Land and Environment Court of New South Wales CITATION : Aitchison v Leichhardt Municipal Council [2005] NSWLEC 648 APPLICANT Aitchison (Trouton) PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11244 of 2004 CORAM: Tuor C Development Application :- Demolition of exiting cotage and construvtion of two houses Impact on heritage significance of conservation area KEY ISSUES: SEPP 1 objection to floor space ratio Building envelope Leichhardt Local Environmental Plan 2000 LEGISLATION CITED: State Environmental Planning Policy No 1 DATES OF HEARING: 27-28/10/2005 EX TEMPORE JUDGMENT DATE : 10/28/2005 APPLICANT Mr A Pickles, barrister Instructed by: Mr M Ball, planner LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 31 October 2005 11244 of 2004 Aitchison (Trouton) v Leichhardt Municipal Council 1 COMMISSIONER: This is an appeal against the refusal by Leichhardt Municipal Council (the council) of a development application for demolition of an existing timber cottage and construction of two four-level attached dwellings at 13 Trouton Street, Balmain (the site). The site and its context 2 The site, its context and the history of the application are in the amended Statement of Basic Facts. 3 Briefly, the site is located on the northern side of Trouton Street. It has an area of 285 sq m, a width of about 9.3 m and a depth of 30.5 m. The site slopes from Trouton Street to Campbell Lane at the rear about 3.8 m. 4 There is a single storey detached timber cottage on the site, which dates from the 1850s. It is set back about 4 m and is below the level of Trouton Street. 5 Development to the east is a row of two storey terraces, which continue up Trouton Street to Campbell Street. Two storey development also occurs on the southern side of Trouton Street, from opposite the site to Campbell Street. 6 Immediately adjoining to the east at 9 to 11 Trouton Street is a pair of Victorian terraces with two storey plus attic to the street and a lower ground floor level to the rear. 7 Immediately to the west is 15 Trouton Street, which is a single storey cottage with a later two storey extension to the rear. Other development in the street is single storey houses, some with two storeys to the rear. The Proposal 8 The proposal is similar to the terraces to the east, being two storeys plus attic to the street and an additional level to the rear taking advantage of the slope of the land. 9 The proposal is set back 1 m from Trouton Street to the balcony and 2.1 m to the main face of the building. This setback is slightly less than 15 Trouton Street but similar to 9 and 11 Trouton Street. 10 The proposal is built to its side boundaries at Trouton Street and then set back from the side about 900 mm. 11 A single car space is proposed for each dwelling, accessed on Campbell Lane. Planning Framework 12 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (LEP 2000) and the proposal is permissible with consent. 13 Under cl 19(2) of LEP 2000 a maximum floor space ratio (FSR) of 0.7:1 is permissible. The proposal has an FSR of about 0.9:1 and therefore does not comply with this standard. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1). 14 The site is within the Balmain Conservation Area. Clause 15 of LEP 2000 provides relevant objectives for heritage conservation: (a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes trees, potential archaeological sites and conservation areas, and provide measures for their conservation, (c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items, (d) to allow compatible and viable adaptation and reuse of the fabric of heritage significance, 15 Clause 16 (8) relates to development within a conservation area and states that: Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of work or the subdivision of land within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area with particular regard to: (a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected and the contribution it makes to the conservation area, and (b) the compatibility of the proposed development with the conservation area including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development. 16 Under Leichhardt Development Control Plan 2000 (the DCP) the site is within the Campbell Street Hill Precinct, which forms part of the Mort Bay Distinctive Neighbourhood. 17 The DCP articulates the decided future character for the urban form of this neighbourhood as relevantly to: Maintain the single storey scale and form over most of the slope from Darling Street to the bay, applying a 3.6 m envelope except on dominant corners where 6 m may be appropriate, particularly with parapet forms…… Campbell Street and east of Campbell Street was developed earlier and has a character close to that of East Balmain and parts of Gladstone Park….. Two storeys is more common, where a 6 m wall height is appropriate." 18 And further: Conserve existing varied style of housing with special regard to the modest scale and simple, unadorned nature of the architecture. Conserve the stone buildings and other built fabric dating from the mid nineteenth century." 19 The parties disagreed as to whether the 3.6 m or the 6 m control was applicable to the site. 20 The proposal generally complies with the other DCP controls and these were not raised as issues in the case. 21 The DCP also has specific controls for particular types of residential development. Control B4.2 relates to the conservation of small detached houses. The principles of this control can be summarised as being to prevent the demolition of or unsympathetic additions to small houses that contribute to the area. 22 The rationale is stated as being that: Modest houses in their garden settings, usually single storeyed and often timber, contribute to the character of the bulk of Leichhardt's residential areas. Small houses are under increasing threat of unsympathetic enlargement with increasing pressure to maximise floor space, or demolition for larger houses, or multi-dwelling development. The intent in part is to conserve the diversity of houses both in terms of the variety in a particular street, and the contrast within the suburbs making up Leichhardt. The principal aim is to prevent demolition where retention is desirable, at the same time as giving guidance on complimentary alterations and additions. 23 Control B4.2 provides a process to be followed if demolition is proposed. This requires the applicant to demonstrate that: The house should not be conserved in terms of its heritage value, its contribution to the streetscape and townscape, its suitability for housing or due to irreversible structural failure. 24 If the house does not meet the heritage or streetscape criteria the other criteria do not need to be addressed. Issues 25 In this appeal the key issue between the parties was whether the existing cottage, being the original two rooms, should be retained as part of any redevelopment of the site. 26 I visited the site and heard from a number of residents whose main concerns can be summarised as: · the demolition of a building which contributes to the conservation area and its replacement with two houses would adversely impact on the conservation area; · any infill development should be a transition between the two-storey terrace houses and the single storey dwellings; and · the provision of car parking was inadequate for the site. 27 The residents at 6 and 8 Trouton Street were concerned about loss of light and views. Heritage impact 28 The Court heard evidence from the Court appointed heritage expert, Mr R Staas, Mr G Edds for the council and Mr P Lonegan for the applicant. These experts held different opinions on the heritage significance of the cottage, its streetscape value and whether it was a contributory item in the conservation area. 29 Mr Edds, whose expertise is the fabric analysis and assessment of early timber buildings, was initially approached by both council and the applicant for his opinion on the nature and significance of the surviving fabric and was subsequently engaged by council. 30 Mr Edds assessment of the building confirmed Mr Staas initial opinion that: The central core of the existing structure contains a potentially significant (though partially modified) example of late colonial timber construction that is probably rare in the immediate context and represents the second wave of development in the area around the time of the establishment of Mort Dock in the early 1850s. I am also of the opinion that this part of the property is reasonably sound and capable of appropriate conservation and adaptation while allowing for substantial development of the rear portion of the site. 31 Mr Edds conclusion was that: The on-site fabric investigation and analysis leaves no question to the author that the two room workers' cottage located at 13 Trouton Street is of a period of construction around the mid nineteenth century. It is my professional opinion that its rarity is in its small two room form, its low scale and its unusual construction technique and seemingly one of only a few or perhaps the only remaining example of small timber workers' cottages in the east Balmain area which certainly heightens its cultural significance beyond the local level. 32 Further, Mr Edds states that: It seems reasonable that this cottage should be considered at the "State" significance level of recognition. A greater comparative analysis may be required to fulfil the criteria for recognition at State level. 33 I note that council has resolved to include the cottage as an item in LEP 2000 but the Department of Planning has advised that it does not support a site specific LEP amendment, especially as the building is listed within a conservation area. 34 Mr Lonegan agreed that the 1850s cottage was of some heritage significance but disagreed with the other experts that it was of such significance to warrant retention. 35 The key reasons for this difference in opinion between the experts was articulated in the Joint Statement as being: The extent and level of integrity of the original fabric of the building and the significance of the remnant fabric. Mr Lonegan considers that the amount of alteration and change that has taken place over time reduces the level of significance. He believes that the changes are substantial and detrimental to an understanding of the original form and detail. Mr Edds believes that there is sufficient evidence both in built form and early fabric to indicate that the building has significance and is capable of conservation and adaptation. Mr Staas is in general agreement with Mr Edds and considers that the building represents the normal degree of change that would be expected of a building of this type and age. 36 Mr Lonegan maintained that the unsympathetic later verandah and the changes to the windows and doors on the Trouton Street elevation significantly diminish the significance of the building and its ability to be understood or interpreted from the street. 37 Mr Edds considers these changes to be "cosmetic and reversible" and that the cottage retains a high proportion of its cottage form, structure and original fabric intact and identifiable. 38 Mr Staas agreed that the cottage provided evidence of early construction techniques and adds to the character and significance of the streetscape of Trouton Street. 39 The other key disagreement between the experts as to why the cottage was not of such significance as to warrant retention was that the significance of the building was largely its age and unusual construction techniques, which are documented in detail in Mr Edds report. 40 Mr Lonegan considered that much of this original fabric is internal and covered by cladding and therefore not easily able to be interpreted. In his opinion the structure could best be understood by being demolished and documented and made publicly available. In his opinion it was unreasonable to expect a private owner to conserve and present a building, which exhibited technical idiosyncrasies of its frame in a meaningful way. 41 Both Mr Staas and Mr Edds agreed that internally the structure would be hidden from view but not that this reduced its significance or justified its removal. They considered that the structure of buildings is often not visible and that this does not reduce their importance. They also stated that sufficient of the original fabric would be visible from the street and this, read in conjunction with the form of the building, would be sufficient to provide an understanding of it as an early worker's cottage. 42 Mr Lonegan also maintained that the extent of changes that would be required for the cottage to be adaptively reused, particularly BCA compliance, would adversely affect its significance. 43 Mr Eddes and Mr Staas did not agree and all the experts agreed in the Joint Statement that: Substantial development of the site is possible while retaining and conserving the original two room cottage structure. While there may be some agreement as to how this might be done there is no substantial disagreement with the principle involved. 44 Mr Lonegan undertook a heritage assessment under the New South Wales Heritage Office Guidelines and concluded that "the place is not significant, does not fulfil any of the New South Wales Heritage Assessment Criteria and is not a good example of its type". 45 During the hearing Mr Staas and Mr Edds undertook a similar exercise. Both these experts commented that it was not sufficient time to undertake a proper assessment but they concluded that "the place satisfied three of the heritage assessment criteria, at least at a local level". 46 In some ways the detail of this assessment was an academic exercise as the criteria are to assess the significance of an individual building largely to determine whether it warrants listing as a heritage item and is of local or state significance. While cl 16(8) requires a consideration of the heritage significance of a building this is not on the basis of its individual importance as an item but on the contribution it makes to the conservation area. 47 Both Mr Staas and Mr Lonegan agreed that, as a general principle, contributory buildings in conservation areas should be retained unless there are structural or other reasons that prohibit this. 48 Mr Staas explained that the removal of a contributory building affects the heritage significance of the conservation area as it removes part of the area's heritage. Even though an infill or replacement building may retain the character of the conservation area this is not retaining heritage significance as the original element is removed. 49 Mr Staas considered the cottage to be a contributory building and recognised that: While the loss of the building would not have a strong visual impact on the general character of the conservation area, the historical significance of the area as a collection of surviving buildings representing the evolution of the place from colonial times to the present day and demonstrating mid nineteenth century lifestyles would be adversely affected by the loss to a significant degree. 50 Mr Lonegan did not consider the building to be contributory and therefore concluded that it could be demolished provided the replacement building contributed to the setting of the conservation area. 51 In balancing the different heritage evidence, I find that there is sufficient evidence to demonstrate that the cottage contributes to the conservation area and is of sufficient heritage significance to warrant conservation within a redevelopment of the site. 52 Part of the significance of the conservation area is the evolution of residential use, which is demonstrated through a range of houses of different periods and styles reflecting the different social structure of the area. Grand sandstone houses are intermingled with workers' cottages or terraces. Trouton Street and its immediate area demonstrate this diversity. 53 Control B4.2 of the DCP recognises that small houses, particularly single storey and timber ones, are under increasing pressure for redevelopment and establishes the process for their retention or demolition. 54 The cottage satisfies criteria 1 and 2 of B4.2, being of heritage and streetscape significance. 55 While detailed evidence of an alternate scheme were not provided the experts agreed that the cottage could be retained as part of a viable redevelopment of the site as required by criterion 3. 56 The experts also agreed that the structural condition of the building did not warrant its demolition and met criterion 4. 57 Therefore it has not been demonstrated that the demolition of the cottage meets the requirements of B4.2 of DCP 2000. 58 As stated above, the cottage is of heritage significance sufficient to contribute to the conservation area and its removal, without tested justification, would adversely affect the heritage significance of the conservation area. The demolition of the item therefore does not satisfy cl 16(8) of LEP 2000 or meet the heritage conservation objectives in cl 15, including objective (d) "to allow compatible and viable adaptation and reuse of the fabric of heritage significance". It has not been demonstrated that the cottage cannot be reused or adapted into a viable redevelopment of the site that is compatible with the building itself and the conservation area. 59 I note that redevelopment of the site which incorporates the cottage may require a relaxation of some controls in the DCP including the Rear Building Location Zone and that such a proposal may have different impacts on residential amenity which would need to be assessed. However, the evidence before me is that this is reasonably feasible and without such an option being tested, the demolition of the cottage is not reasonable or justified. On this basis the application must fail. Other issues 60 As this is a threshold issue I will not deal in any detail with the other main issues in the appeal, being the SEPP 1 objection to FSR development standard and the appropriate building envelope. 61 I accept the evidence of Mr Smith, the Court appointed town planning expert, that the non compliance with the FSR and the building envelope are interlinked. Essentially if the building envelope generated by a 6 m wall height is appropriate then the FSR non-compliance is justified whereas if the building envelope generated by a 3.6 m envelope is appropriate then the breach in FSR requirement would not meet the objectives of the standard set out in cl 17, i.e., to be complimentary and compatible and to achieve the desired future character of the area. 62 The desired future character for the area stated in the DCP envisages a single storey character and form over most of the slope from Darling Street to the bay by applying the 3.6 m control except for dominant corners. 63 The DCP recognises that in Campbell Street and east of Campbell Street two storey development is more common and that the 6 m wall height may be appropriate. This site, although to the west of Campbell Street, also demonstrates the typology of two-storey corner buildings with two-storey terraces stepping down from the corner with the rest of the street being single storey. 64 The site marks the transition between the existing two storey houses from Campbell Street and the single storey houses. If the site were to be redeveloped the question is whether it should be an extension of the two storey terraces or the single storey houses. 65 Mr Staas considered that the two storey proposal was appropriate infill development, although he stated that he had not examined this in relation to what the planning controls aim to achieve or the desired future character for the area. 66 Mr Smith considered the eastern alignment of the site and 8 Trouton Street opposite, represented the boundary between two storey and single storey development and that the proposal would represent an intrusion into the single storey section of the street. He recognised that 8 Trouton Street is two storeys but that it is detached, set back from the street and at a lower height than the adjoining terraces to the east and therefore forms a transition between the two storey and single storey part of the street. 67 Mr Smith considered that a 3.6 m wall height would provide a similar transition and was appropriate development on the site under the planning controls especially as it would also meet the FSR control for the site. 68 I accept Mr Smith's evidence that while the proposal is compatible and forms a continuation of the two storey terrace style development to the east it does not achieve the desired future character of the area which envisages a predominantly single storey character. The site is currently single storey and the appropriate termination of the two storey development is the existing terraces, which step down from the corner of Campbell Street. These terraces reinforce the corner. A further extension would result in a greater dominance of two storey elements in the streetscape, a feature not envisaged by the DCP. Orders 69 For the above reasons the orders of the Court are: 1. The appeal is dismissed. 2. The development application (DA 04/0319) to demolish an existing cottage and outbuildings and construct two four level dwellings at 13 Trouton Street, Balmain, is refused. 3. The exhibits, except exhibits 1 and 2 may be returned. 4. No order as to costs. ________________________ Annelise Tuor 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.