Land and Environment Court New South Wales

• Medium Neutral Citation: Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118
• Hearing dates: 25, 26, 27 June 2013
• Decision date: 05 July 2013
• Jurisdiction: Class 1
• Before: Pearson C

Decision

Appeal dismissed

• Catchwords: DEVELOPMENT APPLICATION - Demolition of heritage item
• Legislation Cited: Environmental Planning and Assessment Act 1979; Strathfield Planning Scheme Ordinance; Strathfield Local Environmental Plan 2013
• Cases Cited: David Road v Hornsby Shire Council [2008] NSWLEC 1461; Helou v Strathfield Municipal Council (2006) 144 LGERA 322
• Category: Principal judgment
• Parties: Norm Fletcher & Associates Pty Ltd (Applicant); Strathfield Municipal Council (Respondent)
• Representation: Counsel; Mr I Hemmings (Applicant); Mr P Clay SC (Respondent); Solicitors; Hones La Hood (Applicant); Houston Dearn O'Connor (Respondent)
• File Number(s): 10096 of 2013

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of development consent for the demolition of "Camden Lodge", 102 Burlington Street Homebush.

2 Camden Lodge is a single storey double brick bungalow with slate tiled roof, built in 1916. The house is located across Lots 14 and 15 DP 400, and the adjoining Lot 13 was formerly a tennis court. The total area of Lots 13, 14 and 15 is 2,787.09 sqm. There is a detached billiards room located at the rear of the house, and a garage towards the south-western corner, and shed.

3 Camden Lodge is included as Item 71 in Schedule 9 of the Strathfield Planning Scheme Ordinance (SPSO) as an item of local heritage significance, and development consent is required for its demolition under cl 59A(1) of the SPSO. Clause 59A of the SPSO requires the consent authority to take 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".

4 The present state of Camden Lodge is such that it requires substantial work to restore it to a habitable state. The central issue in dispute between the parties is whether the cost of doing the work would impose an unreasonable burden in the circumstances, such that demolition should be approved.

The history of Camden Lodge and the background to the application

5 The house was built in 1916 for Robert Trevethan. It was sold in 1924 to Ethel Rofe, wife of Arthur Camden Rofe, who was at one time alderman on Marrickville Council and Petersham Council. The house remained in the Rofe family until it was sold in 1942 to Arthur Bush, butcher, of AJ Bush & Sons. Bush was the owner of the property until Lots 13, 14 and 15 were sold in 2009 to the present owners.

6 The building and the site are described in the Item Identification Sheet under the Strathfield Heritage Study 1986, as part of its listing as an item of local heritage in 1986, in the following terms:

A single storey, face brick bungalow with a symmetrical façade located on a large allotment. The slate roof features multiple roof pitches, a central projecting shingled gable over the entry, exposed rafters and terra cotta ridge cresting and capping. A return verandah has tessellated tiles, decorative timber brackets. The house is set in large grounds with a former tennis court to the east, a circular drive, a low brick fence and a mature large garden (see over). Camden Lodge is of local significance as a well maintained, substantially intact bungalow. It is representative of the rich variety of good quality housing built in Strathfield in the first half of the twentieth century.

7 The Item Identification Sheet for Item 71 continues with a description of the Garden in the following terms:

This is a very good example of a bungalow and its garden consists of good brick fences and gateway, gravel drive, lawn, brick edges, shrubs and trees combining together to form a unified landscape.

8 In July 2010 the owner lodged a development application for the demolition of the existing dwelling and associated structures and construction of a new single storey dwelling. The applicant provided a structural assessment prepared by Hughes Trueman dated February 2010:102 Burlington Road Homebush Structural Assessment Report. The Council obtained a report from Tropman & Tropman Architects Preliminary Heritage Assessment and Physical Condition Report (May 2010). In September 2010 the Council refused development consent. An appeal to the Court against that refusal was discontinued in March 2011.

9 On 31 January 2012 the dwelling suffered fire damage, contained in the roof structure and over the external main electrical cupboard. In evidence (exhibit 1) is correspondence from the Council dated 6 February 2012 to the present applicant, copied to the owner, relating to the protection of the fire damaged dwelling from inclement weather, and recommending that a "ready solution to the problem would involve the use and appropriate placement of tarpaulins over the remaining roof structure". On 24 February 2012 the Council provided a Notice of Proposed Order (order 4) to require the owners "to repair and make structural alterations to the fire damaged building 'Camden Lodge'", specifying details of the required repairs. The basis for the proposed Order was stated to be that the building "is so dilapidated as to be prejudicial to its occupants or to persons in the neighbourhood". The Notice included the following statement:

Please be advised:

It is strongly advised that a temporary cover be provided over the damaged roof of the building to protect the remaining structure from weather damage, as soon as possible.

10 The Council did not make an Order pursuant to s 121B of the Act. The advice was not acted upon. It was common ground that the building was not insured.

11 Development Application No 2012/020 was lodged on 28 February 2012, seeking consent for the demolition of the dwelling and associated outbuildings. Included in the documentation provided by the applicant were a Structural Report dated 14 February 2012 prepared by Australian Consulting Engineers Pty Ltd, and a Statement dated 22 February 2012 prepared by Mr Robert Staas, heritage consultant.

12 The Council referred the application to Tropman & Tropman Architects for heritage assessment, and to Structural Design Solutions for assessment of the structural condition of the building.

