James Cooney and Samantha Grant (the applicants) own a property at 27 Shellcove Road, Kurraba Point. The property contains an existing dwelling that was constructed around 1912, and is in a state of disrepair. The applicants have applied to North Sydney Council to demolish this house and construct a new two-storey dwelling house with parking, landscape works, and stormwater works.
The site, legally known as Lot 201 in DP 761245 and Lot 2 in DP 1196925, is classified in Sch 1 of the North Sydney Development Control Plan 2013 (NSDCP) as 'contributory' to the Kurraba Point Heritage Conservation Area (HCA), within which it is located.
These proceedings were brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and were listed for a conciliation conference and hearing pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing on 4 December 2024. In preparation for this hearing, the parties' experts conferred and reached agreement on several key issues in dispute. Accordingly, the parties confirm that the design and construction of the proposed dwelling, including associated landscape, traffic and stormwater provisions, is now considered acceptable subject to agreed conditions of consent. The parties further agree that the impact of the proposed development on the neighbouring dwelling at 29 Shellcove Road is acceptable, that being heritage item I0688 in Sch 5 of the North Sydney Local Environmental Plan 2013 (NSLEP).
Subsequently, the remaining issue in contention between the parties is whether the demolition of the existing contributory building, which is required to facilitate the construction of the new dwelling, is acceptable.
For the following reasons, I find that the impact of the demolition of the existing contributory building on the heritage significance of the HCA is unacceptable, and accordingly, that the appeal should be dismissed.
[2]
The heritage significance of the HCA
Due to its classification as a contributory building within the HCA, when considering demolition of the existing dwelling at 27 Shellcove Road, the provisions of NSLEP cl 5.10 must first be considered. Clause 5.10 (4) states that the consent authority must, before granting consent 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.
In considering this, I must understand the heritage significance of the HCA, the contribution the existing dwelling makes to it, and the likely effect of its removal on the heritage significance of the HCA.
The statement of significance for the HCA is set out at Part C, Section 6.2.3 of the NSDCP:
"The Kurraba Point Conservation Area is significant:
As an early harbourside suburb that has retained significant elements if its major 19th century development phase with good examples of later periods of development including some fine inter war flat buildings.
For the large number of architecturally distinguished homes some that have a strong relationship with the water and include the works of B. J. Waterhouse, Jefferson Jackson and Walter Liberty Vernon.
For its irregular subdivision pattern with irregular street pattern and widths that allied to the topography and plantings and mature trees add to a high quality luxuriant character."
Further detail is provided in Part C of the NSDCP regarding significant and characteristic built elements of the HCA, and uncharacteristic built elements:
"6.2.5 Characteristic buildings
P1 Federation and Edwardian detached dwelling houses. Inter war dwelling houses. Inter war residential flat buildings.
6.2.6 Characteristic built elements
Siting
P1 Centrally on lots with front and rear garden.
Form, massing and scale
P2 Single and two storey, detached dwelling houses with hipped and gabled roofs.
P3 Skillion wings and reduced height and scale to rear.
P4 Open verandahs to front.
P5 Strong skyline of simple, pitched roofs and chimneys visible from the street stepped along the sloping streets.
P6 Multi-level residential flat buildings.
Roofs
P7 Pitched between 30 and 45 degrees with some use of parapets to the street.
P8 Skillion roofs to rear extensions.
P9 Brick and rendered chimneys.
External Materials
P10 Face and rendered brick on sandstone base.
P11 Slate, terracotta tiles, corrugated metal roofs.
P12 Original timber windows doors and decorative joinery. Windows, doors and joinery
P13 Consistent with building period and style. Timber.
Fences
P14 Original low scale front fences. Timber fences to rear and side. Sandstone walls, timber gates; timber pickets; timber rails; face brick with piers.
Car accommodation
P15 To the side or rear of dwellings.
6.2.7 Uncharacteristic elements
P1 Modern residential flat buildings; modern infill development; over-scaled additions; over-scaled and poorly detailed carports and garages to the street frontages; front and side dormers and rooflights; extensive glazing; glazed balustrades; removal of original detailing; infilled verandahs; rendered and painted face brickwork; modernised facades; high walls and fences to the street."
[3]
The contribution of the existing dwelling to the HCA
The existing house is a single detached dwelling fronting Shellcove Road. It sits approximately half a storey below street level, accessed by steps from the street, with no on-site parking. It is described in the Heritage Assessment by Urbis, dated March 2024 (Ex A tab 14) as a late Federation-era residence, and in detail as:
"…a two storey residential dwelling enclosed with a cruciform gabled roof clad with concrete tiles. The structure is timber framed, clad in sheets of (suspected) asbestos, which have been finished with a pebbledash render (overpainted). Constructed in 1912, the dwelling is generally simple in detail and expression, and exhibits little architectural pretension.
