Bennett v Mosman Council

The site and its context 4The site is on the eastern, high side of Prince Albert Street and has an area of 1157.1sqm, with a frontage to Prince Albert Street of 18.29m. The site contains a single storey Federation era style dwelling with a partial second storey in a roof addition and a small carport abutting the street boundary, on the southern side. 513 Prince Albert Street, adjacent and to the north of the site is identified as a heritage item ('Candida', Schedule 5, Mosman Local Environment Plan 2012 [LEP 2012] item I211). 69 Prince Albert Street, adjacent and to the south of the site was once a matched pair with 11 Prince Albert Street and both dwellings share the same street front setback, which is greater than the dwellings to the north and south of the pair. 75 and 7 Prince Albert Street are identified as a heritage item ('pair of houses' Schedule 5, LEP 2012, item I201). 8The site shares its northern, side boundary with the rear boundary of 34 Thompson Street and 34 Thompson Street has views of the city to the west and south-west, across and between the roofs of the dwellings fronting Prince Albert Street.

The proposal 9The proposal is to demolish the existing dwelling and construct a new two and three storey Federation style dwelling sited further forward on the site than the existing dwelling, including new landscaping and a new swimming pool. The parties agreed on site during the s 34AA conciliation phase that the existing carport could be demolished and a new driveway configuration was agreed.

The applicant's submissions regarding the background to the appeal 10The applicant submitted that the proposal has been through a number of iterations (including consideration of alterations and additions to the existing house) and a long process of negotiation with the Council. The applicant submitted that their motivation for wanting to demolish the existing dwelling and construct a new dwellings was based on the following (exhibit C):

• it would be more cost effective to demolish the existing house and build a new one than to alter the existing house;
• there were many compromises in the alterations and addition proposal;
• Council did not raise any objection to the demolition of the existing dwelling during a formal pre development application meeting; and
• the applicant consulted with neighbours during the design development stage. 11The applicant submitted (exhibit C) that following the refusal of the development application, the applicant and their architect met with Council staff, including Council's Heritage Advisor and a suitable design for the new dwelling was agreed with Council staff and submitted as a s 82A review (s 82A of the Environmental Planning and Assessment Act 1979) and this revised scheme was recommended for approval in the report prepared by Council's staff, however notwithstanding the recommendation of Council's staff, the application was refused by the Mosman Development Assessment Panel on 19 February, 2014 (exhibit 1). 12The applicant further submits that the Federation styling of the proposed new development is a response to discussions with Council staff and Mosman's planning objectives and controls, which require a built form that is typical of traditional building types and encourages pitched and gable roof forms.

Planning Framework 13The site is located within the R2 Low Density Residential zone and the proposal is permissible with consent, pursuant to LEP 2012. The relevant aims of LEP 2012, at cl 1.2, are as follows: (2) The particular aims of this Plan are as follows: (a) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity (e) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Mosman and Sydney Harbour and to protect significant views to and from the Harbour (g) to protect and conserve the natural, built and Aboriginal cultural heritage of Mosman 14The relevant objectives of the R2 zone, in the Land Use Table of LEP 2012, are: To provide for the housing needs of the community within a low density residential environment. To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. To maintain the general dominance of landscape over built form, particularly on harbour foreshores. To ensure that development is of a height and scale that complements the desired future character. 15Clause 5.10 'Heritage Conservation' of LEP 2012 includes the following relevant objectives, at subcl (1): (a) to conserve the environmental heritage of Mosman (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views 16Before 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, at subcl 5.10(4) of LEP 2012. 17'Heritage conservation area' is defined in the dictionary of LEP 2012 to mean an area of land of heritage significance shown on the Heritage Map as a heritage conservation area. The site is included in an area identified as 'Conservation Area General' on Heritage Map Sheet HER_002 of LEP 2012. 18The proposal is subject to the provisions of Mosman Residential Development Control Plan (DCP 2012). The aims of DCP 2012, at cl 1.5 include at (a) to protect and conserve the natural and built heritage of Mosman. 19Section 5.6 of DCP 2012, 'Heritage conservation', includes the following statements: The main aim of identifying heritage items and conservation areas is to ensure that the significance of these items and areas is recognised and maintained. This does not mean that development is necessarily limited or cannot occur, but means that any changes should respect the existing built environment and any identified heritage significance. All heritage items and conservation areas have a statement of heritage significance, which identifies the elements which make an item or an area significant in heritage terms. These statements are prepared using criteria set by the NSW Heritage Office and outlined in the NSW Heritage Manual, based on the principles of the Burra Charter. An extract of the statement of heritage significance of each of Mosman's conservation areas is included in Part 7 of this Plan. In addition, each building within a conservation area is ranked according to its contributory components, that is, its degree of intactness, sympathetic or obtrusive additions and degree of significance. Refer to the Mosman Heritage Review 1996 or relevant study for details. 20The objectives for development within heritage conservation areas are as follows: O1 To have a heritage item or a significant building within a conservation area retained and conserved. O2 To have the streetscape context and curtilage of heritage items and conservation areas maintained. O3 To have the streetscape character of a conservation area maintained through appropriate design, built form, architectural style and landscaping and to ensure any infill development also respects the character of the streetscape. O4 To have sympathetic additions to buildings with use of appropriate massing, scale, proportion, materials and details. 21The 'conservation area ranking' of each building in a conservation area is done to assist Council to maintain the identified character of the area. The existing dwelling is described as 'Modified Queen Anne' and is ranked 2 (exhibit 5, p110). The rankings, at Section 7.3 of DCP 2012, are as follows: Ranking Description Objectives for development control 1 A building with a high degree of intactness which contributes to the character of the area in the terms given in the definition of a conservation area Maintain heritage characteristics and streetscape intactness 2 A building which contributes to the character of the area but whose significance has been reduced by loss of original materials or details (eg roofs, chimneys, fences) unsympathetic additions (eg verandah infill) or inappropriate decorative treatment (eg painting face brickwork) Reconstruct original features by removing unsympathetic additions or using more appropriate decorative treatment 3 A building whose affect on the heritage character of the area is neutral Maintain benign affect 4 A building which has an adverse affect on the area because of this scale, design, assertiveness, materials or the like, or because its original qualities have been mutilated or removed Encourage the ultimate replacement of the building with one less assertive, or amelioration of tis adverse impact by sympathetic alterations, plantings, more appropriate colour scheme or other treatment