13 The Council refused consent on 14 August 2012. That refusal was affirmed on a review under s 82A of the Act on 13 February 2013, and the present appeal against the refusal was lodged on 13 February 2013.

Evidence

Expert evidence

14 The applicant relied on expert evidence from Mr Leigh Appleyard, engineer; Mr Daniel Bliss of JK Geotechnics, on geotechnical issues; Mr Michael Dakhoul, quantity surveyor; Mr Robert Staas, heritage consultant; and Mr Norm Fletcher, planner.

15 The Council relied on expert evidence from Dr Robert Facioni, engineer; Mr Richard Craig Smith, quantity surveyor; Mr David Logan, heritage; and Mr Silvio Falato, planner.

16 Mr Appleyard and Dr Facioni provided two joint reports (exhibits 6 and 7) and gave oral evidence. Mr Dakhoul and Mr Smith provided two joint reports (exhibits 8 and 14) and gave oral evidence. Mr Staas and Mr Logan provided a joint report (exhibit 10) and gave oral evidence. Mr Fletcher and Mr Falato provided a joint report (exhibit 9) and were not required for oral evidence.

17 The individual statements of evidence, and the joint reports, annexed several of the previous reports relating to earlier assessments undertaken on behalf of the applicant and owners, and on behalf of the Council. Those reports include the two reports provided to the Council by Tropman & Tropman Architects (dated May 2010 and 23 March 2012); and the report prepared by Mr Appleyard dated 31 May 2012 for the applicant, which includes extracts from the earlier report of Mott McDonald Hughes Trueman dated 7 March 2011, and from a joint report prepared by the two structural engineers retained in the earlier Court proceedings, dated 10 March 2011.

Resident evidence

18 The Council publicly notified the development application and the s 82A review application, and the written submissions received are included in exhibit 1. The submissions made on both occasions included a petition, and included submissions in support of the application and opposed to it.

19 The hearing commenced on site and six objectors gave evidence. Notes of that evidence and additional written submissions provided are exhibit 15.

Issues

20 The Council raised three contentions, relating to heritage, the cost of repair, and the public interest. The first contention was expressed in terms that demolition would detract from the existing setting, heritage significance and visual curtilage of adjoining and surrounding heritage items. That contention was particularised to include (a) that demolition would result in the loss of a heritage item that is significant as a good representative example of a substantial Federation period bungalow in the Strathfield local government area, with spacious gardens characteristic of that era, and (c) that it would be inappropriate on heritage grounds to allow the demolition of the heritage item in circumstances where it is not unreasonable to require the repair/restoration of the heritage item. The second contention was that the heritage significance of the item is such that the cost of restoration would be reasonable in the circumstances and demolition is not necessary. The third contention referred to the public objections received and compliance with the planning controls.

21 The contentions referred to what was then the Draft Strathfield Local Environmental Plan 2011. The Strathfield Local Environmental Plan 2012 (the 2012 LEP) commenced on 28 March 2013. Clause 1.8A of the 2012 LEP provides that a development application made and not finally determined before its commencement must be determined as if the Plan had not commenced. It was common ground that the heritage provisions of that plan are, in any event, relevantly the same as those in the SPSO. The only relevant difference is that 104 Burlington Road Homebush was included as a heritage item under the SPSO, and both properties adjoining Camden Lodge, namely 104 Burlington Road and 94-96 Burlington Road, are now included in the 2012 LEP as local heritage items. The site is not within a heritage conservation area under either the SPSO or the 2012 LEP. The rear of the site adjoins the heritage conservation area identified for properties facing Abbotsford Road. It was common ground that the proposed demolition would not impact on the heritage conservation area.

22 The evidence, and submissions, were not directed at the impact that demolition of Camden Lodge would have on the setting and heritage significance of adjoining and surrounding heritage items, but rather on the issues that were the focus of the Council's second contention, namely the heritage significance of the building if repaired and reconstructed, the cost of the work required, and the reasonableness of requiring those repairs rather than allowing demolition. In essence, the position of the applicant is that if restored the building would have no heritage significance, or at best, low significance, and that the cost of doing so would be an unreasonable impost on the owner. The Council's position is that having regard to the fact that the building was a heritage item at the time of its purchase, the neglect since then, the existence of further development opportunities on the site, and the benefit of retaining the heritage item, the cost of restoring the building is a burden that is not unreasonable in all the circumstances.

Consideration

23 Clause 59A(2) of the SPSO requires the consent authority, in determining an application for consent for demolition of a heritage item as required by cl 59A(1), to take 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". The term "heritage significance" is defined:

"Heritage significance" means historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance.

24 There are no relevant provisions in the Strathfield Consolidated Development Control Plan 2005, other than notification requirements.

25 It was not in dispute that the building was of significance before the fire in January 2012. Demolition of the building would destroy any remaining heritage significance. In considering whether demolition should be approved, it is necessary to consider whether the building retains heritage significance in its present state, or would if reconstructed. If it does, the cost of doing the work required is a relevant factor in what the parties agreed is a balancing exercise, which requires consideration of the heritage value of an item that requires considerable repair and reconstruction and the reasonableness of the financial impost on the private owners of that heritage item.

The physical state of the building before the fire

26 Evidence of the condition of the building before the fire is contained in the May 2010 report to the Council by Tropman & Tropman Architects (annexure to exhibit 5), which addressed the physical condition of the dwelling at that time, relying on and agreeing with the issues identified in and recommendations in a structural assessment report provided by Hughes Trueman dated February 2010. The structural assessment had identified that generally the condition of the roof framing was satisfactory with the exception of failed underpurlin, evidence of termites or borer, no sarking, shifted slate shingles and flashings to chimneys. Tropman & Tropman commented that those issues were reasonable repair and maintenance issues and were to be expected in a building of its age, and agreed that the repairs and maintenance works recommended by Hughes Trueman needed to be carried out to the roof as a matter of urgency. Tropman & Tropman noted some minor water damage apparent in a number of the rooms in particular around the chimneys and stated that repairs to the roof needed to be undertaken as a priority to prevent further water ingress and before repairs to ceilings could be undertaken. In relation to cracking, the Tropman & Tropman report noted cracking of various degrees throughout the residence, and commented that the diagonal cracking was minimal and to be expected in a building of its age; repairs of those cracks should form part of regular repairs and maintenance works regime. The Hughes Trueman report had noted that the timber columns and brick walls on the verandah on the northern elevation were leaning outwards. The Tropman & Tropman report observed significant movement of the front verandah away from the main building, with significant cracks visible to the brick verandah balustrade walls and concrete edging to the garden; some brick displacement to the top of the verandah columns as the base had moved away from the main building which could be repaired following repair works to the verandah; and some horizontal wall displacement to the front balustrade walls of the verandah. That report noted that rectification of the verandah movement and associated wall cracking, loose brickwork and wall displacement was a priority, and recommended either local treatment of the affected areas and removal, cutback and resetting of displaced bricks, or dismantling of the verandah fabric and rebuilding using the original fabric.

27 Additional evidence as to the physical condition of the building before the fire comes in the extracts from reports by Dr Hasham of Australian Consulting Engineers 15 June 2010 and Mott McDonald Hughes Trueman 7 March 2011 relied upon by Mr Appleyard in his statement of evidence (exhibit B), relating to the cracking and the need for underpinning; that the slate roof was un-sarked and that portions of the roof had sagged and required strengthening; and referring to the lack of termite caps between the underside of timber bearers and brick piers and skirting walls.

28 This evidence was not contested, and I accept it as a statement of the physical condition of the building shortly after its purchase by the present owner in 2009, and before the fire in January 2012.

29 The geotechnical assessment report prepared by Mr Daniel Bliss dated 7 March 2011 noted severe cracking present in the brick walls of the verandah up to 25mm wide, cracks between the brick wall of the house and the verandah floor of about 20mm wide, and cracking across the floor of the verandah slab; some cracks in the brick walls of the house away from the verandah, mostly within the external walls, which were mostly diagonal and mostly occurring around window and door openings, up to about 8mm wide; and a brief inspection of the internal walls only indicated minor cracking. The investigation undertaken revealed that the house and billiard room were supported on shallow footings founded within or just above the residual silty clays. Laboratory tests showed that the residual silty clays were of high plasticity and had a high potential for shrink/swell movements with changes in moisture content. The report expressed the opinion that the major cause of the cracking within the buildings would be the shallow depth of the footings which were not sufficiently deep to accommodate the shrink/swell movements of the high plasticity residual silty clays; other contributing factors could be some footings being founded within poorly compacted fill, cracking associated with deterioration of lintels above doors and windows, and possibly poor quality of concrete within the existing footings. Based on a subsequent site inspection on 23 April 2013, limited to an external inspection, Mr Bliss considered that the fire had not changed the geotechnical conditions of the site. Mr Bliss was not required to give oral evidence, and the parties' experts based their opinions on his evidence.

30 There are photographs of the building and the landscaping in evidence (exhibit 11), that were part of the real estate marketing for the dwelling at the time of its purchase by the present owner in 2009. There was some question as to whether they had been taken earlier, however that was not clarified. I accept those photographs as an accurate depiction, in their context, of the physical presentation of the dwelling, the associated billiards room, and the landscaped garden, at the time of purchase by the present owner in 2009. Based on the view, very little of the landscaping remains; and the collapse of the roof and ceilings consequent to the fire has left the interiors exposed to the elements.

The present physical state of the building and the work required

31 Mr Appleyard attended the site on 30 May 2012 and prepared an initial report, which he adopted and relied upon in preparing his supplementary report dated 29 April 2013 (exhibit B). Dr Facioni attended the site on 20 February 2012 to provide a report to the Council, and on 8 February and 11 March 2013. Mr Appleyard and Dr Facioni were present at the view on the first day of the hearing. In their first joint report, Mr Appleyard and Dr Facioni agreed in the following:

2.3 The house has sat vacant for several years and all building on site are poorly maintained. A fire occurred in the main house early in 2012. The fire was isolated to the main house. Neither the games room nor garage structures were damaged by the fire. More recently vandalism has taken place and some verandah walls (have been) pushed over.

2.4 The main house has experienced movements as a result of reactive clays in the area. The footings are shallow in size and are relatively flexible in the ground. As a result of the small footing size the footings respond to the shrink swell nature of the clays with similar movements. The lack of articulation in the brickwork of the house means the walls are stiff and have an inability to flex which results in cracks at the areas of stress concentration. The cracks in the house are typically in the order of 5mm.

