Land and Environment Court New South Wales

• Medium Neutral Citation: Tang v Hornsby Shire Council [2013] NSWLEC 1123
• Hearing dates: 8 July 2013
• Decision date: 09 July 2013
• Jurisdiction: Class 1
• Before: Tuor C

Decision

1. The appeal is dismissed.

2. The development application for the demolition of the existing dwelling house, in ground swimming pool and associated structures and the erection of a two storey dwelling house at 22 Highlands Avenue, Wahroonga, is refused.

3. The exhibits, except Exhibits 1 and B, may be returned.

• Catchwords: DEVELOPMENT APPLICATION - demolition of a dwelling in a heritage conservation area and construction of a new dwelling. Significance of conservation area and dwelling. Impact of proposal on the heritage significance of the conservation area.
• Legislation Cited: Environmental Planning and Assessment 1979; Hornsby Draft Local Environmental Plan 2011; Hornsby Local Environmental Plan 1994; Land and Environment Court Act
• Cases Cited: Helou v Strathfield Municipal Council [2006] NSWLEC 66
• Category: Principal judgment
• Parties: Fenglun Tang (Applicant); Hornsby Shire Council (Respondent)
• Representation: Solicitors; Mr D Williams of Whitehead Cooper Williams (Applicant); Mr P Jackson of Pikes & Verekers Lawyers (Respondent)
• File Number(s): 10307 of 2013

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hornsby Shire Council (council) of a development application (1359/2012) for the demolition of the existing dwelling house, in ground swimming pool and associated structures and the erection of a two storey dwelling house at 22 Highlands Avenue, Wahroonga (site).

2 The key issue in dispute between the parties is whether the proposal will have an adverse impact on the heritage significance of the conservation area.

Site and its locality

3 The site is rectangular in shape and is located on the eastern side of Highlands Avenue, diagonally opposite its intersection with Oleander Street and near its intersection with Fern Avenue. It has an area of 1,176sqm and is developed with a single storey brick and tile dwelling house built in about 1948 with a later detached garage and in ground swimming pool. The site is landscaped with large trees in the front setback area.

4 The surrounding area is predominantly low density residential. Waitara Public School is located at the northern end of Highlands Avenue.

Background and proposal

5 In July 2005, Godden Mackay Logan prepared the Wahroonga (North) Heritage Conservation Review (GML Study) which recommended that the area be identified as a conservation area. In 2006, council resolved to exhibit an amendment to Hornsby Local Environmental Plan 1994 (LEP) to include the heritage conservation area in the LEP. The LEP did not proceed as the Department of Planning did not support the draft LEP amendment prior to the preparation of a comprehensive plan.

6 In 2010, the Wahroonga (North) Conservation Area Review dated August 2010 (Review) was undertaken by Sue Haertsch Planning in association with John Oultram Heritage & Design. The Review included an assessment of the impact of development in the area since 2005. The review supported the proposed HCA with the suggestion that the conservation area be divided into two precincts (North and South) due to the differences in historical development, housing stock and character between the two parts. The Review also found that recent development had not diluted the character of the area to the point where it would no longer merit the status of a conservation area. The area was included as a conservation area in the LEP in September 2011.

7 In 2010, council approved a development application (DA/755/2010) to change the appearance of the existing dwelling and add a second storey to provide six bedrooms, alter the garage roof form and relocate the double garage door to the front and erect a roofed walkway from the garage to the dwelling (development consent). The development consent is valid until 14 July 2015.

8 The current development application seeks approval to demolish the house, garage and swimming pool and erect a new two storey house which would include four bedrooms, two guest rooms, a study, family room, dining, kitchen, home theatre room, rumpus room and a double garage.

Planning controls

9 The site is within the Residential A (Low Density) Zone under the LEP and the proposal is permissible with consent. The site is within the Wahroonga (North) Heritage Conservation Area (HCA) identified in Schedule E of the LEP. The LEP was amended in 2011 to include the HCA in Schedule E. Under cl 18 of the LEP, development consent is required to demolish or erect a building in a heritage conservation area and consideration must be given to the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area.

10 Draft Hornsby Local Environmental Plan 2011 (Draft LEP) has been exhibited and forwarded to the Department of Planning to be made. Under the Draft LEP, the site is within the R2 Low Density Residential Zone and the development remains permissible with consent. The HCA is identified in Schedule 5 of the Draft LEP.

11 The Hornsby Heritage Development Control Plan (Heritage DCP) applies to "...heritage conservation areas ...as identified under the Hornsby Local Environmental Plan, 1994 as shown in Appendix E." Through the LEP amendment, the HCA is identified under the LEP; however, the Heritage DCP has not been amended to include the HCA in Appendix E.

12 The Hornsby Dwelling House Development Control Plan (DCP) applies to the development. The Element: Heritage includes the following Element Objectives and Performance Criteria:

Element objective

The retention of heritage items and conservation of the heritage values in heritage conservation areas to provide continuity with the past.

Performance criteria

Dwelling houses should be sympathetically designed to ensure that the existing heritage value of the streetscape and character of an area is maintained, Particular regard should be given to the streetscape in heritage conservation areas.

13 However, the Prescriptive Measures in the Element: Heritage do not apply in their terms to the site, as they refer to heritage conservation areas identified in Appendix C in the DCP which has not been amended to include the HCA.

14 The Draft Hornsby Development Control Plan 2013 (Draft DCP) has been exhibited and will commence once the Draft LEP is made. Mr Jackson, for the council, submits that, as the Draft LEP is imminent and certain, the Draft DCP should also be given weight. He submits that the Draft LEP, the Heritage DCP and the DCP are relevant considerations under S79C(i)(e) of the EPA Act. Mr Williams, for the applicant, did not contradict this position.

15 Section 9.3.10 of the draft DCP includes a History, Description, Statement of Significance and Prescriptive Measures for the HCA. These reflect the GML Study and the Review and have been considered by the Heritage Experts. I accept that these provide guidance in considering the extent to which the carrying out of the proposed development would affect the heritage significance of the HCA required by cl 18(3) of the LEP.

Evidence

16 A conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act) was held on site. The parties did not reach agreement and the conciliation conference was terminated and a hearing was held forthwith. The parties agreed that the view and the discussions during the conciliation conference, could be evidence in the hearing.

17 The Court heard heritage evidence from Mr M Edwards, for the applicant, and Mr J Oultram, for the council. The applicant provided a statement that outlined his family's requirements and the history and approach to the development.

18 The experts agree that the primary issue is the coherence and character of the HCA. They both referred to the planning principles in Helou v Strathfield Municipal Council [2006] NSWLEC 66 which address the demolition of a contributory item in a heritage conservation area. The experts disagree on the significance of the HCA, the contribution of the house to this significance and the quality of the replacement building.

What is the heritage significance of the conservation area?

19 Both Mr Oultram and Mr Edwards referred to the Statement of Significance for the HCA in the Draft LEP. However, they held different opinions as to importance of post war development. Mr Edwards stated the significance of the HCA:

.... is principally derived from the precinct's evidence of the evolution of development on the upper North Shore... the Statement of Significance, which is a statement that identifies what and why the place is considered important, specifically identifies and emphasises the Federation and Inter-War vernacular as being a significant and contributory element of the heritage conservation area. Little reference is made to the layering of Post-War development, to which the subject site is attributed

Undoubtedly, the dwelling does contribute to the 'predominant building period (1913-1950)' having an estimated construction date of c1948.....

20 Mr Edwards considered that the significance of the northern precinct of the HCA "is also embodied in the mature tree canopy, wider allotment frontages which address the streetscape, low height front fences and generous front setbacks with garden settings."

21 In Mr Edwards opinion, "the extent of recent development in the immediate context of the site has significantly eroded the integrity and level of intactness of this precinct within the HCA". He referred to two storey developments in Highlands Avenue, Ingalara Avenue and Oleander Street and to the consent for the site, which were approved after the identification of the HCA in the GML Report. These approvals demonstrate that council has not consistently applied the controls in the LEP and DCP and has contributed to the erosion of the HCA.

22 In Mr Oultram's opinion the Statement of Significance 'refers to the pre Second World War subdivisions that led to the construction of the house and development post 1892." He stated that the HCA is divided into a two precincts, which reflect the different historical development, housing stock and character. The southern precinct represents the earlier phase of development with the characteristic building period being 1892-1939. In the northern precinct, which includes the site, the characteristic building period is 1913-1950. He referred to aerial photos from 1930, 1943 and 1955 as illustrating the pattern of development. He noted that there was little development in the vicinity of the site in 1943 but by 1955 the area was developed. In his opinion, a large number of the houses within the northern precinct would be representative of the post World War 2 development and have been identified in the GML Report and the Review as contributing to the significance of the HCA.

23 Mr Oultram agreed that the recent two storey development impacted on the integrity of the conservation area but that "the defining character of the area remains largely intact". He considered that these developments were approved prior to the inclusion of the HCA in the LEP and would not be approved under the current and draft controls.

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

24 Mr Edwards considered that the house did not contribute to the heritage significance of the HCA as it forms part of the layering of the Post War vernacular, which is not the primary period of development identified in the Statement of Significance. Furthermore, in his opinion, the house is not a fine or representative example of the Post War period, "exhibiting modest form, characteristics and detailing". The alterations to the house, in particular the garage, have reduced its intactness and the recent nearby development has compromised its setting, which has "deteriorated the intactness and integrity of the predominant built form character of Highlands Avenue and Oleander Street, interrupting any grouping that collectively, is representative of the architectural class."

25 Mr Edwards considered that the allotment was typical of the 1933 subdivision of the Highlands Estate and that the mature trees in the frontage of the site contribute to the landscaped setting and treed canopy of the streetscape, which is characteristic of the HCA. In Mr Edwards' opinion, the house made a "neutral" contribution to the HCA.

26 Mr Oultram stated that the house was identified in the GML Study and the Review as a contributory element in the HCA. In his opinion, the house "is from the predominant building period (1913 -1950) that is identified in the Draft DCP as a characteristic period for the northern precinct and the house is stylistically readable as being from this period. It is a representative example of its type." Its modest form and detailing are characteristic of buildings of this period.

27 Mr Oultram accepted that the house had been altered but not to the extent that its contribution to the HCA was diminished. The addition to the side was sympathetic, the enclosure of the verandah was easily reversible and the garage, although in front of the house, was detached and to the side, thereby retaining the original form of the dwelling.

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

28 Mr Edwards accepted that the proposed dwelling does not strictly comply with the provisions of the Heritage DCP and Draft DCP but considered this to be acceptable due to the immediate context of the site. He stated that:

given the varied built form and the moderate presence of contemporary development particularly within the surrounding context of the subject site, the height, bulk, scale and materiality of the proposed dwelling will visually integrate with the established built form, providing an appropriate level of transitional building scale to adjoining dwellings, maintaining a consistent generous front building setback, and incorporating design elements such as the modulated and hipped roof form and materials and finishes that will harmonise with the established built form within the streetscape

29 Mr Oultram considered that the proposed dwelling responded to height, bulk and form of recent developments that had an adverse impact on the HCA. In his opinion, the building did not respond to the setback of the adjoining houses and elements of the design, such as the projecting double garage and bay window, and the portico were uncharacteristic of the area and would be dominant elements in the street. He stated:

The replacement building will not fit into the conservation area being a two storey dwelling in a contemporary design in an area of largely single storey, characteristic houses. It does not comply with the provisions of the Heritage DCP or the Draft DCP.

30 Mr Edwards suggested that the house could be setback a further 4.5m to align with the setback of the adjoining houses. While Mr Oultram agreed that this would be an improvement, it did not alleviate his concerns. The applicant did not seek leave to amend the application and Mr Jackson, submitted that it would be inappropriate to impose such a change as a condition and that it would need to be renotified given that it would move the building 4.5m closer to the neighbours.

Findings

31 In applying the principles in Helou to this appeal, I accept the evidence of Mr Oultram.

32 The first question posed in Helou asks "what is the heritage significance of the conservation area?" This is answered by the Statement of Significance for the HCA in the Draft DCP which reflects the GML study and the Review. It states:

The Wahroonga (North) Heritage Conservation Area is closely associated with the opening of the North Shore Railway Line in the 1890s, and includes land in the early estates of the locality, Bundarra Estate (1892) and its subsequent Federation development. It also includes the pre War and Inter War subdivisions of the Bundarra (Ingalara) Estate (1913), Wahroonga Heights Estate (1926) and the two subdivisions of the Highlands Estate (1933 and 1938) that led to the Inter War development of the area.

The Heritage Conservation Area is strongly associated with significant local persons including the Hordern Family and particularly the family matriarch, Caroline Hordern and the Hordern Family Estate, which centred on their mansion, 'Highlands House.'

The Heritage Conservation Area is aesthetically distinctive, with a strong collection of Federation residential buildings. This includes 'Highlands House' (1892) 'Nenngla' (1895) and 'Cherygarth' (1897). The overlay of Inter War houses is unified and made complementary by the landscaped setting.

The Heritage Conservation Area is important as a reference site for Hornsby, particularly in relation to the early development of the area. The area has potential to reveal its pre Victorian development and use through research.

The Heritage Conservation Area demonstrates the post 1892 residential development of the area, exhibiting built and landscape qualities that are becoming rare within Hornsby and which are endangered by continuing unsympathetic development.'

33 The description of the Northern Precinct of the HCA in the Draft DCP includes:

The predominant building period (1913 to 1950) is represented by Inter War and post War dwellings. This reflects the delay between subdivision and take up of land in the area. Dwellings are typically small, single storey buildings in garden settings with some modern infill buildings.

34 Although, the Statement of Significance would be clearer if it referred directly to the different phases of development, I accept Mr Oltram's evidence that houses of the Post War phase contribute to the significance of the HCA and that a large number of houses which are identified as contributory in the GML Report and the Review would date from this period.

35 I also accept that the recent two storey development adversely impacts on the HCA and is not a form of development that should be emulated if the significance of HCA is to be conserved. However, I do not accept that the immediate context of the site has been eroded by the two storey development that has occurred such that it should no longer be included in the HCA. The predominate character in the vicinity of the site remains that of small, single storey buildings in garden settings which demonstrate post 1892 residential development in the area and reflect the heritage significance of the HCA.

36 The second question in Helou asks what contribution does the individual building make to the significance of the conservation area? The GML Report and the Review identify the house as a contributory item. I accept that the dwelling is representative of the Post War period of development. It exhibits "modest form, characteristics and detailing" and this is typical of buildings of this type. The alterations to the dwelling have not reduced its contribution to the extent that it would be a "neutral" item in the HCA. Nor has its setting been eroded by recent development such that the dwelling and its context no longer contribute.

37 The heritage experts agree that the questions in Helou in relation to the structural condition of the dwelling are not applicable as there is no indication that the building is structurally unsafe and the applicant is not seeking to justify its demolition on the grounds of its condition. However, Mr Edwards noted that this agreement was based on a visual inspection and that no structural assessment had been undertaken. Mr Tang's statement referred to inadequate subfloor ventilation and concerns about the condition of the building. Mr Williams also raised these matters, however, in the absence of any evidence, there is no reason to conclude that the dwelling is structurally unsafe. Furthermore, Mr Williams stated that if the current application is not approved, the applicant would proceed with the development consent which adds an extra storey to the existing structure of the dwelling, although no structural assessment has been undertaken.

38 The experts considered that questions 4 and 5 in Helou were not applicable. These questions ask:

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.

39 Other than the development consent, which both experts agree does not incorporate the existing building into a new development in an appropriate manner, no options were presented or considered which demonstrated that the dwelling could not be retained and extended or altered to achieve a reasonable standard of accommodation. In oral evidence, Mr Oltram stated that it was feasible to add to the building at the rear to provide additional development. He acknowledged that a two storey element could be added at the rear if its visibility from the street was limited. I accept that on such a large site it is feasible to add to the dwelling to better meet the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition. Potentially, the rear element of the dwelling and the swimming pool could be replaced with a north facing wing that provides additional accommodation.

40 For the above reasons, I find that the demolition of the house is not justified. Although altered, the house is part of and contributes to the significance of the HCA. There is no evidence that it is structurally unsafe or that it cannot be extended to provide a contemporary standard of accommodation. The demolition will have an adverse affect on the HCA and, for this reason, the application must fail.

41 The final question in Helou is whether the replacement is of such quality that it will fit into the conservation area? The experts agree that the replacement dwelling responds to the character of the new dwellings that have been constructed in the vicinity of the site. These dwellings have an adverse impact on the HCA. For the reasons provided by Mr Oultram, I accept that the proposed two storey dwelling does little to respond to the positive elements of the HCA and will have an adverse impact on the significance of the HCA.

42 I do not accept that council's approval of other two storey buildings justifies the current proposal. These buildings were approved prior to the inclusion of the HCA in the LEP. While the GML study existed at the time of these approvals, it would have had little statutory weight to prevent demolition of dwellings within the draft conservation area. Furthermore, the applicant can proceed with the construction of the development consent, which will have an adverse impact on the HCA. However, this impact is similar to that of the current application, and as it was approved prior to the gazettal of the HCA, it will not be a precedent for further approvals.

Orders

1. The appeal is dismissed.

2. The development application for the demolition of the existing dwelling house, in ground swimming pool and associated structures and the erection of a two storey dwelling house at 22 Highlands Avenue, Wahroonga, is refused.

3. The exhibits, except Exhibits 1 and B, may be returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 12 July 2013