Dunross Enterprises Pty Ltd and City Of Fremantle
[2006] WASAT 164
•23 JUNE 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: DUNROSS ENTERPRISES PTY LTD and CITY OF FREMANTLE [2006] WASAT 164
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
MS R MOORE (SESSIONAL MEMBER)
HEARD: 5 - 6 DECEMBER 2005 AND 9 MARCH 2006
DELIVERED : 23 JUNE 2006
FILE NO/S: DR 467 of 2005
BETWEEN: DUNROSS ENTERPRISES PTY LTD
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Planning and Development Proposed five level hotel development Site between two buildings of heritage significance Site within heritage precinct of high sensitivity and importance Whether height, bulk and scale detrimental to heritage values
Legislation:
Australian Heritage Commission Act 1975 (Cth), s 22
City of Fremantle Town Planning Scheme No 3
Result:
Application for development approved subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr KA Adam (As Agent)
Respondent: Mr DW McLeod and Mr DF Nicholson
Solicitors:
Applicant: KA Adam & Associates (Architects and Town Planners)
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On Lot 79 Henry Street, Fremantle, there is an old warehouse standing between two historic buildings, the Marich Building and the Lance Holt School. Dunross Enterprises Pty Ltd proposed to develop the lot by demolishing the warehouse and erecting a new five level building. The proposal is that the new building would link the historic Marich Building on the corner of Henry Street and High Street and the new Rialto Building in High Street. It is proposed to use the building as a hotel.
The City of Fremantle rejected the application for approval to develop Lot 79 Henry Street, and Dunross Enterprises sought a review of that decision by the State Administrative Tribunal. The City was concerned that the height, bulk and design of the building, and the proposed two level verandah, would be detrimental to the adjoining heritage buildings, to the Henry Street streetscape and the Fremantle West End Conservation Area generally.
The Tribunal heard evidence from four experts in heritage architecture and urban design and two local residents with an interest in heritage in Fremantle, and conducted a view of the site and surrounding locality. It concluded that, in dealing with an area of such high heritage value, a cautious approach was required. Taking that approach, the Tribunal decided that the proposed fifth storey would be intrusive of heritage values, and that the proposed two level verandah would have a detrimental effect on the heritage significance of the Lance Holt School. But for the fifth level and the two level verandah, the Tribunal would have been prepared to approve the application.
Introduction
The applicant seeks to develop land in Henry Street, Fremantle, by demolishing an existing warehouse and constructing a new five level building for use as a hotel.
The site lies within what is known as the Fremantle West End Conservation Area (West End). There was agreement between the parties to this application that conservation of the 19th and early 20th century heritage fabric in the West End of Fremantle is of fundamental importance to the City, and should not be compromised by alteration to buildings, or by new development. The parties are also in agreement that new developments within the heritage area should be discernibly of their own time, while respecting the heritage character of the area – see Articles 22.1 and 22.2 of the Australia ICOMOS Burra Charter 1999.
The architect for the project, Mr Murray Slavin, who gave evidence at the hearing, has had extensive experience in architecture, planning and urban design within the Fremantle area, including the West End, over a long period of time. In designing the proposed development, there is no doubt that Mr Slavin has had regard to the importance of avoiding compromise to the heritage fabric of the West End. It was an element of Mr Slavin's brief that the proposed development seek to achieve the maximum development potential for the site having regard to the commercial interests of the owner, but that has not led to any attempt to maximise plot ratio. Since the proposed development was put forward to the respondent, the plans have been amended to ameliorate some concerns that have been expressed about the impact of the proposed development on adjacent buildings of heritage significance, and on the heritage area generally. Mr Slavin is confident that the design as propounded at the hearing of this application will not only not compromise the heritage values of the area, but will provide a positive contribution to the area. That is a view shared by Mr Ken Adam, who acted as advocate for the applicant as well as giving expert evidence on its behalf. Mr Adam is an experienced architect and planner with significant experience in heritage architecture and planning, including in relation to the City of Fremantle.
