Campbell and City Of Stirling

[2008] WASAT 254

CAMPBELL and CITY OF STIRLING [2008] WASAT 254

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 254
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:206/2008	Heard:	7 OCTOBER 2008
Coram:	MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)	Delivered:	2/11/08
No of pages:	16	Judgment Part:	1 of 1
Result:	The application for review is dismissed and the decision of the respondent affirmed
Category:	B
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Parties:	KAREN CAMPBELL DAVID CAMPBELL KRIS CAMPBELL LEE CAMPBELL CITY OF STIRLING
Catchwords:	Town planning Demolition of existing residence Heritage Protection Area Heritage provisions of City of Stirling District Planning Scheme No 2 Character Retention Design Guidelines State Planning Policy 3.5 Historic Heritage Conservation Retention and conservation of original buildings within Heritage Protection Area Unlisted buildings within Heritage Protection Areas Integrity of streetscape Condition of original dwelling Contribution to streetscape Objective of s 3.1 of the Character Retention Guidelines
Legislation:	Planning and Development Act 2005 (WA), Pt 3 City of Stirling District Planning Scheme No 2 , cl 1.3.5.1(f), cl 2.2.3, cl 2.2.3.1, cl 2.2.3.2
Case References:	Branca and City of Stirling [2008] WASAT 69 Slusarczyk and City of Stirling [2008] WASAT 194
Orders	For the above reasons, the Tribunal makes the following orders:,1. The application for review is dismissed. ,2. The decision of the respondent is affirmed.
Summary	On 10 March 2008, Karen Campbell submitted an application to the City of Stirling seeking approval for the demolition of the existing residence at No 7 (Lot 76) Fourth Avenue, Mount Lawley.,On 5 May 2008, the City of Stirling advised that the application had been refused.  An application for review of this decision was subsequently lodged with the Tribunal on 30 May 2008.,The parties agreed that the issue was:,Whether the proposed demolition of the dwelling at HN 7 (Lot 76) Fourth Avenue, Mount Lawley is inconsistent with Clause 2.2.3.2 of the respondent's District Planning Scheme No. 2, and the Objective of Section 3.1 of the respondent's Character Retention Guidelines.,In this particular case, the Tribunal found that while the existing house has undergone changes, the form of the house and its location on the site were representative of its architectural style.  While evidence was led that the condition of the house had 'deteriorated to some degree', no evidence was provided that it was structurally unsafe or irredeemable.,The Tribunal found that if the existing residence were retained, it would continue to make a contribution to the character of a streetscape largely characterised by traditional houses, while its removal would further undermine a section of the streetscape already compromised by new development which did not conform to the Guidelines.,On this basis, and in the context of the wider cultural heritage value of Fourth Avenue and the Mount Lawley Heritage Protection Area generally, the Tribunal took the view that to approve demolition in this case would undermine the objective of s 3.1 of the City of Stirling's Character Retention Guidelines.,For these reasons, the application for review was dismissed and the decision of the City of Stirling affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CAMPBELL and CITY OF STIRLING [2008] WASAT 254 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 7 OCTOBER 2008 DELIVERED : 3 NOVEMBER 2008 FILE NO/S : DR 206 of 2008 BETWEEN : KAREN CAMPBELL

DAVID CAMPBELL
KRIS CAMPBELL
LEE CAMPBELL
Applicants

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning - Demolition of existing residence - Heritage Protection Area - Heritage provisions of City of Stirling District Planning Scheme No 2 - Character Retention Design Guidelines - State Planning Policy 3.5 Historic Heritage Conservation - Retention and conservation of original buildings within Heritage Protection Area - Unlisted buildings within Heritage Protection Areas - Integrity of streetscape - Condition of original dwelling - Contribution to streetscape - Objective of s 3.1 of the Character Retention Guidelines

(Page 2)

Legislation:

Planning and Development Act 2005 (WA), Pt 3

City of Stirling District Planning Scheme No 2 , cl 1.3.5.1(f), cl 2.2.3, cl 2.2.3.1, cl 2.2.3.2

Result:

The application for review is dismissed and the decision of the respondent affirmed

Category: B

Representation:

Counsel:

Applicants : Ms Karen Campbell (Self-represented) with Mr R Bodycoat (Representative)
Respondent : Mr N Maull with Ms L Allia (Representatives)

Solicitors:

Applicants : Self-represented
Respondent : City of Stirling

Case(s) referred to in decision(s):

Branca and City of Stirling [2008] WASAT 69
Slusarczyk and City of Stirling [2008] WASAT 194


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On 10 March 2008, Karen Campbell submitted an application to the City of Stirling seeking approval for the demolition of the existing residence at No 7 (Lot 76) Fourth Avenue, Mount Lawley.

