Land and Environment Court New South Wales Medium Neutral Citation: Shannon v Ku-ring-gai Council [2013] NSWLEC 1033 Hearing dates: 27 February 2013 Decision date: 28 February 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Modification Application No. MOD0157/12 to delete condition 61 of DA0653/11 requiring the retention of a garage is approved, subject to the conditions in Annexure "A". 3. The exhibits, other than exhibit 6, are returned. Catchwords: MODIFICATION APPLICATION: to delete a condition requiring the retention of the garage; impact on heritage significance of the heritage item; structural adequacy. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: James and Felicity Shannon (Applicants) Ku-ring-gai Council (Respondent) Representation: Mr Graham McKee (Applicant) Ms Lesley Finn (Respondent) McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11234 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Modification Application No. MOD0157/12 (the proposal) by Ku-ring-gai Council (the Council) to delete a condition of the development consent requiring the retention of an original single garage near the street front of an existing dwelling, at 21 Ada Avenue, Wahroonga (the site). 2The parties advised the Court at the commencement of the proceedings on site that there was no prospect of them reaching an agreement, as the outcome would either be that the garage is repaired and retained or it is demolished. Consequently, the s34AA conciliation phase was terminated pursuant to s34AA(2)(b) and the proceedings dealt with as a hearing, pursuant to s34AA(2)(b)(i). Issues 3The Council's contentions in the matter can be summarised as: * The original single garage should be retained because the siting of the garage is complementary to the design and location of the house, it is part of the setting and it provides evidence of the historic layering on the site; * Demolition of the garage will have an unacceptable impact on the heritage significance of the heritage item. The site and its context 4The site is on the western side of Ada Avenue and has a site area of 7,097m2 and a street frontage of 50.29m. The Glade Oval is at the rear of the site. 5The site contains a grand house that was substantially remodelled in 1936-7 by the well known architect, F. Glynn Gilling in the Inter-War Mediterranean/Georgian style and is known as 'Pevensey'. The original Federation style house was constructed in 1913. 6There is a single garage located at the street front. The garage structure is masonry construction, partly smooth rendered and partly roughcast rendered with a gabled roof clad in green terra cotta tiles. The gable ends are overclad with white painted weatherboards. A fallen tree limb has demolished a large portion of the southern side of the garage. Background and the proposal 7The proposal is to demolish the existing single garage. 8The modification application seeks to delete condition 61 of Development Consent DA0653/11, which would allow for the demolition of the garage. Condition 61 states: 61 Retention of Garage The existing garage adjacent to the northern boundary of the site is to be retained. Reason: Siting of the garage is complementary to the design and location of the house and provides evidence of historic layering on the site. 9The modification application was refused by Ku-ring-gai Council on 26 November 2012. 10Development Consent DA0653/11 was granted 2 March 2012 and is for substantial modifications internally and externally to the main house and its garden setting including the swimming pool. The development consent includes garaging for the house under a terrace on the northern side of the house. Planning Framework 11The site is listed as a heritage item, Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance 1971 (KPSO). 12KPSO clause 61D (2) states the following: The Council shall not grant consent to a development application under 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 any stylistic or horticultural features of its setting. Expert evidence 13Expert structural engineering evidence was provided by Mr Simon Wilshier on behalf of the Council and Mr Ken Demlakian on behalf of the applicant. 14Expert heritage evidence was provided by Mr Paul Dignam on behalf of the Council and Mr Robert Staas on behalf of the applicant. Structural engineering expert evidence 15The structural engineering experts agree on the following: * The garage is substantially damaged and should either be repaired or demolished; * It is feasible to repair the garage, however the experts differed slightly as to the extent of work required to repair the structure. * The extent of remedial works required to retain the garage would warrant upgrading the repaired structure to comply with current standards, including strengthening the external walls and the existing wall to roof connections; * Repair of the garage is only warranted if it is found that the garage contributes to the heritage significance of the heritage item. Heritage expert evidence 16The heritage experts agree on the following: * A building application was made and approved in 1928 for a brick garage on the site. There is no evidence that F. Glynn Gilling designed the garage. The historic evidence is that existing free standing garage was built c1929 for the Crane family before the remodelling of the house by Gilling for the Lowe family; * The garage has been modified, as evidenced by the fabric. 17Mr Dignam says that the location and siting of the garage is complementary to the house and it contributes to its heritage significance. Mr Staas says the garage is of little historic or aesthetic value to the site and the garage detracts from the setting of the house. 18Mr Staas says the garage contains elements of several different periods and is not a considered building. The roof tiles on the garage are not by the same manufacturer as those used on the house and have replaced earlier tiles. The details and materials used in the remodelling of the garage do not reflect those being used in the 1937 work on the house or the quality of work undertaken by Gilling generally. 19Mr Staas says that the heritage listing relates to the architectural merit and aesthetic significance of F. Glynn Gilling's design for the house and that the garage was simply left insitu as it pre-dates the house. Mr Dignam agrees that the garage is not Gilling's work, however in his opinion the garage contributes to the historic layering of the site and the setting of the Gilling's house. 20Mr Dignam acknowledges that the heritage listing of the site was primarily made on the basis of its architectural significance as an Inter-War period building. He says while it is desirable to retain the garage, the heritage significance of 'Pevensey' will not be compromised by the demolition of the garage. Findings and Conclusion 21I accept the evidence of the structural engineers that it feasible to repair the garage and that the garage structure would require upgrading to comply with current standards. Consequently, I have given no weight in my decision to the existing damage to the garage caused by a fallen tree branch. If I am satisfied that the garage contributes to the heritage significance and interpretation of the heritage item, then I accept that it is feasible to require its repair and reconstruction. 22In my opinion, 'Pevensey' is not a property that contains an ensemble of elements that all contribute to its cultural significance. The heritage listing of 'Pevensey' relates to the architectural merit and considerable aesthetic significance of F. Glynn Gilling's accomplished design for the house and because it is a good example of his extraordinary body of work. 23Utilitarian outbuildings can often be significant components of a place and an important cue to historical uses. However, in this matter, I am satisfied that the garage is an insignificant component of the place, it has little or no relationship with either the house or its setting. It is stylistically different and unremarkable. It does not contribute to the heritage significance of the heritage item. 24I agree with Mr Staas that the garage detracts from the garden setting of 'Pevensey'. 25I am satisfied that the demolition of the garage will not diminish either the heritage significance or the setting of 'Pevensey' and the proposal can therefore be granted approval. Orders 26The orders of the Court are: 1.The appeal is upheld. 2.Modification Application No. MOD0157/12 to delete condition 61 of DA0653/11 requiring the retention of a garage is approved, subject to the conditions in Annexure "A". 3.The exhibits, other than exhibit 6, are returned. Susan O'Neill 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. Decision last updated: 28 February 2013