Land and Environment Court of New South Wales CITATION : Crivelly v Pittwater Council [2008] NSWLEC 1251 Applicant: Michael Crivelly PARTIES : Respondent: Pittwater Council FILE NUMBER(S) : 11323 of 2007 CORAM: Roseth SC KEY ISSUES: Development Application :- heritage significance of unlisted house DATES OF HEARING: 24 June 2008 and 25 June 2008 EX TEMPORE JUDGMENT DATE : 25 June 2008 Applicant: LEGAL REPRESENTATIVES: Mr C Mc Ewen, SC instructed by Mr R Bennett, solicitor of Pike Pike & Fenwick Respondent: Mr M Henry, barrister instructed by Mr J Browne, solicitor of Mallesons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 25 June 2008 11323 of 2007 Michael Crivelli v Pittwater Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Pittwater Council (the council) of a development application to demolish the existing house and erect a new house on lots 10 and 11 DP 11909, known as 165-167 Whale Beach Road, Whale Beach. The site 2 The site is on the southern side of Whale Beach Road to which it has a frontage of 30m. It consists of two allotments that together have an area of 1,654m2. It slopes steeply towards the rear, which is adjacent to the council's reserve along Whale Beach. A stone cottage now stands astride the boundary between the two allotments and close to the street. The area between the beach reserve and the house is heavily vegetated. The strip extends over neighbouring sites along Whale Beach Road. Development is visible only above the vegetated strip. 3 The character of the locality is low-density housing. The proposal and its history 4 The applicant proposes to demolish the existing stone house and erect a new house more or less in the same position, though larger in footprint. The council has no issue with the proposed new house; however, it opposes the demolition of the existing. 5 The applicant lodged the application in October 2007. Following notification, the council received three objections. The applicant lodged the appeal in December 2007. Relevant planning controls and policies 6 Local Environmental Plan 1993 (LEP 93) zones the site Residential 2(a) and sets it within the Foreshore Scenic Protection Area. LEP 93 contains a list of heritage items; however, the subject site does not appear among them. State Environmental Planning Policy 71 – Coastal Protection (SEPP 71) applies. Two development control plans are also relevant, DCP 15 – Heritage Conservation and DCP 21, which includes heritage controls. Matters in contention 7 The only matter in contention is whether the heritage significance of the existing cottage warrants its retention. Since the proposed house requires demolition of the existing, a decision to retain the existing is tantamount to refusing the application. Objectors and supporters 8 The Court heard the evidence of two neighbours, Mr Harry Trueman of 163 Whale Beach Road; and Ms Janet Kingsbury of 169 Whale Beach Road. Mr Trueman objects to the proposed new house being 7m to the north of what he called the effective building line in the area (ie a line drawn along the northern side of existing houses). Ms Kingsbury supported Mr Trueman's opinion. Mr Trueman had asked several owners along the eastern side of Whale Beach Road whether they agreed that the effective building line should be included in a development control plan and they all signed a statement of agreement. 9 The council has no issue with the northern alignment of the proposed building. While it is closer to the beach reserve than the adjoining buildings, it still leaves undeveloped most of the northern part of the site. There is no rear building line control in any planning document. The Court would therefore have no basis on which to require the proposed house to move towards the south. 10 The applicant tendered a batch of supporters' letters. The theme underlying these letters was that the planning system should be based on certainty. Buildings that are not listed as heritage items should not require to be preserved. Heritage significance of the existing house 11 LEP 93 lists several buildings as having heritage significance; however, 165-167 Whale Beach Road is not among them. The basis for the list in LEP 93 was a Heritage Study carried out in 1989. The Study does not refer to the subject site. In the intervening years the original list of heritage items in LEP 93 has been added to. The subject site is not among the additions. 12 Much was made during the hearing about the reasons for the failure to list the subject property as a heritage item. There are only two possible reasons: either the person responsible for listing did not notice the building or he or she did not consider it of sufficient heritage significance. I have no reason to assume that the building was not noticed. Attributing heritage significance is a subjective exercise and it is inevitable that some people attribute significance to a building while others do not. 13 The heritage experts were Professor Richard Mackay, a heritage consultant, and Mr Robert Staas, a heritage architect. In Professor Mackay's view, the existing house is on the cusp of having local heritage significance. I take the word cusp to mean that the significance is marginal. I note, however, that Professor MacKay's evidence is inconsistent with the NSW Heritage Office's publication Assessing Heritage Significance, which states: Use of 'exceptional', 'high', 'moderate', little', 'low', 'intrusive' significance or other expressions of degree only relate to grading components of a place, not the overall level of significance of a place. It appears that the Heritage Office does not believe that an item of heritage can have marginal significance. 14 Professor Mackay says that preserving the existing building would lead to a better heritage outcome than demolishing it. He believes that the heritage significance of the existing house may be demonstrated on three of the seven criteria listed in Assessing Heritage Significance. The three criteria are (a) Historical Evolution; (f) Rarity; and (g) Representativeness. In Mr Staas' view, the existing house does not qualify on any of the above three criteria. 15 I turn to the first criterion, Historical Evolution. According to Professor Mackay, the reason that the existing house meets this criterion is that it shows significant human activity. That activity was the construction, occupation and use of the modest, often quirky and romantic holiday cottages built in the beachside areas of the Peninsula during the mid-twentieth century during the area's years of consolidation from holiday retreat to well-to-do beach resort and dormitory suburb. 16 Mr Staas takes issue on the grounds that construction of the house from 1952 to 1954 falls outside the area's period of holiday homes 1920-1950. This seems to me to be a pedantic reason that is not valid. The reason I do not accept Professor Mackay's evidence is that there is nothing special about this particular holiday house that does not apply to others. I do not accept that the criterion suggests that every example of significant human activity should be considered to have heritage significance. 17 Professor Mackay considers that the house meets the criterion of being rare because of its late date, idiosyncratic style and sandstone construction. I do not accept that these characteristics justify heritage significance. What does late date mean? I suspect it means that the house appears to have been built much earlier than 1952. Why would this fact justify heritage significance? If anything, it justifies the opposite. The same argument applies to the house being idiosyncratic. Sandstone construction probably comes closest to meeting the rarity criterion; however, there are other stone buildings in the area. To ascribe heritage significance to buildings solely on the basis of stone construction seems to me unreasonable, unless there is a general policy in an area to save all stone buildings. If that were the case in Pittwater, the house would have been listed. 18 I turn to the criterion of Representative Significance where an item is significant because it demonstrates the principal characteristics of a class of NSW cultural or natural places or cultural or natural environments. According to Professor Mackay, the existing house meets this criterion because it is a significant variation within the diverse suite of houses, which together illustrate the evolution of the Peninsula beach suburbs. As a set, these residences form a rich collection of houses and cottages, both vernacular and architect-designed, which illustrate the area's development. Mr Staas takes issue. In his opinion, the house is not an outstanding example of the holiday cottages, which were a distinctive part of the pre-War character of Palm Beach and Whale Beach. Neither is it a good representative example of the evolving post-War architectural expression. In his view, it is an odd an anachronistic example of a holiday house that is not significant for either period and is not part of a significant group of similar houses in the area. 19 It seems to me that at the heart of the dispute between the two experts lies the fact that Professor Mackay likes that the existing house is built in a style that was uncharacteristic of its time, while Mr Staas believes that architecture should express its own time. I agree with Mr Staas that the nostalgic nature of the house, built in 1952 in a style of an earlier period, is a feature that weakens, rather than reinforces its claim to heritage significance. 20 I accept Mr Staas' evidence that the existing house has no heritage significance. The fact that it is not a listed item in LEP 93 is entirely appropriate. The site's development potential if house is retained 21 Professor McKay agrees that if the preservation of the house deprives the site of development potential, its demolition should be allowed. The development potential of the site while preserving the existing house was therefore the subject of debate during the hearing. 22 Professor McKay and a heritage adviser to the council, Mr Robert Moore, had prepared guidelines for the site's development consistent with preservation of the existing house. The guideline suggested that a new building be erected in the northern portion of the site between the existing house and the beach reserve. The applicant prepared a schematic design responding to the guideline. The council's manager of planning and assessments, Mr Lindsay Dyce, told the Court that the guideline was unacceptable because it required building within the vegetated strip that runs across the northern end of this and neighbouring sites. This demonstrates that the development potential acceptable to the heritage experts is not acceptable to the planning experts. 23 Mr Dyce explained to the Court that there is some limited development potential consistent with the preservation of the existing house that avoids building on the vegetated strip to the north. The house could be extended towards the south and have a third storey addition. Professor Mackay did not want to comment on a vague proposal without seeing drawings. Mr Staas thought that, with the kind of additions outlined by Mr Dyce, there would be no heritage values worth preserving. I take into consideration that, despite the fact that Professor Mackay did not reject the idea of extension outright, it is unlikely that a proposal that destroys the outside walls and roof of the existing house will be acceptable to him, or to any other heritage expert. This demonstrates that the development potential acceptable to the planners is unlikely to be acceptable to the heritage experts. 24 Where does this leave the applicant? While the applicant has not presented all possible variations of extending the existing building, I am satisfied from the joint report of the planners, as supplemented by the oral evidence, that preserving the integrity of the existing house would allow only minor extensions to it. I am also satisfied that there is nowhere else on the site where it is appropriate to place a second building. While preservation of the existing building would not completely sterilise the site, it would allow little additional development. 25 It seems to me therefore that even on the basis of Professor Mackay's evidence, the demolition of the existing building should be allowed. I am strengthened in this conclusion by two important facts. First, there are no objectors to the proposed demolition. Second, the public interest is best served by a planning system in which purchasers are given prior warning where a property has possible heritage significance. This is one of reasons for lists of heritage items in local environmental plans. 26 Given that the council raises no objection to the proposed house, nothing stands in the way of the approval of the application. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing house and erect a new house on lots 10 and 11 DP 11909, known as 165-167 Whale Beach Road, Whale Beach is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 7 and A. ____________________ 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.