Land and Environment Court of New South Wales CITATION : Harbour Port Constructions Pty Limited v Woollahra Municipal Council [2004] NSWLEC 283 APPLICANT: Harbour Port Constructions Pty Limited PARTIES : RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 11193 of 2003 CORAM: Bignold J KEY ISSUES: Development Application :- demolition of contributory item in heritage conservation zone-erection of a replacement dwelling-house-impact of proposed development on heritage significance. LEGISLATION CITED: CASES CITED: Environmental Planning and Assessment Act 1979, s 79C DATES OF HEARING: 5, 6, 13/02/2004 DATE OF JUDGMENT: 06/04/2004 APPLICANT: Mr T Hale SC SOLICITORS Freidman Reeves LEGAL REPRESENTATIVES: RESPONDENT: Ms M Hawley, Solicitor SOLICITORS Phillips Fox JUDGMENT: 1 IN THE LAND AND Matter No: 11193 of 2003 ENVIRONMENT COURT Coram: Bignold J OF NEW SOUTH WALES 4 June 2004 HARBOUR PORT CONSTRUCTIONS PTY LIMITED Applicant v WOOLLAHRA MUNICIPAL COUNCIL Respondent JUDGMENT A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council's deemed refusal of a development application for the demolition of an existing dwelling-house erected on property known as No 54 Fletcher Street, Woollahra (the development site) and for the erection of a replacement two storey dwelling-house thereon. 2. After the present appeal had been instituted, the Council conformably to the EP&A Act, s 82(2) determined the development application by refusing consent for the following reasons as notified to the Applicant in the Notice given pursuant to the EP&A Act, s 81(1)(a): 1. The proposed demolition of the subject site is not supported on conservation grounds as the subject house is considered to be a good example of a Victorian weatherboard cottage which is contributory to the conservation area. 2. The proposed demolition of the cottage would not comply with Part 1 Section 2(g) and Part 4 Section 28 of Woollahra Local Environmental Plan 1995. 3. The proposal would not comply with Part 9 of Woollahra Residential Development Control Plan 1995 with regard to soft and porous landscaping. 4. The proposal would not comply with Part 7 of Woollahra Residential Development Control Plan 1995 with regard to floor space. 5. The proposal would not comply with Part 8 of Woollahra Residential Development Control Plan 1995 with regard to setbacks. 3. These reasons were amplified and/or particularised in the Council's Statement of Issues filed in the proceedings. In particular, reasons 1 and 2 were translated into the following amplified issues in the Council's Statement of Issues (which have been the focal point of the hearing): 1. Whether the proposed development is inconsistent with the objective in Clause 2(2)(g)(ii) of the Woollahra Local Environmental Plan 1995 ( WLEP ) and therefore whether the Court can grant consent to the proposed development pursuant to clause 8(5) og the WLEP. 2. Whether the proposed development will have an unacceptable impact on the heritage significance of the heritage conservation area within which the development site is located. 3. Whether the proposed development is appropriate having regard to the classification of the property as A2—Buildings of Significant Area and Streetscape significance under the Respondent's Policy for the Control of Changes to facades & alterations to Buildings in Bondi Junction, Paddington & West Woollahra, adopted by Council in February 1984. 4. The hearing of the present appeal was held concurrently with the hearing of another appeal (Matter No 11172 of 2003) in respect of another development application relating to the development site proposing the demolition of the existing dwelling-house. (That development application had been made in 2002 on behalf of the then owner of the development site, which was later acquired by the Applicant in the present proceedings in September 2003.) B. THE PROPOSED DEVELOPMENT 5. The development site comprises a small residential lot having a site area of 191 m2 (approximately 6 m x 32 m) with a frontage of 6 m to Fletcher Street. Its size is typical of the small sized lots of land fronting Fletcher Street which were created by residential subdivisions towards the end of the 19th century. 6. Erected on the development site is a single fronted small weatherboard workers cottage with an iron roof which was erected in 1904, together with the nearly identical cottage erected on the adjoining property to the west at No 56 Fletcher Street. 7. The development site is included in the Residential 2(b) Zone created by the LEP. It is also included in a heritage conservation area created by the LEP. It is also included in the Fletcher Street, Precinct of the Woollahra Conservation Area created by the Woollahra Heritage Conservation Area Development Control Plan 2003 (the DCP) which was adopted by the Council on 24 November 2003 and came into force on 3 December 2003. 8. The proposed development comprises (i) the demolition of the existing cottage; and (ii) the erection of a new two storey dwelling-house comprising an underground basement garage, a ground floor comprising dining and living rooms and kitchen and first floor comprising four bedrooms and two bathrooms. A recessed courtyard space (with void above) is created at ground level mid block adjacent to the cottage and No 56 Fletcher Street. C. THE RELEVANT PLANNING CONTROLS 9. The principal planning controls are those imposed by the LEP. Those controls relevantly comprise the following: (i) the stated aims and objectives of the LEP (vide cl 2); (ii) the development control table in respect of the Residential 2(b) Zone (vide cl 8); and (iii) the heritage conservation provisions of Part 4 of the LEP. 10. In addition to those specified LEP provisions, the following two planning documents are relevant in this case— (i) the Council's 1984 policy document "Policy for the control of changes to facades and alterations to buildings in Bondi Junction, Paddington and West Woollahra" (Exhibit E) (the "Facades Policy"); (ii) the Residential Development Control Plan (Exhibit H). 