Regent Street Constructions Pty Limited v Ku-ring-gai Council

14 Clause 32(a)(ii) of SEPP 53 in the design of residential development states: Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: (a) Streetscape The proposed development should: (i) contribute to an attractive residential environment with clear character and identity, and (ii) where possible, retain, complement and sensitively harmonise with any heritage conservations areas in the vicinity and any relevant heritage items that are identified in a local environmental plan. Ku-ring-gai Dual Occupancy Code, (Code) 15 The Code applies to the land and dual occupancy development. 16 Section 8 - Objectives of the Code requires: Ku-ring-gai Development Control Plan No 31 - Access, (DCP31) 17 DCP31 applies to the land. Ku-ring-gai Development Control Plan No 43 - Car Parking, (DCP 43) 18 DCP43 applies to the land. Ku-ring-gai Development Control Plan No 47 - Water Management, (DCP47) 19 DCP47 applies to the land. Ku-ring-gai Development Control Plan No 56 -Notification Policy, (DCP56) 20 DCP56 applies to the land. The proposal and its history 21 Development application No 0559/06, (No 3 Margaret Street) and Development application No 0560/06, (No 5 Margaret Street) were lodged with the respondent council on 7 June 2006 to demolish the existing dwelling houses and to erect two new detached dual occupancy dwelling houses on the respective parcels of land. No 3 Margaret Street 22 On the ground floor of the dwelling facing Margaret Street, there would be a living room, family room with ensuite, combined kitchen/dining room and double garage. On level l there would be two bedrooms, bathroom and master bedroom with an ensuite. 23 At ground level of the rear dwelling there would be a combined living/dining area, kitchen, family room with ensuite and double garage. On level one there would be three bedrooms, bathroom and master bedroom with ensuite. 24 The proposal for No 3 Margaret Street would also include landscaping and a driveway off Margaret Street on the common boundary between Nos 3 & 5 Margaret Streets to the double garage for each dwelling. No 5 Margaret Street 25 On the ground floor of the dwelling facing Margaret Street, there would be a combined living/dining area, family room, kitchen and double garage. On level l there would be two bedrooms and master bedroom with an ensuite. 26 At ground level dwelling at the rear there would be a combined living/dining area, kitchen, family room with ensuite and double garage. On level one there would be three bedrooms, bathroom and master bedroom with ensuite. 27 The proposal for No 5 Margaret Street would also include landscaping and a driveway off Margaret Street on the common boundary between Nos 3 & 5 Margaret Streets to the double garage for each dwelling. Notification 28 The applications were notified on 23 June 2006, to nearby owners and occupants and the council received one submission from the owner of No 1 Margaret Street in Roseville in respect of the proposal for No 3 Margaret Street also subject to an appeal (No 10742 of 2006) that raised the following issues: · the two fibro cottages are listed by the council and classified by The National Trust of Australia; · the fibro 'kit' homes are some of the oldest examples of this type of construction; · unauthorised structural damage to the cottages; · the council approved two applications (DA360/05 and DA361/05) for dual occupancies that required the retention of the original dwellings; · the structural report indicates that the cottages are generally sound and intact; · the council should enforce the statutory orders placed on the owner to rectify damage to the original cottages; · the demolition of the cottages contravenes the stated aims of the Ku-ring-gai Residential Manual, (DCP38); · the roof form for the new dwelling would be an uncharacteristic element within the streetscape; · the new development would breach the building height plane; · there would be a loss of privacy for No 1 Margaret Street; · the applicant is relying on trees on the adjoining property as a privacy measure; and · previous refusals for development on the land. 29 On 21 July 2006, the council referred the development application to the Heritage Office as required by cl 61F(b)(i) of the KPSO. The council's decision 30 By notice dated 5 October 2006 the council refused the development application for No 3 Margaret Street for the following reasons:

The proposal would cause the loss of a heritage item on Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO) identified for its aesthetic, technical and historic significance being a rare example of an early fibro house thought to be constructed about 1912.
