Findings
32The parties submitted that the demolition of the existing dwelling, identified as contributory to the Bradleys Head Road Conservation Area, constitutes a threshold question. If the demolition is acceptable, then there remains Council's contention that the proposed new dwelling will have a detrimental impact on the heritage significance of the Bradleys Head Road Conservation Area. If the demolition of the existing dwelling is not acceptable, the appeal is to be refused.
33I accept that there are sometimes justifications for demolishing a building identified as being contributory to the heritage significance of a heritage conservation area, which must be established by the individual merits of each case. Demolition may be justified on the grounds of a lack of contribution to the heritage conservation area, as original surveys that inform the development control plan are sometimes cursory and a more detailed study may determine that the contribution of the building or element has been overstated or the building does not date from the principal or important phase of development within the HCA. Demolition may also be justified on the grounds of the condition of the building or element, perhaps detrimental alterations and additions have destroyed any contribution it once made or the excessive cost of rectifying structural damage or unsympathetic alterations would render the building's rectification an unreasonable burden (as explored by the Helou planning principle, Helou v Strathfield Municipal Council [2006] NSWLEC 66 par 46).
34However, I am not satisfied, in this matter, that the applicant has made out a convincing case for the demolition of the existing dwelling, for the reasons provided in the following paragraphs.
35I accept the agreement of the heritage experts that the existing dwelling is a representative example of early 20th century residential architecture, which is the identified period of significance for the Mosman Conservation Area. The Mosman Heritage Review (exhibit 5), which informs DCP 2012, is comprehensive and the applicant did not dispute that the conservation area ranking of 2 given to the existing dwelling (a building which contributes to the character of the area but whose significance has been reduced by loss of original materials or details) captures the appropriate level of contribution made by the existing dwelling to the heritage significance of the Bradleys Head Road Conservation Area.
36The heritage experts disagreed on the impact of alterations and additions made to the existing dwelling on its contribution to the heritage significance of the Bradleys Head Road Conservation Area.
37The Heritage Impact Statement (HIS) for the proposal assesses the heritage significance of the existing dwelling using the NSW Heritage Assessment Criteria (Assessing Heritage Significance, NSW Heritage Office 2001, which forms part of the NSW Heritage Manual, NSW Office of Environment and Heritage). An item is considered to be of State, or local, heritage significance, if, in the opinion of the Heritage Council of NSW, it meets one or more of the seven NSW Heritage Assessment Criteria. The HIS concludes, following the assessment using the criteria, that the existing dwelling is not important as a representative example of either the Federation style or in demonstrating the place's aesthetic characteristics and that the existing dwelling does not achieve heritage significance. It states (exhibit K, p 7):
'the dwelling... does contribute to the area as it is a building of the appropriate period and style however the changes to the dwelling both externally and internally are such that the contribution has been severely diminished'
38The Heritage Assessment Criteria is designed to test whether or not an item meets the threshold for listing as an item of local or State heritage significance. It is not designed to test the contribution a place makes to the collective significance of a heritage conservation area, because it examines it in isolation. A place identified as being contributory to a heritage conservation area and not a heritage item, would not be expected to meet the threshold for listing as a local heritage item. So to justify the demolition of a building or place, identified as contributory to a heritage conservation area, on the basis that it does not meet the threshold for listing as an item of local heritage, is a non sequitur.
39The appropriate question to ask is does the building or element contribute to the historic and aesthetic values of the conservation area and its collective significance? The applicant has answered this question in the affirmative, concluding that it does contribute to the area as it is a building of the appropriate period and style, however the answer is qualified by adding that the changes to the dwelling both externally and internally are such that the contribution has been severely diminished.
40Mr Logan's evidence, on the other hand, is that the existing dwelling forms part of the setting of the heritage items in its vicinity and that it retains a visual presence in the street and makes a valuable contribution to the historic character, as the external form and architectural character are highly intact.
41I prefer and adopt Mr Logan's evidence regarding the contribution of the existing dwelling to the Bradleys Head Road Conservation Area. The existing dwelling does not demonstrate a greater degree of alteration that other dwellings identified as heritage items and contributory to the heritage significance of the Bradleys Head Road Conservation Area and the alterations and additions to the existing dwelling have not destroyed the contribution it makes to the heritage significance of the Bradleys Head Road Conservation Area. I agree with Mr Davies that the existing dwelling is not prominent in the street. It does not have to prominent to be worthy of retaining. It certainly forms part of the immediate setting of 13 Prince Albert Street, it can still be understood as one of a pair with 9 Prince Albert Street and it forms part of the backdrop to the more prominent heritage items at 5 and 7 Prince Albert Street. The existing dwelling remains readily identifiable as a Federation period and style dwelling, it is visible from the public domain and contributes to the historic and aesthetic values of the conservation area and its collective significance.
42The applicant's wants to demolish the existing dwelling because it is more cost effective than renovating the existing dwelling and renovating involves many compromises in terms of layout, particularly because the existing dwelling is sited towards the rear of the site. I understand that the existing dwelling constrains the options available for creating a family home to meet contemporary expectations, however, I do not accept that the existing dwelling cannot be altered and added to in a sympathetic way to create a useful family home. Admittedly, it is not a project for all tastes and so one must be cognisant of the constraints of a site when purchasing a new home.
43The applicant's submission regarding the long process of negotiation between the applicant and Council over a suitable proposal have no bearing on the appeal and the issues before me. I understand the applicant's frustration in regard to their negotiations with Council, although to be fair, the applicant contributed to the dance by dismissing the Council's Heritage Advisor's advice, which was (at least at the outset of the negotiations) that demolition was a 'baseline' issue (exhibit 2, f 49); that the existing dwelling 'makes a contribution to the heritage values of the area and is capable of conservation and adaptation' (exhibit 2, f 46); and that 'the subject property has been identified as contributing to these qualities by Council's consultants and this is enshrined in studies and development control plans to protect the area and its heritage values' (exhibit 2, f 51). The demolition of a building identified as being contributory to a heritage conservation area is a separate and threshold question to the question of the appropriateness of the design for an infill building and the two were conflated in the applicant's negotiations with Council, such that it was inferred that the recommendation for approval of the demolition was dependent on the quality of a new design. Not only does this send the wrong message, it is confusing and expensive for an applicant.
44I do not accept the applicant's submission that the internal fabric of a building identified as contributing to the heritage significance of a heritage conservation area is irrelevant. In fact, the applicant's justification for demolishing the existing buildings rests on the premise that the changes to the dwelling both externally and internally are such that its contribution has been severely diminished. Clause 5.10 of LEP 2012 includes the objective of conserving the heritage significance of heritage conservation areas, including associated fabric, settings and views. Section 5.6 of DCP 2012 includes the aim of protecting and conserving the built heritage Mosman and states that each building within a conservation area is ranked on, among other things, its degree of intactness. These objectives, aims and statements do not point to a requirement to simply retain a streetscape facade. A building is a three dimensional thing, in order to keep the roof structure, the form and the appearance of an older building, it is necessary to retain more than a single elevation. This does not preclude sympathetic additions with appropriate massing, scale, proportions, materials and details.
45Given the above findings, it is not necessary to deal with Council's contention regarding the detrimental impact of the bulk, scale and style of the proposed new dwelling on the heritage significance of the Bradleys Head Road Conservation Area.