Land and Environment Court of New South Wales CITATION : Panagopoulos and Anor v Waverley Council [2010] NSWLEC 1122 APPLICANT Billy Panagopoulos and Patrice Panagopoulos PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10043 of 2010 CORAM: Tuor C KEY ISSUES: DEVELOPMENT APPLICATION :- demolish an existing duplex and construct a dual occupancy development with Torrens Title subdivision. Heritage significance of the building and whether it should be retained. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan DATES OF HEARING: 9 April 2010 EX TEMPORE JUDGMENT DATE : 9 April 2010 APPLICANT Mr M Baird, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms C Morton, solicitor of Sparke Helmore Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 9 April 2010 10043 of 2010 Panagopoulos v Waverley Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is an appeal against the refusal by Waverley Council (council) of a development application (DA16/2009) to demolish an existing duplex and construct a dual occupancy development and subsequent Torrens Title subdivision into two lots at 23 Brown Street, Bronte (the site). 2 The site, its locality, the history of the application and the planning controls are set out in the Statement of Facts and Contentions filed by council on 11 March 2010. 3 The contention raised by council is: 1. The proposal to demolish the existing dwelling, which is listed as a draft item on council's Draft Heritage Assessment for the Draft LEP, is contrary to Objective (b) for the 2(b) Medium Density Residential Zone under clause 10 of the LEP. Particulars (a) The proposal to demolish the existing dwelling does not ensure that the amenity and existing characteristics of the locality are preserved because there is a large draft listing of similar small residential buildings and duplexes in Brown Street and Palmerston Avenue. (b) The existing dwelling comprises a valuable piece of Waverley's heritage and is an attractive one of a pair of buildings. The proposal to demolish the existing dwelling will have the effect of removing a building of cohesive historic, aesthetic and streetscape significance, and (c) The existing dwelling should be retained, or a form of redevelopment that better reflects the historic character of the locality, should be considered. 4 The hearing commenced on site. The Court heard lay evidence from councillors Main, Strewe and Cancian, who are residents of the municipality. Neither the council nor the applicant provided expert evidence in the proceedings although the architect for the applicant, Mr N Murcutt, and the heritage architect, Mr J Oultram, explained the proposal and the heritage significance of the existing building. 5 The main concerns raised in the lay evidence included that the existing building and the adjoining building at 21 Brown Street are listed as a heritage item in the draft Waverley Local Environmental Plan Amendment No. 33 (Draft LEP). They stated that the listing as a draft heritage item had been through a long and thorough process and that the building was of significance as a rare example of an arts and crafts style residential building and should be retained and, if necessary, extended. In particular, they considered the relationship of the existing building to the park and to 21 Brown Street to be important. They stated that the new building does not provide solar access to both dwellings as is currently achieved by the duplex building where both units face the park and to the north. They were also concerned about the parking in front of the building and the protection of the water course at the rear of the site and the loss of affordable housing. 6 The item identification sheet of Waverley Heritage Assessment for the Draft LEP states the significance of the building as: The dual occupancy buildings at 21 and 23 Brown Street are good examples of Inter War residential development maintaining stylistic influences derived from English craft tradition employed widely in English town growth of the period. The adjacent duplex buildings demonstrate the persistent influence of English aesthetic sensibilities in Australian society of the inter-war period. The notable cohesion of the buildings with the streetscape of predominantly freestanding houses adds to the aesthetic significance of the buildings. 7 A later heritage report prepared by Mr Oultram in response to the listing of the building as a heritage item on the Draft LEP further assessed the significance of the building against the Heritage Office of New South Wales guidelines for assessing cultural significance and concluded that the building did not meet any of the criteria. The report states that: 7.1 Demolitions The current building is a very modest example of a post-war apartment building. It is of very low significance at a local level and the level of significance does not preclude its demolition. The building is one of a pair with 21 Brown Street but the buildings are of poor quality architecturally and the grouping does not enhance the significance of each. The site was subdivided in 1950 and it is likely that both buildings were built at this time by the then owner, the builder, Max Lake. Both buildings are in poor order. There are no features of note to record or salvage. 7.2 Proposed New Building The proposed new building is of a similar bulk, scale and footprint to the current building on the site and is clearly not seeking to over-develop the site. There are gardens to the sides and rear of the building that will respond well to its setting close to the Reserve to the north. The building uses render for the main walls with a strong balance of solid over void to the front elevation. The side elevations are more open and are articulated to the reserve with blade walls and projections at the first floor level. The elevations are well articulated without being overly complex. The hipped roof continues the detail common in the surrounding duplex developments, but is of metal to signify that it is a contemporary design. The proposals retain a sunken garden at the rear with cantilever decks over. 8 A structural condition assessment report (Assessment Report) prepared by GHD states that "the building is in poor condition and there has been very little maintenance to the building". In summary, the Assessment Report concludes that: The property is showing significant deterioration due to a combination of poor maintenance and ground movement and as a result the building appears to be in poor structural condition. This is evident due to the extent of defects and the damage observed. 9 Council's heritage adviser also provided commented that: The proposed development removes a building of cohesive historic, aesthetic and streetscape significance. Demolition consent would be subject to acceptance of the applicant's structural report and replacement with a building of equal or better streetscape contribution. Following extended discussions with council the revised application provides new works of acceptable streetscape significance. Whilst both existing residential flats have outlook north into the adjacent park only one of the proposed dwellings is provided with this amenity. The design of the dual occupancy as two narrow residential forms leaves the southern residence with limited solar access particularly to family living areas located to the centre of the ground floor. Given the location of the parking to the front of the site it would seem that paired two storey forms sharing the northern and park orientation would have been achievable on the site. Other than this the current scheme presents a well mannered contemporary infill to the established streetscape. 10 A Viability Analysis and Existing Building Amenity Assessment Report, both prepared by Mersonn Pty Limited, also concluded that the building did not warrant retention given its condition, non-compliance with BCA, amenity and the costs involved in upgrading the building to contemporary standards. 11 The development assessment report to council on 8 January 2010 recommended approval of the application. Findings 12 The key issue before the Court is whether the significance of the building warrants retention. Based on the information, in particular the heritage assessment carried out by Mr Oultram, I find that the building is not of such significance that it cannot be demolished and replaced by the proposed development. In reaching this conclusion I note that the building does not satisfy the assessment criteria for heritage listing. While it could be adaptably reused and brought up to contemporary standards, the costs involved in doing this are not warranted or reasonable given the building's level of significance. The proposed development has been designed to respond to the park and the adjoining building at 21 Brown Street and contributes to the overall streetscape character of Brown Street, which is varied in its nature with no consistency of style or architecture. 13 Further, Palmerston Avenue has a number of inter-war residential flat buildings, which form a cohesive group and are listed as heritage items in the Draft LEP. The site is also listed on the draft LEP, which has been exhibited and adopted by council to be forwarded to the Minister for gazettal. The Draft LEP is not certain or imminent and while it is a matter for consideration it is not to be given determinative weight. 14 The council officer's report on the Draft LEP to the Finance, Ethics and Statutory Planning Committee of 2 March 2010 recommended removal of the building and 21 Brown Street from the heritage list. The Committee endorsed the recommendation but it was not adopted by council. 15 The heritage listing of the property is not certain and, in the absence of any expert evidence to the contrary, the listing and the retention of the building are not warranted. 16 The other matters raised by the lay objectors have been adequately considered by the planning assessment report to council. I am satisfied that these would not of themselves warrant refusal of the application and that the proposal meets objective (b) for the 2(b) residential zone in the LEP. Order 17 The orders of the Court are therefore: (1) The appeal is upheld (2) The development application DA16/2009 to demolish an existing duplex and construct a dual occupancy development with Torrens Title subdivision into two lots at No 23 Brown Street, Bronte is approved subject to the conditions in Annexure "A". (3) The exhibits, except for Exhibits A and 2, may be returned. ___________________ Annelise Tuor Commissioner of the Court 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.