Heritage Issues
63I now turn to the question of heritage impacts. The Council raised three contentions concerning heritage and the application. Although they were pleaded as three separate items, in effect they conflate to the acceptability of having a car parked in front of the existing heritage dwelling and, second, whether it is appropriate to permit piercing of the existing cast iron palisade fencing with a sandstone plinth that is erected along the front portion of the dwelling's boundary.
64The Local Environmental Plan lists in the schedule of heritage items 12 Victoria Avenue, Woollahra as a heritage item with the description being "House, front fencing".
65I interpose, here, that the original discussion that took place during the course of the conciliation conference seemed to me to be premised on the basis that the Council was saying that the house was heritage listed and that, quite separately for consideration of such matters, the fence was heritage listed. I am satisfied that a proper consideration of the listing documents makes it clear that the fence is not a separately listed item. If it were, the potential consequences for this application I consider would likely be different. However, it is clear to me from the heritage listing document that was tendered and became exhibit M, that the listing of the "House, front fencing" should in fact be regarded as a composite or agglomerated listing.
66Exhibit M sets out a number of matters. It is appropriate for the purposes of this decision, before turning to the controls that are applicable, to incorporate the physical description set out in the listing. It is in the following terms:
A two storey in terrace in the federation filigree style, rendered masonry parapet with classical detail, stucco motif to central pediment, walls are rendered masonry limed to imitate stonework. A two storey verandah to the front wraps around the northern side. The verandah features cast iron columns, lace balustrade freeze (the roof is bull nosed with corrugated iron cladding exposed underneath). Timber floorboards at first floor level are painted underneath. Modern tiled porch at ground level. There is a creeper growing up the front of the verandah. Windows are generally timber framed, double hung, are full height and have full arched heads. There is an arched stucco label mould to all openings and similar string courser at impost level to both ground and first floor level. The main entrance at ground level has a solid timber door and stained glass top and side lights. A brass plaque beside the door has the name "Huntington". Three steps up to the door have marble treads and decorative tile risers. There is a tiled courtyard to the front with border plantings. A double cast iron palisade fence to the street has a curved rendered masonry base. Cast iron gate posts are stamped with "G Fletcher & Sons, Oxford Street, Waverley. Style: Federation filigree external materials, rendered masonry walls limed to imitate stonework, rendered stucco label moulds and string coursers generally full height timber framed windows will full arched heads. Double point cast iron palisade fence and gate posts to street. Internal materials unseen.
67It is clear to me from that description that, although the palisade fence is an integral part of the heritage elements of that which is located at 12 Victoria Avenue, there is no conceivable way that I could conclude that the iron palisade fence itself is separately listed as a heritage item, and that the import of that which I am asked to consider - that is a piercing of the sandstone plinth and removal of part of the cast iron palisade fence - is a potentially significant interference with or modification of a single heritage item.
68It is in that context that I turn to the relevant elements of the Woollahra Local Environmental Plan. These are contained in cl 2(2)(g) which requires me to consider the relevant heritage matters and to ensure that any 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. I interpolate that had the fence been a separate item, that element of the Local Environmental Plan might well have created an insuperable obstacle to the application. Had the way the matter was raised during the course of the site inspection prove to be correct, it would be unlikely that the appeal could be upheld. However my consideration of the listing in exhibit M makes it clear that that is not the case.
69I had the advantage during the course of the proceedings to hear from Mr Robert Moore, a heritage expert on behalf of the applicant, and from Ms Parkins, Heritage Officer employed by the Council. Ms Parkins' initial statement of evidence, which was exhibit 4 in the proceedings, succinctly set out her concerns relating to the broad heritage item - set out at paras 3.4 to 3.6 of her report - in the following terms:
3.3 The proposed car space situated in front of the subject building will negatively impact on the setting of the heritage item and compromise its contribution to the character of the streetscape and heritage conservation area.
3.4 The setting of the heritage item is important in an area free from obstructions that allows views of the significant building. Locating a car in front of the subject building will obstruct views to the significant front façade and subsequently detract from the building's contribution to the heritage conservation area.
3.5 In this situation the curtilage of the property is the lot boundary which means that any development within this boundary has the potential to impact on the significance of the heritage item. The proposal to locate a car within this zone is not appropriate and will detract from the significance of the heritage item and its contribution to the conservation area.
3.6 The front fence has been described in the heritage inventory sheets as directly contributing to the significance of the heritage item. The proposal to breach the front fence in order to accommodate a car in front of the significant building is not appropriate, regardless of how sympathetically the alteration is designed.
70There are a number of relevant matters contained elsewhere in the Local Environmental Plan that require my consideration. The first is contained in cl 8 where at 8(4) and (5) I am obliged to have regard to not only the provisions of the development control table and the zone objectives, but to special provisions and heritage provisions in pts 3 and 4 of the plan, and I am to be satisfied that the carrying out of the development is consistent with such objectives of the plan as are set out in the development control table.
71The land, as I have previously observed, is zoned 2A in the Residential A zone. The objectives of the zone are set out on p 6 of the land use table and there are four of them. The relevant one, which is objective (b), is to allow certain nonresidential development of low intensity compatible with the residential character and amenity of the locality, that being the insertion of a parking space into the residential development on the site.
72I am satisfied that, for the reasons I have dealt with earlier of a technical nature, that object of the zone is not breached and that the proposal is consistent with it and for reasons that I do not need to annunciate, the proposal is consistent with objectives (a), (c) and (d), or, at least to the extent that objective (c) is involved, it is not inconsistent as it is that objective is irrelevant. However I have to turn to pt 4, the heritage provisions of the LEP. The relevant matters are contained in cll 26 and 28 of the LEP, both of which require that the Council, or in this case the Court standing in the shoes of the Council, shall not grant consent to the demolition or alteration of a heritage item unless I have taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item or of the heritage conservation area.
73There is an element also specifically arising from the Woollahra Heritage Conservation Area Development Control Plan in 3.2(6) original fences, gates and retaining wall, which has as an objective, the first of its objectives, "To retain and conserve original fences, gates and retaining walls to significant items" and contains as a control, C3, "Breaching an original sandstone or brick wall or fence to incorporate an opening for parking is not permitted," and C1, "That the original forms, finishes, details et cetera are to be retained in place and are not to be altered except to allow for maintenance or conservation." I observe that it is at least arguable that the original sandstone plinth of the present palisade fence does not fall within C3 but it is appropriate to be dealt with on that basis as I am satisfied that the breaching should be permitted.
74I note that control C4 provides that "Aluminium versions of iron palisade fences are not permitted." There are two observations to make. The first is with respect to the use of the words "is not permitted" in control C3 or C4. Although that is an expression that is put in the pejoratively absolute, it is clear from the decision of the Court of Appeal in Zhang, to which I have earlier adverted, that although it is prescriptive and absolute, I am not bound by that proscription. The second observation I make is with respect to "Aluminium versions of iron palisade fences", that the version of the gate that is proposed to be used to create the car parking space is to be, as agreed by Mr Staunton on behalf of the applicants, of steel tubes and that the spearheads at the top are not to be permitted to be aluminium. They are to be of cast iron.
75Mr Moore's design for the fence as it has subsequently evolved, and as I am satisfied, from material that was attached to the final joint experts conclave report of 19 December, is capable of being constructed, is entirely sympathetic to the existing palisade fence. When the gates are closed, except with the absence of the sandstone plinth as a consequence of its breach for the permitting of access of a vehicle, there will be an imperceptible difference between that element and the element of the existing fence that is to be retained.
76I am satisfied from the inspection that was undertaken during the course of the conciliation process that if that aperture is permitted and a B35 vehicle is parked in front of the dwelling, there will be an element of opening up of the view of the dwelling on an oblique basis when pedestrian transiting north to south or south to north as a consequence of the removal of the hedging from behind the fence, and that the presence of the vehicle will not significantly detract from the appreciation of the heritage item itself. If the vehicle is absent and the gates are closed then there will, in fact, be a greater ability to appreciate the heritage values of the heritage item.
77It is appropriate, at this point, to turn to the recommended management strategies that are contained as part of the heritage listing:
The heritage report required prior to any proposals for new work if the facades of the building have remained relatively intact. There should be no proposals allowed to alter the external envelope or materials. All proposals for new work should continue to consider the retention of all original or early fabric and detail in both externally and internally. There should be no painting of stonework or materials which did not originally have a paint finish. Window and door opening should not be enlarged or filled in and the form and massing of the building should not be compromised by alteration to the roofline.
78The management strategy makes no observation about the fence and to the extent that I should import any consideration of the fence it is essentially that the visual appearance of the fence should not be altered significantly in any discernable fashion by any works that might be proposed to it. I am satisfied that that is the outcome that will follow from the sympathetic design that Mr Moore has produced and which the exhibit demonstrates is capable of being developed. As I indicated on 24 December, it is a matter of very fine balance but a balance that falls in favour of just permitting the approval of the application.
79Therefore, for the purpose of cll 26 and 28 of the Local Environmental Plan, the item itself being a heritage item and being located in the West Woollahra Heritage Conservation Area, I have considered the extent to which the carrying out of the proposed development would affect the heritage significance of the item itself or of the conservation area, and I am satisfied that that is negligible and acceptable.
80I observe, also, that the standard that I am obliged to address in this matter is the standard of acceptability and not design perfection.
81I do, however, observe that I am satisfied that the standard of design that has finally evolved from the work that Mr Moore - who I should interpose is of no relation to me - is of a very high standard and had it not been of that nature would not have resulted in an approval for the proposal.