Kolb v City of Sydney Council

Background and the proposal

1. The application was initially refused by the Council on 21 September 2018 on the grounds of heritage conservation and residential amenity. The Council considered amended plans in a review of its determination on 14 March 2019 pursuant to the provisions of s 8.2(1)(a) of the EPA Act when it again refused consent.
2. The Council has also prepared a Planning Proposal which, if made, would have the effect of listing the site as an Item of Environmental Heritage. That proposal has been exhibited as required under the provisions of s 3.34(2)(c) of the EPA Act. Accordingly, pursuant to s 4.15(1)(a)(ii), it is a matter that must be taken into consideration in determination of the application.
3. The Applicant sought and was granted leave during the hearing to rely on amended plans. Those plans did not alter the design of the building but rather added additional information which the Council said was required to allow proper assessment of the application. The plans before the Court are contained in Exhibits B and K. The proposal is for demolition of the existing single storey weatherboard cottage, the subdivision of the site to create 2 new Torrens Title lots and the construction of a two-storey terrace type dwelling on each of those lots. The front wall of each dwelling would be set back 1.415m from the front property boundary with a porch at ground level and balcony at first floor forward of that wall and to within 330mm of the front property boundary. Each dwelling would be erected to the side boundaries with a common party wall along the line of proposed subdivision.
4. Each dwelling would have an open plan living, kitchen and dining area on the ground floor with a roofed terrace opening onto a paved courtyard area. Two bedrooms and a bathroom would be provided on the upper levels. The main bedroom of the northern dwelling house is larger than that proposed within the southern dwelling. Otherwise the floor plans of the dwelling houses are identical.
5. The proposed subdivision would provide for two allotments of land, one having a width of 3.047m and the other 3.007m. Proposed Lot A, the northern allotment would have an area of 52.749m2 with the southern lot, Lot B being 53.368m2.

The planning controls

1. The site is zoned R1 General Residential pursuant to the provisions of Sydney Local Environmental Plan 2012 (LEP). The proposed works and subdivision are permissible with consent in that zone. There are no minimum lot sizes for subdivision under the LEP.
2. Clause 4.3 of the LEP applies to height of buildings to the site with a maximum height of 9m permitted. The maximum height of the proposed building is the ridge of the main roof at 8.89m and therefore is compliant with this development standard.
3. Clause 4.4 of the LEP applies to floor space ratio (FSR) with a maximum of 1.75:1 permitted. The FSR of the proposed buildings is 1.09:1 which is also compliant with the development standard.
4. Clause 5.10 of the LEP applies to Heritage conservation and the site is located within a Conservation Area however there are no heritage items within the immediate curtilage of the site. The site is a contributory item, as are the majority of dwelling houses in Chisholm Street.
5. Whilst the site is not currently identified as an item of environmental heritage, the Council has commenced action towards having the property listed pursuant to the planning proposal described at [7].
6. Clause 5.10 of the LEP applies to Heritage conservation with subclauses (2) and (4) relevant. These clauses are in the following form: (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, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. … (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).
7. Consent is therefore required for both demolition of the existing building and subdivision as the site is within the Paddington Urban Heritage Conservation Area and consideration of the effect of the proposed development on the heritage significance of the area must be made before any consent can be granted (cl 5.2(4) of the LEP).
8. The statement of heritage significance for the area as described in the Sydney Development Control Plan 2012 (DCP) is as follows: "The Paddington Urban Heritage Conservation Area has historical significance as an 1860-1880 subdivision of the Sydney Common and an earlier subdivision of Georges Farm, both of which developed with the growth of Victoria Barracks. The area has aesthetic values for its fine consistent streetscapes comprising middle and working class terrace housing (of high integrity) built over undulating topography and enhanced by mature avenue plantings. The area is also significant for the high concentration of Victorian Institutional and religious establishments resulting from the original dedication of much of the land as Sydney Common."
9. Recommended management practices relevant to the application and the protection of the significance are to retain the Victorian subdivision and key period significant (contributory) development, retain one-storey workers cottages, retain the scale, maintain building alignment, retain form, retain finishes and details and encourage reinterpretation of Victorian subdivision. The statement makes specific reference to particular items in the physical description on a street by street basis including identification of detracting items and rates each street. Chisholm Street is described as "Terraces and rear Flinders Street properties. Rating A". There is no specific reference to the single storey weatherboard cottage the subject of the application.
10. Clause 6.21 of the LEP requires consideration of design excellence, a matter in contention. The relevant provisions of this clause are as follows: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
11. Clause 7.4 of the LEP applies to car parking for residential development with a maximum of two spaces for each dwelling having more than two bedrooms and one space for each other dwelling. No parking is proposed as part of the application and therefore the proposal does no breach this control.
12. The DCP applies to the site which is located within the Flinders locality. The locality statement for the area is as follows: "This locality is primarily residential area contained by the major arteries of Oxford, Flinders and South Dowling Streets. Flinders is to remain a quiet and secluded low-scale residential area. The area is to continue to be characterised by its green, leafy quality, particularly by its unique planted laneways. Views to surrounding areas are to be retained from within the neighbourhood. Glimpses of taller buildings in the distance are to continue over the predominantly two storey roofscape. New development will mainly occur as small lot infill. This new development is to respond to the detail and character of the existing terraces within the area, particularly those of heritage significance."
13. The relevant principles for the Flinders locality are that development must achieve and satisfy the outcomes expressed in the character statement and the supporting principles and is to respond to and complement heritage items and contributing buildings within heritage conservation areas including streetscapes and lanes and maintain the residential character of the locality and the unique landscape character of the neighbourhood.
14. Section 3.8 of the DCP applies to subdivision. The objectives of these controls relevant to the proposal are to ensure lot sizes and street frontages can support their desired building type and use and achieve internal space that is appropriate to its function and to allow for the interpretation of an original historically significant subdivision pattern in new development.
15. Clause 3.8.2 of the DCP applies to subdivision affecting heritage items or in heritage conservation areas and states that subdivision is not to occur where the original subdivision pattern is still in evidence and contributes to the significance of the heritage item or heritage conservation area. Applications for subdivision are to demonstrate that the setting of the contributory building on the site is not compromised and the relationship between the contributory building and associated features such as landscaping, trees, fences and outbuildings is retained.
16. Heritage provisions are contained in Section 3.9 of the DCP. The objectives are ensuring that heritage significance is considered for heritage conservation areas and enhances the character and heritage significance of those areas while ensuring that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.
17. Clause 3.9.1 of the DCP calls for a heritage impact statement to be submitted as part of the statement of environmental effects for development applications. Subclause (2) states that the consent authority may not grant consent to a development application that proposes substantial demolition or major alterations to a building older than 50 years until it has considered a heritage impact statement, so as to enable it to fully consider the heritage significance of the building and the impact that the proposed development has on at the building and its setting. The measures to be included in the heritage impact statement (HIS) are detailed in subclause (4) and, where the development application proposes the full demolition of a contributory building within a heritage conservation area the heritage impact statement is to demonstrate why the building is not capable of retention or reuse; include a statement from a quantity surveyor comparing the cost of demolition to the cost of retention if the demolition is recommended primarily on economic grounds; include a report by a suitably qualified structural engineer if the demolition is proposed on the basis of poor structural condition and include a pest inspection report if the building is a weatherboard building.
18. The HIS has addressed those matters and justifies demolition of the cottage however the Council does not accept the conclusions drawn.
19. Clause 3.9.6 of the DCP deals specifically with heritage conservation areas and requires that new development must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. The development is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to topography and landscape; views to from the site; significant subdivision patterns and layout and front and side setbacks, the type, siting, form, height, bulk, scale, materials and details of adjoining or nearby contributed buildings; the interface between the public domain and building alignment and property boundaries; and colour schemes that have a hue and tonal relationship with traditional colours schemes.
20. Clause 3.9.7 of the DCP applies to contributory buildings which are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances.
21. Clause 3.10.2 of the DCP applies to weatherboard buildings older than 50 years which are deemed as important because they are among the oldest buildings in the city and demonstrate particular aspects of 19th and early 20th century life. They contribute to the character of the streets in which they are located and to the diversity of housing stock and are now rare in the city. Weatherboard buildings are typically modest in scale and simple in design. Where consent is sought to demolish a weatherboard building, the Applicant needs to demonstrate, with independent documentary evidence, that the building has little significance or that retention of the building is no longer viable for either structural or pest management reasons.
22. Section 4 of the DCP deals with various development types and the only provision relevant to the contentions in the case is clause 4.1.3.1 Solar access. The relevant provisions require development sites and neighbouring buildings achieve a minimum of two hours direct sunlight between 9:00 AM and 3:00 PM on 21 June onto at least one square metre of living room windows and at least 50% of the minimum amount of private open space. A minimum area of 16 square metres with a minimum dimension of three metres is required at ground level and private open space is to be directly accessible from the living area of the dwelling and capable of serving as an extension to that area.

