French and City of Stirling - [2012] WASAT 25

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FRENCH and CITY OF STIRLING [2012] WASAT 25

MEMBER: MS R MOORE (MEMBER)

HEARD: 21 AND 29 NOVEMBER 2011

DELIVERED : 10 FEBRUARY 2012

FILE NO/S: DR 231 of 2011

BETWEEN: LEXINE FRENCH
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development application Demolition of 1950s dwelling Heritage protection area of Menora 'Character Guidelines Mt Lawley, Menora & Inglewood' Generally intact building Generally intact architectural style Post-World War II austere economical and functional building Maintenance of existing streetscape character Planning framework 'State Planning Policy No 3.5 Historic Heritage Conservation'

Legislation:

City of Stirling Local Planning Scheme No 3, cl 6.6.1, cl 6.6.3, cl 10.2, Pt 6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr A Stewart (Acting as Agent)
Respondent: Mr D Martinovich (Acting as Agent)

Solicitors:

Applicant: Allerding & Associates (Planning Consultants)
Respondent: City of Stirling

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

Paz and City of Stirling [2011] WASAT 157

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the decision of the City of Stirling to refuse development approval for the demolition of an existing dwelling at No 16 Graham Road, Menora.
The dwelling at No 16 Graham Road was constructed in the early 1950s and was described by the heritage experts as a modest austere economical PostWorld War II building. The property is located within a heritage protection special control area and is covered by the City's local planning policy, 'Character Guidelines Mt Lawley, Menora & Inglewood'.
The parties' representatives identified two issues for determination in this matter. The first issue was whether demolition would be contrary to the City's Character Guidelines, specifically, three of the dot points required to be addressed by the applicant in order to justify the demolition of a building in the heritage protection area. The second issue was whether demolition of the dwelling satisfied the demolition objective of the City's Character Guidelines, which is to '[r]etain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s'.
With regard to the first issue, the applicant argued that:
1)the building did not make a significant contribution to the character of the heritage protection area or the streetscape;
2)the building was not a good example of InterWar Spanish Mission, Functionalist or Californian Bungalow styles nor did it contain any unusual or finely executed detailing; and
3)conservation of the building was not viable in a practical sense because in order to bring the building up to modern day standards its contribution to the streetscape would be diminished significantly.
The Tribunal found that as an intact example of a PostWorld War II austere economical building, the existing dwelling contributed to the character of the heritage protection area and streetscape, particularly in terms of its scale, materials, street setback and the fact that it was immediately adjacent to a building of similar form, scale, materials and setback.
The Tribunal also noted that there was no requirement for the building to be of high architectural quality. The question was whether the building was a typical or intact example of a specific architectural style. In this case, the Tribunal was satisfied that the building is an intact example of a PostWorld War II building built during a time of limited materials. It was common ground that the building does not contain any unusual or finely executed detailing.
In terms of viability of conservation, the Tribunal found that the building has the potential for considerable alterations and extensions to the rear of the property and, in regard to offstreet parking, a hardstand or carport in the front setback could be applied for in the same way that other properties in the street have. There was no evidence presented that the building was structurally unsafe or unsound.
In relation to the second issue, the applicant contended that the City's documents were unclear regarding whether buildings constructed after 1950 were intended to be retained. The Tribunal found that the City's Character Guidelines and the City of Stirling Local Planning Scheme No 3 clearly stated that original buildings within the heritage protection areas should be retained and conserved, particularly those dating from the 1900s to the 1950s.
The Tribunal was also referred to Paz and City of Stirling [2011] WASAT 157 where the Tribunal made the decision that a building constructed in 1908 in a heritage protection area could be demolished. This decision was differentiated by the particular circumstances of the case which importantly involved an existing building with a front setback far greater than the others in the street, resulting in limited redevelopment options to both the rear and front of the building.
The Tribunal assessed the proposed demolition against the relevant provisions of the City's Scheme and State Planning Policy No 3.5 Historic Heritage Conservation, and found that there was no contradiction and that demolition of this particular building could not be supported.
The review was therefore dismissed and the decision of the respondent to refuse demolition approval affirmed.

