GOLDENSTEP PTY LTD and TOWN OF VINCENT - [2007] WASAT 167

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOLDENSTEP PTY LTD and TOWN OF VINCENT [2007] WASAT 167

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 26 JUNE 2007

FILE NO/S: DR 423 of 2006
DR 439 of 2006

BETWEEN: GOLDENSTEP PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Town planning – Development application – Written direction under s 214(3) of Planning and Development Act 2005 (WA) – Retrospective approval for alterations and additions – Validity of a written direction – Merit of a written direction – Variations to a written direction – Works undertaken in contravention of a planning condition – Impacts of listing on the MHI and Heritage List under the Scheme – Application of Council heritage policy – Alterations to a place on the MHI

Legislation:

Heritage of Western Australia Act 1990 (WA), s 45
Planning and Development Act 2005 (WA), s 214(3), s 252(1), s 252(2), s 255
State Administrative Tribunal Act 2004 (WA), s 29(3)
Town of Vincent District Town Planning Scheme No 1, cl 6(3)(g), cl 23, cl 23(1), cl 23(2), cl 25, cl 27, cl 32(1), cl 47, cl 53(1)
Town Planning and Development Act 1928 (WA), s 8A(1)

Result:

The application for review of the refusal of retrospective approval is dismissed and the respondent's s 214(3) written direction issued under the PD Act is affirmed subject to the addition of further directions

Category: B

Representation:

Counsel:

Applicant: Mark Etherington
Respondent: N/A

Solicitors:

Applicant: Minter Ellison
Respondent: Town of Vincent

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

Crugnale and Town of Vincent [2006] WASAT 93
Filton Pty Ltd and Town of Vincent [2006] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Goldenstep Pty Ltd is the owner of a building originally built as two adjoining two storey residences likely to have been constructed in the 1890s at Nos 395 – 397 William Street, Perth. In January 2005, the applicant sought and obtained planning approval for a change of use from consulting rooms to shops, offices and warehouse, and associated alterations and additions. This approval was subject to the following condition:
"(vi)prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating that the existing front doors and windows are kept intact. The revised plans shall not result in any greater variation to the requirements of the Town's Policies."
Subsequent to this approval, the ground level windows and doors were removed, and wide commercial ground level openings installed. No building licence had been issued for works on the site.
On 6 October 2006, the Town of Vincent commenced action against the applicant by serving a direction under s 214(3) of the Planning and Development Act 2005 (WA) requiring the reinstatement of the front doors and windows that previously existed on the property.
On 10 November 2007, an application for retrospective approval for alterations to front doors and windows to approved shops, office and warehouse was refused by the Town of Vincent under delegated authority from the Council.
The applicant applied to the Tribunal for review of both the direction and the refusal of retrospective approval. The Tribunal considered the matters together as they concern the same works.
The Tribunal dismissed the application for review of the refusal of retrospective approval and affirmed the Council's decision to issue the s 214(3) direction issued under the Planning and Development Act 2005 (WA), subject to additional directions.

Introduction

These proceedings involve two applications by Goldenstep Pty Ltd for review:
•DR 423 of 2006: pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) of a written direction of the Town of Vincent (respondent, Town or Council), dated 6 October 2006, for non‑compliance with cl 53(1) of Town of Vincent District Town Planning Scheme No 1 (TPS 1 or Scheme) requiring the reinstatement of "the front doors and windows that previously existed on the property".
•DR 439 of 2006: pursuant to s 252(1) of the PD Act of a decision of the Town, dated 10 November 2006, to refuse retrospective approval for alterations and additions to the premises associated with a change of use from consulting rooms to shops, offices and warehouse. This change of use had been approved by the Council subject to a condition requiring "revised plans … demonstrating that the existing front doors and windows are kept intact".

Subject land

The applications for review relate to Lot 28 (Nos 395 – 397) William Street Perth (subject land or site). The subject land has a regular, rectangular shape. The frontage of the site is 13.08 metres and the length is approximately 35.3 metres comprising an area of approximately 462 square metres located on the western side of William Street between Forbes Road and Robinson Avenue.
The subject land was originally developed with two double storey duplex residential dwellings. The original building, which is set back 4.96 metres from the William Street boundary, has been subject to a number of alterations. The buildings take up most of the width of the site with setbacks to the side boundaries of 813 millimetres to the southern boundary and 919 millimetres to the northern boundary respectively. An area of approximately 11 metres by 13 metres at the rear of the property is not developed. The site has not been used for residential purposes for some considerable period of time. The properties to the south and north of the subject land are in commercial use. The property to the east facing Wellman Street is in residential use.
The subject land is zoned "Commercial" under TPS 1.

Background

On 5 January 2005, the Town granted approval to commence development for a change of use from consulting rooms to shops, office and warehouse and associated alterations and additions on the subject land. As part of this development approval, the Town granted consent for two commercial tenancies on the ground floor subject to condition (vi) which read as follows:
"[P]rior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating that the existing front doors and windows are kept intact. The revised plans shall not result in any greater variation to the requirements of the Town's Policies".
The applicant did not seek a review of this condition under s 252(2) of the PD Act.
Subsequent to this approval, the existing ground level windows and doors were removed, and wide commercial ground level openings created. The timber windows on the upper floor were also replaced with new aluminium windows. No building licence had been issued for works on the site.
As part of the Town's review of the Municipal Heritage Inventory (MHI), the site was identified by the Town's consultants on the MHI as a Management Category B – Conservation Recommended place.
The MHI underwent a period of community consultation between 21 June 2006 and 31 August 2006. This consultation included correspondence from the Town to affected owners. No response to the proposed inclusion of the site on the MHI was received by the Town. The site was subsequently included by the Town in the MHI on 12 September 2006.
The "Place Record Form" which records the entry of the place in the MHI states:
"The duplex at No 395 William Street is a comparatively rare example of the Federation Georgian style and of a development model more typical of the gold rush periods in the eastern states, than of the Gold Boom period in Perth. Its unusualness contributes to the immediate streetscape character".
In his witness statement, Mr Pan, of Goldenstep Pty Ltd, gave evidence that he did "not recall ever having received notice of advertising" and the first time he "became aware of the Town's Municipal Inventory in relation to the land was when" he "received notice that the Land had been included within the Town's Municipal Inventory". He also contends that when he raised this with the Town he "was informed that this was a mistake which would be rectified, but never was".
Mr Pan's recollection of events is disputed by the Town, which claims that the owner of the site "was consulted in writing at various stages throughout the process" and that "[i]n a letter dated 10 October 2006 … the applicant returned parts of this correspondence to the Town".
It is, however, agreed between the parties that the site is included within the Town's MHI and therefore, by virtue of c 23(2) of the TPS 1, on the Heritage List under the Scheme.
On 6 October 2006, the Town issued a written direction for non‑compliance with cl 53(1) of TPS 1 requiring the reinstatement of "the front doors and windows that previously existed on the property".
On 10 November 2006, an application for retrospective approval for alterations to front doors and windows to approved shops, office and warehouse was refused by the Council.

Issues

The following principal issues require consideration in the review:
1)Whether on the merits of the case the refusal by the Town to grant retrospective approval to the application of 10 November 2006 should be set aside and approval granted for the new doors and windows facing William Street.
2)Whether the written direction is valid and if so whether, on the findings of issue 1, should be set aside.
The Tribunal will address each issue in turn.

Whether retrospective approval should be allowed?

On 10 November 2006, the application for retrospective approval for alterations to front doors and windows to approved shops, office and warehouse was refused by the Town under delegated authority from the Council for the following reasons:
"(i)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(ii)the non‑compliance with the Town's Policy No 3.6.1 relating to Heritage Management – Development Guidelines as the place is listed on the [MHI] and the subject alterations do not reflect the heritage significance associated with the place and do not follow good heritage management practice".
In dealing with places of cultural heritage significance under the statutory provision of the Scheme, the following provisions are relevant.
The general objectives of TPS 1 include at cl 6(3)(g):
"To promote and safeguard the cultural heritage of the Town by:
(i)identifying, conserving and enhancing those places which are of significance to Vincent's cultural heritage;
(ii)encouraging development that is in harmony with the cultural heritage value of an area; and
(iii) promoting public awareness of cultural heritage generally;"
The legislative mechanism by which the Town identifies "places considered by the Council to be of heritage significance and worthy of conservation" is by designation of the place on the Heritage List which the Town is required to establish and maintain by cl 23(1) of the Scheme. Clause 23(2) provides that the Heritage List means the MHI, as amended from time to time, prepared by the Council pursuant to s 45 of the Heritage of WesternAustralia Act 1990 (WA).
Clause 47 of the Scheme provides for the Council to make planning policies and establishes the parameters under which such policies are prepared.
On 27 June 2006, the Town adopted Policy No 3.6.1 – Heritage Management – Development Guidelines (Policy 3.6.1). More particularly, in context of the current review, Policy 3.6.1 provides guidance on the exercise of discretionary powers under cl 25 and cl 27 of the Scheme.
Policy 3.6.1 at P2, cl A.2.5 provides the following guidance on acceptable development in regard to the treatment of doors and opening:
"New openings in the principal facades(s) visible from the street are avoided, or if openings are visible, they are proportionally related to those of the heritage place, unless concealed from view from the principal street frontage."
Mr Bodycoat's evidence in the matters subject to review was that the building was constructed as "two adjoining two‑storey residences" and that "[t]he date of initial construction is likely to be in the 1890s". "Since that time the building has been subjected to substantial physical change and to different residential and commercial uses". In his evidence, Mr Bodycoat also stressed the lack of homogeneity of the streetscape and the fact that there is, in his opinion, no uniformity in the building bulk, materials or setbacks.
Mr Bodycoat challenged the propriety of the listing of the building on the MHI and argued that "assessment of cultural heritage significance at any level is seriously flawed and an inept determination of heritage values". In this context he argues the "removal of the ground floor door and two sash windows and replacement with wide openings of glazed timber door panels is … inconsequential" and the "alterations made by the owner are acceptable in both a heritage and streetscape context".
Mr Bodycoat argued that "[r]estoration or reinstatement would be conjectural for much of the altered detail, would not be the original material, and would not thereby substantiate a claim to heritage significance". Mr Bodycoat conceded, however, that "a full heritage survey or an appropriate heritage assessment has not been carried out for the subject building".
The respondent argued the building is a "comparatively rare example of the Federation Georgian style" and that "its unusualness contributes to the existing streetscape". This evaluation was challenged by Mr Bodycoat who argued he "considers the determination of the style as Federation Georgian to be technically incorrect but also presumptive, a matter of conjecture".
It is clear from the photographs provided to the Tribunal and evidence of Mr Bodycoat that the William Street façade of the building has been subject to extensive adaptation prior to the alterations the subject of the current review. This has been conceded by the respondent. These changes include the removal of an original verandah, the bricking up of two doors at first floor level providing access to the verandah, the bricking up of a previously existent door at ground floor level, and alterations to ground floor windows.
In regard to the current review, the Heritage Planning Officer of the Town, Ms Kendall's, evidence was that "[t]he alterations and additions are unsympathetic and have a detrimental impact on the buildings presentation to the street". Councillor Chester's evidence for the respondent is supportive of such an interpretation when he suggests "alterations to the proportions of the openings to the front façade would significantly erode the heritage value of the place".
In her evidence, Ms Kendall did however stress that "heritage listing of a place does not prevent change. However, it encourages new works or alterations to a place to be undertaken in a manner that adds to and enhances the existing form and style of the building … ".
In regard to the question of the cultural heritage value of the place, the Tribunal finds as follows:
•The issue of whether the building warrants inclusion on the MHI and by virtue of cl 23, the protection of the Scheme is not a matter requiring a determination; it is agreed between the parties that the building is listed on the MHI and, in that context, it is entirely appropriate that the Town dealt with the application under the provisions of cl 25 of the Scheme and Council Policy No 3.6.1.
•The Tribunal accepts the evidence of Mr Bodycoat in regard to the lack of homogeneity of the streetscape but accepts the evidence of the respondent that the unusualness of the building does make a contribution to the immediate streetscape character.
•The Tribunal accepts the evidence from Mr Bodycoat that the building has been subjected to substantial physical change.
•In particular, the Tribunal finds that the William Street façade of the building has been subject to extensive adaptation prior to the alterations the subject of the current review.
•However, the Tribunal rejects Mr Bodycoat's contention that the "removal of the ground floor door and two sash windows and replacement with wide openings of glazed timber door panels is … inconsequential" and the "alterations made by the owner are acceptable in ... a heritage ... context".
•The Tribunal accepts the argument of the applicant that the application of Policy 3.6.1 is not "mandatory" but finds that in applying the policy, the respondent exercised discretion which accords with recognised heritage practice.
•The Tribunal therefore accepts the evidence of Ms Kendall that "[t]he alterations and additions are unsympathetic and have a detrimental impact on the buildings presentation to the street" in terms of the application of cl A.2.5 of Council Policy No 3.6.1 "Heritage Management – Development Guidelines".
On this basis, the Tribunal has determined that retrospective planning approval should not be granted for the works undertaken by the applicant.

Whether the written direction is valid, and if so, whether on the findings of Issue 1 should be set aside?

The applicant argues that:
"[O]n a literal interpretation of condition (vi) of the Development Approval, the Works have not been undertaken in contravention of the condition (and therefore [cl] 32(1) of TPS 1) and the non‑lodgement of an amended plan does not amount to a breach in the circumstances as no building licence was required for the Works."
The written direction was issued by the Town on the basis that development had commenced without compliance to a condition attached to the approval and that this non‑compliance constituted a breach of the Scheme.
The approval in question encompassed a range of physical works. These included a new steel and glass entry verandah and awning which involved structural change to the building.
In this matter, the Tribunal supports the view of the respondent that while the initial work carried out at the premises may not have required the issue of a building licence, the completion of the works forming part of the approval issued by the Town on 5 January 2006 would have required a building licence. The applicant was advised of this at a meeting with the Town's Mayor and Manager Environmental and Development Services held on the 25 October 2006.
Condition (vi) simply sought to ensure that in any alterations to the building, the existing doors and windows on the William Street façade were to be retained. Prior to the entry of the subject land on the MHI, it was not open to the Town to draw on the provisions of cl 23(2) and cl 25 of the Scheme in regard to this matter. However, there were clearly powers available under cl 6(3)(g) to address this issue.
This is a matter which has been subject to previous consideration by the Tribunal in Filton Pty Ltd and Town of Vincent [2006] WASAT 70 where the Tribunal found:
"The effect of the site not being designated in the Heritage List is simply that provisions of the Scheme which serve to protect listed items have no application. It is not that the cultural heritage significance of the site and the effect of the development on that significance is an irrelevant consideration in the overall exercise of planning discretion."
The applicant has in its submissions raised concerns over what it perceived as the impracticality of condition (vi). While this may or may not be the case, the condition attached to the approval of the 5 January 2005 was not challenged either by seeking reconsideration from the Town, or with the Tribunal by way of a review of the decision.
In Crugnale and Town of Vincent [2006] WASAT 93, the Tribunal found that:
"Those who carry out development or use land should comply with the planning legislation and obtain any applicable approval, licence or other authorisation in relation to that activity. That is, it is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. There are occasions when this does not occur and it is within the discretion of the decision‑maker to issue directions or notices to have a use cease or works undertaken removed."

The applicant knew of the procedures for seeking and obtaining the necessary planning approval under TPS 1 before commencing development and took steps to obtain the planning approval issued on 5 January 2006. Development then commenced, which was in contravention of the approval issued.
The applicant contends that "the works are consistent with Policy No 3.1.13 'Beaufort Precinct' " which at cl 3 states:
"Continuous interactive fronts are to be provided along William Street with awnings or verandahs over the footpath as weather protection for pedestrians."
While the Tribunal is willing to support such a contention, this issue is not, in the view of the Tribunal, in any substantive way determinative of the issue before the Tribunal for review.
In regard to the applicant's contention that "the practicality associated with the use of the Land as two separate commercial tenancies, and the lack of utility in having to reinstate the windows and doors", the Tribunal notes the respondent's suggestion that "[a]n opportunity exists to reinstate the previous door, which has since been bricked up, along the southern side of the centre line of the building".
In regard to the validity and merits of the written direction, the Tribunal finds as follows:
•Condition (vi) appended to the approval, dated 5 January 2006, was within the powers of the Town to apply under cl 6(3)(g) of the Scheme.
•The intention of the Town to facilitate alterations to the building while retaining elements of the William Street façade was not unreasonable in terms of a building, which in spite of substantial adaptation over time, was regarded by the Council as retaining cultural heritage significance.
•The subsequent alterations to the William Street façade clearly breached both the spirit and the letter of the approval of the 5 January 2006.
•In this context, the issue of the written direction issued by the Town on 6 October 2006 under the provisions of s 214(3) of the PD Act was both valid and warranted.
•Given the particular circumstances of this case in terms of the practical application of direction 1(a) of the written direction, dated 6 October 2007, the direction should be varied pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA) and s 255 of the PD Act to include additional directions.
•Direction 1(b) shall read "that if in the opinion of the Town it is impractical to re‑instate the original door and windows they shall be reconstructed from appropriate timber based on the photographic or documentary evidence available".
•Direction 1(c) shall read "that should an additional door be required to establish direct and independent access to both tenancies from William Street the previous door, which has since been bricked up, along the southern side of the centre line of the building shall be reinstated based on credible evidence acceptable to the Town of its location and form".
•Direction 1(d) shall read "that should further alterations be required the applicant shall undertake whatever professionally prepared investigations are necessary to establish an adequate basis on which the Town can assess proposals for adaptation".
From its consideration of the matter, the Tribunal has determined that the respondent's s 214(3) direction issued under the PD Act is to be affirmed subject to the additional directions set out above.

Conclusion

These proceedings involved two applications by Goldenstep Pty Ltd for review.
DR 439 of 2006: pursuant to s 8A(1) of the TPD Act of a decision of the Town of Vincent, dated 10 November 2006, to refuse retrospective approval for alterations and additions to the premises associated with a change of use from consulting rooms to shops, offices and warehouse.
In regard to this refusal, the Tribunal found that the alterations and additions are unsympathetic, and would have a detrimental impact on the building's presentation to the street. On this basis, retrospective planning approval should not be granted for the works undertaken by the applicant and this appeal was therefore dismissed.
DR 423 of 2006: pursuant to s 214(3) of the PD Act of a written direction of the Town of Vincent, dated 6 October 2006, for non‑compliance with cl 53(1) of TPS 1 requiring the reinstatement of "the front doors and windows that previously existed on the property".
In regard to the validity of the written direction, the Tribunal found that the direction issued by the Town on 6 October 2006 under the provisions of s 214(3) of the PD Act was valid and should stand. However, given the particular circumstances of this case in terms of the practical application of direction 1(a) of that direction, the Tribunal found that the direction should be varied to include additional directions.
The Tribunal therefore determined that the respondent's s 214(3) direction issued under the PD Act is to be affirmed subject to a number of additional directions.

Orders

For the above reasons (amended in accordance with s 83(1)(d) on 16 July 2007), the Tribunal makes the following orders (of which order 2 was amended on 16 July 2007 in accordance with s 83(1)(c) of the State Administrative Tribunal Act 2004 (WA)):
In regard to DR 439 of 2006:
1.The application for review of the refusal of retrospective approval is dismissed.
In regard to DR 423 of 2006:
2.The respondent's s 214(3) direction issued under the Planning and DevelopmentAct2005 (WA) is to be affirmed subject to the following additional directions pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA) and s 255 of the Planning and DevelopmentAct2005 (WA):
(i)Direction 1(b) shall read "that if in the opinion of the Town it is impractical to reinstate the original door and windows they shall be reconstructed from timber based on the photographic or documentary evidence available".
(ii)Direction 1(c) shall read "that should an additional door be required to provide direct and independent access to both tenancies from William Street the previous door, which has since been bricked up, along the southern side of the centre line of the building shall be reinstated based on credible evidence acceptable to the Town of its location and form".
(iii)Direction 1(d) shall read "that should further alterations be required the applicant shall undertake whatever professionally prepared investigations are necessary to establish an adequate basis on which the Town can assess proposals for adaptation".
(iv)The date by which the direction must be complied with is extended to 60 days from the date of this order.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER