McKimm and Western Australian Planning Commission and Anor

[2008] WASAT 128

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   McKIMM and WESTERN AUSTRALIAN PLANNING COMMISSION & ANOR [2008] WASAT 128

MEMBER:   JUDGE J CHANEY (DEPUTY PRESIDENT)

MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD:   12 - 14 FEBRUARY 2008

DELIVERED          :   4 JUNE 2008

FILE NO/S:   DR 189 of 2007

BETWEEN:   ROGER McKIMM

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent

CITY OF FREMANTLE
Second Respondent

Catchwords:

Town planning ­ Development application ­ Mixed use commercial and residential building ­ Proposal involving restoration and addition to heritage building ­ Whether proposed additions diminish heritage values of place ­ Impact of height, scale and design of additions ­ Proposal supported by Heritage Council subject to conditions ­ Heritage Council conditions requiring revision of design ­ Whether compliance with the Heritage Council conditions leads to substantially different purpose ­ Whether application capable of approval in present form ­ Adequacy of provision for parking

Legislation:

City of Fremantle Local Planning Scheme No 4, Schedule 12, cl 5.7.2, cl 5.7.3, cl 5.7.4, cl 10.5.1
City of Fremantle Town Planning Scheme No 3
Heritage of Western Australia Act 1990 (WA), s 11(3)(c)
Planning and Development Act 2005 (WA), s 124

Result:

Decision by First Respondent to refuse development set aside
Approval of proposed development granted subject to conditions

Category:    B

Representation:

Counsel:

Applicant:     Mr MJ Hardy

First Respondent           :     Ms C Ide

Second Respondent      :     Mr C Slarke

Solicitors:

Applicant:     Hardy Bowen

First Respondent           :     State Solicitor's Office

Second Respondent      :     McLeods Barristers & Solicitors

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

McKimm and Western Australian Planning Commission & Anor [2007] WASAT 193

Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Roger McKimm applied to the Western Australian Planning Commission for approval of a mixed residential and commercial development on the site known as the Old Fremantle Synagogue on the corner of South Terrace and Parry Street in Fremantle. Buildings on the site are included on the permanent register of heritage places under the Heritage of Western Australia Act 1990 (WA). Mr McKimm's architect Mr Kirkness developed the proposal over a number of years. He engaged in detailed consultation with the Heritage Council of Western Australia and the City of Fremantle. Public consultation was also involved. Eventually, the proposal was supported by the Heritage Council subject to certain conditions. The Western Australian Planning Commission refused the application however, principally because of concerns expressed by the City of Fremantle. The City was concerned as to the bulk, height and scale of the proposed mixed use additions to the rear of the synagogue building. Although the City was not the decision maker for the purposes of the particular site, it was given leave to intervene in the proceedings because of its particular interest in the development of the heritage precinct within which the synagogue lies.

2. The objections of the Western Australian Planning Commission and the City of Fremantle to the proposed development centred mostly upon the height, scale, bulk and design of proposed additions to the rear of the site.  They were concerned that the new additions would dominate and detract from the heritage values of the synagogue and attached historic shopfronts.  They were also concerned about the impact on the heritage values of the place of several other aspects of the development.

3. The proposed development had received the support of the Heritage Council of Western Australia subject to certain conditions.  Those conditions required a degree of re-design of some elements of the proposed development.  The City argued that the re-design necessary was such as to amount to a substantially different development proposal and that a fresh application for development approval was required.  It was contended that the application was not capable of approval in its current form.

4. The Tribunal heard evidence from five heritage architects and two town planners.  It examined each of the areas of concern identified by the City and the Western Australian Planning Commission before determining that the proposed development would not have a significant detrimental effect on the heritage values of the place.  It found the proposal to be in keeping with the standards for development in the nearby Fremantle Business District, and concluded that the application should be approved subject to conditions.  The Tribunal did not consider that compliance with the requirements of the Heritage Council's conditions would amount to a substantially different proposal. 

The application

1. Mr McKimm applied for review of a refusal on 2 May 2007 by the Western Australian Planning Commission of an application to commence a mixed residential and commercial development involving conservation and additions to existing heritage listed buildings located at Lot 5, 92 South Terrace, Fremantle.

2. The land is located on the north-eastern corner of the junction of South Terrace and Parry Street, Fremantle.  The site has frontage to a road reserve on three sides, and on its eastern side it abuts the vacant Stan Reilly Lodge site which is owned by the City of Fremantle.

3. The site is occupied by a single structure of rendered brick and masonry with sheet metal roofing.  The building consists in part of the former Fremantle Synagogue which was the first purpose‑built synagogue constructed in Western Australia.  The building was used for its original purpose until around 1910, and was then subsequently sold in about 1913.  Various organisations used the building until it was sold to Mr "Bill" Beer in 1922.  It was used as an auction mart and residence, and in mid 1932 shops fronting South Terrace were attached to the synagogue building.  The original synagogue and the attached shops received permanent entry on the Register of Heritage Places under the Heritage of Western Australia Act 1990 (WA) (HWA Act) in November 1993. The site also retains a limestone wall which dates back to the site’s original use in the convict era. The evidence consists of a limestone boundary wall along the Parry Street frontage.

4. The site falls within the context of a number of significant places that are included on the State Register of Heritage Places, including Scots Presbyterian Church and the former Fremantle Infants School which occupy a corner of the same intersection.  The Norfolk Hotel occupies the fourth corner. Immediately north‑east of the site, across a road reserve, is the Fremantle Oval, and beyond that the Fremantle Prison, both also on the State Register.  The application proposes demolition of the rear service additions to the original synagogue building (which are not of heritage significance) and replacement with a four storey plus basement addition attached to the north‑eastern side of the old synagogue building.  It also proposes alterations and additions to the existing building including a new basement and upper floor verandah, and an extension of the presently permitted restaurant use of the synagogue into the shopfront portion of the building.

5. The proposed rear addition is comprised of:

   (a)a basement level containing five car parking bays and vehicle access along with a store, coolroom, and food preparation area associated with the restaurant use.  The food preparation area is proposed to be connected to the proposed basement level beneath the existing synagogue building;

   (b)at the ground level, 140 square metres of office floor space plus toilets, and 80 square metres open courtyard and lobby area;

   (c)floors 1, 2 and 3 of the proposed additions containing five short stay apartments with a total floor space of 304 square metres; and

   (d)floor 4 comprising a loft area for one of the short stay apartments at the north-east corner of the site so as to create a "tower" effect.  The fourth level consists of a roofed accommodation area of only 22 square metres with a 17 square metre open balcony. 

6. Alterations to the original synagogue building and shopfront addition comprise:

   (a)new basement level with an area of 120 square metres as an extension of the restaurant use;

   (b)various internal alterations to the ground floor level providing 228 square metres of restaurant floor space and 75 square metres open courtyard; and

   (c)removal of an existing mezzanine and replacement with a new 70 square metre mezzanine level for the restaurant use and an external 22 square metre verandah addition to the South Terrace façade above the existing shopfront.

7. The original application was lodged with the City of Fremantle on 29 November 2005.  At that time, the site was reserved under the Metropolitan Region Scheme (MRS) for the purpose "Civic and Cultural".   Because of that reservation, the site was not zoned or reserved under the former City of Fremantle Town Planning Scheme No 3 (TPS 3) (repealed on 8 March 2007) nor is it zoned under the City of Fremantle Local Planning Scheme No 4 (LPS 4).  Because of the reservation, the application for development approval was referred to the Western Australian Planning Commission (WAPC) for consideration.  The WAPC referred the application to the Heritage Commission on 5 December 2005 because of the registration of the site under the HWA Act.  On 21 February 2006, the Heritage Council's development committee resolved to support the proposal subject to 16 conditions.

8. On 2 May 2007, the WAPC resolved to refuse the development application for the purposes of the MRS for the following reasons:

   "(1)The proposed development, in particular, the new commercial and residential components, would adversely affect the local west end suburban landscape and amenity by reason of their inappropriate height, scale, bulk, form and visual presentation in and into the built environment; and

   (2)Having regard to (1) above, the appearance and character of the site and locality will be permanently changed in an unacceptable manner contrary to orderly and proper planning and the public interest."

9. The day before the WAPC decision was made, an amendment to the MRS came into effect. That amendment had the affect of removing the "Civic and Cultural" reservation from the land and zoning the land "Central City Area" for the purposes of the MRS. The consequence of that change was that the City of Fremantle, which, by reason of the previous reservation, was not a decision‑making authority for the purposes of development of the site, was obliged by s 124 of the Planning and Development Act 2005 (WA) (PD Act) to make LPS 4 consistent with the MRS. The City intends to, but has yet to, adopt an appropriate zone for the site. Because of the City's involvement of the future planning of the area by reason of the change to the MRS, the City was granted leave to intervene in these proceedings, and took a very active role in opposing the application for review of the WAPC's decision – see McKimm and Western Australian Planning Commission & Anor [2007] WASAT 193.

Background to the application

1. The City purchased the site from private ownership in 1969.  It sold the land to the applicant 32 years later, in 2001.  The site had seen a string of business failures over the decade or so leading up to its sale by the City.  It is apparent that the use and modifications to the building over an extended period had little regard to its heritage significance.  The property was sold to the applicant in 2002 by the City.  Documents relating to the sale of the site by the City suggest that the sale was prompted following a property portfolio review, conducted by consultants for the City, which identified the difficulties with past tenancies and the poor financial return from the property.  The report recommended sale based upon "the weight of property fundamentals".

2. Not long after the purchase of the site by Mr McKimm, he engaged Mr John Kirkness, an architect, to advise on and design a development for the site.  Mr Kirkness then commenced a lengthy period of assessment and consideration of issues for a development on the site which ultimately led to the plans the subject of this application being lodged. 

3. Original plans for development were lodged for approval by the City in mid 2003.  Prior to lodgement of the original application, Mr Kirkness had engaged in discussions with the Director of Urban Management at the City.  As a result of those discussions, Mr Kirkness prepared a concept plan which provided a basis for the comprehensive planning application subsequently prepared. 

4. Following submission of the original application in May 2003, it was referred to the WAPC as the decision‑making authority and to the Heritage Council.  The Heritage Council's development committee considered the application in September 2003, and initially resolved not to support it.  Mr Kirkness requested reconsideration of the matter at a meeting which would enable him to fully explain the proposed development.  That meeting occurred in October 2003, when the Heritage Council resolved to defer the application and required a conservation plan to be prepared to allow the extent of the impact of the proposal on the significance of the heritage place to be definitively determined.  According to Mr Kirkness, both he and the applicant considered that the Heritage Council's requirement was reasonable, and a process of preparing a full conservation plan was commenced.

5. Shortly afterwards, at the meeting on 1 December 2003, the City's development assessment committee considered the application and deferred a decision pending preparation of the conservation plan, and the preparation of a heritage impact statement.  In addition, the committee recommended that the City proceed with the preparation of a Precinct Development Plan (PDP) for the synagogue site and the adjoining sites in conjunction with certain other interested authorities. 

6. Mr Kirkness has had considerable experience as a heritage architect, with a particular focus on the Fremantle area.  He has been engaged by the City of Fremantle at various times between 1995 and 2002 as an architectural designer, heritage consultant, strategic heritage planner, and architecture and heritage officer within the City's (former) strategic planning and urban management departments.  He had considerable involvement with the City in various urban design projects and in the development of character studies and design guidelines for LPS 4.

7. In light of the resolutions of both the Heritage Council and the City, Mr Kirkness prepared a draft conservation plan which was submitted to the Heritage Council on 13 February 2004.  The Heritage Council referred the draft conservation plan for independent assessment by heritage professionals.  By April 2004, the Heritage Council provided comments on its review of the draft conservation plan.  A revised draft conservation plan was submitted in September 2004 to the Heritage Council.  The revised draft incorporated the changes recommended following the Heritage Council's review.

8. By letter dated 4 January 2005, the Heritage Council advised Mr Kirkness that the conservation plan was now acceptable for the Heritage Council's assessment purposes.  On receipt of that advice, Mr Kirkness requested that the Heritage Council complete its consideration of the original development proposal, and provided a detailed document specifying how the proposed development conformed with the requirements of the conservation plan.

9. The Heritage Council's development committee considered the application at a meeting on 19 April 2005.  It is apparent that, by that time, the City had prepared a draft Synagogue Precinct Plan in accordance with the development assessment's committee recommendation of 1 December 2003.  The Heritage Council resolved to again defer consideration of the original development application in order to enable a meeting to take place between Heritage Council officers, Mr Kirkness and officers of the City of Fremantle to discuss the proposal in the context of the draft Synagogue Precinct Plan. 

10. A meeting subsequently took place on site.  As a result of that meeting, it was recommended that Mr Kirkness prepare an outline of an amended proposal for comment by the Heritage Council prior to preparation of a full amended application. 

11. Mr Kirkness undertook that operation and on 5 September 2005 submitted to the Heritage Council a draft outline plan for an amended development designed to cater for the Heritage Council's concerns with the original development proposal.  He subsequently proceeded to prepare a detailed amended proposal.

12. Mr Kirkness had also participated in the preparation of the Synagogue Precinct Plan by consultants engaged by the City.  The City had prepared a "consultant's study brief" in May 2004, and subsequently engaged planning consultants Taylor Burrell.  In the latter part of 2004, Mr Kirkness had a number of meetings with Taylor Burrell to discuss the opportunities and constraints of the site.  He provided a copy of the original application and the draft conservation plan to Taylor Burrell.  A copy of a draft Synagogue Precinct Plan was provided by the City to Mr McKimm for comment in early 2005. 

13. On 18 February 2005, Mr Kirkness provided a detailed response to the City but generally supported the proposals contained in the draft Synagogue Precinct Plan.  One of those proposals was the creation of a pedestrian accessway from South Terrace to the Fremantle Oval (which is located on the northern side of the road reserve abutting the northern boundary of the applicant's site). 

14. Mr Kirkness then proceeded with the development of plans the subject of the present application, having regard to the draft Synagogue Precinct Plan as well as his discussions with the Heritage Council.

15. The present application was lodged on 29 November 2005.  Although it was treated as a fresh application by the City, it was clearly a development of the original proposal taking into account the recommendations of the Heritage Council, the policy requirements of the conservation plan, and to ideas expressed in the City's draft Synagogue Precinct Plan.

16. There followed a number of exchanges between Mr Kirkness and the Heritage Council, and a public meeting regarding the application organised by the City on 2 February 2006.  As a result of that public meeting, Mr Kirkness arranged for the preparation of accurate three‑dimensional photo montage images which would allow the form of the new proposal and its impact on the historic buildings, streetscape and vistas to be better appreciated.  Copies of those images were provided to council in March 2006.  Further images were requested by and provided to the City in April 2006, together with certain additional elevation drawings.

17. On 21 February 2006, the Heritage Council resolved to support the application subject to a series of conditions.  The City's planning officer then requested revised drawings of a building which would comply with the Heritage Council's conditions.  Mr Kirkness responded that the provision of further drawings was not appropriate, and declined to provide them.  Eventually, on 29 November 2006, the City provided notice to Mr Kirkness of the referral of the application to the City's planning services committee.  The planning officer's report to the committee was published on 1 December 2006.  The report suggested that the City should recommend to the WAPC refusal of the application on the basis that the proposed land uses were inconsistent with the Civic and Cultural reservation of the land.  It also recommended that the application should be refused on the ground that the cumulative effect of the alterations and additional information required by the Heritage Council conditions amounted to a new application which had not been presented for assessment.

1. The recommendation, insofar as it was based on the inconsistency of the proposed uses with the Civic and Cultural reservation of the land is, in the circumstances, surprising.  By December 2006, a proposal to remove the reservation from the subject site and replace it with a "Central City Area" zoning was well advanced, and the amendment to the MRS was described in the report as "imminent".  Although that proposal was specific to Mr McKimm's land, it was apparently never revealed to him prior to December 2006.  It must have been plain to the City that the lack of a civic or cultural use on the land would not have been a relevant consideration once the amendment to the MRS was complete.

2. Mr Kirkness provided a response to the planning officer's report for the meeting of the planning services committee.  The planning services committee resolved to recommend refusal of the application to the WAPC, and advised the WAPC accordingly. 

3. As already noted, on 2 May 2007, the WAPC resolved to refuse the development. 

The issues for determination

1. The parties identified the following issues for determination:

   (i)would the approval of the development proposal at the present time be consistent with principles of orderly and proper planning?

   (ii)will the proposed development have an inappropriate impact on amenity having regard to its height, bulk, scale and form?

   (iii)does the development proposal appropriately address and maintain the heritage values of the place?

   (iv)can the Tribunal properly approve the development proposal without amended plans, given the terms of the conditions imposed by the Heritage Council?

   (v)does the development proposal make sufficient provision for on-site car parking?

Orderly and proper planning

1. The site is in an important location, abutting as it does the Fremantle West End Conservation Policy Area identified pursuant to LPS 4.  The site sits at an intersection where all four corners of the intersection contain buildings of considerable cultural heritage significance.  As the planning and heritage experts who gave evidence at the proceedings agreed, the intersection forms part of a significant gateway to Fremantle's west end. 

2. With the amendment of the MRS to remove the reservation over the land, and replace it with a Central City Area zoning, there is something of an hiatus in planning for the site. The City intends, in accordance with its obligation pursuant to s 124 of the PD Act, to amend LPS 4 by applying an appropriate zone to the land.

3. Mr Greg Bowering and Mr Simon Bain are town planning experts called by the City and the applicant and the applicant respectively. Mr Bowering is the planning projects coordinator of the City of Fremantle. He told the Tribunal that during the development of LPS 4, the City's draft scheme proposed that the designation "Development Area 17" should be placed over the subject site and the Stan Reilly Lodge site. The draft scheme contemplated that a detailed area plan should be submitted and approved prior to rezoning the site to "Mixed Use" zone. This proposal was abandoned when it became evident that the amendment to the MRS to remove the Civic and Cultural reservation to the site would not occur prior to the gazettal of LPS 4. As a result, no development standards are applied to the land under LPS 4.

4. Both Mr Bowering and Mr Bain agreed that the likelihood is that the land would ultimately be zoned "City Centre" or "Mixed Use".  They also agreed that the proposed development would comply with the development standards applicable to either of those zones.  Mr Bowering was of the view, however, that it is undesirable that the proposed development be approved prior to the City finalising its planning for the precinct.  Mr Bowering was of the impression that the Taylor Burrell Synagogue Precinct Plan had been "put on hold" pending completion of a conservation management plan (CMP) which the City had commissioned from Philip Griffiths Architects in December 2006.  According to Ms Agnieshka Kiera, the City's heritage architect, the major aim of the CMP is to evaluate and define the significance of the heritage places within the area, establish the policy requirements for their protection and conservation and provide guidelines for compatible development of the currently vacant sites in the area as well as redevelopment of identified under‑utilised properties.

5. In essence, the City's position is that it would be contrary to the orderly and proper planning of the area to approve the proposed development before the CMP is adopted, and appropriate zoning and development controls are applied to the site through LPS 4 having regard to the CMP.

6. Apart from the town planners who gave evidence, the Tribunal heard extensive concurrent evidence from heritage and architectural experts.  The applicant called Mr Kirkness and an experienced consultant architect Mr Anthony Brand.  The City called Mr Philip Griffiths, a very experienced heritage architect, and the author of the draft CMP, Mr Carl Payne, an experienced architect who has had a long involvement with the Fremantle Society, a local heritage interest group concerned with promoting planning and development within the city, and Ms Agnieshka Kiera, the City of Fremantle's City heritage architect who has worked with the City since 1984.  The WAPC called Mr Michael Betham, a senior conservation officer with the Heritage Council. 

7. It was common ground between the various experts that development of the synagogue site should be guided by the heritage considerations of both the site itself and the surrounding heritage area.  The issues of height, bulk and scale were raised not because of a failure to meet development standards that apply generally in the area, but rather because of their impact on the heritage values of the synagogue building and other heritage buildings in the vicinity.  The proposal has been under examination and assessment by the City and the Heritage Council for in excess of four years.  Issues of bulk and scale and its impacts on the surrounding area on the heritage buildings in the area are all matters which have received close examination in the context of these proceedings.  That comprehensive examination enables a decision to be made on the application for approval having regard to the very considerations that would ultimately inform any development standards appropriate for the site.  

8. The fact that the City has not considered and adopted the conservation management plan, and decided upon the ultimate zoning for the site, does not mean that it is premature to deal with this application.  There has been thorough consideration of the heritage aspects of the proposed development as the proposal has developed since 2003.  The Tribunal has had the benefit of the considered views of five experts in the area, and we do not consider that it would be contrary to orderly and proper planning to consider, and if thought fit approve, the application in the light of all the information that is available.

Height, bulk, scale and form

1. The respondents contend that the proposed development will have an inappropriate amenity impact due to its excessive height, scale and bulk, and its inappropriate form and visual presentation in the context of the surrounding built form.  The applicant contends that the scale of development is relatively modest having regard to contemporary development in the city centre and the west end of Fremantle, and that the development's scale, bulk and location on the site, and the provision of open space, constitutes an appropriate form of development in the locality.

2. The proposed rear addition is set back from the existing synagogue building.  At the Parry Street frontage, the proposed new addition comprises commercial tenancies, which are at a single level with a roof deck above, in the portion of the building closest to the synagogue.  Two levels of accommodation units above the commercial tenancy at the north-eastern boundary, being the furthest distance from the synagogue.  On the south‑eastern boundary, being the boundary furthest from Parry Street, the proposed addition is at three levels, being separated from the north‑eastern end of the synagogue by distance of slightly in excess of 3 metres.  The fourth level loft area is situated in the north‑eastern corner of the proposed addition. 

3. Mr Kirkness's intended to create a hierarchy of building elements increasing in height towards the rear of the site so as to provide an appropriate scale of development across it, accentuating the historic building in its prominent corner location and recreating a meaningful streetscape to Parry Street.

4. As already observed, the site is not zoned within LPS 4.  It is however located within the "city centre" local planning area of Schedule 12 of LPS 4.  Schedule 12 of LPS 4 deals with height requirements within local planning areas.  It provides that building heights should be limited to a minimum of two storeys and maximum of four storeys with a maximum external wall height of 14 metres measured from ground level.  The proposed building height is well within the limits of that provision of the scheme. 

5. Schedule 12 also specifies that, in granting consent to the maximum height prescribed, council shall be satisfied in regard to several matters, including:

   "(b)the proposal would not be detrimental to the amenity of adjoining properties or the locality,

   (c)the proposal would be consistent, if applicable, with conservation objectives for the site and locality generally …"

6. The council may impose a lesser height in the event that the proposal does not satisfy any of the above requirements.  Mr Bain and Mr Bowering, the two town planning experts who gave evidence, agreed that, from a planning perspective, the building complies with all appropriate building standards.  It is clear that, in relation to matters such as setback and plot ratio, the proposed development does not seek to maximise the development potential of the site.

7. There appear to be two areas of concern expressed by the respondents in relation to bulk, scale and height.  The first is whether, from a town planning point of view, the massing of the building in the form proposed, and its overall height, are consistent with the amenity of the area.  The second, and far more substantial issue, is whether the bulk, scale and height of the proposed addition is consistent with the heritage values of the synagogue building, and the surrounding heritage buildings.  That latter issue is one which is best dealt with in the context of consideration of the heritage values of the place generally later in these reasons.

8. Putting aside heritage issues, we do not consider that, from a town planning perspective, there is any detrimental affect on amenity arising from the bulk, scale or height of the proposed additions.  We agree with Mr Kirkness and Mr Brand that the proposed additions appropriately address the Parry Street streetscape.  The portion of the building comprised in the fourth level is small, comprising, on Mr Brand's calculation, some 4 per cent of the total area of land.  It is, in effect, a tower element which is not inconsistent with various other relatively high structures in the precinct, including the steeple and spire of the Scots Church, the turret of the football club grandstand and a three storey media box adjacent to the new development.

9. Whether the bulk, scale and height of the building is objectionable turns upon its impact on the heritage values of the site and precinct, and not on any inconsistency with the appropriate scale of development for mixed use buildings of this type in the city centre local planning area.

Impact on the heritage values of the place

1. State Planning Policy 3.5 Historic Heritage Conservation has amongst its objectives ensuring that development does not adversely affect the significance of heritage places and areas and to ensure that heritage significance is given due weight in planning decision‑making.  It requires regard to be had to the conservation and protection of places registered under the HWA Act and to whether the proposal will adversely affect the significance of any heritage place or area, including any adverse effect resulting from the location, bulk, form or appearance of the proposed development.  In addition, it specifies that regard should be had to the following specific matters:

   "Alterations, extensions, change of use or demolition affecting a heritage place (including a place within a heritage area)

   •the level of heritage significance of the place, based on the relevant heritage assessment.

   •measures proposed to conserve heritage significance of the place and its settings.

   •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.

   Development within a heritage area

   •whether the proposed development responds sympathetically to the heritage values of the area as a whole and that part of the heritage area in the vicinity of the proposed development.

   •whether the siting, scale, style and form, materials and finishes of the proposed development responds sympathetically to the heritage values of the area. 

   •the local planning policy for the heritage area including any places designated of heritage significance and the objectives and guidelines for conservation and enhancement of the heritage area."

2. Clause 6.6 of SPP 3.5 identifies certain development control principles.  It requires that development should preserve cultural significance based on respect for the existing building or structure.  It requires that alterations or additions should not detract from heritage significance and should be compatible with the siting, scale, architectural style and form, materials and external finishes of the place.

3. There was no issue between the parties, or the experts called by them, as to whether the type of considerations identified in SPP 3.5 should be applied, nor as to the importance of the preservation of the heritage significance of the subject site and the precinct in which it is located.  The issue between the parties is as to whether there is an acceptable impact upon the heritage values of the place or the precinct in the proposed development.

4. The respondents contend that the proposed development will have an adverse effect on the synagogue in particular and the area in general, in several respects.  The primary concern expressed by the respondents is the effect of the height, scale and visual complexity of the proposed addition.  A second concern relates to the effect of certain elements of the proposal upon the authenticity of the synagogue.  A third issue is the compatibility of the proposed use of the synagogue building itself, namely as a restaurant, with the building's cultural heritage significance.  Finally, there was an expression of concern that the archaeological significance of the convict elements may be destroyed by reason of the excavations necessary for the proposed basement to the synagogue building.

5. The proposed development has been designed to attempt to respond to the recommendations of the draft conservation plan prepared by Taylor Burrell in 2005.  In relation to height, scale, bulk and form, the Taylor Burrell conservation plan suggests that potential for a new 3 - 4 storey mixed use building on the northern side of the synagogue building extending along Parry Street.  

6. Because of the contours of the land, and the fact that the proposed development has a range of heights and forms distributed across the site which possesses considerable change in levels from the street front back to the general level of the site, precise measurement of the height of the building is difficult.  The roof structure of the proposed addition is curved.  The elevations suggest that, at their highest point, the roof of the 3-storey component is approximately 1.5 metres above the ridge of the synagogue building.  The apex of the fourth floor element in the north‑eastern corner of the site would rise a further 2 metres approximately.  The lower edge of the curved roof on the third floor portion of the building would appear to align approximately with the ridge height of the synagogue.

7. Mr Griffiths, Mr Payne and Ms Kiera all considered that the height of the proposed development would dominate the synagogue site, and detrimentally affect the prominence and significance of the synagogue building.   Mr Betham considered that the proposed development would reduce the prominence of the synagogue by reason of its size, bulk, scale and height, but considered that whether that reduction is excessive "is very much a matter of judgement".  He considered it unlikely that the synagogue will be overwhelmed.  Mr Brand considered that there were a number of other structures in the vicinity of the proposed development which were of a height which would render the proposed development compatible with its surroundings.  He noted that the pyramidal roof form of the fourth level occupied a small percentage of the total area of the development and was in a form which he considered complementary to the turrets on the southern façade of the synagogue. 

8. Mr Kirkness considered that the hierarchical building arrangement, which he said effectively facilitates significant open spaces and setting the higher portions of the building to the rear beyond those spaces and historic buildings, assists the harmonious visual impact of development on the historic setting.  He did not, therefore, consider that the proposed additions would have the effect of overwhelming the synagogue building.

