El-Hage Construction Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2015-10-28

Solicitors: McKee Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10531 of 2015

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of sub-s 30(1) of the Heritage Act 1977 (NSW) (Heritage Act) against the making of an Interim Heritage Order (IHO) on the property of 'Stow-on-the-Wold', 140 Pentecost Avenue, Turramurra (the site) by Ku-ring-gai Council (the Council) on 22 May 2015 (published in the NSW Government Gazette No. 45 dated 22 May 2015, exhibit 3, tab 6).
The IHO is made pursuant to sub-s 25(2) of the Heritage Act, as follows: (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed
The Council is authorised to make IHOs for items in the Council's area by an order made by the then Minister for Heritage on 12 July 2013 published in the NSW Government Gazette No. 90 (exhibit 3, tab 7). The order includes the following relevant conditions for local councils to make IHOs: (1) A Council must not make an IHO unless: (a) An environmental planning instrument containing a schedule of heritage items derived from a heritage study and provisions for the management of those items is in force in the Local Government Area; and (b) It has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that: (i) The item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance; (ii) The item is being or is likely to be harmed; (iii) The IHO is confined to the item determined as being under threat; (5) An IHO made by a council must contain the following condition: "This Interim Heritage Order will lapse after six months from the date it is made unless the local council has passed a resolution before that date";

Issues

The applicant's contentions in the matter can be summarised as:

The IHO is defective on the basis that the Council's authority to make the IHO was subject to the condition precedent that the Council consider a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council. In resolving to make the IHO the Council did not consider a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by Council and in those circumstances the IHO was made in the absence of the express condition precedent;
The house and garden at the site are not of sufficient heritage significance to warrant local heritage listing.

The applicant sought leave at the commencement of the hearing in court to amend the Statement of Facts and Contentions (exhibit A) to add the contention regarding the defective nature of the IHO. The applicant tendered an Informal Notice to Produce (exhibit B) dated 26 October 2015 and served on the Council, requiring the following documents: Any authorisation issued by the Minister administering the heritage Act to the Council the issue of interim heritage orders pursuant to s 25 of the Heritage Act 1977. Any report prepared and presented to the Council for the purposes of its decision on 19 May 2015 to issue the interim heritage order the subject of this appeal. Any statement of reasons served with the notice of the interim heritage order.
The Court granted leave for the applicant to amend the Statement of Facts and Contentions to add the contention regarding the defective nature of the IHO (exhibit C) on the basis that the Council had been given notice of the applicant's request for any preliminary heritage report prepared and presented to Council for the purpose of its decision on 19 May 2015 regarding the making of the IHO and Council had responded to the notice by including the material relevant to the Council's decision on 19 May 2015 in the Council's bundle (exhibit 3). Furthermore, the contention raised by the applicant regarding the defective nature of the IHO is potentially fundamental to the appeal.
The applicant submits that an appeal of the Council's deemed refusal of DA 36/2015 in respect of the demolition of all existing structures at the site and the construction of 8 dwellings and basement car parking, pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is set down for hearing on 2 December 2015 (file number 10297 of 2015).

The site and its context

The site is on the south-eastern corner of Pentecost Avenue and Reely Street, Turramurra, with a driveway and pedestrian entry gate accessed from Reely Street.
The dwelling was constructed in 1938 and has been altered and extended a number of times. It is two storeys, with a single storey wing on the western side. The dwelling orientates towards Pentecost Avenue and is positioned adjacent to the Reely Street boundary.
There are three main areas of the garden, the northern garden, between the dwelling and Pentecost Avenue, through which the site is entered along a stone path leading to the front door; the eastern garden to the east of the dwelling, which includes a stone terrace and sunken garden; and the southern garden at the rear of the dwelling.
The sunken garden to the east of the house and adjacent to the shared boundary with 136 Pentecost Avenue is rectangular in shape with semi-circular terminations at each end that provide fanned steps to the northern entrance and a small pond with walls and curved stairs enclosing the southern end. It includes an engraving on the northern step of the compass points. The geometry of the sunken garden extended into the area now occupied by 136 Pentecost Avenue.

Expert evidence

The Council relied on the expert heritage evidence of Ms Robyn Conroy and the applicant relied on the expert heritage evidence of Mr David Logan. Ms Conroy provided a Statement of Evidence (exhibit 1) and the heritage experts provided a joint report (exhibit 2). Annexure F to exhibit 2 is an Assessment of Heritage Significance of 140 Pentecost Avenue, Turramurra, by GML Heritage Pty Ltd dated October 2015 (the GML report). Mr Logan was the project director and reviewer of the GML Heritage Assessment (p 2, Annexure F, exhibit 2). Annexure G to exhibit 2 is an Assessment of Heritage Significance of 140 Pentecost Avenue, Turramurra, by Conroy Heritage Planning dated October 2015 (the Conroy report).
The heritage experts agreed on the following (exhibit 2):

The property originally occupied four allotments fronting Reely Street and was expanded in 1940 to include two additional allotments to the east. The property was subdivided in 1954 and an eastern allotment on the corner of Pentecost Avenue and Bannockburn Road was sold [136 Pentecost Avenue];
The site has not been identified in any previous heritage studies of the Ku-ring-gai local government area (LGA);
The dwelling, designed by architect Carlyle Greenwell and constructed in 1938, does not satisfy the NSW Heritage Council's criteria for local heritage significance, having regard to the limited quality of the original design, including the interior and the many alterations and addition that have occurred and further research would not change this assessment;
The garden has undergone considerable structural and vegetative changes. The sunken garden dates from between 1940 and 1943, as it is evident on an aerial photograph dated 1943.

The heritage experts disagreed on the level of heritage significance of the garden. Both reports assessed the heritage significance of the property using the NSW heritage assessment criteria ('Assessing Heritage Significance' Heritage Division of the NSW Office of Environment and Heritage): Criterion (a) An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (b) An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (c) An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area); Criterion (d) An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons; Criterion (e) An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (f) An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (g) An item is important in demonstrating the principal characteristics of a class of NSW's • cultural or natural places; or • cultural or natural environments. (or a class of the local area's • cultural or natural places; or • cultural or natural environments.)
The Conroy report states that the property is worthy of local heritage listing under criteria a, b, c, e and f (pp 123-134 Annexure G, exhibit 2). In Ms Conroy's opinion, the property is worthy of local heritage listing for the following reasons:

The garden is a substantially intact and fine example of the Inter-war Ku-ring-gai garden, particularly the northern and eastern parts of the garden.
The sunken garden in the eastern part of the garden is substantially intact and demonstrates a high level of creative achievement at the local level, being aesthetically distinctive, with details such as the incised compass on the step. The sunken garden has survived the sub-division of the allotment to the east of the site.
The garden is historically significant as it was awarded the Sydney Morning Herald's open garden of the year prize in 1962, as well as being highly commended in 1960. The floral beds were the determinant in the decision to award the prize.
The garden is associated with John McDowell, a member of the McDowell family retail company, a significant figure in the course of the development of Sydney.
It is possible that the garden was designed by Jocelyn Brown, as it is stylistically similar to her garden designs.
Sunken gardens dating from the Inter-war period are rare in Ku-ring-gai.
The swimming pool in the northern garden is reversible and does not impact adversely on the character of the garden.

The GML report states that the '1940s sunken garden and stone terrace above [to the east of the house] have some aesthetic merit and feature significant plantings, stone walling and balustrading, fountain, fish pond and circular stairs… The site retains some significant trees… Although the house and its garden have some aesthetic values, and the mature trees contribute to the streetscape of Pentecost Ave, the property does not reach the threshold for heritage listing at a local level under [criterion c]'. The GML report concludes that 'the sunken garden and the entrance gate have aesthetic values but not at a level that would satisfy the relevant criterion'. (pp 50, 52, 55 Annexure F, exhibit 2). In Mr Logan's opinion, the property does not warrant local heritage listing for the following reasons:

Despite extensive research, there is little documentary evidence about the original 1938 garden or the various changes that have occurred to the garden, other than what can be interpreted from the aerial photographs;
Some of the existing features are original, including the entrance gate structure and the sunken garden;
The characteristics of both the southern and northern garden areas have changed substantially since the 1960s. The southern garden has been reduced in area following a garage and single storey wing addition to the house and the character of the southern garden area has been altered. A structure, possibly a glasshouse or fernery, was added to the southern garden and rockery introduced under the trees. A steel framed carport was later constructed.
The northern garden area has been modified from its appearance in the 1961 aerial photograph, including the introduction of an in-ground swimming pool in the 1960s, a metal pool fence around the pool and the boundary fence has been replaced. The introduction of the pool has adversely affected the layout of the northern garden.
The eastern garden has been truncated by the subdivision of 136 Pentecost Avenue in 1954 which has significantly changed the setting of the eastern garden.
Despite extensive research, there is no evidence the garden was designed by Jocelyn Brown. If the garden was designed by Jocelyn Brown, it would be of greater importance if it was intact, however it would not be worthy of heritage listing as the garden has been extensively altered, including changes to the setting, removal of structural elements including garden beds and fabric and plantings have been changed.
The sunken garden and the entrance gate have aesthetic values but not at a level that would satisfy the relevant criterion and sunken gardens are not a typology that can be held to be rare.
The garden is now little different to a vast number of gardens in Ku-ring-gai.

Consideration

Importantly, the initial impetus for the making of the IHO was a discussion of the Council's 'Heritage Reference Committee' on 11 May, 2015, regarding the dwelling at 140 Pentecost Avenue, Turramurra, during which Mr Robert Moore, representing the National Trust, raised the possibility that the dwelling 'was a fine house with the hall mark characteristics of a Gilling house or one of his colleagues' (minutes of the 'Heritage Reference Committee' on 11 May, 2015, exhibit 3, tab 5). [Gilling being the noted Australian architect, F. Glynn Gilling, c1877 - 1955, of the architectural firm, Joseland & Gilling].
The file note which formed the basis for the sequence of events leading to the making of the IHO ('2015/115383' noted on the bottom left hand corner of exhibit 3, tab 5) and which the Council submits was written by the Council's Specialist Heritage Planner and forms part of the material identified as the preliminary heritage assessment in fulfilment of the condition precedent to the Council's authority to make the IHO, states the following: With regards to 140 Pentecost Avenue Turramurra, there is new evidence germane to the buildings circumstances. The building is at risk of demolition and there is serious belief that it is of heritage significance and it should be considered for heritage listing. The house shares significant design elements with the work of F. Glynn Gilling in particular the finer architectural details being the shape of the chimney, the shape and configuration of the terracotta ventilation popes and the coloured roof tiles. Many of Gilling's works are in the Inter-war Mediterranean style featuring prominent outwardly facing curved walls that optimise views of the garden. It is known the house was designed for John McDowell of 382 George Street Sydney. This was the address of the McDowell Ltd department store (drapers, outfitters and importers). John McDowell was the son of Sir Frank Schofield McDowell the managing director and chairman of McDowell's Ltd. Plans were lodged on 18.9.1938 for the corner of Pentecost Highway and Reely Street Turramurra for a brick two storey dwelling and garage for a cost of 2347 pounds. They were approved on 6.10.1938, the plans were collected by the builder R. Milner of 71 William Street North Sydney (BA 38/588). The house was named "Stowe-on-the-Wold". It is known that Joseland and Gilling designed a house for John McDowell's sister Cecile Jean Pratten and her husband George Austen Pratten. This house named Howcroft was located at 28 Crown Road Pymble and constructed 1940-41. (The Historian: 39.1 p 152) The Historian attributed the design of the house as being likely the work of Carlyle Greenwell (Mrs John McDowell's uncle), however, the house is not of a style consistent with the works of Carlyle Greenwell and no documentary evidence of his involvement has been found.
Following the making of the IHO, subsequent research proved that the dwelling was designed by the architect Carlyle Greenwell and not by F. Glynn Gilling. Greenwell is not considered to be an outstanding architect of his time (p 49, GML report, Annexure F, exhibit 2) and the heritage experts agreed that the house is not worthy of local heritage listing, either on the basis it is a design by Greenwell, or on its architectural quality and proportions, and I accept their agreement.
In regard to the competing positions of heritage experts on the heritage significance of the garden, I prefer and accept Mr Logan's evidence. The garden is of some historical significance as it was awarded the Sydney Morning Herald's open garden of the year prize in 1962, however much of the structure of the garden, the plantings and the setting of the garden, have been irrevocably altered. The northern garden has been modified and its sense of 'a room' has been significantly eroded by the awkward placement of the pool and enclosure in the centre of the northern garden in the 1960s. I do not accept that this is a feature that can be simply reversed, as the fabric and plantings of the garden that replace the pool would instead open another chapter in the evolution of the garden. The southern garden has also been irrevocably altered, fundamentally by the reduction in area of the southern garden and by additions to the house, including the carport.
I accept Mr Logan's evidence that the sunken garden element in the eastern garden has aesthetic value; however the property as whole does not achieve a level of heritage significance worthy of a local heritage listing. Even if the garden was designed by Jocelyn Brown, it would still not make the property or the garden worthy of a local heritage listing, as the garden has been extensively altered, the setting changed, the fabric changed or removed including the garden beds, and if reconstructed it would no longer be the work of Jocelyn Brown.
I am satisfied that the heritage significance assessment of 140 Pentecost Ave, Turramurra in the GML report (section 5.2.2 of the GML report, Annexure F, exhibit 2) is a balanced and comprehensive assessment of the heritage values of the property and I accept the finding of the assessment, that while the property has some historic and aesthetic merit, it does not reach a level that would satisfy any of the relevant criterion of the NSW heritage assessment criteria for inclusion on the heritage schedule of the Local Environment Plan.

Conclusion

I am satisfied that the IHO has served its purpose in allowing further research to be undertaken and that the further research has unequivocally established the dwelling was not designed by the architect F. Glynn Gilling. Having considered all of the evidence before me, I am not persuaded that the property is worthy of a local heritage listing on any other subsequently discovered grounds. The research and reports that have been undertaken and provided to the Court in evidence are thorough and comprehensive and I am satisfied that any further investigation will not illicit additional information that would change the finding that the item does not reach the threshold for local heritage listing. On that basis, it is appropriate to revoke the IHO.
Given my finding that the IHO can be revoked on the merits; it is not necessary to make a finding on the applicant's contention that the IHO is defective as Council acted improperly in making the IHO, or to respond to the applicant's submission that the Court can, standing in the shoes of the Council, amend the IHO.

Orders

The orders of the Court are: 1. The Interim Heritage Order on 'Stow-on-the-Wold', 140 Pentecost Avenue, Turramurra, dated 22 May 2015, is revoked. 2. The exhibits, other than exhibits 4, A and C, are returned.

Susan O'Neill Commissioner of the Court

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: 20 November 2015

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