11. The DCP, subject to its transitional and savings provisions, repealed a number of planning documents, policies and codes, including the Facades Policy and the Residential Development Control Plan. 12. The relevant transitional and savings provision contained in Section 1.8 of the DCP provides that the various planning documents that are otherwise repealed "continue to apply….to development applications….that were made prior to but not determined on the date of commencement of this plan". 13. Although the parties have conducted the concurrent appeals upon the basis that that savings provision applies to the present case, it is doubtful whether this commonly adopted assumption is correct, because each of the development applications, the subject of the concurrent appeals, had been determined by the Council prior to 3 December 2003 being the date of the commencement of the DCP: vide Section 1.10. 14. It appears to me to be clear that the existence of the pending appeals to this Court does not have the effect of altering the fact that each of the relevant development applications had been determined prior to the date of commencement of the DCP. 15. However, in view of the common assumption made by the parties, I shall determine the appeals conformably to that common assumption. However, even on this assumption, the contents of the DCP (Exhibit 6) and the supporting Background Document dated 12 February 2002 (Exhibit Q) have relevance to the present cases (ie the concurrent appeals). 16. It is now necessary to recite the relevant provisions of the LEP under the headings that I have earlier enumerated. (a) The stated aims and objectives 17. Clause 2(1) states the aims of the LEP which include the following: (b) to provide a comprehensive planning instrument that is clear and explicit but which provides flexibility in its application, (c) to promote the management, development, conservation and economic use of property within the area of Woollahra. (e) to ensure that growth within the area of Woollahra occurs in a planned and co-ordinated manner, (g) to conserve the environmental heritage of the area of Woollahra. 18. Clause 2(2) states the objectives of the plan which include the following: (a) in relation to residential development— (i) to promote the development of land to which this plan applies as a comprehensively planned residential community providing recreational, commercial, retail and community facilities of a type which are appropriate to meet the needs of the population to be accommodated, (iv) to encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations throughout the area of Woollahra, (g) in relation to heritage conservation— (i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement, (ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas, (iii) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas (k) in relation to urban design— (i) to promote the creation and upkeep of an attractive and comfortable public environment, (ii) to retain and enhance the existing elements of the physical environment of the area of Woollahra that, in the opinion of the Council, contribute to the attractive public environment, and (iii) to require that design and siting of new development enhance the attributes of its site and improve the quality of the public environment, and (b) The Development control table in respect of the Residential 2(b) Zone 19. Clause 8 of the LEP insofar as it applies to development in the Residential 2(b) zone relevantly provides a follows: 8. Development control tables (1) The following development control tables set out the zones applying to the land to which this plan applies. (2) Each development control table identifies the manner in which a zone is shown on the land use map, describes the zone, states the objectives of the zone, identifies development which may be carried out without or only with the consent of the Council, identifies development which is prohibited and makes references to related provisions. (3) Land is within a zone described in a development control table if it is shown on the land use map in the manner specified under the heading Zone identification on the land use map for that table. (4) The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision in Part 4 and 5 of this plan, the special provision or heritage provision shall prevail. (5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. DEVELOPMENT CONTROL TABLE – ZONE NO. 2(b) – (RESIDENTIAL "B" ZONE) (4) Zone identification on the land use map Coloured scarlet, edged red and lettered 2(b). (4) Description of the zone The Residential B Zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls, contained in Part 3, set the maximum permissible density and building heights for new development. Site area and frontage controls, also contained in Part 3, specify minimum site requirements for new development. (4) Objectives of the zone The objectives are: (a) to provide for areas of medium and high density residential development in appropriate locations, (b) to encourage a diversity of dwelling types and tenure, (c) to allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (d) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (e) too protect the environmental attributes of the foreshore lands. 4. Development which may be carried out without development consent Development for the purpose of: Drainage; home occupations carried on in dwelling-houses; roads. 5. Development which may be carried out only with development consent Development for the purpose of: Bed and breakfast accommodation; boarding houses; child care centres; dwelling-houses; home industries; home occupations carried on in residential flat buildings; hospitals; parks and gardens; medical consulting rooms; residential flat buildings; utility installations (other than gas holders or generating works); works to enable public pedestrian access to and along Sydney Harbour foreshore. 6. Development which is prohibited Any development other than development included in Item 4 or 5. 