Owen Haviland Pty Ltd v Willoughby City Council

15 The heritage expert's agreed that 13 Horsley Avenue was an original bungalow, which contributes to the conservation area. The key area of disagreement between the experts was their philosophical approach to the removal of a contributory element within a conservation area. 16 Mr McPhee's opinion was that removal of a contributory component and construction of a replacement dwelling which complies with the aims and intent of DCP No 19 is a reasonable heritage architectural approach for carrying out changes to a conservation area. 17 Ms Hill held the contrary opinion that the purpose of a conservation area is to conserve those elements which contribute to its significance. To replace those elements which contribute with similar volume buildings will eventually erode the character and undermine its significance. She stated that only 17.5% of the 27,500 rateable properties, being 1,950 are located within conservation areas and of these 1,950 not all elements are contributing, therefore council's requirements to retain a contributing element in conservation areas is reasonable… DCP 19 anticipates that changes can occur to contributing components to the rear which do not impact on the significance to the streetscape and area. 18 In adjudicating between these two conflicting points of view, the question before the Court is which opinion reflects the planning framework under which the application must be assessed. The desired future character controls for the Horsley Avenue Conservation Area clearly state that original bungalows are to be retained with additions behind the main part of the original building. If demolition is proposed, s 4.2.8 sets out the requirements against which the proposal must be assessed. The key area of disagreement between the parties was whether criterion (b) is met. 19 The applicant's submission was that the existing house was in poor condition and required significant expenditure such that its retention was unreasonable and it therefore could be demolished and a new dwelling constructed which better met the needs of its owners. Council submission was that the main part of the existing house could be repaired with a suitable addition to meet these needs at a reasonable cost. Council submitted that opportunities for adaptation had not been explored and therefore it could not be concluded that the existing dwelling was incapable of reasonable or economic use. 20 Mr Connett undertook an assessment of the structural stability and state of repair of the existing dwelling. He prepared a schedule of recommended remedial works to make the building structure stable, watertight and fit for human habitation to its previous level only. His main concern was that the front and rear western corners had subsided probably due to leaking pipes in this area. The source of the leak needed to be fixed to prevent further deterioration, replacement of the sewer and underpinning of the wall may be necessary. The lintel above the front bay window had also failed. He recommended that the lintel, bay window, brickwork and fibro cement gable above the lintel should be replaced. The North Eastern hip of the roof sags and needs to be replaced. The recommended works included other less significant works such as rebuilding the existing WC, waterproofing the shower and replacing timber floors in the pantry and laundry. 21 Mr Wilde costed the works recommended by Mr Connett, which correctly included replacement of the sewer and underpinning the western wall but which may not be necessary upon further investigation. He also costed the proposed new dwelling, based on the original drawings. The figures were about $172,000 (including 10% GST, 15% contingency and 20% builders preliminaries) to repair the existing dwelling, which is about 137sqm in area and $480,000 (including GST) to build a new house, which is about 224sqm in area plus a verandah of 61sqm. 22 To compare these figures it is useful to examine the cost of repairing the existing house compared to the cost of providing the same amount of area. I note that the area of the existing house includes the WC and verandah that are likely to be demolished if an addition were provided. Based on Mr Wylde's square metre rate of $1595 for the new dwelling, the cost of providing the equivalent amount of new space would be $218,515. These figures are not directly comparable as bathrooms and a kitchen would add extra cost as well as redecorating. Although Mr Wylde's figures for the repair work do include $7000 for internal decoration, $5,500 to reconstruct the WC and $6,000 to fix up the shower (these figures do not include the extra 45%). He priced the kitchen fit out for the new house at $20,000 (plus GST). If these adjustments are made the cost of retaining the existing house and building the same area appear to be similar. 23 Ms Hill's evidence was that the retention of the existing house with an addition to provide a total area equivalent to that proposed in the new dwelling would be in the order of $427,000 to $511,000. Mr Wylde stated that the square metre rate for an addition is greater than for a new dwelling and that the overall cost would be more likely $550,000. 24 The cost of works for both the retention of the existing house with an addition and the construction of a new house would vary depending upon the owner's requirements and the quality of what is proposed. The analysis undertaken by Mr Wilde and Ms Hill is useful to the extent that it demonstrates whether the existing house would be incapable of reasonable or economic use. I find that this is not the case. From the evidence before me the existing house is capable of reasonable or economic use. 25 Ms Hill's opinion was that the existing house could be adapted. The applicant did not provide evidence to demonstrate that alternatives to demolition had been examined other than the square metre rates discussed above. I do not accept that this is sufficient to satisfy the requirements of s.4.2.8 (b) and to justify demolition. 26 The clear intent of the planning controls for the Horsley Avenue Conservation Area is that existing bungalows should be retained and added to meet owner's requirements, except if they do not contribute to the significance of the conservation area or if there are not opportunities for adaptation and they are incapable of reasonable or economic use. The existing house does contribute to the conservation area. While it has been poorly maintained it can reasonably be repaired and the cost of doing this does not place an economic burden upon the owners that is unreasonable when compared to the cost of constructing the same amount of area. 27 The proposed dwelling, as shown in the amended plans, may be an appropriate addition to the conservation area on a site with a non-contributory building or where a building was incapable of retention or adaptation. However, in this case, it is not a reasonable alternative to retention. In considering the application under clause 57(3) of LEP 1995, I accept Ms Hill's evidence that the replacement of original buildings, which contribute to the significance of the conservation area with a replica building will erode the significance of the conservation area and on this basis the application must fail.

2. The development application (DA 2003/810) to demolish the existing house and construct a new house at 13 Horsley Avenue, Willoughby, is refused.

                                                      Annelise Tuor
                                                      Commissioner of the Court

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