NGUYEN and CITY OF BUNBURY
[2019] WASAT 23
•2 MAY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: NGUYEN and CITY OF BUNBURY [2019] WASAT 23
MEMBER: MR P DE VILLIERS, MEMBER
HEARD: 8 AND 9 APRIL 2019
DELIVERED : 2 MAY 2019
FILE NO/S: DR 168 of 2018
BETWEEN: HOANG VY NGUYEN
Applicant
AND
CITY OF BUNBURY
Respondent
Catchwords:
Town planning - Development application - Demolition of early 20th century timber cottage - Cultural heritage - Whether cultural heritage of dwelling warrants refusal of development application - Contribution to cultural heritage of a heritage area on heritage list under local planning scheme - Application of policy - Local Planning Policy 6.1: Heritage Conservation and Development - State Planning Policy 3.5: Historic Heritage Conservation - Structural adequacy of the dwelling - Cultural heritage significance of the dwelling - Authenticity - Extent of original fabric - Potential for reconstruction - Burra Charter - Streetscape - Buildings of similar form and scale - Cohesive group of dwellings - 'Saw tooth' arrangement of timber cottages - Contribution of dwelling to streetscape - Contribution of streetscape to the cultural heritage significance of the East Bunbury Heritage Area - Onus - Inconsistency - Precedent - Planning principles that find expression in the policies - No sound basis to depart from policy.
Legislation:
City of Bunbury Local Planning Scheme No 8
City of Bunbury Town Planning Scheme No 7
City of Stirling Local Planning Scheme No 3
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 8, cl 9(1), cl 9(2), cl 67
Planning and Development Act 2005 (WA), s 257B(2), s 257B(3)
Result:
Application for review dismissed and decision of respondent to refuse demolition of 5 Charles Street Bunbury affirmed
Summary of Tribunal's decision:
In March of 2018 an application was made to the City of Bunbury seeking approval for the demolition of the existing dwelling at 5 Charles Street, Bunbury.
On 12 June 2019 the City of Bunbury refused the application given a presumption in the local planning policies in favour of retaining original buildings making a positive contribution to the significance of the heritage area, the contribution of the existing dwelling to the 'saw tooth' setback pattern of the northern section of Charles Street, and the fact that the neglect which the building had faced was not a valid reason to justify demolition.
On 29 June 2018 an application was made to the Tribunal seeking a review of that decision.
While the parties framed their issues somewhat differently the matter before the Tribunal in this review was whether the proposed demolition of the dwelling at 5 Charles Street, Bunbury should be approved. It was not contested that discretion exists within the planning framework to consider the demolition of the dwelling at 5 Charles Street. In this context the question for the Tribunal was that whether, in the particular circumstance of this case, such discretion should be exercised.
Local Planning Policy 6.1: Heritage Conservation and Development provides that the respondent, or the Tribunal in its shoes, may consider demolition on the grounds of 'structural inadequacy'. The evidence of the structural engineering and building experts was that 5 Charles Street was not structurally inadequate and that it was feasible to address the structural issues of the dwelling raised by the experts.
In addressing the question of the cultural significance of the dwelling the applicant identified the loss of authenticity and streetscape heritage values as critical to the assessment.
As to authenticity it was established that while alterations have clearly impacted on the level of integrity of the existing dwelling, the fact that a reasonable amount of significant original fabric remained intact meant the impact had not been so extensive as to render it devoid of cultural heritage significance, and it retained a moderate level of authenticity.
In regard to the streetscape the Tribunal found that 5 Charles Street, which with Nos 1, 3 and 9 formed a cohesive group, made a contribution to the cultural heritage of the Charles Street streetscape. In addition it was found that the streetscape of 1 - 9 Charles Street retained a meaningful level of cultural heritage significance which contributed to the cultural heritage significance of the East Bunbury Heritage Area.
For these reasons the Tribunal found there was no sound basis to depart from the relevant policies and that the review should be dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Hannon and Mr S Jacob |
| Respondent | : | Mr C Slarke |
Solicitors:
| Applicant | : | Young & Young |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Bakker and City of Nedlands [2005] WASAT 106
Branca and City of Stirling [2008] WASAT 69
Dilatte v MacTiernan [2002] WASCA 100
Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Paz and City of Stirling [2011] WASAT 157
Slusarczyk and City of Stirling [2008] WASAT 194
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 27 March 2018 an application for development approval was made to the City of Bunbury (respondent, City, Council) seeking approval for the demolition of the existing dwelling at 5 (Lot 48) Charles Street, Bunbury (subject site).
The application was advertised for public comment and four submissions opposing the demolition were received.
The application was also referred to both the City's Heritage Advisor and, following her advice, to the Heritage Advisory Committee for consideration prior to the presentation of the application to the Council for its determination.
On 12 June 2018 the City refused the proposed development for the following reasons:
1.1The proposed demolition is contrary to State Planning Policy 3.5 Historic Heritage Conservation and the City of Bunbury's local planning policies on heritage, where there is a general presumption in favour of retaining original buildings that make a positive contribution to the significance of the heritage area.
1.2The existing dwelling contributes to the significance of the heritage area and forms part of the rare 'saw tooth' setback pattern.
1.3The building has been neglected through a lack of maintenance and this is not a valid reason to justify demolition under the State Planning Policy.
At the same time the Council also resolved to:
Formally advise the applicant that the City of Bunbury is willing to consider any feasible option for retention and restoration of the dwelling, with additions to the rear of the existing building which are compatible with the fabric and significance of the original building, in accordance with draft Local Planning Policy: Heritage Conservation and Development.
On 29 June 2018 an application was made to the Tribunal seeking a review of that decision.
Site and locality
The subject site is located on the eastern side of Charles Street between Stirling Street to the north and Braund Street to the south and has an area of 749m². It falls within the East Bunbury Heritage Area (EBHA).
The existing dwelling is an early 20th century single storey, hipped and gabled roof, predominantly timber framed worker's cottage. While the asymmetrical form of the dwelling and its presentation to the street remain largely intact the weatherboards on the north and south elevations have been replaced by red brick veneer; original timber framed windows on these elevations have been replaced with aluminium frames; gutters and downpipes are missing; chimney structures have been removed and the interior has suffered vandal damage in a number of places. The residence has been unoccupied for 12 13 years.
The dwelling is centrally located within a group of five single storey cottages characterised by a 'saw tooth' setback pattern to Charles Street.
The land on the western side of Charles Street is currently a public carpark.
The proposed development
While the documentation submitted with the application included plans for a replacement residence, the application form seeking development approval is limited to the demolition of the existing dwelling.
The planning framework
The subject site is zoned 'Residential R15/40' pursuant to the City of Bunbury Local Planning Scheme No 8 (LPS 8 or Scheme).
Regulation 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:
The documents that comprise a local planning scheme are the following -
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text - those provisions[.]
In consequence of s 257B(2) of the Planning and Development Act 2005 (WA) (PD Act) and reg 8(1)(c) and reg 10(4) of the LPS Regulations, the deemed provisions in Sch 2 of the LPS Regulations have effect as part of LPS 8. Furthermore, in consequence of s 257B(3) of the PD Act, if a deemed provision that has effect as part of LPS 8 is inconsistent with another provision of LPS 8, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'.
Clause 8 of the deemed provisions of the LPS Regulations requires that the local government must establish and maintain a heritage list to identify places within the scheme area that are of cultural heritage significance and worthy of built heritage conservation. The City has established a Heritage List.
Clause 9(1) of the deemed provisions of the LPS Regulations establishes powers for local government to designate heritage areas and the City has identified the EBHA, which is considered to have a distinctive character of heritage significance and which is desirable to conserve.
Clause 9(2) of the same provisions requires that if the local government designates an area as a heritage area it must adopt a local planning policy for the area setting out the following:
(a)a map showing the boundaries of the heritage area;
(b)a statement about the heritage significance of the area;
(c)a record of places of heritage significance in the heritage area.
The City has adopted Local Planning Policy 6.1: Heritage Conservation and Development (LPP 6.1).
Clause 67 of the deemed provisions of the LPS Regulations sets out matters to which local government, or the Tribunal on review, is to have due regard in considering an application for development approval. In this review the following matters are relevant to the development the subject of the application:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located[.]
The Western Australian Planning Commission (WAPC) has adopted State Planning Policy 3.3: Historic Heritage Conservation (SPP 3.5).
Issues
The respondent raised the following issue for consideration in this review:
1.Should the proposed demolition of the dwelling at 5 Charles Street, East Bunbury be approved having regard to:
(a)The contribution the dwelling makes to the East Bunbury Heritage Area;
(b)The feasibility of conserving the dwelling; and
(c)Any other relevant policy considerations.
The applicant submitted the following issue:
Should the proposed demolition of the dwelling at 5 Charles Street, Bunbury be approved having regard to:
(a)City of Bunbury Local Planning Scheme 8;
(b)City of Bunbury Local Planning Policy 6.1: Heritage Conservation and Development (LPP 6.1); and
(c)State Planning Policy 3.5: Historic Heritage Conservation (SPP 3.5)?
Background to heritage provisions
On 31 July 1996 the respondent adopted the City of Bunbury Municipal Inventory which included the Stirling Street Heritage Precinct (Place No. 5698). The Management Category Description for the precinct advocated the highest level of protection appropriate and recommended entry into the State Register of Heritage Places. Thedwelling at 5 Charles Street fell within the area designated as the Stirling Street Heritage Precinct.
The City of Bunbury Municipal Inventory dated 30 August 2001 includes the Stirling Street Heritage Precinct (Place No. B158). Thedwelling at 5 Charles Street fell within the area designated on the map of the Stirling Street Heritage Precinct.
In 2003 the Stirling Street Heritage Precinct was designated as the Stirling Street Heritage Area under the former City of Bunbury Town Planning Scheme No 7. In November of that year the City recommended the entry of the Stirling Street Heritage Precinct into the State Register of Heritage Places. The Stirling Street Heritage Precinct remains on the State Heritage Office assessment programme for registration.
On 6 November 2007 the City adopted the Local Planning Strategy for Heritage and Character.
In 2008 the City adopted the following documents:
•Local Planning Policy 61: Stirling Street Heritage Area.
•Local Planning Policy 46: Heritage Conservation and Development Policy for Heritage Place.
•Local Planning Policy: Development Application Process for Heritage Places.
•Local Planning Policy 5.1: 'Draft' East Bunbury Heritage Area.
In the same year the boundary of the Stirling Street Heritage Area was amended by the City. The dwelling at 5 Charles Street fell within the revised area designated as the Stirling Street Heritage Area.
On 21 August 2018 the City adopted Local Planning Policy 6.1: Heritage Conservation and Development. The dwelling at 5 Charles Street falls within the area designated as the EBHA in this policy and in Annexure 1 is designated as making a moderate contribution to the cultural significance of the area.
The Stirling Street Precinct remains on the Heritage Council's assessment programme. The Register Committee has considered a preliminary review and determined it warrants further assessment for possible inclusion in the State Register although it has not been possible to confirm when such an assessment would take place.
Relevant policy provisions
The purpose of LPP 6.1 is stated as follows:
The purpose and intent of this local planning policy is to apply the development control principles contained in State Planning Policy 3.5 Historic Heritage Conservation through the provision of design guidance for the development of heritage places and heritage areas established pursuant to the Local Planning Scheme.
The objectives of the policy included the following:
(a)To encourage the built heritage conservation and protection of places and areas of cultural heritage significance in accordance with the principles of the Burra Charter and the objectives of the City of Bunbury's Local Planning Strategy.
(b)To conserve existing buildings identified as making an 'exceptional', 'considerable' or 'moderate/some' contribution to the cultural heritage significance and character of a heritage place or high/moderate contribution to a designated heritage area[.]
In regard to demolition the policy sets out the following provisions:
…
(c)An application for the demolition of all or part of a building either on the Heritage List or a assessed as a contributory building in the heritage area may be required to demonstrate that the building fabric to be demolished is of little or no individual cultural heritage significance, and that any demolition will not have any impact on any associated significant fabric.
(d)Demolition approval will not be considered on the grounds of economic/other gain for the redevelopment of the land; however, the local government may consider demolition approval on the grounds of structural inadequacy, subject to a structural engineer's report undertaken by a suitably qualified engineer. This will need to be considered with the Heritage Impact Statement[.]
SPP 3.5 was adopted by the WAPC in 2007.
The objectives of SPP 3.5 include:
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
•To ensure that heritage significance at both the State and local levels is given due weight in planning decision-making[.]
In dealing with demolition of a heritage place (including a place within a heritage area) SPP 3.5 sets out the following provisions:
•Demolition of a State heritage place is rarely appropriate and should require the strongest justification. Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests with the applicant to provide a clear justification for it.
•Demolition approval should not be expected simply because redevelopment is a more attractive economic proposition, or because a building has been neglected. Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places.
On 21 August 2018 the City adopted Local Planning Policy 6.2: Heritage Listing, Assessment and Concessions (LPP 6.2).
The purpose of LPP 6.2 is set out as follows:
The purpose and intent of this local planning policy is to set out the administrative and procedural requirements by which the local government will promote and safeguard the protection and enhancement of places of cultural heritage significance and worthy of built heritage conservation for present and future generations. In particular, this local planning policy sets out the assessment and referral process for guiding the exercising of discretion in the determination of applications for development approval and the granting of a rates concessions with respect to heritage places.
The objectives of LPP 6.2 include the following:
…
(b)To encourage the built heritage conservation and protection of places of cultural heritage significance in accordance with the objectives of the City of Bunbury's Local Planning Strategy.
(c)To provide certainty to landowners and the community regarding the procedure for the identification and determination of a place's cultural heritage values and levels of significance.
(d)To provide certainty to landowners and the community regarding the procedure for making and assessing applications for development approval of heritage places and in heritage areas[.]
Clause 5.2 of LPP 6.2 addresses levels of cultural heritage significance for development assessment and management. The clause sets out the following criteria:
(a)The cultural heritage value of a place is assessed according to criteria relating to aesthetic, historic, scientific, cultural and social values. A place will be considered to have cultural heritage significance in the Scheme area if it meets one or more of these criteria.
(b)The level of cultural heritage significance of a place is determined according to criteria relating to rarity, representativeness, condition, integrity and authenticity. As detailed in Table 1 below, a place's level of significance is one of the matters to be considered by the local government when assessing and exercising its discretion in determining an application for development approval.
For places identified as having some/moderate significance Table 1 of cl 5.2 sets out the following:
Level of Significance
Description
Management Category
Some/Moderate Significance
Contributes to the heritage of the locality. Has some altered or modified elements, not necessarily detracting from the overall significance of the item.
Conservation of the place is desirable.
Any alterations or extensions should reinforce the significance of the place and original fabric should be retained wherever feasible.
The condition of the dwelling at 5 Charles Street
The evidence before the Tribunal on the condition of the dwelling at 5 Charles Street includes a report dated 10 March 2017 prepared by Mr Graham Teede an experienced chartered builder for the applicant. Mr Teede concludes:
There appears to be very little of the original dwelling that is sound enough for it to be substantially restored to a habitable state. It is the opinion of the writer that the building is not viable to be retained in any form.
Mr Teede did however recommend that some elements of the dwelling should be retained for reuse as they are reflective of the style and period.
A further report by Mr Teede dated 5 July 2018 identifies a number of items in the roof structure which require attention and would, in his view, require substantial rework and replacement of a considerable portion of the structure to make it compliant to current timber framing codes. In an email dated 17 July 2018, Mr Teede expresses the view that the roof frame and posts to the front of the dwelling are original. He did however, note that the posts are not bearing on stumps or bearers.
Mr Daniel Rose, a structural engineer from Engenuity Engineering (Engenuity), engaged by the applicant to assess the structural condition of the dwelling provided the initial structural report dated 11 September 2017 in which he concludes:
Given the age of the building it is considered that the structure is in a fair to reasonable condition and, in general, could be reutilised with some maintenance and repair works being undertaken.
A second report by Engenuity authored by Mr Alan Byrne for the applicant and dated 27 July 2018, sought to identify parts of the dwelling which would require replacement for the purpose of making the building structurally sound, and set out matters requiring rectification. These include the north and south external brick walls, the bracing of timber studs, deflecting ceiling hangers, and roof framing. However, this report also notes that the timber studs appear in reasonable condition for the age of the structure, as do the internal masonry walls at fireplace locations, and that there are no obvious signs of timber degradation or distress in the subfloor structure to which the assessor had access.
A further report commenting on the structural integrity of the dwelling was provided by Mr Peter Suckling, the principal structural engineer of Civil and Structural Engineers, for the respondent.
Mr Suckling inspected the property internally and externally and set out the remedial work required to bring the building up to standard. This includes removing the external brickwork on the northern and southern walls, replacing the timber decking to the verandah, improved support for the the verandah posts and an additional rafter to the front verandah, and a range of remedial work on the roof structure.
Mr Suckling concluded that overall the structural condition of the dwelling is good for its age, considering the obvious lack of maintenance and that the costs of carrying out the necessary structural works is not excessive.
In a joint witness statement prepared by the structural engineers and building expert , Mr Teede, Mr Byrne and Mr Suckling, the experts agreed:
•the owners would get a safer and more substantial roofing structure by removal of the existing roofing structure and its replacement with a new structure;
•the existing roof structure could also readily be rectified by the installation of additional strutting beams between existing walls, with these strutting beams used to additionally support ceiling hanging beams, new underpurlins where required, and roof rafters and ridge boards;
•the roof has survived two cyclonic events and a number of storms which had damaged rooves on many residential and commercial buildings within 600 metres of the subject site;
•replacing the verandah timbers and sub-floor, and verandah roof structure would provide a new construction. This should include the replacement of the floor structure and stirrups to support the verandah posts;
•the masonry on the north and south walls is failing and should be removed and the timber subframe reclad; and
•the building sub-structure maintains its structural integrity.
Does the heritage value of the dwelling warrant refusal of the development application
The planning evidence
Mr Anthony Pick provided expert planning evidence for the respondent.
Mr Pick notes that the City of Bunbury Local Planning Strategy seeks to 'encourage and facilitate the identification, retention and conservation of heritage areas and places' and in his view the loss of original housing stock, which is identified as contributing to the cultural significance of the area, would be inconsistent with the overarching intent of the local planning strategy and the aims of the Scheme.
In assessing SPP 3.5 Mr Pick draws attention to the following provisions:
•Clause 6.2 requires that local government adopt a local planning policy for heritage areas designated under local town planning schemes and that the respondent has adopted LPP 6.1 which sets out policy guidance for the EBHA.
•Clause 6.6 requires that an assessment of a proposed demolition within a heritage area should consider the level of heritage significance of the place, the structural condition of the place and whether the place is capable of adaptation to a new use.
•In addition cl 6.6 establishes a presumption of retaining buildings that make a positive contribution to the significance of the area. It suggests demolition of a local heritage place should be avoided whenever possible, that demolition approval should not be expected simply because redevelopment is a more attractive proposition and the onus rest with the applicant to provide a clear justification for demolition.
Mr Pick concluded that any justification for demolition under SPP 3.5 needs to be assessed against:
•the contribution the dwelling makes to the East Bunbury Heritage Precinct;
•the feasibility of conserving the dwelling; and
•any other relevant policy considerations.
In addressing LPP 6.1, Mr Pick draws attention to Map 1 in Appendix 1 which he argues is consistent with the State Heritage Office guidance on assessing local heritage places and areas. This map identifies the subject dwelling as having a 'moderate' contribution to the cultural heritage significance of the heritage area.
Having reviewed the relevant provisions of the planning framework Mr Pick concludes that, in his view, the main issue at the centre of the review before the Tribunal is the level of cultural heritage significance of the existing dwelling and what contribution the dwelling makes to the broader cultural significance of the heritage area.
In this regard he argued that whilst having some altered and modified elements the dwelling is still identifiable as a simple framed worker's cottage built in the early part of the 20th century and makes a positive contribution to the streetscape and cultural heritage significance of the area. In regard to the latter Mr Pick argues the dwelling contributes to the streetscape by reason of its form and scale, retaining much of its original form, as well as providing an understanding of the development of the area.
For these reasons Mr Pick argued that the demolition of 5 Charles Street is contrary to the statutory and planning policy framework. While he concedes that both the condition of a building and the feasibility of conservation are relevant considerations, in his view, the applicant has not demonstrated that the building is structurally unsound or that its conservation is not feasible.
Finally, Mr Pick confirmed that in his view, vehicular access could be provided to the rear of the subject site should the existing dwelling be retained.
Heritage evidence of Mr Kent Lyon
In evidence, the Tribunal has a Heritage Impact Statement dated 13 March 2018 prepared by Mr Lyon, a heritage architect for the applicant. Mr Lyon while noting that '[t]he plan and elevations reflect the asymmetrical form remains intact' observed a range of changes to the original structure which included red brick veneers to the north and south elevations, the removal of original widows to these facades, the removal of chimneys from the roofline up and missing guttering and downpipes.
Mr Lyon commented on the initial reports provided by Mr Teede and Engenuity but concluded '[n]either report conclusively condemns the building structure or proves structural inadequacy with a need to further investigations left open ended'.
In assessing the development impact based on the 'moderate contribution' to the significance of the EBHA, Mr Lyon noted that '[h]owever, the demolition of the place may pose a negative impact on the overall significance of the heritage area should be given serious consideration at planning application stage and permission for demolition scrutinised'.
In addition Mr Lyon recognised that loss of original building stock could detrimentally impact on heritage significance. Mr Lyon was not called to give evidence.
Heritage evidence of Ms Laura Gray
The Heritage Impact Statement provided by Ms Gray, a heritage and conservation consultant includes the following Statement of Significance:
Number 5 Charles Street, a single-storey, timber-framed brick, Asbestos, weatherboard and Zincalume clad house, in the Interwar Bungalow architectural style, has little heritage significance as an example of c.1920s workers' housing, in the 'saw tooth' setback at the north end of Charles Street. Despite its scale, form and setback, the low degree of authenticity, intactness and integrity has a detrimental impact of the Charles Street streetscape and East Bunbury Heritage Area.
Ms Gray noted that a local planning policy has a Statement of Significance stating that the area is of high cultural significance and suggests that some of the reasons that could have relevance to 5 Charles Street which include; mixture of working class houses; modest timber framed and clad houses in vernacular style typical of railway or wharf worker's cottages from early to mid-twentieth century; and, the unusual 'saw tooth' arrangement of timber cottages in the area including the north end of Charles Street where No 5 is located.
While Ms Gray's assessment conceded that the residence 'is similar in form and scale to the immediate context' and 'the aesthetic significance of the place lies predominantly in the form and scale, and the "saw tooth"' setback the assessment concludes that 'its low level of intactness, integrity and authenticity detracts from, rather than contributes to, the high level of cultural significance of the EBHA'.
In addition Ms Gray undertook a survey of EBHA which in her view revealed a number of inconsistencies with regard to the contributing levels of significance set out in Map 1 in Annexure 1 of the LLP 6.1. Such inconsistencies she argued raise questions in terms of the contributions of both the subject dwelling and those in the immediate vicinity. For this reason, and the fact that neither the City's Heritage List nor the EBHA specifically identify Nos 1, 3, 5 and 9 as a cohesive group, she argued that this group does not demonstrate a cohesive cultural group.
Ms Gray concluded:
Heritage values cannot be retrieved once diminished or lost; No 5 Charles Street evidences a significant loss of original fabric and intactness of the place that no amount of restoration can replace. The feasibility of restoring to a viable function is not reasonable nor reinstates any heritage value of the place given the extent of loss of original fabric.
This conclusion is based on a contention that 5 Charles Street is of a '[l]ittle/no' level of contribution to the EBHA. This contention clearly runs counter to the '[m]oderate' level of contribution assigned to the dwelling in Annexure 1 to LPP 6.1.
More broadly the assessment argues inconsistencies of the contribution assessments are evident throughout the EBHA. This in essence represents a more general attack on the veracity and integrity of the respondent's existing policy. It should be noted that the levels of significance in the current policy are consistent with Map 1 which was included in the 'Draft' East Bunbury Heritage Area policy adopted by the respondent in 2008.
Heritage evidence of Ms Annabel Wills
Ms Wills, the heritage expert called by the respondent, confirmed that LPP 6.1 allocates a 'moderate' level of contribution to the dwellings at Nos 1, 3, 5 and 9 Charles Street. However she argued that, while if those places are considered in isolation they each have moderate cultural heritage significance, a fundamental aspect of the value of the Charles Street properties is that together they form a cohesive group.
Ms Wills argued that the Statement of Significance includes a specific reference to the northern section of Charles Street and the unusual 'saw tooth' arrangement of the timber cottages in that area. In her view if considered together, Nos 1, 3, 5 and 9 Charles Street make a high level of contribution to the EBHA.
In Ms Wills' view externally the dwelling has a moderate to high level of intactness and that the later cladding is easily removable and replaceable with materials to match the original. Any such reinstatement of earlier materials would not reduce the significance of the place.
Ms Wills argued that the dwelling has a moderate level of authenticity. The original form and alignment of the dwelling clearly remain as does much of the original fabric. In her view, the dwelling also has a high level of integrity as there is long-term viability in the retention of the identified values, and there is high ability for the place to be restored.
In conclusion she did not see any reason why the dwelling could not be restored, adapted and extended in an appropriate manner to suit modernday living requirements.
Ms Wills argued that the original (significant) fabric of 5 Charles Street includes the overall form of place, the building structure, the plan form and the remaining original material of the place which includes the subfloor, timber floorboards, wall structure and linings and a range of original details.
In conclusion Ms Wills argued the dwelling makes a positive contribution to the EBHA and more specifically to the northern section of Charles Street and should be retained for the following reasons:
•The heritage significance of the dwelling individually;
•The place's significant contribution as part of the group to the EBHA;
•The policy provisions which indicate it is desirable that a place which contributes positively to a heritage area should be retained;
•The reports viewed and the inspections carried out indicate that the place is not structurally unsound and is in a fair condition for its age; and
•The options available for the dwelling to be adapted to meet the owner's needs.
Joint witness statement of the heritage experts
A joint witness statement was provided by the heritage experts Ms Gray and Ms Wills. In this statement the heritage experts agreed:
•5 Charles Street is in the EBHA and that heritage area is of a high level cultural heritage significance;
•The original part of the building was constructed c 1920;
•The building is a single storey, hipped and gabled roof, predominantly timber framed worker's cottage;
•The architectural style is Interwar Bungalow;
•The east side of Charles Street contains most of its original dwellings; and
•5 Charles Street is one of five residences (Nos 1, 3, 5, 7, and 9) that have similar setbacks in a 'saw tooth' formation. Of these 7 Charles Street is a 'new build' (1970).
The opinions of the heritage experts diverged on the following matters in relation to 5 Charles Street:
•the degree of cultural significance;
•its contribution to the EBHA;
•its degree of authenticity and intactness;
•its potential to be conserved and whether its conservation would benefit the community; and
•the impact of change to the streetscape.
In essence the view of Ms Gray was that the dwelling 'demonstrates little/no heritage significance'. This view draws on her contentions that the residence 'demonstrates a low degree of authenticity and intactness of original fabric', the 'extent of the required introduction of new material … would impact what little remains of the original fabric of the place, and the removal of original fabric renders the residence a negative element in the streetscape'.
In contrast it is Ms Wills' view that 5 Charles Street does have cultural significance and makes a positive contribution to the EBHA. This is based on the contentions that the dwelling forms an element of a cohesive group of dwellings which 'make a high level of contribution to the EBHA'; that 'a significant proportion of its original fabric remains'; that the residence 'has a moderate level of authenticity'; and that there is a 'high potential for the place to be restored'.
Tribunal considerations
Introduction
While the parties framed their issues somewhat differently the matter before the Tribunal in this proceeding is whether the proposed demolition of the dwelling at 5 Charles Street, Bunbury should be approved.
It is not contested that discretion exists within the planning framework to consider the demolition of the dwelling at 5 Charles Street. This is explicitly provided both in cl 4.1 of LPP 6.1 and cl 6.6 of SPP 3.5. In this context the question for the Tribunal is that whether, in the particular circumstance of this case, such discretion should be exercised.
Relevant provisions
The criteria against which the proposed demolition should be evaluated are framed by the relevant objectives of LPP 6.1 and SPP 3.5 which read as follows:
Local Planning Policy 6.1: Heritage Conservation and Development
(a)To encourage the built heritage conservation and protection of places and areas of cultural heritage significance in accordance with the principles of the Burra Charter and the objectives of the City of Bunbury's Local Planning Strategy.
(b)To conserve existing buildings identified as making an 'exceptional', 'considerable' or 'moderate/some' contribution to the cultural heritage significance and character of a heritage place or high/moderate contribution to a designated heritage area.
(Emphasis added)
State Planning Policy 3.5: Historic Heritage Conservation
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
(Emphasis added)
Within this framing, these policies establish specific tests against which proposals for demolition are to be assessed.
At cl 4.1 LPP 6.1 states:
(a)Demolition or removal of significant original fabric is a permanent change that cannot be reversed, contrary to the objectives of the policy, and should be avoided wherever possible.
…
(c)An application for the demolition of all or part of a building either on the Heritage List or a assessed as a contributory building in the heritage area may be required to demonstrate that the building fabric to be demolished is of little or no individual cultural heritage significance, and that any demolition will not have any impact on any associated significant fabric.
(d)Demolition approval will not be considered on the grounds of economic / other gain for the redevelopment of the land; however, the local government may consider demolition approval on the grounds of structural inadequacy, subject to a structural engineer's report undertaken by a suitably qualified engineer. This will need to be considered with the Heritage Impact Statement[.]
(Emphasis added)
At cl 6.6 SPP 3.5 states:
•Demolition of a State heritage place is rarely appropriate and should require the strongest justification. Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests with the applicant to provide a clear justification for it.
•Demolition approval should not be expected simply because redevelopment is a more attractive economic proposition, or because a building has been neglected. Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places.
(Emphasis added)
Structural inadequacy
The initial report prepared by Mr Rose dated 11 September 2017 concluded that:
Given the age of the building it is considered that the structure is in a fair to reasonable condition and, in general, could be reutilised with some maintenance and repair works being undertaken.
The second report from Engenuity, attached to the witness statement of Mr Byrne does nor resile from this conclusion and states that '[t]his report should be read in conjunction with a previous report undertaken by Engenuity Engineering' dated 11 September 2017.
Mr Suckling, in his witness statement concluded that 'overall the structural condition of the building is good for its age, considering the obvious lack of maintenance[.]'
Nothing in the joint witness statement of Mr Teede, Mr Byrne and Mr Suckling contradicts these findings. In addition the joint statement sets out in some detail the requirements and options available to remedy the structural issues raised in their various reports and witness statements.
In opening, counsel for the applicant submitted:
We don't really quibble, as you would have gathered from the joint expert statement of Mr Suckling, Mr Byrne and Mr Teede about the structural issues. (ts 10.32 am, 8 April 2019)
On this basis, the Tribunal finds that the dwelling at 5 Charles Street is not structurally inadequate and that it would be feasible to address the structural issues of the dwelling identified by the experts.
The cultural heritage significance of the dwelling
In opening, counsel for the applicant submitted:
The big issues, the big ticket items in this case, Sir, will turn upon the competing approaches of Ms Gray and Ms Wills; it really is going to come down to that.
(ts 10.32 am, 8 April 2019)
and
Another important part of our case will be the idea of fabric and authenticity; that what has happened, regardless of who's to blame, but what has happened over the years in respect of 5 Charles Street is, in terms of its external fabric - its lost its authenticity.
(ts 10.37 am, 8 April 2019)
and
The other point that we will be making is that streetscape is very important in this case. The evidence shows that the only relatively unblemished streetscape heritage values in Charles Street are on the side of the street where 1, 3, 7, 7, and 9 are.
(ts 10.37 am, 8 April 2019)
Level of authenticity
Authenticity is defined in the Criteria for the Assessment of Local Heritage Places and Areas (a State Heritage Office document in evidence) as follows:
The extent to which the fabric is in its original state, generally graded on a scale of High, Medium or Low.
Is not contested that 5 Charles Street does not have a high level of authenticity; Ms Gray suggests a low degree of authenticity while Ms Wills suggests a moderate level of authenticity.
In response to questions from counsel for the respondent the heritage experts generally agreed on the extent of fabric in its original state as follows:
•timber verandah posts agreed;
•three windows on the front elevation Ms Wills agreed, Ms Gray suggested possibly;
•front door, side light, fan light agreed;
•timber gable agreed agreed; and
•timber barge boards Ms Wills agreed, Ms Gray suggested possibly.
The uncontested evidence of Mr Suckling was that it would be possible to retain the existing roof sheeting while addressing the structural issues associated with the roof raised by the experts.
Ms Wills argued the dwelling can easily be reinstated and later additions such as cladding is easily removable and could be replaced with materials to match the original which would not reduce the significance of the place.
Ms Gray effectively rejected the potential role of reconstruction for 5 Charles Street.
I don't know that it is an appropriate form of conservation; it certainly doesn't add any value to the heritage significance of a place.
(ts 1.57 pm, 8 April 2019)
Mr Peter Hannon, counsel for the applicant, also challenged the applicability of reconstruction in the current proceeding on the basis that cl 7 of LPP 6.1 (Meaning of Terms) did not include reconstruction. The Tribunal does not accept this submission.
In Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 the Tribunal, at [41], cited a number of authorities on this issue:
In Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ said, at 502):
'[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.'
See also PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at 158 to similar effect speaking generally of town planning schemes, and see further Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [25]: '[P]lanning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach'; '[A]lthough planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament'. It has been relatedly observed on more than one occasion that '[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them': Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402.
The option of reconstruction is specifically included as an acceptable example of protective care included in the Burra Charter (which was in evidence and is referenced in LPP 6.1).
Moreover, Mr Hannon conceded in closing that:
The fact that LPP 6.1 refers to it (the Burra Charter) is reason of itself to inform the construction of LPP 6.1 and more relevantly the exercise of discretion thereunder.
(ts 2.14 pm, 9 April 2019)
Furthermore, cl 4.4 of LPP 6.1 makes specific provision for the replacement of fabric.
However, in closing, counsel for the applicant raised a broader issue as to retention:
The whole idea of retaining the frontage to 5 Charles Street and extending out the back is a heritage contradiction in terms it is no longer going to be a little old workers cottage.
(ts 2.52 pm, 9 April 2019)
It is the uncontested evidence of the heritage experts that the existing rear addition is of no significance.
However, LPP 6.1 deals in some detail at cl 4.5 with the question of adaptation, and at cl 5.2 with alterations and additions to existing buildings. These provisions when read with Article 22 of the Burra Charter give force to the accepted principle that encourages sympathetic additions to buildings having cultural heritage significance subject to minimal impact on the cultural significance and a sympathetic response to the heritage values of the area.
In regard to the question of the level of significance of 5 Charles Street the Tribunal prefers the evidence of Ms Wills that 5 Charles Street has moderate significance for the following reasons.
While 5 Charles Street has clearly suffered the loss of some of the original fabric, the introduction of intrusive elements and considerable neglect the evidence demonstrates that a reasonable amount of significant original fabric remains intact.
Importantly, even allowing for Ms Gray's caveats on the windows and barge boards, and any consideration of internal features, this includes the existing roof, the verandah posts and roof, the front door, side light and fan light, the timber gable and timber framing. These are all elements of the dwelling which present to Charles Street.
This fabric represents an example of both an original working class home in terms of form, scale and setback and comprises part of an arrangement of timber cottages on the unusual 'saw tooth' alignment specifically mentioned in the Statement of Significance set out in cl 1.2.2 of LPP 6.1.
It is also clear that the current planning provisions could potentially facilitate both reconstruction, and sympathetic alterations and additions to the dwelling without undermining its contribution to the heritage significance of the EBHA.
For these reasons the Tribunal finds, while the alterations have clearly impacted on the level of integrity of the existing dwelling, the fact that a reasonable amount of significant original fabric remains intact means this impact has not been so extensive as to render it devoid of cultural heritage significance and it retains a moderate level of authenticity (LPP 6.2 Table 1 of cl 5.2).
Streetscape
Counsel for the respondent put a number of contentions to the heritage experts.
The first contention was:
The streetscape with the exception of No 7 remains a streetscape of heritage buildings of a similar form and scale.
(ts 1.48 pm, 8 April 1019)
Both heritage experts agreed.
The second contention was:
It is also the case is it not that with the exception of No 7 the dwellings between 1 and 11 Charles Street are all original dwellings.
(ts 1.49 pm, 8 April 2019)
Both heritage experts agreed.
In addition the heritage experts agreed that No 7, which is not an original dwelling, does not contribute to the heritage values of the EBHA.
Ms Gray argued that the street in the locality of the subject dwelling is not a highly intact streetscape. This is based on her view that No 7 Charles Street is not an original dwelling, the authenticity of No 5 and No 9 Charles Street are in question and this is the only single sided residential street in the EBHA.
In assessing the evidence of the heritage experts, essentially Ms Gray argued that the extent of the loss of original fabric means that 5 Charles Street has little or no cultural heritage significance and that the dwelling is detrimental to the heritage streetscape which, in her view, is not in any event a highly intact streetscape.
Ms Wills argued that 'the cultural heritage significance of the group of dwellings at 1, 3, 5, and 9 Charles Street' is that 'a fundamental aspect of their value is that together they form a cohesive group' and that if considered together they make a high level of contribution to the EBHA. Ms Wills contends that the allocation is consistent with other groups of places specifically mentioned in the Statement of Significance which reads as follows:
This has led in some locations (e.g. Ednie Street, the northern section of Charles Street and part of Moore Street) to an unusual 'saw tooth' arrangement of timber cottages; which is rare, if not unique, in a West Australian residential context.
As noted above in response to a question from counsel for the respondent the heritage experts agreed the streetscape, with the exception of No 7 Charles Street, remains a streetscape of heritage buildings of a similar form and scale.
In the joint witness statement of the heritage experts, Ms Gray conceded that 'the form, scale and setback are the only elements of 5 Charles Street that make any contribution to the high degree of cultural heritage significance of the EBHA'.
In opening, the applicant conceded 'the only relatively unblemished streetscape heritage values in Charles Street are on the side of the street where 1, 3, 5, 7, and 9 are' (ts 10.38 am, 8 April 2019).
Ms Wills argued that 5 Charles Street retains much of the original fabric, has a moderate heritage significance, and that Nos 1, 3, 5 and 9 together form a cohesive group within the EBHA which make a high level of contribution to the EBHA.
In response to questioning by counsel for the respondent, Ms Gray conceded that the dwelling at 5 Charles Street contributed to three of the four aspects of the cultural significance of the EBHA set out in the Statement of Significance included in LPP 6.1, although she noted a new build could also contribute to the 'saw tooth' arrangement of dwellings (ts 2.24 pm, 8 April 2019).
Based on this evidence the Tribunal makes the following findings:
•The Tribunal accepts the evidence of the heritage experts that the streetscape, with the exception of No 7 Charles Street, remains a streetscape of heritage buildings of a similar form and scale.
•In this context the Tribunal accepts the evidence of Ms Wills that a fundamental aspect of the value of Nos 1, 3, 5 and 9 Charles Street is that together they form a cohesive group.
•Given that 5 Charles Street is an original dwelling which maintains its form, scale and setback and forms part of a cohesive group the Tribunal finds it makes a contribution to the cultural heritage value of the Charles Street streetscape.
•While compromised by the loss of original fabric at No 5 Charles Street, the new build at No 7 and the changes to No 9, the Tribunal finds the streetscape of 1 9 Charles Street, in maintaining a streetscape of heritage buildings of similar form and scale, retains a meaningful level of cultural heritage significance.
•Given the finding above, and the fact that the 'saw tooth' arrangement of the northern section of Charles Street streetscape is specifically addressed in the Statement of Significance for the EBHA, the Tribunal finds that the streetscape of Nos 1 9 Charles Street (with the exception of No 7) contributes to the cultural heritage significance of the EBHA.
