Coogee Developments Pty Ltd v Randwick City Council

Relevant planning controls

1. The site is within Zone R2 Low Density Residential under Randwick Local Environmental Plan 2012 (LEP 2012). The proposed development is prohibited under the R2 zone however gains the opportunity for approval by way of existing use rights.
2. The council and the applicant agree that the building has existing use rights under s 106(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Section 107 of the EPA Act allows the continuation of that existing use. Section 108 provides the opportunity for regulations to made in relation to an existing use, relevantly for the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use (s 108(1)(a)). Section 108(3) relevantly states: (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
3. Section 44(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulations) requires that development consent is required for "any rebuilding of a building or work used for an existing use". The parties accepted that a development application was required and consequently an assessment under s 79C(1) of the EPA Act was necessary.
4. The parties also accepted that that there was no practical reason to investigate whether the heritage provisions "have the effect of derogating from the incorporated provisions" as the assessment required by s79C(1) would naturally require a consideration of the proposed development in its context; in this case, within a heritage conservation area.
5. As the site falls within the Dudley Street Heritage Conservation Area (DSHCA) in Part 2 of LEP 2012, the requirements for Heritage Conservation in cl 5.10 of LEP 2012 apply. Clause 5.10(2)(i) requires development consent for the demolition of a building in a heritage conservation area. Clause 5.10(2)(e) requires development consent for the erection of a building in a heritage conservation area although no issue was raised by the council in relation to the proposed building, following the further plans.
6. Clause 5.10(4) states: (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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
7. Randwick City Council Development Control Plan (the DCP) applies. Part B2 provides requirements for Heritage. Clause 1.8. 2 of Part B2 addresses Contributory Buildings and Non Contributory Buildings and provides the following Buildings within a heritage conservation area fall into one of two categories: Contributory Buildings Contributory buildings provide good evidence of the main development period(s) and make a positive contribution to the character and/or heritage significance of heritage conservation areas. They have a collective significance and their retention is essential if the character of the area is to be maintained. Non Contributory Buildings Non-Contributory buildings display qualities which do not add to the character of the heritage conservation area. They are not to be considered as a precedent for new work when assessing the merit of an application. Non contributory buildings may be demolished and replaced by new development sympathetic to the character of the heritage conservation area (see section 7 Infill Buildings).
8. Clause 1.9 addresses Demolition and states, in part: 1.9 Demolition Demolition of a heritage item or contributory building in a heritage conservation area is generally not supported, unless there are overriding reasons such as structural damage. The demolition of a non-contributory building and replacement by an appropriately designed infill building is generally supported.
9. The DSHCA is specifically addressed at cl 4.4 and relevantly states: 4.4.1 What is the area's significance? Aesthetic Significance The heritage conservation area includes fine quality groupings and individual examples of large Federation and Inter-War period detached houses. Several styles are represented, including Federation Bungalow and Queen Anne and Inter-War Mediterranean and Functionalist. The most outstanding individual examples are the Federation Queen Anne style houses at Nos 16, 22, 34 and 36 Dudley Street and Nos 1 and 7 Thomas Street. Their large and bowed windows take maximum advantage of views. The houses are situated on elevated sites, with views of the Pacific Ocean to the east and north over the adjacent Baker and Leete Parks. The front gardens, fence designs, sandstone kerbing, steep and undulating topography, and the palm, pine and fig tree plantings in the parks, all contribute to the aesthetic quality of the setting. Historic Significance The existing houses demonstrate the process of development of the area in the first few decades of the twentieth century. The social class and aspirations of the original occupants are demonstrated by the design of these large houses, on desirable sites with ocean views. Social Significance The heritage conservation area has social significance because its physical qualities are appreciated by its residents and the general community. The heritage conservation area continues in its traditional residential use.