The cottage is considered to be an early, rare example of an 'all fibro' cottage, a type of building that is uncommon in the Ku-ring-gai area and the only listed item of its type.
Nos 3 and 5 Margaret Street forms a group of early fibro cottages that compliment [sic] each other.
The engineering report fails to demonstrate that the cottage is beyond repair having identified works to allow its retention and continued use as a dwelling house. PARTICULARS (i) The Ku-ring-gai Planning Scheme Ordinance (KPSO) - Schedule 7, Clause 61D(1)(2); (ii) Clause 32(a)(ii) in SEPP 53; and (iii) Section 8 - Objectives in Ku-ring-gai Council Dual Occupancy Code. 31 The development application at No 5 Margaret Street was refused at the same time for similar reasons. The hearing 32 The appeals were filed on 23 August 2006 and were deemed refused. On site the Court heard from Mr M Arbuz, resident of No 1 Margaret Street, and Mr D Neal resident of No 7 Margaret Street. 33 At the hearing the court heard evidence on behalf of the respondent council on heritage issues from Mr P Dignam, heritage consultant. 34 On behalf of the applicant Mr R Staas, heritage consultant, gave evidence. These witnesses prepared a joint heritage statement, [Note: Exhibit 9 dated filed 15 November 2006]. 35 Ms R Pearson, Executive Planner, Ku-ring-gai Council, prepared the statements of basic facts, filed 25 October 2006. The issues 36 On 5 October 2006 in respect of Appeal No 10742 of 2006 the council filed a statement of issues. IMPACTS TO HERITAGE ITEM
The proposed detached dual occupancy requires the demolition of a listed heritage item, identified for its aesthetic, technical and historic significance being a clear example of an early fibro house. Particulars (a) The subject site is listed as a heritage item in Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance, encompassing a single storey prefabricated 'all fibro' cottage with front verandah hipped roof and gable above the entry at 3 Margaret Street, Roseville. (b) Nos 3 and 5 (appeal 10743/2006) Margaret Street form a group of early fibro cottages that compliment [sic] each other in this locality. (c) The cottages are considered to be an early, (thought to be 1912) rare example of prefabricated 'all fibro' cottage, a type of building that is uncommon in the Ku-ring-gai area and the only listed item of its type. (d) The engineering report fails to demonstrate that the cottage is beyond repair having identified works to allow its retention and continued use as a dwelling house. I. The Ku-ring-gai Planning Scheme Ordinance (KPSO) - Schedule 7, Clause 61D(1)(2). II. SEPP 52 - Clause 32(a)(ii). III. Ku-ring-gai Council Dual Occupancy Code (No 2 /2003) -Section 8Objectives. 37 On the same day in respect of Appeal No 10743 of 2006, the council filed a similar statement of issues. 38 The heritage significance of the existing dwellings and whether they should be retained emerged as the salient issues. Submissions 39 Mr Corsaro, SC, submitted that despite overlooking into No 1 Margaret Street being raised both orally and on site by Mr M Arbuz, the council had not put this in issue. He submitted that the 'heart of the matter' is the weight to be given to the heritage listing of each building. 40 Mr Corsaro, SC, referred to various authorities in support of his case and submitted that under cl 61D(1) of the KPSO development consent is required to demolish a locally listed building. 41 Mr Corsaro, SC, firstly referred to an unreported decision of Toon v Ku-ring-gai Council [2004] NSWLEC 173, wherein the council refused a development application for the erection of a development for older people and people with a disability at No 50 Pentacost Avenue, Pymble, that required a non-scheduled existing dwelling to be demolished. One of the issues in that case was whether this building should be demolished. His Honour Cowdroy J considered at para 20, whether under SEPP5 that if the building is not heritage listed it is a relevant consideration under the policy. His Honour dealt with heritage criteria and the facts at para 26 and concluded at para 39, on the basis of the evidence, "…the original reasons for the draft LEP have been further investigated and have been found to be unsupportable. There are no heritage reasons why the building should not be demolished. In any event, the heritage provisions in the Ordinance do not prohibit the demolition of a heritage item identified in Schedule 7." 