Clarke v Willoughby City Council

Evidence 19The Court visited the site and heard objections from Ms A Watson, Ms A Kabos, Ms A Higham, on behalf of the Royal Australian Institute of Architects (RAIA) and Mr S Robertson, on behalf of Docomomo Australia, which is an international organisation that advises UNESCO on modern movement buildings. These objectors stated that the house, known as the Hillman House, is a significant modernist 20th century house. Its significance is recognised by its listing as a heritage item on WLEP as well as on other lists including the RAIA's Register of 20 th Century Buildings of Significance and the International Register of Docomomo, as one of only 18 Australian houses. 20The objectors emphasised the importance of the interior of the house including the furniture and spatial arrangement of the rooms as an important example of modernist design and philosophy which demonstrated the collaboration between the architect, Epstein and the furniture designer, Kafka. They considered that the proposal would remove a significant component of the interior and impact on the manner in which the house is entered, its spatial arrangement and the appreciation of the interrelationship between the interior and exterior of the house. They expressed concern that Kafka furniture had already been removed from the house and that this, and the proposed changes, impacts on the significance of the house. 21Ms J Hill, for the council, and Mr P Rappoport, for the applicant, provided heritage evidence. Heritage significance 22Ms Hill and Mr Rappoport agreed that: The heritage significance of the Epstein design...is acknowledged as an exponent of the work of a group of pioneering 20 th century emigrant European Sydney based architects. The design of the residence does contribute to the significance and historical importance of the group's work and therefore has been appropriately listed on WLEP. The planning and aesthetic aims of the Hillman House are notably allied to the 20 th century movement in Modernism and Functionalism as an architectural style. The exterior has high significance and therefore should not be altered. Paul Kafka is highly regarded as constituting an important contribution of Sydney's housing in the form of joinery and furniture. The piece ( built in entry hall furniture ) while damaged is capable of restoration. 23The experts held different opinions about the significance of the interior of the house and the furniture. In Mr Rappoport's opinion, the significance of the house was primarily its exterior and that 'modernist architects were concerned with architecture as an object to be contemplated in the round'. He considered the Kafka furniture to be a mediocre piece in poor condition. 24Ms Hill's opinion is that the significance of the Hillman House also relates to the combined architectural design by Epstein with Kafka interiors and furniture. Further, interiors and exteriors of buildings were of equal importance to modernist architects. In her opinion, the Kafka furniture should not be assessed in isolation but is integral to the design of the interior. Impact on heritage significance 25In Mr Rappoport's opinion, the custom designed interiors are no longer apparent and the remaining staircase would provide sufficient indication of Kafka's work in the house. He considered that there were other conservation options for the furniture such as temporary removal and storage. In his opinion, the current layout of the kitchen, entry and dining room are unsuitable for contemporary lifestyles. The changes, including removal of the entry hall wall, were not unreasonable and not disrespectful to the key aspects of the heritage significance of the house. 26Ms Hill considered the 'custom designed interiors of the Hillman House are apparent in the spatial planning and key joinery elements by Kafka'. In her opinion, the removal of the entry hall wall and Kafka furniture would 'fundamentally change the flow of internal spaces of the dwelling, destroy the spatial integration and finishes of this significant heritage item'. She considered that that the development consent already approved changes to the house, which would meet the reasonable expectations of the occupants. 27Mr Rappoport and Ms Hill also disagreed on whether the proposal met the aims of WLEP (cl 2(h)) and the objectives and controls for heritage (cll 56 and 57). The key difference being that Mr Rappoport considered these principally relate to the exterior and not the interior of heritage items. Whereas, in Ms Hill's opinion, they are relevant to interior and exterior modifications to heritage items that may impact on significance. Findings 28The key difference of opinion between the heritage experts is whether the interior of the house and the built in furniture is part of its heritage significance and whether the considerations in cl 57(3) are relevant to the interior of heritage items. 29Mr Eastman and Ms Townsend did not submit that cl 57(3) did not apply to interiors of heritage items. The clause requires a consideration of the extent to which the proposal would impact on the heritage significance of the item. It makes no distinction between the interior or exterior of the item. 30However, Mr Eastman submits that the significance of the item is the Epstein design of the exterior of the building in its landscape setting. The interior is of secondary significance and the Kafka furniture is not significant. In his submission, removal of an internal wall and the built in furniture therefore does not impact on the overall significance of the item. Mr Eastman referred to two cases to support his submission. However, these are distinguishable from this case as McClenahan v North Sydney Council [2007] NSWLEC 312 deals with an interior staircase which Brown C found not to be a "significant internal feature" and that its retention would restrict the adaptation of the dwelling for a more intense use (apartments) permissible within the zone. Leal & Anor v Woollahra Municipal Council [2008] NSWLEC 1253 considers alterations to the interior of a building, which is not a heritage item but is within a conservation area. The internal changes to the building did not affect the exterior of the building and the significance of the conservation area. For the following reasons, I do not accept Mr Eastman's submission. 31From the various inventory sheets, listings, the Heritage Impact Assessments for the development applications and the expert evidence, the interior is clearly of heritage significance. The design of the interior of the house, the approach to the entry, its relationship to the exterior, and the spatial arrangement of rooms are part of the significance of the item. The built in furniture is also an integral part of the design of the house and part of its significance. While these elements may not be graded as being of exceptional significance or be as significant as the exterior of the house, they still contribute to the significance of the house and conservation policy would generally seek to conserve original fabric and elements which are of significance. This does not mean that change cannot occur but that it should be limited to as much as necessary but as little as possible. 32Mr Rappoport considers that the removal of the wall and built in furniture is necessary because the 1940s layout of the house does not meet contemporary lifestyle expectations. In his opinion, the closing off of the door from the entry hall to the kitchen necessitates a new entry being created from the entry hall to the dining area. Further, this will enable views from the front door and entry hall into the house and the garden beyond and provide open and free flowing space. In his opinion, this represents a tolerable level of change. 33I acknowledge that the proposed arrangement will better meet the needs of the applicant but this is not the test required to be undertaken by cl 57(3) of WLEP. 34I accept Ms Hill's evidence that the removal of the wall and built in furniture will change the appreciation of the entry to the house and the internal flow of spaces, which will affect its significance. The built in furniture that has been removed earlier has already reduced the significance of the item. The removal of original fabric, which contributes to the significance of the house, will impact on its significance. The proposed glass sliding door and 'facsimile' built in furniture will mitigate this impact but not to the extent that the change can be justified. The change is not necessary for the house to provide contemporary living standards. It is possible to design a kitchen to maintain the entry off the hall to meet the needs of the applicant for direct access to the kitchen, as was approved in then 2001 consent. 35I therefore find that the deletion of the deferred commencement condition sought by Appeal No 10954 of 2010 and Appeal No 11012 of 2010 should not be approved. Mr Eastman submits that this would have the effect that the development consent will lapse pursuant to s83(3). Therefore, I will defer my final orders to allow the applicant time to make an application for an extension of the lapsing period of the consent.

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Judgment (7 paragraphs)

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