Helou v Strathfield Municipal Council

CASES CITED: Helou v Strathfield Municipal Council [2006] NSWLEC 66

APPLICANT Ms S Duggan, barrister instructed by Mr G Hartley of Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10721 of 2008 Mersonn Pty Ltd -v- Woollahrah Municipal Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application (283/2008) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish an existing residential flat building and construct a new residential flat building at 4 Marine Parade, Watsons Bay (the site).

2 The key issue between the parties is whether the existing building should be retained given its significance and condition. The site and its locality 3 The site is located on the eastern side of Marine Parade and is irregular in shape with a total site area of 444.6 sqm. The frontage to Marine Parade and the rear boundary are about 12.71 m and the side boundaries are about 37.09 m. The site slopes from the rear to the front with a fall of about 3.8 m.

4 The site is developed with a two-storey residential flat building (c1928) containing three units. There were originally four units, but the top two units have been amalgamated. A single car garage is located in a sub-floor level below the existing ground floor level. The building is brick with a pitched tile roof.

5 Adjoining the site to the south (3 Marine Parade) is a single storey dwelling and to the north (5 Marine Parade) is a three-storey dwelling. The locality is characterised by dwellings with some residential flat buildings and commercial buildings. Planning controls 6 The site is zoned residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). Residential flat buildings are not permissible within the zone and the site enjoys existing use rights under ss 106-109B of the Act. The planning controls are relevant to the extent that they do not derogate from the existing use rights.

7 The site is located within the Watsons Bay Conservation Area and Marine Parade is listed as a heritage item under LEP 1995. The Watsons Bay Heritage Conservation Area Development Control Plan (the DCP) applies to the site. Part 3 of the DCP provides specific controls for precincts in Watsons Bay. The site is in Precinct O - Gibsons Beach Waterfront and Marine Parade South. It is identified under O.5 - Significant items as a Contributory item - 2 storey 1920s flats over garage 'Belvedere'.

8 C10 of the DCP provides that Significant items (i.e. Heritage and contributory items) are to be retained. C11 of the DCP provides that change to these items is limited to sympathetic alterations and additions consistent with the controls in Clause 4.6.

9 Part 4 of the DCP provides general controls that apply to all sites within Watsons Bay. Clause 4.6.2 provides controls for significant items. These are described as being:

those individual elements within the area that have heritage significance, either as heritage items or contributory items. 10 C3 of cl 4.6.2 provides that:

All contributory buildings are to be retained unless overwhelming physical constraints (such as structural integrity, extensive damage, fabric and fire safety requirements) preclude this option. The evidence 11 The Court visited the site and heard evidence from residents on site. The principal concerns of the residents related to overshadowing, view loss, privacy issues and the extent of excavation.

12 The Court heard expert planning evidence from Mr A Darroch, for the applicant and Mr D Waghorn, for the council. Mr S Davies, for the applicant and Ms L Thom, for the council provided expert heritage evidence.

13 The planners assessed the overshadowing and view loss impacts. Both experts agreed that the impact is minor and satisfactory within the context. They agreed that subject to the provision of privacy screens on the northern and southern end of the first floor front and rear balconies, the visual and acoustic privacy impacts are satisfactory. 14 Raising of the floor levels to address flooding issues has reduced the excavation. Mr Darroch and Mr Waghorn agreed that these changes address the excavation issue.

15 The applicant has provided amended plans, which include the privacy screens, the increased floor levels and reduced excavation. The applicant has also agreed to dilapidation reports, before and after construction, and to a traffic management plan which have addressed the concerns of the adjoining owner at 5 Marine Parade. The applicant did not agree to this owner's request that no construction occur on Saturdays. The proposed construction hours are a standard condition imposed by council and there are no specific circumstances of this site that would warrant the amendment of this condition.

16 On the basis of the amended plans, conditions and the experts' agreement, council did not press Contentions 2 (Excavation), 3 (Overshadowing), 4 (View Loss), and 5 (Privacy).

17 The demolition of the existing contributory building and its impact on the conservation area remained the only contention in dispute between the parties (Contention 1).

18 Mr Davies and Ms Thom summarised the issue into two parts:

i. whether the existing building makes a significant contribution to the Conservation Area and therefore whether its demolition would adversely impact on the significance of the area, and

ii. whether the amount of work required to make the building structurally sound and safe is justifiable given the significance of the building. 19 The experts applied the planning principles in Helou v Strathfield Municipal Council [2006] NSWLEC 66. They agreed that inter-war residential flat buildings contributed to the significance of the conservation area as evidence of one of the phases of development at Watsons Bay (Question one of the planning principle). They also agreed that the replacement building is of such quality that it will fit into the conservation area (Question six of the planning principle). Ms Thom initially raised concerns about the style of the dormer window of the proposal, but this has been changed in the amended plans to a more traditional form, which has satisfied her concerns.

20 The experts disagreed on the contribution that the individual building makes to the conservation area (Question two of the planning principle). Ms Thom considered that the building is listed as a contributory item and, although altered by the enclosure of front balconies and a garage under the building, it retains integrity as an inter-war flat building and is representative of a significant housing type in the conservation area of which few examples remain. 21 Mr Davies contends that the integrity has been degraded due to its alterations and poor condition. He considered it to be a minor example of the style and that Woollahra has a large range of fine inter-war flat buildings, many of which are included in groups where their contribution is enhanced by streetscape values.

22 The key disagreement between the experts was whether the building is structurally unsafe (Questions 3 and 4 of the planning principle). Ms Thom considers that:

the building has some structural issues but is habitable. It has not been maintained regularly over long periods of time and needs a substantial amount of maintenance. 23 In Mr Davies opinion:

the building has significant structural issues and the amount of repair is considered unnecessary for the significance of the building. The significant alteration and removal of the rear and associated requirements for rebuilding is not considered an alternative when the façade has been degraded and makes a minor contribution to the significance of the area, which is considered in this location to be primarily historical in terms of the parade itself. 24 In oral evidence, Mr Davies stated that his conclusions about the condition of the building relied heavily on the reports prepared on the structural stability and compliance with the Building Code of Australia (BCA), which accompanied the development application.

25 The Building Structural Condition Report prepared by Taylor Thompson Whitting (structural report) concluded that: It appears that the building has not undergone normal regular structural maintenance and as a result the building appears to be in poor structural condition. This is evidence due to the extent of defects and the damage observed. Extensive repairs are required to bring the building up to satisfactory condition. The cost of these repairs would be very large. 26 A main concern in the structural report was the condition of the brickwork and the likelihood that the external cavity wall brick ties have corroded due to the weathering of the mortar joints and the marine environment. This has resulted in movement and cracking of the southern façade. A section of the wall (about 3 to 4m wide) will require demolition and rebuilding from ground to roof with replacement of an estimated 60% of the wall ties. The report also recommended that the incinerator at the rear be demolished which has been damaged by a fig tree which is growing in it. Other major items include the replacement of concrete lintels, front and rear stairs and the repair and replacement of windows.

27 The BCA Compliance Report prepared by AED (BCA report) recommended works that would be required to meet fire and life safety requirements as well as accessibility. Mr Davies considered that the extent of works required by these reports would result in extensive rebuilding and that little of the original fabric would remain.

28 Ms Thom had reviewed the reports but did not accept their recommendations as to the extent of work. She considered there were other approaches and options that the reports had not addressed which could ensure that the building was structurally sound and met the fire and safety requirements of the BCA. She considered that the option of repairing the building without full BCA compliance had not been addressed. Ms Thom was not aware whether her concerns about the structural and BCA reports had been communicated to the applicant during the assessment process. 29 Mr Darroch explained that the brief for both the structural and BCA reports was to identify the minimum scope of work to ensure the building is structurally adequate and meets safety requirements. He referred to p 4 of the BCA report which outlines the basis of the report and states: The current Building Code of Australia (BCA) will be used as a guide when assessing the building, however, it must be noted that the building was originally constructed under superseded building requirements and legislation. It is unreasonable and impractical to expect the building to fully comply with the current restrictive requirements of the BCA. It is considered that by implementing the recommendations of this report, the building would satisfy current community expectations with respect to fire and life safety whilst taking into consideration that this is an existing building constructed and upgraded in accordance with building regulations in force at the time and that the Building Code of Australia was not intended to be applied retrospectively . 30 Ms Thom and Mr Davies disagreed on whether the costs of the works are so high that they impose an unacceptable burden on the owner of the building (Question 5 of the planning principle). Ms Thom considered that the costs are unknown as the applicant had not submitted an analysis of various options other than complete demolition. Mr Davies considered that the costs outlined in the Preliminary Budget Estimate (budget estimate) for structural repair and BCA compliance of $1.8 million placed an unreasonable burden for the retention of the building given its degree of significance. Findings 31 The site enjoys existing use rights and the provisions of the planning instruments apply only to the extent that they do not derogate from the existing use rights. Clearly, heritage is a relevant consideration in assessing the merits of the proposal and the determinative issue of whether the building should be demolished. The DCP provides an appropriate guide in making this assessment.

32 I accept Ms Thom's evidence in relation to the significance of the existing inter-war residential flat building on the site. It is representative of one of the phases of development of Watsons Bay and contributes to the significance and understanding of the conservation area.

33 Although the building has been altered, this had occurred when it was identified as a contributory item in the DCP. The changes are not of such magnitude to reduce the significance of the item and the enclosure of the balconies is reversible.

34 There are other examples of inter-war flat buildings in Watsons Bay, although none are listed in the Gibsons Beach Precinct, and there are some in the Salisbury Street Precinct to the rear. However, I do not accept Mr Davies' opinion that the existence of other residential flat buildings in Woollahra or Watsons Bay would of itself be sufficient reason to permit demolition of the existing residential flat building on the site. 35 The building contributes to the conservation area and on significance grounds alone it should not be demolished.

36 The question is whether the amount of work required to make the building structurally sound and safe is justifiable given the significance of the building.

37 Ms Thom did not accept the structural and BCA reports as she considered they proposed works beyond that required to make the building structurally sound and safe. She considered that repair options should be examined which would not require full BCA compliance.

38 Council did not provide structural or BCA evidence, nor did it raise its concerns about the structural and BCA reports during the assessment process or in its contentions. Further, council did not seek to cross-examine the people who prepared the structural and BCA reports. The reports before the court therefore are unchallenged by expert evidence other than Ms Thom's opinion. 39 The scope of the structural and BCA reports appear to include the minimum work required for structural soundness and safety. The BCA report clearly states that it is not proposing work to achieve full compliance with the prescriptive requirements of the BCA. It includes works, which Ms Thom agreed would meet minimum safety requirements such as fire separation between apartments and smoke detectors. The works included in the structural report are also works that Ms Thom agreed were required, such as repair to the lintels, balcony reinstatement, demolition of the incinerator and stairs. She agreed that the brick wall needed repair, but did not accept that the method proposed is the only method available.

40 In the absence of any alternate evidence, I accept the scope of works in the structural and BCA reports.

41 The question is then whether the cost of these works is reasonable given the significance of the building.

42 The preliminary budget assesses the cost of the structural and BCA works as being about $1 million. It also includes amounts for factors such as temporary accommodation, design and project management, head contractors, preliminaries, etc, which bring the cost to about $1.6 million exclusive of GST and about $1.8 million inclusive of GST. 43 No review of these costings has been undertaken by council or expert evidence, while I have some concerns about the items that have been included such as disabled access requirements when the BCA report at s 4.1 states that access facilities and parking for people with a disability is not required to be provided to or within the building.

44 I also do not consider it appropriate to include fees etc in the costings as these would also be required for any new building. I further question the inclusion of some of the BCA works as any residential flat building of this period is likely to require upgrade to meet fire safety and this would have been reflected in the purchase price of a contributory building. It would be inappropriate for the cost of normal BCA works to be considered as a reason to demolish a building as this would preclude the retention of a number of residential flat buildings throughout New South Wales. 45 Despite these reservations, I accept that the condition of the building, which has arisen through a combination of lack of maintenance and its maritime environment, would require extensive structural works. There could also be safety works beyond what would be expected and beyond what is reasonable given the degree of significance of a contributory building.

46 I also note that while there are no other residential flat buildings within the Gibsons Bay Precinct, there are other residential flat buildings in close proximity, which can demonstrate this period of development within the conservation area.

47 The proposal therefore satisfies the requirements of the DCP and the planning principles in Helou.

48 With the loss of any contributory building, the quality of the replacement building is an important consideration. The experts agreed that the new building would be of a similar form and impact to the existing and would positively contribute to the conservation area.

49 The new building increases the ridge height and pitch of the roof, which will impact to a minor extent on the views to the properties to the rear. Unit 3 of the new building is contained within the roof form and, although not raised by the experts, is constrained by the height of the roof. No details of the lift overrun or plant were provided, but these will need to be accommodated within the roof. It is important that the building is constructed in accordance with the approved plans and for these reasons I intend to place a condition on the consent, which limits the wall height and overall ridge height to those shown on the plan. This has the benefit of maintaining views and constraining the bulk of the building. It also ensures that any lift overrun and plant is contained within the envelope of the approved building, as any increase in height would be unacceptable.

50 I have also amended condition B1 to require the demolition of the existing building not occur until a construction certificate for the whole building is approved. This will ensure that the existing building is not demolished without some certainty about the replacement building. Orders 51 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (283/2008) to demolish an existing residential flat building and construct a new residential flat building at 4 Marine Parade, Watsons Bay, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 2, A and C may be returned.

          Annelise Tuor
          Commissioner of the Court

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