Klopper and City Of Fremantle
[2008] WASAT 138
•12 JUNE 2008
KLOPPER and CITY OF FREMANTLE [2008] WASAT 138
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 138 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:142/2008 | 12 JUNE 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 12/06/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of the Council to refuse development approval affirmed | ||
| B | |||
| PDF Version |
| Parties: | BRIAN KLOPPER CITY OF FREMANTLE |
Catchwords: | Town planning Development application Demolition of early 20th century timber cottage and erection of two offices and residential dwelling Cultural heritage Whether cultural heritage value of cottage warrants refusal of development application Cottage one of group of four buildings of similar vintage and scale Cottage listed on Heritage List under local planning scheme Structural adequacy |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 4.2.1(e)(iv), cl 7.1.1, cl 7.1.7, cl 10.2.1 |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the Council to refuse development approval is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KLOPPER and CITY OF FREMANTLE [2008] WASAT 138 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 12 JUNE 2008 DELIVERED : 12 JUNE 2008 FILE NO/S : DR 142 of 2008 BETWEEN : BRIAN KLOPPER
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Demolition of early 20th century timber cottage and erection of two offices and residential dwelling - Cultural heritage - Whether cultural heritage value of cottage warrants refusal of development application - Cottage one of group of four buildings of similar vintage and scale - Cottage listed on Heritage List under local planning scheme - Structural adequacy
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 4.2.1(e)(iv), cl 7.1.1, cl 7.1.7, cl 10.2.1
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Result:
Application for review dismissed
Decision of the Council to refuse development approval affirmed
Category: B
Representation:
Counsel:
Applicant : Mr K Adam (Acting as Agent)
Respondent : Ms R Zuks (Public Sector Employee)
Solicitors:
Applicant : Ken Adam & Associates (Town Planners)
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 This case involved an application to demolish an early 20th century timber cottage and erect two offices and a dwelling. The building is listed on the Heritage List under the applicable local planning scheme on the basis that it has aesthetic value for its contribution to streetscape. The cottage has not been well maintained and is not inhabitable. The building is the southernmost of a group of four original cottages. The cottages have each been altered, but maintain their essential original form.
2 Following the hearing, the Tribunal gave an oral decision in which it refused to grant development approval. The Tribunal found that the group of four cottages makes a positive contribution to the streetscape in cultural heritage terms. They provide a three dimensional appreciation of the form of original development. While it would involve considerable work, the cottage can be made structurally adequate. The loss of the cottage would have an adverse impact on the cultural heritage value of the streetscape. The proposed replacement building is different in form, and would not maintain the cultural heritage value of the site.
3 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
4 These proceedings involve an application for the review brought by Mr Brian Klopper on behalf of his clients who are the owners of the property known as No 119 Stirling Highway, North Fremantle (site) in relation to the decision of the City of Fremantle (City or Council) to refuse developmental approval for the demolition of a single storey cottage and the erection of a house and two offices on the site.
Site and locality
5 The site is located on the eastern side of Stirling Highway, between Pamment Street and Christina Parade, on the corner of Stirling Highway and Christina Parade. Opposite the site is the railway line and then Leighton Beach. The site is set back approximately 250 metres from the Indian Ocean.
6 The existing building on the site is a modest timber-framed cottage in the Federation bungalow style, constructed around 100 years ago. The building has a symmetrical plan and originally comprised four internal rooms and
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- verandahs at the front and back. The verandahs have subsequently been enclosed.
7 In addition to the enclosure of the verandahs, a number of modifications have been made to the building. These include the replacement of roof sheeting with corrugated asbestos cement sheeting, the replacement of gutters, the removal of the chimney above the roofline, and the replacement of the front door.
8 There are two corrugated ironclad sheds with fibre cement roofs and a separate toilet clad with corrugated iron located in the rear yard area of the site.
9 The site falls from Stirling Highway (west) to the rear boundary (east).
10 To the north of the site are three other single-storey dwellings built in the early part of the 20th century. In addition, to the south of the site across Christina Parade and to the south of a commercial light industrial property, are a number of other single-storey dwellings dating from the early part of the 20th century.
Application for review
11 The proposed development involves the demolition of the cottage and the erection of a two-storey building comprising offices facing Stirling Highway and a house behind.
12 The development application was lodged with the City on 10 September 2007 and was refused approval by the City on 1 April 2008 for the following two reasons:
(1) The wall height of the proposed development does not comply with the maximum wall height of 7.5 metres prescribed by Sch 12 of the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme) for development within the Mixed Use zone of Local Planning Area 3 - North Fremantle.
(2) The proposed development does not comply with the objectives of the Mixed Use zone. Specifically, the development does not comply with cl 4.2.1(e)(iv), which requires that development in the Mixed Use zone shall conserve places of heritage significance the subject of, or affected by, the development.
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13 The application for a review of the Council's decision was lodged on 17 April 2008. At a directions hearing held on 2 May 2008, it was agreed that, subject to Mr Klopper providing an amended plan showing reduced height for the proposed development, the sole issue for determination at the hearing is whether the heritage value of the existing cottage warrants refusal of the application.
14 Mr Klopper did provide amended plans dated 7 May 2008 which satisfy the Council that the wall height of the proposed development complies with the maximum wall height prescribed by LPS 4. Hence, the sole issue in this review is whether the heritage value of the existing cottage warrants refusal of the application.
15 The assessment of this issue necessarily involves a consideration of the structural stability of the existing cottage and also involves an assessment of the form of the proposed replacement building.
Does the heritage value of the cottage warrant refusal of the development application?
16 Clause 7.1.1 of LPS 4 states as follows:
"The Council is to establish and maintain a Heritage List to identify those places within the Scheme area which are of cultural heritage significance and worthy of conservation under the provisions of the Scheme, together with a description of each place and the reasons for its entry."
17 Clause 7.1.7 of the Scheme states that the Municipal Heritage Inventory established under the previous town planning scheme, namely, the City of Fremantle Town Planning Scheme No 3 (TPS 3):
"is to have effect as the Heritage List under this Scheme and entries may be removed or modified [as] if it were [sic] entries on the Heritage List under this Scheme."
18 The site was included in the Municipal Heritage Inventory established under TPS 3 in 2000. The listing sheet for the Municipal Heritage Inventory describes the statement of significance of the site as follows:
"The place has aesthetic value for its contribution to the streetscape and the surrounding area. It is representative of the typical building stock located within the residential areas of North Fremantle, historically significant as a representation of typical workers' houses in the North Fremantle area."
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19 The listing sheet identifies the management category of the site as level 3, which means that:
"this place as being of cultural heritage significance for its contribution to the streetscape, local area and Fremantle as a collective whole."
20 Ms N Moredoundt, an architect specialising in heritage matters who gave evidence on behalf of the City, stressed that the heritage value of the building on the site lies principally in its contribution to streetscape, particularly as a component of an original streetscape comprising four single storey buildings.
21 In accordance with cl 7.1.7 of LPS 4, the site is now included within the Heritage List under the Scheme. As noted earlier, cl 7.1.1 contemplates that the items on the Heritage List are of cultural heritage significance and worthy of conservation.
22 There are other provisions of LPS 4 that also require consideration of the cultural heritage significance of a place which is the subject of a development application. Clause 1.6.1 of the Scheme identifies one of the aims of LPS 4 as to "protect and conserve Fremantle's unique cultural heritage" (par (f)). The objectives of the Mixed Use zone include "conserve places of heritage significance, the subject of or affected by the development" (cl 4.2.1(e)(iv)). In addition, cl 10.2.1 of LPS 4 requires the Council and the Tribunal on review, in considering an application for development approval, to have due regard to, among other considerations:
"[T]he cultural significance of any place or area affected by the development, including but not limited to provision for the preservation, incorporation or recording (by means including public artworks) and significant cultural values of the site." (par (k)).
23 The Tribunal had the benefit of expert evidence from structural engineers and from architects specialising in heritage matters. In relation to engineering, the Tribunal heard evidence from Mr S Burdett, who was called on behalf of Mr Klopper, and from Mr NH Scott, who was called on behalf of the City. In addition, Mr R Bodycoat, an architect who gave evidence on behalf of the applicant, attached a short report from Mr D Cunningham who is an engineer. Mr Cunningham did not give evidence.
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24 Mr Burdett and Mr Scott agree that the existing cottage has not been well maintained and is presently not inhabitable. However, they are in broad agreement that the cottage can be made to be structurally adequate with considerable work. They disagree as to the extent of work that would be required. In particular, Mr Burdett considers that it is likely that the whole of the house would have to be restumped and that full recladding of the walls internally and externally would be required. Mr Scott does not consider that full restumping would necessarily be required and also does not consider that full recladding of all walls would be required. In particular, Mr Scott considers that the building may not require bracing and that, if the necessary restumping is done carefully and systematically, then damage to walls would be minimised.
25 Neither engineer who gave evidence was able to quantify the cost of the necessary work. Mr Cunningham expressed the view that it would be "economically unrepairable". However, no economic assessment was provided in his report to justify that assertion.
26 Ms Moredoundt considers that the existing cottage has historic value "as an example of a typical worker's home" and aesthetic value "contributing to the streetscape and the surrounding area". She expressed the opinion that the house is a "nicely proportioned simple cottage, particularly once the front enclosure is removed". Ms Moredoundt noted that the building is the only remaining weatherboard structure in this particular section along Stirling Highway and that weatherboard structures of the era of construction of the existing cottage are, at least in terms of the Perth metropolitan area, rare.
27 Ms Moredoundt observed that the building "still retains its original form and detailing despite the subsequent enclosure of the front verandah and changes to the rear". As I noted earlier, Ms Moredoundt considers that the principal cultural heritage value of the existing building lies in its streetscape value, particularly as a component of the group of four similarly aged dwellings.
28 Ms Moredoundt considers that the extent of work that is required in order to restore the building to structural adequacy is not unusual for a building of its age. She considers that the building could "very easily be restored" and integrated into a new development on the site. She also noted that the building could be adapted to office use and a
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- new building of two to three storeys could be built to the rear for residential use.
29 In contrast, Mr Bodycoat considers that the existing cottage has no cultural heritage significance as a stand-alone place and very minor cultural heritage significance as a component of the group of four. He considers that a timber framed building is not rare in North Fremantle.
30 In relation to streetscape, Mr Bodycoat identifies a number of changes that have been made to each of the four buildings that comprise the group. He considers that "unsympathetic change has been allowed to take place severely eroding the character of the group". The condition of the four houses, their changed presentation and the introduction of new residential and commercial development in the immediate locality "demonstrates that little, if any, cultural heritage significance can be attributed reasonably to the group of four houses".
31 Mr Bodycoat also expressed the opinion that much more work may well be required in order to conserve and adapt the existing cottage than is apparent at present, particularly given its location adjacent to the ocean. Ultimately, Mr Bodycoat considers that the extent of work that would be required in order to conserve and adapt the cottage is "not worthwhile".
32 The Tribunal prefers the evidence of Ms Moredoundt in relation to the issue of cultural heritage significance. While there have been modifications to the existing cottage, the essential or fundamental original building form remains apparent, as does the essential original building form of the other three cottages that form a group. The four cottages together, as Ms Moredoundt says, make a positive contribution to the streetscape in cultural heritage terms. They provide a three dimensional appreciation of the form of original development along the road that linked Fremantle with Perth.
33 The Tribunal accepts Ms Moredoundt's evidence that the existing cottage could be restored and incorporated into a development utilising the rest of the site. Mr Bodycoat noted, correctly, that, as the site is located in a corner position, the southern side wall of the cottage and of any further development to the east would be apparent within the streetscape of Stirling Highway. However, I accept Ms Moredoundt's evidence that a sensitive addition could be constructed in a manner that maintains the cultural heritage value of the existing cottage and in particular its "aesthetic value for its contribution to the streetscape and the surrounding area" to quote the statement of significance in the listing sheet.
(Page 9)
34 The size of the site and its topography lends itself to further development to the rear of the existing cottage in a manner which retains the essential streetscape presentation of the cottage and its important contribution as an element of the group of four.
35 In his submissions on behalf of Mr Klopper, Mr Ken Adam asserted that it would be more expensive to restore the existing cottage to structural adequacy than to build a replacement building. There is no evidence to support that assertion. However, even if it were the case, it would not warrant approval of this application.
36 The loss of the existing cottage would have an adverse impact on the cultural heritage value of the streetscape comprising the group of four, such that it should be retained even if the cost of restoring the building to habitable use is greater than the cost of a replacement building. As noted earlier, the objectives of the Scheme include to protect and conserve Fremantle's unique cultural heritage, and the objectives of the subject zone include to conserve places of heritage significance the subject of, or affected by, the development.
37 Mr Adam also submits that the development proposes an appropriate replacement building, such that demolition of the existing cottage is appropriate in cultural heritage terms. The Tribunal accepts that the form of the replacement building is a relevant consideration in determining whether a demolition should be approved. However, the replacement building has an appearance that is different to the existing cottage on the site and the other three buildings that form the group. While the replacement building is essentially single-storey in appearance to Stirling Highway, it presents as two modern commercial offices and does not have a symmetrical form as does the existing cottage and the other three cottages that form the group of four. The proposed replacement building does not maintain the cultural heritage value of the site.
38 Mr Adam submits that if the Tribunal comes to the view, as it has, that the existing cottage has sufficient cultural heritage value to warrant refusal of the application, then only the front two rooms of the cottage should be retained. Ultimately, the Tribunal does not have the option of determining what part of the existing cottage should be retained. The question that has been posed to the Tribunal is whether the entirety of the cottage can be removed.
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39 However, it is noted that the primary cultural heritage significance of the existing cottage relates to its contribution to streetscape. That contribution needs to be maintained in three dimensional terms. Whether ultimately that means that the whole of the existing cottage needs to be retained or not is a matter of expert assessment and advice.
40 Additionally, as noted earlier, the relationship between the existing cottage and any addition needs to be sensitively undertaken, although given the size of the site and its topography, it is likely that substantial additional development can be accommodated on the site which maintains the important streetscape contribution of the cottage and still allows additional development to its rear.
41 Finally, Mr Adam submits that there is unfairness in the listing of the site on the Heritage List, and, indeed, that its listing is merely "accidental" through cl 7.1.7 of LPS 4.
42 The Tribunal is not in a position to review the process of the listing of a place on the Council's Heritage List. The Scheme clearly contemplates that items on the list do have cultural heritage significance and are worthy of conservation. The fact that the site is listed on the Heritage List is a relevant consideration in the exercise of planning discretion. Indeed, it would be an error of law not to regard it as such. Nevertheless, it would be open to the Tribunal, if it were established on the evidence, to find that an item listed under cl 7.1.1 of the Scheme does not, in fact, have cultural heritage value or sufficient cultural heritage value to warrant its retention, having regard to a proposed replacement building.
43 The evidence presented to the Tribunal in this case satisfies the Tribunal that the cottage has cultural heritage significance, particularly as an element of a group of similarly aged and proportioned buildings. The proposed replacement building would not maintain the cultural heritage value of the site.
44 The Tribunal is satisfied that the existing cottage can be made structurally adequate. There is scope to redevelop the site in a manner that conserves and adapts the existing cottage, whether for residential or commercial use, and enables significant redevelopment of the rear part of the site for residential use.
45 It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
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Orders
46 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Council to refuse development approval is affirmed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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