Onikul & anor v Woollahra Municipal Council

The proposal

1. The proposed development is described as:

• Demolition of the exiting dwelling and wall to the rear yard (part of the common boundary between 58 and 60 John Street);
• Construction of a new dwelling comprising: o Excavation for a basement level to accommodate two vehicles with access from Morton Lane at the rear, storage, service areas and centrally located lift (providing access to all levels); o Ground floor bedrooms, bathrooms, open plan living area at rear (with sun clerestorey windows above), and centrally located courtyard; o First floor bedrooms and bathrooms; the second storey element is located at the John Street frontage;
• Landscaping, including an elevated rear yard and use of the garage roof as a terrace; and
• Side fencing comprising blade walls at the front and rear of the dwelling.

1. The design includes a number of architectural features including two pitched clerestorey elements above the rear single storey portion of the dwelling and "hoods" surrounding the first floor windows on the southern or front façade.

The issues

1. Council's Statement of Facts and Contentions raises the following reasons why the proposal should be refused: 1. Unacceptable loss of a building of high local heritage significance; 2. Adverse impact on the streetscape arising from the proposed elevation and built form (in particular whether the design compliments the predominantly Victorian character of the precinct); 3. Failure to respect the existing stepped front setback; 4. Excessive site coverage and insufficient deep soil landscaping; 5. Excessive rear side walls resulting in adverse impacts on neighbours; 6. Unacceptable bulk and scale; and 7. Adverse impacts on privacy/ overlooking.
2. Council proposes conditions of consent in order to address contentions (3) and (5).
3. In response to council's contentions, the applicant's architect prepared amended plans. The Registrar granted the applicant leave to rely on the amended plans.
4. The matter commenced on site under s 34AA of the Land and Environment Court Act 1979 (the Court Act). The Court and the parties had the benefit of hearing from the owners of the adjoining properties at 56 (Mr Toltz) and 60 (Mr and Mrs Mansell) John Street.
5. Mr Toltz raised general concerns over the loss of a Murcutt house and associated heritage issues. Potential privacy issues were raised however, these were resolved on site.
6. Mr and Mrs Mansell supported Mt Toltz's concerns about the heritage impacts. Their other concerns go to the loss of sunlight to west-facing ground and first floor windows, demolition of the rear western boundary wall and potential detrimental impacts on an adjoining hedge and attached decorative masonry frieze, and the proposed blade wall adjoining their enclosed carport in the front setback.
7. In the light of the contentions raised by council, the Court and the parties viewed the surrounding streetscape and observed the site from Morton Lane at the rear.
8. During the conciliation phase, the parties and their planning experts further refined and resolved most of the outstanding planning matters. However, given the clear difference of opinion expressed by the parties' heritage experts in their joint report, full agreement could not be reached and the conciliation was terminated in accordance with s 34AA(2)(b)(ii) of the Court Act with the parties agreeing to the inclusion of matters discussed during the conciliation.
9. Therefore, the remaining matters to be decided concern the demolition of a contributory item and heritage impacts arising from it, and whether the 'hoods' surrounding the front first floor windows should be set back 500mm to be in line with the front balcony of 56 John Street.

Planning controls

1. Woollahra Local Environmental Plan 2014 (WLEP 2014) is currently in force. However, as the application was made prior to its commencement, the Savings provision in cl. 1.8A WLEP 2014 requires the development application to be assessed under the relevant instrument being Woollahra Local Environmental Plan 1995 (WLEP 1995). Notwithstanding the savings provision, s 79C of the Act requires consideration of any relevant instrument. Specific controls are considered in the discussion of the issues.
2. Similarly, Woollahra Development Control Plan 2015 (WDCP 2015) is now in force however Woollahra Heritage Conservation Area Development Control Plan 2003 (WHCA DCP) is the applicable DCP.

Planning controls

1. The site is located within the West Woollahra Precinct of the Woollahra Heritage Conservation Area (WHCA). Appendix G: West Woollahra Precinct Significant Items map in WHCA DCP shows the site as a 'contributory' item, as are the majority of properties in John Street. Relevantly, the adjoining four properties to the west and the adjoining property to the east are not shown as significant items.
2. The glossary in WHCA DCP defines the terms: Significant item a heritage item listed in Schedule 3 of Woollahra LEP 1995 or a contributory item identified in Part 5 - Schedule of significant items. Contributory item means a building, work, archaeological site, tree or place and its setting, which contributes to the heritage significance of the conservation area. The contributory properties may have historic, aesthetic, social or scientific values but will most typically have historic and/or aesthetic significance including streetscape value.
3. The site retains its listing as a contributory item in WDCP 2015.
4. Relevantly, the stated aim in cl. 2(1)(g) WLEP 1995 is "to conserve the environmental heritage of the area of Woollahra". The heritage objectives pressed by council in cl. 2.2(g) are: (ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas; (iii) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas;
5. Part 4 WLEP 1995 covers heritage provisions. Clause 27 - Development in the vicinity of heritage items, heritage item group, heritage conservation areas, archaeological sites or potential archaeological sites states: The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.
6. Clause 28 (1) prohibits, amongst other things, the demolition of a building or the erection of a building in a heritage conservation area except with the consent of the council. Relevantly, cl. 28 also states: (2) The Council shall not grant consent to an application required by subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. (3) The Council shall not grant consent required by subclause (1) unless it has considered a statement of heritage impact or a conservation plan or both as may be required by the Council.
7. As previously stated, the site is within the West Woollahra Precinct of the Woollahra HCA. Clause 2.1 WHCA DCP summarises this precinct as "characterised by small lots and a variety of generally small-scale cottages and terrace houses".
8. Council presses elements of cl. 2.2 - the significance of the Woollahra Heritage Conservation area. Clause 2.2 states: The HCA has historical, aesthetic, technical and social significance at the local level. The surviving built and natural fabric of the HCA has significance for its ability to demonstrate the important historical phases of the area's development including the development of large estates during the mid-19th century, small-lot residential development in the mid-19th century, retail development of the mid-19th to early 20th centuries, speculative subdivisions of the late-19th century, inter-war consolidation and municipal improvements of the 20th century. In its surviving elements of built fabric, the HCA retains the potential to reveal evidence of ways of life, building and land uses which have changed or disappeared. Such fabric includes: former retail, school and religious buildings that have been converted for other uses, early domestic kitchens and their associated service areas and technology, former stable buildings, outbuildings including early external toilets and garages, 'nightsoil' lanes, paling fences and gates to rear lanes, front fences and gateposts to buildings that have been demolished, bricked-up openings to former doors and first floor loading bays to former industrial and storage buildings. The HCA has high aesthetic significance for its visual complexity derived from: The variety of public and private building types; The variety of significant architectural styles and scales within the range of building types; The complex and varied subdivision pattern; The significant intact and remnant landscape; The municipal parks and small reserves. The HCA contains aesthetically significant items of architectural excellence dating from all the major periods of its development, many designed by eminent architects of their period. The area has social significance for its association with the growth of the heritage conservation movement in Sydney during the 1960s, it was an early example of an area which received recognition by the national Trust and the Australian Heritage Commission through the efforts of the local community.
9. In regards to the processes applying to development within the HCA cl. 2.4 states in part: All applications for development within the HCA will be assessed with regard to the impact of the proposed development on individual buildings, significant characteristics and the overall significance of the HCA. An application for demolition of a building in the HCA will be considered only in conjunction with a proposal for replacement development.
10. Clause 3.1.2 provides the significant characteristics of the West Woollahra Precinct. Those characteristics of particular relevance to the site and its immediate surroundings are:

• A varied scale of consistently Victorian character generated its mix of small to medium sized Victorian houses and different building types, some of which have new uses as shops: [including relevantly] o individual single-storey houses, detached, attached or in small single storey terrace groups. Some of these are very narrow with no setback from the street, while others have front verandahs and gardens. o variously sized groups of two and three storey semi-detached and terrace houses. Generally these houses are built with front verandahs and small front gardens, but some smaller examples are built to the front boundary with cast iron palisade fence to the verandah at the boundary.

1. Clause 3.2.1 considers conservation of significant items and groups. Control C1 for significant items states: C1 Significant items are to be retained and conserved, that is: - Their significant fabric is to be retained - Original principal building forms…are to be retained - No alterations or additions are to be made to the original elevations, details, materials or finishes of the principal building form except to allow for restoration or reconstruction - Original verandahs and balconies are not to be infilled or enclosed - Original room layouts of the principal building forms are to be retained.

Other relevant background material

1. As stated in the opening paragraphs of this judgment, the dwelling at 58 John Street, also known as the Reynolds House, was designed by prominent Australian architect Glenn Murcutt. The following time line and summary may be useful in understanding the relative positions of each of the parties.
2. The Reynolds House is constructed between 1978-1979.
3. In 1980, the Australian Institute of Architects Merit Award (NSW Chapter) is awarded to Glenn Murcutt for the Reynolds House (one of many domestic architectural awards for residential and larger scale works). An extract from the AIA 1980 Awards publication entitled 'A modest profile' states (relevant paragraphs in full): This is a small house in Woollahra, really on the edge of Paddington, in a street of mixed development - terraces, semi-detached and single dwellings. When considering the brief the architect, Glenn Murcutt says, "It was of considerable importance to me that what was developed on our site had to relate strongly to the small house to our west." According to the jury, "This relationship is one of its best characteristics, it does not intrude." Inside the modest profile are two bedrooms……The jury liked the discrete placement of the bathing and storage facilities…. Materials used were face and plastered brick, glass and corrugated iron….the jury found modulated roof lighting had been used to good effect. The jury were critical of, "the somewhat restless treatment in detail of the street elevation, which is inconsistent with the generally restrained character of the building as a whole." Glenn Murcutt strove for context in what he considered a difficult project and the jury found, "The introverted plan layout is disarmingly simple, whilst the general detailing and rear elevation is a study in refinement and restraint".
4. In 2002 Glenn Murcutt is awarded the prestigious international Pritzker Architecture Prize; the Reynolds House is not one of the 'selected' works featured in the award.
5. 58 John Street is listed as a contributory item in WHCA DCP 2003 as "a late twentieth century house".
6. In 2004, Woollahra Council engages Clive Lucas, Stapleton and Partners, architects and heritage consultants to undertake investigations to determine the cultural significance of a number of properties identified in council's Contemporary Heritage Items Project. The project considered a number of buildings constructed between 1950 and 1980 designed by prominent architects. Three Murcutt designed houses were listed for assessment, including 58 John Street. Where possible, the investigations included interviewing the architect.
7. The Woollahra 2004 heritage inventory listing for 58 John Street prepared by Clive Lucas Stapleton and Partners includes the following Statement of significance: Exhibiting pavilion planning, corrugated metal roofline, and maximised environmental control, the Reynolds House is a very good, early (1978) example of Late Twentieth Century Modern style recognised at the time of its construction by the RAIA (NSW Chapter).Designed to provide a contemporary expression within a historic streetscape, the house is one of a small group of houses in the Woollahra area designed by Glenn Murcutt, who is one of Australia's most important and influential late 20th Century architects, and who has been internationally acclaimed.
8. The 2004 heritage inventory listing includes these Further comments: The building is a substantial component of a small group of residential designs by the architect, Glenn Murcutt, constructed in the eastern suburbs of Sydney. During the design phase of the Reynolds House, Woollahra Council planners required Murcutt to change the height of the proposed roof so that the new building would not tower over the single storey cottage adjacent, which was later demolished. Murcutt is on record, at the time of the construction of the house, as saying the way the Reynolds House related to the smaller house to the west was of 'considerable importance' for his design of the Reynolds House, and the Jury in the 1980 Merit Award citation said "This relationship is one of its (Reynolds House) best characteristics." (Architecture Australia, Awards Issue, 1980. p 20) Murcutt says that the "Reynolds House achieved certain things in relation to what was there", however, since the single storey cottage to which his design was scaled was demolished, he feels that it has "no relevance any longer". Murcutt is highly critical of the Council for its having allowed the single storey house adjacent to be demolished and replaced with a poorly designed two storey building. Rather than make alterations to the Reynolds House (in light of the changed scale of the building adjacent), Murcutt believes one would have to demolish it and start over again: "I would not be overly fussed if it was demolished and another house built on it, because I think council has buggered it up completely. They made it irrelevant…I would not argue that it would warrant a heritage listing, on the basis that council destroyed it from the beginning, that would be my view."
9. Notwithstanding the architect's opinion, Clive Lucas, Stapleton and Partners recommended 58 John Street be listed as a heritage item in WLEP 1995. The minutes of the Urban Planning Committee meeting of 13 November 2006 recommend the listing of the two other Murcutt designed dwellings as heritage items but defer consideration of 58 John Street.
10. In regards to the development application the subject of this appeal, in August 2014 the applicant's architects, Ms Tina Engelen and Mr Will Fung of CO-AP Collaborative Architecture Practice, contacted Mr Murcutt to discuss the future of the Reynolds House. On 19 August 2014, Mr Murcutt wrote to those architects. The letter, included in the Heritage Impact Statement that accompanied the Class 1 application, briefly discusses the history of the house. Relevant to the applicant's case the letter continues [as written]: Sadly, this house as it stands now, with what work has been done, it is crude, the remainder has been all but successfully, ruined!! My view is that there can only be two courses available. The first of course is a complete restoration of this house and the second, because of the extent of demolition, just continue to fully demolish the house. Given that the Woollahra Council officer - who I can identify - said to me verbally, that 'should any new house be applied to replace the adjacent single storey cottage, it would be required to be 'in scale' with that adjacent existing cottage'. Council failed in allowing the demolition of the original single storey cottage and approving a new, two storey house! At the time of designing the Reynolds House, Council's very main issue that drove the design was a scale that had to respond appropriately to the scale of that adjacent cottage………….and of course the rest is clear. Woollahra Council failed to keep its stated objective to me by allowing a two storey house to be constructed, the new house is completely out of scale with the cottage it replaced, rendering the 'Reynolds House' vulnerable to major changes, even demolition! So, for my part, at one level, I could not care less now if the 'Reynolds House' is demolished. It would give me great pleasure if it was restored beautifully……….or alternatively, a wonderful new house was designed by your practice to completely replace the 'Reynolds House' I designed in the mid-70's.
11. The development application was referred to council's Heritage Officer. In the Referral Response report of 11 December 2014, the officer considers the proposal against the relevant controls and concludes that 'Demolition of the existing building would have no adverse impact to the significance of the Woollahra Heritage Conservation area and is supported'. The officer's reasons include the extensive modifications to the building which in her opinion have diminished its value as 'a representative example of the Late Twentieth Century Modern style, an important example of the work of Glenn Murcutt, or a successful example of context driven contemporary infill development.' In the officer's view, the building is no longer considered to be a contributory item. Council's heritage officer recommends amendments to the proposed replacement dwelling to make it more compatible with nearby development.
12. In response to the heritage officer's comments, amended plans were prepared and referred back for further comment. The final recommendation in the Re-referral Response report dated 4 February 2015 is that subject to conditions, including setting the building back so that it does not project beyond the main front wall of 56 John Street, and archival recording of the property, the application is generally acceptable. The report is essentially the same as the initial referral response however the officer states that 'As the building is not considered to contribute to the aesthetic or historical significance of the Woollahra HCA, the planning principles established by Helou v Strathfield are not considered relevant'.
13. The Development Application Assessment Report to council's Development Control Committee, dated 30 March 2015 and prepared by council's planner, concurs with the heritage officer's comments. In recommending conditional approval of the proposed development, the report states in part 'It is considered that the infill building at 58 John Street is now out of context with the streetscape and surrounded by non-contributory two storey dwelling-houses.' Further, in reference to the Planning Principle on the demolition of contributory items published in Helou v Strathfield Council [2006] NSWLEC 66, the report states: The premise behind the application of the planning principle is that the existing building must contribute and reinforce the significance of the heritage conservation area. As discussed above, Council's Planning and Heritage Officers consider the existing dwelling-house at 58 John Street does not contribute to the heritage significance of the heritage conservation area and therefore it is open to Council to permit the demolition of the dwelling-house without the assessment under the planning principle.
14. Section 5 of the Development Application Assessment Report describes the former single storey dwelling at 56 John Street as a contributory item.
15. Council refused the development application on 13 April 2015.
16. In June 2015, the Australian Institute of Architects wrote to Woollahra Council supporting council's decision not to grant consent to the demolition of the dwelling. The letter cites Mr Murcutt's numerous awards and considers that the letter Mr Murcutt wrote to the applicant's architects (see [39]) indicates his preference for the restoration of the dwelling.

Contention and expert opinion

1. Council's contention (1) states: The proposed loss of the existing contributory item (as identified in Woollahra Heritage Conservation Area Development Control Plan 2003 (WHCADCP) is unacceptable as it would result in the loss of a building of high local heritage significance. Particulars The building is an important example of the work of the internationally acclaimed architect Glenn Murcutt, the only Australian architect ever to win the Pritzker Prize. It is recognisably a Murcutt design. The building is recognised, and was awarded, for its architectural merit by the Australian Institute of Architects. The existing building, by virtue of its age, scale, details and design style is consistent with contemporary infill development and is consistent with the heritage conservation area. Woollahra Local Environmental Plan 1995 Clause 2(2)(g)(iii) seeks to encourage the restoration or reconstruction of buildings or works which are heritage items and works that contribute to the character of heritage conservation areas. The existing building contributes to the character of the area, is listed as a contributory item and is capable of restoration/reconstruction.
2. The parties' heritage experts, Mr Stephen Davies for the applicant and Mr David Logan for the council, prepared a joint report and gave oral evidence.
3. As stated in the joint report and for the reasons he outlines in it, Mr Logan is firmly of the opinion that "the property continues to make an important contribution to the historic and aesthetic value of the conservation area. It remains a listed contributory item as an (important) example of a late 20th century house. Therefore, on these grounds alone, demolition would be unacceptable as it would be inconsistent with the Council's clearly stated heritage objectives and planning controls for this area." In Mr Logan's view, the house is worthy of listing as a local heritage item given Mr Murcutt's status as an internationally acclaimed and highly awarded architect. In oral evidence, Mr Logan accepted that contributory items can be demolished under the LEP however, the test is high and the starting point is that the item has been appropriately listed in the first place.
4. In providing the reasons for his opinion, Mr Logan maintains that the dwelling is consistent with one of the descriptors of the Woollahra HCA in that it is an example of an aesthetically significant item of architectural excellence dating from a major period of development and designed by an eminent architect of their period (cl. 2.2 WHCA WDCP at [27] of this judgment). He considers that as the dwelling was listed as a contributory item in 2003 after the cottage to the west had been demolished, its contributory status was not determined on the basis of its relationship to, nor dependent on, that former dwelling. In his view, by definition, demolition of a contributory item will diminish the significance of the HCA.
5. In considering the listing as a contributory item, Mr Logan identifies three possible reasons for its listing: possibly influenced by the 1980 Merit Award; it is a work of a prominent Australian architect; or because it was judged by those identifying contributory items as an outstanding contemporary building that fits in well with its streetscape context.
6. Mr Logan considers that despite the modifications to the front façade, the dwelling retains its streetscape appearance and maintains its relationship to the single storey cottage and contributory item at 62 John Street. In his opinion, the Reynolds House contribution is primarily to the streetscape. Mr Logan maintains that demolition of the dwelling would adversely affect the relationship with the item at 62 and further, would adversely affect the character and heritage significance of the conservation area and thus not conserve the environmental heritage of Woollahra. While Mr Logan accepts that the Reynolds House does not relate to any of the significant characteristics of the West Woollahra Precinct of the WHCA, in his opinion it does not diminish its value as a contributory item.
7. Mr Logan cites the Planning Principle on contributory items published in Helou v Strathfield Council which he says provides strong guidance on the need to retain such items other than in circumstances where an item is so damaged that requiring its retention would be unreasonable. In his opinion, the room layout and structure and form of the house remain intact and its streetscape appearance is largely unchanged and therefore there are no compelling reasons for its demolition. In his view, internal changes could be made without compromising its contribution to the streetscape.
8. Mr Logan concludes his contribution to the joint report by stating: The key issue in these proceedings is not whether the Reynolds House is one of Glenn Murcutt's best works or whether it is worthy of listing as a local or state heritage item. Rather, the issue is that the proposal would result in the demolition of a listed contributory item. Demolition of the dwelling could not be said to 'retain the significance and significant characteristics of the HCA' and would contravene the DCP requirement that 'Significant items are to be retained and conserved'.
9. The applicant's heritage expert, Mr Davies prepared the Heritage Impact Statement (HIS) that accompanied the development application to council.
10. In the HIS Executive Summary, Mr Davies states: The subject site has been extensively altered over time. Murcutt's key design elements have been almost completely altered or removed, and the contextual relationship of the house with its neighbours, which was considered to be one of the most significant characteristics of the design, has been completely lost. Consequently, the house is considered to have lost its design integrity, and the association between the house and the work of Murcutt has been severely compromised.
11. In regards to the proposed development Mr Davies, in the HIS, considers that the proposed new dwelling: will have no impact on the nearest heritage items to the rear of the site and which front Queen Street; will have no more impact than its neighbours on the John Street streetscape as a consequence of height and setbacks; will fit with the mixed character and physical context of the HCA and John Street; and is more consistent with its neighbours in terms of scale, form and mass than the current house.
12. The HIS uses the Heritage Council of NSW 2001 guidelines for "Assessing Heritage Significance". The analysis essentially concludes that on the basis of the extensive modifications, the site is not considered to meet any of the criteria for significance. The HIS also includes the letter from Mr Murcutt to the architects of the proposed dwelling.
13. In the joint report, Mr Davies acknowledges the listing as a contributory item but considers the listing occurred prior to the renovation works. He states that the HIS was prepared and the site assessed on its context, period, style and current condition. While it was originally designed by Glenn Murcutt, Mr Davies considers it was not one of his major or key works and that as it has been substantially altered, in his view the Murcutt connection is not significant enough to warrant its current listing. He also cites and concurs with the findings of the council officers and their recommendation for its removal and replacement.
14. In regards to the WHCA, Mr Davies notes that the original circa 1875 cottage on the site was demolished and the Reynolds House built in its place. As such, he states there are no building elements or structures remaining on the site that have the potential to reveal evidence of any building methods or the way of life that have changed or disappeared. Mr Davies opines that, being a contemporary building, the site does not contribute to the conservation area's identified significance being primarily mid-19th century residential development and early 20th century retail development, inter-war consolidation and municipal improvements (see [27]). Similarly, he considers that as a contemporary building, the house does not retain the potential to reveal ways of life, building and or land uses that have changed or disappeared.
15. Mr Davies notes that WHCA DCP states the HCA contains "aesthetically significant items of architectural excellence…many designed by the eminent architects of their time". While acknowledging Mr Murcutt's achievements, Mr Davies states that the argument that the house should be retained because it was designed by an award winning architect would apply equally to the proposed replacement dwelling which has been designed by an award winning architectural firm. In his view this is consistent with one of the options proffered by Mr Murcutt in his letter to CO-AP (see [39]).
16. With respect to the particulars concerning the house being an important example of Murcutt's work and the subject of an Australian Institute of Architects Merit Award, Mr Davies reiterates the modifications to the dwelling and the contextual changes that have occurred since the award. He also notes that although Clive Lucas, Stapleton and Partners recommended its heritage listing, the decision was deferred and the other two Murcutt designed dwellings were listed. In the joint report, Mr Davies cites the limited number of references to the Reynolds House in a wide range of publications on the work of Glenn Murcutt. While mentioned in 'Leaves of Iron' by Philip Drew, Mr Davies states that this book was written in 1985 and therefore drew on a smaller pool of Murcutt's work. He states that in that book the house is described as an 'everyday house'.
17. In oral evidence, in response to some criticism of his use of the Heritage Council assessment guidelines Mr Davies stated that while an historical approach underpins the assessment process in those guidelines, they are still somewhat applicable to contemporary items and provide a process of determining whether something is worthy of listing. He restated his findings that the site has only incidental historical significance, is associated with Glenn Murcutt but has been substantially altered and has lost its design integrity, has little research potential especially as there is an archival record and the plans are in the State Library, and it is not a rare example of Murcutt's work.
18. Mr Davies maintained his opinion that, in essence, there is no heritage basis for the retention of the dwelling.

Submissions

1. Mr Hemmings for the applicants contends that the starting point must be WLEP which permits demolition of a contributory item and which triggers the consideration of the appropriateness of demolition. WHCA DCP at cl. 2.4 requires consideration of the replacement building when demolition of a building within the HCA is proposed. In this case, he argues that the proposed new dwelling demonstrates good architecture, respects adjoining and nearby buildings as well as the streetscape and lane at the rear, successfully resolves a difficult site, and provides the universal access required by the applicants.
2. In regards to the significant difference in opinion between the heritage experts, Mr Hemmings asserts that Mr Logan's starting point is the DCP, in particular his reliance on control C1 in cl. 3.2.1 that 'significant items are to be retained and conserved'. Mr Hemmings maintains that if this is to be read that contributory items must be retained, this is at odds with the LEP that permits demolition. He cites s 74C(5)(b) which states that "A provision of a development control plan (whenever made) has no effect to the extent that it is inconsistent or incompatible with a provision of any such [environmental planning] instrument".
3. Mr Hemmings contends that the process for determining the appropriateness of demolition is to first establish the significant characteristics of the HCA, then consider how the item contributes to the HCA, determine the impacts of demolition on the HCA and then finally answer the question. These are the starting questions asked in the Planning Principle in Helou. Mr Hemmings notes that WLEP says nothing about contributory items. WHCA DCP at cl. 2.2 identifies the higher or broader characteristics of the Woollahra HCA then the focus is on precincts. In regards to the characteristics of the West Woollahra precinct, he contends that the Reynolds House ticks no boxes and therefore its demolition will have no deleterious impacts of the character of the precinct.
4. With respect to the listing of the building as a contributory item, Mr Hemmings maintains there is no conclusive evidence as to the reasons for its listing but Mr Logan's hypotheses (see [51]) are reasonable. However, given the timing of the Pritzker Prize in 2002 and the international recognition of Glenn Murcutt, Mr Hemmings suggests that the 2003 listing of all three Murcutt designed dwellings in the Woollahra local government area is not surprising. This suggests that the listing is because of the architect and not because of its contribution to the character of the precinct. Mr Hemmings argues that this is significant because of what Mr Murcutt says of his own work in the letter written to CO-AP and in his interview with Clive Lucas, Stapleton and Partners.
5. Apart from what he contends are the significant alterations to the building and its loss of context, Mr Hemmings notes the AIA jury's comment about the 'restless treatment' of the John Street façade; reasons he says for the now limited contribution the Reynolds House makes to the HCA in general and the West Woollahra Precinct in particular.
6. In conclusion, Mr Hemmings submits that when tested against the necessary criteria and given the reasons put forward by Mr Davies and council staff, there are no heritage grounds on which to refuse the development application.
7. Mr Flannigan for the council contends that Mr Davies' use of the Heritage Council assessment guidelines in the HIS, given their focus on historical items and events, set the bar too high and pre-empted his findings. He maintains that the assessment process should have been modified to accommodate more contemporary architecture.
8. With respect to the jury citation and the 'restless treatment' of the front façade, Mr Flannigan asserts that observation does not diminish the value of the Reynolds House as a contributory item. Similarly, in regards to Mr Murcutt's comments, Mr Flannigan considers this simply demonstrates his disappointment in the process and although Murcutt suggests the dwelling could be demolished he also states that it could be restored.
9. Mr Flannigan submits that a better approach, one tailored to the assessment of contemporary items, is the approach taken by Clive Lucas, Stapleton and Partners in the 2004 Heritage Inventory. While the view of the architect was sought, it was not determinative of the recommendation. He notes that at the time of the 2004 inventory, the single storey dwelling at 56 John Street had been demolished and the nearest single storey element was at 62. Mr Flannigan maintains that 62 John Street is still there and that 58 and 62 can be seen in the same view.
10. Mr Flannigan takes issue with Mr Hemmings submissions on Mr Logan's evidence in that Mr Logan's starting point was the control in the DCP for the retention of significant items. Rather, Mr Flannigan considers that what Mr Logan was saying is that the listing is important, the Reynolds House retains its relationship with 62, its presentation to the street is not radically different to its original design, and it is still aesthetically significant. He contends that it remains one of very few Murcutt designed houses in the Woollahra local government area and it merits retention.
11. In regards to the proposal, Mr Flannigan submits that while there current difficulties for the applicants around the steps in the Reynolds House, no proposal has been forthcoming that contemplates modifying the existing dwelling whilst maintaining the essential elements of the Murcutt design.
12. Finally, Mr Flannigan argues that demolition is forever and that while the replacement dwelling is acceptable and has been designed by talented architects, the replacement is not in keeping with the character of small-scale cottages or terrace houses that are a feature of the precinct and for this reason the development application should be refused.

Findings - heritage

1. The Planning Principle on the demolition of a contributory item in a conservation area published in Helou v Strathfield is an appropriate starting point. While council's Statement of Facts and Contentions made no reference to this Planning Principle, it was considered by council's heritage and planning officers in their reports and by Mr Logan.
2. The underlying premise is stated at [44] - [45] of that judgment: 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, 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.
3. The Planning Principle at [46] asks six questions. It is generally accepted that if the answer to question 2 is "no", then there is little value in considering questions 3, 4, and 5. In most circumstances, question 6 usually reflects heritage-related objectives in an LEP or DCP. The questions are: 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? 4. If the building 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? 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 building into a development of that site (that is within the reasonable expectations for use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted? 6. Is the replacement of such quality that it will fit into the conservation area?

What is the significance of the conservation area?

1. The Woollahra Heritage Conservation Area is considered in Part 2 WHCA DCP. Clause 2.1 provides a broad description of the WHCA and includes general statements in regards to: topography, street patterns, the predominantly residential character, a brief description of the six precincts that "retain the architectural detailing, roof forms, materials, fencing and sometimes landscaping of their phase of development within the HCA", the visual and architectural complexity, and, the variety of open space and landscape features.
2. The significance of the WHCA is given in cl. 2.2 WHCA DCP (see [27]). Perhaps the two most relevant paragraphs from that clause are: The surviving built and natural fabric of the HCA has significance for its ability to demonstrate the important historical phases of the area's development including the development of large estates during the mid-19th century, small-lot residential development in the mid-19th century, retail development of the mid-19th to early 20th centuries, speculative subdivisions of the late-19th century, inter-war consolidation and municipal improvements of the 20th century. The HCA contains aesthetically significant items of architectural excellence dating from all the major periods of its development, many designed by eminent architects of their period.
3. Given the extent of the WHCA, council has seen fit to divide the HCA into six delineated and defined precincts - each with its own particular character. The site is in the West Woollahra Precinct (see [29]); the key characteristic is: A varied scale of consistently Victorian character generated by its mix of small-to medium-sized Victorian houses and different building types, some of which have been used as shops.

What contribution does the individual building make to the significance of the conservation area?

1. It is clear from the evidence that the parties' experts disagree as to the contribution of the Reynolds House to the WHCA. Mr Logan argues that despite the internal alterations and, in his view, relatively minor external alterations, the house retains its streetscape appearance and relationship to the single storey element of 62 John Street and is an important example of a late 20th century dwelling designed by a prominent architect. However, Mr Logan accepts that the house does not conform to the significant characteristics of the West Woollahra Precinct. Mr Davies maintains the view that the Reynolds House fits none of the built forms listed in the broad description of WHCA or of the West Woollahra precinct. In his opinion, while designed by a prominent architect, the modifications and the loss of its earlier relationship with the former single storey dwelling at 56 and the subsequent re-development of neighbouring properties negates its contribution to the HCA.
2. While the description of the WHCA includes some references to 20th century architecture, the primary architectural character of the residential areas within the conservation area is essentially Victorian. This is particularly true for the West Woollahra Precinct, the key phrase being "a varied scale of consistently Victorian character" (my emphasis). Although Mr Logan maintained his strongly held opinion that contributory items should be retained, his conclusions in the joint report (see [54]) effectively confer a protected status on such an item in a conservation area. I also accept Mr Hemmings' submissions at [66] on the way in which the provisions of a DCP must be considered.
3. When tested against the characteristics of the WHCA in general, and the West Woollahra Precinct in particular, the Reynolds House does not date from the core period of residential development nor display any of the particular characteristics of that era. Of the 72 contributory items in John Street listed in WHCA DCP, all except two are terrace houses, houses or semi-detached houses of the Victorian era. The remaining two items are a federation house and the site, which is described as a 'late twentieth century house'.
4. This is not to say that contemporary items cannot make a contribution to a heritage conservation area, indeed a substantial proportion of the hearing was spent discussing the Murcutt connection. Both parties made submissions on the opinions expressed by Mr Murcutt in his interview with Clive Lucas, Stapleton and Partners and in his letter to CO-AP. Although the council, through the particulars of Contention 1, places some emphasis on the fact that the dwelling is the work of an internationally acclaimed and awarded architect, the feelings expressed by Mr Murcutt on balance appear to favour the applicant in that, at best, Mr Murcutt seems ambivalent as to what should happen to the house. From the point of view of answering question 2 in Helou, these comments in themselves are not determinative but add some insight into the design intent and the relationship with other elements in the streetscape and thus the HCA.
5. It is clear from the 1980 AIA Merit Award citation (at [33]) and from the interview noted in the 2004 Heritage Inventory (at [38]) that the design of the Reynolds House was strongly influenced by the requirement for it to relate to the former single storey dwelling at 56 John Street. While it appears as though there was, and is, some relationship with the single storey frontage of 62 John Street, the primary context of the Reynolds House was the small house at 56. This has been replaced by the current two storey dwelling. Although it is possible to see 58 and 62 at the same time when viewed from across the street, the garage/ enclosed carport in the front setback of 60 John Street limits the ability to see the relationship between these two single storey buildings when walking on the northern side of the street in either direction. While the inability to see a contributory item from all parts of the public domain should not be a reason in itself for allowing its demolition, in this case, I find that the relationship with the only other nearby single storey element in the street to be tenuous.
6. Apart from the loss of its primary context, the building has been internally stripped of almost everything except the wall frames. The front façade and hence the dwelling's main contribution to the streetscape has been altered. I also note the only element of the dwelling criticised by the jury in the 1980 award citation was the treatment of the street elevation. As noted by Mr Davies at [62] both the AIA award and the Clive Lucas, Stapleton and Partners recommendation pre-date the modifications to the dwelling's façade. As such, this supports the conclusions drawn by council's Planning and Heritage officers that the dwelling is no longer an important example of Glenn Murcutt's work and no longer a representative example of any architectural style. On the evidence before me I concur with this opinion.
7. I agree with Mr Davies, and with council's Heritage and Planning officers, that the dwelling at 58 John Street contributes very little to the significance of the conservation area. Therefore I find the answer to question 2 in Helou is "no" and, as a consequence, there is no need to consider questions 3-5.
8. With respect to question 6, WHCA DCP at cl. 2.4 requires that any application for demolition of a building in the HCA will be considered only in conjunction with a proposal for replacement development. The heritage experts did not jointly address the quality of the proposed dwelling and its place in the HCA. While the planners did not address this specific question, they agreed that as a result of the amended plans, all but one of the matters raised in the Statement of Facts and Contentions have been addressed, and subject to my findings on that matter, the proposed replacement dwelling is appropriate.
9. Clause 28 WLEP 1995 requires that a consent authority shall not grant consent to the demolition of a building in a heritage conservation area unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the conservation area and, if required, it has considered a statement of heritage impact.
10. For the reasons outlined above, I am satisfied that the demolition of the dwelling at 58 John Street and the construction of the proposed replacement dwelling will have little impact on the heritage significance of the heritage conservation area. The proposed new dwelling will have a more consistent relationship with its immediate neighbours and the more contemporary buildings to the west. In regards to the HIS and Mr Flannigan's criticism of Mr Davies use of the Heritage Council assessment guidelines, while the intent of the guidelines is to assess items worthy of State or local significance, they do provide a set of criteria against which an item can be considered. I agree that the result of the application of the guidelines to 58 John Street is unsurprising. However, the HIS is not entirely reliant on the Heritage Council guidelines and addresses the necessary criteria required by WLEP and WHCA DCP. The adequacy or otherwise of the HIA was not raised in council's Statement of Facts and Contentions.
11. Having considered the range of evidence, the relevant controls and the parties' submissions, I find that there are insufficient heritage grounds to refuse the application.

Planning

1. As a consequence of the conciliation, the only planning issue to be determined is whether the 'hoods' surrounding the first floor windows on the front façade should be in alignment with the front of the masonry portico/balcony of 56 John Street.
2. The relevant controls are found in cl. 3.4.3 Building location and built form in WHCA DCP. This clause applies to infill development. The applicable objectives and controls state: O1 To ensure that the siting, levels and front, side and rear building setbacks of additions and infill development continue the established historical pattern of development. C2 Where front setbacks vary [relevantly]: If there is no predominant pattern, new development is to align with the existing adjoining development the most compatible in scale with the proposed development or is to achieve a transitional setback between the properties on either side.
3. The amended plans show these elements projecting approximately 400mm forward of the adjoining portico with the front wall of the proposed dwelling setback about 200mm behind the portico of 56.
4. The parties' planners, Mr Russell Olsson for the Applicant and Mr Anthony Rowan for the council prepared a joint report. At paragraph [19] of their report, the planners agreed that the proposal's first floor window elements and ground floor sun-control device unsatisfactorily project past the alignment of the adjacent portico/balcony, and a better relationship would be created if these elements were aligned with the portico.
5. During the conciliation, and after the joint report, the sun screening device was deleted, the projection of the hoods reduced from about 500mm to 400mm and the form of the hoods substantially modified.
6. In considering the evidence I note in the report to the council's Development Control Committee of 30 March 2015, the council officers recommend a condition, which amongst other things, requires the architectural/ window elements at the first floor to be setback so that they do not protrude beyond the front balcony of 56 John Street. The reason is to achieve a satisfactory streetscape appearance from John Street.

Findings - planning

1. Given the consistent expert opinion of the planners, which is less stringent than the control in cl. 3.4.3, it is reasonable that the window hoods at the upper level be set back in line with the outer edge of the front portico of 56 John Street. This less stringent approach is reasonable given the vary varied setback of dwellings along the northern side of John Street.
2. Therefore Condition of Consent C.1(a) is to be retained.

Other

1. During the site inspection, the owners of the adjoining property at 60 John Street (Mr and Mrs Mansell) raised concerns about the impact of the demolition and subsequent rebuilding of the masonry wall that forms the rear dividing fence between the parties' properties on the hedge growing on their property.
2. Having read the proposed conditions of consent, there is no reference to the protection of these trees. Given the significant privacy benefits these trees afford the owners of 60 John Street, the parties are to prepare a suitable site-specific condition of consent designed to prevent any damage to these trees as a consequence of the proposed development. I note that there is a condition (K.1) that deals with the masonry fresco on that wall.

Conclusions and directions

1. Having considered the relevant matters under s 79C of the Act and with the benefit of the site view and expert evidence, I am satisfied that Development Application 433/2014/1 for the demolition of the existing dwelling and the construction of a new dwelling and associated works at 58 John Street can be approved.
2. However, before this matter can be finalised, the imposition of condition C.1(a) will require some further amendments to the architectural plans and potentially a new BASIX certificate. My findings in [103] also need to be addressed.
3. Final orders will be made in chambers and exhibits returned following compliance with the directions below.

Directions 1. The parties are to advise the Court via ecourt of an agreed timetable for the provision of the material requested in this judgement by 2.00 pm 14 August 2015.

Orders

1. The parties have agreed on the conditions of consent. The conditions satisfactorily address the matters raised and requested in this judgment and the plans have been amended. As a consequence, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application 433/2014/1 for the demolition of a dwelling and construction of a part one, part two storey dwelling with basement level parking at the rear at Lot 1 in DP 633675, also known as 58 John Street, Woollahra is approved in accordance with the conditions in Annexure A. 3. All exhibits except A, B and 4 are returned.

Judy Fakes Commissioner of the Court 10365 of 2015 Fakes (C) (284 KB, pdf)

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