2 On 5 May 2008, the City of Stirling advised that the application had been refused. An application for review of this decision was subsequently lodged with the Tribunal on 30 May 2008.

3 The parties agreed that the issue was:

Whether the proposed demolition of the dwelling at HN 7 (Lot 76) Fourth Avenue, Mount Lawley is inconsistent with Clause 2.2.3.2 of the respondent's District Planning Scheme No. 2, and the Objective of Section 3.1 of the respondent's Character Retention Guidelines.

4 In this particular case, the Tribunal found that while the existing house has undergone changes, the form of the house and its location on the site were representative of its architectural style. While evidence was led that the condition of the house had 'deteriorated to some degree', no evidence was provided that it was structurally unsafe or irredeemable.

5 The Tribunal found that if the existing residence were retained, it would continue to make a contribution to the character of a streetscape largely characterised by traditional houses, while its removal would further undermine a section of the streetscape already compromised by new development which did not conform to the Guidelines.

6 On this basis, and in the context of the wider cultural heritage value of Fourth Avenue and the Mount Lawley Heritage Protection Area generally, the Tribunal took the view that to approve demolition in this case would undermine the objective of s 3.1 of the City of Stirling's Character Retention Guidelines.

7 For these reasons, the application for review was dismissed and the decision of the City of Stirling affirmed.

Background

8 On 10 March 2008, the City of Stirling (respondent, City or Council) received an application signed by Karen Campbell seeking approval for the demolition of the existing residence at No 7 (Lot 76) Fourth Avenue, Mount Lawley.

(Page 4)

9 The application was referred by the Council to Palassis Architects to provide heritage advice in regard to the demolition. This advice was contained in a subsequent report dated 22 April 2008 which recommended that:

The individual heritage value of HN 7 Fourth Avenue, as a largely intact building in a Heritage Protection Area would be adversely affected if demolition of the existing building were allowed, as would the streetscape amenity of Fourth Avenue generally.

10 On 5 May 2008, the City advised the applicant that the application had been refused for the following reason:

The proposed demolition is not in accordance with Clause 2.2.3.2 of District Planning Scheme No. 2 and Section 3.1 of the Character Retention Guidelines.

11 An application for review of this decision was subsequently lodged by Ms Campbell with the Tribunal on 30 May 2008.

Subject land

12 The subject land is located at No 7 (Lot 76) Fourth Avenue, Mount Lawley. The lot comprises an area of 1,112 square metres located on the southern side of Fourth Avenue centrally in the block bounded by Railway Parade and Coode Street. A ROW runs along the southern boundary of the lot. This ROW runs perpendicularly from Coode Street and then turns northwards joining Fourth Avenue between houses No 1 and No 3.

13 The existing building on the subject land comprises a modest residence of approximately 110 square metres constructed in 1935. The house constitutes part of the initial residential development in Fourth Avenue. It is single storey and set back approximately 7 metres from the street boundary behind a low fence. It has a tiled hipped roof with a lower hipped roof over a projecting entry porch. A garage on the western side appears to have been built after the construction of the residence. The rear verandah has been enclosed in a sleep­out and the residence has an external toilet. The house displays some evidence of rising damp.

Locality

14 The subject site falls within Mount Lawley East which forms part of the broader Mount Lawley Heritage Protection area.

(Page 5)

15 This area constitutes a typical example of a rectangular grid road and subdivision pattern. It contains a range of housing which includes good examples from the early 1900s and inter-war period. The general street layout includes grass verges and street trees.

16 The suburb comprises predominantly single residential buildings with one house to each block. Houses are generally single storey and are located towards the front of the lot. Setbacks are fairly consistent within individual streets and vary between 5 metres and 9 metres. The majority of the area is served by back lanes.

17 While the lot pattern is fairly consistent in Mount Lawley East, generally in the immediate locality of the subject land it is characterised by a much more varied pattern of lot sizes.

18 The section of Fourth Avenue within which the subject land falls is characterised by a fairly varied streetscape which includes a number of multi­unit developments. On the southern side of the street, only two of the original dwellings remain (No 3 and No 7). No 1 and No 5 have been redeveloped with recent two storey multi-unit developments and No 9 is a somewhat older complex comprising single storey villas facing the street with two storey villas at the rear. On the northern side of the street the lots retain their original dwellings, although No 8 has a two storey addition towards the rear of the property and No 2 has been amalgamated with the lots facing Railway Parade which have been developed with two storey villas.

19 In this context, the northern side of the street constitutes a reasonably intact streetscape of original houses. While these vary somewhat in terms of architectural style, the front setbacks and the form of the buildings are reasonably consistent. Importantly, the impact of the multi-unit development at the eastern end facing Railway Parade is mediated by heavy planting.

20 The streetscape of the southern side of the street is much more varied. While the single storey villas facing the street at No 9 and their associated landscaping merge reasonably well with the two original dwellings, the new multi-unit developments at No 5 and No 1 are intrusive. While the impacts of the new development on the original dwelling at No 3 are mitigated to some degree by the separation afforded by the ROW and a driveway on the eastern side of No 5, the impacts of the development at No 5 on the subject land are far more substantive.

(Page 6)

Statutory and policy provisions

21 The subject land is zoned medium density residential R50 under the provisions of the City of StirlingDistrict Planning Scheme No 2 (DPS 2 or Scheme) and falls within the Mount Lawley Heritage Protection Area.

22 The current Heritage Protection Area was gazetted by way of Amendment 364 to DPS 2 in May 2000, replacing previous heritage protection provisions. The subject property is not contained on either the heritage list under DPS 2 or the respondent's adopted municipal inventory.

23 Clause 1.3.5.1(f) of the respondent's DPS 2 sets out matters to which the Council shall have regard in determining an application for development under the Scheme and includes any heritage policy statement or guidelines adopted for Heritage Protection Areas.

24 DPS 2 specifically addresses Heritage Protection Areas in cl 2.2.3.1 and cl 2.2.3.2. It seeks to ensure that any new development within a Heritage Protection Area is in harmony with the character of existing dwellings in the area and the local streetscape, and complies with the Character Retention Design Guidelines (Guidelines) adopted by the Council.

25 The intent of Heritage Protection Areas is set out in cl 2.2.3.1 of DPS 2 as follows:

It is the intention of the Council to ensure that any new development within a Heritage Protection Area is in harmony with and reflects:

(a) the character of existing dwellings in the area; and

(b) the local streetscape and existing pattern of development.

…

26 Clause 2.2.3.2 of DPS 2 addresses development within a Heritage Protection Area which is required to comply with the following:

(a) the intention of the Council under Clause 2.2.3.1 of Scheme;

(b) unless otherwise approved by the Council, the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and

(c) the Character retention Design Guidelines adopted by the Council.

(Page 7)

27 The Guidelines for the Heritage Protection Areas of Mount Lawley, Menora and Inglewood were adopted by the respondent in July 2006. These Guidelines were developed over a four year period which included extensive public consultation.

28 They include coverage of the character and history of each area and in s 3.1 of the Guidelines, which deals with the demolition of existing buildings, establishes the following objective:

Retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s.

29 The Guidelines require a written justification addressing the following points if the demolition of an existing house is proposed:

a) Detail why the character of the building and its setting does not contribute to the character of the Heritage Protection Area and streetscape;

b) Detail why the building is not a typical or intact example of a specific architectural style or building type, or is not an example of a building containing unusual or finely executed detailing;

c) Detail (with written documented evidence provided by an independent expert) why the place is structurally unsafe and irredeemable, and the conservation of the place is not viable (NB; property owners are responsible for the maintenance of their asset, and allowing a property to fall into disrepair will not facilitate an approval for demolition). Only where the place has been identified as an 'intrusive' or 'neutral' place (houses or unit developments of more recent design), consideration can be given to varying this requirement;

d) Is the building listed on the City's Heritage List;

e) Is the building the work of a noteworthy architect, designer or builder;

f) Was the building the home of an important person in the history of the locality, or the location of a significant event or activity in the history of the locality;

g) Does the building have a significant meaning to a specific and identifiable group in the community.