The views of Mr Slavin and Mr Adam are not shared by two architects/planners who were called to give evidence by the City of Fremantle. Ms Nerida Moredoundt is the director of heritage planning with Palassis Architects, and is experienced in the provision of services relating to heritage matters for a range of private and public clients. She has been providing expert heritage advice to the City of Fremantle for over two years. Mr Ian Hocking is an architect planner with national and international recognition for urban design and heritage expertise. Both Ms Moredoundt and Mr Hocking expressed a number of concerns about the proposed development, and its impact on nearby buildings of heritage significance, and the West End area generally.
The experts were sharply divided in their opinions concerning certain aspects of the proposed development. They all recognised the expertise of each other, although expressed no views as to the relative expertise one to the other. The fact of their disagreement illustrates the difficulty confronting decision‑makers in cases of this nature. This is a case where genuinely held and well motivated expert opinions differ. That makes more difficult the task of the Tribunal in assessing the proposal. The parties agreed, as does the Tribunal, however, that the assessment must take place in the context of the importance of preservation of the significant heritage values of the West End of Fremantle.
The proposal
The proposal relates to Lot 79 Henry Street. An old single storey warehouse is currently erected on the site. It is not contended that the warehouse is of any particular heritage significance, and its demolition as part of this proposal is not an issue. The proposed development is for the demolition of the existing warehouse and construction of a new building comprising:
i.basement with storage and 20 car parking bays;
ii.a ground floor (level 1): head office, service facilities and 8 hotel suites or apartments;
iii.at level 2: six hotel suites;
iv.at level 3: five hotel suites;
v.at level 4: four hotel suites;
vi.at level 5: the upper level of two of the level 4 hotel suites;
vii.roof terrace garden above level 5.
The application site is linked directly to a building, known as the Marich Building, which is on the corner of High and Henry Streets. Adjacent to the Marich Building in High Street is a building known as the Rialto Building. The ultimate proposal is that the proposed development will comprise a portion of an integrated development of the three properties.
The façade and verandah of the Rialto Building in High Street was designed by Mr Slavin's firm and won the Fremantle Heritage Award for infill development. It has a two level verandah extending over the footpath in High Street. The proposed development involves a two level verandah extending over the Henry Street footpath. There is a single level verandah (currently being restored) which wraps around the Marich Building, and part of Mr Slavin's approach to design of the proposed building was to place what he described as "bookends" at either end of the Marich Building in High Street and Henry Street respectively. In other words, the verandah and façade of the proposed development would be complementary to the verandah and façade of the Rialto Building. The proposed development is an L shaped construction wrapping around the northern wall and the rear of the Marich Building thereby linking up with the Rialto Building on High Street. A key objective in the site planning was to provide a central space, or "piazza", accessible from both High and Henry Streets, between the rear of the Marich Building and the proposed new building. A consequence of providing the piazza is that it would expose the fully restored façade of the internal face of the Marich Building, which is on the Register of the National Estate, the City of Fremantle's Municipal Heritage Inventory and the classified list of the National Trust of Australia (WA).
Levels 1 – 3 of the proposed development would occupy the full width of the Henry Street frontage and would be built up to both the street alignment and the northern boundary which adjoins the site of another building of heritage significance, the Lance Holt School. Level 4 occupies part only of the width of the Henry Street frontage, being set back 2.3 metres to 2.5 metres from the northern boundary (which abuts the Lance Holt School site) at approximately 2.7 metres from the southern boundary (adjacent to the Marich Building). Level 4 is set back 5 metres from the western or Henry Street boundary. The setback area from the street and the Lance Holt School site consists of decks, protected from the street by a parapet balustrade, and from the Lance Holt School by a planter box.
Level 5 is confined to the upper level of two storey suites at the rear part of the site, approximately 25 metres from Henry Street and 20 metres from High Street. Levels 2 and 3 correspond precisely to the floor levels of the adjacent Marich Buildings with which it will ultimately be integrated.
The planning context
The context against which the issues need to be addressed was substantially agreed by the experts. The Tribunal accepts the approach taken by the experts as appropriate.