22The statement of heritage significance for the Bradleys Head Road Conservation Area, at subsection 7.6.2 of DCP 2012, is as follows: The Bradleys Head Road Conservation Area demonstrates important aspects of the history of Mosman's residential development in its street pattern, landscape, topography and architecture, from the time of the earliest subdivision until the present time. It demonstrates the very wide range of domestic architectural in scale, style, forms and details, as well as revealing a broad range of responses to conservation of this built environment. It is aesthetically and historically one of the most dramatic and pleasing residential areas of Sydney. 23The planning controls for the Bradleys Head Road Conservation Area relevantly include the following: (a) Maintain the low scale/low rise detached dwelling form. Maintain the scale of dwelling houses on large lots where appropriate. (b) Encourage alterations and additions to the rear of the dwelling house. (m) Comply with the Mosman Heritage Review 'conservation area ranking' applicable to the building, set out in Park 7.3 of this Plan.

Public submissions 24The hearing commenced with a view of the site and surrounding properties and the evidence of four resident objectors. Their concerns can be summarised as:

• the highly intact Bradley's Head Road Conservation Area is greatly valued;
• demolition of the dwelling would reduce the integrity and character of the area and demolition is irreversible;
• the dwelling is one of a number of Federation dwellings on Prince Albert Street, including other dwellings identified as heritage items;
• other residents have renovated and extended their existing Federation era dwellings and this dwelling should also be renovated and extended instead of being demolished and replaced;
• the demolition of the existing Federation era house would set a dangerous and bad precedent for other houses in the area to be demolished;
• construction of a faux Federation house would have a detrimental impact on the Bradley's Head Road Conservation Area; and
• the proposal for a new house forward of the existing house would impact on the city views from the rear of 34 Thompson Street.

Expert evidence 25Mr Stephen Davies (heritage), Mr Sonny Ooi (planning) and Mr Andrew Scales (arboriculture) provided expert evidence on behalf of the applicant and Mr David Logan (heritage), Ms Kerry Gordon (planning) and Mr Guy Pariossien (arboriculture) provided expert evidence on behalf of the Council. 26The planning and arboriculture experts came to an agreement on all the planning and tree issues between the parties during joint conferencing and the s 34AA conciliation phase and their agreement was reflected in amended (without prejudice) conditions of consent filed with the Court.

Heritage 27The heritage experts agreed 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. 28The heritage experts did not agree on the contribution made by the existing dwelling to the heritage significance of the Bradleys Head Road Conservation Area. 29According to Mr Davies, the proposal to demolish the existing dwelling does not diminish the heritage significance of the Bradleys Head Road Conservation Area or nearby heritage items, for the following reasons (exhibit 6, pp 8-9):

• the existing dwelling is not a prominent dwelling in the street;
• the external fabric of the dwelling has been altered significantly and in this regard the contribution of the dwelling has been diminished;
• the internal fabric is not an issue in the conservation area for contributory items under the current legislation and the interior may be changed without reference to Council's heritage controls; and
• the proposal for a new dwelling would similarly contribute to the area (exhibit K, p 7). 30Mr Davies said in oral evidence that generally there are only remnants of the original Federation dwellings remaining [when referring to the high side of Prince Albert Street] as the dwellings have all been altered and added to, with roof additions, dormers, new wings and so on. Mr Logan disagreed and said that the high side Prince Albert Street is readily identifiable as dating from the Federation period. 31According to Mr Logan, the proposal to demolish the existing dwelling would compromise the historic setting of the contiguous group of three listed heritage items on the eastern side of Prince Albert Street and in the vicinity of the site, as well as the historic an aesthetic values of the Bradleys Head Road Conservation Area, for the following reasons (exhibit 6 pp 2-7):
• the historic setting of the neighbouring heritage items at 13 Prince Albert Street and the pair of houses at 5 and 7 Prince Albert Street is enhanced by the existing dwelling;
• the existing dwelling presents as a substantial and handsome residence, it is architecturally distinctive with high pitched gabled roofs and asymmetrical projecting bays typical of the Federation period;
• the external form and architectural character of the existing dwelling is highly intact, apart from the oversized dormer roof addition and the painting of the external brickwork;
• the existing dwelling retains a distinctive visual presence within the streetscape and makes a valuable contribution to the historic character, as the entire front of the dwelling can be viewed from the street, when standing at the driveway entrance and there are filtered views through the front hedge; and
• the quality and intactness of the interior enhances the heritage value of this dwelling.

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.

Conclusion 46The existing dwelling remains readily identifiable as a Federation period and style dwelling, it 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. 47The proposed demolition of the existing dwelling, identified as being contributory to the heritage significance of the Bradleys Head Road Conservation Area, would diminish both the historic and aesthetic values of the conservation area and its collective significance and the impact is of such consequence that the application is refused.

Orders 48The orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. 8.2012.282.1 for demolition of the existing dwelling and construction of a new dwelling is refused. (3)The exhibits, other than exhibit 1, are returned. Susan O'Neill Commissioner of the Court

Amendments 22 May 2014 - Typographical errors Amended paragraphs: 11, 41 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: 22 May 2014