Introduction

These proceedings involve an application brought by Ms Lexine French (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Stirling (respondent or City) made on 24 May 2011 to refuse development approval for the demolition of the dwelling at No 16 (Lot 228) Graham Road, Menora (site or subject site).
By way of background, the applicant had submitted a previous application for planning approval for demolition of the dwelling at the subject site in 2010. In response to this application a Heritage Assessment was prepared by Hocking Planning & Architecture on behalf of the respondent in December 2010. The respondent refused the application under delegated authority and the decision was not appealed.
The applicant submitted a new planning development application on 5 April 2011 which included a Heritage Assessment prepared by J Christopher Keen. This application was refused by the respondent on 24 May 2011 for the following reason:
The proposed demolition of the dwelling is contrary to the requirements of the City's Character Retention Guidelines for the Heritage Protection Control Area of the City's Local Planning Scheme No. 3.
On 27 September 2011, the respondent reconsidered and affirmed its decision of 24 May 2011 in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA).

Site and locality

The site has a rectangular shape and an area of 809 square metres. The existing house on the site is a modest single storey PostWorld War II (PostWWII) dwelling. The building is set back approximately 10 metres from the street boundary. It is constructed with red face brick walls, exposed limestone footings, a hipped terracotta tiled roof, timber-framed windows and a single undercroft garage accessed by a sloping concrete driveway.
The building was constructed in the early 1950s and externally has had very little alteration to its built fabric. There is no front fence and little in the way of garden other than a few shrubs and unkempt grass. There is a street tree on the verge in front of the property.
The site is located on the southeastern side of Graham Road which runs between Adair Parade and Elstree Avenue. The properties on this side of Graham Road back onto an area designated as public reserve and were generally constructed at a later date than those on the northwestern side.
Of the 16 properties on Graham Road, including the four corner lots, the parties agreed that six were constructed during the Inter War period; seven were constructed PostWWII and three are modern dwellings. The buildings are generally single storey with the exception of the three modern dwellings which are two storey. The front setbacks are fairly consistent, especially on the south-eastern side of Graham Road where they vary between 9 metres and 10 metres. Three of the properties have carports constructed in the front setback area. Most of the properties have no front fence. There are no footpaths separating the properties from the verges and mature street trees are planted at regular intervals.
The Tribunal had the benefit of a view of the site and Graham Road in the company of the parties on the morning of 21 November 2011.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme (MRS) and has a residential density coding of R10 under the City of Stirling Local Planning Scheme No 3 (LPS 3).
Part 6 of LPS 3 refers to special control areas which include heritage protection areas. The subject site is located in a heritage protection area special control area and the objectives of this area are set out in cl 6.6.1 of LPS 3 as follows:
a)To ensure the conservation and retention of buildings within the Heritage Protection Area Special Control Area dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
b)To ensure the retention of existing buildings referred to in (a) above to maintain the existing character of the streetscape;
c)To ensure that new buildings (where permitted), alterations, additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respect the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
d)To maintain and improve existing street trees, grass verges and front gardens; and
e)To retain mature trees wherever possible.
Clause 6.6.3 of LPS 3 states that all development shall conform with the objectives above and the local planning policy 'Character Guidelines Mt Lawley, Menora & Inglewood' (Character Guidelines).
Clause 10.2 of LPS 3 sets out the matters the respondent is to have regard to when considering an application for planning approval, and include the following:
…
c)any approved statement of planning policy of the Commission;
…
f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.2.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;
…
h)the conservation of any place that has been entered in the Register within the meaning of the Heritage of Western Australia Act 1990, or which is included in the Heritage List under Clause 7.1, and the effect of the proposal on the character or appearance of a heritage area and the following:
i)the effect of the proposed development on the heritage significance of the place;
ii)the measures proposed to conserve the heritage place;
iii)if the proposal involves demolition, whether the heritage place is reasonably capable of conservation, and whether or not the place is structurally sound;
iv)whether the character, design and aesthetics of any proposed replacement building and its relationships to character of adjacent buildings are appropriate.
…
The key of objectives of the Character Guidelines are to:
•Ensure the retention of buildings within the Heritage Protection Areas dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
