Land and Environment Court New South Wales

• Medium Neutral Citation: Brookfield Design Pty Ltd v Hornsby Shire Council and Samuels v Hornsby Shire Council [2014] NSWLEC 1181
• Hearing dates: 6-7 August 2014
• Decision date: 04 September 2014
• Jurisdiction: Class 1
• Before: Tuor C

Decision

Appeal No. 10381 of 2014

1. The appeal is dismissed.

2. Development Application No. 1207/2013 for demolition of the existing dwelling and construction of a new dwelling at 168 Copeland Road, Beecroft is refused.

3. The exhibits are returned.

Appeal No. 10382 of 2014

1. The appeal is dismissed.

2. Development Application No. 1208/2013 for demolition of the existing dwelling and construction of a new dwelling at 168 Copeland Road, Beecroft is refused.

3. The exhibits, other than Exhibit 1, are returned.

• Catchwords: DEVELOPMENT APPLICATION: demolition of an existing dwelling, impact of demolition on the significance of Heritage Conservation Area, impact of replacement infill dwellings on the significance of the heritage conservation area
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Hornsby Local Environmental Plan 2013
• Cases Cited: Helou v Strathfield Municipal Council [2006] NSWLEC 66
• Category: Principal judgment
• Parties: Appeal 10381 of 2014; Brookfield Design Pty Ltd (Applicant); Hornsby Shire Council (Respondent); Appeal 10382 of 2014; Brendan Samuels (Applicant); Hornsby Shire Council (Respondent)
• Representation: Mr A Hudson of Wilshire Webb Staunton Beattie Lawyers (Applicant); Mr P Jackson of Pikes & Verekers Lawyers (Respondent)
• File Number(s): 10381 of 2014 and 10382 of 2014

Judgment

1 COMMISSIONER: These are two related appeals under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hornsby Shire Council (council) of two development applications that involve the demolition of house at 168 Copeland Road Beecroft, being lots 2 and 3 in DP 325319 (site) and the construction of a new dwelling on each lot. With the consent of the parties, the appeals were heard concurrently.

2 Appeal No 10381 of 2014 relates to development application 1207/2013 which is seeking approval to demolish the existing dwelling and construct a new two storey dwelling on lot 3.

3 Appeal No 10382 of 2014 relates to development application 1208/2013 which is seeking approval to demolish the existing dwelling and construct a new two storey dwelling on lot 2.

4 The appeals were subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

5 The Council's contentions in the matter can be summarised as:

• The demolition of the existing dwelling would have an unacceptable detrimental impact on the significance of the Heritage Conservation Area (HCA); and
• The bulk and scale of the proposed dwellings would have a detrimental impact on the significance of the HCA

The site and its context

6 The site is rectangular in shape and is located on the southern side of Copeland Road. It comprises two lots with areas of 1897sqm (lot 2) and 1910sqm (lot 3). A dwelling house is built across the two lots towards the front of the site. The house was constructed in about 1936 as a single storey brick "inter war" bungalow. A first floor weatherboard addition with two gabled dormers and a rear extension were constructed at a later date. There is a single storey brick garage to the west and a timber garage to the east and an in-ground swimming pool. The site drops significantly to its rear and is heavily vegetated

7 The site adjoins an interwar dwelling to its west (166 Copeland Road), which has been significantly altered. To its east the site adjoins a more recent dwelling (170 Copeland Road). The surrounding area is characterised by detached dwelling on large allotments.

Planning Framework

8 The site is within the R2 Low Density Residential zone under Hornsby Local Environmental Plan 2013 (LEP 2013)and the proposal is permissible with consent.

9 The site is within the Beecroft-Cheltenham HCA under Part 2 of Schedule 5 of LEP 2013. Clause 5.10 'Heritage Conservation' of LEP 2013 includes the following relevant objectives:

(a) to conserve the environmental heritage of Hornsby

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views

10 Clause 5.10(4) of LEP 2013 requires that before granting consent in respect of a heritage item or conservation area, the consent authority must consider the effect of the proposed development on the heritage significance of the item or area concerned.

11 Part of the site is identified as Biodiversity on the Terrestrial Biodiversity Map of LEP 2013 and the provisions of cl 6.4 apply.

12 Under Part 9.3 "Heritage Conservation Area" of Hornsby Shire Development Control Plan 2013 (DCP 2013) the site is identified as being within "Precinct 1-Beecroft-Cheltenham Plateau" of the HCA.

13 Part 9.3.6 contains a Statement of Significance for the Beecroft-Cheltenham HCA which includes:

a. The Beecroft-Cheltenham Heritage Conservation Area is significant as an example of a government subdivision that was used to fund the development of a railway line. The area developed from 1893 as a township due to its proximity to Beecroft Station.

b. The Heritage Conservation Area demonstrates a multi-layered history of suburban subdivision, re-subdivision and development from the initial boom period of the Victorian Crown Land subdivision of 1887 to the 1960s, and less noticeably into the present day.

c. The area contains a fine collection of buildings from the Victorian, federation, arts and craft, inter-war and post-war eras. There have been comparatively few demolitions to interrupt the "development diary", resulting in generally intact early residential fabric and streetscapes.

14 The Character Statement for the Beecroft-Cheltenham Plateau Precinct includes:

e. Victorian villas are among the earliest remaining buildings in Beecroft and Cheltenham. The main building periods are Federation, Edwardian, Interwar, with infill development from later periods also present in most areas

f. Buildings are predominantly single storey in scale, and are well articulated in the manner characteristic of the period.

15 The Character Statement also contains Prescriptive Measures for Beecroft-Cheltenham Plateau Precinct which include that buildings from the "Victorian, Federation, Edwardian and Interwar periods should be retained" and that the "predominantly single storey scale should be retained".

16 Part 9.3 also includes provisions for the Beecroft- Cheltenham HCA, which include General Design Provisions (9.3.1), Garages, Carports and Driveways (9.3.2) and Demolition (9.3.4).

17 The Desired Outcome and Prescriptive Measures for Demolition in Part 9.3.4 include:

Desired Outcomes

a. Development that does not detract from the qualities of the Heritage Conservation Area and which are positive elements in the streetscape.

Prescriptive Measures

General

a. Demolition of buildings that are characteristic of the heritage conservation area and are intact, or easily capable of having characteristic details reinstated, should be avoided (refer to Character Statements for details).

b. Demolition of a building that is compatible with the characteristic built form as described in the Character Statement, should only be considered where it is not reasonable to alter and extend to meet contemporary amenity and living standards.

c. Replacement buildings and associated landscaping elements should be sympathetic to the characteristic features of the Heritage Conservation Area.

Note:

Heritage Conservation Areas rely on the combined effect of a range of contributing elements to retain their significance. While demolition of one building may seem minor, the broader effect on the area's character can be substantial.

Where demolition is proposed the assessment is based on the heritage significance of the property rather than the development potential of the land.

Evidence

18 The hearing commenced with a view of the site and surrounding properties and the Court heard evidence of residents, including a representative of the Beecroft Civic Trust. The key concerns generally reflected the contentions raised by council that the proposal would detrimentally impact on the HCA. They considered that the existing dwelling, although altered, demonstrated the evolution of the conservation area and contributed to its significance. Other options to develop second dwelling on the site could be considered rather than demolition, such as a new dwelling at the rear of the site. Although, it was noted that a previous application for a second dwelling in 1989 had been refused on the basis of drainage issues.

19 Mr John Oultram, for the council, and Mr Tasman Storey, for the applicant, provided expert heritage evidence. The key disagreement between the experts is whether the existing dwelling is a contributory building and consequently whether its demolition would detrimentally impact on the significance of the conservation area.

20 In Mr Oultram's opinion, the house is from the Interwar period and is a contributory item. The house has not been altered to such a degree that it does not remain readable as an example of the characteristic building type that is identified for retention in the DCP and heritage studies. Its removal would impact on the significance of the HCA.

21 Although, he originally considered that the house was built later, Mr Storey agreed that, based on the research undertaken by Mr Oultram, it was constructed about 1936 and was from the Interwar period. However, he considers that the house has been altered in an unsympathetic manner with elements that detract from the original roof form. In his opinion, the house is not a contributory item and demolition is appropriate. In some cases, even if a building is contributory, he considered that demolition would not impact on the significance of the HCA.

22 The experts also held different opinions about the impact of the proposed infill buildings. In Mr Oultram's opinion, the ground floors of the new buildings were dominated by the double garages, which under Part 9.3.2 of DCP 2013 should be located to the rear of the dwellings. Furthermore, he considered the two storey appearance of House 1 on lot 2 to be inappropriate in the streetscape, which is predominantly single storey. While, he acknowledged that the changes made during the hearing would improve the landscape presentation and the appearance of the dwellings, he maintained his concern that the bulk and scale, particularly of House 1, was unsympathetic to the HCA.

23 Mr Storey considered that there are other examples of two storey dwellings, including recent approvals and that the bulk and scale of the replacement dwellings was not dissimilar to that of the existing house. The first floor is incorporated into a roof form to reduce its two storey presentation. In his opinion, the garages are of minimum width and setback within a verandah form to reduce their presence in the streetscape and are acceptable.

Findings

24 The demolition of the existing dwelling is the threshold question in both appeals. If the demolition is acceptable, then there remains Council's contention that the proposed new dwellings will have a detrimental impact on the heritage significance of the Beecroft-Cheltenham HCA. If the demolition of the existing dwelling is not acceptable, the appeal is to be refused.

25 LEP 2013 and DCP 2013 do not identify which individual buildings are contributory within the HCA, nor is the term defined. Rather DCP 2013 identifies that "demolition of buildings that are characteristic of the heritage conservation area, and are intact or easily capable of having characteristic details reinstated, should be avoided". Interwar buildings are identified under the Prescriptive Measures in Part 9.3.6 as characteristic for the Beecroft-Cheltenham Precinct, and should be retained. The starting point in the DCP is that buildings of this period are part of the character of the area and should be retained, subject to their being intact or easily capable of being reinstated.

26 The key disagreement between the experts is whether the existing dwelling remains an "intact" example of an Interwar dwelling. I accept Mr Oultram's opinion, that although there have been changes to the roof the majority of the front elevation remains "intact" and the house is still easily recognisable as an example of an Interwar dwelling that is characteristic of the HCA. It can be distinguished from the adjoining dwelling at 166 Copeland Road, which is also an Interwar dwelling, but has been altered to such an extent that it is not recognisable as such and therefore no longer contributes to the HCA.

27 While the dwelling is simple in its detailing and articulation these are features of the austere period in which it was built and it remains representative of its style. It is unlikely that the alterations to the roof would be reversed as they provide considerable accommodation, however, I accept Mr Oultram's evidence that it could easily be done as the internal roof structure remains largely in place and the alterations are not to the extent indicated by Mr Storey.

28 I accept that there are sometimes justifications for demolishing a building that contributes to the heritage significance of a HCA as examined in Helou v Strathfield Municipal Council [2006] NSWLEC 66. However, in the circumstances of this case, there is not sufficient justification. The experts have agreed that the existing house is in good condition, structurally sound and capable of providing a level of accommodation to meet the contemporary requirements of a residential dwelling.

29 The demolition of the existing dwelling is required to enable a dwelling on each lot to be constructed, which Mr Hudson, for the applicant, submits would be consistent with the Metropolitan Plan for Sydney 2031 by providing an additional dwelling in the area. He submits that the reasonableness of restricting the development potential on the site should be balanced against the limited heritage significance of the existing dwelling. However, there is no evidence that any options, which do not involve demolition of the existing house, have been examined. Furthermore, the key consideration under cl 5.10 of LEP 2013 is the affect of the development on the heritage significance of the HCA, increased residential density and loss of development potential are relevant within this context.

30 I am not satisfied, in this matter that the applicant has made out a convincing case for the demolition of the existing dwelling. The existing dwelling remains readily identifiable as an Interwar dwelling, a characteristic period which contributes to the significance of the Beecroft-Cheltenham HCA. Buildings of this period are sought to be retained by DCP 2013. The proposed demolition of the existing dwelling would therefore adversely affect the heritage significance of the HCA and not meet the objectives of cl 5.10 of LEP 2013. Consequently, the application is refused.

31 Given the above findings, it is not necessary to deal with Council's contention regarding the detrimental impact of the bulk and scale of the proposed new dwellings on the heritage significance of the Beecroft-Cheltenham HCA.

Orders

32 The orders of the Court are:

Appeal No. 10381 of 2014

1. The appeal is dismissed.

2. Development Application No. 1207/2013 for demolition of the existing dwelling and construction of a new dwelling at 168 Copeland Road, Beecroft is refused.

3. The exhibits are returned.

Appeal No. 10382 of 2014

1. The appeal is dismissed.

2. Development Application No. 1208/2013 for demolition of the existing dwelling and construction of a new dwelling at 168 Copeland Road, Beecroft is refused.

3. The exhibits, other than Exhibit 1, are returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 04 September 2014