Helou v Strathfield Municipal Council

Helou v Strathfield Municipal Council - [2006] NSWLEC 66 - NSWLEC 2005 case summary — Zoe

[15]

10 Mr Logan's further evidence was that, although the dwelling is not, itself, listed as a heritage item in the SPSO, it might, on further consideration, warrant such inclusion because of its association with a prominent early district industrialist, Mr Hastings Deering. 11 I indicated to Mr Webber and Mr Seton, the solicitors for the applicants and the council, respectively,, during the first day on site, that I did not consider that this possibility (of specific heritage listing for the dwelling) was a matter which I should include as relevant in my dealing with the demolition proposal as it was speculative rather than established. 12 I indicated that I simply proposed to confine my consideration to dealing with the dwelling as being a contributory item in the conservation area, this being an agreed position by the parties and Mr Logan, 13 The dwelling is also in the immediate vicinity of several listed heritage items within that conservation area - being houses located on the opposite side of Abbotsford Road. This proximity is a matter of relevance in the proceedings as the provisions of the SPSO not merely require consideration of the contribution which the dwelling makes to the conservation area but also the contribution which it makes to the setting of the listed heritage item. 14 Clause 59B of the SPSO provides: The Council shall not grant consent to an application for consent to the carrying out of development on land in the vicinity of heritage item unless it has made an assessment of the carrying out of the development will have on the heritage significance of the item and its setting. 15 In addition (and of greater importance in the present proceedings), the effect of the relevant portions of cl 59C(1) and (2) of the SPSO is that the Council shall not grant consent to the demolition of a building in a conservation area unless it is taken into consideration the extent to which the carrying out of the demolition would affect the heritage significance of the conservation area. 16 However, given the agreement between the parties with Mr Logan's general conclusions concerning the contribution which the dwelling makes to the conservation area and that the determinative issue relates not to this contribution but to the economic cost of ensuring the retention of this contribution, I do not need to undertake or set out further any significant detail of that heritage assessment or other matters relating to the conservation area. 17 I was provided with evidence from other residents in the conservation area that they experienced foundation movement and cracking in their houses of a similar age and general style. I do not consider it relevant to have regard to what others are prepared to accept - the matter which requires to be determine in this application is whether it is reasonable to require retention of this dwelling on this site, not whether some greater degree of stoicism on behalf of the applicants would have them accept the present or future condition of their residence with its current defects.

[27]

36 That discussion and the conclusions which Bignold J reached are set out between paragraphs 62 and 70. They read: 62. Mr Phillips maintained his opinion that the required repair work would not be undertaken by any owner because the effort and expense required was disproportionate to the net benefit. In his opinion, there was no imperative to undertake the repair work and if development consent for the demolition of the existing cottage were not granted, the cottage would probably be left to further deteriorate and ultimately fall down. 63. When asked whether there were other alternatives to demolition and re-development, he raised the question of the viability of any such alternatives but admitted that he had not considered the viability or feasibility of other alternatives because he had not been asked by his client to do so. 64. The competing evidence of Mr Logan was to the effect that in his opinion, the external repair works (roof and wall cladding) were relatively minor matters and that it would be reasonable, given the heritage significance of the existing cottage to allow additional development at the rear of the cottage and internal re-development in order to provide more spacious and congenial residential accommodation than the limited scope provided by the existing cottage. 65. My summary of the detailed expert evidence adduced in the present case (which in the course of the hearing underwent considerable shifts in direction and emphasis) highlights the real issue presented by the Applicant in the present case, namely the relevance of the economic implications of the heritage conservation objectives of the SPSO in seeking to retain the existing cottage as a significant contributory item to the relevant Heritage Conservation Area and in particular the Fletcher Street Precinct. 66. Obviously, the retention of the existing cottage in its present deteriorated condition does not enhance the Heritage Conservation Area anything like it would if it were restored and repaired so as to be far more pleasing to the streetscape of the Fletcher Street Precinct of the Heritage Conservation Area and at the same time to provide an acceptable level of residential amenity for future inhabitants of the restored/repaired cottage. 67. But does the fact that refusal of the development application to demolish the existing cottage would not, and could not, of itself guarantee the result of a restored/repaired cottage tilt the scales in favour of the economic imperative (as advanced by the Applicant's experts in this case) favouring demolition of the cottage? I think not, for the following reasons - (i) the case presented on behalf of the Applicant has not established any imperative based upon building structural and safety considerations; (ii) the economic imperative advanced by the Applicant's experts has failed to factor into their economic appraisal the fact that there already exists via the extant development consent scope for building extensions and additions at the rear of the cottage and the possibility of some other viable scheme for improvements and extensions to be made to the existing cottage; (iii) the heritage significance of the Heritage Conservation Area and of the existing cottage which is recognised in the DCP as a significant contributory item are matters that are essentially independent of economic considerations; and (iv) the truism of planning law that the development control regime is essentially negative in character, by which I mean it either refuses consent to what is evaluated to be an unacceptable development or grants consent to what is evaluated as an acceptable development, but even in those cases where consent is granted, it does not positively guarantee that the approved development will be implemented. 68. What I have just said does not gainsay the obvious fact that in order to achieve positive and enhanced conservation outcomes in respect of privately owned property generally will require the active co-operation of the property owner, including necessary financial commitments. 69. However, in the context of the SPSO the integrity and operation of heritage conservation provisions are not predicated or reliant upon that co-operation by property owners, although obviously where those factors harmoniously co-exist, the heritage conservation objectives and outcomes are likely to be enhanced and achieved.

[54]

62 The above conclusion, therefore, then necessarily leads to consideration of the further issue of whether or not the cost of undertaking the stabilisation and renovation works, at the highest level of cost postulated by the applicant, is so unreasonable that demolition should be permitted. 63 As noted earlier, even taking all matters proposed by the applicants as requiring expenditure and accepting their costings at their highest, the total costs of retention and remediation is ~$360,000. 64 Expenditure of this sum would lead to the present dwelling being rendered stable and entirely habitable to a very high degree of certainty with a low to very low risk of this not being achieved. The dwelling would also have its general level of amenity improved significantly. 65 There would, on the evidence of Mr Logan, also be a possibility of a sympathetic extension into part of the roof space without compromising the heritage contribution made by the dwelling to the conservation area. 66 On the other hand, the original Development Application put the cost of demolition as $12,000 and the cost of the completed replacement dwelling as $585,000. These costs were subsequently revised so that the total costs of the demolition and construction of the new dwelling were a little less than $500,000 rather than the initial ~$600,000. 67 Even to the extent which I should take into account that there might or would be an understandable preference by the applicants for a new, modern dwelling on aesthetic and/or perceived amenity grounds, there is no economic imperative, on these figures, to conclude that refusing demolition of the existing dwelling would impose an unreasonable financial burden on the applicants compared to the cost of demolition and rebuilding. I am also satisfied that the level of amenity which would be enjoyed by residents of a rectified/remediated building would be more than merely acceptable.. 68 Assuming that discounting the cost of the new dwelling to take account of increased amenity or space to be provided by it compared to that which would be available in the existing dwelling (if remediated as proposed in (28)) might be appropriate, I am not able to do so with any mathematical precision as such an approach includes significant subjective considerations and is not merely a question of, for example, merely comparing available usable floor areas. 69 However, I am satisfied that there would, even allowing for differences between that which is there now and that which is proposed to replace it, be no reason to conclude that refusing demolition of the existing dwelling would impose an unreasonable financial burden on the applicants - even if it were necessary to incur the full range of expense or undertake all works set out in (28) above. The council, as noted earlier, does not accept that this range of expense or works is necessary. Given the conclusion I have reached on the position most costly for the applicants, I do not need to consider the objections put by the council to any element of these works or costs.

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Judgment (58 paragraphs)

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Cases Cited (4)

Cited By (30)