The issues

1. The contentions in the case have been narrowed from that detailed in the Council's Amended Statement of Facts and Contentions filed on 25 May 2020. The issues that remain are whether the Applicant has satisfactorily demonstrated sufficient justification for demolition of the cottage; whether the development will adversely impact the heritage conservation area; whether adequate solar access is provided to each of the dwellings and the associated private open space areas; whether the width of the proposed allotments is sufficient to provide appropriate levels of residential amenity and usability and whether the proposed development exhibits design excellence and is in the public interest.

The evidence

1. Expert evidence was heard from: Applicant Council Structural Engineering Mr S Branch Mr Been Planning Mr P Bull Ms N Ridler Urban Design Mr Z Kovacs Ms J Pressick Heritage Mr Z Kovacs Mr J Poulton

1. Individual reports were also tendered from Mr Branch (Exhibit C), Mr S Day, a Quantity Surveyor (Exhibit D), a Fabric Analysis by Mr Kovacs (Exhibit E), a further structural engineering report by Mr J Natoli (Exhibit F), a Heritage peer review report by Mr J Phillips (Exhibit G) and an arboricultural impact assessment report prepared by Mr G Tesoriero (Exhibit H). Apart from Mr Branch and Mr Kovacs, none of these experts were required for cross examination.
2. A Joint Pest Report was prepared by Mr G Hawes and Mr D Purss (exhibit 6). That report is based on a report entitled Maintenance Pest Report prepared by Childs Property Inspections Pty Ltd and an inspection carried out by Mr Purss. The experts, having regard to that report, concluded that the termite damage evident at the site is historical and that there is currently no termite activity on the property.
3. The Court notes that a number of areas were not inspected including cavity walls, concealed frame timbers, eaves, flat roofs, fully enclosed patio sub floors, soil concealed by concrete floors, fireplace hearths, wall linings, landscaping, rubbish, floor coverings, furniture, pictures, appliances, stored items, insulation, and hollow blocks and posts. These experts were not required for cross examination.
4. The Council does not press Contention 5 (tree management) and therefore no evidence was heard from Mr Tesoriero.
5. Mr Day prepared a report with the following scope: preparation of a construction budget for demolition of the existing building and preparation of a construction budget for various rectification works, which had been identified within Mr Branch's report Exhibit C. His report also referred to Mr Kovacs' heritage impact assessment, the original statement of environmental effects and architectural drawings lodged with the application, a site survey and the Sydney Water house drainage diagram. Mr Day concludes that it would cost $78,330 for demolition and $344,907 for repair and remediation works. The Council did not put on any evidence from a Quantity Surveyor, having had the report peer reviewed in January 2020.

Structural engineers

1. The joint report has been prepared on the basis of Mr Branch's Expert Report in Chief, Exhibit C. Section 3.1 of that report outlines structural deficiencies of the existing cottage in relation to the requirements of the Building Code of Australia (BCA). The experts agree that the size and detailing of existing timber roof framing does not meet current standards and the existing termite damage requires rectification and, that this work could be undertaken within the existing roof space if conservation of the existing shingle roofing was deemed necessary, noting that this would add to the costs involved.
2. It was agreed no formal lateral bracing elements are visible in the roof, ceiling and walls and introduction of some additional bracing elements would be required to comply with current standards. The roof bracing could be installed within the roof space however there is a risk that some original wall linings may be lost to allow installation of the wall bracing.
3. Termite protection is not in accordance with AS 3660.2:2017 as there are no barriers to termite activity. Inadequate access is available to allow inspection with minimal ground clearance and lack of ventilation of the underfloor space. The experts agree this presents an ongoing risk to the integrity of the structure and to rectify these deficiencies requires excavation under the floor, construction of retaining walls and modification of footings which would require removal and replacement of the existing floor and some external paving.
4. Damp proofing and weather proofing is not in accordance with Part 2.2 of the National Construction Code 2019 (NCC 2019) and they agree that the form of construction of the main section of the cottage and the laundry/bathroom extension promotes damp conditions and potential damage to internal linings. They agree that works nominated for termite protection would assist in addressing this issue within the main section of the cottage however these issues in the laundry/bathroom extension could not be reasonably addressed without demolition and reconstruction.
5. Fire safety is not in accordance with Part 2.3 of NCC 2019. Mr Been stated that the requirement for any BCA upgrade to address these deficiencies would be a matter determined by the approving authority given the age of the construction and the sequence of construction of the adjacent terraces.
6. Section 3.2 of Exhibit C outlines remediation or rectification works to achieve structural safety. Mr Been notes that these works were nominated to comply with current standards and not necessarily to address immediate structural safety concerns. They agree that the works relating to side boundaries are required to address fire safety. Mr Branch says the shingles show severe white ant damage with Mr Been acknowledging the damage to battens but says he could not determine whether the shingles have sustained similar damage. He says it would be unusual to reuse shingles if they are removed as they do not have a long lifespan.
7. Mr Been noted that the works to achieve compliance with the BCA and Council regulations would result in loss of heritage fabric however the built form could be retained.
8. In response to a question from the Court regarding the extent of works required to ensure the building was made structurally adequate, Mr Branch says the roof structure would require replacement as the rafters were of inadequate size to support dead loads and the flooring required replacement because it was important to guarantee termite protection. Mr Been was generally in agreeance, saying it was necessary to repair damage to timber framing from termites and decay and strengthening in addition to bring the timber framing up to current standards. Both works would require removal of heritage elements to be done. They could not assess whether any of what remains of the original fabric could be reused in these works.

Heritage

1. The major difference between the heritage experts is whether or not demolition should be allowed. Setting this issue aside, they agreed the proposed new terrace pair satisfies the objectives of Section 3.9 of the DCP and the terrace pair will not be detrimental to the character of and heritage significance of the conservation area. They agree the width of the terrace pair is consistent with the width of the adjoining terraces and the pair is complementary to the character of the conservation area and responsive to adjoining contributory buildings.
2. Because the site is no longer an original subdivision and the proposed frontage widths matched those adjoining, the proposed subdivision would not be detrimental to the development pattern of the conservation area. They consider the proposed replacement dwellings to be sympathetic and suitable in the context of the conservation area and therefore in the public interest.
3. Mr Kovacs maintains that the cultural significance of the cottage is low, specifically for weatherboard buildings, noting that a number of recent heritage surveys conducted in the area did not identify the property as having any significance. Mr Poulton says this fact is irrelevant and that in a report commissioned by the Council by Mr Oultram, entitled Heritage Assessment, the cottage reaches the threshold for individual heritage listing. He relied on that report in preparing his evidence. The Court notes that Mr Oultram's report forms the basis of the Council's decision to prepare the planning proposal to include the site as a heritage item under the provisions of its LEP. The report is included at Tab 30 in the Council's Bundle of Documents, Exhibit 2. Its independence has been brought into question with documentation that form Exhibit N and the Court notes that the conclusions of significance were originally made without an inspection of the interior of the building. That inspection has since been carried out and Mr Oultram did not change his conclusion.
4. Mr Kovacs disagrees with the assessment by Mr Oultram and says the threshold for local significance is not met. That is because James Parker was an ordinary individual without cultural importance. The fact that the property was part of the Chisholm Estate Subdivision has no substance. On that basis, nearly every allotment in the locality has historic value as the original subdivision pattern is largely intact. That estate is not characterised by weatherboard cottages and the fact that this cottage is the one of the last ones within the estate boundaries is incidental and accidental lacking historic value.
5. He also debates whether the cottage is rare. Whilst accepting it is the only single storey cottage in the street and even within the area bounded by Oxford, Flinders and South Dowling Streets there are over 300 surviving weatherboard cottages in the former South Sydney municipality and many of them are in better condition, with greater intactness, in more prominent locations and the key cottages have already been heritage listed. A number of similar cottages in vicinity of the site were identified during the hearing, some also not known to the Council's experts.
6. Mr Kovacs says the cottage does retain its primary form, but form alone, decoupled from original fabric, and therefore cannot represent cultural value on its own. In the case the exterior detail that remains is limited to a few weatherboards with all other potentially culturally important and contributory elements such as windows, front door and verandah all lost without any record.
7. Mr Poulton agreed that there were other weatherboard cottages in the Paddington Heritage Conservation Area but maintained there are not many and therefore this form of development is rare.
8. Mr Kovacs cites the Burra Charter and says because there is no evidence of the earlier state of the building, restoration and reconstruction would not be appropriate and therefore culturally meaningful restoration of the cottage is impossible. Only renovation is possible, but that generates no conservation benefit as the building would have the same form, but nobody would consider it having heritage significance because it lacks a historical dimension. The renovations conducted in 1992 saw most of the fabric being replaced and historical continuity lost. At that point, or perhaps prior, he says the cottage ceased to be restorable and lost most of its cultural significance. Neither expert knew of the precise extent of heritage fabric that was intact at the time the 1992 renovations were carried out.
9. While he does not dispute the cottage was built at an early date, he submits the 1992 renovations were not executed in accordance with the Burra Charter principles and removed fabric was not replicated. The extent of loss resulted in diminishing the significance of the early construction date as most of the fabric was replaced with contemporary elements. As a result, the 1992 renovations diminished the cultural value of the cottage to a very low level where it falls below the threshold for heritage listing.
10. Mr Poulton disagrees and supports Mr Oultram's findings that the building has heritage significance at a local level for its historic rarity and representation values.
11. The cottage represents the earliest development of the Chisholm Estate and is one of the oldest buildings in the conservation area representing aspects of mid to late 19th century life. It contributes to the character of the street and diversity of housing stock that was prevalent in the area at the time and was built in during a period when timber was readily available and used for construction, particularly for cottages, being cheaper and easier to build than masonry buildings.
12. He says it is rare because as a single storey, weatherboard cottage type, it is uncommon in an area that largely comprised two-storey masonry terraces. In the Rygate and West Plan of 1888, that plan shows only five one-storey timber cottages in the area and the subject cottage is now the only weatherboard house in the estate subdivision and dates from the earliest building period for the area. It is also one of only two surviving cottages in the Paddington Urban Conservation Area, the other one being at 5 Albion Ave which is also identified as being contributory.
13. It is representative because the house is an example of a mid-Victorian weatherboard cottage that retains its early form and streetscape presentation. It retains a two room arrangement to the front with central corridor and although it has been altered with the loss of much of its original fabric it is considered to remain a representative example of the type.
14. For that reason, he considers the cottage meets the threshold for heritage listing.
15. Mr Kovacs has regard to the structural engineers, quantity surveyor and pest control reports and says that because the cottage cannot be restored under the Burra Charter principles it can only be renovated, which lacks conservation benefits. As it is, the site has poor amenity with an exposed front yard and small rear yard. The cottage is not insulated, lacks vermin and weatherproofing and is not fire rated. The existing bedrooms are very small and there is poor access to natural light and ventilation. Where the cultural significance is so low that restoration cannot be achieved, retention resulting in the continued maintenance of poor amenity is an unreasonable proposition.
16. Mr Poulton says that the cottage is currently tenanted, and it has not been adequately demonstrated why it cannot be retained. He acknowledges the scope for additions is limited, but the rear bathroom, being a later addition, could be demolished for a more sympathetically designed replacement.
17. Mr Kovacs estimates the costs of reconstruction works including rewiring, new trims, tiling and waterproofing in the bathroom, repainting, new kitchen joinery and new light and sanitary fixtures would add around $100,000 to the agreed rectification costs estimated in Exhibit D. Therefore, he says that the total cost would be in the vicinity of $500,000 compared to the proposed cost of $653,689 for the new development yielding two terraces. He considers this is an unreasonable burden and does not satisfy Planning Principle 5 established in Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou).
18. Mr Pouton says justification on economic grounds in not conclusive and in view of the significance of the building, its retention is not considered to be unreasonable.
19. There is also disagreement between these experts on what is the extent of works required to address structural issues or BCA compliance and whether if is necessary or appropriate.

Planning and Urban Design

1. These experts refer to the Heritage experts for consideration of the provisions of cl 5.10(4) of the LEP other than for process and statutory planning considerations.
2. Mr Bull says consideration has to be given to "the effect of the proposed development on the heritage significance of the area concerned". The conservation area has local significance and the LEP requires an assessment of the demolition of the existing building, the new building and the land subdivision in respect to the significance of the conservation area in this case. The DCP test for demolition is specific to weatherboard buildings, either for heritage or physical viability. He says in this instance, heritage significance is how the existing and new buildings affect the significance of the conservation area, or a structure that is no longer viable structurally or on pest management grounds may be demolished regardless of its significance. He says that it is not only the demolition aspect of the proposal that must be considered, the assessment also requires consideration of the replacement building. He concludes that when properly assessed against the relevant heritage provisions the proposal is acceptable.
3. Ms Ridler says that the building is identified as a contributory building under the DCP and the DCP requires that where a development application proposes substantial demolition or major alterations to a building older than 50 years consideration of an heritage impact statement must be given. Section 3.9.7(1) of the DCP states that "contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances".
4. As demonstrated in Helou although the replacement building may present a satisfactory outcome in relation to streetscape or urban design this does not address heritage impacts as the original heritage element has been removed. It is therefore appropriate for the assessment to have considered the impact of the demolition of the existing dwelling in the context of its classification as a contributory item within a conservation area regardless of the appropriateness of the replacement dwelling.
5. She says the retention of the existing dwelling is consistent with the objectives of the R1 zone whereas Mr Bull says it is not.
6. All experts agree that on the proviso that both lots are in the same ownership and there is no boundary fence dividing the lots at the rear, the current proposal provides for compliant solar access to Lot B (the southern lot) and Lot A (the northern dwelling) fails the DCP test. The Council's experts do not consider this to be a realistic arrangement in perpetuity given the proposed subdivision. When a 1.8m high dividing fence is provided, both lots fail the test for solar access that being two hours direct solar access to 8m2 of private open space between 9:00 AM and 3:00 PM on June 21.
7. Mr Bull says that the private open space for each dwelling includes the front first floor balconies and that 2.85sqm of this space will receive the required 2 hours sun in mid-winter from 1:00 to 3:00 PM. That is comparable to the solar access available to the existing and adjoining historic dwellings and reasonable because the new dwellings are designed with large rear windows that allow for maximum solar penetration into the building. They will have better solar access into each dwelling than the existing dwelling and open space that is more rationally arranged for solar amenity. Mr Kovacs shares similar views. The Council's experts say the inclusion of the front balconies does not meet the intent of the DCP controls which are that private open spaces to be directly accessible from the living area of the dwelling and capable of serving as an extension of that living area. The balconies would fail that requirement.
8. A suggested translucent fence was proposed during the hearing to address the solar access requirement. That fence would be maximum of 1800m high and constructed of framed translucent glass on a masonry or steel hob. Ms Ridler conceded this may be a viable option however did not have sufficient details to assess the impact.
9. All experts agree that the BCA contains no minimum room standards and the dwellings are able to comply with the relevant provisions for health and amenity as class 1A buildings. They also agree the site is flanked by two terrace groups, a group of eight to the west and a group of three to the east and that the two flanking groups are adequate to establish a context for the matter in dispute, which is the adequacy in width of the proposed terraces. They agree the proposed clear internal width of each dwelling is 2795mm which excludes render and the clear internal width of adjoining terraces are of similar widths, with 6 of the 8 being narrower than each of the proposed dwellings. Mr Bull cites objective (i) in section 3.8 of the DCP which is to ensure lot sizes and street frontages can support their desired building type and use and achieve internal spaces appropriate to their function.
10. He concludes the width is adequate, fit for purposed based on land use, building type and amenity grounds. Mr Kovacs concurs.
11. Ms Ridler and Ms Pressick note s 3.8.2(2)(a) of the DCP requires applicants for subdivision to demonstrate that the setting of the contributory building on the site is not compromised. In this proposal, they say it is entirely compromised by its demolition, in order to achieve subdivision. They do not consider the existing building to be substandard, noting in April 2019 it was advertised for rent at $740 per week. They say the existing building could readily be retained, updated and enlarged with an attic addition and potential ground floor addition, reconfiguration at the rear and this would improve the existing building, rectifying the issues identified by Mr Bull.
12. Mr Kovacs advised that the Applicant had seriously considered the attic option however it was not viable due to the reduced floor to ceiling height, the need to replace the ceiling joists and the lack of head height to meet the BCA requirements for habitable rooms. There was insufficient height to contain any rooms within the existing roof structure.
13. Mr Bull confirmed this view referring to the survey of the property that identifies the ridge height. When asked about an option for a modest 1.2m extension to the rear of the main building Mr Bull said it would not be worthwhile as it would not sufficiently increase the living areas of the dwelling. Mr Kovacs says that such a modest extension would not turn the existing dwelling into a reasonable single dwelling however Mr Poulton says that it would be possible to add a third bedroom but not achieve the DCP open space requirement.
14. Clause 6.21 of the LEP requires exhibition of design excellence. The experts agree that the amended plans address landscape design in accordance with subcl 6.21(4)(d)(xiii) of the LEP and the amended architectural plans resolve the concerns about materials and detailing.
15. Mr Bull says the urban design, architecture and heritage impacts of the proposal are appropriate to context, the new dwellings are well mannered infill buildings that seek to seamlessly fit into the existing historic streetscape. Mr Kovacs says the proposal exhibits design excellence because the site is relatively small, planning is efficient, and circulation spaces are kept to a minimum. The internal planning is efficient and the proposal is superior in terms of its environmental impacts by providing better light and ventilation through direct and unimpeded cross-flows, better access to natural light and better acoustic privacy.
16. Ms Ridler and Ms Pressick disagree and says the proposal fails to exhibit design excellence with regard to environmental impacts, such as solar access.

Conclusion and findings

1. Having regard to the evidence and the relevant planning controls, I am not satisfied that the existing cottage has sufficient heritage significance that would prevent consent being granted to allow its demolition. That is because of the current structural condition of the building but in particular, the lack of original fabric that remains.
2. The terms of clause 5.10(4) of the LEP are the primary focus to assessment of this issue together with the relevant heritage provisions contained within the DCP. My consideration is also guided by the NSW Heritage Office's publication Assessing Heritage Significance and the evidence before me. On that basis, I conclude that because there is little of the original fabric of the building remaining and, to maintain the building to current standards, much of that fabric would either be damaged or lost, demolition of the cottage and construction of the two new terrace type dwelling houses would not unreasonably effect the heritage significance of the conservation area.
3. Past alterations, be it those carried out in 1992 or prior to that date have removed the majority of original historical fabric. The façade of the building is not original save some of the weatherboards. Whilst the floor plate retains the original layout, the extent of works carried out within the dwelling have not been undertaken in accordance with the provisions of the Burra Charter and are therefore not capable of restoration.
4. It is common ground that the building has sustained extensive termite damage to the original framing and this needs to be replaced. The conditions of the shingles under the new roof sheeting are also, according to the evidence, likely to be incapable of reuse. It is acknowledged that some of the ceiling and wall lining boards may be capable of reuse. Having regard to Mr Kovacs' Fabric Analysis, Exhibit E with the addition of the ceiling boards as original, I concur that there is little original fabric remaining. Mr Poulton did not refute the conclusions of this report and Mr Oultram's report did not assess this issue. The building has been so altered that it no longer provides evidence of its original association or heritage significance. Similarly, the experts agree that the lot is not an original allotment.
5. Whilst I accept that weatherboard cottages are rare in the area, there is evidence that others remain, many of which are protected by heritage orders and in better condition than this cottage. The Council's decision to list the property as a heritage item is noted however I do not consider, having regard to the evidence in this case, preferring the heritage evidence of the Applicant, that this decision is one that would prevent consent being granted.
6. Having regard to the evidence, I do not consider that the demolition of the building will have an adverse impact on the heritage significance of the conservation area. The building has, through works undertaken in either 1992 or prior, lost its significance and whilst it forms part of the streetscape, its contribution to the conservation area is not such that its demolition will adversely impact that streetscape. It is common ground that the cottage does not stand on its original allotment.
7. The Applicant has satisfactorily demonstrated as required by the DCP, that, due to the fact the structure is no longer viable structurally and on a pest management basis, demolition is appropriate. The engineering experts agree that extensive restorative works are required to bring the building up to standard and that more of the remaining fabric would be impacted as a result of that work. Whilst it is possible to carry out these works, the costs of the work, not refuted by the Council is onerous and does not result in a satisfactory heritage outcome.
8. The terms of clause 3.9.1(4) of the DCP requires where the development application proposes the full demolition of a contributory building within a heritage conservation area demonstration as to why the building is not capable of retention or reuse; include a statement from a quantity surveyor comparing the cost of demolition to the cost of retention if the demolition is recommended primarily on economic grounds; include a report by a suitably qualified structural engineer if the demolition is proposed on the basis of poor structural condition and include a pest inspection report if the building is a weatherboard building. I am satisfied, based on the evidence, that these provisions have been met and approval for demolition can be granted.
9. Prior to the Council commencing work to list the site as a heritage item, the cottage was identified as a contributory building. Clause 3.9.7 of the DCP states that contributory buildings have a reasonable to high degree of integrity and date from a significant historical period and are highly intact or are altered yet recognisable and reversible. I do not consider that either circumstance applies as the cottage is not highly intact nor are the alterations that have been carried out reversible in accordance with the principles of the Burra Charter. Given this fact and the structural issues associated with the building, its demolition is appropriate.
10. Other than the issue of solar access and room sizes, the experts agree that the proposed replacement building would be appropriate in design for the conservation area. For these reasons, I consider the proposed new development would not adversely affect the heritage conservation area and the jurisdictional tests in cl 5.10(4) of the LEP are met.
11. I also find that the development is consistent with the objectives of the R1 General Residential Zone.
12. With regard to the provisions of cl 6.21 Design excellence of the LEP, I am satisfied, based on the evidence of Mr Bull and Mr Kovacs, that the design of the proposed new dwellings is appropriate for the intended use as dwelling houses and the room sizes are adequate for their purpose. Whilst the solar access to the rear yards does not strictly comply with the DCP provisions, I am satisfied that adequate amenity is available to these dwelling if the Applicant's condition regarding translucent fencing is imposed. Having regard to the matters listed in cl 6.21(4) of the LEP, I am satisfied that those relevant provisions are met through the design of the development and with the Applicant's suggested fencing conditions, the terms of the clause are met and the development would exhibit design excellence.
13. I note the development is compliant with all relevant development standards and, apart from solar access, the Council does not raise any other areas where the application does not comply with LEP or DCP provisions. There is no minimum allotment size or width and accordingly, as the design of the proposal is considered appropriate, I do not consider there is any reason why consent to the subdivision of the site as proposed should not be granted.
14. The design of the new development would be consistent with the locality statement for the Flinders area. I am also satisfied that the new development has been designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions and complements the existing character whilst not replicating heritage buildings
15. The Council's decision to progress the Planning Proposal is now a mandatory matter for consideration pursuant to the provisions of s 4.15(1)(a)(ii) of the EPA Act. That consideration is in addition to the provisions of cl 5.10(4) of the LEP. The Planning Proposal has been the subject of public consultation and the making of the plan is subject to the approval of the Central Sydney Planning Committee. In the event that the Committee supports the listing of the item, the plan would be forwarded to the Minister to be made. For that reason, it must be given some weight. Despite this fact, in view of my findings in regard to the condition of the building, and the lack of fabric that remains, I do not consider that making of the plan is imminent and therefore is not a reason to refuse consent.
16. For the reasons outlines above, it is appropriate that consent be granted.
17. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2018/591 for demolition of an existing dwelling house, subdivision and construction of 2 x 2 storey terrace dwellings at 46 Chisholm Street, Darlinghurst is approved, subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, K and 1, are returned.

Acting Commissioner of the Court Annexure A (207319, pdf) Plans (5283696, pdf)

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