note that the offending additions are only partly visible from Wybalena Road. What is more prominent are the sandstone original elements of the cottage and its roof, as shown in figure 1 of exhibit 5 (which I incorporate in my judgment): 29 When viewed from the water, part of the original form of the dwelling remains obvious, with its chimneys and gables intact. 30 Dr Beverley Sherry, who wrote the book, Hunter's Hill: Australia's Oldest Garden Suburb, said: Sandstone is central to the history of Hunters Hill and today every vestige of early sandstone construction should be protected zealously and, where necessary, restored. 31 Mr Logan concluded that: The heritage significance of the existing cottage is that it is a contributory item in the conservation area. 32 Mr Logan used the word "contributory" in the general sense and not in the more defined sense that appears in the LEP or in the DCP. He was of the opinion that other information may come to light which could raise the significance of the property to a level that could warrant listing it as an individual heritage item. 33 Similarly, Mr Oultram was of the opinion that further evidence concerning the rarity or otherwise of a sandstone cottage (of the period of the subject cottage) on the waterfront could become known and would be important. 34 In my opinion there was insufficient consideration given by the applicant's experts to the potential to restore the existing dwelling or to provide for the carrying out of other development which would maintain the existing sandstone elements of the cottage. It would be a poor solution in this particular case, in my opinion, merely to have the cottage demolished and to reuse some of the sandstone in the proposed new house. 35 Clause 4.8 of the DCP sets out matters that are required to be addressed in a statement of heritage impact. It is appropriate to apply by analogy that clause to the subject proposal. Among the matters to be considered are: (f) How the heritage value of the item is to be conserved or preferably enhanced by the proposed development according to the principles of the ICOMOS (Australia) Burra Charter. (g) Why more sympathetic solutions are not viable. 36 These requirements are consistent with the established tests for the consideration of proposals for demolition of heritage buildings contained in the New South Wales Heritage Manual Guidelines. Even though those guidelines are more often applied to heritage items, they may be applied to buildings which are of a contributory nature. The manual says, among other things, that the following question should be asked: § Have all options for retention and adaptive re-use been explored? § Can all the significant elements of the heritage item be kept and any new development be located elsewhere on the site? 37 Clause 4.7 of the DCP says: Council may refuse consent to demolish a building which contributes to the evidence of the history of Hunters Hill. 38 Mr Logan has indicated one possible method of further developing the subject site which retains the existing cottage in large measure. He was of the opinion that sympathetically designed additions, either to the front or to the rear of the dwelling or possibly both, could be carried out which comply with the objectives and controls of the council's planning instruments. He produced a plan at appendix K of exhibit 5 and a section drawing of a possible concept development in exhibit 10. Mr Logan said (p 13 ex 5): While the applicant believes that the existing cottage is incapable of ongoing use as a residence, my inspection of the property including its interior indicated that this is not so. It appears to me that there are viable opportunities to construct a pavilion form of addition at the rear of the original part of the dwelling without significant impact on the heritage significance of the cottage or unreasonable impact on the amenity of neighbouring properties. There are also options to improve the appearance of the dwelling from the river by either remodelling the existing unsympathetic additions or preferably replacing them with a more sympathetically designed solution. One aim would be to recover as much as possible of the original form and appearance of the dwelling and, in particular, its symmetrical presentation to Parramatta River. This could be achieved by constructing any replacement addition with a floor level that is lower than the current floor level of the dwelling and with a roofline that is no higher than the balustrade of the original wrap-around verandah. This would enable the reinstatement of the original open-sided verandah on the front and side elevations (above balustrade height), thereby recovering much of the original character of the dwelling. 39 It is true that particular details of the balustrading are not available at present on the evidence, but appropriate balustrading in accordance with the period of construction of the house could be provided. 40 As regards the rising damp problem, clearly the design of the house at the present time with its raised concrete entrance is undesirable. The concrete area outside the front door is at the same floor level as the timber boards within. It was the opinion of Mr Logan that these concrete elements that exist should be removed and the ground levels on the northern side and on the sides of the building should be lowered. An appropriately qualified and experienced drainage engineer would have to be retained. In the carrying out of any new development, a conservation architect should desirably be engaged to design any alternative proposal that the owners of the subject land may wish to put forward. 41 Mr Logan finally concluded (p 14 exhibit 5): An alternative proposal that involves the restoration and repair of the existing dwelling in concert with the construction of sympathetically designed additions would be a more appropriate planning outcome than demolition of the existing dwelling and the construction of a large new dwelling, given the location of the site within the Hunters Hill Heritage Conservation Area. I am satisfied that it is possible to achieve the dual objectives of enhancing the character and contributory value of the existing dwelling while at the same time providing an acceptable level of residential amenity for current and future owners. 42 If it had been necessary to consider the proposed new development, I note that the amendments that were made during the course of the hearing would have been of considerable benefit for the neighbours whose houses are on higher ground at the rear. The originally tendered proposal would have blocked a substantial part of their views and the amended proposal would have provided for some water views over the roofs of the proposed house in addition to the other water views that those residents enjoy. 43 As regards the proposed development affecting the neighbour at No. 7 Fern Road, I consider the proposed development to be quite reasonable in its design, having regard to principles of view sharing. 44 However, for the reasons I have given earlier, I am of the opinion that the present application which involves the demolition of the building on the subject site should be refused. 45 Accordingly the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits, other than exhibits B, K and 5, may be returned. ___________ A J Nott, 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. 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