The front of the dwelling comprises two gables with a small casement oriel window to the uppermost gable, as well as a return verandah which covers the northern and western sides. The verandah retains its simple, original detailing including timber posts set in pairs on sandstone plinths, exposed timber rafters to the eaves undersides and an exposed timber soffit with timber structure. Most notable at the primary elevation is the chimney at the dwelling's north-western side, at the valley of two of the main roof pitches."
In 1989, both 27 and 29 Shellcove Road were identified as heritage items under Sch 2 of the North Sydney Local Environmental Plan 1989 (NSLEP 1989). This status was carried through to subsequent plans until September 2020, when 27 Shellcove Road was downgraded to a contributory item, following a recommendation that was first made in 2009 (Ex 14).
Contributory items are defined in the NSDCP at Section 13.6 as:
"Contributory items are part of the collective significance of the particular conservation area in which they are located. They are important for what they offer to the streetscape or character of the heritage conservation area. As a result, the focus for contributory items is how the building appears in the public domain, and especially from the street. Council does not support the demolition of contributory items."
Expert heritage evidence was provided in these proceedings by Fiona Binns for the applicant and Lisa Trueman for the Council. The heritage experts authored a joint expert report (Ex 9), within which the contribution of the dwelling to the HCA was discussed. Reference was also made to a Heritage Assessment dated March 2024 (Ex A tab 14) and a Heritage Impact Statement dated April 2024 (Ex A tab 15). Both reports are by Urbis, but neither report is authored by Ms Binns.
The heritage experts disagree on the contribution of the dwelling to the HCA. Ms Binns submits in Ex 9 that the building does not make 'a significant contribution' to the HCA. With reference to the statement of significance at NSDCP Section 6.2.3, she submits that the dwelling is "not a particularly good, fine or intact example of its period of development" (Ex 9 p 10) (Section 6.2.3 (a)), and could not be considered an 'architecturally distinguished home' (Section 6.2.3(b)). Ms Binns further submits that the dwelling is a generic example of the period (Ex 9 p10).
Ms Binns then goes on to consider the degree of contribution the building makes to the HCA, stating that it is "considered to make, at best, a neutral or negligible contribution to the significance of the…HCA".
As guided by the statement of significance in the NSDCP, in terms of architectural merit I note that, as the dwelling was constructed in or around 1912, it is not representative of a 'major 19th Century development phase' (Section 6.2.3 (a)). It must then either be a 'good example of later periods of development' (Section 6.2.3 (a)), or an 'architecturally distinguished' home (Section 6.2.3(b)). To ascertain this, I am guided by the expert evidence and also the description of a 'characteristic building' and 'characteristic building elements' at NSDCP Sections 6.25 and 6.26 respectively. From this I note that the dwelling is a federation detached house, and therefore a 'characteristic building' under Section 6.2.5. In terms of characteristic built elements as listed in Section 6.2.6, the dwelling:
Is sited centrally on its lot with a front and rear garden (P1)
Has an open verandah to the front (P4)
Features a simple pitched roof and chimneys visible from the street (P5)
Features brick chimneys (P9)
Has pitched roofs which are between 30 and 45 degrees (P7)
Retains original timber windows (P12)
Retains timber windows, doors and joinery that are consistent with the building period and style (P13)
Details on the material of the front fence, and whether it is existing fabric, are not provided (P14) and the wall is currently covered with dense climbing plants. However, I note that as I was directed to view on site, the low scale of the fence is not incongruous with the streetscape.
Ms Trueman considers that the house contributes to the character and collective significance of the HCA through its external form and building typology. She states in Ex 9 that the "pitched roof and gable ends are clearly visible from the street, (displaying) a character and form consistent with the surrounding contributory buildings and heritage items, which respond to the topography" (p 14).
In submission, Mr Hemmings for the applicants highlights the part of the definition of contributory items at NSDCP Section 13.6, that focuses on what the building offers to the streetscape of the HCA, and subsequently how the building appears from the street. He submits that the view of the dwelling from the street is limited to the roof, chimneys and gable ends, and is heavily screened by vegetation.
From what I was directed to view on site, I accept that the view is limited to the roof, chimneys and gable ends, but note that the building is only partly obscured by vegetation, some of which is deciduous, creating varying degrees of screening of the dwelling throughout the year. This is supported by the photos on p14 of Ex 9 which show a relatively unobstructed view of the top of the dwelling when the crepe myrtle is denudate.
However, I also concur with the assessment of Ms Trueman that the view of the dwelling from the street is consistent with the character and form of the surrounding buildings, noting that the view of the heritage dwelling 'Keynsham' next door is also predominantly roof and chimneys, due to the slope of the land away from the street. Further, from the observations I was directed to make on site, I note that the key built elements of gable roof and chimney are sufficiently visible from the street to note the consistency in built form of the dwelling with the HCA. I therefore do not accept the submission of Ms Binns that the contribution of the dwelling to the street is diminished by its siting at a lower level to the street and subsequent obfuscation from the street.
I further accept the evidence of Ms Trueman that the house is not a 'pedestrian' example of its typology as claimed by Ms Binns, in the context of its contribution to the HCA. The assessment of the building against the higher criteria for heritage listing, provided in the Heritage Impact Statement (Ex A), is of little utility in the consideration of the contribution of a contributory building to the collective significance of the HCA. In this case, when considered against the elements listed at NSDCP Sections 6.25 and 6.26, the house is of a characteristic style and displays sufficient characteristic built elements to contribute to the collective significance of the HCA. It is my considered opinion that this places the dwelling in the category of a 'good example of later periods of development' as per the statement of significance of the HCA, whilst also contributing to the character established by the area's major 19th century development phase.
I note that there is no gradation in the designation of contributory buildings under the NSDCP: a building within the HCA is designated either contributory, neutral or detracting. When defined as 'contributory', an assessment of the degree of contribution is not made. From the above assessment, the expert advice of Ms Trueman, and the evidence at Exs 14, 15 and 16 documenting the downgrading of the site from a heritage listed item to a contributory item, I accept that the dwelling has been appropriately designated as a contributory item within this HCA. I therefore do not consider the advice of Ms Binns on whether the contribution of the dwelling to the HCA is significant or not as relevant.
Estimated 20-50% of the timber frame of the building (the skeletal frame)
The form and shape of the building, including pitched gable roofs
The masonry chimneys
Some of the windows, in particular the ground level bay window
Some of the internal fabric, such as floorboards, subject to further investigation.
The front verandah, subject to further investigation.
Supported by the evidence of Ms Binns and Mr Demlakian, the applicants submit that the dilapidated condition of the house diminishes the contribution of the house to the HCA to such an extent that demolition is justified. Mr Hemmings, for the applicants, submits that following restoration, the building as viewed from the street would be entirely new fabric as the visible roof (tiles and likely structure), walls, cladding, windows, and window frames would all be new. He further submits that the result would not be an old house with contributory value, but a facsimile of this house.
Ms Trueman submits that the poor condition of the building does not detract from its contribution to the character of the HCA, particularly because significant features of the house that contribute to the HCA can be retained, while allowing for alterations and additions that provide for contemporary living. The fact that the fabric visible to the street would be replaced does not, in Ms Trueman's opinion, result in a facsimile or a pastiche, but instead a partly reconstructed contributory building that retains its historic significance and character, and its contribution to the HCA. As Ms Trueman stated in oral evidence, the contribution of a building to a heritage conservation area comes not just from its fabric, but also from its historic relationship to the HCA. Additionally, she submits that even as building fabric gets replaced over time as it wears down, the building remains the same building because of this historic relationship.
In oral evidence both heritage experts agree that there is value in retention of the original structure and chimneys, although Ms Binns submits that the substantial demolition and reconstruction required to this building reduces this value.
From this evidence, I concur with the Council that the designation of the dwelling as a contributory item is justified, irrespective of its condition. The house is of a characteristic style and displays sufficient characteristic built elements, as defined by the NSDCP, to be considered a 'good example' of later periods of development and consistent with the characteristics of the slightly earlier, major 19th century period of development. The style and form of the house is also consistent with the streetscape characteristics formed by the adjacent heritage listed dwellings. Those characteristic elements are evident irrespective of the condition of the building, and are visible from the street. I am further satisfied as per the evidence of Ms Trueman that these elements would remain even in a restored version of the dwelling, as it is the form, characteristic built elements, period of construction and landscaping that make it contributory. The dwelling therefore makes a valid contribution to the collective significance of the HCA, and its poor condition does not diminish those aspects.
The fact that the building requires extensive restoration does not, in my considered opinion, reduce its contributory value because, as per the evidence of Ms Trueman, replacing fabric, reconstructing sections where necessary, and restoring an existing building still retains the historic connection, which is lost when a building is demolished in its entirety, irrespective of what is constructed in its place. As per the judgment of O'Neill C in Form Architects (Aust) Pty Limited v Ku-ring-gai Council [2017] NSWLEC 1107 at [31], to argue that a contemporary dwelling is contributory to the significance of an HCA because it blends with the historic architecture 'introduces an indefensible arbitrariness to the assessment of buildings within an HCA'. Irrespective of the fact that Ms Trueman stated in evidence that the new dwelling would respect the heritage characteristics of the HCA, the development would still constitute the loss of a building that contributes to the HCA, which the Council's development controls expressly aim to avoid.
[4]
The impact of demolition of the contributory building
NSLEP cl 5.10(2)(a) states:
'(2) Requirement for consent Development consent is required for any of the following -
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) -
(i) a heritage item,
(ii) an Aboriginal object,
(iii) a building, work, relic or tree within a heritage conservation area"
NSDCP Part B, Section 13.8 deals in more detail with demolition of contributory items:
13.8 DEMOLITION
These controls apply to development applications for demolition works to heritage items and sites within heritage conservation areas.
Objectives
O1 To ensure that heritage items and buildings which positively contribute to the significance and character of a heritage conservation area retained.
O2 To outline the criteria which need to be considered by Council should applicant still seek to demolish the heritage item or building which positively contributes to a heritage conservation area.
Provisions
….
Demolition of contributory items
P3 Contributory items must not be demolished and demolition will not be supported by Council.
P4 Despite P3 above, Council may consider the demolition of a contributory item, but only where an applicant can satisfactorily demonstrate:
(a) that the building's contribution to the streetscape or character of the conservation area does not warrant its retention;
(b) that alternatives to demolition have been considered with reasons provided as to why the alternatives are not acceptable; and
(c) that any replacement building is compatible with the characteristic built elements of the heritage conservation area as identified in the relevant Area Character Statement (refer to Part C of the DCP).
The applicant submits that these provisions of the NSLEP and NSDCP relating to demolition of contributory buildings are incompatible and inconsistent, particularly NSDCP Section 13.8 P3, which states that contributory items must not be demolished, and NSLEP cl 5.10(2)(a) which permits, with consent, demolition of a building within a HCA. Subsequently, as per the provisions of EPA Act s 3.43 (5), this renders these particular NSDCP provisions of no effect.
The EPA Act s 3.43(5) states:
3.43 Preparation of development control plans
…
(5) A provision of a development control plan (whenever made) has no effect to the extent that--
(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or
(b) it is inconsistent or incompatible with a provision of any such instrument.
Consistent with the findings of the Court of Appeal in Elachi v Council of the City of Shoalhaven (2016) 212 LGERA 446; [2016] NSWCA 15 (Elachi) at [21] and [23], and also of Walsh C in Metro Donnelly Road Pty Ltd v Willoughby City Council [2024] NSWLEC 1736 (Metro Donnelly) at [31], I accept that the provisions in the NSDCP have no effect to the extent that they are inconsistent or incompatible with the NSLEP: in this case cl 5.10(2)(a). However, I also accept the respondents' submission, again consistent with Metro Donnelly, that NSDCP provision P3 at Section 13.8 does not unequivocally dictate that all applications for demolition of a contributory item will be refused. This is because the provisions at P4 provide guidance for the consideration of such demolition.
I therefore concur with the Council that, rather than being inconsistent or incompatible with NSLEP cl 5.10, NSDCP Section 13.8, provision P4 provides for the consideration of the grant of consent for demolition of a contributory item.
Further, I reject the applicants' submission that the provisions listed in P4 could not be read as cumulative, and concur with the Council that due to the use of the conjunctive at the end of provision (b), Section 13.8 P4 is drafted in such a way that all three requirements should be met in order to grant consent to the demolition of a contributory item. On this basis, the applicant needs to satisfactorily demonstrate the matters listed at P4 (a)-(c) which, for the following reasons, I do not accept has occurred.
Firstly, with regard to P4 (a), for the reasons given above I concur with the Council's position that the building's contribution to the streetscape or character of the conservation area warrants its retention.
With regard to P4 (b), the applicant submits that alternatives to demolition have been considered in the structural report, and the reason why retention of the building is not acceptable is because it is structurally unsound.
The Council contends that genuine consideration of alternatives to demolition has not occurred, and that the advice of Mr Demlakian is based on a premise that his client's intention for the dwelling is demolition. Mr Demlakian disputed this in oral evidence, stating that the option for retention was considered but dismissed based on his professional assessment of its structural inadequacy.
Regardless of the starting premise, there is no evidence that the applicant was provided with any engineering advice to indicate that the building should be retained, and from this I accept that the 'consideration' of retention was dismissed. I do not accept the Council's submission that Mr Demlakian should have considered the provisions of NSLEP cl 5.10 in his assessment of the structural adequacy of the building, nor receive heritage advice in the process. His remit is to assess the condition of the building from a structural engineer's perspective. I therefore accept that P4(b) has been met.
Part (c) of NSDCP Section 13.8 provides that any replacement building is compatible with the characteristic built elements of the HCA. It is undisputed that the replacement building will be compatible in this way, and that this Section could be met.
From this, given the provision at Section 13.8(a) is not met, objective O1 to ensure that buildings which positively contribute to the significance and character of a HCA are retained, is also not met. Therefore, under the NSDCP, the demolition of the dwelling should not be allowed.
The applicant submits again that objective O1 of Section 13.8 is also incompatible and inconsistent with NSLEP cl 5.10(2)(a), and should accordingly be considered of no effect, however I note that this objective can only be met if provision P4(a) is met. Were P4(a) not met, demolition could be supported. I therefore do not consider objective O1 inconsistent and incompatible with NSLEP cl 5.10(2)(a), and it is a relevant consideration in this appeal.
For completeness, Mr Hemmings stepped through the principles set out in Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou) at [46], when considering whether demolition of a contributory item should be permitted. The Court's published planning principles, of which Helou is one, are also expressly referenced in the NSDCP at Section 1.11 of Part A, directing applicants to consider them in the preparation of a development application. With reference to the considerations set out in Helou at [46], I have already established the heritage significance of the HCA, and the contribution the individual building makes to it. I have accepted that, although the building is structurally unsafe, that it contributes to the HCA. I have further accepted that the building could be rendered structurally safe with substantial restoration as per the expert evidence of Mr Waugh. Excepting the structural engineer's conflicting evidence I was presented with no further evidence to suggest the building could not be extended or altered 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.
On this basis, Moore C states in Helou that the cost of the necessary remediation/rectification works should be considered, and whether those costs are so high they impose an unacceptable burden on the owner of the building.
Joint quantity surveyors' (QS) evidence was provided by Stephen Bolt for the applicant and David Madden for the Council (Ex 12), with comparative costings from both experts on options for a full re-build, and for rectification based on the different requirements of each structural engineer. No evidence was provided to demonstrate that the cost of rectification as presented by either QS in either option was so unreasonable that demolition should be permitted.
From this I conclude that remediation/rectification should be preferred to demolition and rebuilding.
[5]
Demolition is unacceptable
For these reasons, it is my considered opinion that the proposed demolition of the contributory dwelling would have an adverse, and therefore unacceptable impact on the HCA. Accordingly, demolition should not be permitted, and the appeal dismissed.
[6]
Orders
The Court orders:
1. The appeal is dismissed.
2. Development application DA105/2024 for the demolition of existing structures, tree removal, and construction of a 2 storey dwelling house with an attic room at 27 Shellcove Road, Kurraba Point, is determined by refusal of consent.
3. All exhibits are returned except for exhibits A, B, C, D, 1, 2, 4, 5, 7, 9, 12, 13 and 17.
[7]
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: 21 January 2025
I then turn to the impact of the dilapidation of the building on its contribution to the heritage significance of the HCA.
Ms Binns submits that, in addition to the dwelling being of neutral or negligible contribution to the HCA, that "any limited contribution is considered diminished by its derelict and altered condition" (Ex 9 p 10). This opinion is largely influenced by the conclusions drawn by Ken Demlakian, the applicants' structural engineer in his structural report dated October 2024 (Ex D tab 12). In the opinion of Mr Demlakian, "the extensive level of damage within the building structure, coupled with significant inadequacies, renders rectification efforts impractical. Such efforts would primarily entail substantial demolition and reconstruction, making it necessary for the building to be demolished and entirely rebuilt." (Ex D tab 12 p 21)
It is undisputed that the building is in poor condition. In the joint expert report of structural engineers between Mr Demlakian and Peter Waugh (for the respondent) (Ex 7), the experts agree that the building structure and its structural elements has "suffered considerable damage and is currently both structurally inadequate and structurally unsound." This damage is the result of factors that include settlement, water ingress, termites, structural damage, and lack of ongoing maintenance. The experts further agree that the post-1912 addition to the rear can be demolished with no heritage or other noteworthy impact.
The principal disagreement between the engineers is the likely extent of dereliction, and the consequence of it. Mr Demlakian is of the opinion that rectification works would be so extensive as to be impractical, as they would necessitate substantial demolition and reconstruction, requiring the building to be demolished and entirely rebuilt. Mr Waugh however is of the opinion that a significant portion of the 1912 building can be preserved following the broad rectification works that are detailed in the joint report.
In summary, the most likely parts of the building that could be retained are: