Helou v Strathfield Municipal Council

Harbour Port Construction Pty Limited v Woollahra Municipal Council [2004] NSWLEC 283; CASES CITED: Atchison v Leichhardt Municipal Council [2005] NSWLEC 648; In and Out Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 299; Owen Haviland Pty Limited v Willoughby City Council [2004] NSWLEC 265

DATES OF HEARING: 7 November and 14 December 2005

APPLICANTS Mr K Webber, solicitor Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10538 S & F Helou v Strathfield Municipal Council

JUDGMENT 1 Commissioner: This is an appeal of pursuant to s 97 of the Environmental Planning And Assessment Act 1979 (the Act) against the deemed refusal by Strathfield Municipal Council (the council) of Development Application 0304/439. The application sought the consent of the council to demolish an existing single storey dwelling together with the removal of a number of trees at 79 Abbotsford Road, Strathfield (the site). The application also sought consent to replace the existing dwelling with a new two storey rendered brick dwelling with three car garage.

2 The site is Lot 101 in DP 736820 and has an area of ~ 868 sq m. It is rectangular having a frontage of ~ 25 m to Abbotsford Road and a depth of ~ 34 m. 3 The site is zoned Residential A and the proposal is permissible with consent. 4 The matter was originally set down to be dealt with at an on-site hearing on 7 November 2005, on the basis that the principal contested issue was whether or not the existing house, which is a contributory heritage item in the Abbotsford Road Precinct Conservation Area (the conservation area), listed in Sch 10 of the Strathfield Planning Scheme Ordinance (the SPSO), should be conserved for heritage reasons.

5 On this point, I had the advantage of a report and evidence from Mr David Logan, a Court-appointed heritage expert. During the course of discussions on site on that occasion, it became obvious that the issue which was determinative in the appeal was not as to the heritage value of the dwelling but whether the cost of necessary repairs to rectify present and future damage (caused by cracking as a result of movement in the footings of the dwelling) was so uneconomic that the demolition should be permitted. 6 The parties agreed that, given the way the proceedings had unfolded, the concerns which the council pressed for refusal of the proposed new dwelling should be set aside and only considered, at a second stage of the proceedings, should I determine that the demolition should be permitted. This course was agreed to as an appropriate way to limit the time and costs of the proceedings and not require the determination of issues which might be rendered redundant by the decision on the demolition proposal.

7 Although, at that time, there was some engineering material on behalf of both the applicants and the council on the possible rectification methodologies and costs involved, there had been no conferencing between these experts. In addition, the author of the council's report was not available that day to be questioned.

The heritage context of the existing dwelling 8 Although not contested in the proceedings, I need, briefly, to set out the heritage context of the property and, in doing so, note some of the evidence (concerning movements experienced in their own dwellings) given by residents who opposed the application for demolition. 9 Mr Logan's conclusion, at 6.21 of his statement of evidence, was: Having regard to the heritage significance of the existing building and to its location within the Abbotsford Road Conservation Area and within the vicinity of listed heritage items, it is my view that heritage impacts arising from the subject application would not be the public interests. Nevertheless, issues such as reasonableness and equitable outcomes for owners of properties affected by heritage listings are also matters that are ultimately in the public interest. It is important that the owners of the subject dwelling are able to enjoy a reasonable level of amenity without the constant burden and worry of having to repair damaged to plaster wall finishes caused by repeated cracking of internal walls. If it is not possible to find an affordable and sustainable solution to this problem, then perhaps, it might be in the public interest to allow the dwelling to be demolished. Conversely, if the cracks are able to be stabilised with a reasonably long term and affordable solution, then it would be considered to be in the public interest to retain this building given its heritage significance is contributory item within the Abbotsford Road Conservation Area and a potential local heritage item.

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.

18 However, in the context of an economic assessment of future options for the dwelling, it is relevant to note one further matter. 19 During the course of the first day on site, I asked Mr Logan whether or not it would possible (should the dwelling be retained and appropriate remedial works undertaken) for an extension to the floor space of the residence to be achieved by a "rooms in the roof" addition over all or some of the roof space of the dwelling. 20 He was asked to consider this purely from the perspective of whether or not such an extension might be capable of being designed in a fashion which did not adversely compromise the contribution which the dwelling made to the conservation area. He was, of course, not asked to provide any detail of such a design.

21 His conclusion, in this regard, was that a "rooms in the roof" extension would be possible, toward the rear of the existing roof structure, without compromising the heritage contribution made by the dwelling - provided such an extension was appropriately designed in its context and limited to that portion of the roof. 22 In noting this fact, I record that have not had any evidence as to whether or not the necessary remedial underpinning works discussed by the engineering and geo-technical experts would provide a satisfactory platform upon which such an extension could be erected. Therefore, in the context of these deliberations, I merely have regard to the fact that it may be possible, in heritage sense, if the building is otherwise appropriately rectified, for such an extension to be undertaken without compromising its contribution to the conservation area.

The engineering evidence 23 As a consequence of the agreement on the heritage matters but the lack of appropriate evidence upon which I might determine what might be described as the economic issue, the on-site hearing was adjourned to permit those experts to confer on both rectification methodologies and costs.

24 The matter continued at a further on-site hearing on 14 December 2005 during which the relevant experts (Mr Davies and Mr Cutuk on behalf of the applicants and Mr Vardouniotis on behalf of the council) conferred and agreed on: - a range of possible measures; - the likely outcome for each measure; and - the confidence I could have in the long term prognosis for such outcome for each degree of remediation.

25 The experts considered the various levels of and technologies for stabilisation treatments for the footings of the dwelling. In the end, they agreed that the only approach which would provide a "crack-free and serviceable dwelling" outcome with a "high" likelihood that this outcome would be achieved coupled with a "low to very low" risk that this outcome would not be achieved was a full underpinning of the dwelling. This, they agreed, was the highest cost option.

The costs of rectification and other necessary works and expenses 26 Material was also to me by Mr Webber concerning additional works which might need to be undertaken to the dwelling apart from the stabilization works. He also put material relating to additional non-building costs which the applicants would be incurred. 27 The underpinning costs provided for underpinning to the extent identified as necessary by the experts to achieve the "crack-free and serviceable dwelling" outcome discussed above. 28 All these costs are set out in the following table: Item $

Underpinning 138,600 Internal restoration 78,118 Rewiring 7,000 Full roof rectification 88,258 Painting 21,800 Moving and temporary accommodation 15.650 Landscaping 5,000 Interior/exterior detailing 5,000

29 With respect to these additional works, Mr Seton put that the quantum proposed for some of the works was somewhat excessive and contested whether some of the works or expenditure proposed, in fact, arose from or related to the shifting of the buildings foundations or were required at all. 30 In this regard, there was some discussion with the experts concerning the damage to and need for rectification of the roof structure. I accept the evidence on behalf of the applicants that rectification of the defective roof is desirable whether or not its defects arise from or are related to the shifting footings.

31 With respect to these contested items or sums, I have concluded that the appropriate course for me to follow is to take the costs put by the applicant, in the first instance, at their highest and determine whether or not the economic justification for demolition fails at this hurdle. It is only if demolition is justified at the highest cost level should I turn to consider whether there is some lower legitimate cost level (which I might accept was more appropriate, based on Mr Seton's submissions) and, if so, whether that lower cost level would warrant demolition.

Consideration of earlier decisions of the Court 32 At the conclusion of the second day of the on site hearing, I asked the solicitors for the parties whether or not either of them were aware of any earlier matters in the Court where the question of proposed demolition of contributory items was dealt with in the context of the economic cost of retention. Neither of them were aware of any such consideration. 33 I indicated that I wished to see whether there were any such decisions and, if they were such decisions and they raised matters which might potentially appear to have stated principles relating to this issue, I would provide the parties with the opportunity to make written submissions concerning the relevant matters.

34 I subsequently discovered a relevant decision by Bignold J in Harbour Port Construction Pty Limited v Woollahra Municipal Council [2004] NSWLEC 283. 35 This decision, concerning the proposed demolition of a contributory item in a heritage conservation zone in Woollahra Municipality, dealt with the question of the economic costs of the retention and restoration compared to the cost of a new dwelling. His Honour discussed the evidence of two heritage experts, Mr Phillips, on behalf of the applicant, and Mr Logan, on behalf of the council in those proceedings (but the Court-appointed expert in these proceedings).

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.

70. In the present case the Applicant's case based upon the economic imperative has not dislodged or disturbed the overwhelming weight of evidence that on heritage conservation grounds, the existing cottage continues in existence as a significant contributory item to the Heritage Conservation Area (it having been so recognised since 1984 when it obtained the A2 Classification under the Facades Policy) and that the Heritage Conservation Area has attained even greater importance under the SPSO in terms of the recently adopted DCP and that in that context, the retention of the cottage is desirable, particularly in terms of the stated heritage conservation objectives in cl 2(2)(g) of the SPSO and that the proposed demolition of the existing cottage would relevantly adversely affect the heritage significance of the Heritage Conservation Area ( cl 28 ).

37 In light of my reading of this decision, particularly the matters arising from paragraphs 67 to 69, I wrote to the solicitors for the parties in the following terms (and setting a timetable for their responses): As I indicated during the course of the on-site hearing, I proposed to see if I could find any other cases which had dealt with a similar situation. The only other case which I have been able to find is the decision of Bignold J in Harbour Port Constructions Pty Limited v Woollahra Municipal Council [2004] NSWLEC 283.

At paras 67 to 69, His Honour dealt with matters which, had he been writing a planning principle for consideration of such issues, might well have been posed as questions to be considered - if written in more general and abstract language.

Although I have not reached any conclusions on the present application, it would seem to me that the matters set out by His Honour canvass the issues which I am required to address in this matter.

38 In response, written submissions have been provided to me on behalf of both the applicant and the council. Not surprisingly, the submissions of the council are that the effect of the matters discussed by Bignold J, in the present context, lead to the following conclusion: 14 The economic arguments advanced by the applicant in favour in demolition do not, to utilise the words of Bignold J at paragraph 70 of Harbour Port, dislodge or disturb the overwhelming weight of evidence on heritage conservation grounds, the existing dwelling continues in existence as a contributory item to the heritage conservation area that was recognized in 1992 and that the retention of the dwelling is desirable and that the proposed demolition of the dwelling would relevantly adversely effect the heritage significance of the Abbotsford Road precinct heritage conservation area.

39 Equally unsurprisingly, with respect to the general position on the economic issue, the written submissions on behalf of the applicants said: If in relation to paragraph 67, the Court's stated in Harbour Port Construction case that the heritage significance of the heritage conservation area and of the existing cottage, which was recognized in the council's Development Control Plan as a significant contributory item, matters that essentially independent and then I can make considerations. The above statement related to the facts of that particular case. The dwelling in question in the Harbour Port Construction case was the sample of a workers cottage and was given the second highest listing in a graded classification for all buildings within the conservation area. The classification was a2 buildings of significant area and streetscape significance. We submit that the significance of that building in that case was such that the Court Judge did to be independent of economic considerations. It is not ratio for the proposition that any economic considerations such as likely costs of repair of an item in a heritage conservation area, are irrelevant in all matters. It is true, however, to say that there are economic considerations which are irrelevant for consent authority to take into consideration, for example, the capacity of a party to pay for a remediation works, the original cost of the dwelling, and the current market value of the property in question etc.

40 These submissions then continued to conclude that, on what was submitted was the lesser status of the present dwelling in its conservation area, the lesser status of this dwelling should require that the weight given to the issues in Harbour Port Constructions should not be given the same weight in the present proceedings, and as a consequence, demolition should be permitted. Planning principles for demolition of contributory items in conservation areas 41 As was noted earlier, I invited the parties to make submissions as to whether or not any principles arose from the comments by Bignold J in Harbour Port Constructions and could be derived from the matters he discussed. Although the written submissions were not cast in terms of planning principles, in my opinion the matters to be considered warrant so being set out. 42 In formulating these planning principles, the appropriate approach, in my view, is to set out a series of questions which should be considered when assessing an application for such demolition. They are set out below in a form which is designed to be facultative of such a process rather than prescriptive of a standard to be met. Although not enunciated in precisely the form considered in Bignold J's decision in Harbour Ports Constructions, they are consistent with that approach. They are also consistent with the approach taken by Tuor C, on this issue, in Atchison v Leichhardt Municipal Council [2005] NSWLEC 648; In and Out Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 299 and Owen Haviland Pty Limited v Willoughby City Council [2004] NSWLEC 265. Three of these four earlier cases resulted in refusal of demolition and one in permission for demolition.

Planning Principle 43 Most Local Environmental Plans include a heritage provision that requires a proposal's impact on the heritage significance of an item or conservation area to be assessed. This planning principle applies only to contributory items in a conservation area, not to listed heritage items.

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. 45 The demolition of a building which contributes to a conservation area will impact on the area's heritage significance even if its replacement building "fits" into the conservation area. Although the replacement building may be a satisfactory streetscape or urban design outcome, this does not address heritage impacts as the original heritage element has been removed. Despite this, it is open to the consent authority still to permit the demolition of a contributory element, for example, if the replacement has other planning benefits that the original does not. 46 The following questions should be addressed in assessing whether the demolition should be permitted: 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.

Application of these principles to the present case 47 Having set out these tests, it is appropriate to apply them to the circumstances of the present case having the regard to the site-specific evidence which has been given.

Health and safety 48 As first and second questions are dealt with at paragraphs(5), (9), (11) - (13) and (16) above, I turn to third question to be addressed.

49 Whilst the cracking is unsightly and distressing to the applicants who have expended, I accept, considerable time effort and money in earlier more limited rectification attempts only to see the cracking re-occur, there is no suggestion that the building is so structurally unsound as to pose risks to its inhabitants. There is no immediate or foreseeable safety or health imperative arising from the movement in the footings which would warrant the demolition of this dwelling. 50 The elements of sagging or movement in the roof framing, being an area of the building which, on the expert evidence, requires rectification, is not apparently linked to the movement of the footings. It apparently derives from the inadequacy of the timbers used as part of the roof framing in its original construction. However, there was no evidence that there were immediate or foreseeable safety or health issues arising from these defects. 51 I therefore conclude that there are no immediate or foreseeable safety or health concerns which would lead to any presumption in favour of demolition.

52 In the context of considering the fourth question, I note that the applicants' written submissions cite the report of Mr Cutuk, an expert retained by the applicants, concerning the possibility of a second-storey addition. Mr Cutuk's statement of evidence is quoted as saying: I was asked give a recommendation in regards to adding a second-storey extension on to the existing structure and to address the repair of the existing cracks and structural defects.

53 The submissions go on to quote Mr Cutuk's summary and conclusions where he said: The foundations of the dwelling houses are relatively unstable;

There is substantial cracking inside and outside the house; there is no viable option to fix the problem apart from removing and replacing the majority of the internal walls and floors; it is unsafe to add a second-storey to the house.

54 The submission also then says: We also recall that Mr Logan had his doubts about a second-storey on the existing building.

55 I have, however, set out, earlier, my contrary recollection as to Mr Logan's comments on the second storey addition possibility.

56 It is also pertinent that Mr Cutuk's comments concerning the possibility of adding a second storey extension, from his report, clearly relate to adding a second storey to the dwelling in its present state of repair and without any remedial action being undertaken to rectify the instability in the footings of the dwelling. None of the experts, to my recollection, was asked to provide any commentary on whether or not a second storey would or might be feasible if the maximum underpinning option for the stabilization of the footings were undertaken.

57 The conclusion which the applicants' submission draws that: Accordingly, the present case, on the evidence, there is no opportunity for applicants to avail themselves of an extent or possibly new development application to extend the existing house

is rejected by me as not being in accordance with the evidence, on heritage grounds, and not supported by the technical evidence (being rather left in abeyance from the written and oral evidence of the geo-technical and structural engineering witnesses).

58 Therefore it follows that I am satisfied that, from a heritage impact perspective (and from this perspective only), some limited further development potential, into the roof space, exists on the site. 59 In addition, although the proposed replacement dwelling is somewhat larger than that presently on the site both as to its habitation and vehicle garaging, there was no evidence put to me that the scope of the accommodation in the present dwelling (as opposed to its state of repair) caused significant difficulties for the family presently occupying it. 60 It was also clear that, from my walk around the locality, the existing dwelling was not significantly smaller than many of those represented in the general development pattern in the vicinity. Although I was not given evidence of the detailed nature of other dwellings in the vicinity, it is reasonable to infer, from the various presentations to the street, that there is a mix in sizes in the vicinity with some being larger than the existing dwelling and others somewhat more modest in size. There was certainly nothing that could support a proposition that the present or future occupants would be lacking in reasonable amenity if the dwelling's defects were to be rectified as set out in (28) above. 61 These matters, coupled with the fact that an extension into the roof might well be possible leads to the conclusion, in this case, that there is no unreasonable denial of development potential from the retention of the present dwelling. Is the cost of rectification an unreasonable burden?

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.

The appropriateness of the proposed replacement dwelling 70 Although consideration of the final question is not required, had I reached a different conclusion on demolition further consideration would have been required of the merits or otherwise of the proposed replacement dwelling. However, as noted at (6) above, the parties deferred this consideration pending my determination of the demolition issue. Conclusion

71 I have determined that, when the proper tests are applied, the proposed demolition cannot proceed for the reasons set out above.

Orders 72 As a consequence, the orders of the Court are that: 1. The appeal is dismissed; 2. Development Application 0304/439 to demolish an existing single storey dwelling (together with the removal of a number of trees) and to erect a new two storey rendered brick dwelling with three car garage at 79 Abbotsford Road, Strathfield is determined by the refusal of development consent; and 3. The exhibits are returned.

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.