2.5 The verandah, as distinct from the main house, is significantly damaged due to reactive soil movements.

The verandah should be demolished and reconstructed on new footings.

32 In their second joint report (exhibit 7) the engineering experts agreed that the front verandah and steps are in such a state of disrepair that they should be demolished and reconstructed. They agreed that partial underpinning works to the main dwelling and billiard room would be technically unsound, and that only the options of complete or no underpinning works should be considered.

33 In oral evidence Mr Appleyard and Dr Facioni agreed that articulation joints were required at particular locations on the south west part of the house, and that repair of the larger cracks could be done with stitching across the cracks with stainless steel reinforcing bars. They agreed that damp coursing was needed around the house.

34 The area of disagreement remaining between the experts was whether underpinning is required. The experts agreed that if it is not done, there is almost certainly a greater likelihood of ongoing cracking because of the reactive clay soils, and that the risk of cracking is reduced with underpinning.

35 Dr Facioni's opinion was that the house construction is consistent and typical of houses of its period in the area, and the inner west suburbs all have many heritage houses constructed in the early 1900s with shallow footings on reactive clays. The Heritage Council of NSW provides options for treatment of problems due to shrink/swell in clay soils, which include control of water sources, tree root control, moisture control to the building perimeter, and underpinning; the first three approaches can assist in minimising ongoing movement but will not eliminate it, however these three methods are considerably less expensive than underpinning. Dr Facioni's observation was that the three most noticeable cracked areas of the house are at points where the roof stormwater drainage discharges directly into the ground. His preferred approach is to remove moisture and direct it away from the house, control vegetation around the house, and stitch repair existing cracking. Dr Facioni accepted that ongoing cracking could be in the order of up to 2mm or 5mm, depending on how long the owner waited to repair, and that a 5mm crack could require repair of the wall.

36 Mr Appleyard in his statement of evidence noted that at the time Camden Lodge was constructed building regulations were in a rudimentary form, and that throughout much of the 20th century reinforced concrete footings were shallow, notwithstanding that the impacts of swelling soils were recognised from very early in the 20th century, and it was not until the 1980s that the full consequences of the impacts of reactive soils especially clays were adequately addressed by building codes and regulations. In his opinion underpinning is required, and would achieve the goal of having only a 5% chance of future cracking greater than the damage category 0 Negligible (less than 0.1mm) or 1 Very Slight (less than 1mm) specified in Australian Standard AS 2870-2011.

37 The question of whether underpinning is required in essence depends on whether it is appropriate to adopt Dr Facioni's approach, which he described as a minimum requirement to prevent further ongoing cracking without the expense of underpinning, and which would require ongoing maintenance and attention to cracks as they develop to prevent them progressing to 5mm, or that of Mr Appleyard which, he accepted, would not guarantee that there would be no future cracking, but which, they both accepted, would likely restrict future cracking to hairline cracks or fine cracks not needing repair.

38 The applicant submitted that it would be reasonable to require underpinning so as to enable the owners to enjoy a reasonable level of amenity without the burden of having to repair damage caused by repeated cracking. That would be consistent with the approach adopted by Moore C in Helou v Strathfield Municipal Council (2006) 144 LGERA 322, that even if other residents would accept foundation movement and cracking in their houses, a "greater degree of stoicism" should not be required of the owners of this residence. The Council agreed with the applicant that an owner prepared to spend the significant sum required to restore the dwelling (discussed below) would probably be prepared to spend the additional sum in the order of $200,000 to do the underpinning. While I accept that that is a commonsense approach, I agree with the Council that that willingness is not the test, and that underpinning would be a matter of choice. It was apparent on the site view that cracks have been successfully repaired in the past, for example on the external wall facing the street; both engineers accepted that there will be cracking, and that cracks can open and close depending on the moisture levels; the difference relates to whether an owner is prepared to take the steps required to take the steps required to forestall the acceleration of future cracks. In my view it is not unreasonable to determine the work required, and therefore the cost, on the basis that there is no underpinning.

39 In their joint report, Mr Staas and Mr Logan agreed that from a heritage viewpoint the primary objective should be to reinstate the house in a way that respects its heritage values. They agreed that the front verandah requires full reconstruction following careful demolition and the laying of appropriate new foundations and that some of the existing components appear to be capable of reuse; that the original slate roof is beyond recovery and a new slate roof is the preferred conservation outcome if the building is retained; and that full internal reconstruction of original details throughout the interior is not essential to the conservation of the heritage value of the property and new materials of a simplified type would be acceptable in some instances, for example ceilings. They agreed on a statement of preliminary scope of conservation works required (Attachment 1, exhibit 10). The works identified for external fabric included demolition and reconstruction of the front verandah; reconstruction of windows where missing, and repair of surviving windows and external joinery; demolition of roof framing to allow for total reconstruction; new slate roofing in Welsh slate and new metal work to roofing; repair to external shingles; repair or replacement of timber verandah flooring and supports; re-pointing of common brickwork where required; reconstruction of the rear enclosed timber room affected by termite infestation; repainting of previously painted surfaces; connection of down pipes to a new storm water disposal system; and repair/reconstruction of the front brick fencing. For internal fabric, the agreed list included replastering of damaged plaster finishes; replacement of damaged sections of skirtings, architraves and timber trims; replacement of damaged doors and damaged or missing hardware; new electrical and plumbing installation throughout; new bathroom, kitchen, and laundry fitouts; internal painting and decoration throughout; and new floor finishes.

The heritage significance of Camden Lodge

40 It was not in dispute that the building was of heritage significance before the fire and subsequent further damage resulting from exposure to the elements. The Item Identification Sheet that supported its listing in 1986 as an item of local heritage significance is extracted at [6] and [7] above. The May 2010 report to the Council by Tropman & Tropman Architects (annexure to exhibit 5) provided the following Statement of Heritage Significance (at 4.2):

Camden Lodge is a representative example of a quality substantial Federation Bungalow built in Homebush in the first half of the 20th century. The subject property is comprised of three early subdivision lots and contains landscaped gardens that typified the garden suburb planning of the Federation Period. The property as a whole is an important element in the streetscape and forms part of a group of heritage listed properties with its neighbours at No.96 and No.104 Burlington Road.

The property is associated with a number of important and affluent local people and businessmen including Robert Trevethan, Arthur Rofe, and Arthur Bush (of AJ Bush and Sons Butchers and Meat Suppliers).

41 That report concluded that Camden Lodge met four of the seven criteria in the NSW Heritage Manual Assessing Heritage Significance (NSW Heritage Office, 2001), being (a) an item is important in the course, or pattern, of NSW's cultural or natural history (or cultural or natural history of the local area); (b) an item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area); (c) an item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area); and (g) an item is important in demonstrating the principal characteristics of a class of NSW's (or the local area's) cultural or natural places, or cultural or natural environments.

42 Mr Logan and Mr Staas disagreed as to whether the building retained heritage significance in its present state, or would have heritage significance if repaired and reconstructed. Mr Logan was of the opinion that while the damage suffered by Camden Lodge during and following the fire has had some impact on its integrity, this impact is not at a level that has removed its heritage significance. It retains most of its previously identified heritage significance, including its historic significance to the local government area, its historic associations, its key aesthetic attributes and social value to the local community, and other values including its representative significance could be recovered through reconstruction. In his opinion while there will be new elements such as a new roof, it will regain its form, appearance and character, and would be consistent with acceptable "reconstruction" under the Burra Charter. Mr Staas' opinion was that much of the local value of the building relied strongly on the aesthetic values of the place and its integrity as a substantially intact building of the early 20th century in a substantially intact garden setting. Reconstruction to the extent required in the circumstances would not provide any degree of authenticity or integrity, as a large amount of the publicly perceived fabric would be a recreation of the original design and the interiors would be substantially modified. In his opinion the degree of reconstruction is important, and while the building would look like the original, so it would have some interpretive value, it will not have intrinsic value.

43 In their oral evidence Mr Staas and Mr Logan referred to the criteria and guidelines contained in the NSW Heritage Manual Assessing Heritage Significance (NSW Heritage Office). They agreed that meeting any one of the seven criteria is sufficient to find that an item has heritage significance. They agreed that the dwelling does not meet criteria (e) or (f), and disagreed as to whether the dwelling meets the other criteria either in its present condition, or once repaired and reconstructed. Both acknowledged that the assessment process involves some subjective elements, Mr Logan noting that the seven criteria were intended to enable an objective assessment to be made, and Mr Staas commenting that the assessment should be looked at as a scale.

44 Mr Logan considered that the dwelling still meets criterion (a) in its present state and if restored, being associated with a significant activity or historical phase which was the development of the suburb in the early 20th century after the opening up of the railway and showing the lifestyle of the people who lived there. Mr Staas was of the opinion that it is at the threshold for criterion (a), as while it has the association, it probably does not maintain or show the continuity of a historical process or activity because it has been vacant for many years; and while it is representative it is not unique; he would agree that before the fire it met criterion (a) but its significance has diminished, and after restoration would no longer be of importance. Mr Logan considered that the building meets criterion (b) both now and if restored because of its association with people who were important. Mr Staas was of the opinion that while the fact of that association would not be diminished, the physical association would be by the state of the building, and further diminished after reconstruction; in his opinion it would only just meet criterion (b).

45 Mr Logan considered that the building still meets criterion (c): it is still aesthetically distinctive, and the temporary degrading of the building can be restored. The building still has its integrity, it still has its external envelope and intact layout. Mr Staas disagreed, on the basis that the building has lost its design or technical integrity and its positive appeal has been more than temporarily degraded, and it will not be authentic once restored. They disagreed as to whether it meets criterion (d). Mr Logan was of the opinion that it just meets it, on the basis that the issue is whether it is important to a community, and the community does care about this building. In Mr Staas' opinion there is no evidence that the whole community sees this as a significant element, and this criterion would not normally be met by a residential building. Mr Logan considered that if restored, the dwelling would meet criterion (g), and it is just below the threshold now; Mr Staas was of the opinion that if restored it would probably not meet this criterion, because the issue is whether it would represent a historic building, or be a reconstruction.

46 Mr Logan's approach was that demolition of a heritage item should only be undertaken as a last resort, and he and Mr Staas agreed that from a heritage viewpoint the primary objective should be to reinstate the house in a way that respects its heritage values. The dispute between Mr Logan and Mr Staas in essence concerns whether the extent of the reconstruction required would retain the heritage significance of the building, or would result in a loss of authenticity or integrity.

47 There was no dispute that repair and maintenance work could be required, and undertaken, on a heritage item without detracting from its heritage significance. For example, the heritage experts agreed that replacement of a slate roof once the slates had reached the end of their useful life would be an accepted part of maintenance of a heritage item. Mr Staas agreed that if, before the fire, the roof had been repaired as recommended by Trueman Hughes, the shingles replaced, flashings upgraded, and cracks repaired; and if the internal walls and internal roof repairs had been undertaken, that level of work would be a reconstruction to retain the heritage significance of the building; and the building would still retain heritage significance.

48 Based on the reports prepared in 2010 and 2011, referred to at [26] and [27] above, I am satisfied that at that time the building required work to address both internal and external cracking; the front verandah required substantial work; the roof also required significant work; and internal work was required as a consequence of water damage caused by the defective roof. In 2010, Tropman & Tropman recommended that the building should be repaired and conserved, the garden elements should be maintained and conserved, and that Camden Lodge should remain listed as an item of local significance. I am satisfied based on that evidence that undertaking the work identified in 2010 and 2011 as required would not have diminished the heritage significance of the building at that time.

49 There was agreement that the building if restored would continue to meet criteria (a) and (b), albeit that Mr Staas would put it only at the threshold. I am satisfied, based on the evidence of Mr Logan and the documentation provided by the Council's Policy & Projects Officer Cathy Jones (as incorporated in the Tropman & Tropman May 2010 report and adopted by Mr Staas in his Statement of Heritage Impact March 2011 (annexed to his statement of evidence, exhibit D)), that the building is important in the course or pattern of the cultural history of the local area through its association with a significant historical phase of the local area, namely the residential development of the area in the early 20th century following the opening of the railway. The building is associated with a number of persons of note, including Robert Trevethan, Arthur Camden Rofe, and the Bush family; Mr Staas accepted that the fact of that association would not be diminished by the restoration of the building. I am satisfied that the building meets criterion (a) and (b).

50 It was not in dispute that the building met criterion (c) before the fire; Mr Staas' evidence was its aesthetic characteristics were the main reason for its initial listing in 1986. In considering whether it continues to meet criterion (c), or would if restored, the issue is whether there is a temporary degrading of its aesthetic distinctiveness, as Mr Logan considered, or the building has lost its integrity almost entirely, as Mr Staas considered. While I agree that significant work is required to the roof, and in removing and rebuilding the front verandah, I agree with Mr Logan that the building would, if that work were done, retain its external envelope, and its original form. The basic structure of the house and its constituent elements including the roof would remain, and be visible to an observer on the street. The repairs required to remedy the cracking in the external brickwork and to the windows would not be different in character to other repair and maintenance work required for a heritage item, such as replacement of roof slates. The layout of the interior would not alter, and on the evidence before me at least some of the interior fabric such as architraves and skirting boards could be repaired. I agree with Mr Logan that the building would retain its aesthetic character, and would meet criterion (c).

51 On the basis that the building would continue to meet three of the seven criteria in Assessing Heritage Significance, including the basis on which it was initially listed as an item of local heritage significance, I am satisfied that the building would continue to have heritage significance. That heritage significance would be destroyed if demolition is approved.

52 The experts did not address in detail the issue of the garden, which is listed separately in Item No 71, as noted above at [7]. While much of the vegetation has been removed and the fences, gateway, drive, lawn and edges have not been maintained, there is no indication on the evidence before me that the physical layout of the garden could not be reinstated to the form regarded as of significance in the Item Identification Sheet so that the garden contributes to the setting in which Camden Lodge is located.

The cost of doing the work required

53 The expert quantity surveyors provided two joint reports. The first (exhibit 8), was provided on 31 May 2013, and was based on the reports then available. In that report Mr Dakhoul and Mr Smith noted that neither had been provided with a detailed scope of works on which to base their opinions. Mr Dakhoul estimated a total cost (excluding GST) with full underpinning at $2,260,000, and with partial underpinning at $2,025,000; that included returning the building "to its original splendour when constructed in 1916". Mr Smith provided estimates (excluding GST) to make the property habitable of $658,980 incorporating the opinions of Dr Facioni in the joint report of the engineers; $838,482 based on Mr Appleyard's opinion of structural works required; and $1,132,374 based on Mr Dakhoul's opinion of structural and other architectural and heritage works required to return the building to its original splendour with partial underpinning. In that report Mr Smith and Mr Dakhoul agreed that given a detailed and defined scope of works for the structural component and architectural/heritage components they were confident they could provide an agreed estimate of costs, noting potential differences relating to non-measured items such as contingencies and consultants fees.

54 The second joint report (exhibit 14) was provided on 25 June 2013, and incorporated the works identified in drawings agreed between the engineers for proposed underpinning locations and path and proposed articulation joint locations, and the works identified in the joint heritage report. That report also included additional items identified on the view on the first day of the hearing, being asbestos removal, ant capping, and an injected damp proof course, which they costed at $40,000.

55 The quantity surveyors agreed that the cost of underpinning as recommended by Mr Appleyard would be $150,000 (with additional site supervision, sundries and overheads costs because of the longer construction period). Including the additional $40,000 for asbestos removal, ant capping, and an injected damp proof course, the total agreed cost with underpinning was $1,671,266.09; and with no underpinning $1,435,893.08. The agreed amounts do not include the cost of reinstating the landscaping to its original condition, or any work on the billiard room. The amount agreed for roofing includes the front and western verandah, the enclosed room at the rear and the main building, and not the garage.

56 There remained one area of disagreement, being the amount allowed for Windows: Mr Smith estimated $4,800, while Mr Dakhoul estimated $84,700. In oral evidence, Mr Smith confirmed that his figure was based on $250 per window to check and repair, for 18 windows. Mr Dakhoul's figure was based on his previous experience of the difficulty in finding a builder or joiner who would be prepared to attempt the work, and the need to totally replace all missing sashes and totally refurbish or replace the windows to their original status including leadlights or coloured glass. He had allowed $1150 per sqm for 30 sqm.

57 There are difficulties in accepting Mr Smith's cost estimate for the windows. In questioning, he conceded that the figure of $250 to repair the six panelled window on the front side of the house was an underestimate, and that the amount of $1150 per sqm was probably not far off for a replacement of those windows. He had not included in his costings all of the items in the heritage experts' agreed preliminary Scope of Conservation Works, in particular reconstruction of existing windows where missing to match original details, and reconstruction of the rear enclosed room affected by termite infestation. There is a greater difficulty, however, in understanding how many windows might need the relatively minor repair assumed by Mr Smith, or the major work assumed by Mr Dakhoul. Both Mr Smith and Mr Dakhoul based their estimates on a visual inspection, and in Mr Dakhoul's case, some scraping back which revealed that some window frames had rotted; however, neither had prepared a schedule of the condition of the windows.

58 Mr Smith estimated that expenditure in the order of $360,000-$380,000 would have been required before the fire, being $150,000 for underpinning, $200,000 for the front verandah, and $10,000-$20,000 for repairing cracks. He was of the opinion that if the roof had been protected since the fire the costs of internal finishes would be lower. Mr Dakhoul disagreed, referring to his previous costings which had included the previously existing damage to the roof.

59 I agree with the parties that it is not necessary for the purposes of these proceedings to reach a concluded view on the remaining area of disagreement between the quantity surveyors as to the cost of repair or replacement of the windows, or to identify a precise figure for restoration and repair of the dwelling. Little reliance can be placed on the figures estimated in the first joint report of the quantity surveyors, which was prepared without the benefit of the agreed scope of works provided by Mr Staas and Mr Logan, and which reflected different assumptions, for example Mr Dakhoul's costings on the basis of returning the interior to its original condition. In relation to disagreement on the cost of repair and reinstatement of the windows in the second joint report, in the absence of detailed examination and recording by either expert as to the present condition of each of the windows, I am not persuaded that there is a reliable basis for either Mr Smith's $4,800 or Mr Dakhoul's $84,700. I accept that some windows will need considerable work, for example the six paned window on the front which has no sashes; equally, it is not established that all the windows will require the extensive work included in Mr Dakhoul's estimate of $1150 per sqm. I accept the approach adopted by the parties' representatives, which is that the correct figure will be somewhere in the range between the two figures, and that that is such a minor part of the overall cost estimate as not to require precise quantification for the purposes of determining this appeal.

60 A similar approach could be adopted to the costing of landscaping, agreed under the heading "External Works" at $37,000: Mr Dakhoul considered that would include the cost of remedial landscaping for areas affected by the building work, while Mr Smith considered that more landscaping could be expected for that amount; both agreed that it would not represent the cost of reinstating the garden to its original condition. Further, much of the work required would depend on detailed investigation, for example of the condition of the floorboards once the debris from the collapsed ceiling and roof structure is removed.

61 I accept the approach adopted by the parties, and accept that the overall cost of restoring the dwelling to the state identified in the heritage experts' preliminary scope of conservation works and the engineers' drawing is in the order of $1,700,000 if there is full underpinning as recommended by Mr Appleyard, or $1,500,000 if there is no underpinning as recommended by Dr Facioni.

Whether the cost of doing the work would be an unreasonable burden

62 In Helou v Strathfield Municipal Council (2006) 144 LGERA 322 Moore C articulated a planning principle to assist in assessment of the impact of a proposal on the heritage significance of a contributory item in a conservation area:

46 The following questions should be addressed in assessing whether the demolition should be permitted:

1. What is the heritage significance of the conservation area?

2. What contribution does the individual building make to the significance of the conservation area?

The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought.

3. Is the building structurally unsafe?

Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area.

4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?

If the answer is yes, the cost of the necessary remediation/rectification works should be considered.

5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted?

If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding.

6. Is the replacement of such quality that it will fit into the conservation area?

If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved.

63 The planning principle in Helou was expressed to apply only to contributory items in a conservation area, and not to demolition of listed heritage items, as is the case in this appeal. While acknowledging that distinction, I agree with the parties that the principles are of assistance by analogy, in particular in identifying that the reasonableness of the costs of remediation or rectification is a relevant factor in determining whether remediation or rectification should be preferred to demolition.

64 That was the approach adopted by the heritage experts, who agreed that the costs of reconstruction need to be balanced against the resulting heritage significance of the item. Mr Staas was of the opinion that $500,000 would be at the upper limit of what might be reasonable to expect an owner to spend, given his assessment of the heritage significance of the building after reconstruction. Mr Logan put the figure at around $2million, based on his assessment of a higher heritage significance after reconstruction. That figure differed from the figure of $1million referred to in his statement of evidence (exhibit 5), and the amount of $800,000-$900,000 that in oral evidence he stated he had had in mind at the time of preparing his statement of evidence. Notwithstanding that difference, Mr Logan maintained his opinion that the costs now identified by the quantity surveyors as likely to be required would not be unreasonable to expect the owner to pay to retain the heritage item.

65 A factor in Mr Logan's consideration of this issue was the agreed position of the heritage experts that there is substantial potential for additional development on the site. In their joint report, they agreed that sympathetic infill development on the eastern-most lot (the former tennis court) would be acceptable as a means of defraying the cost of conserving the historic dwelling, and that if the existing dwelling is retained, there is potential to carry out sympathetic additions at its rear without detracting from the heritage value of the property. Mr Logan was of the opinion that the sale of the tennis court lot could return around $1million, and additions at the rear could add $300,00-$500,000 in value to the dwelling.

66 I agree with the applicant that in the absence of expert valuation evidence, there are difficulties in accepting Mr Logan's estimate of the value of the tennis court lot, and I also accept that any sale and consequent reduction in land area is likely to impact on the value of the remaining two lots on which the house sits. It is not necessary, however, in my view to quantify the amount potentially available to defray the costs of repair and reconstruction. What is relevant is that there would be no legal barrier to the sale of Lot 13. Any development proposed for that lot would need to be carefully assessed in accordance with cl 5.10 of the 2012 LEP, in particular under cl 5.10(4) which requires consideration of the effect of the proposed development on the two adjoining heritage items. Having regard to these two factors, I accept the agreed evidence of the heritage experts that sympathetic infill development would be possible, and am satisfied on that basis that there is available potential to defray at least some of the costs of the repair and reconstruction required for Camden Lodge.

67 I agree with the Council that the balancing exercise is not solely based on an arithmetical process, and that the social value of the retention of a heritage item is relevant. The 1986 listing of Camden Lodge, and the consequent requirement under the SPSO that development consent be obtained before it can be demolished, is a reflection of the public interest in protection of items of heritage significance as that term is defined in the SPSO. Issues such as reasonableness and equitable outcomes for the owners of properties affected by heritage listings can also be regarded as matters in the public interest, as identified by Mr Logan in his evidence provided as a court-appointed expert in the proceedings in Helou (144 LGERA 322 at 324).

68 The expert planners addressed the issue of the public interest in their joint report, and both referred to the large number of submissions made, both in support of and against the demolition. Those submissions included petitions, and several form letters. While an understanding of the likely costs of repairing and reconstructing the dwelling may be relevant to the opinions expressed both in support of demolition and in opposition, it would be entirely speculative to go behind the expressions of opinion contained in the written submissions and the oral evidence given by objectors. It is sufficient to note that many of the submissions made in support of the demolition application referred to the unsatisfactory present state of the building and grounds, and raised concerns for public health and safety. Many of the submissions opposed to demolition support the expression of the public interest that was reflected in the initial listing and the factors recognised in Assessing Heritage Significance criteria (a) and (b).

69 It is relevant to the balancing exercise that Camden Lodge was listed, and therefore subject to the constraints provided by the SPSO, many years before its purchase by the present owner in 2009. The reports from early 2010 confirm that at that time the building required significant work, including substantial repairs to the roof and front verandah and remediation of internal water damage, work that was required regardless of the later fire. The present owner acquired the property in its then physical condition and subject to the constraints of cl 59A of the SPSO. It is also relevant that since that acquisition there has been a failure to maintain the property and its landscaped features, coupled with removal of vegetation. That, and the failure to insure the house, together with the failure to take the step recommended by the Council shortly after the fire of covering the building with a tarpaulin, has increased the costs required to conserve the dwelling and consequently the financial burden on the owner.

70 I accept that the cost of repair and reconstruction is considerable. However, regardless of the reason why the building was not insured so that the cost of repairing the fire damage could be recovered, some of the financial burden of repairing and reconstruction of the building and its garden is attributable to the failure to maintain, before and since the fire, and to the active neglect of the building since the fire through its continued exposure to the elements. To that extent there are similarities with the position in David Road v Hornsby Shire Council [2008] NSWLEC 1461, where the Court noted (at 36]) that if recent deterioration is a justification for demolition, it would signify that in order to be allowed to demolish a heritage item an owner needs only to neglect it. Even if I were to accept, contrary to my finding above, that the cost of underpinning should be included so that the total cost of the repair and reconstruction work is in the order of $1.7million, and also to accept that a possible sale of Lot 13 would defray at best little of that cost, on balance, in the context of the continuing heritage significance of the dwelling, I am not persuaded that that is an unreasonable burden or impost on the owner.

Conclusion

71 Clause 59A(2) of the SPSO requires the Court to take into consideration the extent to which the carrying out of the development, in this instance, the demolition of Camden Lodge, would affect the heritage significance of that heritage item. Demolition would destroy its heritage significance. In circumstances where the building can be repaired and reconstructed so as to retain its heritage significance, and the costs of doing that work do not impose an unacceptable burden on the owner, demolition should not be permitted.

72 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 2012/020 for consent for the demolition of the dwelling house and associated outbuildings at 102 Burlington Street Homebush is refused.

3. The exhibits are returned except for exhibits F and 12.

Linda Pearson

Commissioner of the Court

Decision last updated: 05 July 2013