•Ensure that new buildings, alterations and additions to existing buildings, carports, garages and front fences are in keeping with the heritage character of the area, respects the scale and proportions of surrounding buildings, and are designed to fit into the existing streetscape;
•Maintain and improve existing street trees, grass verges and front gardens;
•Retain mature trees wherever possible; and
•Provide a framework for the assessment of development applications in line with the above points.
The subject site is located in the Menora heritage protection area and the Character Guidelines identify the significance of the area and describe its streetscapes and traditional Menora houses as follows:
Menora is a very significant, substantially intact residential area planned on Garden Suburb planning principles. It is characterised by landscaped parks and streets with open grassed verges and mature trees. The curved road layout provides attractive vistas to parks and streets. The area is characterised by large homes from the 1930s to the 1960s, many of high architectural quality, set in attractive established gardens which are generally landscaped to compliment [sic] the design of the house. There are a number of fine examples of a range of architectural styles including InterWar Californian Bungalow and Functionalist and houses with elements of Spanish Mission styles.
The area has aesthetic/historic/social significance for the following reasons:
•Distinctive road and subdivision pattern;
•Excellent examples of housing generally from the 1930s and 1950s including examples of InterWar Californian Bungalow, Functionalist, Spanish Mission and Mediterranean styles;
•Street design including general street layout, landscaped public open spaces, wide verges and street trees;
•Garden layout, design and quality;
•Good example of the implementation of Garden Suburb planning principles in Perth; and
•Historic associations with the Jewish community in Perth.
…
The road pattern in Menora varies markedly from the pattern of the adjacent Mount Lawley area, which is based on a rectangular grid. The road pattern of Menora is based on Garden Suburb town planning principles and comprises a series of crescents incorporating a series of small parks. The basis of these principles is that the suburb is designed as a whole community with a focus around a shopping or community centre and where residential lots are designed with access to areas of public open space. Street blocks are subdivided into a series of residential lots with approximately equal street frontages. Residential lots are around 840 to 1000 square metres in area with some variation and irregularity in block size as a result of the circular street pattern. The area contains some internal park areas at the backs of houses which is characteristic of Garden Suburb planning and rare, but not unique, in the context of metropolitan Perth. The subdivision pattern remains substantially as originally planned with no amalgamation or subdivision of original lots.
The area comprises mainly single and double storey residences with the traditional pattern of one house to each lot. Houses are set back an equal distance from the street however setbacks vary throughout the area and are quite large in some cases. Generally the area is characterised by low masonry fences or an absence of front fences and the front garden extending to the pavement or into the street verge with no pavements in a few cases. Public and private landscape areas are integral to the character of the area. Front gardens are generally informal in design with a predominance of exotic plantings and lawn. Street trees are planted at regular intervals throughout the area. Houses were generally constructed with a single crossover and provision for parking one car. Over time larger double carports and garages have been introduced. Generally these can be accommodated without appearing intrusive as the lot frontages are wide.
…
Houses in Menora were constructed predominantly in the period 1930 to the 1960s. Generally houses are single storey, although there are some larger two-storey homes throughout the area, and architectural styles reflect the period of construction. Examples of housing styles include InterWar Spanish Mission, Functionalist and California Bungalow. There are a number of fine residences in the InterWar Functionalist style which are rare in the context of metropolitan Perth.
Also of relevance to this review is State Planning Policy No 3.5 Historic Heritage Conservation (SPP 3.5). SPP 3.5 applies to places and areas of significance at both a State and local level.
Clause 6.2 of SPP 3.5 states that heritage areas are designated under local planning schemes. The clause states that a heritage area should always be designated on the basis of a clear statement of significance and a clear identification of the significant physical fabric in the area and that, in designating a heritage area, the local government is required to adopt a local planning policy that sets out the objectives and guidelines for conserving the significant heritage fabric of the area.
The Menora heritage protection area is relevantly a heritage protection area for the purposes of SPP 3.5. The Character Guidelines are an adopted planning policy and contain a clear statement of significance for the Menora area.
Clause 6.6 of SPP 3.5 sets out principles for development control in heritage areas and states that the weight 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.
Specifically in relation to demolition of a heritage place (including a place within a heritage area), cl 6.6 of SPP 3.5 states:
…
•… 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.

The issues

The parties were each represented by a town planner. Mr Alan Stewart appeared on behalf of the applicant and Mr Daniel Martinovich appeared on behalf of the respondent. Mr Stewart and Mr Martinovich prepared a joint statement of issues, facts and contentions which stated the issues and facts that they agreed on, particularly in relation to the relevant town planning framework. The statement also outlined the parties' contentions in relation to the following agreed issues:
1)Whether demolition would be contrary to the respondent's Character Guidelines, including the provisions for demolition of buildings, specifically, demolition provisions (a), (b) and (c).
2)Whether demolition of the dwelling satisfies the demolition objective of the Character Guidelines, which is to 'retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s'.
The Tribunal will address each issue in turn.

Is demolition contrary to the respondent's Character Guidelines, including the provisions for demolition of buildings, specifically, demolition provisions (a), (b) and (c)?

The Character Guidelines require the applicant to provide written justification for any proposed demolition of houses within the heritage protection area and this justification is to address the following seven dot points plus any further justification that may be considered relevant. For clarity, the demolition provisions (a), (b) and (c) referred to in the agreed statement of issues are the first three of the seven dot points listed below:
•Detail why the character of the building and its setting does not contribute to the character of the Heritage Protection Area and streetscape;
•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;
•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;
•Is the building listed on the City's Heritage List;
•Is the building the work of a noteworthy architect, designer or builder;
•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; and
•Does the building have a significant meaning to a specific and identifiable group in the community.

It is common ground that the building is not on the City's Heritage List; is not the work of a noteworthy architect, designer or builder; was not the home of an important person or the location of a significant event; and does not have significant meaning to a specific and identifiable group in the community.
The parties were in disagreement regarding the first three dot points and Mr Stewart, on behalf of the applicant, made the following contentions:
a)The building does not make a significant contribution to the character of the Heritage Protection Area or the streetscape, which comprises a mix of architectural styles, including examples of interwar architecture, postwar dwellings and contemporary homes.
b)The building is not an example of any of the three specific architectural styles of housing that contribute to Menora's character, being the interwar Spanish Mission, Functionalist and Californian Bungalow, and in any event, the building does not contain any unusual or finely executed detailing.
c)Conservation is not viable in a practical sense, because to bring the dwelling up to a standard that satisfies contemporary living expectations would require the dwelling to be modified to such an extent that its contribution to the streetscape would be diminished significantly, as a result of, for example, the requirement to construct a covered car parking area in front of the dwelling, and the inadequate dimensions and functionality of the existing undercroft car bay and north-facing front balcony.
Mr Martinovich, on behalf of the respondent, contended that:
a)The degree of austerity in building construction reflects the economic climate of the period. Similarly the availability of building products was affected by the circumstances of the time, particularly following war time. Less austere dwellings contribute to the Heritage Protection Areas because they represent the socioeconomic climate at that period in the area's/suburb's development.
b)The objectives of the Heritage Protection Area Special Control Area give a clear statement on the intent of the Heritage Protection Area and also that of the Character Retention Guidelines for Mt Lawley, Menora and Inglewood. The architectural style of the dwellings to be considered for retention and conservation are not limited to those specifically referenced as 'examples of housing styles' within the Guidelines. The Guidelines do not state that ONLY particular architectural styles are to be retained or that, in order to be worthy of retention, a dwelling must reflect one of the particular architectural styles referenced as an example. The Guidelines are applicable to each application for demolition within the Heritage Protection Area.
c)It has not been argued, nor is there any evidence to suggest that the dwelling is structurally unsafe or irredeemable. Conservation of the dwelling is considered viable. The fact that the dwelling may or may not satisfy contemporary living expectations is of no planning significance as there is no measurement or standard by which to determine what does or doesn't meet contemporary living expectations. In any case, there is no provision within the Scheme or the Guidelines that allows for the demolition of a dwelling where it does not meet contemporary living expectations.
The Character Guidelines also state that prior to the approval of any demolition or development in a heritage protection area, the City may require a Heritage Assessment by a 'heritage/architectural professional' to be carried out in order to assist the City in its determination.
In this case, the Tribunal has the following documents:
1)Heritage Assessment prepared by Hocking Planning & Architecture on behalf of the respondent for the previous demolition application, December 2010.
2)Heritage Assessment prepared by J Christopher Keen for the development application the subject of this review, February 2011.
3)Written justification for the demolition of the existing building addressing the dot points above prepared by J Christopher Keen, February 2011.
4)Comments by Hocking Planning & Architecture on both the Heritage Assessment and justification for demolition prepared by J Christopher Keen, May 2011.
The Tribunal had the benefit of expert evidence from two heritage architects Mr Christopher Keen, appearing on behalf of the applicant, and Mr Ian Hocking, appearing on behalf of the respondent.
While Mr Keen stated that the existing building was 'a good example of postwar economical building', he was of the opinion that its character does not contribute to the heritage protection area and the streetscape, as the building has none of the attributes of larger earlier built buildings in the area. He said, specifically, that the building has no front verandah, no posts with ornate detailing, minimal timber windows, small rooms and a small garage which is insufficient for present day cars. In fact, in order to bring the dwelling to modern day standards, a double garage and entry porch in front of the dwelling would need to be provided and this would reduce the visibility of the dwelling from the street and erode any streetscape contribution.
It was Mr Hocking's view that the building 'is a representative example of the PostWWII Functionalist style of bungalow, built during the period of austerity, which has retained its original appearance and presentation to the street'. He agreed that the garage would be unlikely to satisfy current standards for garage size or driveway gradients. It was his opinion that the undercroft garage and driveway could be altered in a similar way to No 18 Graham Road, the property immediately adjacent to the north. The removal of the driveway could be positive in terms of streetscape as it is currently the only ramped driveway in the street and interrupts the openness of the streetscape.
Mr Hocking acknowledged that the 13 original houses in Graham Road are varied in detailed character but are consistent in scale (single storey), general character including roof forms (generally hipped) and materials (red brick and terracotta tiles), consistent setbacks and open expansiveness (no front fences, large grassed and treed verges). It was his view that the form and character of the subject building makes an integral contribution to the relatively intact character of the heritage protection area streetscape.
Mr Keen identified three houses in Graham Road that he felt do not make a significant positive contribution to the street (the subject building and Nos 13 and 24) as they are all functional dwellings built in the 1950s, whereas the six dwellings built in the InterWar period and the three contemporary dwellings 'all make a more positive contribution to the streetscape'. Mr Keen made a distinction between the subject site and its immediate neighbour (No 18 Graham Road) in terms of streetscape, stating that No 18 Graham Road was constructed a few years earlier and is of better quality, with larger windows and a feature entry porch and therefore makes a more significant contribution to the street than the subject site.
It was also Mr Keen's evidence that while the subject building is an example of an economical, austere and functional PostWWII building, it is not a typical example of any of the architectural styles referred to in the Character Guidelines.
The parties agreed that the building has no unusual or finely executed details and there was no argument put forward that the building was structurally unsound. In fact, Mr Keen, who has inspected the interior, said that the building is structurally sound and has had little upgrade or alterations since it was purchased.
Mr Keen was of the opinion that the floor plan of the dwelling was not acceptable by present day standards due to the size of the rooms, the ceiling heights, access to rooms and economical finishes. Neither the respondent, Mr Hocking or the Tribunal has inspected the building internally but Mr Keen provided rough sketch plans indicating the internal layout.
With regard to the contribution that the character of the subject building and its setting makes to the character of the heritage protection area and the streetscape, the Tribunal agrees with Mr Hocking. The building is largely or substantially intact (this is common ground) and it reflects the form, scale, character and materials of PostWWII buildings constructed during a time of austerity. The streetscape is substantially intact as, of the 16 properties in Graham Road, 13 are single storey dwellings constructed during the 1930s to 1950s. This is particularly evident on the southeastern side of Graham Road where the subject building is one of five dwellings built PostWWII and is adjacent to a building of very similar form, scale and materials (No 18). The Tribunal is therefore of the opinion that the character of the subject building and its setting contributes to the heritage protection area of Menora and the streetscape of Graham Road.
With regard to the second dot point, the Tribunal agrees with Mr Martinovich's contention that the architectural styles of buildings to be retained and conserved are not limited to the three styles referred to in the Character Guidelines. The subject building is an intact example of an austere economical functional PostWWII building. It does not need to be of high architectural quality or one of the three architectural styles referred to as examples in the Character Guidelines they are merely examples illustrating the range of architectural styles constructed during the 1930s to 1950s in Menora.
Finally, in regard to the third dot point, Mr Stewart contended that conservation was not viable because adapting the dwelling to modern standards would require such significant modifications that the building's contribution to the streetscape would be significantly diminished. Mr Keen agreed with this contention and stated that a front porch as well as a double garage would be required. In this instance, the Tribunal disagrees with Mr Stewart and Mr Keen. The building has the potential for considerable alterations and extensions to the rear of the property and, in regard to offstreet parking, a hardstand or carport in the front setback could be applied for in the same way that other properties in the street have. The Tribunal notes that this dot point actually refers to viability of conservation of a building in relation to structural integrity. In this case, no evidence has been provided to suggest that the building is structurally unsafe or irredeemable.
In summary, the Tribunal has determined that the character of the building and its setting contributes to the character of the heritage protection area of Menora and the streetscape of Graham Road. The building is an intact example of an austere economical functional PostWWII building and has not been found to be structurally unsound. The Tribunal therefore finds that justification for the demolition of the building on the subject site has not been substantiated and is contrary to the respondent's Character Guidelines.

Does demolition of the dwelling satisfy the demolition objective of the Character Guidelines?

The demolition objective of the Character Guidelines is to:
•Retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s.
In relation to this issue, the applicant contended that:
a)The terminology used in the Guidelines, in particular, and in other documentation published by the Respondent, is unclear with respect to whether buildings constructed after 1950 are intended to be retained and conserved.
b)The Respondent's 'Guide to Rates and Services' suggests the Guidelines are intended to apply to buildings constructed prior to 'circa 1950'.
c)The subject building was built sometime between 1953 and 1955.
d)In a report concerning the demolition of a building at No. 23 Sexton Road, Inglewood, the Respondent's officers recommended approval of demolition despite advice stating a portion of the building had been constructed in the 1950's.
e)Regardless of whether the Guidelines apply to buildings constructed after 1950, the relevant planning framework, including LPS3 and the Guidelines, does not preclude demolition of buildings constructed before or after 1950, as confirmed by the Tribunal in Paz and City of Stirling [2011] WASAT 157.
The respondent's contentions were that:
a)The proposed demolition of the subject dwelling does not meet the objectives of the Guidelines which are to 'retain and conserve original building[s] within the Heritage Protection Areas, particularly those buildings dating from the early 1900's to the 1950's.' Not only does this objective clearly state that buildings constructed in the 1950's are to be retained and conserved, but particularly buildings constructed from the 1900's to the 1950's. The word particularly leaves scope for dwellings constructed outside of that time period to also be retained and conserved. Given the fact that the dwelling was constructed in the 1950's retention of the dwelling would be in accordance with the objective of the City's Guidelines.
b)The City's 'Guide to Rates and Services' is an information pamphlet for rate payers and is not a policy under the Scheme nor part of the Scheme and has no statutory basis. The pamphlet specifically refers residents to the Guidelines and can not be read in isolation to the Guidelines. In any case, the pamphlet uses the terminology 'circa 1950' which does not preclude consideration of dwellings constructed in the 1950's.
c)The respondent does not object to this statement.
d)Evidence that the Council has previously supported demolition where part of the building was constructed in the 1950's does not set precedence so that every application to demolish a dwelling constructed in the 1950's is approved. In its decision to approve the demolition at No. 23 Sexton Road, Inglewood Council considered a range of factors. With regards to the subject application for review, the application for demolition was not refused solely on the basis that it was constructed in the 1950's.
e)It is agreed that the City's relevant planning framework, including LPS3 and the Guidelines, does not exclusively prohibit demolition of buildings constructed before or after 1950. … The fact that the [Tribunal] has previously dismissed a decision of the City to refuse an application for demolition of a dwelling within the Heritage Protection Area does not set precedence so that every application to demolish a dwelling within the Heritage Protection Area is approved. In any case, the nature of the two applications differ[s] and [is] not comparable. In the case of Paz and City of Stirling [2011] WASAT 157 the fundamental reason for the [Tribunal's] decision was because the dwelling[']s contribution to the streetscape and the Heritage Protection Area was undermined by the fact that's [sic] its setback substantially reduced its visibility from the street and was at variance with the other dwellings in the street. In the case of the subject dwelling, the setback is consistent with the streetscape, and has not been argued as a reason for demolition.
In the opinion of the Tribunal, the objectives of the Character Guidelines clearly state that original buildings within the heritage protection area should be retained and conserved, particularly those dating from the 1900s to the 1950s. The parties agree that the subject building was constructed between 1953 and 1955. The reference to buildings 'built before circa 1950' in the pamphlet 'A Handy Guide to Rates and Services' is in relation to informing the owners of properties located in the heritage protection areas of Inglewood, Mount Lawley and Menora of the existence of guidelines that will assist in renovating or developing their properties. The pamphlet does not contradict the demolition objectives of the Character Guidelines.
The subject building is an intact original building located within the heritage protection area of Menora and was constructed in the early 1950s. It should therefore be retained and conserved unless there is justification provided by the applicant to the contrary. The justification for demolition has been addressed in Issue 1 and found by the Tribunal not to be sufficient to allow for the demolition of the existing building on the subject site.
In regard to the applicant's reliance on a report prepared by the respondent's officers recommending approval of the demolition of a building at No 23 Sexton Road, Inglewood, it is difficult for the Tribunal to ascertain its relevance without further evidence.
However, in regard to Mr Stewart's fifth contention on this issue, the Tribunal agrees that, regardless of whether the Character Guidelines apply to buildings constructed after 1950, the relevant planning framework, which includes LPS 3 and SPP 3.5, does not preclude demolition of buildings constructed before or after 1950.
As stated in Paz at [65] and [66]:
The objective of the Guidelines to 'retain and conserve original buildings … particularly those buildings dating from the early 1900s to the 1950s' in the HPA creates a general presumption in favour of retaining such buildings.
However, such a policy aspiration is not, and cannot be, determinative of the matter. The weight given to heritage requirements of the Guidelines needs to be considered within the broader context of orderly and proper planning and in response to the relevant provisions of LPS 3 which the respondent, or the Tribunal in its place, needs to consider.
In Paz, the Tribunal granted demolition approval for a building constructed in 1908 and located within a heritage protection area. This decision can be differentiated from the current review by the particular circumstances of that case which importantly involved an existing building with a front setback far greater than that of other buildings in the street, resulting in very limited redevelopment options to both the rear and front of the building.
In regards to LPS 3 and SPP 3.5, the relevant clauses have been referred to in the planning framework section above. It is the Tribunal's view that, as the building is an intact example of an austere economical functional PostWWII building and is located in a streetscape that is also substantially intact, its retention will maintain the existing character of the streetscape and will satisfy the objectives of the heritage protection area as set out in cl 6.6.1 of LPS 3.
The level of significance of the Menora heritage protection area is based on the fact that it is a substantially intact residential area planned on Garden Suburb planning principles. Graham Road has only three out of a total of 16 properties that were not constructed during the period from the early 1900s to the 1950s. The area, including Graham Road, is still characterised by streets with open grassed verges, mature trees and landscaped parks.
Considering the demolition of the existing building on the subject site in relation to cl 6.6 of SPP 3.5, the Tribunal has expressed the opinion earlier that the existing building is significant as an intact austere economical PostWWII building that reflects the form, scale, character and materials of buildings constructed during a time of austerity. The building is located within a substantially intact streetscape and immediately adjacent to a building of similar form, scale and materials (No 18). It is feasible to adapt or modify the building while still maintaining its significance in the streetscape.
The Tribunal finds that demolition of the dwelling does not satisfy the demolition objectives of the Character Guidelines or the broader planning framework which includes LPS 3 and SPP 3.5.

Conclusion

The Tribunal has found that demolition of the subject building is contrary to the respondent's Character Guidelines and does not satisfy the demolition objectives of these Character Guidelines.
In this case, the Tribunal has considered the heritage requirements of the Character Guidelines in the context of the broader planning framework and determined that retention of the intact, austere economical PostWWII building on the subject site is entirely appropriate.

Orders

For the reasons given above the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 24 May 2011 to refuse development approval for the demolition of the existing house at No 16 (Lot 228) Graham Road, Menora is affirmed.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER