Harbour Port Constructions Pty Limited v Woollahra Municipal Council

Harbour Port Constructions Pty Limited v Woollahra Municipal Council - [2004] NSWLEC 283 - NSWLEC 2004 case summary — Zoe

[27]

Clause 8 of the LEP insofar as it applies to development in the Residential 2(b) zone relevantly provides a follows: 8. Development control tables (1) The following development control tables set out the zones applying to the land to which this plan applies. (2) Each development control table identifies the manner in which a zone is shown on the land use map, describes the zone, states the objectives of the zone, identifies development which may be carried out without or only with the consent of the Council, identifies development which is prohibited and makes references to related provisions. (3) Land is within a zone described in a development control table if it is shown on the land use map in the manner specified under the heading Zone identification on the land use map for that table. (4) The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision in Part 4 and 5 of this plan, the special provision or heritage provision shall prevail. (5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. DEVELOPMENT CONTROL TABLE - ZONE NO. 2(b) - (RESIDENTIAL "B" ZONE) (4) Zone identification on the land use map Coloured scarlet, edged red and lettered 2(b). (4) Description of the zone The Residential B Zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls, contained in Part 3, set the maximum permissible density and building heights for new development. Site area and frontage controls, also contained in Part 3, specify minimum site requirements for new development. (4) Objectives of the zone The objectives are: (a) to provide for areas of medium and high density residential development in appropriate locations, (b) to encourage a diversity of dwelling types and tenure, (c) to allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (d) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (e) too protect the environmental attributes of the foreshore lands. 4. Development which may be carried out without development consent Development for the purpose of: Drainage; home occupations carried on in dwelling-houses; roads. 5. Development which may be carried out only with development consent Development for the purpose of: Bed and breakfast accommodation; boarding houses; child care centres; dwelling-houses; home industries; home occupations carried on in residential flat buildings; hospitals; parks and gardens; medical consulting rooms; residential flat buildings; utility installations (other than gas holders or generating works); works to enable public pedestrian access to and along Sydney Harbour foreshore. 6. Development which is prohibited Any development other than development included in Item 4 or 5. 7. Related provisions Parts 3 and 4 of, and Schedules 2 and 3 to, this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out. (c) The heritage conservation provisions

[34]

The Facades Policy was adopted by the Council in February 1984. Section 1 contains an introduction to the Policy and includes the following statements: Woollahra Municipality is rich in buildings and areas of historic and heritage significance. It is an objective of the Council to identify, conserve and enhance the special qualities of these buildings and areas; this in a spirit of cooperation with owners, consistent with the need to retain high standards of accommodation for residents. In order to comply with the statutory requirements contained in the Environmental Planning and Assessment Act, 1979, prior to the preparation of a Local Environmental Plan to replace the existing Woollahra Planning Scheme Ordinance, Woollahra Council carried out an environmental study. The study, amongst other things, identified four areas, namely Bondi Junction, Watsons Bay, West Woollahra and Paddington, as having conservation merit in historical and/or architectural terms. (See maps 4, 5, 6 and 7) To determine the conservation merit of each building within the four precincts, Council employed consultants to undertake a survey. The survey involved completing a survey sheet and photographing each property and finally the preparation of a report recommending future action. Information gathered on the survey sheets includes existing land use, building type/construction, height in storeys, approximate age, apparent condition (external only), statement of action permitted, reasons for retention and suggested works that should be undertaken to restore the building to its original appearance. This Policy is intended to provide a classification of each property within the four precincts. It also sets down a general policy indicating the extent to which a building may be altered or added to as far as urban conservation considerations are concerned. This however, must not be taken as Council's final consideration since all applications will be individually assessed with consideration being given to its classification amongst other issues. The classification system has been designed primarily to provide an indication of the possibility for alterations and/or additions at the preliminary stages prior to preparing and submitting an application; Council's officers should still be consulted prior to submitting a development and/or building application.

[39]

The Façade Policy states the following in respect of the A2 Classification and B Classification - A2 Buildings of Significant Area and Streetscape Significance Included in this classification are buildings which are a significant part of the character of the area, because of their age and style,. importance in a streetscape sense and providing building lines of visual significance. This includes fences, walls and modern buildings that fit comfortably in scale and character with those existing. These buildings are generally in very good to excellent condition, in terms of the retention of original elements. Policy: These buildings are prominent, architecturally important and/or in an harmonious or identical row and therefore care should be taken to conserve the feature/s that has/have given them a high grading. For example, in an individual building it may be the detailing and in a row it may be the total uniformity or pattern. In general only minimal alterations will be possible. B. Buildings of Lesser Area And Streetscape Significance Included in this classification are those buildings, the presence of which are essential to the streetscape character of the area. They are important to the streetscape in terms of age, style and general design and form (including modern buildings). They form elements of visual importance. However, they may often be irregularly located as related to the more general arrangement of adjoining buildings. Because of their position or the discontinuity they produce in an otherwise regular group of facades they do not have such an important impact on the streetscape as the previous category. Policy: These buildings also require particular attention to the original form. However, due to their irregularity, position in relation to adjacent or surrounding buildings, setback or physical condition they may be altered or modified but only where the alterations or modifications will not detrimentally affect the basic elements of the streetscape.

[52]

The heritage experts conferred following the exchange of their respective statements of evidence and produced a Joint Report (Exhibit A). That Report states the following points of agreement and points of argument: Points of Agreement · The existing Cottage No, 54 Fletcher Street, Woollahra was built in 1904 as one or a pair of identical cottages. · The cottage is substantially intact externally, apart from the chimneys and some verandah details which are now missing. · The cottage is substantially intact internally, both in its layout and fabric. It is now agreed that the weatherboards of front facade ere original, These match the weatherboards on the front facade of the neighbouring cottage at No. 56. · The rear bathroom/laundry wing is a later addition and is of little heritage value. · The building has historic and aesthetic significance within the Woollabra Conservation Area, as a surviving weatherboard workers' cottage, is rare within the municipality of Woollahra. · The Cottage has been listed as a contributory Item by Council for approximately 20 years. · As a contributory item, the building warrants retention on heritage grounds, and if there was no structural or safety and imperative for demolition it should remain. · The building is known to have been occupied in 2001, but its date of last occupation is not known. · The areas of the building identified in the Applicant's structural report as requiring re-building are the rear bathroom/laundry addition and an area adjacent to the east elevation, · Replacement of the rear bathroom/laundry addition would not adversely affect the heritage significance of the building. · Further Information is required regarding the extent of termite damage (if any) to the cottage, Areas of Continuing Disagreement · The degree of work that would be needed to enable the cottage to continue as a residence with a reasonable level of amenity and whether this can be undertaken without destroying its heritage value. · The appropriateness of the proposed replacement building within the streetscape context of the conservation area, in particular, its scale, form and character

[65]

His Statement contains the following opinions on "the reasonable feasibility of repair and retention" of the existing cottage: 5.1 The foregoing works are technically quite feasible. Essentially, the building needs to have weatherboarding and gutters repaired to stem the ingress of water. The roof corrugated steel sheeting is also close to the end of its serviceable life and will require replacement in the near future. The left flank wall has subsided due to rising damp and the result of rotten bottom plate and wall studs and this requires repair. There are signs of wood borer and termite activity and elements of floor and wall require replacement as a consequence. From the decay evident to rear areas of floor it is judged that the current under-floor void is inadequate, has inadequate cross ventilation, or has become blocked with debris, which requires remedial action to prevent future decay. It is also recommended that the rainwater pipes be discharged into a new in-ground drainage system and the hard landscaping to the left boundary lowered to ensure that all timber is raised above the ground. 5.2 My recommendations for remedial work are reasonably extensive. Some materials-the roof sheeting for example - are approaching the end of their serviceable life, which could be considered a normal maintenance requirement. Where timber piecing-in or replacement of weatherboards is recommended, this again is not unusual in the maintenance of a timber building of this age. The building structure, with the exception of two thirds of the length of the left flank wall, is stable and it is my opinion that repair of the building fabric is feasible. I do not consider that the condition of the structural elements (where visible) in themselves warrant demolition. There is however considerable cost in repair of fabric due to its deterioration and due to the requirement for it to be removed to carry out full structural inspection and repair and this should be taken into consideration. It is my experience that the limitations of visual inspection make it likely that further defects will come to light in the carrying out of remedial works and that due contingency should be allowed for this. In addition, restoration of heritage buildings requires specialist building skills and restricts the number of builders prepared to quote on and carry out such works. This can lead to higher than expected costs compared with new construction. For these reasons I would normally recommend a contingency allowance of something in excess of 50% over and above any elemental cost estimate for remedial works when applied to a project of this type. 5.3 I would recommend that the remedial works outlined in this report are costed by either a quantity surveyor or reputable builder with heritage experience to allow assessment of cost of remedial works against perceived heritage value. Whilst I do not consider that structural stability issues warrant demolition the cost of fabric restoration may be significant

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Parties

Cited By (2)