Wernham and Palmer v Waverley Council

KEY ISSUES: Appeal :- Erection of dwelling, public interest, heritage significance of current dwelling for retention, public domain, view corridors, design parameters, visual and oral privacy to adjoining property and impact on views

LEGISLATION CITED: Environmental Planning and Assessment Act Waverley Local Environmental Plan

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 22-23/08/2006 Plans and written advice 30/08/2006

APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister, Instructed by: Mr M Staunton, Of: Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10279 of 2006 Susan Wernham and Andrew Palmer v Waverley Council

This determination was given extemporaneously and it has been edited prior to publication

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against Waverley Council's refusal of a development application for a dwelling house on the site known as 499 Bronte Road, Bronte.

2 By way of background, subsequent to the Court hearing this matter amended plans were provided as a result of discussions during the proceedings. These were received on 24 August and the council advised 30 August that it had no comment on the amended plans.

3 This is a triangular parcel of land on the corner of Pacific Street and the site has rather magnificent views over Bronte Beach facing north. The area can be described as one that has a mixture of lower density residential development and residential flat buildings. Opposite the subject site in Bronte Road there are a number of residential flat buildings, and also on Pacific Street there has been recent renovations and new residential buildings constructed. The land is steeply sloping and consequently affords views to many of the properties within the area.

4 The adjoining property at 497 Bronte Road is a dual occupancy development and one of the issues in the proceedings is the impacts on the rear dwelling house.. Mr Hemmings, Counsel for the respondent, submitted that the existing dwelling erected on the site in the early 1950's should be retained in the public interest because it is representative of its architecture and has heritage significance to the local area.

5 Mr Rigg for the applicant stated that council had decided not to proceed with a heritage listing in May 2004 and that the dwelling is not in a conservation area and nor is a contributory item or a heritage item. He submitted that these proceedings are for the assessment of the development application and not plan making that is provided for under a different section of the Act.

6 The subject site is zoned under the Waverley Local Environmental Plan and the zoning is Residential 2(a).

7 The Court has the benefit of hearing from a number of experts in the proceedings. Mr Lindsey Fletcher is the Court appointed expert in town planning for this matter. In his assessment of the application he considers that subject to appropriate conditions, the proposal is one that is worthy of approval.

8 There are a number of heritage experts that gave evidence to the Court as well as their written statements of evidence filed.

9 Mr Robert Moore, a consultant heritage architect for the respondent council considers that the existing dwelling house built in 1953 has a clear level of local heritage significance and value, and that it is appropriate for it to be restored and retained. He acknowledges that there would be significant cost associated with restoration and retaining the subject dwelling. He said the dwelling house is representative of a prominent firm of architects in Sydney at that time and it is representative of what is known as the modernist architectural school, he considers the spaces of the dwelling are important in terms of reflecting the era in which it was built and the modernist architecture. Mr Moore is of the opinion that the existing dwelling could be extended with a detached pavilion to the west. He also acknowledged that in terms of the Royal Australian Institute of Architects' Register for significant twentieth century dwelling houses, there are some 237 pages contained within this, and that it is not possible to retain all of these dwellings in the listing.

10 Mr Stephen Davies, heritage architect, for the applicant said in his opinion the significance of the dwelling can be recorded but in terms of heritage significance, the dwelling is not worthy of retention. He acknowledges that that one can always, at a cost, retain or restore dwellings. It is interesting to note that the applicant had a condition report prepared, and in summary this states at Exhibit G: "based on our inspection and our observations, it can be seen that nearly all elements of the house both structural and non-structural are badly dilapidated and require either significant repair, remedial work or require complete replacement. However, the impact and implications of such remedial works is quite substantial and such work is neither inconsequential nor what would reasonably be undertaken in a residential refurbishment." 11 This report listed in detail the areas of disrepair to the dwelling in terms of the timbers and the structural elements, and what would be required to be replaced.

12 Mr Hemmings submitted that the issue in these proceedings is the public interest in terms of s 79C(1)(g), and the public interest must be considered before demolition of the building would be allowed having regard to the heritage significance of the subject dwelling.

13 The question for the Court, that I have elevated in importance for the purpose of my assessment, is the dwelling of such heritage significance that it should be retained as opposed to whether in fact the recording of the dwelling as required by other heritage experts would be adequate in the circumstances of this case.

14 In terms of the heritage significance of the building, it is important to note the Waverley Council Heritage Assessment report 2004/2005 and this has been on public exhibition. This document outlines buildings in the Waverley Council area that are of significance. In terms of No. 499 Bronte Road, it is important to note that the assessment report states that: "…the residence was originally called Toomey House and was designed, documented and built in 1953 as a single level, flat roofed, residential building by architects Ancher Mortlock and Murray. In December 2003, council engaged an independent consultant, Ms Jacqueline Urford, to undertake a heritage assessment of the existing residence, and her report assessed the building as of local significance and made recommendations as to ongoing management. These included provisions for sympathetic additions and recording in the event of possible demolition. A second report was prepared by the former owners, and in that regard Mr Staas considered the dwelling house to be of low heritage significance.

Council inspected the site on 8 May 2004 and following a motion it was recommended that council implement site specific controls to provide guidelines for any future development including stepping down the site, retention of side view corridors, and minimising ridge height and roof design to maintain views. The residence at 499 was assessed and photographed in 2004. However, listing of the site with a view to long term retention of the existing residence is not recommended since most of the existing fabric needs to be replaced and/or resurfaced. This would leave the building largely as a reproduction of the original design… The building is of such a pure form that retention of the original design would require that any additions be in the form of a stand off pavilion, limited increase in FSR and a basement area retaining the cantilevered slab.

The residence is not recommended for listing and not incorporated in the draft Waverley heritage assessment. The current neglected status of the residence results in unrecorded lost buildings or relatively unsympathetic additions.

The building is not nominated for listing in the draft Waverley heritage assessment, but Waverley Council should ensure the most accurate possible record of the fabric as it was designed and currently remains is undertaken. To achieve this, it is recommended photographic recording of the site be undertaken prior to any intervention.

As a consequence it is considered the restoration and retention of the building in a meaningful form is unlikely. This represents a reluctant acknowledgement that demolition is an inevitable outcome due to the inability of any additions ensuring a meaningful retention of the building's significance…"

15 I have quoted extensively from the Waverley Council Heritage Assessment document as it provides a summary of heritage reports and decisions on the premises. It is noted that Ms Urford prepared her report in 2003 and council had the opportunity through a number of reports, contained in Exhibit 2, of listing the subject dwelling if it considered it significance in heritage terms and appropriate in the public interest to do so. It is also noted that there are a number of reports to the council between 2003 and it is only in the determination of this development application that council requires its retention on heritage grounds.

16 The bundle of documents shows that the council in May 2004 resolved that it provides for implementation through the provision of site specific controls to provide guidelines for any future development including stepping down the site, retention of side view corridors, and minimising ridge height and roof design to maintain views. At this time while the council did not formally resolve not to prepare an LEP for the listing of the dwelling as a heritage item it did resolve to prepare site specific guidelines for the development of the site.

17 Given the submission made on behalf of the council that it would not be in the public interest for the dwelling to be demolished and that there be a recognition of its heritage significance, the Court has firstly considered whether on heritage grounds and in the public interest the demolition of the dwelling should be allowed.

18 Having regard to all the evidence to the Court, including that of the applicant and the respondent, with the benefit of the previous studies and the many heritage experts that have considered the subject dwelling, I am not persuaded on the evidence that the dwelling on the site should be retained but rather a photographic record which has been previously recommended by numerous heritage consultants is the appropriate response, and on heritage grounds and in the public interest the dwelling does not warrant its retention.

19 The cost of restoration is not something that I have needed to factor in to arrive at my conclusion that the dwelling should be allowed to be demolished. As stated by Mr Davies and Mr Moore, restoration could be achieved at a cost, but the issue for the Court is whether the dwelling itself is of such significance that it is in the public interest to retain and allow its listing under appropriate instruments.

20 The heritage issue was brought to the attention of council from 2003 and, as I said, there have been several reports and council has not taken the necessary decision to list it. It is only now that it considers the dwelling to be of such heritage significance that it is a reason for its refusal of this development application. In support of its position there were a number of residents that gave evidence to the Court stating that the dwelling was of significance from a heritage point of view and it has local significance to the area of Bronte.

21 The Court granted leave for Mr Ian Struchbury, architect, to give evidence, despite the applicant had not been previously advised. Mr Struchbury is on the Heritage Committee of the Royal Australian Institute of Architects, and there has been a recent resolution to recommend to the Heritage Council that the dwelling currently in the site be listed. It is noted that until the site inspection he had not inspected the internal part of the dwelling and had only made his recommendation from an external inspection of the dwelling.

22 The Court heard from the residents on site at the beginning of the proceedings and inspected the subject site and surroundings. The residents included: Ms Creswell gave evidence, Ms Wilson, Ms Milson, Mr Wheeler, Mr Harvey, Mr Dobell, Mr Brown and Ms McLaughlin. A number of residents supported the subject development application and told the Court it had been through an extensive series of discussions and negotiations and agreements in terms of what would be appropriate design parameters for the building.

23 The subject site is in a very prominent location and this is recognised in the heritage statements as well. Given the topography and the prominent location means development of the site could impact significantly and severely on the views from dwelling units opposite the subject site, and it could also impact on the adjoining residence at No. 497.

24 The design criteria the applicant obtained from the Council and tendered as Exhibit K, the council contests do not have any formal status. It is noted in these design criteria that the aims and objectives are: to guide the form and scale of future development for the site; to encourage good design consistent with the nature of the existing area; and to maintain the amenity of adjacent and surrounding residential sites and public spaces. Attached to the design criteria there is a diagram that identifies what are considered to be significant view corridors, appropriate boundary setbacks and maximum RLs or maximum heights for any future dwelling on the site.

25 Subsequent to council's refusal, the development application a s 82A the applicant sought Review under the Act. It is noted in the s 82A review the officer's report recommended r approval. This states that the proposed development has responded to the preservation of sight lines from nearby residents and it is considered an appropriate development for approval. The 82A review provided a summary of the heritage significance and concluded that the dwelling was not of such significance to warrant its retention.

26 The Court, has considered the 'public interest' and It is also noted that there are many public interests. I considered in terms of public interest in terms of heritage significance, that one must also look at public interest in other respects as well. As I stated, the council had previously had the opportunity to list the dwelling and has previously made its position clear by not proceeding to prepare a local environmental plan to list the dwelling as a heritage item and the recent exhibition heritage assessment study that was undertaken. On the other hand in terms of public interest there must be some certainty in the planning process for applicants and the community.

27 Mr Rigg submitted that The Environmental Planning and Assessment Act provides for distinct processes and for plan making this is Part 3 and for development assessment this is in Part 4. And the Court must assess the development application in terms of the guidelines and controls in council's local planning framework/ regime prepared under Part 3 of the Act.

28 The approach to reactivate whether the dwelling should be listed during the development application process can also be considered to be against the public interest as submitted by Mr Rigg and "this does not represent orderly and economic development in terms of the object of the Act in s 5 of the Act".

29 No evidence has come to light that persuades me to deviate from the previous decisions of council, or passive decision of council, not to list the property. There is nothing that persuades the Court on the evidence that the building should be retained and not demolished. As I said, Mr Struchbury provided evidence to the Court to support Council's position to retain the dwelling as did Mr Moore.

30 I am persuaded by the applicant's evidence that the dwelling does not warrant retention. I consider it not to be of such significance, and the recording and photographing of the current dwelling on the subject site will be adequate for the purposes of recording the building.

31 The respondent cited the decision of Helou v Strathfield Municipal Council [2006] NSWLEC 66 as relevant to my assessment in this matter. However, this judgment deals with planning principles for a contributory item in a conservation area and the facts in case are clearly distinguishable. The subject site is not in a conservation area, the dwelling is not a contributory item in terms of the conservation area, and the principles articulated in the above judgment are not of assistance in determining the heritage significance of this dwelling.

32 Because of the significance and the height at which the heritage significance was raised in the proceedings I considered the heritage significance of the dwelling akin to a threshold question in my assessment. Having been satisfied the dwelling does not warrant retention I turn now to the merits of the development application.

33 The dwelling has been architecturally designed and with the benefit of the view the Court understands its relationship to adjoining dwellings and the impacts and how the development would sit within the context of this important triangular parcel of land at Bronte. I am satisfied the proposed development with the amendments as discussed during the proceedings to ensure that the privacy both aural and visual of the adjoining property at 497 Bronte Road is reasonably maintained by certain amendments.

34 The above amendments have been incorporated in the plans known as Exhibit O in the proceedings, that is the plans submitted on 24 August, such that the intervening landscaping on the boundary, the reduction in the coping to the swimming pool on the western edge and other privacy ameliorative mechanisms have been incorporated into the proposed development, such that I am satisfied that it will not cause unreasonable impacts in terms of the rear dwelling at 497, in particular on its open space area.

35 I am also satisfied and assisted by the assessment of Mr Fletcher the Court-appointed expert that the separation distances to No. 497 in a suburban context are satisfactory. It is noted in areas especially by the sea with spectacular views that there is often a degree of overlooking. However, I am satisfied that this development goes further than providing for only limited overlooking of other properties and that it will sit in its context in terms of the triangular significant parcel of land on Bronte Road and Pacific Street.

36 The applicant has also agreed to lower the proposed sandstone fences and also further set back the sandstone to the apex of Pacific Street and Bronte Road. Amendment of public benefit is the further set back of the garage to provide for a view corridor from Pacific Street down through to Bronte Road and the lowering of fences and gates.

37 I am satisfied that the proposal is meritorious in its design. It will provide a positive contribution to the streetscape and it represents good urban design in terms of its relationship with the public domain. The dwelling once erected will be, as I stated, an architecturally designed dwelling of high design dwelling.

38 It is noted there were a number of local residents who attended the site inspection on the first day of these proceedings, however, when the application was originally advertised, there were only some three objections received. In particular the owners of No. 497 were concerned about their privacy and the impacts. I am satisfied that the amended plans ameliorate their concerns. The dwellings opposite in terms of the units, the concerns from residents regarding views, and I am satisfied the application provides for view sharing and the amended plan further improves this.

39 With respect to the conditions, the applicant objected to certain conditions proposed by the council, and in particular these relate to the sandstone walls. In Condition 3 it is stated that "all new sandstone walls and the garage façade shall be of block-work construction and, where possible, existing sandstone salvaged from on site and reused. The replacement stone shall be of a suitable quality to match the existing and adjoining walls". I have assessed Condition 3 in terms of the development control plan. The DCP refers to sandstone terraces within the area where the change in topography is of such an extent that there is block sandstone in road separations, and there are block sandstone walls where they form retaining walls for certain dwellings and garages. This is not the case in this development application in terms of the topography of the subject site and its relationship with the adjoining streets.

40 The applicant contends that the condition is unreasonable. The plan shows rough cut sandstone cladding and I am satisfied that this is appropriate in the circumstances of this case. I have given the DCP focal consideration in terms of Zhang v Canterbury City Council [2001] NSWCA 167, a judgment of the Chief Judge in the Court of Appeal, in terms of the importance of development control plans, in giving proper, real and genuine consideration to their provisions, and have done so here. I am satisfied that the proposed development as shown in the plans is not inconsistent or would not conflict with those provisions.

41 The DCP refers to the Bronte character where "the terraces have steep slopes with wide panoramic views. The landform has given rise to curvilinear streets with stone wall terraces one of the strongest landscape features". The DCP refers to the existing character elements being the terracing. I am satisfied that this site does not fall within the category contemplated in council's DCP for stone block and that the proposal as shown in the plan is satisfactory.

42 The other issue that the council conditioned was with respect to the Bronte Road footpath, Condition 4. This condition requires that for the Bronte Road frontage, the applicant construct a concrete footpath connecting Pacific Street with the footpath outside 497 Bronte Road, and that the rock retaining wall at the back of the concrete kerb and gutter be reconstructed in similar materials for the area in accordance with the condition.

43 In terms of a nexus of this development application, where a dwelling house is replacing an existing dwelling house, albeit of a much larger size, there is no nexus to warrant this condition. It was estimated that the cost of regrading and providing a footpath along Bronte Road would be very substantial. It is also noted in terms of s 94 contributions a one per cent levy applies to the development application, and council has the discretion to do such works in terms of its own work programme with the benefit of levies from developments such as this one and any other redevelopments within the area. Therefore, in terms of Condition 4, that will also be deleted.

44 Condition 2 referred to general modifications and it is noted that these are now incorporated in the revised plans, Exhibit O, which are also the plans that will be referred to the approval.

45 Therefore, on the basis of the Court's assessment of the development application, having regard to the fact that the amenity impacts on adjoining properties were significantly ameliorated through the design process and through the further amendments that were forthcoming to the Court at the end of the issues in the proceedings were largely resolved, except that of heritage significance of the exiting dwelling on the site. In this regard I have comprehensively assessed the heritage question above to ensure its demolition would not be against the public interest. In this regard I note the processes that council has gone through in terms of when the heritage significance of this dwelling was first raised and what is the appropriate process in terms of certainty in the planning process. 46 Accordingly based on my assessment above, the formal orders of the Court are: 1. The appeal in respect of the property known as No. 499 Bronte Road, Bronte, is upheld. 2. The development application submitted to Waverley Council and as amended, for demolition of the existing dwelling and erection of a new dwelling and pool as shown in the architectural plans drawing Nos. A01, A02, A04, A06, A07, Issue C and A03 and A08 Issue D filed on 24 August 2006 and the landscape plan prepared by Corben Architects, is approved subject to the conditions in Annexure 'A'. 3. The exhibits except 3, E, L and O are returned to the parties.

              J S Murrell
              Commissioner of the Court
              rjs

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