7. Related provisions Parts 3 and 4 of, and Schedules 2 and 3 to, this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out. (c) The heritage conservation provisions 20. These provisions which are contained in Part 4 separately relate to— (i) heritage items ; (ii) heritage item group ; and (iii) heritage conservation areas 21. Each of these three terms is defined in Schedule 1 of the LEP. 22. It is to be noted that some 600 heritage items (including items in a heritage group) are described in Schedule 3 to the LEP and the Heritage Conservation Area shown on the LEP Heritage Conservation Map (Exhibit F) includes most of the area known as the suburb of Woollahra, including all lands fronting Fletcher Street. 23. Clause 26 of the LEP contains provisions with respect to heritage items and items being part of a heritage item group. 24. Clause 28 contains the following provisions with respect to heritage conservation areas:— (1) A person shall not, in respect of a heritage conservation area: (a) demolish or alter a building or work within the area, (b) damage or move a relic, or excavate for the purpose of exposing or removing a relic, within the area; (c) damage or despoil a place within the area, or (d) erect a building on or subdivide land within the area, except with the consent of the Council. (2) The Council shall not grant consent to an application required by subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. (3) The Council shall not grant consent required by subclause (1) unless it has considered a statement of heritage impact or a conservation plan or both as may be required by the Council. 25. Schedule 1 includes the following relevant definition: heritage significance means historic, scientific, cultural, social, archaeological, architectural, natural, or aesthetic significance. 26. The Facades Policy was adopted by the Council in February 1984. Section 1 contains an introduction to the Policy and includes the following statements: Woollahra Municipality is rich in buildings and areas of historic and heritage significance. It is an objective of the Council to identify, conserve and enhance the special qualities of these buildings and areas; this in a spirit of cooperation with owners, consistent with the need to retain high standards of accommodation for residents. In order to comply with the statutory requirements contained in the Environmental Planning and Assessment Act, 1979, prior to the preparation of a Local Environmental Plan to replace the existing Woollahra Planning Scheme Ordinance, Woollahra Council carried out an environmental study. The study, amongst other things, identified four areas, namely Bondi Junction, Watsons Bay, West Woollahra and Paddington, as having conservation merit in historical and/or architectural terms. (See maps 4, 5, 6 and 7) To determine the conservation merit of each building within the four precincts, Council employed consultants to undertake a survey. The survey involved completing a survey sheet and photographing each property and finally the preparation of a report recommending future action. Information gathered on the survey sheets includes existing land use, building type/construction, height in storeys, approximate age, apparent condition (external only), statement of action permitted, reasons for retention and suggested works that should be undertaken to restore the building to its original appearance. This Policy is intended to provide a classification of each property within the four precincts. It also sets down a general policy indicating the extent to which a building may be altered or added to as far as urban conservation considerations are concerned. This however, must not be taken as Council's final consideration since all applications will be individually assessed with consideration being given to its classification amongst other issues. The classification system has been designed primarily to provide an indication of the possibility for alterations and/or additions at the preliminary stages prior to preparing and submitting an application; Council's officers should still be consulted prior to submitting a development and/or building application. 27. Section 2 enumerates a number of conservation planning objectives including the following: 1. To retain in general, existing buildings exhibiting historical or architectural merit. 2. To ensure retention of facades of historically/architecture important buildings, works and streetscapes. 3. To maintain the external elements of significant buildings visible from the street in their original condition. 4. To ensure that significant buildings have their principal facades appropriately restored and any alterations are in character with the historical style and period of the building. 5. To ensure that new development or alterations are compatible and will harmonize with existing historical buildings, particle, in areas identified as having historically significant streetscape. 6. To ensure that any infill buildings or additions to existing buildings: a. are compatible in scale, form and character with the surrounding area and historical building style. b. maintain the visual and environmental amenity of the area. 11. To prevent the demolition of any building, whether or not forming part of a group, having architectural or historic merit without the prior consent of Council. 13. To ensure a high standard of environmental protection in the defined conservation area. 28. Section 3 states that a graded classification for all buildings within the identified conservation areas of Watsons Bay, West Woollahra, Paddington and Bondi Junction has been development "to provide a reference to appropriate controls and guidelines". The graded classification system included the following classifications— A1 Listed/historical buildings A2 Buildings of Significant Area and Streetscape Significance B Buildings of Lesser Area and Streetscape Significance; and C Buildings having no particular conservation merit—possible demolition 29. The existing cottage on the development site is, in common with all properties fronting Fletcher Street, included in the Bondi Junction Conservation Area. It is given a A2 Classification. The adjoining properties to the west (Nos 56-60) are given a B Classification and the adjoining properties to the east (Nos 48-52) are given a C Classification. 30. The Façade Policy states the following in respect of the A2 Classification and B Classification— A2 Buildings of Significant Area and Streetscape Significance Included in this classification are buildings which are a significant part of the character of the area, because of their age and style,. importance in a streetscape sense and providing building lines of visual significance. This includes fences, walls and modern buildings that fit comfortably in scale and character with those existing. These buildings are generally in very good to excellent condition, in terms of the retention of original elements. Policy: These buildings are prominent, architecturally important and/or in an harmonious or identical row and therefore care should be taken to conserve the feature/s that has/have given them a high grading. For example, in an individual building it may be the detailing and in a row it may be the total uniformity or pattern. In general only minimal alterations will be possible. B. Buildings of Lesser Area And Streetscape Significance Included in this classification are those buildings, the presence of which are essential to the streetscape character of the area. They are important to the streetscape in terms of age, style and general design and form (including modern buildings). They form elements of visual importance. However, they may often be irregularly located as related to the more general arrangement of adjoining buildings. Because of their position or the discontinuity they produce in an otherwise regular group of facades they do not have such an important impact on the streetscape as the previous category. Policy: These buildings also require particular attention to the original form. However, due to their irregularity, position in relation to adjacent or surrounding buildings, setback or physical condition they may be altered or modified but only where the alterations or modifications will not detrimentally affect the basic elements of the streetscape. 31. The Council's Residential Development Control Plan (Exhibit H) which came into force on 13 June 1995 contains conventional controls governing such matters as landscape requirements, maximum floor space ratio, boundary set backs. There is no need to recite the relevant provisions because according to the totality of the town planning evidence it is common ground that most, if not all areas in dispute can be resolved by the imposition of conditions of development consent requiring further modifications to the already amended development proposal. However, in this respect, it is important to note that the town planning experts deferred to the opinions of the heritage experts in respect of the heritage conservation issues raised in this case. (These are Issues 1, 2 and 3 in the Council's Statement of Issues that I have earlier recited). D. THE PLANNING EVALUATION OF THE PROPOSED DEVELOPMENT 32. As I have just noted the only dispute in the present case concerns the heritage conservation issues of the proposed development in both its components—(i) the demolition of the existing cottage; and (ii) its replacement by a new two storey dwelling-house—but principally in respect of the demolition of the existing cottage (without which the replacement building is not possible). 33. The evidence relevant to these heritage conservation issues comprises— (i) the expert testimony going directly to these issues of Mr Phillips for the Applicant and Mr Logan for the Council, both of whom are heritage consultants; (ii) the expert testimony going indirectly to these issues concerning the state of repair and structural condition of the existing cottage and the need for substantial repair work of Mr Whelan for the Applicant and Mr Wiltshier for the Council, both of whom are consulting structural engineers and the expert testimony of Mr Hall, a building consultant, for the Applicant who undertook a dilapidation report in respect of the existing cottage; and (iii) the testimony of Mr Turner (the principal of the Applicant which purchased the development site in September 2003) concerning his desire to develop the site with a new dwelling-house to provide suitable accommodation for himself and his family. 34. In evaluating the expert evidence, it is instructive to see how the streams of evidence developed in the case and how the engineering evidence fits with the heritage conservation evidence. 35. The heritage conservation evidence began with the Heritage Impact Statement (HIS) prepared by Mr Phillips which accompanied the development application as required by cl 28(3) of the LEP. The HIS described the existing cottage (both its exterior and interior) and the surrounding development in Fletcher Street, commented upon its architectural integrity (external and internal) and the condition of the existing cottage (describing it as being "in a parlous state of repair" and referring to a Structural Inspection Report carried out in 2001 by a Structural Engineer), made an assessment of the streetscape significance, and contained the following "statement of significance": No. 54 Fletcher Street is representative of worker's cottages built around the turn of the century. As a type they are becoming rarer in the Woollahra Municipality. This particular cottage demonstrates no outstanding features to distinguish it from many other worker's cottages in this or other municipalities. Fletcher Street, makes a very limited contribution to the West Woollahra Conservation Area. It has no listed items and any sense of continuity of the streetscape or character of the streetscape reflecting a particular aspect of heritage has been obliterated by recent development. The item has potential to contribute in a positive manner to the streetscape. Because of the diminished quality of the streetscape, this potential is not realised 36. The HIS then sets forth a heritage impact assessment (at p 7) which is summarised as follows: The proposal for demolition of an existing cottage and the construction of a new residence will provide a sympathetic replacement of the existing dwelling. The cottage is structurally unsound and is not of sufficient significance to warrant listing in the Schedule of Heritage Items in the Woollahra LEP. Given the chaotic nature of the streetscape, the proposal will form a transitional building of appropriate scale to each of its neighbours and in so doing restore some order to the streetscape. I recommend that Woollahra Municipal Council accept the documented condition of the existing building on the site and allow its replacement with a sympathetic new infill dwelling. 37. The HIS was considered by the Council's Heritage Officer whose recommendation against the proposed demolition was in the following terms: The proposed demolition cannot be supported. The building is completely in tact, is ' one of as pair and dates from the key period of significance of the conservation area. Although deteriorated, is still retains substantial original fabric which could be repaired by rectifying the drainage problems, replacing deteriorated fabric and re-levelling the building. There is scope for further additions/alterations at the rear. The applicant should be encouraged to retain the building and restore it. 38. In his Statement of evidence (Exhibit 6) Mr Phillips addresses in particular Issues 2 and 3 in the Council's filed Statement of Issues. His opinions in support of the proposed demolition and replacement dwelling-house are clearly and profoundly influenced by very poor state of repair of the existing cottage and the extent of repair work recommended by the structural engineer in his Inspection Report in 2001. 39. Mr Logan, in his Statement of evidence (Exhibit B) also addressed the three heritage/conservation issues raised by the Council's Statement of Issues. He concluded (for the detailed reasons contained in his Statement) that (i) the proposed development would be inconsistent with the stated objectives in cl 2(2)(g)(iii) and (iii) of the LEP; (ii) would have an unacceptable impact on the heritage significance of the Heritage Conservation Area within which the development site is situate; and (iii) was inappropriate development in terms of the Facades Policy. Whereas Mr Phillips' Statement of Evidence places obvious weight upon his view of the dilapidated condition of the existing cottage (doubtless informed by the structural engineer's Inspection Report of 2001) Mr Logan's statement expresses a quite different view of the condition of the cottage when it states the following at par 46: Overall, there is little evidence of damp and the structure appears to be mainly sound, save for a small area of settlement in a portion of the eastern side wall. The damaged area appears to me to be readily repairable. During my inspection, I could not see any evidence to support a suggestion that the cottage is in danger of collapse, as is claimed in the structural report referred to in the Heritage Impact Statement. The cottage appears to me to have been occupied until relatively recently and I believe that with the updating of some of its services, it could continue as a residence for many years to come. 40. I should also note that both the heritage experts' statements of evidence provide competing opinions on the heritage significance of (i) the heritage conservation area in which the development site is situate and (ii) the existing cottage. 41. The heritage experts conferred following the exchange of their respective statements of evidence and produced a Joint Report (Exhibit A). That Report states the following points of agreement and points of argument: Points of Agreement · The existing Cottage No, 54 Fletcher Street, Woollahra was built in 1904 as one or a pair of identical cottages. · The cottage is substantially intact externally, apart from the chimneys and some verandah details which are now missing. · The cottage is substantially intact internally, both in its layout and fabric. It is now agreed that the weatherboards of front facade ere original, These match the weatherboards on the front facade of the neighbouring cottage at No. 56. · The rear bathroom/laundry wing is a later addition and is of little heritage value. · The building has historic and aesthetic significance within the Woollabra Conservation Area, as a surviving weatherboard workers' cottage, is rare within the municipality of Woollahra. · The Cottage has been listed as a contributory Item by Council for approximately 20 years. · As a contributory item, the building warrants retention on heritage grounds, and if there was no structural or safety and imperative for demolition it should remain. · The building is known to have been occupied in 2001, but its date of last occupation is not known. · The areas of the building identified in the Applicant's structural report as requiring re-building are the rear bathroom/laundry addition and an area adjacent to the east elevation, · Replacement of the rear bathroom/laundry addition would not adversely affect the heritage significance of the building. · Further Information is required regarding the extent of termite damage (if any) to the cottage, Areas of Continuing Disagreement · The degree of work that would be needed to enable the cottage to continue as a residence with a reasonable level of amenity and whether this can be undertaken without destroying its heritage value. · The appropriateness of the proposed replacement building within the streetscape context of the conservation area, in particular, its scale, form and character 42. It is obvious from the contents of the Joint Report that Mr Phillips significantly retreated from his original opinion supporting the demolition of the existing cottage. This is particularly demonstrated in the point of agreement contained in the Joint Statement (Exhibit A): As a contributory item, the building warrants retention on heritage grounds, and if there was no structural or safety imperative for demolition, it should remain. 43. I take this statement to mean that the heritage experts jointly consider that the existing cottage should be retained on their heritage assessment unless there is an imperative based upon structural and safety considerations for its demolition. 44. This understanding of the statement also needs to recognise the disagreement between the heritage experts concerning (i) the degree of repair/restoration work needed to render the cottage fit for residential usage; and (ii) whether carrying out of the required work would destroy the heritage value of the cottage. 45. These two matters of disagreement between the heritage experts appeared to be resolved by their Supplementary Joint Statement (Exhibit T) which was prepared following their consideration of the Joint Statement prepared by the Consulting Engineers (Exhibit B) which came into existence after the heritage experts had prepared their original Joint Statement (Exhibit A). 46. The Supplementary Joint Statement (Exhibit T) stated the following: If the work identified in the Engineers' report is undertaken the cottage will retain its general appearance. · It would be able to be read in the streetscape as an old cottage. · It would retain its heritage value as a contributory item within the conservation area. 47. At the same time that the Supplementary Joint Statement was tendered (on the second hearing day), Mr Phillips prepared a separate statement expressing the following opinions: · Although the reconstruction work proposed would retain the building's contribution to the Conservation Area, the works proposed are clearly of a scope suited to a Heritage Item. This building is not a Heritage Item. · The proposed works would be quite extensive. It would be unconscionable to expect an owner to carry them out, given the amount of resources required, the state of the building and the level of amenity expected by a future resident. · It is most unlikely that any reasonable person would undertake these works given the location of the site. Sanctioning this work by Council order will not lead to the outcome they may desire. 48. I shall now consider the extensive expert engineering and building evidence concerning the current condition of the existing cottage given by Mr Whelan (engineer) and Mr Hall (builder) for the Applicant and by Mr Wiltshier (engineer) for the Council. 49. In his written Statement of Evidence (Exhibit 3), Mr Whelan describes the current condition of the existing cottage and specifies the detailed repairs that he considers to be necessary to render the cottage habitable. His conclusions are stated as follows: The state of the building is such that major repairs are required prior to it becoming habitable. As suggested above, it would be impractical to reinstate the laundry/bathroom area to match the existing. It would therefore be impractical to reinstate the remainder of the residence to match the existing. Because of the amount of repairs required one has to consider the manner in which the repairs could be carried out in an economical fashion. The repairs will involve— a. removal of the external and internal cladding b. removal of the roof cladding c. reconstruction of footings d. realignment and reconstruction of all wall and floor framing e. reinstatement of all cladding. As a result of the extensive work involved to carry out the repairs one has to look at the logic of contemplating such. The work involved will virtually require 85 percent of the building to be demolished and reconstructed. By doing so the integrity of the heritage of the building is likely to be lost. If the necessary repairs were confined to a few locations the work could be carried out in an efficient manner however the extent of the problems deems it necessary to demolish almost all components except the chimney structures, where it is possible that repointing of brickwork will be the minimum requirement. 50. Mr Hall's dilapidation report on the existing cottage was tendered (Exhibit 4). It contains the following "Summary": 6.1 For the reasons as stated in 5.1.12 to 5.3.7, it is expected that the structural floor and walls, as well as possible roof timbers in enclosed areas are affected by substantial termite infestation as well as rot. 6.2 From the evidence of substantial dislodgement of the internal corners of the walls, as per paragraphs 14 to 20 this would confirm that there is major structural settlement and damage within non-accessible areas. 6.3 From our experience in litigation matters regarding termite infestation, as well as many years of experience in inspection and reporting on termite damage, we would expect that major deterioration and damage exists in non-accessible areas. 6.4 The repairs are likely to involve virtual complete reconstruction of the building, if not the whole building, to return it back to a habitable standard that is considered structurally safe. The building in its present form is not considered structurally sound. 51. Mr Hall prepared a Supplementary Report (Exhibit 5) commenting on the statements of evidence exchanged between Mr Whelan and Mr Wiltshier and the Joint Report of those engineers (Exhibit B). 52. Mr Hall's supplementary Report contained the following conclusion: For the above reasons, we reconfirm our comments on paragraph 6.0, Summary, of our original report in that very little of the original house can be retained so that it can returned back to a habitable standard that is considered structurally safe and has some termite systems incorporated. Any substantial reconstruction works must include adequate provision to reduce the risk of termite infestation and reconstruction to a standard where the building is considered structurally safe. For these reasons we consider it is not economically viable to undertake the substantial remedial works. The only viable solution is to demolish the building 53. Mr Wiltshier's Statement of Evidence (Exhibit O) like Mr Whelan's statement contains his opinion on the existing condition of the cottage and details the repairs "to make the building structurally stable, watertight and fit for habitation to its previous level only". 54. His Statement contains the following opinions on "the reasonable feasibility of repair and retention" of the existing cottage: 5.1 The foregoing works are technically quite feasible. Essentially, the building needs to have weatherboarding and gutters repaired to stem the ingress of water. The roof corrugated steel sheeting is also close to the end of its serviceable life and will require replacement in the near future. The left flank wall has subsided due to rising damp and the result of rotten bottom plate and wall studs and this requires repair. There are signs of wood borer and termite activity and elements of floor and wall require replacement as a consequence. From the decay evident to rear areas of floor it is judged that the current under-floor void is inadequate, has inadequate cross ventilation, or has become blocked with debris, which requires remedial action to prevent future decay. It is also recommended that the rainwater pipes be discharged into a new in-ground drainage system and the hard landscaping to the left boundary lowered to ensure that all timber is raised above the ground. 5.2 My recommendations for remedial work are reasonably extensive. Some materials-the roof sheeting for example - are approaching the end of their serviceable life, which could be considered a normal maintenance requirement. Where timber piecing-in or replacement of weatherboards is recommended, this again is not unusual in the maintenance of a timber building of this age. The building structure, with the exception of two thirds of the length of the left flank wall, is stable and it is my opinion that repair of the building fabric is feasible. I do not consider that the condition of the structural elements (where visible) in themselves warrant demolition. There is however considerable cost in repair of fabric due to its deterioration and due to the requirement for it to be removed to carry out full structural inspection and repair and this should be taken into consideration. It is my experience that the limitations of visual inspection make it likely that further defects will come to light in the carrying out of remedial works and that due contingency should be allowed for this. In addition, restoration of heritage buildings requires specialist building skills and restricts the number of builders prepared to quote on and carry out such works. This can lead to higher than expected costs compared with new construction. For these reasons I would normally recommend a contingency allowance of something in excess of 50% over and above any elemental cost estimate for remedial works when applied to a project of this type. 5.3 I would recommend that the remedial works outlined in this report are costed by either a quantity surveyor or reputable builder with heritage experience to allow assessment of cost of remedial works against perceived heritage value. Whilst I do not consider that structural stability issues warrant demolition the cost of fabric restoration may be significant 55. Following the exchange of their statements of evidence, the Engineers conferred and prepared a Joint Report (Exhibit B) which specifies their agreement concerning the scope of works for the required repairs to the existing cottage, noting that no allowance had been made to upgrade the building to comply with the Building Code of Australia and noting their opinion that if the repairs were carried out, the repaired cottage would remain in a serviceable condition for at least the next 20 years. 56. During the course of the hearing, the Engineers again conferred to consider a number of questions, including the following— 1. How much of the original fabric would be retained in the final product (ie the repaired reconstructed cottage)? and 2. How much of the original fabric would be disturbed/dismantled in the process (ie of repair and reconstruction)? 57. They prepared a further Joint Report (Exhibit R) which was also co-signed by Mr Hall (the builder) which included the following tabulated answers to the two questions in respect of the several building components detailed in Column 1 to the Table. Building Component Amount of Original Building Fabric Retained Amount of Original Building Fabric Disturbed (dismantled) External Wall Cladding 61 percent 81 percent Internal Wall Linings 67 percent 40 percent Roof Cladding, Gutters and DP 0 percent 100 percent Wall framing 73 percent 29 percent Roof and ceiling framing 80 percent 35 percent Floorboards 50 percent 78 percent Floor structure 78 percent 30 percent Ceiling 91 percent 16 percent Joinery 80 percent 90 percent Services 0 percent 100 percent Earthworks Necessary Necessary 58. At the same time that the further Joint Report (Exhibit R) was tendered, Mr Whelan and Mr Hall provided a further Statement (Exhibit 9) responsive to Exhibit R which includes the following opinion: The amount of disturbance/dismantling required is such that the exercise would be much more expensive than common construction, would not provide a viable family living environment for 2004, and is considered to be an unviable project. 59. The evidence of Mr Turner, the principal of the Applicant, establishes that he acquired the development site in September 2003 with knowledge that (i) the existing building had been a workers cottage; (ii) it was situate in a heritage conservation area; (iii) a development application for the demolition of the cottage had been refused by the Council; and (iv) there existed a current development consent for the carrying out of extensions at the rear of the cottage which consent had not been implemented. 60. He had acquired the development site in order to construct a new residence for himself and his family (wife and four daughters). 61. Finally, I should refer briefly to the oral testimony by Mr Phillips and Mr Logan. 62. Mr Phillips maintained his opinion that the required repair work would not be undertaken by any owner because the effort and expense required was disproportionate to the net benefit. In his opinion, there was no imperative to undertake the repair work and if development consent for the demolition of the existing cottage were not granted, the cottage would probably be left to further deteriorate and ultimately fall down. 63. When asked whether there were other alternatives to demolition and re-development, he raised the question of the viability of any such alternatives but admitted that he had not considered the viability or feasibility of other alternatives because he had not been asked by his client to do so. 64. The competing evidence of Mr Logan was to the effect that in his opinion, the external repair works (roof and wall cladding) were relatively minor matters and that it would be reasonable, given the heritage significance of the existing cottage to allow additional development at the rear of the cottage and internal re-development in order to provide more spacious and congenial residential accommodation than the limited scope provided by the existing cottage. 65. My summary of the detailed expert evidence adduced in the present case (which in the course of the hearing underwent considerable shifts in direction and emphasis) highlights the real issue presented by the Applicant in the present case, namely the relevance of the economic implications of the heritage conservation objectives of the LEP in seeking to retain the existing cottage as a significant contributory item to the relevant Heritage Conservation Area and in particular the Fletcher Street Precinct. 66. Obviously, the retention of the existing cottage in its present deteriorated condition does not enhance the Heritage Conservation Area anything like it would if it were restored and repaired so as to be far more pleasing to the streetscape of the Fletcher Street Precinct of the Heritage Conservation Area and at the same time to provide an acceptable level of residential amenity for future inhabitants of the restored/repaired cottage. 67. But does the fact that refusal of the development application to demolish the existing cottage would not, and could not, of itself guarantee the result of a restored/repaired cottage tilt the scales in favour of the economic imperative (as advanced by the Applicant's experts in this case) favouring demolition of the cottage? I think not, for the following reasons— (i) the case presented on behalf of the Applicant has not established any imperative based upon building structural and safety considerations; (ii) the economic imperative advanced by the Applicant's experts has failed to factor into their economic appraisal the fact that there already exists via the extant development consent scope for building extensions and additions at the rear of the cottage and the possibility of some other viable scheme for improvements and extensions to be made to the existing cottage; (iii) the heritage significance of the Heritage Conservation Area and of the existing cottage which is recognised in the DCP as a significant contributory item are matters that are essentially independent of economic considerations; and (iv) the truism of planning law that the development control regime is essentially negative in character, by which I mean it either refuses consent to what is evaluated to be an unacceptable development or grants consent to what is evaluated as an acceptable development, but even in those cases where consent is granted, it does not positively guarantee that the approved development will be implemented. 68. What I have just said does not gainsay the obvious fact that in order to achieve positive and enhanced conservation outcomes in respect of privately owned property generally will require the active co-operation of the property owner, including necessary financial commitments. 69. However, in the context of the LEP the integrity and operation of heritage conservation provisions are not predicated or reliant upon that co-operation by property owners, although obviously where those factors harmoniously co-exist, the heritage conservation objectives and outcomes are likely to be enhanced and achieved. 70. In the present case the Applicant's case based upon the economic imperative has not dislodged or disturbed the overwhelming weight of evidence that on heritage conservation grounds, the existing cottage continues in existence as a significant contributory item to the Heritage Conservation Area (it having been so recognised since 1984 when it obtained the A2 Classification under the Facades Policy) and that the Heritage Conservation Area has attained even greater importance under the LEP in terms of the recently adopted DCP and that in that context, the retention of the cottage is desirable, particularly in terms of the stated heritage conservation objectives in cl 2(2)(g) of the LEP and that the proposed demolition of the existing cottage would relevantly adversely affect the heritage significance of the Heritage Conservation Area (cl 28). 71. For all the foregoing reasons, I am of the opinion that the development application, for the demolition of the existing cottage on the development site must be refused on the planning merits. 72. This conclusion necessarily means that the replacement dwelling-house component of the proposed development likewise must be refused as a necessary consequence of the refusal of the demolition application. ORDERS 73. For all the foregoing reasons, I make the following orders— 1. The appeal be dismissed. 2. Development consent be refused. 3. Exhibits be returned. 4. No order as to costs. - Associate 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. 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