Land and Environment Court of New South Wales CITATION : Bowen v Woollahra Council [2008] NSWLEC 1320 Applicant: Peter Michael Bowen PARTIES : Respondent: Woollahra Municipal Council FILE NUMBER(S) : 10258 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- demolition of listed local heritage item DATES OF HEARING: 24 July 2008 and 25 July 2008 DATE OF JUDGMENT: 7 August 2008 Applicant: LEGAL REPRESENTATIVES: Mr G Newport, barrister instructed by Mr P Pilton, solicitor of Hicksons Lawyers Respondent: Mr S Simington, solicitor of Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 7 August 2008 10258 of 2008 Peter Michael Bowen v Woollahra Municipal Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application to demolish the existing heritage-listed building and construct a new residential flat building on lot 1 DP 87937, known as 22 Fairfax Road, Bellevue Hill. The site 2 The site is located on the north side of Fairfax Road. The existing two-apartment building on the site is called Chislehurst, though originally it was a single house named St Kieran's. The property is listed as an item of local heritage. Fairfax Road has a mixture of houses and apartment buildings dating from the early 1900s to the present. The proposal 3 The applicant proposes to demolish the existing heritage-listed building and construct a residential flat building. While the council has no objections to the new building, it opposes the demolition of the existing building on the basis of its heritage significance. Relevant planning controls and policies 4 Local Environmental Plan 1995 zones the site 2(b), a zone in which residential flat buildings are permissible. The LEP lists the existing building as a heritage item. Clause 26 of the LEP deals with heritage items. Clause 26(2) states: The council shall not grant consent to a development 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 item and of any heritage item group of which the item is part and any stylistic or horticultural features of its setting. 5 Assessing Heritage Significance by the NSW Heritage Office, printed in 2001 sets out the method of determining whether an item has heritage significance. The types of local heritage significance are: (a) Cultural or natural historic; (b) historic associations; (c) aesthetic or technical; (d) social; (e) research potential or educational; (f) rarity; and (g) representativeness. 6 According to the publication, only one of the above criteria needs to be satisfied for an item to have local heritage significance. Matters in contention 7 The only matter in contention between the parties is the demolition of the existing building. Since demolition destroys the heritage significance (where there is any) completely, the dispute revolved around whether or not Chislehurst had local heritage significance. The applicant contended that it did not; the council maintained that it did. The objectors' concerns 8 The Court heard the evidence of the following objectors during its visit to the site: · Ms Helen Yule of 6/14 Fairfax Road; · Ms Pamela Cameron-Murray of 5 Fairfax Road; · Ms Carolyn Kay of 16 Fairfax Road; · Mr Jarther Taylor of 2/31 Fairfax Road; · Mr Stephen Carey of 31 Fairfax Road; · Ms Victoria Bonchard of 24 Fairfax Road; · Ms Judith Kirby of 32 Fairfax Road; · Ms Gail Darby, the owner of 5/14 Fairfax Road; · Ms Margaret Durham of 3 Fairfax Road; · Mr David Carson speaking for Mr Lagudi of 25 Fairfax Road. 9 All objectors were concerned that the proposal involved the demolition of the existing building, which they considered of heritage value and which they believed contributed to the pleasantness of Fairfax Road. Those objectors who adjoined the subject site were concerned about loss of privacy. Those objectors who were on the other side of Fairfax Road were concerned about loss of views. The council's planning expert, Mr Thomass Wong, did not think that concerns about the impact of the new building were valid. Following my inspection of the neighbouring properties, I accept his evidence. The council shares the objectors' concern about demolition of a heritage item. The heritage significance of Chislehurst/St Kieran's 10 The applicant's heritage experts were Mr Graham Brooks, Ms Jennifer Hill and Mr Paul Davies, all heritage architects. The council's expert was Mr Ian Stapleton, also a heritage architect. It was common ground that the impact of demolition was total. Demolition may therefore be justified in two ways: first by a finding that Chislehurst does not have heritage significance, and, second, by a factor so strongly in favour of the new building that it justifies an adverse impact on heritage significance. The applicant's case is based on the first of these positions, namely that Chislehurst is without heritage significance. 