9. At the time of the hearing, Mr Griffiths had completed a draft of the Fremantle Synagogue Precinct Conservation Plan.  The plan had not yet been submitted to the city for approval.  The draft CMP proposes that any new development on the synagogue site should be subservient to the significant heritage elements of the existing structures on site.  The draft CMP suggests that the height and bulk of any additional development in the presently open areas should allow the synagogue and shop addition to remain the visually dominant elements on the site.  The draft plan contemplates that a new development of 2 storeys might be appropriate with a maximum wall plate height equal to that of the synagogue, with a pitched roof with a ridge height not exceeding the height of the synagogue ridge.  The draft CMP also recommends that, in accordance with the Burra Charter principles, any new addition should be in sympathy with, but readily distinguishable from, the existing building and should not detract from its heritage value.  Mr Griffiths' opinion as to appropriate development, expressed in his evidence to the Tribunal, was consistent with his recommendation in the draft CMP.

10. In its letter of 27 February 2006, providing conditional support for the development, the Heritage Council identified a condition relating to the roof structure.  The condition called for a redesign of the roofline, but suggested that "the main bulk of the simplified roof form is to be no higher than the curved roofs in the current proposal."  As we will discuss later in these reasons, we do not consider that condition to imply that the fourth level be removed.  It can be inferred therefore that the Heritage Council did not consider that the height of the proposed development relative to the ridge height of the synagogue building was unacceptable. 

11. As Mr Betham observed in his evidence, there will often be a range of views on whether height, bulk and scale of new development is excessive having regard to the heritage values of neighbouring buildings.  The views of the experts who gave evidence on that issue in this case were, therefore, necessarily informed, to a degree, by subjective judgment.  We readily appreciate that the views expressed by the experts to the Tribunal are genuinely held views. 

1. For our part, we prefer the views of Mr Betham, Mr Kirkness and Mr Brand on this issue.  We acknowledge that, as a broad planning guideline, fixing the roof height of a new development by reference to the ridge height of the synagogue is a reasonable approach.  We do not consider, however, that a rigid application of that guideline is essential to avoid dominance of the new development over the heritage building.  The new additions do, in our view, respect the heritage values of the synagogue and the attached shopfronts.  They do that by providing space between the heritage building and placing the higher portions of the building at points distant from the heritage building.  Ms Kiera, with whom Mr Griffiths agreed, suggested that a preferable form of development would be a rectangular building of 2 storeys occupying the greater part of the site to the rear of the synagogue building.  In our view, a building of that design would potentially obscure the view of the synagogue looking south along Parry Street to a greater degree than the proposed development.  It would also result in the loss of the courtyard space between the proposed additions and the synagogue.  It would, in our view, result in a building that might be perceived as being of greater bulk than the articulated and hierarchical design of the proposed building.  We therefore do not agree with Ms Kiera and Mr Griffiths on that point.

2. The small area of the fourth level, placed as it is in the north‑east corner of the site will not, in our view, dominate the view of the synagogue, nor adversely affect its prominence on the corner location.  The proposed additions would present as a different building albeit finished in a way which complements the existing heritage structures. 

3. We accept that Mr Kirkness has produced a design which falls significantly short of the theoretical development potential if one were to apply the development standards of the city centre or mixed use zones.  We do not consider that the height, bulk, or scale of the proposed additions is out of keeping with other buildings within the precinct.  The significant Victoria Pavilion on the other side of Parry Street is an example of a larger building in the precinct.  As Mr Brand observed,  the proposed new addition should be seen in the context of "a myriad of tall forms" within the precinct including the steeple and spire of the Scots Church, the corner turret of the football club grandstand, the 3 storey media box adjacent to the new development, and further to the south‑east, the Fremantle Hospital.  The forms of those higher structures differ from the proposed development, and while it may be accepted that the 7 or 8 storey Fremantle Hospital (which is visible to the south) may lack planning merits, the fact is that the proposed building will not stand out in a stark manner by reason of its height and bulk when taken in the overall context of the precinct. 

4. We agree with Mr Betham, and with what is implicit in the Heritage Council approval, that the proposal should not be refused by reason of the height, bulk or scale of the proposed additions.

5. A further concern expressed by Ms Kiera and Mr Griffiths was that the "visual complexity" of the proposed additions would detract from the significance of the synagogue.  Their concern, as we understand it, is that the design would distract attention from the relatively simple from of the synagogue.

6. Mr Kirkness said, and we accept, that he gave careful consideration to the form and scale of the proposed additions.  He said that the design of the new structures provides building elements and detailing which are "made reasonably intricate, again reflective of that of the synagogue" and which reflect a "contemporary architectural manner loosely reflective of historical forms and arrangements".  Consistent with the Burra Charter principles, the buildings are not designed as "mock historic or pastiche modern structures".  On the other hand, Mr Griffith's described the design of the new buildings as "complex and heavily articulated, with complex roof lines".

7. For our part, we do not consider the design of the addition to be overly complex.  More importantly we do not consider that such complexity as there is results in an overwhelming of, or distraction from, the architectural form or prominence of the synagogue and the heritage shopfronts.  The separation and setback of the new additions from the synagogue avoids that problem.  The adoption of the scale of the heritage shopfronts in the proposed new commercial shopfronts assists further. 

8. We do not consider that the visual complexity of the proposed additions is detrimental to the heritage values of the site.  

9. The second principal concern in relation to heritage values was whether the development would diminish the authenticity of the synagogue.  The respondents contend that it will diminish authenticity in two respects.  The first is that Mr Griffiths and Ms Kiera contend that the construction of the basement is too extensive a change.  They are of the view that the creation of a lower floor viewed from the street will significantly change the reading of the built form and scale of the existing building to an extent that it will impact on its heritage values.  They contend that "the notion of the temple on the mount" will be lost.

10. The second concern is that the inclusion of a balcony on the south‑west end of the synagogue, overlooking the shop and South Terrace, conflicts with conservation principles.  Ms Kiera, Mr Betham and Mr Griffiths agree that a verandah was associated with the synagogue before the construction of the shops, either as part of the synagogue stage of development or shortly thereafter.  They say, however, that there is a lack of evidence to justify a faithful reconstruction.  They consider that the proposed verandah conflicts with conservation principles since the verandah did not survive the development of the important shop phase of site improvement, while shops now form an integral part of heritage significance of the place.  They assert that the shops and verandah did not coexist at any time and reconstruction would confuse the incremental development value and intactness of the surviving place.  Ms Kiera and Mr Griffiths also argue that the construction of the balcony, which involves changes to the fabric of the roof over the shops, results, in effect, in retention only of the facades of the shops, which is an unacceptable form of intervention.

11. In relation to the basement, Mr Kirkness and Mr Brand argue that the construction of the basement under the synagogue allows services to be transferred out of the significant place and into the basement.  They argue that the creation of the basement allows the synagogue to be stabilised, to permit street‑level activation, to provide easy pedestrian access, and allows the synagogue to remain prominent, accentuating an appreciation of its interior spaces.  They observe that the new basement openings are contained below the dado line to the building façade allowing the full restoration of the original rhythm of openings.

12. On the Parry Street frontage of the synagogue at present, there is a terrace built up from Parry Street roughly to the height of the convict wall along that boundary.  The proposal would involve removal and excavation of the terraced area so as to enable entry to the synagogue building at the Parry Street level with stairs proceedings either down to the basement or up to the existing floor level of the synagogue.

13. In our view, the provision of the basement will not detract from the heritage values of the synagogue.  We accept that, from a functional perspective, it enables services to be provided away from the interior spaces of the synagogue in its original form.  We do not accept that the existence of the basement will significantly affect the reading of the built form or the scale of the existing building.  It must be borne in mind that the shopfronts on South Terrace wrapping around into Parry Street already provide an obstruction to the reading of the architectural form of the original synagogue building.  Those shopfronts now form a component of the heritage significance of the site.  The entrance to the synagogue building from the Parry Street frontage at ground level will be quite compatible with the historic shopfronts.  From our view, the development of the basement will not detract from the heritage significance of the synagogue.

14. In relation to the proposed balcony at the southern end of the synagogue, above the shops, a photograph produced at the hearing confirms that a balcony did exist at that location at some point in the synagogue's history.  Whether the balcony coexisted with the shops is less clear.  For our part, we consider that the reconstruction of the balcony over the shop roofs tends to detract from the reading of the shop component of the heritage building, and we would not be inclined to support it.  We note, in any event, that one of the conditions of the Heritage Council support is that the proposed verandah is to be deleted from the proposal and the façade of the former synagogue is to be returned to a circa 1932 format.  It would be inappropriate for the Tribunal to approve a development inconsistent with the conditions imposed by the Heritage Council.  Accordingly we are of the view that, if approval is to be granted, it should only be on condition that the verandah structure over the commercial shopfronts should be deleted.

15. That change to the proposal is a relatively minor one, and could satisfactorily be dealt with by way of condition.

16. The third concern expressed by Ms Kiera and Mr Griffiths was that the proposed use of the premises was incompatible with its heritage values.  In the experts' joint statement, they agreed that the range of uses proposed for the new additions behind the synagogue were appropriate.  Ms Kiera and Mr Griffiths had concerns that use of the premises as a restaurant could affect the "dignity" of the synagogue itself and diminish the heritage values of the place.  They argued that a retail or gallery-type use would be more compatible.  In her evidence, Ms Kiera suggested that use such as retail sales of rugs and carpets might be more appropriate.  We do not agree with Mr Griffiths and Ms Kiera in relation to this issue.  We are influenced by the fact that the Jewish Community Council of Western Australia (Inc) which was given leave to make submissions in the proceedings, not only expressed no objection to the proposed use of the premises as a restaurant, but welcomed it as an opportunity to provide public access to the building.  In their submission, they describe the development proposal as "a genuinely practical, positive and sympathetic approach to the restoration and display of the synagogue".  In their submission they said "we applaud the proposed use of the synagogue building as a reasonably dignified restaurant, open to the public."

17. For our part, we can see no logic in the suggestion that the use of the building as a carpet showroom is more dignified than using the premises as a restaurant.  In any event, the premises have been used as a restaurant for a number of years, especially when in the ownership of the City.  No objection to the proposed use was raised by the Heritage Council.  In the context of consideration as to car parking requirements, Mr Bowering, a representative of the City, accepted that there is an existing approved use of the premises for the purpose of a restaurant.  The proposed use is, in our view, entirely compatible with the historical significance of the building.

18. A final concern expressed by Mr Griffiths was that the excavations necessary to develop the basement component of the synagogue might affect the preservation of the convict elements of the building, both in respect of the remaining boundary wall, and any other unknown convict elements which might be revealed by the excavations.  Mr Betham disagreed with that suggestion, and suggested that if the applicant takes appropriate precautions and has professional archaeological monitoring of any excavation works, the proposed development could actually have a positive outcome.  As he observed, any additional archaeological evidence on the site is presently hidden below the surface, but may be discovered as a result of the development if work is done with the appropriate safeguards in place.  The conditions imposed by the Heritage Council include a condition requiring a methodology to be prepared to provide for the professional archaeological monitoring of any excavation works, including a plan of the action to be taken if any artefacts or other archaeological evidence is revealed.

19. That condition is, in our view, appropriate.  A consequence of the proposed works is that, if there are any hidden archaeological artefacts relating to the convict elements of the building, the proposed development will aid in discovering them.  The requirement that a plan of action approved by the Heritage Council be in place leads to the conclusion that the development may potentially enhance the heritage significance of the place. 

20. In our view, the development proposal does appropriately address and maintain the heritage values of the place. 

Are amended plans necessary?

1. Section 11(3) of the HWA Act requires that a decision-making authority not take any action which might affect to a significant extent a registered place unless that action is consistent with advice received from the Heritage Council.  As already observed, the Heritage Council provided advice in relation to the proposed development to the effect that the development was supported subject to a number of conditions. 

2. It is submitted by the respondents that compliance with the conditions effectively requires a redesign of the building.  The City contends that the redesign is so substantial as to effectively amount to a substantially different proposal, not capable of approval in the present application.  The WAPC adopts the position that it "is not persuaded that the changes required by the Heritage Council are necessarily such as to materially alter the proposal" and suggests that that question is one for determination by the Tribunal.  It contends that if the Tribunal were to reach the conclusion that the required changes materially alter the proposal, then the application is not capable of approval in the present proceedings.

3. The applicant contends that the changes the subject of the conditions imposed by the Heritage Council are not significant and simply require the removal of elements rather than a redesign of the proposal.  They contend that the proposed changes would have little, if any, effect upon the amenity of the locality or the heritage value of the place.  They assert that there is no basis to argue that the changes the subject of the conditions might lead to any different planning outcome.

4. In order to resolve this issue, it is necessary first to look at the conditions contained in the Heritage Council's advice.  Those conditions read as follows:

   "1.     The proposed new commercial/residential development is to be redesigned to simplify the detailing of the roofline.  The main bulk of the simplified roof form is to be no higher than the curved roofs in the current proposal.

   2.The Parry Street awning of the new commercial/residential development is to be redesigned to delete the vertical fins that have been set perpendicular to the main facade. The design of the awning, and any revised provisions for signage, are to more closely respond to the original awning and traditional painted signage used for Beer's Furniture Mart, as evidenced by the photograph included in Volume 2 of the Conservation Plan, Appendix V, photograph (vi).

   3. It is noted that the proposed cantilevered balconies to the north-eastern and south-eastern elevations of the new commercial/residential development extend beyond the site boundaries. It cannot be assumed that these balconies will receive planning approval from the Fremantle City Council.

   In response to the Heritage Council's previous request for more articulation to these facades, an alternative design is to be submitted to the Heritage Council for consideration. This is to present an equivalent level of articulation to these facades, within the site boundaries.

   4. Subsurface condition testing by a recognised geotechnical engineer is to be undertaken to determine if the proposed basement level to the former Synagogue can be excavated and appropriately underpinned without undue physical impact on the existing heritage.  A full report on this matter is to be submitted to the Heritage Council for consideration, including reference to any potential impact on the current proposal, prior to issue of any demolition or building licence for the proposal.

   5.The remnant of the early limestone retaining wall to the Parry Street frontage is to be conserved.

   6.A detailed schedule of conservation works for the both the former Synagogue and the 1932 shopfronts is be prepared and submitted to the Heritage Council for consideration. This is to include reference to structural issues, as well as the original internal or external detailing and finishes.

   7.The conservation works are to provide for the restoration of the external facades to a known earlier state relating to the completion of the shopfronts in c.1932, including:

   •Reinstatement of the original extent of the tuck‑pointed brickwork and rendered detailing to the former Synagogue.

   •Conservation of original window detailing to the former Synagogue.

   •Reinstatement of the original facade detailing of the shop-fronts, as evidenced by the photograph included in Volume 2 of the Conservation Plan, Appendix V, photograph (vi) and by further investigation of the surviving fabric.  This is to include the face brick detailing to the parapet and plinth levels, the contrasting rendered detailing and the layout/detailing of the shopfront windows and doors.

   •Window detailing, including the conservation of the extant, original stained glass.

   8. The works are to include conservation of original internal detailing to the hall as described in section 2 of the Conservation Plan. This work should be informed by further physical investigation and include conservation of:

   •          The lime-plaster render with dado mould run.

   •          The timber ceiling and cornice.

   •          The decorative metal ceiling roses.

   •       The jarrah flooring.

   9.All urgent conservation works and the restoration of original finishes and details are to be implemented concurrent with the first stage of redevelopment.

   10. The proposed reconstruction of the former verandah/balcony to the former Synagogue is inconsistent with the understanding of the adaptation of the place with commercial shopfronts in 1932 and is not supported.  The proposed verandah is to be deleted from the proposal and the facade the former Synagogue returned to a c.1932 format.

   11.    It is understood that the roof deck to the South Terrace frontage has been deleted from the proposal and that external stairs to the roof do not form part of the current referral. The development of a roof deck and construction of stairs in this location are not supported.

   12.Detailed documentation of the proposed adaptation of the former the former Synagogue hall is to be submitted to the Heritage Council for consideration. This is to include further details of:

   •The proposed mezzanine within the former Synagogue hall, including further physical investigation to determine the extent of the original mezzanine(s).

   This is to include a redesign of the north-eastern mezzanine to ensure that it is set off the windows, so as not to impact on the detailing and appreciation of these elements.

   •The proposed link between the former Synagogue and the new development, including    reference to materials, finishes and the physical impact on heritage fabric.

   •The proposed entrance doors between the new basement and the courtyard. It is expected that these doors will be complementary to the detailing of the existing north‑­western elevation, but as part of the new basement level, may be of a contemporary design.

   •          The proposed stairs within the hall.

   •The proposed bar and servery within the hall, and the associated services.

   •The proposal to open up the wall between the main hall and the rear lean-to, including further physical investigation to determine if this link originally existed.

   •The construction of a new entry staircase to the front of the hall, including reference to any relevant documentary and physical evidence.

   13. Further details are to be provided regarding any works required to address universal access to the former Synagogue and shops.

   14. A methodology is to be prepared to provide for the professional archaeological monitoring of any excavation works, including a plan of the action to be taken if any artefacts or other archaeological evidence is revealed. This is to be submitted to the Heritage Council for approval prior to the commencement of any works.

   15.An interpretation proposal that responds to the history and significance of the site is to be developed and submitted to the Heritage Council for approval.

   16.All of the above matters are to be resolved to the satisfaction of the Heritage Council, prior to the issue of a Building Licence …" (original emphasis)

1. The conditions which the City relies upon for its contention that compliance involves, in effect, a substantially different proposal, are conditions 1, 2, 3, 7, 8 and 10.  The City also contends that condition 4 may have the result of rendering the development unable to be carried out, in the event that the Heritage Council considers that the excavation works proposed might have an unacceptable physical impact.

2. As to condition 1, the City contends that compliance would require the removal of the fourth level.  We do not agree.  Mr Betham is an officer of the Heritage Council.  He was not involved in the assessment of the proposal and the drawing of the conditions.  He was unable to assist the Tribunal as to precisely what was contemplated by condition 1.  In our view, on its proper construction, condition 1 does not require the removal of the fourth level.  If that were contemplated by the Heritage Council, it would be a simple matter, easily expressed, to include a condition to that effect.  Condition 1 refers simply to simplifying the detailing of the roofline.  The use of the expression "main bulk of the simplified roof form" suggests that there may be other portions of the roof, such as the small portion atop the fourth level, which are higher than the curved roof. 

3. We have already reached the conclusion that the height of the proposed additions, separated as they are from the synagogue, does not adversely impact upon the heritage values of the site, nor on the amenity of the area having regard to the heritage significance of the precinct.  A change in the precise form of the roof would not, in our view, significantly alter the conclusions we have reached in that respect.  For our part, we consider that the curved roofline is a relatively simple design.  The design is made slightly more complex by the protrusions through the roof (to a height lower than the highest point of the curve) which are designed to increase the ceiling height of the internal spaces.  It may be those protrusions which were of concern to the Heritage Council.  Whether or not that be the case, in our view, compliance with condition 1 would not amount to a substantially different plan involving substantially different planning or heritage considerations.

