26 Salisbury Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2023-12-12

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by 26 Salisbury Pty Ltd (the Applicant), against the deemed refusal of Development Application DA2022/523/1 (the DA) by Woollahra Municipal Council (the Respondent).
At the time of its lodgement, the DA sought consent for the demolition of an existing dwelling house and construction of a new residential apartment building comprising three apartments with basement parking, landscaping and site works at 26 Salisbury Road, Rose Bay (the site).
Prior to the hearing, the Court granted leave to the Applicant on 11 October 2023 to amend the DA, and again granted leave to the Applicant to further amend the DA on 26 October 2023.
The final amended DA remains similar in most aspects as the original DA - being three residential apartments situated, one-per-floor, over three storeys above basement parking - but incorporates design changes intended to resolve, or reduce the number of, the Respondent's contentions.
The amended architectural plans have been prepared by Squillace Architects (now marked as Issue 1, 2 and 3 with a latest date of 25 July 2023). These architectural drawings form Exhibit F in the proceedings and are the subject of the appeal.

The relevant planning controls

The key relevant statutory planning and development controls are as follows: 1. EPA Act 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 3. State Environmental Planning Policy (Resilience and Hazards) 2021 4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 5. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 6. WLEP 7. WDCP
Pursuant to cl 2.2 of the WLEP, the site is mapped within the Zone R3 Medium Density Residential land use area. Development for the purposes of a residential apartment building is permissible with consent.
Pursuant to cl 2.7 of the WLEP, demolition of an existing building requires consent.
Pursuant to cl 5.10 of the WLEP, the site is located within the Balfour Road HCA (C9) as set out at Sch 5, Pt 2 of the WLEP.

History of the DA

The Respondent's Amended Statement of Facts and Contentions, dated 1 November 2023 and forming Exhibit 1 in these proceedings, sets out the history of the DA. A concise summary follows.
The DA was lodged by the Applicant with the Respondent on 25 November 2022.
The DA was publicly exhibited by the Respondent between 14 December 2023 and 6 February 2023. A total of 20 submissions were received by the Respondent raising issues including: 1. Concerns for tree loss, inadequate deep soil provision and poor streetscape character. 2. Objection to demolition of the existing dwelling on heritage and streetscape character grounds. 3. Exacerbation of flooding impacts on nearby basements. 4. Environmental impacts of increased traffic and car parking congestion. 5. The proposed building height, floor space ratio and inadequate site setbacks resulting in excessive building bulk, overshadowing and reduced solar access, reduced daylight, residential amenity and outlook for neighbouring properties. 6. Heritage impacts within the HCA arising from the proposed demolition of the existing dwelling and introduction of new built form which increases density. 7. Potential damage to neighbouring buildings arising from excavation and construction vibration.
On 7 and 14 December 2022, the Respondent issued the Applicant with separate requests for further information to clarify aspects of the DA.
On 12 December 2022 and 6 February 2023 respectively, the Applicant submitted additional information to address the issues raised by the Respondent.
On 22 March 2023, the Applicant appealed to the Court against the Respondent's deemed refusal of the DA.
On 18 May 2023, the DA was refused by the Woollahra Local Planning Panel. The notice of determination (which forms part of Exhibit 2 in these proceedings) includes reasons for refusal which are summarised as: 1. Adverse heritage outcome. 2. Overlooking impacts 3. Unsatisfactory stormwater design 4. Vehicle access and accommodation. 5. Inadequate geotechnical information.

The issues

As noted at par 3 above, the Court granted leave to the Applicant on 11 October 2023, and again on 26 October 2023, to amend the DA and rely upon amended plans and documents. The final amended architectural drawings form Exhibit F in these proceedings and are now the subject of the appeal.
The effect of the design amendments was to resolve each of the Respondent's contentions but for one threshold issue. Consequently, contentions for overlooking, stormwater design, vehicle access and accommodation are no longer pressed. And the Respondent's contention relating to a lack of geotechnical information has also been resolved in the amended DA.
As noted, the contentions still pressed by the Respondent are found in Exhibit 1 and are now repeated in full below: Heritage: 1. The proposed development should be refused as the proposed demolition of the contributory item located on the site will have an unacceptable impact on the heritage significance of the Balfour Road HCA and the proposal is inconsistent with the Bellevue Hill North residential precinct: 1. The proposal is contrary to the following provisions of the WLEP: 1. Clause 1.2(2)(f) - The proposal is contrary to Aim (f) which seeks to conserve natural and built environmental heritage. 2. Clause 5.10 Heritage Conservation - The proposal is inconsistent with objectives (a) and (b) which seek to conserve the environmental heritage of Woollahra and the heritage significance of conservation areas including associated fabric, settings and views. 1. The proposal is contrary to the following provisions of the WDCP: 1. Section B1.8.2 - Bellevue Hill North Residential Precinct - The proposal is inconsistent with the desired future character objective O1 and is contrary to key character elements (a) and (g) as it does not maintain the heritage significance of the Balfour Road HCA. 2. Section B2.1.7 - Neighbourhood HCAs - General Controls - The proposal does not retain or conserve the significant internal and external fabric of the contributory item, which is contrary to controls C1, C3, C6, and C7. In addition, the proposal will not retain the curtilage of the contributory building and will compromise its architectural character, which is inconsistent with objectives O4 and O7. The Public Interest: 1. The DA should be refused having regard to the matters raised in submissions that have been received by Council and [in] particular, to the extent that the issues raised by those objections are consistent with the contentions detailed above. 1. The proposal as notified in the circumstances set out in Part A [of Exhibit 1]. 2. A total of 20 submissions were received against the proposed development. The submissions raised a number of concerns in relation to the proposed development, including likely adverse heritage impacts, which is reflected in the contention set out above. 3. The proposed development does not satisfy s 1.3(g) of the EPA Act as it does not promote good design and amenity of the built environment. 4. The proposed development does not satisfy s 4.15 of the EPA Act which requires the consent authorities to consider the public interest. 5. The proposed development should be refused on the basis of the submissions that have been received by Council to the extent that such submissions are consistent with the contention set out above. 6. In addition, and for the reasons outlined above, the proposal will result in cumulative adverse impacts on the integrity of the heritage conservation area. If approved, such precedent could be detrimental to the ongoing conservation of heritage places within the Woollahra Local Government Area (LGA) and within wider NSW.
At its essence, this matter is reduced to a single question of whether the existing dwelling - situated with a HCA and identified as a contributory item - should be demolished or not.
If demolition were found to be appropriate, then the parties and their experts agree the amended DA is in a form and of an acceptable design as to warrant the grant of consent.

Oral submissions from objectors

At the commencement of the hearing, the Court benefited from oral submissions made by a number of local residents along with a heritage consultant appearing on behalf of a number of residents. The Court also visited the subject dwelling and a number of nearby owners' properties.
Each of these objectors had previously made written submissions to the Respondent setting out their concerns with the DA, and used the opportunity to address the Court to reinforce these submissions, which in summary included concerns for: 1. Heritage impacts on the character of the local streetscape arising from the proposed demolition of the existing dwelling and from the scale and form of the proposed new residential apartment building. 2. Privacy, cross viewing, building form and separation impacts. 3. Overshadowing impacts beyond the subject site impairing the amenity available at a number of neighbouring properties. 4. Excavation and construction vibration, and risk of structural damage to adjacent properties. 5. Potential flooding impacts exacerbated by the proposed basement. 6. Loss of trees and inadequate landscaping.

The expert heritage evidence

The Court was assisted by experts in heritage who conferred to prepare a joint report. The experts are Mr James Phillips for the Applicant and Ms Vanessa Holtham for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.
These same experts also prepared a supplementary joint expert report which forms Exhibit 4 in these proceedings.
At par 2 of the joint report Mr Phillips sets out his reasons why the proposed demolition of the existing dwelling is supportable, as follows: "The proposed removal of the dwelling on the site will have a minimal impact on the Balfour Road Heritage Conservation Area and is consistent with the Bellevue North residential precinct for the following reasons: The predominant characteristic of the HCA is that of inter-war residential flat buildings. The dwelling type represented by the five remaining dwellings in the HCA, inter-war bungalows are well represented throughout Bellevue North residential precinct and in adjacent HCAs where there are far fewer residential flat buildings. The bungalow has undergone some external alterations that diminish its contribution to the HCA, particularly its brickwork being painted and the construction of a carport to its front. The recently constructed two storey dwelling to its north, built to the required Flood Plane Level, is visually overwhelming and diminishes the contribution of the subject dwelling to the HCA. The subject dwelling is constructed below the required Flood Plane Level at what appears to be the lowest point in the area."
Mr Phillips then turns to the Balfour Road HCA statement of significance set out in Chapter B2.8 of the WDCP. The full statement of significance is: "Statement of significance The Balfour Road HCA lies in the valley of Rose Bay in proximity to the harbour foreshore just south of New South Head Road, and is characterised by Inter-War houses and flat buildings. This HCA represents the intensified residential development of Bellevue Hill and Rose Bay in the Inter-War period following subdivisions of the Beresford Estate and the introduction of regular public transport along New South Head Road after 1903. The housing stock comprises bungalows and flat buildings dating from the mid-1920s and mid-1930s, which display distinctive architectural characteristics of the Inter-War period. Many demonstrate outstanding craftsmanship in brick detailing and remain substantially unaltered from their original appearance, incorporating distinctive design motifs and original low brick fences. The facebrick flat buildings create cohesive streetscapes of similarly scaled and detailed buildings with open landscaped front yards set in wide tree lined avenues. The houses are typical bungalows dating from the late Federation and Inter-War period. The precinct has heritage significance at a local level for values related to historic evolution and aesthetic values and represents the local heritage theme of suburban expansion and consolidation. The Beresford Estate [sic] subdivision is characterised by a rectilinear road and subdivision pattern that provides visual and functional links to surrounding areas including the harbour and the nearby golf club."
Mr Phillips - at pars 3 and 4 of the joint report - sets out his view that despite the statement of significance referring to inter-war houses and flat buildings, the predominant character of the Balfour Road HCA should properly be derived from inter-war residential flat buildings.
Specifically, Mr Phillips says: "The predominant characteristic of the HCA is that of interwar residential flat buildings. The first lines of the Statement of Significance erroneously give precedence to houses over the far more numerous flat buildings."
He then continues, noting that the description within the Balfour Road HCA statement of significance was recently updated (in December 2021) to introduce reference to bungalows alongside flat buildings: "The original statement of significance for the Balfour Road HCA noted only flat buildings in its statement of significance. This was changed relatively recently to include interwar houses of which there are four [sic] in the HCA. In contrast to the five (5) dwellings, there are approximately forty seven (47) flat buildings creating the strongest characteristic of the HCA by far, that of cohesive streetscapes of similarly scaled and detailed buildings with open landscaped front yards set in wide tree lined avenues."
In contrast, at par 7 of the joint report, Ms Holtham accepts the recent inclusion of references to bungalows and inter-war houses within the Balfour Road HCA statement of significance and thereafter takes the provisions of the WDCP on face value.
She then moves on to the description of the desired future character within the Balfour Road HCA, which states: "Desired future character Development is to retain the significant fabric and key values of the Balfour Road HCA included in the statement of significance. Development is to comply with the provisions outlined in B2.1."
Ms Holtham next draws attention, at par 9, to the description of contributory items within the Balfour Road HCA: "Contributory Items While not individually listed as heritage items, contributory items contribute to the character of the HCA and are considered to contain significant fabric. Contributory items have been identified through heritage studies and surveys undertaken by Council."
With the subject dwelling at 26 Salisbury Road included in the table of contributory items (par 10), Ms Holtham goes on, at pars 11-15, to set out her logic for the application of relevant provisions of the WDCP.
She notes that the WDCP defines two types of HCA, with the Balfour Road HCA falling into the category of neighbourhood HCA. Chapter B2 of the WDCP deals with the 11 neighbourhood HCAs distributed across the LGA.
Ms Holtham emphasises the various objectives set out in relevant sections of the WDCP, which she says: "…outline clearly why the proposal is unacceptable. It is abundantly clear from a heritage perspective upon reflection of these provisions that the subject dwelling, which is recognised as a contributory item within an HCA, should not be demolished."
In oral evidence, Mr To questioned whether Ms Holtham had undertaken her own research in forming the view that the existing dwelling should not be demolished, to which Ms Holtham explained she had undertaken a site visit and read the various controls and heritage studies.
Mr To questioned whether Ms Holtham would classify the existing dwelling as contributory if it were not identified as such in the WDCP. Ms Holtham stated that she believes the dwelling "makes a contribution" to the HCA.
It was put to Ms Holtham that the existing dwelling would not enjoy equivalent protection under the earlier version of the WDCP (forming part of Exhibit E). This earlier version of the WDCP (repealed in December 2021) does not refer to houses in the Balfour Road HCA statement of significance. Ms Holtham demurred, indicating that the statement of significance still includes references to residential development of the inter-war period, and restated her view that the existing dwelling "makes a contribution" to the HCA.
In his oral evidence, Mr Phillips explained that he doesn't agree with the current statement of significance and the recent introduction of references to dwellings and inter-war bungalows. In his view, key parts of the statement of significance only make sense for residential flat buildings, which are the "principal typology" of the HCA.
Mr Patterson put to Mr Phillips that the phrase "suburban expansion and consolidation" (taken from the HCA's statement of significance) does not exclude dwellings, and that both dwellings and residential flat buildings could be said to be representative of such "suburban expansion and consolidation". Mr Phillips indicated he felt this aspect of the statement of significance was vague and that he regarded it as attributable to the contribution made by residential flat buildings.
Similarly, Mr Patterson asked if the gradual replacement of inter-war dwellings with contemporary residential apartment development might mislead a casual observer about the traditional extent of inter-war residential flat buildings. Mr Phillips thought this unlikely given the discernible differences in character between inter-war flat buildings and contemporary residential apartment buildings.
Under further cross examination, Mr Phillips accepted that there are reactive and proactive measures available to the Respondent when seeking to protect bungalows that are not listed as heritage items within the LGA. A reactive measure might be the use of an Interim Heritage Order, while a proactive measure would be to amend the WDCP to include specific bungalows as contributory items - as is the case in this matter.
In further oral evidence, Mr Phillips elaborated on his view (at par 2 of the joint report) that the recently completed, larger dwelling at 24 Salisbury Road impairs the reading of the traditional shift in scale between the dwellings to the north of Salisbury Road and the inter-war residential flat buildings further south along the street.
Mr Phillips went on to explain that in his view, the perpetuation of this traditional scale shift would be "nice to have" but is not an intrinsic aspect of the significance of the HCA.
Also referring to the recently completed dwelling at 24 Salisbury Road, Ms Holtham expanded on her concern for the erosion of heritage significance that follows the demolition of bungalows, saying that "if heritage protection exists, it should be enforced." She also stated that in her view, the DA represents a further diminution of heritage significance within the Balfour Road HCA.
Mr Phillips offered his view that should the DA be found to be "good enough", then it would forgive the proposed demolition of the dwelling since the replacement building results in no unreasonable adverse impact on heritage values of the HCA.
Ms Holtham emphasised her position when she stated that she had not engaged with the design merits of the DA in the joint report since the WDCP makes retention of the existing dwelling so "clear cut".
Next, the heritage experts turned to questions of the conservation philosophy set out at Chapter B2.1.3 of the WDCP. Here, the WDCP states: "Conservation philosophy This chapter of the DCP adopts the conservation philosophy embodied in the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter). The Burra Charter is widely accepted by Government Agencies and private industry as the standard philosophy for heritage conservation practice in Australia. The Charter sets down principles, processes and practices for the conservation of significant places. Demolition of significant fabric within HCAs is contrary to the Woollahra LEP 2014, the Woollahra DCP 2015 and the Burra Charter. Whilst heritage listing does not preclude sensitive change, conservation and restoration of significant fabric is a priority. Demolition should be a last resort where buildings cannot be reasonably retained and conserved, in accordance with the Helou v Strathfield planning principle."
In Helou v Strathfield Municipal Council [2006] NSWLEC 66 (Helou), Moore C established a planning principle to determine the merits of proposed demolition of a contributory building in a HCA. The planning principle comprises six questions as follows: What is the heritage significance of the conservation area? What contribution does the individual building make to the significance of the conservation area? Is the building structurally unsafe? 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? 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? Is the replacement of such quality that it will fit into the conservation area?
At par 5 of the joint report, Mr Phillips lists his responses to five of these six questions (having dealt with the first, the significance of the HCA, earlier in the joint report): "… Council deems dwelling on the subject site to be contributory. It is noted that it has undergone changes over time that diminish this contribution. It is also noted that the contribution is also diminished through its location between a non-contributory dwelling and a contributory residential flat building. The building does not appear to be structurally unsafe. The applicant wishes to construct a residential flat building on the site that fits in with the dominant significant building type of the conservation area. The removal of the dwelling on the site is offset by the construction of a flat building demonstrating good quality design and a high level of compliance. The dwelling is located such that the reasonable expectations for the use of the site under the applicable statutes and controls, in particular with regard to the Flood Height Plane creates an unacceptable burden on the dwelling. As demonstrated elsewhere, the cost of altering the dwelling to meet the Flood Height Plane is not practical or reasonable in terms of cost. As noted above, the proposal demonstrates high quality design and a high level of compliance. The proposal fits into the conservation area through its similarity to the design typology of surrounding flat buildings in terms of its bulk and scale and level of detail. Helou v. Strathfield provides a test for removing a contributory item in a Heritage Conservation Area that are in poor condition. However, the Principle does not take into consideration where a building has other issues aside from dilapidation (in this case flood affectation) nor does it consider a situation where the contribution of a building is diminished in its ability to contribute to the HCA because it is overwhelmed by a building that shares the predominant characteristic of the HCA and is additionally dominated by a large intrusive item, its direct neighbour."
Similarly, at par 19 of the joint report, Ms Holtham lists her responses to these same six questions posed by Helou: "… As noted above in the statement of significance, the Balfour Road HCA is characterised by Inter-War houses and flat buildings. The HCA represents residential development of Bellevue Hill and Rose Bay in the Inter-War period. The dwelling is contributory, the highest level of contribution that a dwelling can make to a HCA. There is no evidence to suggest that the property is currently structurally unsafe. There appears to be little or no wall cracking, delamination of stone or damage that would indicate ingress of damp. Insufficient information is available to justify demolition of a contributory item. Insufficient information is available to justify demolition of a contributory item. Whilst based on a false premise, the proposal does respond to the adjoining flat buildings."
In their oral evidence, the heritage experts elaborated on aspects of these responses to the Helou planning principle, with Mr Phillips and Ms Holtham agreeing the existing dwelling is approximately 100 years old, in good condition, reasonably well-maintained and without any evidence of damp or structural cracking.
Mr Phillips gave his view that there was limited scope for the existing dwelling to be adapted or extended while also meeting the Applicant's brief for a residential apartment building consistent with the underlying R3 Medium Density Residential land use zone and applicable development standards.
Mr Phillips then referred to two cost estimates provided by the Applicant (forming part of Exhibit D) which, in Mr Phillips view, demonstrate that flood mitigation works to elevate the existing dwelling's habitable floor space above the relevant flood planning level, are prohibitive and represent an unreasonable burden upon the Applicant.
Ms Holtham noted that neither proposed option (either lifting the floor level within the existing dwelling or reconstructing the entire dwelling at a new level) was desirable in heritage terms.
Further, Ms Holtham did not accept that potential flooding of the existing dwelling necessarily made it unsafe, noting again there was no evidence of flooding at the house and that if retained as a single dwelling, no obligation arises to render the dwelling flood-proof.
Finally, in the context of alternative development scenarios that might retain and adapt the existing dwelling to intensify the usage of the site (in line with the Applicant's aspirations), Ms Holtham suggested options to enlarge the existing dwelling, to create two dwellings or a dual occupancy on the site, or possibly to introduce a change of use compatible with the underlying land use zone.

Findings

I now move to dismiss the appeal. In deciding this course, I set out my reasons over the following paragraphs.
Firstly, it is useful to restate that this dispute rests on a single, threshold heritage issue: 1. Whether or not, pursuant to cl 5.10 of the WLEP and on its merits, the proposed demolition of the existing dwelling - a contributory item within the Balfour Road HCA - will have an unacceptable heritage impact (Exhibit 1, Contention 1).
This test is central to my findings in this matter and ultimately represents the determinative factor. If I were otherwise satisfied of this question, then I would also be satisfied that Contention 2 - dealing with the public interest - should fall away.
As it is however, in the particular circumstance of this matter, I find that the DA, by proposing demolition of the existing dwelling on the site, does not meet the merit test for acceptable heritage impact and consequently, the appeal must be dismissed.

Heritage conservation

In his closing submissions, Mr To set out the points central to the Applicant's case, and identified eight reasons why demolition of the existing dwelling is acceptable and the DA warrants the grant of consent. I will return to these eight reasons later in these findings.
In part though, the Applicant's case is that the December 2021 amendments to Chapter B2 of the WDCP have been made without an adequate "research or evidentiary basis". And, in the absence of such research or evidence, it is reasonable to conclude that the "existing bungalow does not form part of the significance of the Balfour Road HCA."
Evidence was put to the Court (at Exhibit E), which sets out the various studies and processes that accompanied the making of the WDCP and subsequent amendments. In summary: 1. A detailed heritage study, commissioned by the Respondent, was finalised in August 2002, and in the context of the Balfour Road HCA this study focused on flat buildings rather than dwellings and included aspects describing the significance of the area and informed the subsequent listing of the HCA. 2. The WDCP first came into effect in May 2015 and largely reflected the findings of the 2002 heritage study, which were used to inform the Balfour Road HCA statement of significance and its focus on residential flat buildings. 3. In May 2015, the Respondent prepared an "Inter-war Bungalows Study: A review of bungalows constructed between 1915 and 1938 in the Woollahra Municipality". This study identified a number of bungalows worthy of greater heritage protection and recommended the formal heritage listing of six bungalows within the LGA. 4. At its 10 December 2018 meeting, the Council resolved to "review its current planning controls in its Neighbourhood Heritage Conservation Areas (NHCAs) located in Darling Point, Bellevue Hill, Rose Bay and Vaucluse, to determine and establish more stringent conservation controls to maintain the cultural and heritage value of these areas." 5. At its 15 June 2021 meeting, Council's Environmental Planning Committee received a recommendation from Council officers to strengthen statements of significance and desired future character statements in a number of neighbourhood HCAs, identify individual contributory items in these neighbourhood HCAs, include a reference to the Burra Charter conservation philosophy within the WDCP and also reference the Helou planning principle. 6. Chapter B2 of the WDCP was amended on 6 December 2021 reflecting the recommendations made to Council's Environmental Planning Committee in June 2021.
In closing for the Respondent, Mr Patterson noted the clear differences in expert opinion between Mr Phillips and Ms Holtham. Where Mr Phillips believes bungalows add little to the significance of the HCA and would seek to rely upon the earlier version of the WDCP statement of significance, Ms Holtham takes the WDCP on face value and holds that inter-war bungalows are a significant element of the HCA warranting the heritage protection now afforded them in the current version.
Mr Patterson submitted that the WDCP has evolved following proper statutory planning processes, remains subservient to the WLEP, does not contain any prohibitions, invokes a recognised conservation philosophy that places emphasis on retention and allows for demolition as a "last resort" subject to the planning principle established by Helou.
Mr Patterson also submitted that the 2021 amendments to the WDCP are reflective of the Respondent implementing a proactive heritage policy to recognise that bungalows across the LGA are diminishing in number over time.
He noted that the Balfour Road HCA boundary was not altered by the 2021 WDCP amendments and has included the Salisbury Road bungalows since it first commenced in 2015, which implies their original inclusion was also a conscious recognition of some level of heritage significance.
Returning to the Applicant's submissions, Mr To does not dispute that the amendments to the Balfour Road HCA statement of significance are anything but "conscious", "deliberate" and properly made, but that the December 2021 amendments were made without an adequate "research base".
Central to the Applicant's case is that the Court - standing in the shoes of the consent authority and properly applying cl 5.10 of the WLEP - must consider the impact of the DA upon the significance of the HCA. And the Applicant submits that the "actual" or "true" heritage significance of the Balfour Road HCA should be derived from the character and contribution of the inter-war residential flat buildings, particularly those at 28 to 40 Salisbury Road.
However, in his written submissions, Mr To also acknowledges that because the WDCP identifies "…the dwelling as contributory, it must form a focus of consideration."
Notwithstanding the contributory status of the existing dwelling, the Applicant also submitted that the "…Court should conclude that demolition of the dwelling will not sufficiently adversely affect the heritage significance of the Balfour Road HCA, so as to warrant refusal."
The operative provision of the WLEP, cl 5.10 - Heritage conservation - sets out that: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.
When considering the effect of the DA upon the significance of the HCA, I find that, on balance, demolition of the existing dwelling at 26 Salisbury Road would impair the character of the HCA and diminish its heritage values, which includes values associated with the small number of bungalows within its boundaries.
In making this finding, I generally prefer the evidence of Ms Holtham for the Respondent, who accepts that, alongside inter-war residential flat buildings, inter-war bungalows are a characteristic of the Balfour Road HCA that contribute to its heritage significance, particularly in such an instance where the subject dwelling is identified as a contributory item.
Given that the DA proposes demolition of a contributory item within a HCA, I next turn to consider the six questions established by Helou.
As noted earlier, the relevant conservation philosophy embodied within the WDCP states: "Demolition should be a last resort where buildings cannot be reasonably retained and conserved, in accordance with the Helou v Strathfield planning principle."
In applying the six questions established by Helou I find that: 1. The heritage significance of the Balfour Road HCA is derived in part from inter-war bungalows, along with inter-war residential flat buildings. 2. The subject dwelling is an identified contributory item, and as one of a small number of bungalows within the HCA, it makes a meaningful contribution to that aspect of heritage significance derived from bungalows more generally. 3. The heritage experts agree, and I am satisfied, there is no evidence the dwelling is structurally unsafe. I place lesser weight on the expert structural engineering evidence provided by the Applicant (Exhibit D), which concludes the existing dwelling is "structurally unsuited" to resisting lateral loads of flooding. I am not persuaded the structural advice adopts an appropriate methodology given it calculates flood forces based not only on the 1-in-100 year flood event but also factoring an allowance for an additional 500mm freeboard. 4. There are conceivable ways to intensify the utilisation of the site without demolishing the existing dwelling. These include potentially enlarging the existing dwelling, or by introducing a second dwelling or dual occupancy onto the site. These scenarios may not match the Applicant's aspiration for residential apartment development but do represent an intensification and renewal of the site consistent with the relevant land use and development standards, in a manner more likely to maintain the heritage significance of the site than demolition. 5. The Applicant has provided expert architect and quantity surveyor evidence (Exhibit D), to which I give lesser weight. This is because the evidence reflects the costs associated with two alternative strategies for flood mitigation works that tend to defeat the benefits of retaining the contributory building. These two strategies include either lifting the floor level within the existing dwelling, or reconstructing the entire dwelling at a new, elevated level - neither of which is desirable in heritage terms and both of which risk diminishing the building's heritage value and contribution to the significance of the HCA. 6. The DA proposes a replacement building that the parties agree is of an acceptable quality should demolition be appropriately justified (which I have not found).
For these reasons, when applying the Helou planning principle, I find insufficient merit exists for the proposed demolition of a contributory item in a HCA.
Further, I am not persuaded that retention of the existing dwelling demands the kind of flood mitigation measures contemplated by the Applicant's experts (fully described at Exhibit D).
Alternative renewal strategies to reduce risk to life and property arising from flooding (possibly including dispensations recognising the status of an existing building) are likely to exist, which would also have a lesser impact on the significance of the HCA than demolition.
Returning to the reasons submitted by the Applicant why the Court should not find Contention 1 sufficient cause to require retention of the existing dwelling, I find that: 1. The "true" significance of the Balfour Road HCA is able to be derived from the December 2021 version of the WDCP, which was properly amended to reflect the Respondent's policy position, and acknowledges the part played by both dwellings and residential flat buildings in establishing the significance of the HCA. 2. The relevant objectives and controls of the WDCP set out in Contention 1 at particular (b)(ii) are properly engaged by the DA given it proposes to demolish a contributory item. 3. Although these provisions of the WDCP are properly engaged, they are not of themselves determinative, given the WDCP exists as a focal point for assessment and not as a prohibition to demolition. 4. The ultimate test of the DA's merit is defined by cl 5.10(4) of the WLEP and - as already noted in this judgment - the proposed demolition of the existing dwelling would impair the significance of the HCA and diminish its heritage values. 5. As already noted in this judgment, application of the planning principle established by Helou does not adequately justify demolition of the contributory item. 6. The broader planning benefits of the DA - such as reduced risks associated with flooding or structural damage, or the benefits of providing additional residential accommodation in a medium density environment - do not outweigh the DA's impact upon the significance of the Balfour Road HCA. 7. I have given appropriate weight to the evidence of the heritage experts and generally prefer that of Ms Holtham for the Respondent despite some aspects of her evidence appearing to confer a contributory item with as much protection as a formally listed heritage item. 8. The conservation policy set out in Chapter B2 of the WDCP, along with objective O1 and controls C1 and C3, do not serve as a prohibition to demolition, which remains permissible with consent by virtue of cll 2.7 and 5.10(2)(a).

Disposing of the matter

In moving to now dispose of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the DA by way of refusal.

Orders

The Court orders that: 1. The appeal is dismissed. 2. The exhibits, other than 1, 3, 4, B and F, are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2024

(2) The DA should be refused having regard to the matters raised in submissions that have been received by Council and [in] particular, to the extent that the issues raised by those objections are consistent with the contentions detailed above.

(a) The proposal as notified in the circumstances set out in Part A [of Exhibit 1].

(b) A total of 20 submissions were received against the proposed development. The submissions raised a number of concerns in relation to the proposed development, including likely adverse heritage impacts, which is reflected in the contention set out above.

(c) The proposed development does not satisfy s 1.3(g) of the EPA Act as it does not promote good design and amenity of the built environment.

(d) The proposed development does not satisfy s 4.15 of the EPA Act which requires the consent authorities to consider the public interest.

(e) The proposed development should be refused on the basis of the submissions that have been received by Council to the extent that such submissions are consistent with the contention set out above.

(f) In addition, and for the reasons outlined above, the proposal will result in cumulative adverse impacts on the integrity of the heritage conservation area. If approved, such precedent could be detrimental to the ongoing conservation of heritage places within the Woollahra Local Government Area (LGA) and within wider NSW.

At its essence, this matter is reduced to a single question of whether the existing dwelling - situated with a HCA and identified as a contributory item - should be demolished or not.
If demolition were found to be appropriate, then the parties and their experts agree the amended DA is in a form and of an acceptable design as to warrant the grant of consent.

At the commencement of the hearing, the Court benefited from oral submissions made by a number of local residents along with a heritage consultant appearing on behalf of a number of residents. The Court also visited the subject dwelling and a number of nearby owners' properties.
Each of these objectors had previously made written submissions to the Respondent setting out their concerns with the DA, and used the opportunity to address the Court to reinforce these submissions, which in summary included concerns for:

(1) Heritage impacts on the character of the local streetscape arising from the proposed demolition of the existing dwelling and from the scale and form of the proposed new residential apartment building.

(2) Privacy, cross viewing, building form and separation impacts.

(3) Overshadowing impacts beyond the subject site impairing the amenity available at a number of neighbouring properties.

(4) Excavation and construction vibration, and risk of structural damage to adjacent properties.

(5) Potential flooding impacts exacerbated by the proposed basement.

(6) Loss of trees and inadequate landscaping.

The Court was assisted by experts in heritage who conferred to prepare a joint report. The experts are Mr James Phillips for the Applicant and Ms Vanessa Holtham for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.
These same experts also prepared a supplementary joint expert report which forms Exhibit 4 in these proceedings.
At par 2 of the joint report Mr Phillips sets out his reasons why the proposed demolition of the existing dwelling is supportable, as follows:

"The proposed removal of the dwelling on the site will have a minimal impact on the Balfour Road Heritage Conservation Area and is consistent with the Bellevue North residential precinct for the following reasons:

The predominant characteristic of the HCA is that of inter-war residential flat buildings.

The dwelling type represented by the five remaining dwellings in the HCA, inter-war bungalows are well represented throughout Bellevue North residential precinct and in adjacent HCAs where there are far fewer residential flat buildings.

The bungalow has undergone some external alterations that diminish its contribution to the HCA, particularly its brickwork being painted and the construction of a carport to its front.

The recently constructed two storey dwelling to its north, built to the required Flood Plane Level, is visually overwhelming and diminishes the contribution of the subject dwelling to the HCA.

The subject dwelling is constructed below the required Flood Plane Level at what appears to be the lowest point in the area."

Mr Phillips then turns to the Balfour Road HCA statement of significance set out in Chapter B2.8 of the WDCP. The full statement of significance is:

"Statement of significance

The Balfour Road HCA lies in the valley of Rose Bay in proximity to the harbour foreshore just south of New South Head Road, and is characterised by Inter-War houses and flat buildings.

This HCA represents the intensified residential development of Bellevue Hill and Rose Bay in the Inter-War period following subdivisions of the Beresford Estate and the introduction of regular public transport along New South Head Road after 1903.

The housing stock comprises bungalows and flat buildings dating from the mid-1920s and mid-1930s, which display distinctive architectural characteristics of the Inter-War period. Many demonstrate outstanding craftsmanship in brick detailing and remain substantially unaltered from their original appearance, incorporating distinctive design motifs and original low brick fences. The facebrick flat buildings create cohesive streetscapes of similarly scaled and detailed buildings with open landscaped front yards set in wide tree lined avenues. The houses are typical bungalows dating from the late Federation and Inter-War period.

The precinct has heritage significance at a local level for values related to historic evolution and aesthetic values and represents the local heritage theme of suburban expansion and consolidation.

The Beresford Estate [sic] subdivision is characterised by a rectilinear road and subdivision pattern that provides visual and functional links to surrounding areas including the harbour and the nearby golf club."

Mr Phillips - at pars 3 and 4 of the joint report - sets out his view that despite the statement of significance referring to inter-war houses and flat buildings, the predominant character of the Balfour Road HCA should properly be derived from inter-war residential flat buildings.
Specifically, Mr Phillips says:

"The predominant characteristic of the HCA is that of interwar residential flat buildings. The first lines of the Statement of Significance erroneously give precedence to houses over the far more numerous flat buildings."

He then continues, noting that the description within the Balfour Road HCA statement of significance was recently updated (in December 2021) to introduce reference to bungalows alongside flat buildings:

"The original statement of significance for the Balfour Road HCA noted only flat buildings in its statement of significance. This was changed relatively recently to include interwar houses of which there are four [sic] in the HCA. In contrast to the five (5) dwellings, there are approximately forty seven (47) flat buildings creating the strongest characteristic of the HCA by far, that of cohesive streetscapes of similarly scaled and detailed buildings with open landscaped front yards set in wide tree lined avenues."

In contrast, at par 7 of the joint report, Ms Holtham accepts the recent inclusion of references to bungalows and inter-war houses within the Balfour Road HCA statement of significance and thereafter takes the provisions of the WDCP on face value.
She then moves on to the description of the desired future character within the Balfour Road HCA, which states:

"Desired future character

Development is to retain the significant fabric and key values of the Balfour Road HCA included in the statement of significance. Development is to comply with the provisions outlined in B2.1."

Ms Holtham next draws attention, at par 9, to the description of contributory items within the Balfour Road HCA:

"Contributory Items

While not individually listed as heritage items, contributory items contribute to the character of the HCA and are considered to contain significant fabric. Contributory items have been identified through heritage studies and surveys undertaken by Council."

With the subject dwelling at 26 Salisbury Road included in the table of contributory items (par 10), Ms Holtham goes on, at pars 11-15, to set out her logic for the application of relevant provisions of the WDCP.
She notes that the WDCP defines two types of HCA, with the Balfour Road HCA falling into the category of neighbourhood HCA. Chapter B2 of the WDCP deals with the 11 neighbourhood HCAs distributed across the LGA.
Ms Holtham emphasises the various objectives set out in relevant sections of the WDCP, which she says:

"...outline clearly why the proposal is unacceptable. It is abundantly clear from a heritage perspective upon reflection of these provisions that the subject dwelling, which is recognised as a contributory item within an HCA, should not be demolished."

In oral evidence, Mr To questioned whether Ms Holtham had undertaken her own research in forming the view that the existing dwelling should not be demolished, to which Ms Holtham explained she had undertaken a site visit and read the various controls and heritage studies.
Mr To questioned whether Ms Holtham would classify the existing dwelling as contributory if it were not identified as such in the WDCP. Ms Holtham stated that she believes the dwelling "makes a contribution" to the HCA.
It was put to Ms Holtham that the existing dwelling would not enjoy equivalent protection under the earlier version of the WDCP (forming part of Exhibit E). This earlier version of the WDCP (repealed in December 2021) does not refer to houses in the Balfour Road HCA statement of significance. Ms Holtham demurred, indicating that the statement of significance still includes references to residential development of the inter-war period, and restated her view that the existing dwelling "makes a contribution" to the HCA.
In his oral evidence, Mr Phillips explained that he doesn't agree with the current statement of significance and the recent introduction of references to dwellings and inter-war bungalows. In his view, key parts of the statement of significance only make sense for residential flat buildings, which are the "principal typology" of the HCA.
Mr Patterson put to Mr Phillips that the phrase "suburban expansion and consolidation" (taken from the HCA's statement of significance) does not exclude dwellings, and that both dwellings and residential flat buildings could be said to be representative of such "suburban expansion and consolidation". Mr Phillips indicated he felt this aspect of the statement of significance was vague and that he regarded it as attributable to the contribution made by residential flat buildings.
Similarly, Mr Patterson asked if the gradual replacement of inter-war dwellings with contemporary residential apartment development might mislead a casual observer about the traditional extent of inter-war residential flat buildings. Mr Phillips thought this unlikely given the discernible differences in character between inter-war flat buildings and contemporary residential apartment buildings.
Under further cross examination, Mr Phillips accepted that there are reactive and proactive measures available to the Respondent when seeking to protect bungalows that are not listed as heritage items within the LGA. A reactive measure might be the use of an Interim Heritage Order, while a proactive measure would be to amend the WDCP to include specific bungalows as contributory items - as is the case in this matter.
In further oral evidence, Mr Phillips elaborated on his view (at par 2 of the joint report) that the recently completed, larger dwelling at 24 Salisbury Road impairs the reading of the traditional shift in scale between the dwellings to the north of Salisbury Road and the inter-war residential flat buildings further south along the street.
Mr Phillips went on to explain that in his view, the perpetuation of this traditional scale shift would be "nice to have" but is not an intrinsic aspect of the significance of the HCA.
Also referring to the recently completed dwelling at 24 Salisbury Road, Ms Holtham expanded on her concern for the erosion of heritage significance that follows the demolition of bungalows, saying that "if heritage protection exists, it should be enforced." She also stated that in her view, the DA represents a further diminution of heritage significance within the Balfour Road HCA.
Mr Phillips offered his view that should the DA be found to be "good enough", then it would forgive the proposed demolition of the dwelling since the replacement building results in no unreasonable adverse impact on heritage values of the HCA.
Ms Holtham emphasised her position when she stated that she had not engaged with the design merits of the DA in the joint report since the WDCP makes retention of the existing dwelling so "clear cut".
Next, the heritage experts turned to questions of the conservation philosophy set out at Chapter B2.1.3 of the WDCP. Here, the WDCP states:

"Conservation philosophy

This chapter of the DCP adopts the conservation philosophy embodied in the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter).

The Burra Charter is widely accepted by Government Agencies and private industry as the standard philosophy for heritage conservation practice in Australia. The Charter sets down principles, processes and practices for the conservation of significant places.

Demolition of significant fabric within HCAs is contrary to the Woollahra LEP 2014, the Woollahra DCP 2015 and the Burra Charter. Whilst heritage listing does not preclude sensitive change, conservation and restoration of significant fabric is a priority. Demolition should be a last resort where buildings cannot be reasonably retained and conserved, in accordance with the Helou v Strathfield planning principle."

In Helou v Strathfield Municipal Council [2006] NSWLEC 66 (Helou), Moore C established a planning principle to determine the merits of proposed demolition of a contributory building in a HCA. The planning principle comprises six questions as follows:

What is the heritage significance of the conservation area?

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

Is the building structurally unsafe?

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?

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?

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

At par 5 of the joint report, Mr Phillips lists his responses to five of these six questions (having dealt with the first, the significance of the HCA, earlier in the joint report):

"...

Council deems dwelling on the subject site to be contributory. It is noted that it has undergone changes over time that diminish this contribution. It is also noted that the contribution is also diminished through its location between a non-contributory dwelling and a contributory residential flat building.

The building does not appear to be structurally unsafe.

The applicant wishes to construct a residential flat building on the site that fits in with the dominant significant building type of the conservation area. The removal of the dwelling on the site is offset by the construction of a flat building demonstrating good quality design and a high level of compliance.

The dwelling is located such that the reasonable expectations for the use of the site under the applicable statutes and controls, in particular with regard to the Flood Height Plane creates an unacceptable burden on the dwelling. As demonstrated elsewhere, the cost of altering the dwelling to meet the Flood Height Plane is not practical or reasonable in terms of cost.

As noted above, the proposal demonstrates high quality design and a high level of compliance. The proposal fits into the conservation area through its similarity to the design typology of surrounding flat buildings in terms of its bulk and scale and level of detail.

Helou v. Strathfield provides a test for removing a contributory item in a Heritage Conservation Area that are in poor condition. However, the Principle does not take into consideration where a building has other issues aside from dilapidation (in this case flood affectation) nor does it consider a situation where the contribution of a building is diminished in its ability to contribute to the HCA because it is overwhelmed by a building that shares the predominant characteristic of the HCA and is additionally dominated by a large intrusive item, its direct neighbour."

Similarly, at par 19 of the joint report, Ms Holtham lists her responses to these same six questions posed by Helou:

"...

As noted above in the statement of significance, the Balfour Road HCA is characterised by Inter-War houses and flat buildings. The HCA represents residential development of Bellevue Hill and Rose Bay in the Inter-War period.

The dwelling is contributory, the highest level of contribution that a dwelling can make to a HCA.

There is no evidence to suggest that the property is currently structurally unsafe.

There appears to be little or no wall cracking, delamination of stone or damage that would indicate ingress of damp. Insufficient information is available to justify demolition of a contributory item.

Insufficient information is available to justify demolition of a contributory item.

Whilst based on a false premise, the proposal does respond to the adjoining flat buildings."

In their oral evidence, the heritage experts elaborated on aspects of these responses to the Helou planning principle, with Mr Phillips and Ms Holtham agreeing the existing dwelling is approximately 100 years old, in good condition, reasonably well-maintained and without any evidence of damp or structural cracking.
Mr Phillips gave his view that there was limited scope for the existing dwelling to be adapted or extended while also meeting the Applicant's brief for a residential apartment building consistent with the underlying R3 Medium Density Residential land use zone and applicable development standards.
Mr Phillips then referred to two cost estimates provided by the Applicant (forming part of Exhibit D) which, in Mr Phillips view, demonstrate that flood mitigation works to elevate the existing dwelling's habitable floor space above the relevant flood planning level, are prohibitive and represent an unreasonable burden upon the Applicant.
Ms Holtham noted that neither proposed option (either lifting the floor level within the existing dwelling or reconstructing the entire dwelling at a new level) was desirable in heritage terms.
Further, Ms Holtham did not accept that potential flooding of the existing dwelling necessarily made it unsafe, noting again there was no evidence of flooding at the house and that if retained as a single dwelling, no obligation arises to render the dwelling flood-proof.
Finally, in the context of alternative development scenarios that might retain and adapt the existing dwelling to intensify the usage of the site (in line with the Applicant's aspirations), Ms Holtham suggested options to enlarge the existing dwelling, to create two dwellings or a dual occupancy on the site, or possibly to introduce a change of use compatible with the underlying land use zone.

I now move to dismiss the appeal. In deciding this course, I set out my reasons over the following paragraphs.
Firstly, it is useful to restate that this dispute rests on a single, threshold heritage issue:

(1) Whether or not, pursuant to cl 5.10 of the WLEP and on its merits, the proposed demolition of the existing dwelling - a contributory item within the Balfour Road HCA - will have an unacceptable heritage impact (Exhibit 1, Contention 1).

This test is central to my findings in this matter and ultimately represents the determinative factor. If I were otherwise satisfied of this question, then I would also be satisfied that Contention 2 - dealing with the public interest - should fall away.
As it is however, in the particular circumstance of this matter, I find that the DA, by proposing demolition of the existing dwelling on the site, does not meet the merit test for acceptable heritage impact and consequently, the appeal must be dismissed.

In his closing submissions, Mr To set out the points central to the Applicant's case, and identified eight reasons why demolition of the existing dwelling is acceptable and the DA warrants the grant of consent. I will return to these eight reasons later in these findings.
In part though, the Applicant's case is that the December 2021 amendments to Chapter B2 of the WDCP have been made without an adequate "research or evidentiary basis". And, in the absence of such research or evidence, it is reasonable to conclude that the "existing bungalow does not form part of the significance of the Balfour Road HCA."
Evidence was put to the Court (at Exhibit E), which sets out the various studies and processes that accompanied the making of the WDCP and subsequent amendments. In summary:

(1) A detailed heritage study, commissioned by the Respondent, was finalised in August 2002, and in the context of the Balfour Road HCA this study focused on flat buildings rather than dwellings and included aspects describing the significance of the area and informed the subsequent listing of the HCA.

(2) The WDCP first came into effect in May 2015 and largely reflected the findings of the 2002 heritage study, which were used to inform the Balfour Road HCA statement of significance and its focus on residential flat buildings.

(3) In May 2015, the Respondent prepared an "Inter-war Bungalows Study: A review of bungalows constructed between 1915 and 1938 in the Woollahra Municipality". This study identified a number of bungalows worthy of greater heritage protection and recommended the formal heritage listing of six bungalows within the LGA.

(4) At its 10 December 2018 meeting, the Council resolved to "review its current planning controls in its Neighbourhood Heritage Conservation Areas (NHCAs) located in Darling Point, Bellevue Hill, Rose Bay and Vaucluse, to determine and establish more stringent conservation controls to maintain the cultural and heritage value of these areas."

(5) At its 15 June 2021 meeting, Council's Environmental Planning Committee received a recommendation from Council officers to strengthen statements of significance and desired future character statements in a number of neighbourhood HCAs, identify individual contributory items in these neighbourhood HCAs, include a reference to the Burra Charter conservation philosophy within the WDCP and also reference the Helou planning principle_._

(6) Chapter B2 of the WDCP was amended on 6 December 2021 reflecting the recommendations made to Council's Environmental Planning Committee in June 2021.

In closing for the Respondent, Mr Patterson noted the clear differences in expert opinion between Mr Phillips and Ms Holtham. Where Mr Phillips believes bungalows add little to the significance of the HCA and would seek to rely upon the earlier version of the WDCP statement of significance, Ms Holtham takes the WDCP on face value and holds that inter-war bungalows are a significant element of the HCA warranting the heritage protection now afforded them in the current version.
Mr Patterson submitted that the WDCP has evolved following proper statutory planning processes, remains subservient to the WLEP, does not contain any prohibitions, invokes a recognised conservation philosophy that places emphasis on retention and allows for demolition as a "last resort" subject to the planning principle established by Helou.
Mr Patterson also submitted that the 2021 amendments to the WDCP are reflective of the Respondent implementing a proactive heritage policy to recognise that bungalows across the LGA are diminishing in number over time.
He noted that the Balfour Road HCA boundary was not altered by the 2021 WDCP amendments and has included the Salisbury Road bungalows since it first commenced in 2015, which implies their original inclusion was also a conscious recognition of some level of heritage significance.
Returning to the Applicant's submissions, Mr To does not dispute that the amendments to the Balfour Road HCA statement of significance are anything but "conscious", "deliberate" and properly made, but that the December 2021 amendments were made without an adequate "research base".
Central to the Applicant's case is that the Court - standing in the shoes of the consent authority and properly applying cl 5.10 of the WLEP - must consider the impact of the DA upon the significance of the HCA. And the Applicant submits that the "actual" or "true" heritage significance of the Balfour Road HCA should be derived from the character and contribution of the inter-war residential flat buildings, particularly those at 28 to 40 Salisbury Road.
However, in his written submissions, Mr To also acknowledges that because the WDCP identifies "...the dwelling as contributory, it must form a focus of consideration."
Notwithstanding the contributory status of the existing dwelling, the Applicant also submitted that the "...Court should conclude that demolition of the dwelling will not sufficiently adversely affect the heritage significance of the Balfour Road HCA, so as to warrant refusal."
The operative provision of the WLEP, cl 5.10 - Heritage conservation - sets out that:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

When considering the effect of the DA upon the significance of the HCA, I find that, on balance, demolition of the existing dwelling at 26 Salisbury Road would impair the character of the HCA and diminish its heritage values, which includes values associated with the small number of bungalows within its boundaries.
In making this finding, I generally prefer the evidence of Ms Holtham for the Respondent, who accepts that, alongside inter-war residential flat buildings, inter-war bungalows are a characteristic of the Balfour Road HCA that contribute to its heritage significance, particularly in such an instance where the subject dwelling is identified as a contributory item.
Given that the DA proposes demolition of a contributory item within a HCA, I next turn to consider the six questions established by Helou.
As noted earlier, the relevant conservation philosophy embodied within the WDCP states:

"Demolition should be a last resort where buildings cannot be reasonably retained and conserved, in accordance with the Helou v Strathfield planning principle."

In applying the six questions established by Helou I find that:

(1) The heritage significance of the Balfour Road HCA is derived in part from inter-war bungalows, along with inter-war residential flat buildings.

(2) The subject dwelling is an identified contributory item, and as one of a small number of bungalows within the HCA, it makes a meaningful contribution to that aspect of heritage significance derived from bungalows more generally.

(3) The heritage experts agree, and I am satisfied, there is no evidence the dwelling is structurally unsafe. I place lesser weight on the expert structural engineering evidence provided by the Applicant (Exhibit D), which concludes the existing dwelling is "structurally unsuited" to resisting lateral loads of flooding. I am not persuaded the structural advice adopts an appropriate methodology given it calculates flood forces based not only on the 1-in-100 year flood event but also factoring an allowance for an additional 500mm freeboard.

(4) There are conceivable ways to intensify the utilisation of the site without demolishing the existing dwelling. These include potentially enlarging the existing dwelling, or by introducing a second dwelling or dual occupancy onto the site. These scenarios may not match the Applicant's aspiration for residential apartment development but do represent an intensification and renewal of the site consistent with the relevant land use and development standards, in a manner more likely to maintain the heritage significance of the site than demolition.

(5) The Applicant has provided expert architect and quantity surveyor evidence (Exhibit D), to which I give lesser weight. This is because the evidence reflects the costs associated with two alternative strategies for flood mitigation works that tend to defeat the benefits of retaining the contributory building. These two strategies include either lifting the floor level within the existing dwelling, or reconstructing the entire dwelling at a new, elevated level - neither of which is desirable in heritage terms and both of which risk diminishing the building's heritage value and contribution to the significance of the HCA.

(6) The DA proposes a replacement building that the parties agree is of an acceptable quality should demolition be appropriately justified (which I have not found).

For these reasons, when applying the Helou planning principle, I find insufficient merit exists for the proposed demolition of a contributory item in a HCA.
Further, I am not persuaded that retention of the existing dwelling demands the kind of flood mitigation measures contemplated by the Applicant's experts (fully described at Exhibit D).
Alternative renewal strategies to reduce risk to life and property arising from flooding (possibly including dispensations recognising the status of an existing building) are likely to exist, which would also have a lesser impact on the significance of the HCA than demolition.
Returning to the reasons submitted by the Applicant why the Court should not find Contention 1 sufficient cause to require retention of the existing dwelling, I find that:

(1) The "true" significance of the Balfour Road HCA is able to be derived from the December 2021 version of the WDCP, which was properly amended to reflect the Respondent's policy position, and acknowledges the part played by both dwellings and residential flat buildings in establishing the significance of the HCA.

(2) The relevant objectives and controls of the WDCP set out in Contention 1 at particular (b)(ii) are properly engaged by the DA given it proposes to demolish a contributory item.

(3) Although these provisions of the WDCP are properly engaged, they are not of themselves determinative, given the WDCP exists as a focal point for assessment and not as a prohibition to demolition.

(4) The ultimate test of the DA's merit is defined by cl 5.10(4) of the WLEP and - as already noted in this judgment - the proposed demolition of the existing dwelling would impair the significance of the HCA and diminish its heritage values.

(5) As already noted in this judgment, application of the planning principle established by Helou does not adequately justify demolition of the contributory item.

(6) The broader planning benefits of the DA - such as reduced risks associated with flooding or structural damage, or the benefits of providing additional residential accommodation in a medium density environment - do not outweigh the DA's impact upon the significance of the Balfour Road HCA.

(7) I have given appropriate weight to the evidence of the heritage experts and generally prefer that of Ms Holtham for the Respondent despite some aspects of her evidence appearing to confer a contributory item with as much protection as a formally listed heritage item.

(8) The conservation policy set out in Chapter B2 of the WDCP, along with objective O1 and controls C1 and C3, do not serve as a prohibition to demolition, which remains permissible with consent by virtue of cll 2.7 and 5.10(2)(a).

In moving to now dispose of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the DA by way of refusal.

(1) The appeal is dismissed.

(2) The exhibits, other than 1, 3, 4, B and F, are returned.

Planning and Assessment Act 1979

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Judgment (55 paragraphs)

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