The proposed development lies within the area controlled by the provisions of the City of Fremantle Town Planning Scheme No 3 (TPS 3). As mentioned, it lies within the West End which has been placed on the register of the National Estate under the provisions of s 22 of the Australian Heritage Commission Act 1975 (Cth). Clause 72 of TPS 3 specifies that the minimum and maximum height of buildings in the central business zone shall be two storeys and four storeys respectively, unless otherwise determined by Council.
In order to afford proper consideration to the consequence of inclusion of the area on the register of the National Estate, the respondent has adopted policy DGF 14 entitled "Fremantle West End Conservation Area Policy". DGF 14 divides the West End conservation area into five zones, zone 2 being entitled "The West End" and being the zone within which the proposed development is included. The policy observes that the West End is rich in history and heritage, and that 148 buildings within the area have received individual recognition in the register of the National Estate, in addition to the area itself being on the register.
Clause 4.2.2(a) describes the West End as the "City's greatest long‑term economic asset" and states:
"To conserve this valuable asset it is essential that existing buildings be protected through the promotion of evenly spread development consistent with what already exists; through preventing the pre‑emption of potential by the over‑development of single sites; and through ensuring that new development is sympathetic to (and subordinate to) the present townscape and traditional uses of the area."
In relation to the height of development within the West End, DGF 14 states:
"The appropriate height is one which respects the scale and reinforces the integrity of the existing landscape. The Council's officers and advisers believe that in principle this is to be a maximum of three storeys, on the street frontage. The height will be assessed by appropriately considering its relation to and effect on the existing landmarks, on recognised vistas, skyline and in particular on the heights of the adjacent buildings."
As observed above, the Marich Building is listed on the register of the National Estate, the State Register of Heritage Places, the City of Fremantle's Heritage Inventory and the Classified List of the National Trust of Australia (WA). The Lance Holt School, on the other side of the development site, is also listed on each of those registers. There is a large number of other historic buildings in Fremantle's West End on each of those registers. Historic buildings in the West End are generally of one to three traditional storeys, with storey heights generally greater than is common in contemporary buildings. Some historic buildings have additional upper level attic spaces with dormer windows. It was common ground amongst the experts at the hearing, and the Tribunal agrees, that some late twentieth century developments rising above the street level façade which are visible and significant in the views from various public vantage points, are not satisfactory in terms of their visual impact on the West End.
The Marich Building presents a two storey façade to both High Street and Henry Street. It has an upper level attic space within the pitched roof with dormer windows. The Lance Holt School has an open playground area immediately adjacent to the appeal site, and the building itself presents to the street as a two level building, with the ground floor level being below street level. Set back from Henry Street, a third level has been added to the Lance Holt School. The consequence of the lower ground floor is that the Lance Holt School has a lower frontage to Henry Street than does the Marich Building.
The issues
The concerns of the respondent in relation to the proposed development relate to its height, setbacks and architectural design. As the applicant asserts, those issues are closely interrelated and come together as a composite issue of streetscape compatibility. The issues of height and architectural design also affect the broader issue of compatibility with the West End heritage area generally.
In accordance with the usual procedures of the Tribunal, the experts were required to confer prior to the hearing, and to prepare a joint statement of matters which they agreed, matters on which they disagreed, and their reasons for disagreement. The joint statement of the expert witnesses was most helpful, and in it the experts formulated the issues as they perceived them with greater particularity.
The issues identified by the expert witnesses upon which they did not agree were as follows:
1)Whether the proposed development would be intrusive on heritage values, as viewed from landmark and vista points.
2)Whether a three storey high façade and parapet wall to the northern boundary are acceptable.
3)Whether the proposed development adversely affects the heritage values of the Lance Holt School.
4)Whether the proposed development is visually intrusive in the streetscape of Henry Street and/or the immediate locality.
5)Whether the architectural design of the proposed development is appropriate, with reference to:
i)symmetry of the design;
ii)whether the verandah should be two storey or single storey with deck; and
iii)the pattern of fenestration.
Would the proposed development be intrusive of heritage values as viewed from landmark and vista points?
There are a number of viewpoints in the public domain in respect of which the heritage values of the streetscape or the roofscape is significant. In assessing the likely impact of the development the Tribunal had the advantage of a view of the West End area, including visits to a number of the vantage points identified by the experts. Witnesses called by the respondent, both the experts and two lay witnesses, expressed particular concern at the proposal for a fifth level on the development. Both Mr Slavin and Mr Adam expressed the view that the upper levels of the proposed development would not be visible from several of the vantage points identified. They accepted that it would be possible to see part of the fifth storey in the vista from the upper landing of the Roundhouse, a significant historic building at the western end of High Street. There was debate between the experts as to the visibility without optical assistance of the proposed development from Monument Hill, which is not within the West End area, but is a location from which a commanding view of the whole West End area is available.
Both Mr Slavin and Ms Moredoundt produced site line drawings designed to demonstrate the extent to which the fifth level of the proposed development would be visible from the Roundhouse. The methods adopted by each in preparing those drawings differed, with the consequence that the degree of visibility of the upper floor was a matter of disagreement between them. Mr Slavin's position was that, whilst the fifth floor would be visible to some degree from that vantage point, the building would, to the extent that it was visible, improve the vista by obscuring a portion of a building known as Johnson Court which provides a major unsympathetic intrusion in the vista across the West End to the east. It is not necessary for us to analyse the accuracy of the site line diagrams proffered by each party. It is sufficient to conclude, as we do, that the fifth level would be visible from the upper landing outside the Roundhouse. While it would certainly not dominate the roofscape in any sense, it would provide an incongruous element in the view. The consequence of that conclusion is discussed below. Some additional observations as to the accuracy of the conflicting photomontages was submitted by Mr Adam to the Tribunal by letter after the completion of the hearing. The respondents objected to the Tribunal taking those observations into consideration. In view of the conclusion we have reached that the precise degree of visibility need not be determined, we have not had regard to the materials submitted after completion of the hearing.
The upper level of the proposed development would not be visible from the large majority of locations at street level within the immediate vicinity of the site, or indeed the West End generally. There would, however, be some locations from which the fifth level would be visible. It was generally accepted by all witnesses that a fourth level addition to the Navy Club, a building on High Street a short distance away from the proposed development, presented an undesirable element of the vista from the Roundhouse and from locations along High Street. That was the view which the Tribunal formed on its inspection of the area. Opinions will differ as to the degree of intrusiveness of the fifth level of the proposed development upon the view from the Roundhouse, or other locations from which it may be visible. Individual responses to the sight of the new development, in the context of the historic buildings in the vicinity, will necessarily be subjective, and will vary from person to person. Mr Hocking, Ms Moredoundt, and other witnesses Mr Lesley Lauder and Mr John Dowson, both residents of Fremantle with a keen interest in the preservation of its heritage, expressed serious concern about the proposed height of the building and its impact on the skyline of old Fremantle. In response to a request for comment in relation to the original plans submitted to the respondent, the Heritage Council of Western Australia expressed the view that the overall height of the development should be reduced by a minimum of one level so as not to exceed four levels (plus roof terrace). While it is true that, since that assessment was undertaken, the plans have been revised so that the bulk of the fifth level, and thus its intrusive impact, is significantly reduced, the Heritage Council's comments suggest that it would not consider the proposed fifth level acceptable. On the other hand, Mr Adam and Mr Slavin considered that the impact of the fifth level, when observable, would not be intrusive or incongruous with the skyline or streetscape.
In resolving the issue of whether or not the height of the development unreasonably intrudes on the heritage values of the area, the Tribunal considers that a cautious approach is appropriate. The application concerns development in a highly sensitive and important heritage precinct. We agree with Mr Lauder that, given the extent of the West End heritage area, it is possible to lose sight of the fact that each building forms part of the overall fabric, and is capable of enhancing or damaging the total fabric. Clause 72 of TPS 3 suggests development of two to four storeys, although it leaves open the possibility that the City might approve lower or higher buildings. Policy DGF 14 suggests a height of three storeys on the street frontage. Extensions of buildings like the Customs Building and the Navy Club, which occurred prior to the adoption of policy DGF 14, illustrate how individual buildings can impact upon the heritage values of the area. While the Tribunal accepts that this proposal has sought to recognise heritage values, a development to five storeys has the capacity to incrementally contribute to damage to the heritage values of the area. That is so notwithstanding that, in isolation, the detrimental impact of the height of the building upon the heritage values of the area may be thought, at least by some, to be minimal.
Having regard to the need for great care in the approval of developments within this area, the Tribunal has formed the view that the fifth level of the building would constitute an unacceptable intrusion on the heritage values of the area as viewed from those locations within the West End area from which it is visible. Those locations include not only positions such as the Roundhouse and some locations at street level, but undoubtedly include the outlook from buildings, particularly the upper levels of buildings, within the general vicinity. The applicant has not established a basis to depart from the general height guidelines expressed by cl 72 of TPS 3.
Is the three storey High Street façade and parapet wall to the northern boundary acceptable?
The principal concern expressed by Mr Hocking and Ms Moredoundt in relation to the height of the Henry Street façade and parapet wall was its impact on the Lance Holt building on the adjoining lot. Mr Hocking expressed concern that the proposed building would be at least one traditional storey higher than the façade of the Lance Holt School and would in effect, overpower that historic building. He expressed concern as to the amenity of the adjacent school yard due to the height of the boundary wall and the potential for light and heat reflection. Finally, he expressed concern about the possibility that basement excavations proposed could impact on the stability and ground water conditions for the Lance Holt School buildings. Ms Moredoundt shared those concerns.
As to the concerns about the effect of excavations, we are of the view that they are matters that could be appropriately dealt with at the building licence stage.
DGF 14 makes reference to the issue of height in the West End zone. It provides:
"The appropriate height is one which respects the scale and reinforces the integrity of the existing streetscape. The Council's officers and advisors believe that in principle this is to be a maximum height of three storeys on the street frontage. The height will be assessed by appropriately considering its relation to and effect on the existing landmarks, on recognised vistas, skyline and in particular on the heights of the adjacent buildings."
It is the case that there would be a marked difference between the façade height of the proposed building, and the façade of the Lance Holt School. Although it was common ground that the Lance Holt School building in its original form, had an additional storey, in our view it is appropriate to consider the issue of the impact of the proposed development on the Lance Holt School as it now stands. That is so notwithstanding that the school's owners have thoughts of one day restoring the building to its original form by adding an additional storey at the street frontage. For present purposes, however, it can be accepted that there will be a substantial differentiation between the height of the Lance Holt School façade, and the façade of the proposed development. In our view, however, that factor will not adversely impact upon the heritage values of the Lance Holt School (putting aside for present purposes the question of the two storey verandah). The photographs tendered at the hearing, and the view taken by the Tribunal, demonstrate that there is a wide variety in parapet heights throughout the West End area. The differential in the height of the proposed building, and the height of the Lance Holt School, is quite consistent with the differentiation in parapet heights within the locality. The fact that the proposed building is separated from the Lance Holt building by the playground area is significant in lessening the relevant impact of the new building upon the Lance Holt School. The Tribunal's conclusion is that the three storey façade of the proposed development would not unduly impact upon the heritage values of the Lance Holt School.
We reached the same conclusion in relation to the parapet wall on the northern boundary facing on to the Lance Holt School playground. As Mr Adam observed, the existing boundary wall is approximately 6 metres high in masonry, with screening above to a total of 8.5 metres. The boundary wall proposed is approximately 11.5 metres high. The Lance Holt School itself, on the north side of the playground has a wall height of about 11 metres. The playground space is broken up physically and visually into several smaller spaces by the use of elevated decks, a large tree and playground equipment. Shadowing of the playground is a result of the Lance Holt building itself, and would not be affected by the proposed development.
In our view, the three storey street façade and parapet wall would not adversely affect the heritage values of the Lance Holt School, and is acceptable.
Heritage values of the Lance Holt School, and streetscape of Henry Street?
The principal concern of the respondent's witnesses in relation to the third and fourth issues was that the bulk and scale of the proposed three storey façade and two storey verandah would adversely impact upon the heritage value of the Lance Holt School, and would intrude upon the Henry Street streetscape and the locality generally. We have already expressed a conclusion in relation to the question of the impact of the three storey façade. The impact of the verandah is a matter which can conveniently be dealt with in the context of both the third and fourth issues, since its impact affects the Lance Holt School, Henry Street and the immediate locality. It also relates to an aspect of the fifth issue, namely symmetry of the design.
The respondent's position at the hearing was that the verandah should be reduced in height to a single storey. That was the view expressed by both Mr Hocking and Ms Moredoundt. Ms Moredoundt suggested in the heritage advice prepared for the respondent on the original proposal, in August 2004, that the verandah should be reduced in height to a single storey but that it would be acceptable to retain a first floor deck on that verandah. Retention of a deck above the verandah is not a suggestion that commends itself to the Tribunal. We share the view of the applicant's experts that a deck above the verandah would not be reflective of the pattern of development within the West End area, and may negatively impact on the heritage values of the area.
The concern about a two storey verandah is that it is overly prominent in the streetscape of Henry Street and diminishes the heritage value of the neighbouring buildings, in particular the Lance Holt School.
In response, Mr Slavin contends that two storey verandahs are commonly found within the West End area and that the design is a contemporary interpretation of the traditional forms of the West End as is encouraged under cl 5.5 of DGF 14. He supports the two storey verandah on Henry Street on the basis that it complements the façade of the Rialto Building on High Street and provides the "bookend" effect to the Marich Building. Finally, Mr Slavin observes that the two storey verandah addresses sustainability issues by facilitating thermal efficiency, energy management and weather protection.
The proposed two storey verandah would abut the proposed single storey verandah of the Marich Building. In our view, it would have a dominant effect on the Henry Street streetscape. That dominance would tend to diminish the role played by the façade of the Lance Holt School to that streetscape. While double storey verandahs are present elsewhere in the West End, they tend to be located along High Street rather than in the minor roads like Henry Street which run off High Street. It is in the context of the High Street streetscape that the double storey verandah on the Rialto Building is not out of place. We have formed the view, however, that the "bookend" effect of the proposed two level verandah in Henry Street would tend to detract from the impact of the Marich Building with its single storey verandah. We accept that the upper level verandah may contribute to the thermal efficiency and weather protection, but those marginal advantages do not outweigh the potentially adverse effect of the verandah on the Henry Street streetscape, the Lance Holt School and the Marich Building. Accordingly, we are of the view that the two level balcony should not be approved.
Is the architectural design of the proposed development appropriate?
In formulating this issue, the experts identified questions of symmetry of design, and pattern of fenestration, in addition to the question of verandah height. We have already dealt with the issue of verandah height. The other questions were matters which did not receive a great deal of attention during the course of the hearing. For our part, we have no concerns about the symmetry of the façade with its centrally located entrance to the basement car parking area and its symmetrical fenestration to the ground and first floors.
Mr Slavin acknowledges that the historical buildings of the West End generally demonstrate strong horizontal lines in upper level openings (although not ground floor level openings). The scale of the fenestration is not out of keeping with historic buildings in the area. In developments which should be discernibly of their own time, there is room for departure from the traditional model, providing the product of that departure respects the heritage character of the area. In our view, apart from the two storey balcony, the proposed development has a façade which meets that requirement.
Conclusion
For the foregoing reasons, we have reached the view that there are two aspects of the proposed development which are not acceptable, having regard to the need for caution in a highly sensitive heritage area. Those two aspects are the fifth floor of the development and the upper level of the balcony on Henry Street. From the Tribunal's perspective, we would have been prepared to approve the development subject to conditions requiring the removal of the fifth level and removal of the upper level of the balcony. At the hearing, however, the applicant indicated that conditions to that effect would be tantamount to refusal and that it would not wish to proceed with the development in that form. However, the Tribunal accepts that, in light of its conclusions that other design changes proposed by the respondent are not necessary, the applicant may not wish to maintain that position. If the applicant seeks approval subject to appropriate conditions reflecting the Tribunal's findings, then, in the Tribunal's view, orders to that effect are appropriate. The Tribunal will hear the parties as to the final form of the orders.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal, corrected pursuant to s 83 of the State Administrative Tribunal Act 2004.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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