Crowhurst v Newcastle City Council [2004] NSWLEC 734

Land and Environment Court of New South Wales

CITATION : Crowhurst v Newcastle City Council [2004] NSWLEC 734 APPLICANT Richard and Maryrose Crowhurst PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10728 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- Demolition of old house - erection of dwelling houses - streetscape - heritage LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/10/2004, 21/10/2004 and 06/12/2004 EX TEMPORE 12/06/2004 JUDGMENT DATE :

APPLICANT Mr J Burrell, solicitor SOLICITORS Burrell Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Mr A McKelvey, solicitor SOLICITORS Sparke Helmore

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

6 December 2004

10728 of 2004 Charles and Rosemary Crowhurst v Newcastle City Council

JUDGMENT

1 This matter first came to the Court on 15 October 2004 at which time the parties requested the Court to issue consent orders. Before the hearing the parties had agreed to the Court appointing an expert to assess the two issues that were raised by the council. 2 The Court appointed Mr Mark Robinson as the planning expert. Mr Robinson's first report dealt with the two issues, the first one being that the existing cottage should not be demolished. Mr Robinson reported that, while the existing cottage contributes positively to the streetscape of the locality and is of moderate historical and aesthetic significance at the local level, the engineering advice and his own inspection indicated that it is in poor condition and would require extensive rebuilding to enable its retention. Under those circumstances he concluded that the cottage was not of such heritage significance that it needed to be retained. 3 With respect to the second issue, Mr Robinson reported that the streetscape of the locality is characterised by a diverse mix of buildings of different periods, size, scale, design, construction materials and architectural character. He noted that the locality is not identified as a conservation area. His statement concluded that the proposed two-storey dwellings would be compatible with the scale and diverse character of existing development in the locality and would satisfactorily address the site's corner location. 4 He noted, however, that the design appeared to have potential for improvement in terms of solar access and vehicle access to unit 3. His report recommended that the applicant examine the feasibility of improving these elements of the design. 5 Because Mr Robinson did not attend the hearing in Newcastle on 15 October 2004, and because there were no comments from him on the objectors' representations, the Court adjourned the hearing until 21 October at which time Mr Robinson did attend. However, the applicant had not prepared drawings to correspond to the suggestions of Mr Robinson and suggested that they be dealt with by conditions. The Court found this unsatisfactory and required that the drawings be re-drawn. The Court also suggested that Mr Robinson carefully check the quality of the drawings and assure the Court that they are of a professional standard. 6 At the hearing on 6 December 2004, Mr Robinson assured the Court that he had assessed the amended plans against the standard set out in Sch B "Requirements for Plans in Practice Direction No. 17" and he considered that the plans are adequate. 7 In his supplementary report, which came to the Court as Exhibit 7, Mr Robinson also dealt with the issues raised by the objectors. The objectors were: § G N and J L Bates of 11 Clark Street, § R J and L A Stewart of 11 Clark Street, § Mrs S Hoe of 49 Newcastle Street and § Mrs J Dawson of 7 Clark Street. 8 Mrs Dawson has prepared submissions for the first hearing on 15 October 2004, for the second hearing on 21 October 2004, as well as for today's hearing on 6 December 2004. Mr Robinson has dealt with the submissions up to 21 October in his written report (Exhibit 7). He dealt with the submission that came to the Court for today's hearing in oral evidence. 9 The gist of his comments is as follows. Mrs Dawson's objections are on the following grounds. The existing dwelling should be conserved for heritage reasons. Three dwellings on the site would allow limited outdoor space. Existing trees would have to be removed and there is limited space for replanting. Three tenants would be displaced. Loss of privacy to the objector's property and safety as a result of vehicle fumes and traffic hazards. 10 In response to the concern about the heritage and historical value of the building, Mr Robinson reiterated his original finding that, while the building does contribute to the streetscape, it is in a poor condition, it is not in a conservation area, not a heritage item and that it would be unreasonable to require the applicant to retain it. This is not to say that he would not be glad to see somebody buy the cottage and renovate it, but in his opinion that is not a course that should be forced on the applicant. 11 In relation to the streetscape, Mr Robinson noted that the Newcastle City Wide Heritage Study was prepared for the council in 1996, and 1997 by a team of consultants co-ordinated by Suters Architects. The study recommended against extension of the existing heritage conservation areas identified in the LEP. Instead it adopted the urban village approach implicit in the Newcastle urban strategy to identify a number of local character precincts covering the majority of land which was urbanised after the First World War. The study identified several precincts in the Stockton area, of which the subject site is in the residential precinct between Hereford Street and the foreshore. The study report recommended that the council prepare guidelines for each of the local character precincts as appendices to the City Wide Heritage Development Control Plan. As an alternative the report recommended that the council consider listing the identified precincts in the LEP as conservation areas if the first recommendation was not adopted. In 1997 the council adopted the conservation policy recommended in the study and the strategy for its implementation. The boundaries of the precincts were not defined in the study and further investigation and field work is necessary for this purpose. The work has not yet been undertaken and preparation of the recommended guidelines has not yet commenced. 12 While the council has adopted recommendations for management of the heritage values of the precinct, and intends to implement them, it has not resolved to prepare an amending LEP to list the areas as a conversation area or commence preparation of a development control plan containing management guidelines. Mr Robinson said he supported the general thrust of Mrs Dawson's submission that all reasonable efforts should be made to conserve buildings, streetscapes and other items valued by the local community. However, in his opinion, this objective would best be achieved by completion and implementation of the planning process as outlined above. This would give all parties a firmer and more explicit base for decision making on properties such as the subject site. 13 He repeated that he agreed that the cottage on the subject site is of moderate historical and aesthetic local significance and contributes positively to the streetscape of the locality. However, it is in a severely deteriorated condition and would require replacement of a large proportion of its fabric. He did not believe the cottage is of sufficient significance to justify this. 14 In his further analysis Mr Robinson reported that the impact of the proposed development was acceptable, that the fences were appropriate, the private open space provided was much less than it is now but was still acceptable. He found that his suggestions had now been adopted by the applicant in redesigning unit 3 and in relocating the vehicular access to it. Therefore he considered the application acceptable. 15 Mr Robinson has fully dealt with the objector's concerns. He has ensured that his suggestions are incorporated in the drawings. I therefore move to issue the consent orders which I was requested to issue on two previous occasions. The formal orders of the Court are: 1 The appeal is upheld. 2 Development application to demolish the existing dwelling on lot 39 DP 9840434, known as 9 Clive Street, Stockton, to erect three dwelling houses on the allotment and subdivide it into 3 lots, is determined by the grant of consent, subject to the conditions in Annexure A. 3 The exhibits are returned, except Exhibits 7, 8 and A. 4 The Court notes that each party agrees to pay its own costs, including one half of the costs of the Court-appointed expert, Mr Mark Robinson.