Gary Saunders & Anor v Hunters Hill Council

Planning Framework

1. The site is located in the Low Density Residential R2 zone under the Hunters Hill Local Environmental Plan 2012 (the LEP) where the proposed development is permissible with consent. The Council took the Court to the objectives of the zone in particular: To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.
2. The site is situated in two conservation areas, also referred to as heritage conservation areas, designated under the LEP: being Conservation Area C435: Department of Housing Subdivision, DP 13260 (C435); and Conservation Area 1: the Peninsula (C1). C1 applies to much of the Hunters Hill municipality and is referenced in the LEP as 'Conservation area - General' whereas C435 comprises an area identified as a Department of Housing subdivision referenced in the LEP as 'Conservation area - Landscape'.
3. The existing cottage on the site is not listed as a heritage item under the LEP but is in the vicinity of heritage items.
4. The Council took the Court to other relevant provisions of the LEP. This included the aims of the LEP at cl 1.2 (2) in particular: (a) to maintain and enhance the character and identity of established neighbourhoods in Hunters Hill by regulating the use and development of land (i) to promote high standards of urban and architectural design quality.
5. The relevant heritage provisions are found at clause 5.10: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Maps as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Hunters Hill, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (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, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, … (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area… (3) … (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). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) …
6. Clause 6.2 of the LEP deals with earthworks and has the following objective: To ensure that earthworks and associated groundwater dewatering for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
7. The development is also subject to the provisions of the Hunters Hill Consolidated Development Control Plan 2013 (the DCP). The Council took the Court to a number of provisions of the DCP considered of relevance to the appeal. For example, the DCP includes the following strategic objective: To conserve identified heritage values that influence the character and identity of this Municipality.
8. Further, the following is found at Part Two of the DCP titled 'Character & Heritage of the Hunters Hill Municipality': The Hunters Hill LEP 2012 has continued the Council's focus upon character as a foundation element of local planning policies. Character is noted by aims of the instrument, and also is specified by zone objectives together with a number of local provisions which must be considered before a development consent may be granted. The Hunters Hill LEP 2012 identifies a number of localities with special significance in terms of character where special matters for consideration apply, including River Front Areas, Foreshore Areas, and Heritage Conservation Areas.
9. The controls which apply to protect this character have the following aims at part 2.2.2: (a) Conserve and enhance character and environmental identity of the Hunters Hill Municipality by the appropriate use and development of land, existing buildings and structures. (b) Maintain and enhance qualities of existing buildings and structures, tree covered streetscapes and scenically prominent landscape settings which are important elements of this Municipality's heritage, scenic quality and environmental identity. (c) Complement provisions of the Hunters Hill LEP 2012 to ensure that future development does not detract from existing character of landscape settings, streetscapes, residential gardens and buildings which contribute to this Municipality's heritage, scenic quality and environmental identity.
10. The existing character of areas is explained in Part Two by reference to four themes, one of which is streetscapes defined by the following elements: (i) In general, streetscapes are defined by patterns of gardens and building forms which have been influenced by a combination of land use and thematic development history in this Municipality. (ii) Most significant streetscapes occur within 'garden suburb' neighbourhoods that are widely recognised as emblems of this Municipality's identity. Buildings in these neighbourhoods typically date from the mid-Nineteenth Century through to the early-to-mid Twentieth Century, but are screened substantially by the canopies of mature trees which have been established in private gardens and along street verges. (iii) Significant streetscapes also occur within Heritage Conservation Areas, where groups of buildings display special qualities in terms of history, culture and/or aesthetics, and where special considerations are specified by Hunters Hill LEP 2012 in relation to new development. (iv) Important streetscapes also occur in neighbourhoods that contain clusters of contributory items which are defined by Appendix ii of this Plan, where the current consistency of traditional architecture or building forms has produced streetscapes which display a high degree of visual harmony.
11. The dwellings in Richmond Crescent are not listed as clusters of contributory items in Appendix ii. The Council advised that this was because Richmond Crescent is in a conservation area. By the definition in the DCP (below), contributory items can not be designated in such areas: Contributory item means a building which has been identified as making a significant contribution to identity and character of the surrounding area, but which is not located within a heritage conservation area or identified as a heritage item.
12. Another theme in Part Two of the DCP relates to buildings and includes, at part 2.2.3(d)(ii) and (v), (ii) In this Municipality, existing buildings which date from the mid-Nineteenth Century through to the early-to-mid Twentieth Century are valued highly for their contribution to European and architectural heritages, and these buildings are widely considered to provide design cues for the desired scale and architectural character of future development. (v) Details which are common to residential and commercial buildings include a predominance of masonry facades that are 'punctured' by vertically proportioned windows (rather than extensive glazed walls), balconies which are framed structures rather than glazed cantilevers, exterior materials and finishes which employ earthy or medium-to-dark tones, and street elevations which are not visually dominated by garages or driveways.
13. The desired future character for the municipality is outlined in part 2.2.4 of the DCP with desired future streetscapes controls including at 2.2.4(b)(iii); (iii) In areas with special qualities that contribute to identity of the Hunters Hill Municipality, the siting and form of proposed developments should demonstrate very high levels of compatibility with established patterns of gardens and buildings: Heritage conservation areas that are defined by the Hunters Hill LEP 2012...
14. The DCP controls at part 2.2.4 (b)(iv) state that: 'In general, proposed residential development should demonstrate reasonable compatibility with the predominant pattern of existing dwellings or buildings in the surrounding neighbourhood'. Controls reference setbacks being similar to neighbours and relatively consistent along the surrounding street frontage and front gardens of sufficient dimension to accommodate a green backdrop to the street.
15. It is also required at part 2.2.4(d) that the architectural character of development proposals should be compatible with existing traditional buildings which were constructed in the municipality between the mid-Nineteenth Century and the early-to-mid Twentieth Century, and that the existing character of residential localities should be maintained and enhanced.
16. The heritage controls are contained at Part 2.4 of the DCP. At part 2.4.2(c) there is a requirement to "Retain evidence of this Municipality's thematic development history by conserving significant elements of environmental heritage". There is a note at the end of part 2.4.5, which deals with the detailed requirements for heritage conservation areas, which states: "It is likely that Hunters Hill Council will not support development proposals which involve substantial or total demolition of a building that is located within a Heritage Conservation Area."
17. In Part Three of the DCP there are controls for garages which, in essence, require that townscape qualities are not compromised by new garages which impact local streetscapes. Part 3.4.3 requires that new developments respect rather than alter the existing steep sandstone topography for which the municipality is noted. At part 3.6.3, it is stated that, where garages can be located at the rear of the property, favourable consideration will not be given to parking forward of the house. Where parking at the rear is not possible, only open parking at the front may be acceptable with garages to the side requiring a 1m setback from the front of the house.
18. For new houses, the DCP indicates that garage doors visible from the street are destructive of the townscape and further proliferation of such proposals will not be supported instead suggesting separating car parking from the house to open up opportunities for a better house design and, where a garage is more than one car wide, it must be faced away from the street or broken up into smaller units.
19. For fences, the DCP encourages designs which respond to other fences in the street in terms of scale, height materials, colour and finish.
20. The DCP controls are provided having regard to the following DCP Existing Character statement: The Municipality of Hunters Hill is distinguished throughout Australia for its architectural heritage and townscape character. Buildings, structures and gardens reveal a great deal about the history of this Municipality and Sydney in general. In order to maintain the historic character of Hunters Hill, important evidence of the Municipality's history is provided by subdivision patterns, gardens, buildings and building materials. An important element of historic character is provided by the relationship between garden spaces, buildings and fences which contribute to townscapes that are of very high quality.