30 In May of 2007 the State Planning Policy 3.5 Historic Heritage Conservation was made under Pt 3 of the Planning and Development Act 2005 (WA). This policy applies principally to historic cultural heritage including
(Page 8)

heritage areas, and applies to places and areas of significance at both State and local level.

31 The objectives include:

• To ensure that development does not adversely affect the significance of heritage places and areas.

• To ensure that heritage significance at both the State and local levels is given due weight in planning decision­making.

32 In respect of heritage areas, the policy requires that heritage areas should always be designated on the basis of a clear statement of significance, and that the local government adopt a local planning policy that sets out the objectives and guidelines for conserving the significant heritage fabric of the area.

33 The policy requires that:

Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places.

34 In addressing development within heritage areas the policy states that:

• Development within a heritage area should respect and complement the heritage significance of the area as identified in the local planning policy. A respectful design approach gives special consideration to the siting, scale, architectural style and form, materials and finishes of the proposed development in relation to its neighbours, without copying historic detailing or decoration.

• A general presumption should apply in favour of retaining buildings that make a positive contribution to the significance of the area.

• Approval for demolition, if granted, may be accompanied by a requirement for an acceptable redevelopment proposal to avoid gap sites. If redevelopment is likely to be delayed, consideration should be given to the interim use of the land including a requirement for sympathetic treatment such as facade retention, landscaping or boundary treatment.

(Page 9)

35 As the Tribunal found in Slusarczyk and City of Stirling [2008] WASAT 194 (Slusarczyk and City of Stirling), 'The net result of the instruments referred to above is, generally speaking, to place significant barriers in the way of a party seeking to demolish a dwelling house in Mount Lawley'.

36 In Branca and City of Stirling [2008] WASAT 69 (Branca and City of Stirling), the Tribunal went further, saying at [67]:

The objective of the Guidelines to 'retain and conserve original buildings ... particularly those dating from the early 1900s to the 1950s' creates a general presumption in favour of retaining such buildings. However, such a policy aspiration is not determinative of the matter and individual applications are required to be assessed on their merits.

37 In commenting on that observation in Branca and City of Stirling, the Tribunal concluded in Slusarczyk and City of Stirling that:

Whether these instruments, correctly interpreted, go so far as to create a presumption against demolition or are just 'significant barriers' to the same might turn out to be a distinction without a difference.

The applicant's case

38 Karen Campbell, the applicant, gave evidence that prior to the submission of an offer to purchase the property, enquiries were made with the City to check the zoning and to ensure that the property was not heritage listed. Ms Campbell said:

We were assured by the City of Stirling that the property was only in a Heritage Protection Area, and that any houses we intended to build had to comply with the Heritage Protection Guidelines. No mention was made of the fact that every demolition licence applied for within the area was submitted to a Heritage Architect for an assessment and that demolition could be refused, regardless of the condition of the property.

39 Ms Campbell gave evidence that the property was bought with the sole intention of demolishing the existing house and building four new town houses and in her view demolition was justified for the following reasons:

• The building does not contain any unusual or finely executed detailing. The original roof has been replaced with a more modern style of tile inconsistent with the rest of the house.

(Page 10)

• The dwelling is economically unviable to restore as there is little in the way of basic sanitary accommodation as defined by today's standards. The residence has an outside toilet, the plasterwork and render is blown, structural timber would need to be replaced, there is evidence of rising damp and the sleep­out appears to be constructed of asbestos.

• The building is not listed on the City's Heritage List, nor does it appear on the Local Government Heritage Inventory.

• The building is not the work of any known architect.

• The home has never been inhabited by anyone of importance or interest to the locality.

• The building does not have any local significance nor is it identifiable to any group in the community at the present, or in the past.

40 Ms Campbell also argued that the existing dwelling is located in an area zoned R50 and has had extensive development immediately adjacent to and in the general location of the site, and, finally, a number of neighbours in the street had signed a document supporting demolition.

Issue for determination

41 The parties agreed the issue under review was:

Whether the proposed demolition of the dwelling at HN 7 (Lot 76) Fourth Avenue, Mount Lawley is inconsistent with Clause 2.2.3.2 of the respondent's District Planning Scheme No. 2, and the Objective of Section 3.1 of the respondent's Character Retention Guidelines?

The experts evidence

42 On this issue, the Tribunal was assisted by the evidence of two heritage expert witnesses in this matter; Mr Ronald Bodycoat, who was called by the applicant, and Ms Nerida Moredoundt who was called by the respondent.

43 In their joint statement the heritage experts agreed that:

(Page 11)

• The matter before the Tribunal involved considering the external presentation of the existing house and its context in considering the development of the proposed site.

• The existing house is an example of a simple inter-war bungalow constructed c1930 and that its condition has deteriorated to some degree.

• While the existing house has undergone changes, the form of the house and its location on the site are representative of its architectural style.

• New development of the neighbouring lots have replaced the original single storey houses that were once located there and that this new development does not conform to the Guidelines.

• That the development potential to the rear of the lot could potentially include subdivision and the construction of new dwellings.

44 The issues on which the heritage experts differed included the following:

• The extent to which the Fourth Avenue streetscape will continue to change.

• The extent to which the existing house is stylistically isolated within the Fourth Avenue streetscape.

• The extent to which the changes to, and condition of, the existing house affect its contribution to the Fourth Avenue streetscape and to the Mount Lawley Heritage Protection Area.

• The appropriateness of new additions to the rear of the existing residence.

45 Mr Bodycoat argued that the area has been transformed by new, higher density development, which will continue to change the area. 'The developments in place on both sides of the house at No 7 are different in architectural character, of higher density on larger lots, two storey in height on both the western and eastern neighbouring lots, and located closer to the street boundaries'.

(Page 12)

46 He also argued that the existing house is stylistically isolated in its immediate locality, particularly due to the more recent development immediately adjacent on both sides and nearby in Fourth Avenue. 'The overall architectural character is not consistent with the small Californian Bungalow or Inter-War Bungalow styles of the surviving initial houses including the house at No 7'. As a consequence, it was Mr Bodycoat's opinion that there is no real homogeneity of architectural form in the streetscape in the locality.

47 In regard to the existing residence, Mr Bodycoat argued that the house does not conform to the full expression of the federation bungalow in the inter­war period of the 1920s and 1930s and both the current status of the existing house and its context render it contributing little to the streetscape. He rejected the concept of rear additions which would not in his view resolve the issues associated with an ordinary, small, dark house. He suggested that the character and the physical condition of the existing house at No 7 seriously challenged the amenity of the building, citing a range of issues which included inadequate light and ventilation, level changes, lack of energy efficiency, rising damp and previous alterations.

48 Mr Bodycoat concluded that the proposal to demolish the house and to redevelop the lot for new residential units will not impact adversely on the streetscape nor on the amenity in that section of Fourth Avenue, will not have an adverse impact on the Heritage Protection Area in the context of the current status of Fourth Avenue and will provide an opportunity for the development of new residences which appropriately address the expectations and amenity for living in 2008. This would also create a more consistent built form on the south side of Fourth Avenue.

49 Ms Moredoundt argued that the recent development did not accord with the current Guidelines and will therefore not continue unabated. In regard to the Fourth Avenue streetscape, she argued that while the whole side of the street on which the existing house is located has undergone change, the retention of the row of traditional houses on the opposite side of the street and elsewhere in Fourth Avenue, contributes to an overall streetscape that is largely characterised by traditional houses.

50 Ms Moredoundt argued that the stylistic characteristics of the existing house are clearly evident and that as a house constructed in c1930s, it contributes to the streetscape and the Heritage Protection Area, and that additions are appropriate and provided for in the Guidelines.

(Page 13)

51 Ms Moredoundt suggested if one of the two remaining houses on this side of Fourth Avenue were to go, the remaining sense of continuity in the streetscape would be lost. Streetscape, she argued, is about character rather than consistency and differences of character can contribute to the overall perception of the streetscape although retention should be an overarching principle.

Discussion of the case

52 The Tribunal is required to consider whether the significance of the dwelling is such that the application warrants refusal. In doing so, the specific objective of cl 2.2.3.1 of TPS 2 'to ensure that any new development within a Heritage Protection Area is in harmony with and reflects the character of existing dwellings in the area; and the local streetscape and existing pattern of development' is relevant. In addition, the requirements of cl 2.2.3.2 of TPS 2 that development complies with the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and the detailed provisions of the Guidelines are also germane.

53 The substantive criteria established by cl 2.2.3.2 of TPS 2 are whether an existing building is considered to significantly contribute to the streetscape or character of the area, and whether the development complies with the Guidelines adopted by the Council.

54 While the Tribunal is willing to accept the evidence of Mr Bodycoat that to some degree the residence is 'stylistically isolated in its immediate locality, particularly due to the more recent development', the Tribunal prefers the evidence of Ms Moredoundt that 'while the whole side of the street on which the existing house is located has undergone change, the retention of the row of traditional houses on the opposite side of the street and elsewhere in Fourth Avenue, contributes to an overall streetscape that is largely characterised by traditional houses, and that if either one of the two remaining houses on this side of Fourth Avenue were to go, the remaining sense of continuity in the streetscape would be lost'.

55 In this context the Tribunal found that if the existing residence were retained, it would continue to make a contribution to the character of an overall streetscape that in Ms Moredoundt's description is largely characterised by traditional houses, while its removal would further undermine a section of the streetscape already compromised by new development which does not conform to the Guidelines.

(Page 14)

56 The sole objective established by s 3.1 of the Guidelines is toretain and conserve original buildings 'particularly those buildings dating from the early 1900s to the 1950s'.

57 The 'points' set out under s 3.1, which require justification if a demolition is sought, effectively establish relevant criteria to be weighed in judging whether the objective to 'retain and conserve original buildings' should be set aside.

58 The contribution of the residence to the streetscape and Heritage Protection Area has been addressed above.

59 In establishing whether the building is a typical or intact example of a specific architectural style or building type, the heritage experts agreed that:

The existing house is an example of a simple Inter-War Bungalow constructed c1930 … While the existing house has undergone changes, the form of the house and its location on the site are representative of its architectural style.

60 While evidence was led that the condition of the house has 'deteriorated to some degree', no evidence was provided that it was structurally unsafe and irredeemable. There was clearly a difference of opinion between the heritage experts on whether its conservation was viable. However, such matters are to be considered in the context of the overarching heritage values not only expressed in DPS 2 and the Guidelines, but more recently reinforced by State Planning Policy 3.5 which contains the following statement:

Demolition approval should not be expected simply because redevelopment is a more attractive economic proposition, or because a building has been neglected. Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places.

61 On this basis, and in the context of the wider cultural heritage value of Fourth Avenue and the Mount Lawley Heritage Protection Area generally, the Tribunal takes the view that to approve demolition in this case would undermine the objective of s 3.1 of the Guidelines.

62 However, if the information provided to Ms Campbell was as described in her evidence, perhaps some consideration should be given by the respondent to ensuring a better understanding of the Guidelines within the community.

(Page 15)

63 In the Tribunal's view, the respondent reached the correct and preferable decision when it refused demolition applying cl 2.2.3.2 of DPS 2. This is consistent with the view expressed by the Tribunal in Slusarczyk and City of Stirling where it was decided:

Amongst other things, demolition in this case would not meet the express objective of [retention and conservation] of original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s.

Conclusion

64 In regard to the demolition of the existing dwelling, the respondent, and the Tribunal on review, is required by cl 1.3.5.1(f) of DPS 2 to have due regard to any heritage policy statement or guidelines adopted for Heritage Protection Areas under cl 2.2.3 of DPS 2.

65 The objective of the Guidelines to 'retain and conserve original buildings … particularly those dating from the early 1900s to the 1950s' places significant barriers in the way of a party seeking to demolish a dwelling house in the Mount Lawley Heritage Protection Area. However, such a policy aspiration is not determinative of the matter and individual applications are required to be assessed on their merits.

66 In this instance the Tribunal finds that while the existing house has undergone changes, the form of the house and its location on the site are representative of its architectural style. While evidence was led that the condition of the house has 'deteriorated to some degree', no evidence was provided that it was structurally unsafe or irredeemable.

67 The Tribunal therefore finds that if the existing residence were to be retained, it would continue to make a contribution to the character of an overall streetscape largely characterised by traditional houses, while its removal would further undermine a section of the streetscape already compromised by new development which does not conform to the Guidelines.

68 For these reasons, the application for review is dismissed and the decision of the respondent affirmed.

(Page 16)

Orders

69 For the above reasons, the Tribunal makes the following orders:

1. The application for review is dismissed.

2. The decision of the respondent is affirmed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P DE VILLIERS, SENIOR SESSIONAL MEMBER