11 The three heritage experts retained by the applicant all believe that Chislehurst does not have local heritage significance. Its listing as an item of local heritage is a mistake. In support of their opinion they refer to the ten-year process of listing, during which several heritage advisors to the council opposed the listing. Eventually, however, the opinion in support of listing won and the building was listed in May 2006. 12 According to Mr Stapleton, Chislehurst qualifies for heritage significance under four of the seven criteria listed in Assessing heritage significance. The building qualifies under Criterion (b) because it has a strong and special association with the life and work of its architect Maurice Halligan. It qualifies under Criterion (c) because it represents technical innovation and is distinctive in appearance. It qualifies under Criterion (f) because it is fully shingle-clad and such houses are rare. Finally, it qualifies under Criterion (g) because it is a fine example of an early Arts and Crafts house. 13 Ms Hill, Mr Brooks and Mr Davies take issue. They think little of an association with Maurice Halligan, whom they consider a minor architect, whose buildings have no claim to be preserved for posterity. To prove his position, Mr Stapleton tendered several publications on architectural history on which Mr Halligan is mentioned. Ms Hill countered those publications by referring to an unpublished work in which Halligan was given a lowly position in a list of important early twentieth century architects. On the basis of these exhibits I am satisfied that Maurice Halligan was a prominent architect. He is clearly not among the most highly regarded, in the Horbury Hunt league, but he appears to have an assured position in the second rank. 14 I turn to Criterion (c). According to Mr Stapleton, Chislehurst is technically innovative because it is among the first buildings to have all its external walls shingle-clad. Ms Hill, Mr Brook and Mr Davies place little weight on this, because some of the shingles are not from the original construction in 1905 but from 1913, when the building was extended, and possibly from later. Mr Stapleton points out that the alterations were competent and therefore it does not matter if the shingles are not original. I accept this evidence. Apart from a few heritage architects, I do not think anyone would think less of a shingle-clad wall because it was done in 1913 rather than in 1905. 15 As regards aesthetic characteristics, I understand that all the experts agree that the building looks beautiful. This, of course, is not sufficient to endow it with heritage significance, though I am sure it is the building's appearance that most non-expert people judge it by. The difference between the experts is that Mr Stapleton thinks that the building's appearance that has been a part of the view of the hill from the Harbour for more than a hundred years, is distinctive enough to achieve heritage significance, whereas the applicant's experts think the contrary. 16 I turn to Criterion (f). Mr Stapleton believes that buildings with fully shingle-clad walls were rare, there being only six or seven such surviving houses. The applicant's experts do not accept that the building is rare, mainly because the shingles are not original. I have already commented that I do not accept that the shingles of 1913 have a lesser value than those of 1905. 17 I turn to Criterion (g). In Mr Stapleton's opinion, Chislehurst is a fine representative example of an early Arts and Crafts style house. The applicant's experts believe that the numerous alterations have destroyed Chislehurst's integrity. Mr Stapleton submitted a detailed analysis of what is original in the house and what is later addition, clearly demonstrating that the vast majority of the fabric is original. I accept his evidence that the building qualifies under Criterion (g). 18 I note that in the joint report, the applicant's experts maintain that Chislehurst does not achieve local heritage significance because its integrity has been destroyed by later additions and alterations. However, in oral evidence all three experts said that the building would not achieve heritage significance even if it were completely intact. If that is so, then the real dispute between them is the answer to two questions: · does a building by Maurice Halligan merit heritage listing? · does a fully shingle-clad Arts and Crafts building merit heritage listing? 19 For the reasons mentioned above, I am persuaded by Mr Stapleton's evidence, which answers both these questions in the affirmative. I find his evidence detailed, well-researched and convincing. 20 Given the above findings, the appeal must be dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing heritage-listed building and construct a new residential flat building on lot 1 DP 87937, known as 22 Fairfax Road, Bellevue Hill is determined by refusal. 3. The exhibits are returned. ___________________ Dr John Roseth Senior Commissioner 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.