Court Refuses Proposal To Demolish House in Heritage Conservation Area

A development application that proposes the demolition of a historic building that is contributory to a heritage conservation area will not have an easy path to approval in the Land and Environment Court.  The high hurdle that such development applications will face was illustrated again in a recent decision issued by Commissioner Tuor, Brookfiled Design Pty Ltd v Hornsby Shire Council and Samuels v Hornsby Shire Council, (2014) NSWLEC 1191. Commissioner Tuor's judgement in the case can be found at the following link:  http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173870

The application at issue in the case sought approval for the demolition of an "interwar" bungalow that had originally been built in 1936. The house is located in the Beecroft-Cheltenham Heritage Conservation Area of Hornsby council's local government area. The Character Statement for the area that forms part of the Council's Local Environmental Plan included "Prescriptive Measures" which specified that buildings from the interwar period should be retained, and that demolition should be considered only where it is "not reasonable to alter and extend to meet contemporary amenity and living standards".  Furthermore, the Council's Development Control Plan includes provisions which state that demolition of buildings that are characteristic of a heritage conservation area should be avoided when they are intact or easily capable of having characteristic details reinstated.

Alterations had been carried out to the house that was the subject of the demolition proposal, including the addition of a first floor level with gabled dormers and a rear extension. Competing expert opinion was offered to the Court by experts for the applicant and the Council concerning whether the building remained an "intact" example of an interwar dwelling.  

Commissioner Tuor ultimately accepted the evidence of the Council's heritage expert. She found that although changes had been made to the roof of the building, the majority of the front of the house was still easily recognisable as an interwar building.

Additional factors were identified by Commissioner Tuor as supporting her conclusion that there was not sufficient justification to allow demolition of the house. These included the fact that the house was in good condition, was structurally sound and was capable of providing a level of accommodation to meet contemporary requirements. A further reason for dismissal of the appeal was the absence of evidence that alternative options for development on the site which did not involve demolition had been considered  (for example the placement of a proposed new house to the rear of the existing interwar building). 

It is suggested that the considerations which led the Court to refuse approval for demolition in this case will have general application in other similar cases. Thus, applicants who are seeking to replace buildings in heritage conservation areas with modern structures are likely to face an uphill battle, and should exercise caution before investing the time and expense of pursuing such proposals.