DO CARMO and CITY OF FREMANTLE
[2009] WASAT 169
•2 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DO CARMO and CITY OF FREMANTLE [2009] WASAT 169
MEMBER: MR P McNAB (MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: 3 JUNE 2009
DELIVERED : 2 SEPTEMBER 2009
FILE NO/S: DR 75 of 2009
CC 907 of 2008
BETWEEN: FERNANDO DO CARMO
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Heritagelisted building - Demolition proposed - Simple timberframed cottage - 1920s worker's cottage in Fremantle - Cottage in substantially dilapidated state - Significant heritage values expressed in planning framework - Neglect of building not to lead automatically to demolition - Contribution of building to streetscape - Whether heritage streetscape largely intact - Tribunal finding heritage streetscape relatively intact - Corresponding notice to repair also under review - Structural condition of cottage - Tribunal refusing demolition - Cottage had cultural heritage significance and was worthy of retention - Cottage still capable of conservation - Cottage could provide for modernday accommodation - Local government indicating that it would support partial demolition of front garage added to cottage - Notice to repair consequently affirmed - Applications for review dismissed
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.6, cl 4.2, cl 7.1.1, cl 7.1.7, cl 10.2
City of Fremantle Town Planning Scheme No 3
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 408
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1)
Result:
Applications for review dismissed
Decisions under review affirmed
Category: B
Representation:
Counsel:
Applicant: Mr SJ Bain (Representative)
Respondent: Ms A Butterworth (Representative)
Solicitors:
Applicant: SJB Town Planning & Urban Design (Town Planners)
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Callan and City of Fremantle [2007] WASAT 133
Douglas and City of Fremantle [2008] WASAT 2
Dunross Enterprises Pty Ltd and City of Fremantle [2006] WASAT 164
Hobbs and Town of Vincent [2009] WASAT 167
Klopper and City of Fremantle [2008] WASAT 138
Manucci and City of Fremantle [2007] WASAT 217
McKimm and Western Australian Planning Commission [2008] WASAT 128
MMAGS Holdings Pty Ltd and City of Fremantle [2006] WASAT 175
Patroni and City of Fremantle [2007] WASAT 63
Williams and City of Fremantle [2005] WASAT 236
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application by the City of Fremantle to demolish a 1920s worker's cottage in White Gum Valley.
The cottage is on the City of Fremantle's Heritage List on the basis of its collective contribution to the streetscape, the local area and to the City of Fremantle. It has not been well maintained and is currently uninhabitable.
The City had issued a notice to repair the building in accordance with a schedule of works. The applicant, Mr Fernando Do Carmo, has also sought a review of this notice. Both reviews were heard and determined together.
The Tribunal found that the cottage had cultural heritage significance, notwithstanding its current dilapidated state, and was worthy of retention. It had historical value as an example of a simple timber‑framed cottage built during the settlement of Fremantle, and aesthetic value as part of a relatively intact heritage streetscape.
The Tribunal was satisfied that there was significant scope to restore the streetscape presentation to a similar standard as the other heritage properties in the street and to add to the rear of the property in order to provide for modern day accommodation.
The application for review was therefore dismissed and the decision of the respondent to refuse development approval for demolition of the existing cottage was affirmed. Consequently, as had been agreed by the parties, the application for review of the notice to repair the building was also dismissed and the notice was affirmed.
Introduction
These proceedings involve two related matters. First, there is an application brought by Mr Fernando Do Carmo (applicant) for a review of the requisition contained in a notice issued by the City of Fremantle (respondent or City) on 16 May 2008 to make repairs to No 47 Samson Street, White Gum Valley (subject land or site). The notice was issued under s 408 of the Local Government (Miscellaneous Provisions) Act 1960 (WA).
Secondly, there is an application brought by the applicant for review of a decision made by the City on 2 February 2009 to refuse development approval for the demolition of the existing single residence and garage at the subject site.
It was agreed by the parties at the hearing that should the Tribunal approve the demolition of the buildings on the subject site, then consequently, the notice would be set aside. Alternatively, the notice would be affirmed should the demolition not be approved.
The Tribunal has refused the demolition application.
Site and Locality
The subject site is located at No 38 Samson Street, White Gum Valley and has an area of 850 square metres. It contains a simple worker's cottage, built around 1920, which is currently uninhabitable due to a lack of maintenance and vandalism.
The main section of the building is of a timber frame construction with a pitched gable roof and a verandah to the street (southern) elevation. The external walls are weatherboard to the front elevation, and fibre cement sheets to the side elevations. A garage with masonry walls has been added to the south‑west elevation and there are additions to the rear (north) of the cottage.
The section of Samson Street between Wood and Edmund Streets, is divided by a wide median strip containing mature Norfolk Island pine trees. The southern side of the street is significantly higher than the northern side. The subject site is on the lower (northern) side of Samson Street and the floor level of the cottage is below the current street level. Importantly, 16 of the 22 properties in this section of Samson Street are on the City of Fremantle's Heritage List.
The Tribunal has had the benefit of a view of the subject site and this section of Samson Street in the presence of the parties during the hearing on 3 June 2009.
Planning framework
The subject land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and is zoned 'Residential R25' under the City of Fremantle Local Planning Scheme No 4 (LPS 4).
Clause 1.6 of LPS 4 lists the aims of LPS 4, and includes the following objectives:
(f)[to] protect and conserve Fremantle's unique cultural heritage,
…
Clause 4.2 of LPS 4 contains the objectives of the residential zone and states that development within this zone shall:
(i)provide for residential uses at a range of densities with a variety of housing forms to meet the needs of different household types, while recognising the limitations on development necessary to protect local character,
(ii)safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area,
(iii)encourage high standards of innovative housing design which recognise the need for privacy, energy efficient design and bulk and scale compatible with adjoining sites,
(iv)recognise the importance of traditional streetscape elements to existing and new development, [and]
(v)conserve and enhance the amenity of residential areas by ensuring that land use is compatible with the character of the area.
Under cl 7.1.1 of LPS 4, the City is to establish and maintain a Heritage List which identifies places of cultural heritage significance which are worthy of conservation.
Clause 7.1.7 of LPS 4 states that the Municipal Heritage Inventory (MHI) established under the previous town planning scheme, City of Fremantle Town Planning Scheme No 3 (TPS 3), is to comprise the Heritage List under the current scheme, LPS 4. The following note is appended to this clause:
Note:1. The purpose and intent of the heritage provisions are -
(a)to facilitate the conservation of places of heritage value; and
(b)to ensure as far as possible that development occurs with due regard to heritage values.
Clause 10.2 of LPS 4 lists matters that the City (and, on review, this Tribunal) should have due regard to when considering applications for planning approval. They include:
(a)the aims, zoning objectives and provisions of this Scheme and any other relevant planning Scheme(s) operating within the Scheme area, including the Metropolitan Region Scheme,
(b)the requirements of orderly and proper planning including any relevant proposed new local planning Scheme or amendment, or region Scheme or amendment, which has been granted consent for public submissions to be sought,
(c)any approved Statement of Planning policy of the [Western Australian Planning Commission (WAPC)]
…
(k)the cultural significance of any place or area affected by the development, including but not limited to provision for the preservation, incorporation or recording (by means including public art works) and significant cultural values of the site,
…
(o)the preservation of the amenity of the locality,
…
(zi)the Heritage List …
State Planning Policy 3.5 ‑ Historic Heritage Conservation (SPP 3.5) is an important State Planning Policy to which the Tribunal is required to have 'due regard' to under s 241(1) of the Planning and Development Act 2005 (WA). The objectives of SPP 3.5 are:
•To conserve places and areas of historic heritage significance.
•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 decision-making.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.
Clause 6.5 of SPP 3.5 states the specific matters that local governments should have regard to when assessing development applications. For demolition affecting a heritage place, they include the following:
•The level of heritage significance of the place, based on a relevant heritage assessment.
•Measures proposed to conserve the heritage significance of the place and its setting.
•The structural condition of the place, and whether the place is reasonably capable of conservation.
•Whether the place is capable of adaptation to a new use which will enable its retention and conservation.
Clause 6.6 of SPP 3.5 contains development control principles to be applied when considering a place on a heritage list and states that:
The weight [to be] given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.
Clause 6.6 of SPP 3.5 contains specific development control principles relating to the demolition of a heritage place, as follows (emphasis added):
•… Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests with the applicant to provide a clear justification for it.
•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.
And, when referring to development within a heritage area, cl 6.6 of SPP 3.5 provides that:
A general presumption should apply in favour of retaining buildings that make a positive contribution to the significance of the area.
Relevant planning policies
The following City of Fremantle planning policies and guidelines are relevant to this review. First, there is D.B.H13, Impact of Development on Heritage Places Policy. This was replaced on 25 February 2009 by Local Planning Policy 1.6, Preparing Heritage Assessments.
In addition, there is the Municipal Heritage Inventory Management Strategy, prepared by Ms Rosemary Rosario, October 2000.
Proposed development
The proposed development is the demolition of the existing cottage and garage on the subject site. The Tribunal has received no submission regarding any proposed further development of the site. However, such a step is not required under LPS 4.
City's decision
The application for planning approval for demolition of the existing building on the subject site was refused on 2 February 2009 for the following single reason:
1.The proposal is contrary to the objectives of the Residential zone set out within the Local Planning Scheme No. 4 which aims to conserve and enhance places of heritage significance and recognise the importance of traditional streetscape elements to existing and new development.
There is an additional Advice Note which reads as follows (emphasis added):
(i)The demolition of the existing garage may be supported by the City given its lack of structural integrity and minimal contribution to the cultural heritage values of the place, subject to an application being received.
Issues
The key issues arising for resolution in this matter relate to the level of cultural heritage significance of the place. They concern the extent to which the deterioration of the building has affected the cultural heritage values of the place, in particular its aesthetic and historic value. Relatedly, there is the effect of the proposed demolition of the existing building on the heritage streetscape.
We mention that we have had regard to the contents of the notice under review in considering those issues. This is because the notice contains two schedules, the second of which specifies the works to be carried out by the applicant which will 'put the building in such a state of repair and good condition as [will be] to the satisfaction of the Council'.
Cultural heritage significance of the place
The subject site was identified by the Fremantle Society in 1979‑80 'as being of cultural heritage significance for its contribution to the streetscape, [the] local area, and Fremantle as [a] collective whole'. In accordance with cl 7.1.7 of LPS 4, the site is now included within the Heritage List under LPS 4. As noted above, places on the Heritage List are considered under cl 7.1.1 as having cultural heritage significance and are considered to be worthy of conservation.
The Tribunal had the benefit of expert evidence from two architects specialising in heritage matters. These were Mr Ronald Bodycoat, called on behalf of the applicant, and Ms Nerida Moredoundt, called on behalf of the respondent.
The heritage experts prepared a joint statement which summarised the issues on which they agreed and those on which they did not agree.
Mr Bodycoat and Ms Moredoundt both agreed that 'while the existing house has undergone some changes, the form of the house and its location on the site are largely as originally constructed'. They also agreed that the existing house has deteriorated due to a lack of maintenance and vandalism, and that its current external presentation is poor.
Importantly, there is agreement that the garage to the front of the house is intrusive and that it, as well as the rear lean‑to and outhouse, could be demolished without affecting the cultural heritage values of the site. The experts also agreed that the rear of the lot could include additions to the existing house.
Their opinions differ in regards to two issues: first, the extent to which the deterioration of the building fabric has affected the cultural heritage values of the place; and secondly, the effect of demolition of the existing building on the streetscape.
It is Mr Bodycoat's opinion that the aesthetic significance of the place has been substantially eroded by 'the deterioration of the external fabric, vandalism and graffiti to such a degree that, rather than making a positive contribution to the streetscape, it detracts from it'.
Ms Moredoundt, on the other hand, was of the opinion that:
While its streetscape presentation is poor, the house continues to make a positive contribution to the streetscape through its historic significance and as a timber‑framed dwelling with its original form largely intact.
She was also of the view that its current poor presentation could be remedied by restoration in a similar manner to the other historic houses in the street.
With regard to the effect of demolition on the streetscape, Mr Bodycoat was of the view that:
In its deteriorated condition and with its immediate neighbours not heritage listed, its demolition would not impact adversely on the streetscape in the immediate locality.
It was Ms Moredoundt's view that:
While there is evidence of change in the streetscape, the section of the streetscape between Edmund and Wood Streets is a largely intact historic streetscape with a high proportion of heritage‑listed houses.
It is her view that demolition of the subject building would have an adverse impact on the streetscape and locality, and would result in an incremental loss of cultural heritage values.
Ms Moredoundt elaborated during the hearing on the historic value of the site. She said that the building was an example of houses built during the initial settlement of the area, typically simple limestone and brick or timber‑framed cottages. She said that the aesthetic value of the place had been compromised by the significant deterioration of the building fabric, but that this was not uncommon with timber cottages. The other heritage houses in the street were not exactly as originally built, but have been restored and maintained over the years by their owners. It was her opinion that this building had not been maintained on a regular basis, but that its streetscape presentation could be restored and that it would contribute significantly to the streetscape in this section of Samson Street, as well as to Fremantle as a whole.
In his witness statement, Mr Bodycoat addressed the heritage significance of the Samson Street streetscape between Edmond Street and Wood Street. It was his view that Nos 28 ‑ 34 Samson Street, to the east of the subject site, contained 'four original houses in sound condition and presentation' which have heritage significance as a group. He said: 'Their common features are the street setback, single storey development and common decades of construction'. But, he noted that the houses on either side of the subject site were either constructed more recently, as in the case of No 40 immediately to the east, or had 'now [been] altered and … [were] of no heritage significance', as in the case of No 36, immediately to the west. Mr Bodycoat was of the opinion 'that the heritage significance in this section of Samson Street stops with house No 34; all development or vacant ground to the east of No 34 does not contribute to the streetscape in the context of heritage significance, but rather as elements which are intrusive and not characteristic of significance in the Samson Street precinct'.
The Tribunal had the opportunity to closely view the subject site and its surrounds during the hearing on 3 June 2009. The view included an external inspection of the existing building on the subject site and a walk along both the north and south sides of Samson Street between Edmond Street and Wood Street. It also included an external view of No 8A Samson Street, to the west of Edmund Street, in order to illustrate a point made by Mr Bain, the planner representing the applicant, regarding possible replacement buildings.
There are 16 places on the City's Heritage List located on both sides of Samson Street between Edmund and Wood Streets. As we have mentioned, the northern and southern sides of the street are separated by a wide central median strip containing mature Norfolk Island pine trees, with the southern side of the street set higher than the side to the north.
It is Mr Bodycoat's opinion that the subject site is part of an 'altered' streetscape, not a 'largely intact' streetscape, the description preferred by Ms Moredoundt.
In this case, having considered the evidence from both heritage experts and having had the benefit of a view, the Tribunal prefers Ms Moredoundt's description of this section of Samson Street. We are of the opinion that the subject site is located within a largely intact heritage streetscape. In our view, this is not diminished by the topography, or the central median strip, or the more recently built house to the east, or the altered house to the west.
Mr Bain, as mentioned above, drew the Tribunal's attention to No 8A Samson Street as an example of a replacement building. He submitted that it had some of the features of the existing historic buildings in the street and made a positive contribution to the heritage value of the streetscape. He argued that this new weatherboard and limestone house could make an equal, if not greater, contribution to the streetscape than the existing heritage cottage, particularly given its currently dilapidated state.
Ms Moredoundt's response was that a new building could enhance the amenity and may not necessarily impact adversely, but it would not contribute positively to the heritage value of the streetscape. It was her view that losing an historic building was a negative impact on the streetscape and if this was done incrementally, then relevant heritage value would be lost.
Mr Bodycoat also argued that the heritage assessment was prepared a long time ago and was therefore less relevant than before. Ms Moredoundt disagreed and said that a development application was the trigger for a detailed heritage assessment on heritage-listed sites in Fremantle, and in this case the site was originally assessed as part of the early settlement of Fremantle and that position has not changed.
Mr Bodycoat made a further point that this was not a heritage‑listed area or precinct under LPS 4. Ms Moredoundt's response was that the place had been listed for its contribution to the streetscape and the locality and that not being a listed heritage area did not detract from this status.
Mr Bain argued that the City's Heritage List was unreliable because the house immediately to the east of the subject site appeared to have been listed incorrectly, and the house immediately to the west was not listed and probably should be listed. It was confirmed to us by the parties that No 28, No 30, No 32 and No 34 are on the Heritage List. Number 36 is not on the list but is an historic house, and No 40 is also listed but is a newer house.
Ms Moredoundt responded that when a detailed assessment is required, and particularly when a development application is received, the preparation of the heritage assessment is based on the actual surrounding houses and does not necessarily rely on the City's Heritage List.
Notwithstanding all of the above arguments regarding the relevance and accuracy of the City's Heritage List, the Tribunal is satisfied in this case that the subject site has been assessed properly as having cultural heritage significance. The Tribunal agrees with Ms Moredoundt's view that the existing cottage, although in a dilapidated state, makes 'a positive contribution to the historic character of the streetscape through its single storey gabled roof form, its weatherboard and corrugated iron claddings and its timber‑framed front verandah and small setback to the street front'. In our view, the demolition of the existing cottage would have an adverse impact on the cultural heritage value of the streetscape.
The structural condition of the place and whether the place is reasonably capable of conservation
As we have mentioned, the notice under review contains a schedule of works to be carried out by the applicant in order to repair and make good the existing cottage. This schedule lists works to the external elevations, the interior of the building and the attached garage. It should be noted that the evidence from both of the heritage experts is that the existing garage located to the south‑west of the cottage is, from a heritage perspective, not required to be retained. This is reflected in the respondent's reasons for refusal, which include a note that demolition of the garage may be supported, subject to an appropriate application.
A detailed structural engineer's report was prepared for the applicant by Mr PG Airey of Airey Taylor Consulting. This report described the existing building as generally timber-framed with asbestos cladding both inside and out and a corrugated galvanised iron roof. The report detailed the poor condition of the building, both internally and externally, including rusted roof sheeting; movement of the garage block walls; unusual, possibly unsafe, roof construction; sagging roof timbers; asbestos ceilings; damaged asbestos wall‑cladding; and degraded stumps. The report finishes with a recommendation 'that the building be written off [sic] and demolished and replaced with new construction complying with the requirements of the BCA'. It did not list the works required to restore the building or the cost of such works.
During the hearing, both of the heritage architects gave evidence regarding the feasibility of restoring the cottage. It was agreed by both experts that it was possible to restore the building, but it would require considerable work. Mr Bodycoat was of the view that it would be an unrealistic option due to cost, while Ms Moredoundt's view was that the amount of work required was a reflection of the fact that maintenance and repair work had not been undertaken regularly in the past.
They both agreed that the important aspect of the cottage was its streetscape presentation and that accommodation could be added to the rear of the property in order to conform to modern day standards and expectations.
The evidence is that the existing buildings on the subject site are in a very poor condition. There is, however, no evidence that the cottage cannot be made structurally sound, nor, if it be relevant, is there any evidence before the Tribunal regarding the cost of such work. Although it was agreed that considerable work, both structural and cosmetic, was required to bring the cottage to modern day standards and that this may involve considerable cost, there may be, of course, an equally considerable financial benefit in the future value of the restored building for the applicant, as well as for neighbouring landowners.
Notwithstanding the issue of cost, the Tribunal is satisfied that the structural condition of the existing cottage is such that it would be capable of conservation, and that with additions to the rear it would be capable of providing modern day accommodation at the same time as making a positive contribution to the existing heritage streetscape.
Heritage values in the City's planning framework
The findings that we have made above must be assessed against the City's planning framework. Recently, in Hobbs and Town of Vincent [2009] WASAT 167, the Tribunal noted the following of the Town of Vincent's planning framework in the context of a development application in respect of a nationally recognised heritage building, at [22]:
Within the Town, the maintenance, amongst other things, of a location's amenity by heritage conservation through local planning instruments is an important regulatory value (see, for example, Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316; Optus Mobile Pty Ltd and Town of Vincent [2006] WASAT 179; and Filton Pty Ltd and Town of Vincent [2006] WASAT 70). That position has been arguably strengthened by the coming into force of State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) which was prepared [by the WAPC] under the Planning and Development Act 2005 (WA) and published in the Western Australian Government Gazette, No 112 (29 May 2007).
This point may be made, perhaps with even greater force, with regard to the City of Fremantle's planning framework: see, for example, Williams and City of Fremantle [2005] WASAT 236 (dissenting opinion); Dunross Enterprises Pty Ltd and City of Fremantle [2006] WASAT 164; MMAGS Holdings Pty Ltd and City of Fremantle [2006] WASAT 175; Patroni and City of Fremantle [2007] WASAT 63; Manucci and City of Fremantle [2007] WASAT 217; Douglas and City of Fremantle [2008] WASAT 2; McKimm and Western Australian Planning Commission [2008] WASAT 128; and Klopper and City of Fremantle [2008] WASAT 138. Cf Williams and City of Fremantle [2005] WASAT 236 (majority opinion); and Callan and City of Fremantle [2007] WASAT 133.
Conclusions
The Tribunal has found that the existing cottage has cultural heritage significance both historically, as an example of a simple timber‑framed cottage built during the early settlement of Fremantle, and aesthetically, as part of a relatively intact heritage streetscape.
While we acknowledge that the cottage is currently in a dilapidated state, we are satisfied that it can be made structurally adequate, and that its poor presentation can be significantly improved. There is considerable scope to restore the streetscape presentation to a similar standard of the other heritage properties in this street, and to add to the rear of the property in order to provide for modern‑day accommodation.
It follows that, applying the heritage values expressed in the planning framework, the application for review should be dismissed and the decision of the respondent to refuse development approval for demolition should be affirmed. Consequently, as agreed between the parties, the application for review of the notice to repair the building issued by the respondent should be dismissed and the decision to issue the notice should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review in proceeding DR 75 of 2009 is dismissed.
2.Consequently, the decision of the respondent made on 2 February 2009 to refuse development approval for the demolition of the existing single residence and garage at No 38 (Lot 645) Samson Street, White Gum Valley is affirmed.
3.The application for review in proceeding CC 907 of 2008 is dismissed.
4.Consequently, the decision to issue the notice under review is affirmed.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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