4. We reach the same conclusion in relation to condition 2.  The removal of vertical fins protruding above the awnings of the retail shopfronts of the proposed additions would not, in our view, amount to a significant change in the design, nor give rise to any different planning or heritage considerations.  Mr Kirkness wished to retain those elements which he considered reflective of elements of the historic shopfronts.  That is a matter which can no doubt be resolved in discussions between the applicant's representatives and the Heritage Council.  The removal of the fins, and any revised provisions as to signage do not, in our view, substantially affect the planning or heritage issues which have been fully canvassed in the hearing.  Alterations of that nature would not be sufficient to amount to a significantly different proposal.

5. As to condition 3, the Heritage Council clearly has no difficulty, and nor does the Tribunal, with the cantilevered balconies to the north‑eastern and south‑eastern elevations of the development.  It is true, however, that those portions of the proposed additions require the consent of the owners of the land over which they protrude.  As has already been noted, the land to the south‑east is the Stan Reilly Lodge site which is owned by the City of Fremantle.  The City's consent would be required to construct those balconies, and on the basis of the evidence adduced during the hearing, it would appear that the City may not give its consent.  In relation to the balconies protruding over the road reserve to the north-eastern boundary, consent is, apparently, a matter for Landgate and not the City.  Whether that approval might be forthcoming is not yet known.  There is no apparent reason why that approval may not be forthcoming.

6. If it is assumed for the sake of the City's contentions, that approval of the owners of the adjoining land for the cantilevered balconies is not obtained, the Heritage Council's condition would require an alternative design presenting an equivalent level of articulation to those facades within the site boundaries.  The City contended, in order to meet that requirement, it would be necessary to move the balconies back so that they were entirely within the boundary of the site.  As the City observed, to make that alteration would either shift the bulk of the development back towards the synagogue, alternatively result in substantially smaller internal spaces for the residential units.

7. In our view, those consequences do not necessarily follow in order to achieve compliance with condition 3 of the Heritage Council's advice.  At worst, it may be necessary to remove the balconies, and replace them with an opening on the external walls on the north‑eastern and south‑eastern boundaries.  Articulation to the walls can be provided by use of those openings, and other wall treatments.  The expression "equivalent articulation" does not, in our view, mean that there must necessarily be balconies of the type depicted on the existing plans.  Articulation by other design features not protruding over the adjoining land, are likely to be capable of satisfying the Heritage Councils requirements.

8. The effect of changes to the facades the subject of condition 3 does not impact upon the synagogue itself.  Rather that impact is on the view of the new additions from other locations in the precinct.  We accept that the appearance of the building at various points within the precinct must be considered in the context of the heritage significance of the precinct generally.  In our view, the architectural detailing of those facades of the building is entirely appropriate from that prospective.  To the extent that there may need to be changes brought about by reason of lack of consent to the protruding balconies, we are satisfied that, in conjunction with the Heritage Council, and the City, alternative form of articulation of the relevant facades is achievable without any adverse effect upon the amenity of the precinct.

9. In respect of the eastern boundary, adjoining the Stan Reilly Centre, owned by the City, Mr Kirkness completed his design on the basis of the proposal in the draft Taylor Burrell report which contemplated a pedestrian walkway along that side of the site.  In our view that was an entirely sensible and responsible response to that proposal.  Given that the Taylor Burrell report is, apparently, not now being put forward for approval or adoption by the City, the underlying basis for Mr Kirkness' proposal has become uncertain.  Whether or not the City might consent to the overhanging balconies is a matter for it, no doubt in light of its own proposals for the adjoining land.  We are satisfied, however, that, should the City refuse to grant consent to the balconies, an alternative form of articulation can be developed which does not adversely effect the amenity of the precinct.

10. Conditions 7 and 8 concern matters of detailing. Compliance with them does not result in a substantially different proposal. 

11. Condition 10 requires removal of the proposed balcony over the shopfronts on the South Terrace end of the synagogue.  The condition is directed to meeting an apparent concern of the Heritage Council, shared by Mr Griffiths and Ms Kiera, that the balcony confuses the different stages of the historical development of the site.  The condition thus seeks to ameliorate a perceived detrimental impact of the proposed development on the heritage values of the site.  Removal of the balcony otherwise has no effect on the planning issues associated with the application.  It is a relatively simple and minor change to the proposed physical form of the development.  It is a matter readily dealt with by way of condition of approval and does not require a new application with new plans.  In our view, compliance with the conditions of the Heritage Council advice, either individually or collectively, does not entail a substantially different proposal from that under consideration under these proceedings.  It is open to the Tribunal to approve the proposed development without the submission of new plans, but subject to conditions which ensure that approval is not inconsistent with the advice of the Heritage Council.

12. Condition 4 requires a geotechnical report "to determine if the proposed basement level to the former synagogue can be excavated and appropriately underpinned without undue physical impact on the existing heritage fabric".  In its terms, the condition appears to contemplate the possibility that excavation and underpinning is not possible without undue physical impact but we doubt that the Heritage Council took that view.  Nothing in the evidence adduced at the hearing suggests that the necessary excavation and underpinning is impossible without undue impact.  For our part, we consider that highly unlikely.  Modern engineering techniques are such that irremediable damage can almost certainly be avoided.  The Tribunal's experience is that the question is not whether excavation and underpinning is possible without significant damage, but rather the cost of the measures necessary to avoid damage. 

13. In the context of submissions on this point, the City directed our attention to the decision of the Tribunal in Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 where it was said that:

    "A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] ­ [22])." (original emphasis)

14. In our view, condition 4 of the Heritage Council's advice does neither of those things.  It is merely a condition designed to ensure that the work proposed does not unduly damage the heritage fabric of the buildings.  By its very nature, it is a condition which ensures that the development, which is designed to preserve the heritage of the building, is developed in the way proposed.  At worst, the applicant might consider that complying with the requirements of a report as to the method of underpinning and excavation might be so expensive as to persuade the applicant not to proceed with the development.  The granting of a planning approval does not require an applicant to carry out a development the subject of the approval.  It is always a matter for an applicant as to whether or not it proceeds to develop in accordance with a planning approval.

15. There is no basis for concluding that condition 4 of the Heritage Council's advice provides a basis for the refusal of an application. 

16. A further contention as to the need for amended plans was raised by Mr Bowering in his evidence, although it did not form any part of the issues identified by the parties prior to hearing. That matter concerns the compliance of the building with Part C of the Building Code of Australia (BCA). As Mr Bowering acknowledges, compliance with the BCA is normally a matter dealt with at the building licence stage, rather than in the context of planning consent. He considers, however, that compliance would require amendment to the design which would have an impact on the appearance and function of the building, and thus raises issues of a planning nature.

17. The issue concerns the nature and location of wall openings on the south‑eastern boundary overlooking the Stan Reilly Centre site.  It arose because in June 2006, Mr Kirkness provided some elevations to the City of the south‑eastern and north-eastern elevations of the proposed additions with the balconies removed.  He apparently did so in response to the issue raised by the City as to overhanging balconies.  The elevations showed window openings along the boundary adjoining the Stan Reilly site. 

18. Mr Bowering explained that fire rating requirements under the BCA for buildings of this class that are built to a lot boundary require fire rated construction materials.  He suggested that those requirements prevent window openings abutting the boundary.  He therefore contended that the building could not be developed in accordance with the plans as submitted without the balconies.

19. Mr Bain put forward several alternative solutions to the issue raised by Mr Bowering.  One solution was to set back the building on the Stan Reilly Centre boundary so as to bring the balconies within the boundaries of the site.  He considered that setting the face of the building back 900 millimetres, and reducing the internal space, would satisfactorily resolve the BCA issue.  The extent to which that may impact upon the useable internal space was not fully explored although Mr Bain considered that the impact would not be significant.  That is not a solution which commends itself to the Tribunal.  Mr Bain also suggested that compliance could be achieved by the installation of appropriate sprinkler systems, or the use of different materials such as glass blocks.  A further solution explored at the hearing was simply to provide full height masonry walls on the Stan Reilly boundary.  Internal layout of the affected units would appear to make such an alteration viable.

20. As we observed earlier, provided some reasonable level of articulation is provided to the face of the proposed additions on the south‑eastern boundary, the precise design of that face of the building would not affect the conclusions we have reached as to the acceptable impact of the proposed additions on amenity and heritage conservation.  Final design details will necessarily be resolved in a context of negotiations concerning the consent to the protruding balconies by the owners of the adjoining land, and satisfaction of the requirements of the Heritage Council as to the articulation of those faces of the building.  In that context, and at building licence stage, questions of compliance with the BCA can be adequately dealt with.

21. We do not consider that the fact that compliance with the fire rating provisions of the BCA is finally to be determined at some stage before the issue of a building licence is a reason to refuse the application.

Car parking

1. A further issue raised by the respondents was the inadequacy of parking when measured against the car parking standards prescribed by cl 5.7.2 of LPS 4.  After consultation between the town planning experts, they agreed that car parking should not be used as a reason for refusal but that any car parking that is demanded, if deemed appropriate by the Tribunal, should be dealt with via a requirement for payment of cash in lieu.

2. Mr Bain and Mr Bowering helpfully conferred during the course of the hearing, and prepared a joint statement specifically on the question of car parking.  They considered the parking requirements against the standards prescribed under Pt 5.7 of LPS 4.  That part identifies parking requirements by reference to land use.  There are no parking requirements prescribed under the MRS.  It is appropriate, however, to have regard to the requirements of LPS 4 for the purpose of assessing parking requirements for the proposed development having regard to orderly and proper planning and amenity of the area.

3. Mr Bain and Mr Bowering calculated and agreed that the total area in the proposed development dedicated to the restaurant use was 388.87 square metres.  They also agreed that the communal office space amounted to 128.45 square metres.  They disagreed as to the extent of the existing approved restaurant use.  Mr Bowering was of the view that the existing approved restaurant floor space is 176 square metres based upon the service area shown in building licence 7412 approved on 3 September 1992.  The existing service area incorporates the shopfront (minus bar), the outdoor area (to the lot boundary) and the dining area inside the original structure (minus kitchen).

4. Mr Bain considered that the extra floor area for restaurant use in the proposed development consists of the mezzanine level, the verandah and basement, totalling an area of 140.21 square metres.  On that basis, Mr Bain calculated that the existing approved restaurant use should be taken to be the total proposed floor area for restaurant use less the new areas which he identified.

5. The difference between the two witnesses may well turn on the exclusion of the bar area and the kitchen area as service areas identified on the building licence.  It may otherwise result from variations in measurement which the Tribunal is not able to identify with precision.

6. In the circumstances, we would prefer the evidence of Mr Bowering as to the extent of the proposed use for the purpose of assessing the "existing" parking provided for comparison against the proposed use.

7. On that basis, the following standards apply under LPS 4:

   •restaurant – 1 bay per five square metres dining floor area

   •office – 1 bay per 30 square metres

   •tourist accommodation – 1 bay per unit/bedroom

8. It is accepted that the existing approved restaurant use involving 176 square metres of service area was approved on the basis of the provision of five car parking bays.  Taking that into account, the number of bays required for the restaurant use is five plus one bay per five square metres for the additional area, namely 212.87 square metres.  That provides a requirement of 42.57 car bays.  The scheme also requires the provision of one service bay and three bicycle racks. 

9. It is common ground that five bays are required for the tourist accommodation. 

10. In relation to the office space, the requirement is 4.28 car bays, being one car bay for each five square metres of the total are of 128.45 square metres.  In addition, one service bay and one bicycle rack is required in relation to the office space.

11. As a result, the total parking requirements under the scheme provisions would, before any concessions were made, comprise a total of 56.854, plus two service bays and three bicycle racks.

12. Clause 5.7.3 of LPS 4 permits relaxation of parking requirements.  That clause permits the Council to waive or reduce the standard parking requirements subject to the applicant satisfactorily justifying a reduction due to one or more of the following:

    "(i)the availability of car parking in the locality including street parking,

    (ii)the availability of public transport in the locality,

    (iii)any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces;

    (iv)any car parking deficiency or surplus associated with the existing use of the land,

    …

    (vii)the proposal involves the restoration of a heritage building or retention of a tree or trees worthy of preservation,

    (viii)any other relevant considerations."

13. Clause 5.7.4 permits the Council to require a cash payment in lieu of the provision of parking spaces subject to certain conditions. 

14. Mr Bain and Mr Bowering agreed that reductions would apply to the car parking calculation in the order of 50 to 75 per cent due to the mix of land uses in the development and the area (cl 5.7.3(iii)), and the public transport accessibility of the site and area (cl 5.7.3(ii).  They agreed that a cash in lieu requirement for 48 bays, as originally had been suggested by the City, was unrealistic.  They consider that the actual amount would be in the order of 14 to 28 bays, and allowing for the five bays provided on site, an appropriate requirement for payment of cash in lieu would be in the order of 9 to 23 bays.  Mr Bain considered that there could be further reductions due to the car parking that is available in the area (cl 5.7.3(i)).  The experts considered that the actual requirement could best be dealt with by an analysis of the actual car parking demand and supply in the area.

1. Mr Slarke, on behalf of the City, submitted in closing that it is preferable for the Tribunal to determine the number of parking bays required rather than require, as the experts suggested, a parking demand study to be completed.  He submitted that the Tribunal should determine a requirement for cash in lieu at the upper end of the range provided by the experts.

2. Mr Bain, in his witness statement, identified a significant amount of car parking available in and around the City centre.  He identified a total of 1585 bays within the parking stations controlled by the City of Fremantle all within 400 metres walking distance of the subject site.  He also made reference to the Collie Street car park comprising some 450 bays, which is slightly further away.  From our view of the area, it is apparent that there is considerable street parking in the vicinity.  While we have no doubt that there is significant demand on the existing parking facilities within the City of Fremantle, there is significant availability of car parking in the locality of the proposed development.  Similarly, the City of Fremantle is reasonably well serviced with public transport, being another factor which may be taken into account in relaxing standards.  There are obvious limits on the parking that can be provided on the synagogue site by reason of the existence of the heritage buildings.  In our view it is a most material consideration that this proposal is significantly directed to the restoration and preservation of important heritage buildings.  In all the circumstances, we consider that the reductions in car parking requirements should be at the higher end of the range of 50 to 75 per cent suggested by the town planning experts.  Allowing for the five bays provided on site, we are of the view that there should be a payment of cash in lieu the basis of a shortfall of nine parking bays.  The Tribunal was advised that the City's requirement for cash in lieu is set at $7765 per bay, so that the total amount of cash in lieu to be paid by the applicant is $69,885.

Conditions of approval

1. For the reasons we have indicated, we consider that the application for development should be approved subject to appropriate conditions.  In accordance with the Tribunal's usual procedures, the parties were required to file draft conditions in advance of the hearing. 

2. The respondent suggested 23 conditions that should be imposed if the Tribunal were minded to grant approval.  Most of those were acceptable to the applicant, and in the Tribunal's view are appropriate conditions.  Some of the agreed conditions reflect the conditions of the Heritage Council's advice and thus achieve consistency with that advice. 

3. The applicant did take issue with some conditions.  They were conditions 1, 4, 9, 10, 11, 15(c), 17 and 18.

4. Condition 1 concerns the requirement for substantial commencement of the development.  The condition proposed by the respondents was that "development hereby permitted must substantially commence within 2 years from the date of this decision letter".  The respondent contended that the approval should require commencement within 3 years.

5. The approval sought is the approval under the MRS which does not specify a time for commencement of developments subject of MRS approval.  The condition requiring commencement within a specified time is, of course, commonplace, and is dealt with in cl 10.5.1 of LPS 4.

6. That provision requires substantial commencement within 2 years "or such other period as specified in the approval, after the date of determination".  Because of the need to satisfy the conditions of the Heritage Council advice and similar conditions of any approval by the Tribunal, we agree with the applicant that a requirement for substantial commencement within 3 years is appropriate.  For several years, the applicant has been required to undergo exhaustive processes of redesign to satisfy the heritage requirements of the site, and it is reasonable that that process be given the opportunity to work towards finality without unreasonable time constraints.

7. Condition 4 related to the requirement for a payment of cash in lieu of providing car parking spaces on site.  The dispute between the parties was as to the amount of that payment, we have already dealt with that matter above, and the amount to be specified in the condition should be $69,885.00.

8. The proposed condition 9 requires removal of the fourth level element and a simplification of the detailing of the roof line.  For reasons already discussed in these reasons, we do not consider that the fourth level should be removed.  As to the question of simplification of the roof line, that is a matter to be dealt with through the Heritage Council.  Because we are unsure as to precisely what the condition requires it would be inappropriate to impose any condition other than that details of the roof design are to satisfy any requirements of the Heritage Council under condition 1 of the Heritage Council advice.

9. The proposed condition 10 is, in substance, a reproduction of condition 2 of the Heritage Council advice.  The applicant contends that condition should not be imposed by the Tribunal.  He submits that the sign boarding is in accordance with the City of Fremantle policy DB 86 "signs and hoardings".  He contends that, for reasons provided in Mr Kirkness' evidence, there was no aesthetic basis for the condition.  It is further contended that the sign boards above and through the Parry Street awning are not oversized, are interpretive of the main parapet signs to the 1932 shopfront portion and are contemporary.

10. The requirement for the removal of the vertical fins above the awning is a clear requirement of the conditions of support contained in the Heritage Council advice. In our view, it would be inconsistent with that advice, and would thus be in breach of s 11(3)(c) of the HWA Act to approve the development without a similar condition. For that reason, it is appropriate that the condition be imposed.

11. The proposed condition 11 reads as follows:

    "Proposed balconies to the north-eastern and south-eastern elevation extend beyond the site boundaries, therefore, do not form part of this approval.  In response to the Heritage Council's request for more articulation of these facades an alternative design is to be submitted to the Heritage Council for consideration and recommendation, detailing the articulation to these facades to within the site boundaries."

12. The Tribunal is of the view that the proposed cantilevered balconies should be permitted subject to the approval of Landgate and the City of Fremantle respectively.  If those approvals are forthcoming, then no condition in relation to the balconies is necessary.  If those approvals are not obtained then condition 3 of the Heritage Council advice comes into play.  An alternative design would need to be submitted to the Heritage Council in accordance with its condition.  The approval of the Tribunal to the development, to the extent that it comprises the cantilevered balconies overhanging adjoining land, must be subject to approval of the adjoining landowners.  Proposed condition 11, should be redrawn as follows:

    "Approval of that portion of the proposed development which comprises proposed balconies to the north-eastern and south-eastern elevations extending beyond the site boundaries is conditional upon the consent and approval of Landgate (in relation to the north-eastern balconies) and City of Fremantle (in relation to the south-eastern balconies).  If those approvals and consents are not forthcoming, then, in compliance with condition 3 of the Heritage Council's advice dated 27 February 2006, an alternative design is to be submitted to the Heritage Council for consideration and recommendation detailing the articulation to the facades within the site boundaries."

13. Proposed condition 15 concerns items of conservation works in relation to the 1932 shopfronts.  The proposed condition is a reproduction of condition 7 of the Heritage Council advice.  Issue is taken with the condition in one respect, being the requirement in relation to the restoration of the original façade detailing of the shopfronts.  The applicant contends that the requirement should be for restoration only to the extent shown in the plans lodged in the development application.  It is contended that it is not appropriate to require reconstruction to the balance of the shopfront windows as they are already non‑original and are inappropriate to the proposed use.  The existing bi-fold windows were, according to the applicant, approved by the City of Fremantle when it was the owner of the site. 

14. We can see the merit in the applicant's contention in this regard.  It is, however, necessary to maintain consistency between the Tribunal's approval and the advice of the Heritage Council.  It may be that there is room for further discussion between the applicant and the Heritage Council on this issue.  We would not wish to preclude the potential for ongoing discussion with the Heritage Council on that issue.  The solution to the position is to insert before the wording of the proposed condition 15, the words "subject to any alternative requirement that may be negotiated with the Heritage Council of Western Australia". 

15. Proposed condition 17 requires that all urgent conservation works and the restoration of the original finishes and details to the former synagogue are to be implemented concurrent with the first stage of redevelopment.  That condition adopts condition 9 of the Heritage Council advice.  The applicant agrees that all urgent conservation works should be implemented concurrent with the first stage of redevelopment.  He disagrees however, that the restoration of original finishes and details to the former synagogue should also be implemented at that stage.  He contends that it is more appropriate that the restoration be implemented at the end of the development to avoid any adverse impact from subsequent works.  He therefore suggests deletion of the words "and the restoration of the original finishes and details to the former synagogue" but instead suggests a further condition which provides:

    "Prior to occupation of the development, the applicant is to undertake restoration of original finishes and details of the former synagogue."

16. In our view there is considerable force in the applicant's submission in this regard. But for the constraints of s 11(3)(c) of the HWA Act, we would have imposed a condition in the way suggested by the applicant. We are concerned, however, that to do so would be inconsistent with the Heritage Council advice. It may be that the Heritage Council might, on reflection, review the requirement in condition 9 of its advice. In order to facilitate that possibility, introduction of the same qualification to the condition as we have proposed for proposed condition 15 is appropriate.

17. Proposed condition 18 requires the removal of the verandah/balcony to the former synagogue and reflects the requirements of condition 10 of the Heritage Council advice.  For reasons for which we have already explained, that condition should be imposed. 

Conclusion

1. For the forgoing reasons, we are of the view that the application to commence a mixed residential and commercial development involving conservation additions to existing heritage listed premises at Lot 5, No 92 South Terrace Fremantle dated 2 May 2007 should be approved in accordance with the architectural drawings submitted with the application for planning approval entitled "McKimm Buildings (including former synagogue) 92 South Terrace Fremantle A1-A8" dated November 2005 subject to the following conditions:

   1. The development hereby permitted must substantially commence within three (3) years from the date of this decision letter.

   2.Prior to occupation of the development, the Applicant must lodge for approval by the City of Fremantle a plan showing on site car parking for a minimum of five vehicles at any one time.  The plan lodged for approval must demonstrate compliance with the relevant Australian Standards in all respects, including as to:

   (a)       minimum dimensions of car parking bays;

   (b)       manoeuvring areas; and

   (c)capacity to access the bays via the proposed ramp, having regard to the levels on the site.

   3.Prior to occupation of the development, the car parking and loading area(s), and vehicle access and circulation areas shown on the approved plan, including the provision of disabled car parking, shall be constructed, drained, and line marked.  Thereafter these things must be maintained in good order throughout the life of the development, consistent with the approved plan.

   4.The Applicant shall pay to the City of Fremantle the sum of $69,885 by way of a cash payment in lieu of providing sufficient on site car parking, prior to the commencement of development.

   5.Prior to the commencement of development, detailed drainage plans shall be submitted to the City of Fremantle for approval.  The plans lodged for approval must demonstrate how all stormwater is to be retained on site.

   6. Prior to occupation of the development, stormwater drainage works must be completed in accordance with the approved plan.  Thereafter the approved drainage works must be maintained in working order consistent with the approved plan.

   7.Prior to the commencement of development, a plan showing all proposed rubbish storage areas for each component of the development must be lodged with the City for approval.  The plans must show that the rubbish storage area are screened from public view.

   8.Prior to the occupation of the development, the rubbish storage areas must be provided in accordance with the approved plan, and therefore maintained in good order in accordance with the approved plan.

   9.Details of roof design are to be amended in accordance with any requirements of the Heritage Council pursuant to condition 1 of its advice of 21 February 2006.

   10.Prior to commencement, the Parry Street awning is to be redesigned to delete the vertical fins set perpendicular to the main facade and any new signage provisions are to more closely respond to the original awning and signage used for Beers Furniture Mart.

   11.Approval of that portion of the proposed development which comprises proposed balconies to the north-eastern and south-eastern elevations extending beyond the site boundaries is conditional upon the consent and approval of Landgate (in relation to the north-eastern balconies) and City of Fremantle (in relation to the south-eastern balconies).  If those approvals and consents are not forthcoming, then, in compliance with condition 3 of the Heritage Council's advice dated 27 February 2006, an alternative design is to be submitted to the Heritage Council for consideration and recommendation detailing the articulation to the facades within the site boundaries.

   12.Subsurface condition testing by a recognized geotechnical engineer is to be undertaken to determine if the proposed basement level to the former synagogue can be excavated and appropriately underpinned without undue physical impact to the existing heritage fabric.  A full report on this matter is to be submitted to the Heritage Council for consideration, including any reference to any potential impact on the current proposal, prior to issue of any demolition or building licence for the proposal.

   13.The remnant of the early limestone retaining wall to the Parry Street frontage is to be conserved.

   14. A detailed schedule of conservation works for both the former synagogue and the 1932 shopfronts is to be prepared and submitted to the Heritage Council for consideration. This is to include reference to structural issues, as well as the original internal or external detailing and finishes.

   15. Subject to any alternative requirements that may be agreed with the Heritage Council of Western Australia, conservation works are to provide for the restoration of the external facades to a known earlier state relating to the completion of the shopfronts in c.1932, including:

   (a)Re-instatement of the original extent of the tuck pointed brickwork and rendered detailing to the former synagogue.

   (b)Conservation of original window detailing to the former synagogue.

   (c)Reinstatement of the original facade detailing of the shop-fronts, as evidenced by the photograph included in Volume 2 of the Conservation Plan for former synagogue No. 92 (Lot 1375) South Terrace, Fremantle, Western Australia (August 2004) Appendix V, photograph (vi) and by further investigation of the surviving fabric.  This is to include the face brick detailing to the parapet and plinth levels, the contrasting rendered detailing and the layout/detailing of the shopfront windows and doors.

   (d)Window detailing including the conservation of the extant, original stained glass.

   16.The works are to include conservation of original internal detailing to the hall as described in section 2 of the Conservation Plan.  This work should be informed by further physical investigation and include conservation of:

   (a)       The lime plaster render with dado mould run.

   (b)       The timber ceiling and cornice.

   (c)       The decorative metal ceiling roses.

   (d)     The jarrah flooring.

   17.Subject to any alternative requirements that may be agreed with the Heritage Council of Western Australia, all urgent conservation works and the restoration of original finishes and details to the former synagogue are to be implemented concurrent with the first stage of the redevelopment.

   18. The proposed reconstruction of the former verandah/balcony to the former synagogue is to be deleted from the proposal and the facade returned to a c. 1932 format.

   19.Detailed documentation of the proposed adaptation of the former synagogue hall is to be submitted to the satisfaction of the Heritage Council.  This is to include:

   (a)Further details of the proposed mezzanine within the former synagogue hall, including further physical investigation to determine the extent of the original mezzanine(s);

   (b)A redesign of the north-eastern mezzanine to ensure that it is set off the windows, so as not to impact on the detailing and appreciation of these elements;

   (c)The proposed link between the former synagogue and the new development, including reference to materials, finishes and the physical impact on heritage fabric;

   (d)The proposed entrance doors between the new basement and the courtyard.  It is expected that these doors will be complimentary to the detailing of the existing north-western elevation, but as part of the new basement level, may be of a contemporary design;

   (e)       The proposed stairs within the hall;

   (f)The proposed bar and servery within the hall, and the associated services;

   (g)The proposal to open up the wall between the main hall and the rear lean-to, including further physical investigation to determine of this link originally existed; and

   (h)The construction of a new entry staircase to the front of the hall, including reference to any relevant documentary and physical evidence.

   20.Further details regarding any works required to address universal access to proposed development are to be provided to the satisfaction of the Heritage Council.

   21.A methodology is to be prepared to provide for the professional archaeological monitoring of any excavation works, including a plan of the action to be taken if any artefacts or other archaeological evidence is revealed. This is to be submitted to the Heritage Council for approval prior to the commencement of any works.

   22. An interpretation proposal that responds to the history and significance of the site is to be developed and submitted to the Heritage Council for approval.

   23. Conditions 9 to 22 are to be resolved to the satisfaction of the Heritage Council, prior to the issue of a building licence.

I certify that this and the preceding [141] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT