Hobbs and Town of Vincent
[2009] WASAT 167
•24 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HOBBS and TOWN OF VINCENT [2009] WASAT 167
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 AUGUST 2009
FILE NO/S: DR 442 of 2008
BETWEEN: CATHERINE MARY HOBBS
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application for retrospective approval - Proposal for substantial lattice or trellis extension to existing front wall - Heritage considerations - Group of four adjoining three storey terrace houses built in 1897 - Considered as rare and distinctive examples of the 'Federation Filigree' style - Properties subject to recent Ministerial Conservation Order - Property entered in local Municipal Heritage Inventory - Property classified by local authority as 'Conservation Essential' - Substantial contribution of property to cultural heritage - Siginificant heritage conservation values underlying planning framework of Town - Hierarchy of planning instruments discussed in such circumstances Whether security or privacy concerns could displace heritage concerns - No expert evidence called in rebuttal by applicant Development clearly inconsistent with desired subprecinct streetscape and heritage style Development would neither respect nor enhance the heritage significance of the place - Tribunal acknowledging burden on owner by reason of heritage development controls - Tribunal refused approval - Application dismissed
Legislation:
Planning and Development Act 2005 (WA)
Town of Vincent Town Planning Scheme No 1
Result:
Application for review dismissed and decision under review affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms T Woodhouse (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
Miktad Holdings Pty Ltd and City of South Perth [2009] WASAT 77
Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79
Optus Mobile Pty Ltd and Town of Vincent [2006] WASAT 179
Slusarczyk and City of Stirling [2008] WASAT 194
Tooth v City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198
Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316
Truong and East Perth Redevelopment Authority [2008] WASAT 283
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review dealt with a proposal to add a lattice or trellis extension to a solid front wall on a heritage property in Perth. The property was one of four adjoining three storey terrace houses built in 1897. The application sought retrospective planning approval.
The heritage significance of the property was substantial. The Tribunal accepted that the property was a 'rare and highly distinctive' example of the 'Federation Filigree' style, and was a site 'nationally acknowledged [as a] work of excellence'. The Town of Vincent had previously rated the property as 'Conservation Essential'. Moreover, the property had previously been interim listed on the State Register of Heritage Places, and was currently the subject of a ministerial Conservation Order.
The Town of Vincent had refused planning approval on various bases but the Tribunal concentrated on the heritage impact of the proposal. The Tribunal found that preserving heritage conservation values was, for this land, the primary or dominant planning consideration in the Town's planning framework.
The Tribunal accepted expert evidence to the effect that the proposed lattice extension would neither respect nor enhance the heritage significance of the place. In addition, the style of the proposed lattice was found to be materially inconsistent with the Federation Filigree style.
The applicant had also sought to argue wider matters of heritage policy issues, such as the burden imposed upon an owner and the difficulty she would have with modern day security and privacy issues if the lattice were to be removed. The Tribunal rejected these arguments whilst acknowledging that a significant burden was often imposed upon the owners of heritage‑listed properties by restrictions on the development of them.
The decision under review was affirmed and the application for review was dismissed.
Introduction: the subject land and the proposed development
This review concerns a proposal to place a wooden lattice or trellis structure on top of a wall on a heritage property in Beaufort Street, Perth in the Town of Vincent (Town or respondent).
The proposal involves the alteration of, and addition to, an existing front boundary fence of a three storey single terrace house at No 241 (Lot 100 and Lot 101) Beaufort Street (subject land). The proposal foreshadows a lattice 'topping', with a total height of 2.7 metres, 'to support climbing roses and to provide privacy to [the] house and garden'.
The proposal is a retrospective application for planning approval. Most of the lattice has apparently already been constructed, 'apart from that proposed above the existing front gate'.
The subject land is one of four adjoining three storey terrace houses. Their style is said to be 'Federation Filigree'. They were constructed in 1897. Their heritage management has been rated by the Town as 'Conservation Essential'.
Procedural history
The applicant's proposal was originally considered and rejected by the respondent Town in early November 2008. This rejection led to proceedings being commenced in this Tribunal. After directions in the Tribunal in December 2008, mediation was attempted in January 2009, and reconsideration by the Town took place in March 2009. That reconsideration did not lead to approval of the applicant's proposals.
By consent, in late March 2009 it was decided that the matter should be determined wholly upon the documents. The last of these documents arrived with the Tribunal in late May 2009.
Although the possibility of a view of the subject land was contemplated, the Tribunal determined that that course was not necessary, given both the substantial amount of photographic material lodged by the parties and the Tribunal's general familiarity in review work with the Beaufort Street precinct.
The planning framework
The subject land, although a residence, is zoned 'Commercial' under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
It is common ground that planning approval is needed for the proposal under TPS 1.
The Tribunal has had regard to the following planning instruments deriving authority by or under TPS 1.
First, there is Town of Vincent Policy No 3.1.13, Beaufort Precinct - Scheme Map 13 (BP policy). This is a generalised statement of planning policy with a heavy emphasis on the integration and relationship of residential and commercial uses in the area. It does, however, also direct decision‑makers that 'every effort [should be made] to retain the distinctive historical character of the area' (at page 3; and see the heritage reference at page 2).
Next, there is Town of Vincent Policy No 3.2.1, Residential Design Elements (RD elements policy). The Tribunal has had regard to 'SADC 13' thereof, which, amongst other things, specifies (as part of the acceptable development criteria) 'a maximum height of 1.8 metres' for street walls and fences. The corresponding performance criteria include reference to visible buildings and their entrances and consistency with the 'desired streetscape'. Arguably, here, the desired streetscape has significant relationship to the heritage context of the subject land, when viewed as a sub-precinct.
Of some considerable importance in this review is Town of Vincent Policy No 3.6.1, Heritage Management - Development Guidelines (HM policy). Performance criteria 'P2' thereof provides that '[a]lterations and additions to places of heritage value should be respectful of and compatible with existing fabric and should not alter or obscure fabric that contributes to the significance of the place'. See also the corresponding acceptable development criteria at 'A.2.1' and following, particularly 'A.2.5' which provides that '[w]alls, roof and fences are [to be] complementary to the heritage place in terms of materials, finishes, textures and paint colours and are [to be] appropriate to its architectural style'.
Finally, there is Town of Vincent Policy No 3.5.16, Non-Variation of Specific Development Standards and Requirements (NV policy). This policy purports to restrict the ability of a decision‑maker to vary certain standards, including those fixing the height and design of walls, fences and gates. It will be unnecessary in this review to discuss the extent to which the Tribunal would be bound, if at all, by the strictures of this policy.
The hierarchy of planning instruments
The priority to be given to heritage regulation in the midst of various planning standards is raised in this case.
Within the Town, the maintenance, amongst other things, of a location's amenity by heritage conservation through local planning instruments is an important regulatory value (see, for example, Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316; Optus Mobile Pty Ltd and Town of Vincent [2006] WASAT 179; and Filton Pty Ltd and Town of Vincent [2006] WASAT 70). That position has been arguably strengthened by the coming into force of State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) which was prepared under the Planning and Development Act 2005 (WA) and published in the Western Australian Government Gazette, No 112 (29 May 2007).
In planning cases, as here, it is sometimes necessary to consider 'a hierarchy of planning instruments' (cf Miktad Holdings Pty Ltd and City of South Perth [2009] WASAT 77 at [21]). The result of such analysis may produce a primary or dominant instrument (or both) for the making of any particular planning decision. Alternatively, as here, parts of related planning instruments might articulate a primary or dominant planning value.
Here, in my view, the starting point in the Town for the assessment of any use or development of land proposal, for land with the heritage status that the subject land has, is the heritage impact of the proposal. As will be seen by the result in this case, that 'starting point' might well end up determining the outcome as well.
Town's reasons for refusal
The respondent's reasons for refusal were as follows:
(a)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
(b)the non-compliance with clause SADC 13 of [the RD elements policy], which requires the maximum height of the street wall to be 1.8 metres above the adjacent footpath level;
(c)the street walls and front fences requirements proposed to be varied are as specified in the [NV policy]; and
(d)the non-compliance with the [HM policy].
The applicant's detailed arguments in response to each of these points is set out below. But first, I turn to the applicant's summary of her own case.
Applicant's case in summary
The applicant's overall case is summarised by her as follows:
1.The paramount consideration is of personal safety for the occupants who include a single woman and two very small children. The area has a very high incidence of home entries and violence against persons as well as property …
2.The change is a small incremental change which does not materially affect the current visibility of the facade.
3.The wooden trellis is in harmony with the original rectilinear woodwork of the building.
4.The Heritage Council of WA advises that as long as an alteration is easily reversible they do not oppose it. The wooden lattice is [sic] meets this requirement.
5.The area is zoned commercial.
6.The overwhelming character of the area is now commercial with multi-storey buildings generally built right to the footpath with no setback or fence. The wooden lattice does not impact negatively on this character.
7.The building is now more visible, even with the wooden lattice, than it was when the present owner acquired it.
8.Other fencing in Beaufort Street and the immediate vicinity of 241 Beaufort Street commonly does not comply with the 1.8 metre height restriction. Parity with other residences is sought.
It should be immediately observed that some of the grounds specified appear to be personal to the applicant and are not 'planning grounds'. Planning law is 'concerned with the use of land - and not with the identity of the user': per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. To the extent necessary, I will return to this point below.
Heritage aspects of the review - respondent's case
As will appear, the heritage issue in this review is central to the fate of Ms Hobbs' application. It is convenient to deal with this issue at this point in the reasons for decision.
It is firstly necessary to set out at some length the heritage aspects of the subject land. I commence with the Municipal Heritage Inventory (MHI) where the 'significance' of the subject precinct is described as follows (emphasis added):
Terrace houses, 235-241 Beaufort St are rare and highly distinctive examples of the Federation Fliligree [sic, Filigree] style. So singular is this group in style, scale, quality of design and execution that it is a nationally acknowledged work of excellence. It is a landmark in Beaufort Street and the most notable place in a cultural group. Historically the occupants and functions of the place reflect changes in the development, demographics and status of the area over time.
The setting of this sub-precinct is recorded in the MHI as follows:
Four adjoining three storey terrace houses. The Monger Street corner is marked by a four storey square tower [elsewhere described in this document as a 'landmark'], the upper storey has a rough cast render band, separating the red brick of the lower three storeys from the surmounting rendered belvedere, with three arched windows in each face, under a bracketed hipped peak. The Monger Street facade continues the four storey theme with a prominently decorated ground floor entry doorway set symmetrically in three storeys of red brick punctuated by regular rectangular window openings. This is surmounted by a tail rendered gable set between red brick chimneys in the plain of the wallface. The Beaufort Street facade consists of the tower and [three, one and half] terrace houses. A half width of terrace house adjoins the tower whilst the other three are complete terraces, three storeys in height with expressed dividing walls. The two storey verandahs reflect the verandah details of the terraces at 225-227 Beaufort Street. The third storey is expressed as a pair of double hung sashes placed centrally above the verandahs, surmounted by bracketed gabled pediments, complete in relief detail for shadow effects. Tall chimneys separate the two pairs of terraces and further enliven the skyline.
As has already been mentioned, the subject land is part of a complex of four intact adjoining three storey terrace houses. Their style is said to be 'Federation Filigree' which is discussed below. The complex was erected in 1897, with brick/stucco walls and is otherwise constructed of timber and stone with an iron roof. The conservation management under the MHI is rated as 'Conservation Essential'.
The subject land, considered as a sub-precinct, was entered into the MHI in 1995.
In Richard Apperly, et al, A pictorial guide to identifying Australian architecture: styles and terms from 1788 to the present, Angus & Robertson, 1989, the following matters relating to this style are noted, at page 111 (emphasis added):
Background
Continued mass-production of cheap decorative cast-iron components and machine-processed timber decoration. Decorative components more commonly made in Australia than imported. Extension of Australian veranda tradition
Broad Characteristics
Intricately textured veranda screen designed to stand proud of the mass of the main building gave a filigree character. Machine-turned and band sawn timber decoration abounded. Filigreed veranda often became exterior rooms. The style became part of the veranda'd Australian pub tradition
…
Exterior Relationships
Masonry form of the building usually decorated with classical, medieval or Italianate detailing … Most of the façade concealed by decorative filigree. Filigree divided into bays by slender timber or iron columns. Loggia and colonnade interpreted in filigree … Art Nouveau motifs commonly appeared in both timber and iron decoration … In hot-climate areas, louvres and lattice often constituted the filigree …
Structure and Construction
Heavy load-bearing quality complemented by the lightness of filigree.
Other Qualities
Enveloping lace-like veil provided deep shading, yet encouraged air circulation.
Interestingly, the lattice work connected with this style (which is similar in appearance to what is proposed here) and is identified in this standard reference work, is confined to 'hot, humid, coastal areas' of Australia, with an emphasis on the lattice additions providing both decoration and ventilation to verandas: see above, and page 108. These views are consistent with the expert opinions offered by the Town.
In October 2008, a 'Heritage Impact Statement' was prepared by the Town's Heritage Officer (Hoping Au) in connection with Ms Hobbs' application for planning approval. That assessment includes the following observations of the subject property:
The terraces are setback approximately 6 metres from the footpath by a low pillared brick rendered fence with mesh above, the exception being the subject property whereby a solid brick wall has been constructed above the original low rendered portion, making the existing brick wall to a height of approximately 1.8 metres. All four terraces have maintained the rendered pillars capped with stucco and corbelled detail. The two central terraces have retained their galvanized tube framed gates with spring catches, the subject property at No. 241 being replaced with a timber picket gate and No. 235 has a new steel gate made to appear as wrought iron.
The conclusion of the Heritage Officer was as follows:
The proposal comprising the addition of the lattice work above the solid brick wall fence of the subject property does not respect or enhance the heritage significance of the place. Already the construction of the solid brick fence has served to diminish the authenticity of the property and inhibit the overall aesthetic value of the four terraces, and thus a further addition to increase the height of the fence is not considered appropriate.
An expert assessment by the Heritage Officer against the HM policy led to the following conclusions:
The proposal involves a lattice topping that does not form a smooth continuation of the existing brick fence form, which was built up from the original low pillared fence. The existing vista and view line to the principal frontage of the subject place is already obstructed by the solid brick fence that was constructed above the original low pillar fence and it is considered that the proposed lattice work will further obscure the view line to the principal facade of the subject property and diminish the aesthetic value and prominence of the row of terraces as a whole.
Given the significant aesthetic contribution in which the row of three storey [t]erraces present to Beaufort Street, and the appropriateness of the original low rendered pillared fence, it is considered that the proposed lattice topping is not complementary to the heritage place and is not consistent with the Federation Filigree architectural style.
…
The terrace houses at No. 235-241 Beaufort Street, Perth, are set back approximately 6 metres from Beaufort Street frontage where there is an original low pillared rendered fence along the front boundary. No[s]. 235, 237 and 239 retain substantial elements of the original front fence, including roughcast rendered piers, stucco detailed pier tops, and the low timber and mesh fence tops. Whilst the pillars remain intact, the subject dwelling at No. 241 has a solid brick fence constructed above the original low rendered portion.
The proposed highly visible lattice fence is considered to obscure the existing visual setting, continuality and character of the heritage place as a group. The proposal is not considered to be a good conservation practice as it does not retain its relationship to the setting within the whole group of terrace houses.
The Town's Senior Heritage Officer, Ms T Woodhouse, shared the opinion expressed in the Heritage Impact Statement, concluding that the lattice addition would be inconsistent with the objects of the HM policy and incompatible with the heritage values of the building. This was so for the following reasons:
•The lattice addition is considered to obscure the existing visual setting, continuality and character of the heritage place as a group.
•The lattice addition is not appropriate or reflective of the Federation Filigree style of architectural style.
•The lattice addition is not considered good heritage conservation practice as it does not retain its relationship to the setting within the whole group of terrace houses.
In response to any suggestion that the existing (solid) fence 'is not a heritage structure' and 'should not be appraised under the heritage rules', the Town says:
The curtilage of all places listed on the Town's Municipal Heritage Inventory comprise entire lot boundaries and do not differentiate elements within the lot as 'heritage'. Whilst elements within a heritage listed place do have varying degrees of cultural heritage significance which are to be factored into any decisions made relating to proposed developments, all proposed developments are viewed holistically first.
Given this, the fence forms part of the heritage listed property and has the ability to impact on the heritage value of the place. As such any proposed development to the fence is to be assessed in accordance with the Town's Policies relating to Heritage Management and other relevant policies and provisions.
Importantly, none of this expert opinion was relevantly rebutted by the applicant. This was despite the matter of expert evidence being expressly raised in directions in the Tribunal and the applicant suggesting that her design had been achieved or assisted by the engagement by the applicant of a 'heritage landscaper/gardener' (or equivalent).
Finally, I should mention the formal advice received by Ms Woodhouse, from the Heritage Council of Western Australia. This advice includes a response to matters raised with the parties by the Tribunal.
On 16 April 2009, that body's Legal Officer advised as follows:
I confirm that 241 Beaufort Street is part of the group identified in the Heritage Council's records as the Beaufort Street Terraces (HCWA place no. 17093), which was entered in the State Register of Heritage Places (SRHP) on 31 July 2007. This interim entry in the SRHP became invalid on 31 July 2008 by operation of s. 53 of the Heritage of Western Australia Act 1990 (the Heritage Act). The interim entry was removed from the SRHP by publication of a notice to that effect in the Government Gazette of 8 August 2008.
I further confirm that 241 Beaufort Street is subject to a Conservation Order that was signed by the Minister for Heritage, the Hon GM (John) Castrilli, on 18 December 2008, and published in the Government Gazette on 30 December 2008. The Conservation Order is authorised by s 59 of the Heritage Act.
By its own terms, the Conservation Order prohibits 'a) the demolition, damage or alteration of the place or any portion of the place, or any building or structure on the place; and b) the carrying out of any activity that may detrimentally affect the cultural heritage characteristics of the place'.
The lattice appears to have been installed prior to the issuance of the Conservation Order. Consequently, installation of the lattice work is not prohibited by the Conservation Order.
If in fact the lattice work was installed prior to the lapse of the interim registration, the Heritage Act may well have required referral of the project to the Heritage Council prior to the installation of the lattice. However, given that the place was removed from the SRHP on 8 August, any question of non-compliance arising from the owner's failure to seek prior approval from the Heritage Council is moot.
Regardless of when it was installed, removal of the lattice at this time will require referral to the Heritage Council because the Conservation Order forbids 'alteration' of the place as it was at the time the Conservation Order took effect (i.e., with the lattice installed).
In answer to the [State Administrative Tribunal's] specific question: no approval by the Minister for Heritage or the Heritage Council will be required in the event the SAT decides to grant the retrospective approval. However, if the SAT decides to refuse the retrospective approval, the Heritage Council must be consulted prior to the actual removal of the lattice.
All of this material, if accepted, suggests that the land has a very significant heritage value attaching to it.
Heritage aspects of the case - applicant's case in reply
The applicant responds as follows:
No 241 Beaufort St was built in about 1890 as part of Beaufort Terraces, a row of [four] [three]-storey terraces, for use as boarding houses. Beaufort Terraces was interim listed by the Heritage Council of WA in 2007, however this interim listing terminated in 2008. The buildings are on the [MHI].
… Although the Acceptable Development guidelines of [HM policy] in general refer to building additions, extensions and demolition of heritage listed buildings, the [HM policy] contains several references which may be taken to be relevant to the fence trellis … The [HM policy] requires approval under [cl] 1(ii) for 'any alteration of, or any addition to, a heritage place'. Under [cl] 2(i) approval is not required for amongst other things 'minor works ... that do not change the appearance of a heritage place ... and general re-decoration'.
… The Heritage Council of WA has advised that it does not generally object to modifications to heritage premises as long as the alterations are 'easily reversible'. The addition of the lattice is very easily reversible.
… The front fence of 241 Beaufort [Street] is not original, the original (possibly decorative woodwork) having been replaced with a brick wall at some previous time thought to have been about 1980. It is therefore not actually a heritage structure, but for the purposes of the appeal it is assumed that there may be some relevance [in the application of the HM policy].
Despite commentary that the other [three] terraces retain their 'original' steel wire wooden framed fences, this is not so. It is not known what material the front fences were originally built of. Steel wire would not last 120 years, and it is likely that the exposed wooden framing would not wither. The likelihood is that the fences were of masonry similar to the remaining masonry piers, or of wood.
… Acceptable Development guideline A.2.1 requires that the alteration 'maintain an existing vista or view lines to the principal facade(s) of a heritage place'. The facade of the building was previously almost completely hidden by overgrown trees, and by vines such as wisteria which were significantly damaging the decorative wood work on the facade, and creepers which were damaging the masonry … The previous growth was damaging the building, and was the subject of an order from [the electricity supplier] to remove [them]. The facade of the building is now much more exposed to view than it was previously …
… Acceptable Development guideline A.2.5 requires that 'Walls, roof and fences are complementary to the heritage place in terms of materials, finishes, textures and paint colours and are appropriate to its architectural style'. The trellis is hand-made of wood, in a style which was common in gardens of the period, and which complements the existing wooden railings and balustrades of the house … The use of trellis for screening and in garden design is known from Roman times, and was very popular in English gardens from the Baroque period (from about 1620) until the present day. It was used extensively in the architecture and gardens of Australian colonial times. Mr Roy Strong, formerly Director of the Victoria and Albert Museum and a noted authority on heritage gardens, provides numerous examples of trellis in heritage style buildings and gardens. [Various Australian examples of lattice and trellis work are given.]
… The current security measures include the installation by previous owners of solid square-section steel bars and padlocked 'prison-style' gate to the front door and windows … These are severely out of character with the style of the building, and may be able to be removed if an adequate barrier of roses is developed … We contend that the recent works [proposed for approval] have made the house facade more open to public view, not less. We also contend that the material used, being a sturdy wooden lattice, is totally in keeping with the garden architecture of the late 1800s when the house was built and is frequently used in the restoration of heritage gardens in Australia. It complements the linear nature of the wooden decorative work on the facade of Beaufort Terraces.
Applicant's submissions in detail on each other ground of refusal
On the first issue, (a), relating to general amenity, the applicant submits that:
The area is zoned commercial and the occupation pattern is intensively commercial. Beaufort St, from Roe St to Lincoln St for a distance of about 1.5 kilometres is almost exclusively occupied by commercial buildings …
The Town of Vincent has reportedly stated that it does not intend that its regulations regarding building height, style, setback and open space should apply to developments in Beaufort St. This is evidenced by the permitting of numerous buildings which do not conform to these requirements. Virtually all new buildings being permitted in the immediate area are multi-storey right to the footback [sic, footpath] with no fence …
The construction of a lattice fence on this building to 2.7 metres in height is not inconsistent with the planning of the surrounding area. It would not be logical to require my house to meet planning requirements for fences on houses in normal suburban low-density residential streets, in an area zoned commercial and with intensively commercial occupation pattern, whilst allowing the surrounding blocks to be built with vertical walls [five] stories high, right to the public footpath.
On the second issue, (b), relating to a variation of height requirements having regard to the character of the street, the applicant submits:
… The walls and fences of the immediate surrounding area are generally of masonry, other than for Beaufort Terraces … The lattice is compatible with the style and heritage values of the house. It would not be possible to make the fence compatible with the tall concrete walls of the surrounding buildings, and we do not consider that this is what the Town wants.
The Town of Vincent has already extensively varied the requirement regarding fence height in the adjacent and immediately surrounding area. There are numerous fences in very close proximity to [the subject land], of material including masonry, wooden lattice, steel, and barbed wire, which exceed the 1.8 metre height restriction …
The block of Beaufort [Street] between Bulwer and Lincoln [Streets] contains [five] premises, the fence height for every one of which exceeds 1.8 metres. The properties include purely residential, a school, and commercial premises …
The location of [the subject land], on a street which is a major artery for north-bound traffic 24 hours per day, including ambulances and fire engines, as well as being about 500 metres north of the police station on a one-way street, makes it particularly noisy. It is especially subject to noise and light [disturbances] given the commercial nature of the area and the proximity of the Brisbane Hotel, various half-way houses, and Northbridge.
The proposed lattice extension is not a solid wall, but is designed to support very vigorous-growing roses to help reduce noise and glare, as well as for security …
On the next issue, (c), on the non-variation of applicable standards, the applicant submits:
… We contend that due to the commercial zoning of the location, the [NV policy] relied on by Town of Vincent in this [ground of] rejection is not relevant.
We also contend that even if this section [of the NV policy] was applicable (which it is not) it is within the power of the Council of [the] Town of Vincent to vary this condition in the light of common-sense, given the difficulties of a residential house in an intensively commercial area.
Officers of the Town have stated that where a residence is zoned commercial, they nevertheless apply the residential requirements. Two of the four Beaufort Terraces are occupied by businesses. This would result in the anomaly that fences for two of the Terraces would not be interpreted under the residential rules, and [two] identical premises would be.
In addition, if the [NV policy] states that it applies specifically to 'residential zoned areas', then the Town should apply it only in regard to areas which are zoned residential, and not seek to extend it to premises not covered by the [NV policy].
Applicant's additional grounds for review
The applicant offers three additional grounds for overturning the Town's decision. These are: security, privacy and habitability. First, on security, the applicant submits that:
[Security] is the single most important issue for the occupants. We believe that the right of the owners to live safely and confidently in the house should outweigh all other considerations, so long as the heritage values of the buildings is not compromised and the street appearance is pleasant.
The house is in Northbridge close to the Brisbane Hotel, the Newcastle [Street] park, and several 'half-way' houses. Houses and cars in this area are subject to regular break-ins and intrusion. The front of the house, near the subject fence, is currently protected with prison-style fixed heavy square-section steel bars on the windows, and similar solid steel door with a padlock on the front door … [Various crime statistics are then cited by the applicant.]
The existing brick fence does not make the front garden secure, and we have had any [sic] items left in the garden stolen, including a pushbike, tools and furniture.
[RD elements policy on 'Safety and Security'] states that ['Development should be designed to ... reduce the potential for crime, vandalism and fear']. The front garden has previously been unusable as anything left there, including bikes, garden implements and furniture, has been stolen. [Design elements to do with 'Access Control' and 'Target Hardening', to reduce theft etc, are then addressed.] … It is hoped that a high trellis of very thorny roses will make the front courtyard inacessible [sic], allow placement of furniture, and in time perhaps permit the removal of the steel security bars.
As regards privacy, the applicant submits that:
The property is now overlooked by [five]-storey buildings across the road, of which more have been recently permitted for development. The fron [sic] garden, as well as the sitting room and master bedroom, lack privacy die [sic] to the new buildings … [The privacy design element is then referred to, and the applicant submits that the proposed development 'is in accord with' that standard.]
Finally, the applicant addresses (modern day) habitability. The applicant submits that:
The house has very small exterior area and the front exterior is not really usable due to lack of security and of privacy. We have had the new garden installed to replace the derelict and garbage-filled space there when I bought the house, however the area is problematic for noise and safety, for reasons [earlier referred to].
Of the [four] houses in Beaufort Terraces, [two] are now used as commercial premises. If there is to be any hope of the houses remaining residential, and continuing to be maintained at private expense, it is necessary for a sensitive interaction between regulatory bodies and owner/residents.
The manner in which people live has change [sic] greatly since the houses were built, and people are not satisfied to live in a museum. Common sense suggests that in order to retain the houses, some adjustments must be accepted which enhance the habitability of the premises, without compromising the heritage and other values.
If regulatory bodies are not happy to see even trifling changes, they should purchase the properties, maintain and restore them at their own expense, and run them as public buildings of some sort.
Respondent's arguments in reply on matters other than heritage
On the application of the RD elements policy, the Town says:
Clause SADC 13 of the [RD elements policy] requires that street walls and fences are to have a maximum height of 1.8 metres above the adjacent footpath level. The current [with the lattice] overall height of the front fence at the subject property is 2.7 metres and is 0.9 metre higher than what is permitted. Whilst the subject property is zoned 'Commercial' and is surrounded by commercial properties of varying forms and sizes, the Town's [BP policy] requires residential development to be in accordance with the R80 standards and subsequently it is to comply with all the provisions of the relevant policies relating to residential development. In addition, the Town's Local Law 2.1 relating to fencing stipulates that a 'sufficient fence' is 1.8 metres. In this context, the additional height is considered excessive and a significant inappropriate deviation from the planning requirements.
Furthermore, it is considered that the cumulative impact of both the existing solid wall and lattice is excessive and reduces any potential for the interaction and visual surveillance between the dwelling and the street. Such a high, solid, uniform and bulky street wall/fence is not compatible with the surrounding commercial properties, which are required to provide street level articulation through visually permeable window and door openings, displays or art, or by rich architectural design and detailing.
On questions of security and privacy, the Town responds, as follows:
The Town's Parks Services [have] offered numerous alternative solutions for plantings that would not require the lattice screening and still provide a soft landscaping barrier. For example, the applicant was advised that privacy screening can be easily achieved by planting a hedge of Plumbago 'plumbago capensis' within the front garden bed of the property; this form of screening would be more aesthetically acceptable than the lattice screening. Furthermore, no evidence has been provided to date by the applicant demonstrating that the subject lattice will have an impact in terms of reducing noise and glare.
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The Town is strongly of the viewpoint that any property on the Town's heritage list can be adapted to meet changing needs of modern society. However, whilst the Town does actively promote the safety of all persons residing in the Town through various programs and initiatives, it is considered the responsibility of anyone purchasing a property within the Town to undertake due diligence in assessing the perceived safety of the area, particularly with regard to the relevant planning policies and provisions that guide development.
It is considered that the current front fence of the subject property excluding the lattice appendage is in excess of the requirements to provide adequate safety and privacy.
Discussion of the issues
I have already foreshadowed above the 'hierarchy of planning instruments' principle that needs to be applied in this case. In my view, when regard is had to the status of this particular land and what is proposed for it, the primary or dominant planning value, expressed in varying ways in the instruments referred to above, is one of heritage conservation.
This important finding necessarily controls the outcome of this review.
Here, the subject land has undoubtedly a very high heritage conservation value attaching to it. This is witnessed by, amongst other things, the previous interim SRHP listing, and the current ministerial Conservation Order.
Conservation or similar policies in inner-city boroughs which operate so as to 'hold the line' against further despoliation are neither unusual nor nowadays unexpected in planning law (see, for example, Tooth v City of Subiaco [2005] WASAT 317; (2005) 41 SR (WA) 198. Similarly, they also operate upon both commercial and residential properties, and in areas where the 'wrecker's ball' has already cut a swathe through the streetscape. In fact, preservation of what remains is often the raison d'être for such policies.
In my view, the proposed works cannot be regarded as 'minor' under the Town's policies as the essential style and visual impact of the proposed development are substantially inimical to both the desired streetscape of this sub-precinct, and to the 'Federation Filigree' style itself. This is so, in respect of streetscape, despite there already being imperfections and detractions in that streetscape (including aspects of the subject land), and the immediately surrounding area.
This conclusion is largely the effect of the uncontroverted expert evidence, opinion evidence that the Tribunal accepts. I should mention that, even apart from such evidence, the Tribunal would have reached the same conclusions on the material available to it.
In the Tribunal's view, it would be, to say the least, thoughtless development of the subject land to permit the erection of the proposed latticework. I agree that such development would not 'respect or enhance the heritage significance of the place'.
The applicant's security and privacy arguments, such as they are (and relevantly abstracted to avoid particular personal circumstances), cannot in this case counterweigh the need to preserve the heritage integrity of the subject land. It is not the Tribunal's task to list - still less find - alternatives for the applicant as regards the security and privacy of her property, but relevantly unobtrusive electronic devices may be one possibility, at least as regards security issues. There are, of course, specialist contractors to advise her on such work and other options. Speaking generally, care will still have to be taken in such matters where heritage properties are concerned: cf Truong and East Perth Redevelopment Authority [2008] WASAT 283 where the Tribunal found that certain proposed security screens,
… were visually obvious and, notwithstanding the existence of non‑original windows, [they] would result in a further deterioration of the heritage fabric and therefore have an adverse impact on the heritage significance of the building. By impacting [upon] the heritage significance of the building, the security screens would also adversely impact on the streetscape and urban quality of the area.
The Tribunal has previously recognised the considerable burden placed upon landholders by heritage regulation in planning law. In Slusarczyk and City of Stirling [2008] WASAT 194, I noted the following (at [52] - [53]):
The Commonwealth's Productivity Commission observed in 2006 that:
"Existing appellate bodies, such as the Land and Environment Court in New South Wales and Victorian Civil and Administrative Tribunal [to which list this Tribunal could be added], could be used to hear appeals against [heritage] listing on the basis of 'unreasonable costs'. Introduction of such appeals would be facilitated by the inclusion of a nonexclusive indicative list of examples in amending legislation. For example, 'unreasonable' would not include normal maintenance, but would, prima facie, include forgone development opportunities in relation to use and enjoyment otherwise permitted for the property, and unjustifiable hardship imposed on the owner by additional maintenance, repair or restoration costs to provide the extra heritage conservation. It could be expected that initially there would be a number of appeals, while owners and listing authorities test the new ground for appeal and precedents are established. However, it would also be expected that appeals that occur currently on the basis of a lack of heritage significance (to avoid statutory listing) would not proceed." Conservation of Australia's Historic Heritage Places, Productivity Commission Inquiry Overview, No 37, 6 April 2006 at 31.
Such matters of policy cannot, of course, be pursued in this Tribunal. But the point can be made that such considerations of hardship, even perhaps suggestions of "unreasonable hardship", were well-known to the promulgators of instruments imposing restrictions on the owners of heritage property and notwithstanding that recognition, the policies were still issued or made. I have previously made the point that policies "found to be valid and applicable, must be applied in the knowledge that they were drafted with reference to the status quo and must be construed and applied in that light": Tooth v City of Subiaco (2005) 41 SR (WA) 198; [2005] WASAT 317 at [58].
Given the Tribunal's findings made above on the heritage aspects of the case, it is unnecessary to assess the proposed development against the other standards identified by the respondent. However, it should not be implied from this that the proposed development is necessarily considered by the Tribunal to have been likely to be approved under such standards. In fact, considerable difficulties might well have been presented by the proposal in terms of, for example, the Town's policies' premise of, where possible, encouraging considerable interaction and visibility between street and passersby.
The correct and preferable decision was, and is, to refuse planning approval in respect of the applicant's proposal.
Orders
For the reasons set out above, the Tribunal orders that:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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