Context

1. The history of the site is detailed later however, in summary, it was agreed that the cottage on it was built in the early 1920s and was based on designs by William Foggitt, the then NSW Housing Board architect. It is situated in an estate developed in the 1920's by the then NSW Department of Housing modelled on the 'Garden Cites' movement in the UK. It is the estate which forms the basis for the conservation area designated C435 in the LEP.
2. The majority of the cottages in the estate (the estate cottages) were first occupied by returning World War One (WWI) soldiers and are therefore colloquially referred to by local residents as the 'Returned Soldiers' or 'Returned Services' cottages.
3. The appeal was required to determine if the cottage could and should be retained and incorporated within any proposed new development of the site on the basis of its heritage value and/or contribution to the two conservation areas in which it is located or, if the dwelling house could be (or needed to be) demolished, whether the proposed replacement dwelling was appropriate in the circumstances. The cottage at 18 Richmond Crescent, Hunters Hill

Site view and objector evidence

1. The appeal was listed initially for conciliation under s 34AA of the Land and Environment Court Act, 1979 (the Court Act) and commenced onsite where the Court viewed the cottage as well as the other dwellings in Richmond Crescent and in other streets within C435.
2. The inspection of the cottage was in the company of the parties as well as: the heritage experts, Mr Oultram for the applicants and Mr Patch, Council's Heritage Advisor; the structural engineers, Mr Joannides for the applicants and Mr Connett for the Council; and the planners, Mr Boston for the applicants and Mr McDonald for the Council.
3. The Court also heard from residents of 16 and 20 Richmond Crescent and a representative of the Hunters Hill Trust. All raised concerns with the demolition of the cottage. The Hanrahans, from 16 Richmond Crescent, advised that the cottage was over 95 years old and was the last of the WWI Returned Soldiers estate cottages in the street which has remained as close to the size and design of the original cottages as when they were first built. Therefore, it should remain as a fine example of that history.
4. The Hanrahans raised concerns that the proposed dwelling was an overdevelopment of the site and out of character for the street. They believed that native wildlife in the area would be impacted by the construction required for the new dwelling which would also create adverse traffic and parking conditions. Mrs Hanrahan provided photos showing local native fauna but also examples of cottages in the estate which she claimed were in worse condition than that on the subject site but which had been retained and renovated. This included 14 Richmond Crescent.
5. The Hanrahans advised that they would not oppose extensions to the cottage to make it a comfortable family home if it meant its retention. Mrs Hanrahan considered that any extension should not be visible from the street so as to honour the style and dimensions of the original estate houses in Richmond Crescent. She argued that no other house had been demolished in the street and all had been renovated to accommodate the needs of modern living. In this regard, she did not consider that the proposed dwelling reflected any of the elements of the rest of the houses in the street and would set an undesirable precedent.
6. Following conciliation, as agreement could not be reached, the conciliation conference was terminated and the matter proceeded to a hearing before me pursuant to the provisions of s 34AA(2)(b)(i) of the Court Act. The parties agreed that what I observed and heard onsite during the conciliation conference could be considered by me under the provisions of s 34(12).
7. The applicants sought leave, granted by the Court, for further minor amendments to the application associated with the location of the garage wall and the excavation.

Work required to the cottage

1. The cottage is single storey of double brick and tile construction, on a sandstone block base, with wooden floors, an enclosed front veranda, pitched roof with side gables and a fibro clad timber extension at the rear.
2. A brief Structural Condition Survey (Dilapidation Report) prepared by Partridge Structural Engineers was submitted with the application in 2016. This concluded that the building was structurally unsound and should be demolished based on the extent of cracking and inadequate footings.
3. A structural engineering report from Mott MacDonald assessed required remedial works although extensive investigation of the existing condition of the cottage was not undertaken. This report noted that, whilst cracks were common around door and window openings, the exposed mortar joints in the perimeter walls were in reasonable condition, the external render was typically in good condition and the inspected floor framing were also in good condition. Nevertheless, remedial works were required to repair the walls (including underpinning on shallow footings and to repair cracks), rebuild the front stairs, address rising damp, re-level sloping floors, and upgrade the roof.
4. The Mott McDonald report concluded that 'the works required to protect the building from ongoing damage are extensive, and require substantial intervention, and may be considered to be a significant financial burden to the property owner'. The report suggested that, even if the cottage was a contributory heritage item, the extent of required remedial works make demolition of the building 'a reasonable option'. However, no costs of these remedial works were given.
5. The applicants did submit a property inspection report by a building inspector suggesting repair works could be between $500,000 and $600,000. However, the Council objected to this advice as no expert evidence was called to support the costings provided. The estimated cost of constructing the replacement dwelling was stated in the application as being $1.25m.
6. At the site view, there was discussion but not agreement on the condition of the cottage, the probable cause of cracking evident, and the scope of works that would likely be required to retain and extend the cottage.
7. The structural engineering experts in their joint report (Exhibit 3) agreed that the shallow depth of footings was the likely reason for the walls of the cottage exhibiting settlement, differential movement and brick cracking. To arrest future settlement and differential movement, they recommended underpinning the footings.
8. These experts also agreed that the rear family room, kitchen and laundry were poorly constructed and did not meet contemporary living standards. They assumed this fibro extension would be demolished. They advised the Court that they had been instructed to confer on the structural engineering steps necessary to retain the brick constructed portion of the cottage but not to consider cost or planning matters.
9. The first issue addressed by these experts was the required works to the external brick walls. They agreed that these walls were capable of being underpinned as required in a conventional way provided the work was carried out in staged excavation owing to the size of the base sandstone blocks.
10. Mr Joannides voiced concerns regarding the stability of the walls while underpinning works were in progress without additional stabilisation. However, Mr Connett considered there should be insignificant risk of instability provided that remedial wall ties were installed where required (it was agreed that any existing steel ties would now be corroded and need replacing), that connected perpendicular internal walls remained in place for the duration of the works, and that visual monitoring was undertaken while the underpinning works were underway.
11. It was agreed that, after underpinning the footings, cracks in the external walls would need to be repaired. Mr Joannides was of the opinion that masonry cracking exceeding 2mm in width, which crossed the full width of the brickwork, could not be adequately repaired and reinforced at mortar joints to allow load transfer therefore requiring the brickwork to be rebuilt. He believed such work would need to occur to a majority of the window openings, to the driveway side wall and to the rear wall above the doorway.
12. In contrast, Mr Connett was of the opinion that cracks up to 5mm in width could be stitched across with stainless steel bed joint reinforcement and filled. The exception would be where bricks were cracked through requiring a replacement brick however, in his opinion, most cracks observed in the external walls followed brick joints. He considered that his approach to crack repair would be adequate structurally and would limit reconstruction of localised brickwork.
13. The experts next considered the internal walls. They agreed that underpinning safely beneath these wall footings would be difficult because of the constant hazard that the sandstone blocks could fall onto workers and the wall instabilities that may result. They also agreed that the safest approach to arrest future settlement and differential movement to these walls (if they were retained) would be to demolish and reconstruct the walls on deeper footings. To do this safely would require the external walls to be temporarily shored. Furthermore, if the internal walls were removed, the roof framing and tiles would require re-supporting.
14. The evidence was that the roof has a number of defects including: the tiles being close to the end of their serviceable life; no reflective foil sarking (required for contemporary residences); required reframing and augmentation to remedy deficiencies resulting from its construction and age; and the weatherboards to both gable ends being extremely weathered requiring removal and reconstruction. Therefore, to safely demolish and reconstruct internal walls on deeper footings, the timber framed roof and the end gables would need to be removed and reconstructed.
15. Both structural engineering experts agreed that the front veranda brick walls above the sandstone block base required demolition and rebuilding as did the front steps brick pier.
16. In their expert report joint report (Exhibit 5) and/or in evidence, the heritage experts agreed that the extension at the rear of the cottage and the garage could be demolished, the front veranda could be reinstated, and the front stairs rebuilt. Further, that development would be possible at the site with two storeys at the rear of the existing cottage.
17. Mr Oultram agreed that no development option had been prepared by the applicants which explored the retention of the cottage with additions to the rear. However, Mr Patch had prepared a sketch of a possible option that would be acceptable to the Council.
18. The applicants referenced Dove & Lee Investments Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1184 where the Court approved the demolition of a contributory cottage in the Paddington conservation area having regard to the extent and of work that would be required to make that cottage habitable and BCA compliant, and the minimal impact the loss of that cottage would have on the conservation area. In that instance, Commissioner Brown stated at [41] that it did not necessarily follow that a contributory item in a conservation area should be preserved for this reason alone. Rather it is whether the extent of the reconstruction required affects its significance as a contributory item.
19. Reference was also made to One Three Pty Ltd v Manly [2012] NSWLEC 1191 where the Court determined that retaining only the façade or a 'replica' of a contributory inter war building in a conservation area would not retain the building in any meaningful way. Further, that retention was not warranted given the building's contribution to the conservation area, its condition and its constraints to developing the site.
20. Mr McEwen, senior counsel for the applicants, argued that the extent of work required to the cottage entailed a degree of difficulty not justified by the building's contribution to the conservation areas in which it was located.
21. Mr Patch did not agree stating there was nothing unusual whatsoever about the extent of works required to be undertaken as would be expected of old buildings. Whilst he accepted that the cottage could and should be modified to accommodate contemporary living requirements, he did not believe this meant the cottage should be demolished but rather retained and incorporated into the design of new development. Mr Patch accepted that the required works could be extensive and diminish the contributory value of the cottage. However, he still believed the cottage was worth retaining. He disagreed that the work required would amount to a reconstruction and believed the applicants should have been aware in purchasing the cottage that the controls required its retention where possible.
22. Mr Oultram argued that renovation would entail at least removal of the internal walls and aspects, if not all, of the roof. Based on his assessment of the works required to be undertaken, he did not consider the cottage worth retaining and it would be replica at least in part. Only if the cottage was a significant heritage item did he consider the required works may be justified.
23. Mr Staunton, counsel for the Council, argued that it was not possible to know what could be retained, removed or reinstated as no detailed analysis of the required work had been undertaken. Nor had there been a design retaining the cottage or detailed analysis of the likely cost. Furthermore, a lack of maintenance had contributed to the current state of disrepair.
24. The Council contended that the cottage should not be demolished in circumstances where it could be retained and extended or modified in accordance with applicable heritage and town planning principles. This would provide a suitable residence achieving modern contemporary living standards and requirements without negative heritage and streetscape impacts.
25. Mr McDonald was critical that the applicants had not made any serious attempt to consider retention of the proportion of the existing cottage with a compatible two storey addition behind. He had seen the schematic layout prepared by Mr Patch which he considered to be consistent with the advice given by the Council's Conservation Advisory Panel. In his view, that scheme suggested that a similar amount of floor space could be achieved retaining the external envelope of the cottage and placing the garage further back on the site with minimal excavation and that this was only one approach - other solutions could be explored.

Heritage Considerations

1. The Council contended that the site contained the best remaining (Returned Soldiers) cottage of its type in the municipality representing part of the thematic development of Hunters Hill. It was contained in not one but two (heritage) conservation areas.
2. The heritage experts agreed that C435 is identified as a landscape conservation area due to its subdivision pattern. However, there are no heritage listing sheets prepared by the Council or lodged on the NSW State Heritage Inventory which provide a background for the designation of either of the conservation areas in which the site is located.
3. The Council argued that C435 reflected a unique period and style of development in the municipality being an estate developed by the Government which reflected the street layout and irregular lot layout arrangement of a 'Garden Suburb'. C435 generally retained the sense of modest homes reflective of the design intent for such homes at the time of their construction. Therefore it had thematic importance as referenced in the LEP and DCP controls.
4. In essence, the heritage experts disagreed over the need to retain the existing cottage and the acceptability of the replacement dwelling proposed should the cottage be demolished. The experts considered these issues under two headings to determine if the application would have an adverse heritage impact: 1. The impact of the demolition of the existing cottage; and 2. The bulk, scale and detail of the replacement house.

Impact of the demolition of the existing cottage on the conservation areas

1. The Council referenced Helou v Strathfield Municipal Council [2006] NSWLEC 66, wherein the Court established 6 planning principles on which to consider the demolition of buildings within a conservation area being: 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.
2. In Helou, then Moore SC states: 44 A contributory item in a conservation area is a building that is not individually listed as a heritage item, but by virtue of age, scale, materials, details, design style or intactness is consistent with the conservation area, and therefore reinforces its heritage significance.
3. The heritage experts did not address the specific principles in Helou. However, it was agreed that there was no documented Statement of Significance for either conservation area and disagreement as to whether the heritage value of C435 extended to the built form or applied only to the 'landscape' (Principle 1). Nor was there any specific background documentation held by the Council or other agencies for the cottage itself albeit Mr Patch did provide the designs for Housing Board cottages of the time (Principle 2). Whilst evidence was provided on Principle 3, this was not conclusive and there was no definitive evidence, other than sketches by Mr Patch, on whether there was any scope for extending or altering the cottage to achieve the aspirations of the applicants in a way that would have a lesser effect on the integrity of the conservation area than demolition (Principle 4). Accordingly, the costs of renovating and extending vis a vis demolition and new build were not provided which could address Principle 5. Principle 6, the new dwelling, is discussed later.
4. In the GBA Heritage Report, and in the absence of a documented Statement of Significance for either conservation area, reference is made to heritage significance based on The Hunters Hill Heritage Study prepared by Margaret Walker in 1984 (the Walker Study).
5. The Walker Study states that the municipality of Hunters Hill 'demonstrates suburban subdivision, development and building practices in Sydney and the design of houses from 1840-1920' and 'contains tangible evidence of the past through all its periods of development and is of interpretive and educational value to Sydney as a whole'.
6. The heritage experts could not provide definitive evidence on whether or not the cottage made any contribution to C1 as the basis for the C1 designation wasn't clear. The GBA Report notes that C1 applies to the majority of the Hunters Hill peninsula. Mr Patch believed the National Trust originally classified all of Hunters Hill postcode 2110 as a conservation area largely based on the Walker Study. On this basis, and as the cottage was 'modest', not individually listed as being of value and was built after 1920, the NBRS Study concluded it made no contribution to the C1 area.
7. In terms of C435, the GBA Report states 'It is understood that the Council considers the area's subdivision pattern to be the significant aspect of this landscape conservation area. As the boundaries of the site … have not altered since was first registered, it is considered a contributory element in this conservation area'.
8. The history of C435 is contained within the GBA Report. In summary, the adoption of the Housing Act, 1912 allowed the Government to act as both housing constructor and landlord. This Act established the NSW Housing Board, which oversaw the building of the state's first public housing estate, 'Daceyville', influenced by the British 'Garden City' movement and designed in 1912 by (Sir) John Sulman. William Foggitt was involved in design changes for Daceyville. Following the Housing (Extension) Act 1919 the NSW Government appropriated land from the Gladesville Asylum in Hunters Hill for social housing development. Sir John Sulman was commissioned c1919 to draw up the subdivision plan for the appropriated land. This design, based on Daceyville and the Garden City movement, was known as the Gladesville Housing Scheme or Gladesville Estate. The subject site was part of this estate.
9. The Gladesville Estate's original subdivision design included curvilinear roads to follow local topography with tree lined streets, large housing blocks featuring uneven building setbacks to break up the monotony, and walking paths. Sulman included his plan for the estate in his 1921 book on subdivision design to illustrate good town planning design. However, the Housing Board undertook changes to Sulman's design including removing the street planting.
10. The subdivision or estate contained 132 lots with some 30 houses built in 1920. Most of the cottages were fairly small with three rooms and a kitchen and a later enquiry found poor architectural designs marred the picturesque setting of the estate. The Board did not complete construction of houses on all lots but had completed around 100 before ending construction works c1921. Over subsequent years all of the cottages were sold into private ownership.
11. Mr Patch advised the Court that in previous LEP's, the C435 subdivision was listed as a contributory item however, the Department of Planning would not subsequently allow whole areas to be listed as items and it was designated a conservation area instead. He argued that it was one of four such areas with a 'landscape' designation being for the subdivision's cultural values not because of 'trees' having regard to the fact the subdivision was based on 'Garden City' principles. All four areas were representative of four distinct periods of development.
12. Mr Patch provided background documentation on the development of the 'Garden City' movement, on which the design of the estate was based, which the experts agreed was atypical for development in Hunters Hill at the time. He claimed the elements of that period and style of development remained very evident in C435. In his view, the cottage 'was the most intact and original of the houses in C435 and it is vital to retain its legibility and street presentation to demonstrate a particular era and government program'.
13. The cottage itself, designed within the office of William Foggitt as the Housing Board Architect, appears chosen from a range of pre-existing designs, and was likely built between 1920 and early 1922. Mr Patch considered it was the historic connection to Foggitt that meant the design of the cottage, as well as its construction, had value. The Conservation Advisory Panel also considered that the existing cottage should be retained as a largely intact example of the housing that was built by the Department of Housing in the early post WWI development of the area
14. Mr Oultram argued that the lot, not the cottage, was the contributory aspect given the 'landscape' (ie not built form) conservation area designation and the poor quality design of cottages in it. As there is no mention of the importance of the building stock in the designation of C435 and, as the subdivision pattern is not altered by the proposal, he concluded demolition could be supported.
15. Mr Patch contended that the subdivision would not mean anything if there were no houses in it or landscape associated with it. It was a subdivision by the Department of Housing so it would be natural to expect housing as a result of the subdivision as that was why it was created. Mr Oultram argued that, just because the Department of Housing designed the subdivision, it didn't mean the housing that resulted on it was substantial or warranted retention. Furthermore, the NRBS Study found the majority of houses in the estate have undergone substantial modifications or reconstructions such that any sense of the original character of the area is no longer apparent.
16. Mr Patch disagreed. His evidence was that, whilst a walk of the C435 area would suggest that the housing stock is quite varied and seemingly disparate, on closer examination there are characteristics that are common. This includes rock-faced base courses with subfloor ventilators and 'pattern book' modest cottages and gabling. He accepted that houses in the area had largely been subject to alterations and additions, but claimed there had not been wholesale demolition. Whilst agreeing that many of the estate cottages had been modified and enlarged, he considered that a number were still relatively intact.
17. He noted that neither of the heritage reports submitted with the application considered the prospect of retention and adaptation of the existing cottage nor its incorporation in a development of the property. In his view it was axiomatic that such consideration be given to buildings within conservation areas.
18. Mr Oultram agreed that, whilst the DCP states that contributory items can't be in conservation areas, it is common to refer to buildings in conservation areas as 'contributory' or 'neutral' in terms of their contribution to the heritage values of such areas.
19. Mr Oultram also accepted that buildings can be categorised as contributory items for their social rather than their architectural value. However, in this instance he believed there was an insufficient quantum of remaining cottages to retain the sense of the original thematic built form. Whilst he accepted that this cottage and its two adjoining neighbours could be recognised as a representative body of cottages, he argued they were not intact and it was only the applicants' cottage that was readable as original. Furthermore, three houses did not make a conservation area.
20. It was agreed that there were some 90-100 dwelling houses within C435. Mr Oultram believed that, given the alterations to the houses in the area already undertaken, if the estate was surveyed now it would not qualify for conservation area listing based on its built form.
21. In this regard, Mr Oultram argued that C435 had been designated based on its landscape character not the built form and therefore the houses in it, including the subject cottage, were not 'contributory items' but made, at best, a 'neutral' contribution to the conservation area. He contended that the C435 listing was based on the subdivision pattern and road layout, which would remain. However, he did accept that the cottages and plantings were part of the fabric of the conservation area and that the site was also contained in the broader C1 area where historic built form was a consideration. If the cottage was determined to be a 'contributory building' or 'item' then he accepted that it could be detrimental to demolish it.
22. Mr Oultram stated that even at the time of their construction, the cottages were criticised for their 'meanness' and it was not surprising that many had therefore been modified. Whilst agreeing that the cottage was probably the most intact, and therefore rare, in C435, he noted that it hadn't warranted heritage item listing.

The replacement dwelling

1. The proposed 'replacement' dwelling is two storeys above a double garage with a minimum front setback of some 5m. The upper level is setback from lower levels. The dwelling is of brick veneer construction with hipped and gabled roof elements to the front elevation. Sandstone walls and fencing are proposed along with side entry steps leading to the front door which is situated above the garage. Informal landscaping of the front setback is proposed.
2. The Council contended that the replacement dwelling was incompatible with the existing and desired future streetscape character of the two conservation areas.
3. The Council was particularly concerned with the significant below ground excavation resulting in a visible large garage door, and associated with the proposed driveway. This would make the garage highly visible from the street being approximately 800mm for the width of the driveway. Mr McDonald argued that the site was not such that the topography prevented compliance by way of an alternative appropriate garage design.
4. Furthermore, the Council's Conservation Advisory Panel considered the proposed replacement house to be inappropriate in its response to the streetscape, which it considered to be typified by asymmetrical facades, with the introduction of foreign elements such as a partially excavated driveway access to the garage. The Panel recommended that an alternative approach that utilised the volume of the existing cottage, possibly with an internal layout change, and the development of a new two storey attached pavilion building further back on the land would be potentially more successful.
5. Mr Patch advised that, whilst he had done a sketch for the applicant showing an alternative roof form to the new dwelling which would be more appropriate along with changes to the front stairs, this did not mean that simply undertaking those changes would make demolition of the existing cottage and the replacement dwelling acceptable from a heritage perspective.
6. In terms of the existing streetscape character, and the compatibility of the replacement building in that context, Mr Boston had undertaken an extensive survey of Richmond Crescent with photos provided in the Joint Report (Exhibit 4). Mr Boston noted that the streetscape contained both one and two storey houses, some even over three levels in response to topography. He believed the houses did not exhibit consistency being of variable height, width and setbacks with both gable and hipped roof forms.
7. Other than a common theme of a sandstone bases and fences/walls, Mr Boston argued there was no consistent built form or landscape character. He considered the replacement dwelling's height, form, scale, siting and massing to be complimentary and compatible in the streetscape context, arguing that most observers would not find the design of the proposed dwelling offensive, jarring or unsympathetic in a streetscape context with the design not antipathetic to the zone or DCP objectives.
8. Mr Boston also claimed that the majority of parking structures were either integrated into the front facades or maintained the same front setbacks as the dwellings. He noted the front setback of the proposed dwelling/garage was similar to that of 4 and 10 Richmond Crescent.
9. Mr Boston considered that there was scope to either reuse the existing sandstone of the cottage or to introduce new sandstone elements in the proposed front fence and garage surrounds to reinforce the sandstone theme within the established streetscape. He also argued that providing a garage to the side would reduce the extent of onsite landscaping.
10. However, Mr McDonald considered that the form and scale of the proposed dwelling was inconsistent with objectives a) and b) of part 2.2.2 of the DCP. These objectives required development to conserve and enhance the character and environmental identity of the municipality by appropriate development and to maintain and enhance qualities of existing buildings and structures which are important elements of the municipality's heritage.
11. Mr McDonald argued that the design of the proposed dwelling made no concessions to the built form and scale of the original cottages in the locality. Design measures that he believed should have been taken to minimise built form and scale included placing the garage to the side of the dwelling. This would enable a split level ground floor with the front part at least 1m lower instead of the garage being under the front portion of the house elevating the ground and first floors and creating a three storey appearance. He did agree however that the dwelling complied numerically with the height control.
12. Mr McDonald considered another option would have been an attic solution to the first floor, consistently encouraged by the Conservation Advisory Panel and Council planners to avoid pop-up additions and bulky two storey buildings in conservation areas.
13. Mr McDonald reiterated that the garage was contrary to the DCP controls incorporated to arrest the development of dominant garage structures in streetscapes. He believed that the wide highly visible garage doors did not comply with these controls and that the majority of examples of visible garages referenced by Mr Boston were mostly single and relatively modest, pre-dated current controls, and/or were constructed to the side of dwellings. Those that were highly visible, which Mr Boston relied upon, Mr McDonald considered were examples of what the controls now sought to avoid.
14. Whilst accepting that the site sloped, Mr McDonald did not consider this was sufficient to justify an under storey garage as proposed which elevated the dwelling unreasonably creating additional and prominent bulk in the streetscape as opposed to under storey garages in the area which appeared to either be on steeper slopes or integrated into dwellings well setback or screened from the street.
15. Where an original cottage was permitted to be demolished in a conservation area, Mr McDonald argued that the replacement dwelling should be of equal or greater contribution to the streetscape and needs to understand, respect and reflect the existing character of that street - that character was predominantly single storey cottages at least as presented to the street.
16. Mr McDonald was also critical that the proposed fence did not comply with the intent of the DCP whereas a low rock or sandstone retaining wall or a simple timber picket fence or hedge would readily meet the DCP objectives. He referenced 12 Richmond Crescent as an appropriate design approach. Mr Boston argued there was no consistency in the fencing in the street, however, the applicants would accept a condition requiring a fence in line with what the Council was seeking.
17. In terms of the proposed excavation and garage, Mr Boston noted that the excavation is located wholly within the building footprint and therefore did not extend into the landscaped areas of the site. He believed the DCP provisions were satisfied in that the extent of excavation proposed was acceptable given the topography of the site and the complimentary and compatible streetscape presentation achieved.
18. Mr McDonald however believed the building siting and design had been based on an assumption from the outset that the new house would be placed over a partly excavated garage. He was not aware of any exploration of alternatives to have other than garage doors presented to the street despite requests from the Council's Conservation Advisory Panel to do so. Whilst noting that the plan had been amended to reduce excavation, in his view, the development still did not meet clause 6.2 of the LEP or part 3.3.4 of the DCP in terms of mitigating or avoiding impacts and respecting rather than altering existing steep sandstone topography.
19. In terms of precedence, Mr McDonald acknowledged examples of cottages in the locality that had been altered or had upper floor additions setting poor precedence. In his view it was important that new development set a good example to encourage future high quality development solutions to arrest a trend of incompatible changes that eroded the streetscape value of the two conservation areas.

Findings

1. If approved, the development would result in the loss of a building likely to be the most intact remaining cottage of an estate which forms the specific basis for one of the two conservation areas in which the cottage is located.
2. The applicants therefore purchased a cottage in near original condition located in two conservation areas, and then lodged an application for its complete demolition. Adjoining the cottage are two further dwellings which, although renovated, retain elements of the original cottages. This means the applicants' cottage is one of three in a row in the street which retain features of their form in terms of the original location, style, age, form and/or character reflective of the cottages in the original estate forming the C435 conservation area.
3. On the evidence provided as I understood it, the applicants' case to demolish the cottage is premised on the cottage making a 'neutral contribution' to the two conservation areas in which it is located. This contribution conclusion was on the basis that the site is only included in C1 because it is in C435 and C435 only exists because of the 'landscape' value of the original subdivision not because of the built form constructed in that subdivision. Therefore, they argue, the cottage does not positively contribute to the conservation areas in which it is situated. I do not accept that finding.
4. In particular, I do not accept the applicants' argument that the conservation area C435 designation as a 'landscape' conservation area means that the original estate only has conservation status on the basis of the subdivision and not for the heritage value of the development that occurred on the lots and within the streets of that subdivision.
5. Whilst I accept it was the subdivision concept, design and layout that are the foundation of the estate's designation as a conservation area for its 'landscape' value, that designation must, in my view, include the dwellings that were developed on it at the time and the streetscapes they created as part of the social and cultural historical value of the area. It would otherwise make little sense to designate a subdivision as a conservation area if the streetscape and built form developed in it, were not considered to be integral elements. Therefore whilst designated in the LEP as 'Conservation area - landscape' I do not accept that 'landscape' does not mean the 'urban landscape' or 'cultural landscape', including buildings, in this instance.
6. Put another way, whilst there is reference to the subdivision pattern and layout as the key basis for designation of the C435 conservation area, the nature of the existing and future built forms and their impacts on streetscapes, and therefore 'the landscape', must be an integral part of that same conservation area. To suggest otherwise would suggest that, if all of the dwellings in C435 were demolished but the area still retained vacant lots with the same subdivision road and lot pattern, it would remain a conservation area, which is doubtful.
7. It is therefore, in my view, reasonable to conclude that the reference to the subdivision pattern relates to the scale, layout and density of development evident in the area as a consequence of that subdivision pattern, namely consistent modest lot sizes and resultant consistent modest built form. Therefore, the cottages built within that subdivision at the same time as, or shortly after, the subdivision was created, are important components of the conservation area designation and character as it demonstrates how the subdivision design and intent translated into built form.
8. It does not matter that the subject cottage is not listed as a contributory item within the LEP. In fact, the LEP precludes such a designation because it is within a conservation area. The cottage nevertheless meets the definition for a contributory item advanced by Moore SC in Helou in that it clearly is a building which, by virtue of its age, scale, materials, details, design style or intactness (or arguably for all of those virtues), is consistent with the conservation areas in which it is located, reinforcing its heritage significance.
9. I have therefore concluded that the cottage is a contributory item in the C435 area given I have formed the view that the landscape heritage value of this area extends beyond the subdivision layout. If I am wrong about the heritage values of C435 extending to the built form, it is not denied that the heritage value of C1 includes the built form. The cottage is also located in C1 and continues to meet the test established in Helou of being a contributory item by virtue of its age, scale, materials, style and, in particular, intactness.
10. The DCP (at part 2.4) acknowledges that, in the Hunters Hill municipality, there are hundreds of buildings which are either listed items or in conservation areas which demonstrate the evolving history of the municipality and contribute to its historic identity. The heritage conservation objectives of the DCP are to conserve and enhance these areas, protect their heritage significance and retain evidence of the thematic development of the municipality accordingly. The demolition of this cottage would not achieve, but be contrary to, these objectives.
11. As a contributory item to both conservation areas, the demolition of the cottage would remove not only an agreed rare intact building but further diminish evidence of the existence of the estate in which it is located. Such an estate is in itself rare in the municipality, hence the C435 listing. This evidence is of the thematic development of part of the municipality in response to social Government housing programs and provision at the time, including cottage design responses.
12. The demolition of what was agreed to likely be the best remaining example of a cottage from the C435 estate would dilute the fabric of the conservation areas in which it is located and unreasonably and unnecessarily diminish the heritage value of those areas, particularly C435.
13. Even the applicants' heritage expert accepted that, if the cottage was determined to be a contributory item, it should not be demolished at least without addressing the principles set out in Helou.
14. This does not mean that the cottage cannot be modified or extended. It was agreed that the existing cottage cannot reasonably accommodate contemporary family living and requires upgrading and extension accordingly. However, I was not persuaded by the evidence that the applicants could not undertake renovations which would reasonably achieve the objectives of the heritage controls without demolition of the entire cottage.
15. Given their original modest nature, many of the cottages in C435 have been modified and extended, but the site view undertaken by the Court indicated to me that the nucleus of the original cottages, and their setting and setbacks, remain in the majority of instances thus retaining the thematic evidence of the original estate the basis of the C435 conservation area listing.
16. The Council did not seek for the applicants to retain the cottage without modification but did seek that the original external walls of the dwelling, without the rear extension, remain in situ. The Council's Heritage Advisor clearly indicated that favourable consideration would be given to extensions to the cottage not only at the rear but including an upper level if also at the rear. A sketch of one possible option was even provided.
17. If there was ever an intent by the applicants to consider and cost retention, restoration and addition to the cottage as an alternate to demolition as required by the planning controls for conservation areas, this endeavour was not apparent in the evidence. This is despite the controls clearly indicating that demolition in conservation areas would not likely be supported.
18. I accept, as the Council did, that the cottage is of modest proportions and it is not a contributory item on the basis of its architectural merit but rather for its social heritage and rarity value in terms of built form and streetscape contribution as an exemplar of the development that occurred in the C435 estate. Whilst demolition is therefore not justified, I accept that some modification is reasonably required.
19. In this regard, I consider it is unreasonable to require retention of the existing roof whilst stabilisation works to the external walls are undertaken. It was agreed that the tiles would need replacing, sarking added to the ceiling, and potentially replacement of part of the wooden frame. Accordingly, in my view, any new proposal would not need to retain the original roof but would need to ensure any replacement roof over the original cottage portion of any new development was of a similar pitch, style and tiling palette. I believe such a roof replacement would not detract from the heritage value of the cottage or its context.
20. I similarly agree that the extent of the work required to retain the internal walls is not warranted. The cottage is not a heritage item and its contributory elements to the conservation areas are in terms of its original scale and form, location on the site and presentation to the streetscape. It is these features, most visibly evident by the brick external walls, sandstone base and front elevation (comprising the front veranda and side stairs), which need to be respected, retained and restored to meet the heritage requirements of the LEP and DCP.
21. In determining that the cottage ought not to be demolished, I have considered the findings in Dove & Lee Investments. That appeal involved a timber cottage in Paddington almost 50 years older than the subject cottage where there was an agreed extent of non-original fabric. The Council also found the replacement dwelling in that instance to be acceptable within the conservation area should the cottage be demolished. These are not circumstances that exist in the matter before me.
22. Commissioner Brown also found in Dove & Lee, based on detailed reports, that the works required to be undertaken for the cottage to be habitable and meet fire safety and BCA requirements would compromise the integrity of the building to the extent that it would lose nearly all of its contributory value. There was no evidence that this would be the case for the subject cottage. It is the integrity of the unaltered features of the cottage that form the basis of its contributory value in the estate in which it was built, not its architectural merit.
23. Furthermore, I was unable to conclude whether the extent of the work required to upgrade and extend the cottage would affect its significance. The only works discussed related to stabilising the existing cottage and not how it might be modernised and extended, and what the implication of doing such works would mean for its ongoing contribution to the conservation areas in which it is located.
24. The Court principle established in Helou of determining whether the costs of retaining and extending the cottage support its demolition were not addressed by the applicants, as they did not accept it was a contributory item. Therefore I am unable to conclude that such costs would be so unreasonable a burden to the applicants that demolition should be permitted.
25. The only evidence to the Court on this issue was provided by other residents in the conservation areas who showed photos of similar estate cottages, arguably in at least the same if not worse repair, which had been retained, renovated and extended.
26. In this regard, there was no specific evidence addressing the feasibility of retaining the cottage vis a vis justifying its demolition as the only option for providing contemporary accommodation on the site.
27. In Dove & Lee, Commissioner Brown concluded that that demolition of the cottage in that instance would have a small negative impact on the conservation area and would therefore not be significant. I cannot come to the same conclusion for the subject appeal. If this cottage is allowed to be demolished without any attempt to incorporate any aspect of it into the dwelling on the site, there would be little basis for the Council retaining the C435 conservation area despite its social history value and the thematic features of the original estate including its built form.
28. In One Three Pty Ltd, the Court found that the building proposed to be demolished was substantially altered, had lost much of its original character and no longer represented an intact or significant example of an inter war building. Also only the façade was proposed to be retained. These are different circumstances to that of the existing cottage which is agreed to be a relatively intact (therefore rare) example of the dwellings in C435.
29. In summary, I agree with Mr Patch that the original estate cottages in C435, despite refurbishment and upgrading, remain the dominant base dwelling stock in that conservation area and the built form is sufficiently intact to demonstrate the nature and features of a unique estate within Hunters Hill which warranted the C435 conservation area listing in the first place.
30. Given I find that the cottage makes a positive contribution to the conservation areas in which it is located, and is therefore a contributory item in those areas, I find that there are insufficient grounds to justify its demolition.
31. Further, I am required to consider the effect the development would have on the conservation areas in which it is located under LEP cl 5.10 (4). In doing so, I have concluded that the proposed demolition of the cottage would have adverse impacts for the heritage values of the conservation areas in which it is located, particularly C435 and particularly having regard to the existing streetscape setting of the cottage and its immediately adjacent neighbours.
32. As a minimum, alternatives to incorporate the cottage into a contemporary dwelling on the site, which provides a meaningful appreciation of the scale, location and features of the cottage in the streetscape and relative to its neighbours and C435 context, need to be considered. Only then can any development on the site be evaluated financially and structurally and the principles in Helou appropriately applied and addressed if demolition is further sought to be justified on the basis of the unreasonableness of the burden to the applicants.
33. As I have found that the demolition of the existing cottage has not been justified in this instance, and the cottage therefore needs to be retained, I do not need to address the appropriateness of the replacement dwelling in any detail. However, it is the case that the design must respect the heritage values of the two conservation areas in which the site is located and I was not persuaded on the evidence that this was the case.
34. In particular, I agree with the Council that the garage location and prominence does not accord with the DCP objectives for the streetscape, particularly given there is opportunity to provide a structure to the rear or the side. Such an alternative location would assist in reducing the bulk and scale of any future development on the site further respecting the scale and nature of the existing cottage, its neighbours and the context of the conservation areas in which it is located.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 2016/1172 for demolition of the existing dwelling house and construction of a new dwelling house and pool at 18 Richmond Crescent, Hunters Hill is refused. 3. The exhibits, except Exhibits A and 6, are returned.

Jenny Smithson Commissioner of the Court

Amendments 12 December 2017 - Amendment to paragraph [59] - " Mr McEwen" inserted to replace incorrect spelling of name. 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: 12 December 2017