Tang v Newcastle City Council

Tang v Newcastle City Council - [2024] NSWLEC 1723 - NSWLEC 2024 case summary — Zoe

[4]

The planning framework

Pursuant to s 30 of the Heritage Act, on appeal, the Court 'stands in the shoes' and re-exercises the decision making of the consent authority. Council was authorised to issue an IHO on the basis of the following legislation and delegations.
Section 25 of the Heritage Act states: Part 3 Interim heritage orders for items of State or local heritage significance … 25 Minister can authorise councils to make interim heritage orders for items of local heritage significance (1) The Minister may, by order published in the Gazette, authorise a council to make interim heritage orders for items in the council's area. (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items - (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn.
'Item' and 'local heritage significance' are defined under s 4 of the Heritage Act: Part 1 Preliminary … 4 Definitions … item means a place, building, work, relic, moveable object or precinct. … local heritage significance has the meaning given by section 4A.
Section 4A of the Heritage Act relevantly states: (1) In this Act - … local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. … (4) The Heritage Council must use only criteria published in the Gazette under this section for the making of decisions as to whether or not an item is of State heritage significance.
Section 25 of the Heritage Act authorises Council to make an IHO through an order of the Minister that is published in the New South Wales Government Gazette. The relevant Minister's order is New South Wales Government Gazette, No 90, published on 12 July 2013, at 3421-3424 (Ministerial Order). Council's authorisation is subject to conditions under Schedule 2 to the Ministerial Order: "Conditions for Local Councils to make Interim Heritage Orders (1) A council must not make an Interim Heritage Order (IHO) unless: (a) an environmental planning instrument containing a schedule of heritage items derived from a heritage study and provisions for the management of those items is in force in the Local Government Area; and (b) it has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that: (i) the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance; (ii) the item is being or is likely to be harmed; (iii) the IHO is confined to the item determined as being under threat; and … (2) A council must not make an IHO where: … (d) a development consent (other than a complying development certificate), has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force; or (e) a complying development certificate has been granted for the demolition of an existing dwelling and the erection of a new single storey or two storey dwelling house, and the complying development certificate is still in force. …"
The parties agree and I accept that the following conditions in the Ministerial Order have been met, as set out below: 1. Schedule 1 lists Newcastle City Council as an authorised Council. 2. Schedule 2(1)(a) is met as the NLEP contains the relevant schedule of heritage items in Sch 5. 3. Schedule 2(1)(b) is met as Council considered a Preliminary Heritage Significance Assessment prepared by Artefact Heritage Services dated February 2024, prepared by an appropriately qualified and experienced person (Ex C, Tab 8) 4. Schedule 2(1)(b)(ii) is met as a DA was lodged to Council which proposes demolition of the item (now a separate Class 1 appeal), which would likely cause harm. 5. Schedule 2(1)(b)(iii) is met as the IHO is confined to the site which the item is located.
The issue in dispute is one of the limbs of Sch 2, Condition (1)(b)(i), whether the item is of local heritage significance. The parties agree that there is no further inquiry or investigation to occur.
The parties agree that the relevant guidelines to address the Heritage Council's assessment criteria is the Assessing Heritage Significance - Guidelines for addressing place and objects against the Heritage Council of NSW criteria (Heritage Guidelines). The criterion to be addressed are: "Criterion (a) Historic significance An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (b) Historical Association An item has a strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (c) Aesthetic/creative/technical achievement An item is important in demonstrating aesthetic characteristics and / or a high degree of creative or technical achievement in NSW (or the local area) Criterion (d) Social, cultural, and spiritual An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons. Criterion (e) Research potential An item has the potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural and natural history of the local area). Criterion (f) Rare An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (g) Representative An item is important in demonstrating the principal characteristics of a class of NSW's cultural or natural places; or cultural or natural environments (or a class of the local area's cultural or natural places; or cultural or natural environments). If a place or object does not meet a criterion, it may still meet others. Assess and test the place or object's significance against all 7 of the criteria."
The Heritage Guidelines also include nine steps to assist in how to assess heritage significance, relevantly including consideration of the integrity and condition of the place.

[10]

Criterion (c) - Aesthetic/creative/technical achievement

The experts agree that there are many earlier examples of late Victorian residential architecture and that the Houghton Le Spring subdivision is a later expansion of Waratah. The dwelling is a modest and restrained example.
The experts also agree that the dwelling was likely not constructed to withstand the local highly reactive soils or earthquake loads.
Ms Castaldi says that this criterion is achieved in the context of Sunderland Street and immediate vicinity within the original Houghton Le Spring subdivision.
The dwelling is an example of Vernacular architecture, meaning a style that draws from a builder's own background and traditions as opposed to specialist builders or professional architects. Vernacular architecture is the everyday architecture of the ordinary people. The construction is unusual in the street and surrounds with an unusual choice of brick bond without a cavity or internal stud wall. The external walls are constructed in a similar manner as an English garden wall or Colonial brick bond, usually associated with retaining walls and likely more cost effective. The cast iron verandah colums appear to be original are reflect the use of iron casting, no longer widely used.
In cross examination, it was agreed that Mr Eason, a builder, likely built the dwelling and sold the site the Mr Braye in 1902. Ms Castaldi says that the modest dwelling was owned at an early stage of Mr Braye's career but was still a large property that was embellished with Georgian period decorative features.
Ms Castaldi says that the dwelling is an intact example with a rear extension. There has been minimum intervention other than windows, doors, fittings, internal features and established plantings. She says that the integrity is displayed through the original four rooms' plan, external form, its setting and the curtilage. Ms Castaldi says that the basic principles of the Burra Charter - The Australia ICOMOS Charter for Places of Cultural Significance 2013 (Burra Charter) is that significant places should be conserved. As indicated by Mr Dowling, sections of the dwelling are capable of being retained and reconstructed in accordance with the Burra Charter.
Mr Collins disagrees and says that the dwelling does not represent vernacular architecture due to its obvious style. He says that the single skin masonry construction on waratah foundations was likely inappropriate for the area, as evidenced by very few masonry buildings being represented in the area. The dwelling is typical in nature, size and application for the period and Waratah/Mayfield area. The construction, quality and minimal decorations are indicative of a builder unable to afford his property as opposed to a professional such as Mr Braye.
Mr Collins states that the dwelling is not distinctive in the Waratah/Mayfield area and is only distinctive in its own streetscape and immediate context because of the reactive clay soils in the area.
Mr Collins says that the dilapidated condition of the dwelling impacts on the integrity of the building and reduces its aesthetic and representative significance. He says that the dwelling intactness is further reduced by the significant loss of windows, doors and internal joinery. Reconstruction will not increase the intactness, as non-original fabric will need to be introduced. One measure for the integrity of the dwelling is the adverse effects from neglect. The extent of remedial and rectification works are not reasonable as compared to demolition.

[13]

Integrity and condition

Further to the criterion, evidence was given in relation to the integrity and condition of the dwelling and also with consideration of the structural engineer's evidence. The heritage experts agree that the building and its curtilage is generally intact with some minor modifications to the layout. The experts agree that internally, many original features of the dwelling have been removed, covered or altered. Unsympathetic repairs have impacted the severeness of the cracking as well as retention of moisture and damp through the walls. It was agreed that areas showing severe cracking would likely need to be demolished and reconstructed, so long as the foundations can be stabilised.
The agreement at paragraph 13 of the Heritage JER is reproduced in full below: "13. The building's original construction combined with a lack of repair and maintenance over the last 120 years has led to the severe deterioration of all the fabric and has contributed to the failure of the single skin brickwork. Removal of original fabric such as skirtings, architraves, internal fitments, timber sash windows and doors and replacement with ill fitted aluminium fixtures, as well as inappropriate repairs to interior plaster wall surfaces, and the use of expanding foam to prevent airflow in the subfloor has resulted in retention of moisture in the masonry and accelerated deterioration of original fabric. The primary consideration in the treatment of old walls should be moisture movement. The wall should be considered as porous, taking up water in wet periods and expelling it in dry periods. Attempts to seal moisture out usually seal it in. The use of cement mortar and render is not desirable. The use of breathable paint is also recommended."
Ms Castaldi refers to Council's structural engineers' evidence that sections of the existing brick structures could be retained if required for heritage purposes, as depicted on sketch SK01 reproduced at [66] below.
In cross examination, Ms Castaldi agreed that heritage significance can be affected by fabric that is in poor condition. The extent of demolition required diminishes the intactness of the dwelling. However, the dwelling is still intact, legible from the street and important to the community. The reconstruction is a matter of cost and these works have not changed the heritage significance assessment.
Mr Collins' evidence is that the current condition of the dwelling and extent of remedial works required is not reasonable when compared with demolition. Mr Collins says that the extent of removal agreed by the structural engineers in sketch SK01 will be approximately 50% of the walls and all of the roof, chimney, fireplaces, render and setting of the retained walls. This will negate the heritage benefits of retaining the walls.
In cross examination, Mr Collins says that the dwelling is not largely intact as the original windows, front door, door frame, and parts of the verandah have been removed. Most elements can be built again, but would need to be replaced because of the single skin brickwork allowing moisture and air into the dwelling.
Sketch SK01 is reproduced below.

[14]

Expert Evidence - Structural

The structural experts agree that the dwelling and its structural elements have been significantly damaged due to settlement and movement of the foundations. The dwelling is structurally inadequate, unsound and unsafe for occupation.
Considerable damage has occurred to the building cladding, roof structure (which may collapse imminently), floors, ceilings and various wall sections.
The dwelling is supported on superficially founded footings on highly reactive clay. These require ether extensive underpinning, demolition or reconstruction. Given the extent of damage, demolition over rectification works are more reasonable.
The following rectification works are broadly agreed as being required: 1. Demolition and reconstruction of the front verandah. 2. Demolition and reconstruction of the entire dwelling. Mr Dowling's evidence is that the walls shown in SK01 at [66] could be retained if needed for heritage reasons. 3. Demolition of the entire chimney and replacement with an earthquake compliant one. 4. Demolition and replacement of the roof (including sheeting, gutters, downpipes, flashings). Mr Dowling considered that whilst not appropriate or reasonable, retention and upgrades to the roof are possible. 5. Demolition and replacement of the floor structure throughout. 6. Removal and replacement of all render and setting to the walls. The lime in the render would need to removed off the brickwork. 7. Removal and replacement of the ceilings associated detailing. 8. Replacement of all services. 9. Replacement of windows and lintels. 10. Incorporation of water barriers to any retained walls to avoid further rising damp. 11. Reinstatement of all waterproofing to all wet areas and reconstruction. 12. Lay hardstand around permitter of the building to limit ingress of water moisture.
Mr Dowling's evidence is that portions of the dwelling's walls could be underpinned and retained, shown on sketch SK01. The south-western part of the dwelling could potentially be retained without underpinning, subject to adequate ground moisture controlling measures. In cross examination, it was agreed that the roof would need to be supported with a new frame and that the moisture in the affected walls could take approximately twenty years to completely dry out.
Mr Demlakian says that the partial retention of the walls indicated in SK01 will most likely lead to ongoing movement, cracking and water ingress that will continue to cause damage to the dwelling on reactive clay.
Mr Demlakian says that any walls that might be retained would require their footings replaced and underpinned, render stripped, lime on the brickwork neutralised and then re-rendered. The brick walls have been constructed with lime mortar that is displaying a tendency to crack. It is therefore almost certain that those walls will break apart and require reconstruction. The issues of moisture and rising damp will be unable to be neutralised, with mould spores likely to reoccur, or to support new render. Mr Demlakian says that very little fabric is able to be retained.

[15]

Submissions

The parties agreed that the structural evidence in relation to the repair costs and safety concerns in undertaking the repairs is irrelevant for these proceedings.
Council submits that the question for the Court is not demolition of the dwelling or if the place should be heritage listed. The question for the Court is the heritage significance of the site.
Mr Harker submits that the site demonstrates a rare, intact example of a masonry dwelling erected in the course of the Houghton Le Spring subdivision. The subdivision formed an important phase from livestock grazing to a sought after subdivision mostly catering to blue collar workers. The modest dwelling demonstrates changing demographics and aspirations of the area. Mr Harker submits that Mr Braye was an important local community figure who was elected as a locally born Mayor twice at the site. Whilst not occupying the site for an extended period, his election during that time is sufficient. The Heritage Guidelines establish that an important historical figure living at a premises during significant achievements is sufficient. The dwelling demonstrates an unorthodox masonry construction and distinctive approach.
Mr To submits that the site is not an early example within Houghton Le Spring and is a late example in Mayfield. If Mr Braye had resided at the site, then it was for a short period less than two years. The evidence does not demonstrate any act related to Mr Braye's mayoralty or related significant act in association with the site. Mr To submits that there are better examples of late Victorian brick dwellings within the Mayfield suburb and that the brick laying style is not technically significant. Instead, the evidence suggests that the dwelling was a cheap 'spec-build' by the previous owner which was not particularly good given foundations have not resisted ground movement and the single skin brick walls have not resisted water penetration through the walls or ground.
Mr To submits that the evidence regarding about rarity being narrowed to Sunderland Street and its surrounds is telling. The dwelling is not rare in the suburb, does not represent a late Victorian brick building as a style and is a poorly executive imitation.
Mr To submits that step 5 of the Heritage Guidelines is important as heritage significance can be affected by its integrity and condition. There is little integrity as a result of the ground movement and water ingress through the walls and underneath. The roof is unstable. Mould permeates the walls and attempts to treat or eliminate it would take years. Any heritage significance is lessened on account of the lack of integrity and poor condition.

[16]

Findings

Often cited in IHO proceedings, the purpose of an IHO is to protect the item during the investigation of its local significance (Byron Ventilink Pty Limited v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 at [56]). I accept that this purpose has been achieved and the research undertaken has been thorough from appropriately qualified professionals.
I accept the parties' agreement that the evidence in relation to the costs of restoration and safety concerns in any restoration are not relevant to the matters of consideration for an IHO. I accept Tang & Han's submissions that the structural evidence is to be considered through the lens of the integrity and condition of a place and their impacts on heritage significance as per step 5 of the Guidelines.
Council submitted that Mr Collins' evidence should be given little weight as Mr Collins had not set out his reasoning for this evidence. Tang & Han submitted that Mr Collins has provided his reasoning in the Heritage JER, which was supplemented by the SHJER and other evidence filed as evidence.
In considering the submissions made about the weight to give the Applicants' heritage expert, I find that there are areas of Mr Collins' evidence that can be given appropriate expert weight and other areas where the expert's reasoning was not clear to me: 1. I accept Mr Harker's submissions that notwithstanding the rules of evidence do not apply in Class 1 proceedings of the Land and Environment Court, an expert must still outline their reasons and rationale for opinions given. Findings of fact are to be based on probative and reasoned evidence (Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [93]-[97] and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [67]). 2. If the SHJER was to be read in isolation in relation to the criterion, I accept that there would be little understanding of the reasoning or rationale behind some of the opinions of Mr Collins. Most of the evidence provided is on a yes or no basis, though there are reasons given for some of the criterions. 3. I accept Mr To's submissions that the SHJER is to be read with the other evidence, particularly the Heritage JER. I accept that Mr Collins did provide further reasoning within the Heritage JER. 4. However, there are some areas of evidence where the reasoning behind stated opinions was not evident to me, for example in response to criterion (g) representative. Where this has occurred, I have given little weight to that evidence.
I also accept Council's submissions that the Heritage Guidelines state that the heritage significance of a particular place or object is to be assessed on its own merits, regardless of other places and dwellings associated with Mr Braye that have been heritage listed. However, there are certain criterion which that require a comparative analysis, which I have considered where stated.
For clarity, I note that the experts interchangeably use the terms Mayfield and Waratah or Waratah/Mayfield as the suburb name has changed through the historical period.
Consistent with the Burra Charter and Heritage Guidelines, it is firstly appropriate to consider the stated potential heritage significance of the site, to be followed by consideration of the integrity and condition of the place to determine the heritage significance.

[17]

Criterion (a) - historic significance

Criterion (a) historic significance is about a place or objects importance in a local areas cultural or natural history. Relevant themes in the Heritage Guidelines include refences to strong associations with past systems of government or cultural practices and association with significant historical events - irrespective of how intact the place or structure is.
The heritage experts agree that site was located in the Houghton Le Spring subdivision, an expansion of Waratah and North Waratah, subsequently known as Mayfield. The heritage experts agree that it retains the original curtilage.
I accept the submissions of Mr To and find that the site does not exhibit sufficient significance to meet the local thresholds of criterion (a) historic significance for the following reasons.
I find that the Houghton Le Spring subdivision does not demonstrate an example or phase of history in the area from livestock scrub area to residential. With consideration of the HSA attached to the Heritage JER and the timeline evidence prepared by Mr Collins in Ex C, Houghton Le Spring was a subdivision that occurred somewhere between 1884-1891 and onwards, and falls within the following residential history.
Residential subdivisions in the area commenced from approximately 1863-1864 with the town on Hanbury. Waratah, south of the Waratah Station and North Waratah (now Mayfield), were progressively subdivided from 1869 and 1881 onwards.
The James Roe estate, purchased in 1862 and spanning across areas in Waratah and Mayfield, was subdivided progressively into the subdivisions of Newbottle, then Houghton Le Spring, then Monwearmouth. Figure 12 of the HSA shows the site forming part of a subdivision plan in 1862, though, as I understood the evidence, not subdivided before 1884 or later (HSA, Figure 11).
The first subdivision of Newbottle occurred from 1880. The Houghton Le Spring subdivision occurred somewhere between 1884-1891. The subject site was purchased in 1890 and developed in 1902. It was agreed in oral evidence that Houghton Le Spring was a much later residential development of Mayfield.
I therefore accept the agreement of the heritage experts that the Houghton Le Spring subdivision was not the first or one of the first residential subdivisions as evidenced by previous residential subdivisions. Of that, the evidence shows the subject site existing from approximately 1890, but with a build date of approximately 1902. I therefore accept that whether considered in the context of either Waratah or Mayfield, the site is not demonstrative of an early example of residential subdivision for either of these areas. It follows that as the site is not an early example of residential subdivision or dwelling of Waratah or Mayfield, the site also does not demonstrate a phase of history or demographic change from a rural, scrubby, mosquito infested area used for livestock grazing to a sought after residential subdivision.
Further, I do not accept the evidence that there is heritage significance as one of the first dwellings in the Houghton Le Spring subdivision. This is akin to saying that any of the first dwellings in any subdivision would exhibit historic significance. Criterion (a) links heritage significance within a historic setting. As I have found that the Houghton Le Spring subdivision is not one of the first residential subdivisions and does not represent a change in demographic in the area, I find that there is no heritage significance in being an early dwelling (including the factors of being late Victorian dwelling and of masonry construction) in the Houghton Le Spring subdivision.
Accordingly, I accept that the site does not exhibit sufficient historic significance to meet criterion (a).

[18]

Criterion (b) - historical association

Criterion (b) recognises, as relevant, that a place or object may have value if associated with a person who has made influential, important or notable contributions to the development of an area or environment.
The experts agree that Mr Braye was a historically important figure who made notable contributions. It was agreed that Mr Braye was the first locally born Mayor who was elected as Mayor twice in 1902 and 1903 whilst most likely residing at the site. It was agreed that Mr Braye did not construct the dwelling. It was also ultimately agreed by Ms Castaldi that Mr Braye and his family may have resided at the site from 1902-1904 until leased to Mr Lancelot.
Criterion (b) refers to places being significant because an important historical figure accomplished significant achievements whilst living there. Further, criterion (b) states that the level of significance is determined by comparison with other similar places.
One of the local significance thresholds at a local level is the important contribution having a direct association with the place over an extended period.
The Heritage Guidelines provide further guidance in a section titled 'still not sure'. Some of these questions include if the association with the person and place lacks connection between their achievements as well as the person spending 'a brief, transitory or incidental time at the place without leaving evidence or achieving anything relevant to their importance'.
I accept that Mr Braye was an important person who was the first locally elected Mayor, twice, whilst most likely residing at the site. However, the period of occupation was for a very short period of time, being a maximum of two years. Mr Braye's own significance is more than being a twice elected locally born Mayor. As set out in the HSA, Mr Braye was a prominent successful solicitor who established his own practice, was a founding member of the Waratah Bowling Club, and described in The Newcastle Sun as 'one of the most popular citizens of Newcastle'.
Whilst Mr Braye was elected when he was living at the site, the period of occupation was for only two years. As provided by the Heritage Guidelines, the association between the site and Mr Braye is not over an extended period. The two year period residing at the site is unconnected to the actual election activity, with no evidence that the elections or campaigns were held at the site. Mr Braye spent a brief and transitory time at the site when elected as Mayor, without leaving an imprint or any evidence related to his achievements. Accordingly, I am unable to accept that this brief period of residing at the site demonstrates sufficient heritage significance of historical association.
In relation to the comparative analysis required by criterion (b), Mr Collins lists nine other buildings and places which have a stronger or special association with Mr Braye, though without reasoning for most of these places except for the house Mr Braye constructed in Hanbury/Waratah in 1903. The Heritage Assessment, Ex C timeline and oral evidence provides that in 1913 Mr Braye moved to the heritage listed Awaba House in Teralba until his death.
In addition to the findings that the transitory period at the site lacks adequate historical association, I find that the 1903 home constructed by Mr Braye and the Awaba House estate lived in by Mr Braye for many more decades demonstrates much higher historical association to the achievements of Mr Braye than the site.
For these reasons, I find that the site does not exhibit sufficient heritage significance in relation to criterion (b).

[19]

Criterion (c) - aesthetic/creative/technical achievement

To have aesthetic or technical significance, the criterion seeks to recognise a place or object that demonstrates a high degree of technical achievement, or technical innovation, or aesthetic qualities. In summary, it is submitted that the dwellings masonry construction, iron cast verandah and rendered appearance to mimic sandstone are unique in the Houghton Le Spring subdivision.
I accept the heritage experts' agreement that the site is not one of the earliest examples of a late modest and restrained Victorian dwelling in the broader Waratah/Mayfield area. The heritage experts agree that the site is one of the earliest and few examples of a late Victorian dwelling constructed from masonry, acknowledging that most dwellings in the Houghton Le Spring subdivision are of a timber frame and cladding construction.
Ms Castaldi's evidence is that the masonry construction is more typical of a retaining wall and agreed in cross examination that the construction method was not a response to any building or construction constraints experienced at the time. There is no evidence to suggest that the construction had any association with Mr Braye (save for some potential embellishments) or any architect.
Whilst it might be one of a few dwellings constructed in this manner in this particular subdivision, the evidence was not persuasive on the heritage significance of the construction method. The experts agreed that the construction methods and footings were inappropriate for the reactive clay soils of the area, which have contributed to the dwelling's condition. I accept Mr Collin's evidence that the construction method was simply a likely reflection of the owner builder who built the dwelling and lacks heritage significance on that basis. I am unable to accept the evidence that the dwelling demonstrates heritage significance through its vernacular construction on the basis that this was not in response to any local constraints, as sought by the significance threshold.
I am not persuaded by the evidence that the construction of the dwelling is a notable example of an unorthodox approach or adaption of technology available in that period. The related significance indicator for that local threshold is to adapt technology in a creative manner or extend the limits of available technology. There is no evidence of creativity or adapted technology from that time, the dwelling is simply of brick construction instead of timber. Further, the evidence is that the construction methodology is inappropriate for the area due to the highly reactive clay soils. I accept the evidence that the embellishments described as representative of late Victorian dwellings are more modest than the examples in the Mayfield area and do not rise to the level to meet any of the thresholds or indicators (Ex C Tab 21). In my view, the Heritage Guidelines' descriptions of what might achieve this criterion and the broad 'examples of terms' about a place or object give examples of qualities, inventiveness and innovation that are opposite to the circumstances here, where the heritage significance for the dwelling is said to be on the basis of an inappropriate construction method that is different because it has not been adopted elsewhere in the original subdivision.
For the reasons set out above, I find that the dwelling does not demonstrate aesthetic, creative or technical heritage significance.
Further, had the dwelling demonstrated heritage significance criteria, criterion (c) is also impacted by the condition and integrity of the building. I accept the agreement of the structural experts that there is extensive damage to the building and that a large portion of the dwelling cannot be retained. At its highest, this would be retention of approximately 50% of the walls and perhaps the roof, which was agreed would require the support of a new framing system in the roof space to withstand the load that the current frame cannot support. I find that the amount of reconstruction works as well as the stated methods of removing the lime and mould further decreases the condition and integrity of the dwelling. Had I found any heritage significance, the condition of the remaining parts of the dwelling would have diminished any significance below the threshold.

[20]

Criterion (f) - rare

Criterion (f) relates to an uncommon or rare object/place that illustrates an aspect of area's cultural or natural heritage. The heritage experts agreed that late Victorian residential buildings are not rare in the broader local area of Mayfield. Ultimately, Council's evidence is that the rarity is in relation to the masonry construction, demographic representation and streetscape contribution to Sunderland Street and surrounding streets.
I have previously dealt with the dwelling not representing a change of demographic in a period of time. The significance indicator and threshold are similar for criterion (f) and my findings do not change as the place was a later residential subdivision in the Mayfield/Waratah areas and therefore does not represent a transition to residential.
I accept the submissions of Mr To and find that the narrowing of the local area to Sunderland Street and surrounding streets does not appear to relate to any heritage significance beyond the heritage item becoming rare within a smaller context. I consider that the local area does not necessarily need to be the same for each potentially applicable criterion, but the evidence needs to establish a link between the heritage significance and the stated local area. On the evidence, the reasoning behind the heritage significance of the reduced local area is not clear to me.
In relation to the evidence that the dwelling is rare based on its masonry construction, my reasons are not dissimilar as those detailed in criterion (c). There is no evidence that the masonry construction is a rare example of an event, custom, way of life, distinctive attribute or that is composition to the local area. At its highest, the masonry constructive might be distinctive for undesirable reasons. The evidence suggests that brick construction is inappropriate for the soil conditions which has caused severe structural issues. I do not accept that this minimally implemented, and seemingly inappropriate construction methodology for the area, is of a special interest or represents a custom that demonstrates heritage significance to meet the criterion. Lastly, as stated by the Heritage Guidelines, I find that the dwelling is not endangered as a result of a separate proposal for demolition.
I find that the site does not demonstrate any heritage significance in relation to criterion (f) rarity for the reasons above.
In relation to the integrity and condition of the dwelling, I make the same findings as [113] for criterion (f).

[22]

Public Interest

Mr Harker submits that community views including consideration of the heritage nomination coming from the local community group 'Friends of Sunderland Street', objections received through the DA process and the oral concerns raised on site form a public interest consideration under the Land and Environment Court Act 1979 (LEC Act). I accept that there is a broad scope for their consideration. I firstly note that the Heritage Act and Ministerial orders are silent on community engagement. The Heritage Guidelines refer to the community and obtaining feedback from relevant stakeholders in step 8, but not necessarily with regard to any public notification. Relevant feedback includes the views of the site's owner as well as individuals, groups and institutions that provided information for the significance assessment.
However, s 39(4) of the LEC Act refers to the Court have regarding to the relevant Act, any instrument made under that Act, the circumstances of the case and the public interest.
The heritage experts state at paragraph 2. iv. of the Heritage JER that they have considered the submissions received. I accept that the community submissions have been appropriately considered by the heritage experts, who are best placed to provide heritage evidence on any of the matters raised if relevant. This approach is consistent with step 8 of the Guidelines, where feedback from the owner and groups/individuals/institutions who provided information is considered and determined (including its appropriateness and accuracy) for inclusion within the significance assessment.
In considering the heritage experts' evidence, the comprehensive evidence in the nomination form from the Friends of Sunderland Street community group, the oral submissions raised at the site viewing and the written community submissions provided in Ex C Tab 15, I find that there are no further heritage related matters raised that haven't been considered by the heritage experts or that are in the public interest that would warrant the continuation of the IHO.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Cases Cited (6)