MacKinlay and City Of Fremantle
[2013] WASAT 84
•7 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MACKINLAY and CITY OF FREMANTLE [2013] WASAT 84
MEMBER: MS R MOORE (MEMBER)
HEARD: 8 MARCH 2013
DELIVERED : 7 JUNE 2013
FILE NO/S: DR 358 of 2012
BETWEEN: ROSLYN KERRY MACKINLAY
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Development application Demolition of 1930s timber cottage Level of cultural heritage significance Whether cottage has limited or no cultural heritage significance Whether cottage makes significant contribution to broader cultural heritage significance and character of locality
Legislation:
Planning and Development Act 2005 (WA), s 252(1), s 241(1)
City of Fremantle Local Planning Scheme No 4, cl 1.6, cl 4.2, cl 4.2.1(a), cl 5.15, cl 10.2, Sch 1, Sch 15
Heritage of Western Australia Act 1990 (WA), s 3(1)
Result:
Application for review dismissed
Decision of the respondent to refuse development approval affirmed
Summary of Tribunal's decision:
This matter involved an application for review of the refusal of a development application by the City of Fremantle to demolish a 1930s worker's cottage in Beaconsfield.
The heritage experts agreed that the dwelling was a typical, classically influenced timber house which contributed to the streetscape due to its form, scale and massing. There was disagreement as to the level of cultural heritage significance of the dwelling particularly as there had been significant alterations to the building over the years.
The Tribunal found that the dwelling had 'some' cultural heritage significance because, although there had been significant alterations, the dwelling retained much of its original form and presented as a simple timber framed worker's cottage to the street. The dwelling was located at the northern end of the street which contained a number of dwellings built during the late 19th and early 20th centuries. There was potential for an improved street presentation by the restoration of the enclosed verandah and the replacement of the asbestos cement wall cladding. There was also the ability to make alterations to the rear of the dwelling without impacting on the cultural heritage significance of the place.
The application for review was therefore dismissed and the decision of the City of Fremantle to refuse development approval for demolition of the existing dwelling was affirmed.
Category: B
Representation:
Counsel:
Applicant: Mr J Algeri (Acting as Agent)
Respondent: Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant: Algeri Planning & Appeals (Town Planners)
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Ms Kerry MacKinlay pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Fremantle (City) made on 3 October 2012 to refuse development approval for demolition of an existing dwelling and construction of new single storey house at No 3 (Lot 58) Central Avenue, Beaconsfield.
Site and locality
The site is located on the western side of Central Avenue, close to the intersection of South Street. Central Avenue runs between South Street to the north and Lefroy Road to the south. At the northern end of Central Avenue where the subject site is located, there are 11 out of 20 properties constructed during either the Federation or Inter war periods. Most of these are on the City's Municipal Heritage Inventory (MHI) or 'Heritage List'.
The existing building on the site is a single storey timber framed dwelling with a symmetrical façade and corrugated iron hipped roof constructed circa 1930. The dwelling has been altered over the years and currently has asbestos cement 'weatherboard' wall cladding and an enclosed front verandah.
The Tribunal had the benefit of a view of the site in the company of the parties, their representatives and heritage experts on the morning of the hearing held on Friday, 8 March 2013.
Proposed development and respondent's decision
On 3 October 2012 the respondent considered and refused a development application for the demolition of the existing dwelling and the construction of a new single storey house on the site for the following two reasons:
1)The proposal is inappropriate having regard to the purposes for which the land is zoned and cl 4.2.1(a) of the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
2)The proposal is inconsistent with cl 5.15 of LPS 4.
The parties agree that the decision under review now relates to the demolition of the existing dwelling only, and does not include consideration of the proposed replacement dwelling. No evidence was presented in relation to a new dwelling.
Planning framework
The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and zoned 'Residential' with a residential density coding of R20 under LPS 4.
Clause 1.6 of LPS 4 lists the aims of LPS 4 and includes the following:
…
(f)protect and conserve Fremantle's unique cultural heritage[.]
Clause 4.2 of LPS 4 contains the objectives of the Residential zone and states that development within this zone shall:
(i)provide for residential uses at a range of densities with a variety of housing forms to meet the needs of different household types, while recognising the limitations on development necessary to protect local character,
(ii)safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area,
(iii)encourage high standards of innovative housing design which recognise the need for privacy, energy efficient design and bulk and scale compatible with adjoining sites,
(iv)recognise the importance of traditional streetscape elements to existing and new development,
(v)conserve and enhance places of heritage significance the subject of or affected by the development,
…
Clause 7.1 of LPS 4 requires the City to establish and maintain a Heritage List which identifies places of cultural heritage significance which are worthy of conservation. Places included on the MHI are deemed to be included on the Heritage List.
Clause 10.2 of LPS 4 lists matters that the City and, on review, the Tribunal, should have due regard to when considering applications for planning approval, and include the following:
…
(a)the aims, zoning objectives and provisions of the Scheme and any other relevant planning Scheme(s) operating within the Scheme area, including the Metropolitan Region Scheme,
(b)the requirements of orderly and proper planning including any relevant proposed new local planning Scheme or amendment, or region Scheme or amendment, which has been granted consent for public submissions to be sought,
(c)any approved Statement of Planning policy of the Commission,
…
(e)any relevant policy or strategy of the Commission or any relevant planning policy adopted by the Government of the State,
…
(k)the 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 art works) and significant cultural values of the site,
…
(o)the preservation of the amenity of the locality,
…
(zg)any relevant submissions received on the application,
…
(zi)the Heritage List, and
(zj)any other planning consideration.
State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) is a state planning policy to which the Tribunal is required to have due regard to under s 241(1) of the PD Act.
The objectives of SPP 3.5 are:
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
•To ensure that heritage significance at both the State and local levels is given due weight in planning decision-making.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.
Clause 6.5 of SPP 3.5 states the specific matters that local governments should have regard to when assessing development applications. For demolition affecting a heritage place, they included the following:
•The level of heritage significance of the place, based on a relevant heritage assessment.
•Measures proposed to conserve the heritage significance of the place and its setting.
•The structural condition of the place, and whether the place is reasonably capable of conservation.
•Whether the place is capable of adaptation to a new use which will enable its retention and conservation.
Clause 6.6 of SPP 3.5 contains development control principles to be applied when considering a place on a heritage list, and states that:
…
The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.
Clause 6.6 of SPP 3.5 contains specific development control principles relating to the demolition of heritage places, as follows:
•… Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests with the applicant to provide a clear justification for it.
•Demolition approval should not be expected simply because redevelopment is a more attractive economic proposition, or because a building has been neglected. Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places.
Issues
As discussed at the hearing and agreed by the parties, the key issues arising for determination in this matter relate to the level of cultural heritage significance of the existing dwelling.
Ms Amanda Butterworth, a town planner representing the respondent, summarised the relevant planning framework, which includes LPS 4 and SPP 3.5, in her opening submissions. Mr Joe Algeri, a town planner representing the applicant, agreed that the general provisions of LPS 4 support the specific provisions of cl 5.15 of LPS 4.
The planning framework as identified above emphasises the importance the respondent, and the community, place on cultural heritage. Clause 5.15 of LPS 4 refers to the demolition of buildings and structures and states the following:
5.15.1Council will only grant planning approval for the demolition of a building or structure where it is satisfied that the building or structure:
(a)has limited or no cultural heritage significance, and
(b)does not make a significant contribution to the broader cultural heritage significance and character of the locality in which it is located.
5.15.2In considering an application under [Clause] 5.15.1, Council shall have regard to any heritage assessment required under Clause 7.4
Note 1:Schedule 15 exempts demolition of certain buildings and structures from the need to obtain planning approval.
Note 2:Schedule 1 defines 'cultural heritage significance'.
The property the subject of this review is on the City's Heritage List and is therefore not exempt from obtaining planning approval under Sch 15 of TPS 4.
Schedule 1 of TPS 4 defines 'Cultural heritage significance' as having the same meaning as s 3(1) of the Heritage of Western Australia Act 1990 (WA) as follows:
cultural heritage significance means, in relation to a place, the relative value which that place has in terms of its aesthetic, historic, scientific, or social significance, for the present community and future generations;
The Tribunal will firstly address the level of cultural heritage significance of the existing dwelling. If it is found to be 'limited or none' then the Tribunal will need to determine whether the existing dwelling makes a significant contribution to the broader cultural heritage significance and character of the locality. If the Tribunal is satisfied that the dwelling has both, limited or no cultural heritage significance, and does not make a significant contribution to the broader cultural heritage and character of the locality then planning approval for its demolition may be granted.
What is the level of cultural heritage significance of the existing dwelling?
The Tribunal had the benefit of expert evidence from two heritage architects, Mr Bruce Callow, appearing on behalf of the applicant, and Mr Alan Kelsall, appearing on behalf of the respondent. Mr Callow is of the opinion that the existing building has 'limited or no' heritage significance 'because of the lack of any original external materials, replacement and relocation of all windows, replacement of the roof and all rainwater goods and because of its changed form' and should be considered for demolition. Whereas Mr Kelsall is of the opinion that the building has 'some' heritage significance 'because of its aesthetic, historic and social values as well as it being representative of the typical workers house in the Fremantle time' and should be retained.
The heritage experts prepared a joint statement in which they agreed that the existing building 'is a simply composed, timber framed, cottage that shares the aesthetic characteristics of a number of other houses in the locality'. These characteristics are that 'it is a classically influenced timber house, the main body of which is typically simple in form and contained under a medium-pitched hipped roof'.
In addition to the planning framework identified above, the heritage experts referred to the following documents:
•City of Fremantle Local Planning Policy 1.6 Preparing Heritage Assessments (LPP 1.6)
•The Burra Charter 1999: The Australia ICOMOS Charter for Places of Cultural Significance (Burra Charter)
•State Heritage Office: Criteria for the assessment of local heritage places and areas (SHO publication)
The heritage experts used the SHO publication to identify, assess and grade the level of heritage significance of the place as follows:
Criterion 1:Aesthetic value: the dwelling is a typical, classically influenced timber house that contributes to the streetscape due to its form, scale and massing. The replacement of the timber weatherboarding with asbestos cement 'weatherboarding', replacement and relocation of timber windows with aluminium windows, and the enclosure of the front verandah all diminish the significance of the place.
The original timber studwork wall and roof framing, which define the form of the main body of the house, remain intact. Similarly the original verandah posts, which define the front edge of the verandah, remain intact albeit concealed behind the inappropriate verandah enclosure.
Criterion 2:Historic value and Criterion 4: Social value: the house … was built as a simple workers cottage and has been a part of the street for over seventy years.
Criterion 3:Research (scientific) or Technical achievement value: agreed as nil.
Criterion 5:Rarity: Both … agree the place is not rare in the street or surrounding locality.
Criterion 6:Representativeness: [the] house … is an example of a typical, simply composed, classically influenced, timber framed cottage, as are other houses in the street and locality.
According to the SHO publication, a place will be of significance to the locality if it meets one or more of these criteria: Aesthetic, Historic, Research or Social value. The degree or level of significance can be determined by reference to the issues of Rarity, Representativeness and Condition/Integrity/Authenticity. Condition refers to the current state of the place in relation to the values for which that place has been assessed. Integrity refers to the extent to which a building retains its original function and Authenticity refers to the extent to which the fabric is in its original state.
Each place can then be graded into one of the following levels of significance:
Exceptional
Essential to the heritage of the locality. Rare or outstanding example.
Considerable
Very important to the heritage of the locality. High degree of integrity/authenticity.
Some/Moderate
Contributes to the heritage of the locality. Has some altered or modified elements, not necessarily detracting from the overall significance of the item.
Little
Does not fulfil the criteria for entry in the local Heritage List.
For places with 'Some/Moderate significance', conservation is desirable and any alterations or extensions should reinforce the significance of the place, with original fabric retained wherever possible. For places with 'Little significance', a photographic record prior to demolition with recognition and interpretation of the site should be made if possible.
In this case the two heritage experts disagree as to the level of cultural heritage significance of the existing dwelling. Mr Kelsall is of the opinion 'that the dwelling has 'some' heritage significance in its own right and also for the longstanding positive contribution it makes to the historic character of the streetscape and therefore the character of the locality'. Whereas Mr Callow is of the opinion that the dwelling has 'little or no' heritage significance 'because of its compromised form, removal of all external materials and its degraded values as tested against the ''Criterion'' for significance'.
There was discussion regarding the wording of cl 5.15 of LPS 4 (which uses the words 'limited or no') as differing from the levels of significance identified in the SHO publication (which uses 'little' to describe the lowest level of significance). The Tribunal feels that nothing turns on this and considers that the level of 'some' is a higher level of significance than either 'little' and 'limited or no' significance.
The MHI provides a Statement of Significance for the dwelling as follows:
Aesthetically significant as an example of Fremantle's vernacular architecture. Typical timber framed single storey cottage dating from the first decades of the twentieth century. Historically significant as a representation of working people's living conditions in the Fremantle area. Has undergone significant alterations but original form remains intact.
The MHI also described the dwelling as having 'timber' 'weatherboard' on the walls. The experts agree that this is incorrect. Ms MacKinlay contends that the dwelling should not have been entered on to the MHI, 'and was probably done in haste without close up inspection'. Whether or not this is the case, the Tribunal now has the benefit of recent Heritage Assessments prepared by two heritage experts to help inform its decision in this matter.
It is Mr Kelsall's view that the scale, massing and form of the building are intact and can be read and understood by the community, even though the verandah has been enclosed and the external wall cladding has been replaced. He is of the opinion that there is enough evidence available to restore the verandah either by investigation of the remaining fabric, if any, above the new ceiling or by reference to other similar classical cottages in the locality. Mr Kelsall is of the view that the existing building is typical of classical workers' cottages in Fremantle and helps to explain the development of the 'Port' town.
In contrast, Mr Callow is of the view that while the building makes some contribution to the streetscape because of its form, a new house of a similar scale could make the same contribution. He is also of the view that this is not a rare or unique example of this particular style, and that the street consists of a variety of different styles built over a long time frame, many of which are in better condition than the subject building.
Mr Callow is of the opinion that the level of significance of the building is reduced because 'all of the external fabric' has been replaced, including the external cladding, the verandah and original windows. Mr Kelsall agrees with Mr Callow that the level of significance is reduced by the alterations to the wall cladding and the front verandah but does not agree that all of the external fabric has been replaced or that the heritage significance is reduced to a level that warrants demolition of the dwelling. Mr Kelsall is of the opinion that, according to the Burra Charter, one should do 'as much as necessary and as little as possible' when dealing with heritage places.
In this case, having considered the evidence from both heritage experts and having had the benefit of a view of the site, the Tribunal prefers the evidence of Mr Kelsall and finds that the existing dwelling has 'some' cultural heritage significance rather than 'limited or no' significance.
The dwelling does have some altered and modified elements but retains much of the original built fabric, including the main roof structure and roof sheeting, as well as elements of the original front verandah. Notwithstanding the altered elements, the dwelling is still identifiable as a simple timber framed worker's cottage built in the early part of the 20th century and continues to make a contribution to the streetscape, local area and Fremantle as a whole.
The streetscape in this case consists of a number of single storey dwellings of various styles dating back to the late 19th century through to the 21st century. The northern end of Central Avenue, where the subject site is located, contains a greater proportion of Federation and Inter war dwellings, some of which have been restored with alterations and additions to the rear. The existing dwelling, even with its modifications, makes a positive contribution to the streetscape by its three dimensional form and scale as well as by providing an understanding of the development of the area particularly through the Federation and Inter war periods.
Clause 5.15 of LPS 4 states that the respondent will only grant planning approval for demolition where it is satisfied that the building has limited or no cultural heritage significance, and does not make a significant contribution to the broader cultural heritage significance and character of the locality in which it is located. In this case the Tribunal has found that the building has 'some' cultural heritage significance and therefore planning approval for demolition should not be granted.
While it is not necessary for the Tribunal to determine the second limb of the clause in this case, as both parts need to be satisfied for demolition to be approved, the Tribunal finds that the existing dwelling, located in a section of Central Avenue containing a high proportion of Federation and Inter war period dwellings, contributes to the broader cultural heritage significance and character of the locality.
The Tribunal also accepts Mr Kelsall's evidence that the existing building has the potential to be restored. Although the front verandah is currently enclosed, it maintains the original footprint, retains the original verandah posts and fascia, and may have other original elements behind the new plasterboard walls and ceiling. Both experts agree that the rear of the dwelling has been altered significantly and that further alterations and additions to the rear would not impact on the dwelling's level of heritage significance.
It should be noted that expert planning evidence was tendered during the hearing. Mr Algeri gave evidence on behalf of the applicant and Ms Martin Goode gave evidence on behalf of the respondent. Both of the planning experts presented evidence that reflected the evidence of their respective heritage experts.
Conclusion
The Tribunal has found that the existing dwelling, the subject of this review, has 'some' cultural heritage significance because, although the dwelling has had significant alterations, it retains much of its original three dimensional form and presents as a simple timber framed worker's cottage to the street. There is potential for an improved presentation to the street by the restoration of the front verandah and the replacement of the asbestos cement wall cladding. It should also be noted that both heritage experts agreed that alterations to the rear of the dwelling would not affect the cultural heritage significance of the place.
It follows that, applying the heritage values expressed in the planning framework, in particular, cl 5.15 of the City's LPS 4, planning approval for the demolition of the existing dwelling on the subject site is not warranted in this case. Therefore, the application for review should be dismissed and the respondent's decision to refuse planning approval for demolition should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 3 October 2012 to refuse development approval for demolition of the dwelling at No 3 (Lot 58) Central Avenue, Beaconsfield is affirmed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER
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