42 Next Mr Corsaro, SC, referred the Court to an extempore decision of Brown C in North Western Surveys v Baulkham Hills [2005] NSWLEC 666. In that case the heritage-listed item scheduled under the environmental planning instrument was to be demolished. The heritage item had been badly damaged by fire and the developer proposed to demolish what remained to create a six 6 lot subdivision. In considering the application the council staff had dealt with the heritage issues had concluded that the reconstruction would result in little or no heritage value being retained. The Court-appointed heritage expert maintained that although the item had been damaged by fire, part of the fabric "…should be retained with an appropriate curtilage and interpreted with suitable public information available about the history of the house and the landholding." The issue then was whether the retention of what remained was appropriate. At para 25 the Commissioner defined the issue and para 26 referred to the fact that the instrument contained an express proviso that "…adequate consideration is given to the significance of a heritage building and any alternate options where demolition …is proposed." Mr Corsaro, SC, submitted that, in that case, the instrument itself gave guidance as to how the heritage aspects should be dealt with, but not here and approval to demolish can be given if one of three possible circumstances exist. The commissioner dealt with the heritage question and at paras 29 - 30 stated that "…the retention of only the chimneys and footings must clearly limit the value of a house as a heritage item…" Mr Corsaro, SC, submitted that case is "…not too far different" from that presently before this Court. He submitted that especially No 3 Margaret Street was in a "…substantially deteriorated condition even in November 2004." He submitted that the resultant lack of original fabric in North Western lead the commissioner to permit the demolition. Mr Corsaro, SC, submitted that the current development consent requires or entitles the applicant to carry out substantial modifications to the buildings. He submitted that it is relevant that Mr Staas says, "…the heritage that would remain, even if one were to replace the asbestos, would deprive the buildings of any real heritage value." He submitted that Commissioner Brown was of the view that one simply does not look at the schedule and concludes that given its listing as a primary concern the building should be preserved at all costs. The Commissioner at para 30 concluded in North Western that even though the relevant planning instrument acknowledges that the building would not have to be intact, simply retaining the chimney and some walls would not be sufficient to warrant retention. As there would be a lack of original fabric the commissioner considered that demolition was acceptable subject to recording. 43 Mr Corsaro, SC, then referred to the unreported decision in Tova v Parramatta City Council [2004] NSWLEC 282 of Commissioner Bly, that involved the demolition of a heritage-listed cottage. In that case Mr S Wiltshier, a structural engineer gave evidence as to the damage to the structure. Mr Corsaro, SC, submitted that the commissioner's findings provided an answer to the question posed by this Court as to the weight to be given to a listing. Commissioner Bly stated, [Note: para 14] …an application for the demolition of heritage item that has been listed under a local environmental plan needs to be dealt with somewhat differently. It must be assumed that any listed heritage item has been correctly and justifiably listed, and that the primary purpose of such a listing is for the conservation of the item. In these circumstances weight must be given to the listing of the item and it is for the applicant to overcome this by persuading the consent authority that notwithstanding the listing, demolition is warranted. 44 Mr Corsaro, SC, submitted that the listing is "…not paramount or most critical and not the only concern." Mr Hudson will not submit to the contrary, he submitted and the Court must give it weight to the heritage listing and this is only one of the matters to be considered under s79C of the Environmental Planning and Assessment Act 1979. He submitted that the Court would be acting contrary to law if it were to give heritage paramount weight. He submitted that the Court must give it adequate weight and it is for the applicant to convince the Court that having regard to the circumstances demolition is warranted. He submitted that the Court would give considerable weight to the evidence of Mr Staas. He submitted that the Court is entitled to question whether, as did Mr Staas whether the item should have been included in the environmental planning instrument. 45 Mr Corsaro, SC, submitted that it is ironic that the applicant is prepared to remove the asbestos clad houses, that are potentially harmful to occupants and neighbours, that there should be a recommendation of the council that not all asbestos should be removed but that it be encapsulated and replaced. With the removal of the asbestos the cottages become facsimiles similar to the preservation of a chimney and piers that the Court-appointed heritage expert sought to retain in the earlier case. The significance of what remains after removing the asbestos must be minor. 46 Mr Corsaro, SC, submitted that the applicant seeks demolition of each dwelling, and there is no warrant for the retention of both. 47 Mr Hudson submitted that the weight to be given to the heritage listing was ultimately the decision of the Court. He submitted that there is no dispute that they are listed. In coming to a concluded finding the Court must "…think of it on a scale." He submitted that the present case compared with that of Northwestern Survey case is at the opposite end of the scale and Nos 3 and 5 Margaret Street are pristine heritage item and the weight to be given to them is substantive. He submitted that if these dwellings were repaired and re-clad in removing the asbestos, "…they will be like they were" with heritage significance. He submitted that the evidence of Mr Dignam was that "…with careful conservation and stabilisation, the houses can be made safe." He submitted that the council has already given approval to that effect when it favourably considered the earlier attached dual-occupancy development application. Hesubmitted that this is "…a way to preserve the heritage items and it is conservation [as defined] under Burra Charter." He submitted that the buildings are "…still of heritage significance and a pair and an early example of this type of building and rare in this local government area." He submitted that within this framework there is a need to take into account the heritage significance of the buildings. He referred to the comment by Mr Moore that there is "…a need to keep the humble to the grand." Yes, he submitted, the council requires the applicant to take away the asbestos, but even so the buildings are on the scale, "…well up near the determining weight end." "Both experts agree it can be done but it will cost." 48 Mr Hudson submitted that as this is a different development application the Cowdroy decision is not relevant. The buildings after renovation might be facsimiles but they still conservation value. He submitted that there are some ceilings of zinc that can remain and there is the woodwork that will be preserved. When considering the present state of dwellings there is a need to look at it at 2004 when they were more intact as the applicant has agree to repair the damaged corner. The evidence and findings Heritage significance 49 There are two Class 1 applications involving each parcel of land for Nos 3 & 5 Margaret Street, Roseville, and similar heritage issues arise in each case. Nos 3 and 5 Margaret Street 50 No 3 Margaret Street was listed in the Ku ring gai Heritage Study of 1987, before No 5 Margaret Street Roseville was listed. 51 Mr Arbuz, the neighbour at No 1 Margaret Street, nominated No 5 Margaret Street in 1998, on the basis that it had similar heritage attributes to No 3 Margaret Street. 52 After that nomination, Mr P Davies assessed the heritage value of No 5 Margaret Street. At around the same time in 1998 Mr R Staas carried out a heritage assessment of No 3 Margaret Street. 53 Also in 1998, Mr S Robertson provided an opinion on the heritage significance of Nos 3 and 5 Margaret Street. 54 Mr Robert Moore considered the heritage significance of Nos 3 and 5 Margaret Street 1998 and concluded that they read as a pair. 55 A hazardous materials report on Nos 3 and 5 Margaret Street was prepared by JET Pty Limited in 1999. 56 Having regard for the asbestos and lead contamination of the sites, Ms L Newell, heritage consultant of the council, in a report to the council of 2 August 1999, stated: The conclusion of the hazard assessment have direct heritage management consequences. The scale of removal and replacement of the asbestos sheeting which will eventually be required for health reasons and for modern livability standards, may result in only a small proportion of the original fabric of each cottage remaining. If this is indeed the case, and extensive removal and replacement of fibro sheeting is required, the cottages would become facsimiles and their primary heritage significance (which is their early fibro construction) nearly entirely lost. Ordinary Meeting of Council 2 August 1999- Item 4 p 152. 57 In 1999, Mr I Hayes provided an opinion on the heritage significance of the pair for The National Trust of Australia (NSW). 58 In 2000 his Honour Justice Cowdroy considered a development application involving proposed demolition of Nos 3 and 5 Margaret Street, and despite refusing the development commented in obiter [Note: Appeals No 10833, 11017, 11096 of 1999 Wolff Architecture Pty Limited and Dempsey Constructions Pty Limited v Ku ring gai Council.] The Court notes that council has requested protection under the Heritage Act for No 5 Margaret Street but the New South Wales Heritage Office has decided that it is not of State significance and protection was not warranted. Under these circumstances the Court accepts Mr Staas' conclusion that the residences do not have historic, aesthetic, social or technological significance that would warrant retention. 59 The heritage experts, Mr R Staas, for the applicant and Mr P Dignam, for the respondent agreed that, [Note: Exhibit 9, pp2 and 3]: · The subject sites are both presently identified as items of environmental heritage in Schedule 7 of the KPSO. · Located on the sites are single-storey, timber-framed, asbestos cement clad cottages erected as standard 'kit' homes c 1913. · The two buildings, while of different designs, have similar characteristics and as a pair, complement each other. · There are no other heritage items [or conservation areas] in the immediate vicinity of the subject items. · Detailed independent heritage assessments of the buildings were first made in June 1998 by Messrs P Davies and R Staas, as part of a rezoning application and development proposals for Nos 3-17 Margaret Street. · In the Ku ring gai Heritage Study of 1987, No 3 Margaret Street was identified as having heritage significance for 'Architectural value'. No statement of significance was prepared at the time of listing and while the listing suggested the building was substantially intact, it had been modified internally and at the rear. · In response to an application for demolition of the houses, the council engaged Mr R Moore to support the listing of the two buildings. In his opinion the places had historic, aesthetic and technical significance at a local level. [Note: Appendix A. Ordinary Meeting of Council 2 August 1999- Item 4, p169]. Mr Moore also considered the buildings were "…representative of the low-cost form of housing erected in the area," possessing "…cottage charm of their type." [Note: Robert Moore, December 1998] · In 1999, No 5 Margaret Street was also listed as a heritage item against the wishes of the then owner. · Both heritage buildings are lined internally and externally with asbestos sheet containing Chrysolite asbestos and painted with lead based paint. Asbestos cement sheeting can contain harmful free asbestos fibres, which can be hazardous to health. Asbestos Audit and assessment of Hazardous Material - Johnstone Environmental, Technology Pty Ltd. Jan 1999. Appendix F, Ordinary Meeting of Council 2 August 1999 - Item 4, p 185. · Both buildings demonstrate varying degrees of dilapidation as described in reports prepared by Mr S Wilshire of Hughes Truman Engineers. The reports indicate that No 3 Margaret Street is more dilapidated than No 5 Margaret Street. · The experts agree that No 5 Margaret Street is in better condition than No 3 Margaret Street in terms of potential for conservation action and acknowledge that an appropriate conservation management strategy would need to respond to the hazardous materials in the buildings. · The experts agree that the subject buildings could be repaired and adapted for continuing residential use. Such actions may result in a loss of technical value if substantial amounts of original asbestos sheeting were to be removed from the structures. · The experts agree that asbestos clad buildings are relatively rare in Ku ring gai as a 'type' but are common throughout the state of NSW and are seen in some concentrations in other local government areas. · Research indicates that asbestos cement materials were first introduced into Australia in 1903 and were in common use in residential buildings by 1908. Documented use of asbestos sheet in Ku ring gai dates from c l912 and the subject buildings date from 1913. · An approval has previously been granted for dual-occupancy development of the sites involving two-storey residences located at the rear of each site accessed by a central driveway between the two older dwellings. These approvals are not in question in the current proceedings. · The approvals currently in force also allow for additions and alterations to the two heritage items and would require the total removal of hazardous material from the site. 60 The experts disagree as to the benefit in retaining Nos 3 and 5 Margaret Street and if they were demolished, the degree of loss of heritage value to the community. 61 Mr Staas considered that No 3 Margaret Street should not have been listed in the first instance on the available evidence provided to the council in 1998/99. He concluded that both buildings did not meet thresholds for listing as items of local significance. 62 Mr Staas considered No 3 Margaret Street, [Note: Exhibit 9, p 5]: …would require so much reconstruction as to eliminate any potential heritage values associated with its original construction and as evidence of 'low-cost housing in the municipality' or as 'rare example of all fibro clad cottages in the municipality' . That is not to say that the building could not be reconstructed to look as it did, but that this approach would lack integrity and authenticity, particularly where the highest significance relates directly to the early use of a material, which would be completely removed. This is in agreement with the original advice given to the Council by Ms Newell their Heritage Planning Officer at the time of their listing. 63 He was also of the opinion that, [Note: Exhibit 9, pp5 and 6] …there is more potential for the effective reconstruction of No 5 Margaret Street than exists for No 3 Margaret Street and that this is also an option open to the Court to consider. The degree of reconstruction required would however limit any residual technical heritage value associated with the early use of asbestos cement sheeting in the building. 64 By contrast Mr Dignam stated, [Exhibit 9, p 10]: …the houses have a local level of cultural significance to the …Ku-ring-gai community for their aesthetic, technical and to a lesser extent their historical significance as examples of lower cost housing. Such examples are now rare in Ku-ring-gai and it is considered that very few will be left in future years. It should be noted that only a few 'lower cost' houses are listed as heritage items, they are rare and their rarity will increase in future years. In the case of Nos 3 & 5 Margaret Street, the grouping of the cottages adds greater meaning and weight to the items and both should be retained. It is considered acceptable to develop other parts of the site to offset the cost of repairs and conservation to the items and there is no heritage objection to the proposed new dwellings. 65 I accept the evidence of Mr Staas and prefer that to the evidence of Mr Dignam, and I am convinced that both Nos 3 and 5 Margaret Street, as examples of lower cost housing in Ku ring gai, do not have sufficient aesthetic, technical or historic significance or value to warrant their retention. I do not go so far as to say that they should not have been listed in the first place. I accept the status accorded to them in Schedule 7 of the KPSO. 66 However, the potential for their practical and economic continued use as residences considering the extent of repair, the need to replace hazardous materials and the difficulty of adaptation required to make them suitable for contemporary living standards, is slight. 67 The extent of reconstruction necessary to remove the asbestos lining both inside and out, would downgrade their heritage value and in particular, adversely affect their 'integrity' and 'authenticity' to such an extent that their retention is not warranted. Brown C considered this question in North Western Surveys v Baulkham Hills Shire Council [2005] NSWLEC 666 and concluded that it would be inappropriate to retain those parts of the burnt out shell of a heritage item when considering a subdivision application. In that case the commissioner concluded, "…the retention of only the chimneys and footings must clearly limit the value of the house as a heritage item and the understanding of its association with the previous agricultural use of the land," [Note: para 30 of North Western]. In the present case not much more than the timber stud framing would be retained once the asbestos lining is removed. 68 Under cl 61D(1) and (2) of the KPSO, I am satisfied that consent may be granted to the proposal notwithstanding the fact that the existing heritage listed items would be demolished. 69 Under cl 32(a)(ii) of SEPP 53, I am satisfied that the proposed development, as a replacement of the existing buildings, would contribute to an attractive residential environment with 'clear character and identity.' I am satisfied that it would not be appropriate to retain the existing buildings and the replacement buildings as described in the architectural plans would complement and sensitively harmonise with other buildings in the street. 70 I am satisfied that there are no significant privacy issues. I consider there to be sufficient separation between the proposed dormer window and No 1 Margaret Street. 71 For the above reasons, the appeals are upheld. Conditions 72 The conditions for No 3 Margaret Street are those in Exhibit 12, and the conditions for No 5 Margaret Street are those in Exhibit 13, which were accepted by the applicant. However, the applicant agreed to submit to an additional deferred commencement condition in Exhibit 14 that would require each building to be recorded. Orders 73 My orders are:

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