Land and Environment Court of New South Wales CITATION : Rosenstrauss & Cahill v Waverley Municipal Council [1989] NSWLEC 227 APPLICANT Rosenstrauss & Cahil PARTIES : RESPONDENT Waverley Municipal Council FILE NUMBER(S) : 10573 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Heritage Act Environmental Planning and Assessment Act 1979 CASES CITED: Porebski v. Woollahra Municipal Council, Unreported Land and Environment Court 16 December 1988 DATES OF HEARING: DATE OF JUDGMENT: 08/18/1989 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: This application involves two appeals under s.97 of the Environmental Planning and Assessment Act. The first concerns the Council's refusal on 5 April 1988 of a development application to erect a group of 13 x 2 storey town houses with parking on land situated at 14-22 Porter Street, Bondi Junction. The second application concerns the refusal of permission to demolish five terrace houses on the site by resolution of the Council of 25 July 1989. By consent the applications were heard together. The subject land is located on the northern side of Porter Street between Hollywood Avenue and Botany Street. It has a total area of 1794.24m2 with a frontage to Porter Street of 39.4m. Under the Waverley Local Environmental Plan 1985 (the LEP) the land is zoned Residential 2(b). Town house development is permissible with consent. Clause 20(1) and (2) of the LEP provide:- " (1) A person shall not, without the consent of the council, in respect of a building work or relic that is an item of environmental heritage - (a) demolish or renovate the building or work; (b) damage or despoil the relic or any part of the relic; (c) excavate any land for the purpose of exposing or removing the relic; or (d) carry out any development in relation to land on which the building, work or relic is situated. (2) The council shall not grant consent as referred to in subclause (1) unless it has made an assessment of - (a) the significance of the item as an item of environmental heritage of the Municipality of Waverley; (b) the extent to which the carrying out of development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item and its site; (c) whether any stylistic, horticultural or archaeological features of the item or its site should be retained; and (d) whether the item constitutes a danger to the users or occupiers of that item or to the public." At the time of refusal of the development application the terrace houses in Porter Street were not listed as items of environmental heritage in Schedule 1 of the LEP. No consent to their demolition was therefore required. However, by Amendment No. 12 gazetted on 31 March 1989 the subject terraces were added to the Schedule as items of environmental heritage. The applicants then applied to the Council for permission to demolish the buildings to make way for the redevelopment it had earlier sought. The reasons for Council's refusal of this application are as follows:- "1. No. 14-22 Porter Street should be retained with the Porter Street elevation being restored. Complete or partial demolition of the terraces (i.e. retaining the facades) is not acceptable in Heritage Terms for the immediate local area or for the Heritage of the Municipality of Waverley. 2. Refurbishment is a viable economic option for the buildings. In any proposed refurbishment the rear wings to the terraces could be altered or added to sympathetically to provide additional accommodation without compromising the heritage significance of the terraces. 3. The large unoccupied rear yards could be developed without affecting the Heritage significance of the terraces, provided the scale of these buildings were subservient to the terraces. 4. The buildings are structurally sound and pose no threat to the general public. Roof repairs would prevent further deterioration of the plaster ceilings internally which may pose a threat to tenants unless repairs are carried out. 5. Demolition of the terraces and their replacement with the proposed 13 town houses would have a detrimental effect on the streetscape of Porter Street. The new design is of modest architectural distinction in comparison to the potentially fine restored terraces facade. 6. Retention and repair of the terraces would convert a now neglected series of houses into a local land mark, enhancing the local streetscape and the Heritage of Waverley, while providing a sound economic return on the investment to the owners. The principal issue fought in the appeals has centred around the assessment of the significance of the subject terraces as items of environmental heritage in accordance with cl.20 of the LEP. The development surrounding the site comprises residential buildings. To the north are 2 and 3 storey residential flat buildings. To the south along Porter Street are single storey dwellings and one 3 storey flat building. To the east are 2 and 3 storey flats along Botany Street and immediately to the west is a 3 storey flat building with ground level parking. Further west of this block are single storey dwellings along the northern side of Porter Street. Substantial Ficus Hilli trees line the south side of the street. The town house development proposal was advertised and elicited a number of objections from residents of Porter Street. Most objectors wanted to see the retention of the five terraces on the site rather than their replacement by modern town houses. Further and similar objections were received following advertisement of the demolition application in 1989. (Such advertisement is required by cl.22 of the LEP). The Council's case is that the group of buildings at No. 14-22 Porter Street, "Summerfield Terrace", are of architectural and aesthetic importance both to the local streetscape and to the wider architectural character of the Municipality. The Department of Planning, together with Woollahra and Waverley Councils, prepared a Heritage Study for Bondi Junction which was adopted by Waverley Council in May 1988. The study did not identify the subject properties in Porter Street as items of environmental heritage. The study, however, recommended that:- "any additional items which may be identified at a later date be assessed to determine their historic, scientific, cultural, social, archaeological, natural or aesthetic significance for Bondi Junction. If this assessment reveals that an item is of particular significance for the area it should be added to the schedule of heritage items." At the request of the Council an interim conservation order was placed over the property on 11 July 1988 under s.26 of the Heritage Act. This Order expired on 10 October 1988 and the Heritage Council declined to recommend any further conservation order under the Heritage Act. An architect/planner in the Heritage and Conservation branch of the Department of Planning described the terrace as "marginally of some local significance". The evidence on behalf of the Council included the following:- Mr. Martin Halliday - the Council's Deputy Chief Planner. Prior to his position with the Council Mr. Halliday was a Planner Specialist in the Urban Design Unit of the Department of Planning. His previous experience includes employment as the Principal Environmental Planner with the City of Sydney Council. In his opinion the terraces represent a significant landmark element in Porter Street. They are the only terraces in the street and this adds to their significance and contribution to the streetscape. Their "isolation" as a group reinforces their contribution to the variety and interest of the street. With the exception of two intrusive elements, the 3 storey walk-up flats on the western side of the terraces and the other flats on the southern side, the streetscape is still cohesive and reflects the different building styles and designs occurring within the municipality. In Mr. Halliday's opinion it is important to retain the traditional urban fabric of Waverley and the variety of forms, styles and periods should be fully represented. There are no other similar detailed group of buildings in the immediate surrounding area and when restored the terraces will represent a significant contribution to the local environment. Their loss by demolition will mean that the whole municipality will suffer. While the buildings are in a generally run-down state their overall appearance and condition are such as to warrant partial or total restoration and improvement. Mr. Halliday believed that demolition of the existing terraces would profoundly change the existing streetscape in an undesirable way. Mr. Howard Tanner, a practising architect, gave evidence in the Council's case. His experience includes being a consultant to the National Trust and a heritage consultant to the Department of Planning. He has been a part-time lecturer in architecture at the University of Sydney including lecturing in conservation and restoration. He has also been chairman and a member of the Historic Buildings Committee of the Royal Australian Institute of Architects (NSW) and the Historic Buildings Committee of the National Trust. Mr. Tanner described the terrace as a remarkably large and fine example of a group of buildings with unusual detailing and return verandah of No. 14. The scale of the group attracted Mr. Tanner's attention. Nothing existed of the same scale in the vicinity (Mr. Tanner has lived nearby for 5 years). The terrace, especially No. 14, is particularly grand being generally taller and wider than the norm. The detailing of the bracketed parapet with distinctive balustrading was unusual. The group provides a good example of the Italianate style of the late 19th Century and although somewhat run down, appeared sound. In Mr. Tanner's opinion it is important that the houses be retained and rehabilitated. The principal witness for the Council was Mr. Robert Brown, a member of an architectural firm specialising in the conservation of old buildings and conservation planning. His previous experience includes conservation architecture in the United Kingdom and Australia as well as 2 years with the Heritage branch of the Department of Planning as a conservation architect. His many projects have included participation in the Bondi Junction Heritage Study and a report for the Australian Heritage Commission on Terrace Housing in New South Wales. According to Mr. Brown's report (Ex. C) the terrace buildings were built between 1883-1887 by Henry Summerfield, a tailor. He built No. 14 "Ivanhoe" for himself and the 4 adjacent terraces for speculative sale. This explains the much grander design and grounds of No. 14. No. 22 was the last to be completed in a simpler design. Summerfield's own terrace (No. 14) was designed with a side entry and carriageway leading to a coach house at the rear which is still existant. The original appointments and finishes were on a relatively grand scale. Of particular note was the decorative parapet and balustrade, the decorative corbels and moulded plaster brackets. No. 14 featured a grand return verandah to the side entry. Inside the terraces are generous in proportion and detailing including the joinery, lath and plaster ceilings with decorated cornices and roses, and marble fireplaces with cast iron grates. All the buildings are set back from the street and have rear access available. The first floor verandahs have been enclosed in all but one case, some retaining the iron lace. All facades retain their original windows and doors and some have tessilated tile verandah floors. The original slate roofs have been replaced by tiles. Although the buildings are neglected and run down with noted water damage, according to Mr. Brown they are sound and rehabilitation is a viable option with many original features intact. The Italianate facades form an integral part of the diverse heritage streetscape of Porter Street including a number of intact Federation and Victorian houses. Many have been lovingly restored by their owners. These houses depict the changing styles of Australian domestic architecture. The terraces, due to their set back and potential for restoration, greatly enhance the character of the street. Similar examples are rare in Bondi Junction. If restored the terrace could become a local landmark in an area nearly devoid of its architectural heritage. At the request of the Council Mr. Brown prepared a Conservation Study of Summerfield Terrace (Ex. B). This Study was presented to the Council in June 1989 and adopted on 25 July 1989. The study included a Statement of Significance as follows:- "No. 14-22 Porter Street, Bondi Junction, known as Summerfield Terrace is of local Heritage significance to the Municipality of Waverley for the following reasons : Architecturally the buildings illustrate a substantial terrace development in what was when built a semi rural location. They are today in near original condition, and unusual by the end terrace configuration of return verandahs carriage way and carriage house. The terrace may well be the oldest remaining of its type in the Municipality. Aesthetically, the terrace forms an integral part of a diverse heritage streetscape and has the potential following restoration of achieving landmark status within the local area. Historically, Summerfield Terrace is associated with the period of rapid suburban development of Sydney in the late 19th Century. It embodies the distinctive characteristics of the standard of accommodation provided for upper working and middle classes by a small scale speculative developer." The study found the terrace to be - "significant architecturally, aesthetically and historically to the immediate surrounding area of Porter Street, Bondi Junction and the local Waverley Municipality. The terraces are structurally stable and their condition is not beyond repair and refurbishment. Indeed refurbishment would appear a most viable option as opposed to demolition and construction of a new buildings." The Study reiterated Mr. Brown's earlier opinion that, notwithstanding neglect, the buildings are in a reasonably sound condition and rehabilitation is quite possible. He estimates repair and refurbishment of the terrace (in one lot) at $610,000. In his view rehabilitation was a viable option. Mr. Rodney Howard, an architect specialising in the restoration, rehabilitation and refurbishment of older buildings, gave evidence on behalf of the applicants. His previous experience includes employment as an Architectural Officer for the National Trust. He is also a member of the Historic Buildings Committee of the Royal Australian Institute of Architects and the National Trust. His report (Ex. 6) noted that the Bondi Junction Heritage Study did not identify the terrace as an item of environmental heritage even though located within the Study area. He described the condition of the terraces (he was able to gain access to two) as fair to poor noting extensive water damage to internal plasterwork. In discussing the streetscape of Porter Street, Mr. Howard stated:- "Whilst making a contribution to the variety of the streetscape, the subject terraces currently appear to be rundown, shabby and how (sic) visible signs of advanced deterioration. Even if they were to be restored, they would do little more than reinforce the varied nature and general scale of the buildings in Porter Street. In my opinion the demolition of these terraces, and their replacement with another structure(s) of similar bulk, height, setback etc) would not necessarily destroy or have a marked negative effect on the streetscape. His conclusions include the following:- "* The nature of the streetscape in the vicinity of nos. 14-22 Porter Street does not display a general character that would be adversely affected by change or the introduction of new building forms and styles. It is not an important streetscape meriting protection or special consideration. In this respect it differs little from many other streets in the Waverley area. * The omission of the buildings from the registers and lists of recognised heritage authorities and the inventory of the Bondi Junction Heritage Study, is a strong indication that these buildings are not held in high regard by such organisations. There is nothing about their design or architectural quality to suggest that they have "unique architectural merit". * No. 14 Porter Street appears to be slightly more interesting than the others in the group by virtue of its larger and grander entrance located in the side wall rather than the front wall. This is an unusual feature of terraced houses. * All of the terraces have deep setbacks resulting in a larger front yard than is commonly found in late Victorian terrace housing. * The subject buildings are ordinary examples of middle class suburban housing and are merely typical of their period of construction (late 1880's). The individual internal features of most of these buildings are generally unremarkable and again, cannot be described as other than ordinary examples of their type. * The buildings are in nearly every way typical of their age in terms of construction and architectural detail. They do not have sufficient merit to warrant protection/conservation on architectural grounds and aesthetic considerations alone." In his oral evidence Mr. Howard conceded that terraces such as the Porter Street group are more scarce in Waverley than other inner city suburbs. Additionally the set-backs in Porter Street were unusual and probably greater than would be found almost anywhere else. He could not point to any similar examples in the Municipality and certainly none with the same return verandah as No. 14 which was unusual in a row of terrace houses. He disagreed with Mr. Brown's restoration costings but accepted that the terrace was capable of restoration. He put the cost far closer to $1M. than Mr. Brown's estimate. Mr. Theo Lamb, an architect specialising in restoration, also gave evidence in the applicants' case. His experience included a lengthy period with the Commonwealth Government as a project architect. His projects include the Sydney G.P.O., the Commonwealth Bank Martin Place and the Glebe restoration project. Mr. Lamb's report described the five houses as "a handsome group of attached terraces built for the lower middle class not unlike some of those found in conservation areas such as Glebe and Paddington". Because of the range of housing in the area the streetscape lacked any distinctive unity to be found in the conservation areas. The buildings did not have sufficient merit to justify a National Trust classification or listing and the Heritage Council had shown no interest. There are a number of similar late Victorian houses elsewhere in Sydney "serving as typical examples of the architecture of that period, appropriately framed amongst other historical houses in the street". The demolition will not "affect adversely the stock of late Victorian houses in this city". Mr. Lamb's analysis of the condition of the buildings lead to the conclusion that the probable cost of rehabilitation would range from one-half to one million dollars. Maintenance costs would also be appreciably higher than for the proposed town houses. The applicants also called the project architect Mr. George Bensen and Mr. Michael Neustein, a consultant architect/planner. Their evidence was primarily directed to the town house development proposal, Council's reasons for refusal and draft conditions of consent. For the purposes of determining the heritage issue it is unnecessary for me to refer to their evidence. On behalf of the applicants, who are the trustees of the Rebecca L. Cooper Medical Research Foundation, Mr. Davison submits that the evidence does not establish that the subject terrace has sufficient significance as an item of environmental heritage to justify its retention (cl.20(2)(a)) and the building constitutes a danger to occupants (cl.20(2)(d)). In the latter respect it is noted that four of the five houses are occupied by tenants including some protected tenancies. It is difficult to find any evidence to support the latter submission. However, Mr. Lamb's report does contain references to unsafe ceiling areas requiring repair. Nonetheless, on an analysis of the extensive evidence lead by both sides on the condition of the houses, I am quite unable to conclude that the buildings constitute a danger to users or occupiers. There is really no cogent evidence of such danger and minor repair work could eliminate Mr. Lamb's concerns. An assessment of the state of repair of the houses cannot lead to the conclusion that demolition ought be permitted for safety reasons. I accept that the addition of the subject properties to the list in Schedule 1 of the LEP in March 1989 does not lead to the inevitable conclusion that the buildings are in actual fact significant items of environmental heritage. An assessment of the significance of the particular items is still necessary and this is clearly required to be undertaken on an application to demolish under cl.20(1) of the LEP. In the making of such an assessment Mr. Davison places reliance on the words "of the Municipality of Waverley" in cl.20(2)(a). He submits that the items must have significance as items of the environmental heritage of the municipality as a whole and not just within the limited area of Mr. Brown's Study. Mr. Brown's Study was therefore too narrow an inquiry and one could not conclude on the basis of his evidence, or any other, that the terrace had such significance to the municipality as a whole that it should be retained. Further, the 'significance' of the buildings must be assessed in light of the fact that the buildings were not identified by the comprehensive heritage study of the Bondi Junction area. Mr. Davison also stresses the comments on file at the Heritage branch of the Department of Planning of the marginal local value only of the buildings. In my opinion it is unnecessary for the Council to embark upon an in-depth heritage study of the whole of its local government area in order to make an assessment of the significance of an item of environmental heritage. The extent of the area to be studied will depend upon the particular item of environmental heritage. Some items will obviously be significant in themselves. Others will require an assessment of a wide area to test the significance to the municipality. In this case it is unnecessary, in my opinion, to examine the whole of the Municipality of Waverley in order to assess the significance of the item to the local government area. The breadth of Mr. Brown's study is quite sufficient to assess the heritage significance of the subject buildings under cl.20(2). On a thorough analysis of the expert evidence on heritage value I conclude that I prefer the opinions of Mr. Brown, Mr. Tanner and Mr. Halliday over those of Mr. Howard and Mr. Lamb. The most detailed consideration to be found in Mr. Brown's study leads me to the conclusion that Summerfield terrace is of such significance as an item of the environmental heritage of the municipality that it ought be retained and not demolished. Mr. Tanner's and Mr. Halliday's opinions assist this conclusion. Further, aspects of the evidence in the applicants' case, particularly that of Mr. Howard, lend support to the finding. The evidence of many of the residents also lends some weight to the Council's case, although for the most part not expert in nature. I do not think that I should read too much significance into the fact that the buildings in Porter Street were not identified in the Bondi Junction Heritage Study. That Study acknowledged that other items of environmental heritage could be later identified. The omission from the Heritage Study does not lead to any conclusion that the terrace has no architectural or aesthetic significance. I accept Mr. Halliday's evidence that heritage evaluation is of necessity a continuing process and no inventory list can ever be regarded as totally complete. For example, the National Trust adds buildings to its heritage listing on a regular basis and does not pretend that its list is complete and unamendable. Nor do I place great importance on the failure of the Heritage Council to place a Permanent Conservation Order on the buildings or the opinion of the officer of the Heritage branch of the Department to which I have previously referred. The test for "listing" under the Heritage Act is different from that with which we are here concerned. A local environmental plan is by its very nature concerned with local heritage significance - significance to the municipal area and its residents rather than a wider significance "for the State" required under the Heritage Act. The final submission of Mr. Davison is that the burden of retention on the landowner will be so great that demolition should be permitted. He relies on evidence in the applicants' case that restoration will be uneconomic for the trustees, who are not normal developers but seeking to raise income for medical research. Further, even if the terrace could be restored the return to the owner would be low and could not compare with the return on the proposed town houses. While such considerations, including "hardship", are not to be found in cl.20 of the LEP, Mr. Davison submits that any relevant heads of consideration under s.90 are applicable to the subject development application to demolish the terrace. The evidence of economic unviability and hardship is a "circumstance of the case" and provides discretionary considerations for the Court. I have significant doubts as to the relevance of the evidence to a consideration of the significance of an item of environmental heritage on an application to demolish a building under cl.20(1) of the LEP. In a similar case (although a differently worded clause) Hemmings J. recently had this to say:- "Whilst hardship may be a relevant factor to the making of permanent conservation orders pursuant to the Heritage Act, such considerations are usually irrelevant in the determination of planning issues. Mr. Gibbons, in his statement, gave details of his "financial and emotional strain". Whilst the Council initially questioned the relevance of such evidence, it did not object to its admission. Senior Counsel for the applicant made no submissions that such matters were relevant to the exercise of the Court's discretion pursuant to cl.18 of the L.E.P. Without so deciding, I am prepared to assume that they are relevant. .... It is not unusual that an item of the environmental heritage is inconvenient according to contemporary standards, or inconsistent with development in the locality, or requires the expenditure of money to maintain it in a state of good repair. The parties agree that the policy of this instrument demands that the Court must not only consider the convenience and ambitions of the owner for the time being who may not wish to conserve a building which is an item of the environmental heritage. There may be others in the market place who may be prepared to do so. I think it is common ground that it would be an improper exercise of the discretion to consent to the demolition of an item of the environmental heritage for no other reason than a desire by an owner for the time being to eliminate the structure. After consideration of the evidence, I am not satisfied that such matters of convenience or hardship, if relevant, should outweigh the clear policy of the instrument for the conservation of items of the environmenta l heritage." (Porebski v. Woollahra Municipal Council, Unreported Land and Environment Court 16 December 1988). I share His Honour's doubts as to the relevance of such issues as hardship on the assessment of the significance of an item of the environmental heritage. The significance can hardly depend upon the personal circumstances and qualities of the owner at any particular time, but rather on the value of the item itself. However, even if I were to accept the relevance of the material, (admitted into evidence without objection), it fails to persuade me that the Court should allow the applicants to demolish the buildings having found that they are items of environmental heritage of the Council area and worthy of retention. To do so would be to depart from the clear policy of the instrument. Restoration may not be so attractive to the applicants as the town house development. Returns may also be less but the evidence as a whole does not lead me to conclude that the "hardship" factors should outweigh the clear policy behind the LEP to conserve items of environmental heritage which are deemed worthy of retention because of their significance. It follows that it is unnecessary to consider the town house development application and both applications are therefore refused. The application is dismissed. The exhibits may be released. Each party is to pay their own costs. 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.