The evidence

1. Expert heritage evidence was provided by Mr Colin Brady for the council and Mr Stephen Davies for the applicant. The main difference between their evidence centres on whether the existing building was contributory or not contributory to the DSHCA. Mr Brady maintained that it provided a contribution to the DSHCA and should not be demolished whereas Mr Davies maintained that it contributed little to the DSHCA and as such, could be demolished.
2. Mr Brady based his conclusion on the subject building being constructed around 1922 and is, by virtue of its history, form, aesthetic character and relationship to the setting, streetscape and the existence of the conservation area, contributory to the DSHCA. Mr Brady notes that two previous assessments have not identified the subject building as of local heritage significance, however this is not considered to alter the assessment of the building as contributory to the DSHCA. The majority of buildings within the DSHCA are not listed as local heritage significance.
3. Mr Brady notes that some of the characteristics identified by Mr Davies as being reflected in contributory buildings apply to the subject building as the subject building features a combination of different styles namely elements of Inter War Classical and late Federation styles, thereby supporting the contributory value of the building to the DSHCA.
4. While it is contended by the applicant that the age of the building predates other buildings identified as contributory to the DSHCA or of local heritage significance, Mr Brady states that the age, continuous residential use, form and aesthetic values of the subject building are assessed as positive aspects of significance for the DSHCA
5. While houses are mentioned in the description of the DSHCA, other elements are included as contributory and the reference to houses are also employed in terms such as 'groups of houses' and 'existing houses demonstrate'. There is no exclusion of other structures and the overriding identification of Social Significance is: The conservation area continues in its traditional residential use.
6. Mr Brady states that assessments of the subject building provided by the applicant and Mr Davies local survey, have singularly focused on the aesthetic character of the subject building with limited reference to the actual aesthetic qualities of the building. The limited alterations focus on over painting of detail, unsympathetic enclosure of the front verandas and the complete absence of information as to the internal state or detail of the subject building does not support the applicant's assessment of the building as lacking in aesthetic quality and not being contributory to the DSCHA.
7. Comparison with exceptional and substantially later examples of Inter War residential flat buildings such as Byron Hall at Potts Point erected in 1929 and other Inter War flat buildings located in dense urban settings only serves to highlight the historic significance of the subject building as an example of the transition from Federation to Inter War Styles. Later examples of Inter War Art Deco and Functionalist styles identified are not considered to highlight any inadequacies in the subject building. By virtue of its age and continuous recorded residential history the subject building is considered a significant and ongoing contributory element in the DSCHA.
8. Mr Davies states that the subject building was the subject of a Heritage Impact Statement in March 2015, and this statement concluded: The subject site does not meet the requisite standard of heritage significance for local heritage listing". The statement of significance states: "While the building does constitute part of an area which exemplifies successive residential development overtime, the building individually is not considered to be a notable one of its period. This conclusion is based on the degree of external modifications, its lack of aesthetically remarkable fabric and its lack of associative or social significance in the local area. It further is one of many similar developments of its type in both Randwick and Sydney generally and does not demonstrate the ability to yield any unknown information about early twentieth century residential developments.
9. Mr Davies states that the building does not contribute significantly enough to the DSCHA to warrant retention. The citation for the area refers only to residences and to the fine quality groupings and the styles of houses. The subject building is not a house, is not a fine example of its type and is not one of a fine group. The residential flat building is considered to be at best 'neutral' and at best is identified as a building that shows a continuity of residential development over time. All buildings do this and all buildings are evaluated when development is proposed on the basis of their real contribution to the local environment. The building has no public federation characteristics and has lost much of its Inter War character through later modifications.
10. Further, the building does not signify any "concerns for aesthetic quality in the initial introduction of this new housing form within established residential areas". The building is a very base example of its type. Not only is the street elevation of poor quality but the entire building lacks any finesse in design or adaptation to its site. There are many areas in the eastern suburbs where residential flat buildings comprise the majority of recognised conservation areas and are exemplary examples of their type. These range from Potts Point, Double Bay, Rose Bay, Vaucluse and into Waverley and Randwick. In many of these situations the buildings are of high quality design that are exemplars of their period. They often group together to provide an area of like buildings that express the aspirations of increased density in an area. The subject building is an aberration in this locality. This building is and remains an anomaly and it is not a fine example of its type. There are other buildings of the period and earlier, such as Byron Hall in Potts Point, which have a refined aesthetic style that provides a design quality more akin to the recognised dwellings in the conservation area.
11. Mr Davies states that in social and historic terms, the issue often relates to the physical or extant place. Much has been written about social value and associational value. Historic value alone also requires to be attached to something physical worth conserving. The retention of a place for physical or social values is rare unless it also attaches to the physical worth retaining. Mr Davies considers the threshold for this particular building is too low as a physical contributor to the area. Outside the DSCHA it is unlikely the building would have been considered for retention and inside it is a poor quality example of its type. There are no identified associational, social, historic or technical/research factors associated with the building other than being a building in the area constructed in the 1920's.
12. Social significance is not attributed to a place because people object to demolition. It must be considered to have applied to the place before an application is lodged. Social significance has the esteem of the community because of the role it played over time - not a reaction to a development application otherwise it could not be assessed in the statement of significance when preparing a development application.
13. For these reasons, Mr Davies concludes that the demolition of the building can be supported.

Findings

1. In balancing the different approaches of Mr Brady and Mr Davies, I prefer the approach of Mr Davies. As a starting point, the proper approach to answering the question in dispute is set by LEP 2012. Clause 5.10(4) provides the mechanism for determining whether the building can be demolished by considering "the effect of the proposed development on the heritage significance of the… [heritage conservation] area concerned". LEP 2012 provides no directive that a contributory building should be retained or that a non contributory building can be demolished, contrary to cl 1.9 of the DCP, although this may or may not be a conclusion that could be reached after considering cl 5.10(4).
2. I am satisfied that after considering cl 5.10(4), sufficient evidence was provided that would allow a finding that "the effect of the proposed development on the heritage significance of the… [heritage conservation] area concerned" is small, at best and that there is no heritage reason that would prohibit the demolition of the building.
3. As set out in Helou v Strathfield Municipal Council [2006] NSWLEC 66, a number of questions are asked in deciding whether a building in a heritage conservation area can be demolished, although not all are relevant in this case. The questions are: 1. What is the heritage significance of the conservation area? 2. What contribution does the individual building make to the significance of the conservation area? The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought. 3. Is the building structurally unsafe? Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area. 4. 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? If the answer is yes, the cost of the necessary remediation/rectification works should be considered. 5. 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? If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding. 6. Is the replacement of such quality that it will fit into the conservation area? If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved.
4. The first question is answered in cl 4.4.1 where the Aesthetic Significance, Historic Significance and Social Significance of the DSCHA are set out.
5. The second question is at the centre of the dispute between the parties and where I prefer the evidence of Mr Davies. Having accepted that the significance of the DSCHA is that set out in cl 4.4.1, I accept the conclusion that the significance relates significantly but not necessarily exclusively to "Fine quality Federation and Interwar detached houses in an outstanding elevated position", as set out in the heading of cl 4.4. The subject building is a residential flat building that is the only such building in the DSCHA and is described by Mr Davies as an "aberration in this locality" and an "anomaly". While the building has a complimentary scale, height and age of the Federation and Interwar detached houses in the DSCHA; this in my view is not sufficient to warrant its retention. I agree with Mr Davies that the building has no public federation characteristics and has lost much of its Inter War character through later modifications. The building also has a street elevation of relatively poor quality and the building lacks any finesse in design especially compared to other houses in the DSCHA.
6. I do not accept the evidence of Mr Brady that the absence of any reference to the residential flat building in the DSCHA is a "mistake" or just "loose language" or that the term "housing" or similar in cl 4.4 can be assumed to include the residential flat building on the site. In my view, the absence of any reference to a residential flat building simply reinforces the focus of the DSCHA on fine quality Federation and Interwar detached houses, as set out in the heading to cl 4.4.and elsewhere in this clause.
7. Contrary to the submission of Mr Pickles SC, for the council, I do not accept that a building cannot be categorised as a non contributory buildings under cl 1.8. 2 of the DCP (and which provides for the demolition of the building) if there is only the smallest part of the building that "add(s) to the character of the heritage conservation area." While the DCP provides for only two types of buildings in a conservation area, that is contributory buildings and non contributory buildings, there must a point where even if a building displays some qualities that add to the character of the heritage conservation area; these qualities are so unremarkable or ineffective in the way that they are displayed that they do not add to the character of the heritage conservation area. I would also add that for a building to be a contributory building ( and require retention based on cl 1.8.2 of the DCP) it must "provide good evidence of the main development period(s)" and "retention is essential if the character of the area is to be maintained". In my view, the subject building does not satisfy either test.
8. I am satisfied that the words used by Mr Davies, in describing the effect of the demolition of the subject building on the DSCHA as "little" and "does not contribute to the significance of the area" are appropriate. If the words used in cl 1.8. 2 of the DCP are used, I am satisfied that building" display(s) qualities which do not add to the character of the heritage conservation area".
9. The remaining questions in Helou are not relevant as there was no issue with structural safety (questions 3 ,4 and 5) and there was agreement that the replacement building is of such quality that it will fit into the conservation area (question 6).

Conditions

1. The only condition in dispute is condition 50 and the dispute is whether the time available for excavation should be extended from 8am to 1pm (council) to 8pm to 3pm (applicant) on weekdays.
2. I accept the applicant's hours because they are not excessive and will shorten the overall time for excavation.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No DA 145/2015 for the demolition of an existing 2 storey residential flat building containing 4 units and the replacement with a 4 storey residential flat building containing 8 units at 4 Higgs Street, Randwick is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, A and B.

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G T Brown Commissioner of the Court 10556 of 2015 (C) gtb (620 KB, pdf) 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: 13 January 2016