Onus
Mr Hannon, raised concerns over the provision in SPP 3.5 which at cl 6.6 in dealing with the demolition of a heritage place (including a place within a heritage area) stated '[t]he onus rests with the applicant to provide a clear justification for it' (ts 2.49 pm, 9 April 2019).
His submission was that it was a rare case which turns on onus.
This was a question addressed in Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 where the Court of Appeal of the Supreme Court of Western Australia found at [115] and [122] as follows:
115.In a review proceeding before the Tribunal, it is generally undesirable to refer even to a 'practical onus' of proof. That is because reference to an 'onus', even if what is being referred to is only a practical onus, tends to distract from the critical terms of the legislation which define and delimit the Tribunal's powers and the circumstances in which those powers may be exercised. … However, even where an onus arises from the nature of the power being exercised by the Tribunal, it is better to employ the statutory language of the provision which defines the conditions for the valid exercise of the power which the Tribunal exercises.
…
122.… Under s 27(2) of the SAT Act, the purpose of the review is to 'produce the correct and preferable decision at the time of the decision upon the review'[.]
Inconsistency
In addition, counsel for the applicant raised two of what he regarded as substantive issues in regard to the inconsistency of decisionmaking by the respondent. These issues related firstly to the 'glaring inconsistencies' (ts 2.42 pm, 4 April 2019) in the level of significance assigned to various properties in the EBHA and, secondly, to the decision of the respondent to allow the demolition of 35 Charles Street.
As Malcolm CJ observed in Dilatte v MacTiernan [2002] WASCA 100 at [61]:
Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice.
In Bakker and City of Nedlands [2005] WASAT 106 the Tribunal at [26] noted:
Additionally, the AAT in Re Secretary, Department of Social Security and Lea (1993) 31 ALD 789, at 798 said that it was 'mindful of the need for consistency in decision-making on [its part] unless it is convinced that a particular decision or line of authority is wrong or there is a sound basis for distinguishing one case from another'; citing Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 639[.]
Firstly, in regard to the level of significance assigned to various properties in the EBHA by LPP 6.1 as was made clear in the hearing, it is not the Tribunal's function to investigate such matters, still less to effectively re-write such instruments.
In Slusarczyk and City of Stirling [2008] WASAT 194 (Slusarczyk) the Tribunal at [40] [42] stated:
Finally, the Tribunal observes that a very large part of the applicants' case was devoted to raising wider issues of heritage policy issues, or attacking the processes that led to, or the assumptions that underlay the current policy reflected in the instruments discussed above. These assertions were vigorously rejected (and in some detail) by Mr Maull in several pages of his written submissions.
As was explained by the Tribunal during the hearing of this matter, it is not the Tribunal's function to 'investigate' such matters, still less to effectively re-write such instruments. Rather, it is the Tribunal's task to apply such instruments faithfully in accordance with the maker's intention. Where policy is expressed as it is here, mainly in legislative form and is otherwise rational and capable of application it ought to be applied as it was intended. This is so whether or not 'better' models of regulation might exist or can be imagined. Similarly, any exercise of discretion should have regard to the underlying purposes of the instrument empowering the decision-maker to exercise their discretion.
Here, those underlying purposes are tolerably clear: demolition of property of the type we are concerned with in an HPA will ordinarily require a very significant, if not compelling, case to be made in its favour. The history and context, if not the express words of the heritage protection scheme itself, all support such an interpretation. Moreover, speaking generally, SPP 3.5 now arguably requires such a standard from local authorities.
In the somewhat different, although still relevant, context of a heritage list rather than a policy in Klopper and City of Fremantle [2008] WASAT 138 at [42] the Tribunal stated:
The Tribunal is not in a position to review the process of the listing of a place on the Council's Heritage List. The Scheme clearly contemplates that items on the list do have cultural heritage significance and are worthy of conservation. The fact that the site is listed on the Heritage List is a relevant consideration in the exercise of planning discretion. Indeed, it would be an error of law not to regard it as such[.]
Secondly, the decision by the respondent to approve the demolition of 35 Charles Street is to be differentiated from the proposed demolition the subject of this review for the following reasons.
Mr Suckling, who in evidence confirmed he was involved with that matter on behalf of the respondent and had undertaken a site visit of the premises with Council staff and the Regional Heritage Advisor, Ms Annette Green. His uncontested evidence was that 35 Charles Street '… didn't have much structure' and that '[t]he walls were no longer in contact with the floor structure … it was in a very poor state'. In contrast he considers '5 Charles Street has a high degree of structural integrity' (ts 11.22 am, 8 April 2019).
In regard to the determination by the respondent of the application for the demolition of 35 Charles Street, both LPP 6.1 (at cl 4.1(d)) and SPP 3.5 (at cl 6.5) provide discretion to consider the demolition of a place on the heritage list or within a heritage area if it is 'structurally inadequate' or depending on 'the structural condition'.
Conclusion
In Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198 the Tribunal stated at [34]:
... an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24][.]
In Adbooth Pty Ltd and City of Perth [2007] WASAT 76 the Tribunal made the following observations at [209]:
As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. However, "the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application"[.]
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 the Supreme Court found at [182] as follows:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
(Emphasis added)
Precedent
In closing submissions both parties raised a number of previous decisions by the Tribunal in dealing with applications for the demolition of dwellings within a heritage area.
As these applications fell within the City of Stirling it is important to provide some background to the relevant provisions of the applicable planning framework prior to dealing with the specific cases raised.
The City of Stirling Local Planning Scheme No 3 (Scheme No 3) includes at cl 6.6 specific provisions for the Heritage Protection Area Special Control Area which include the following objectives:
a)To ensure the conservation and retention of buildings within the Heritage Protection Area Special Control Area dating from the early 1900s to the 1950s where the architectural style of the building is generally intact;
b)to ensure the retention of existing buildings referred to in a) irrespective of whether the demolition of the building would have no adverse impact on the streetscape;
…
Therefore the 'presumption against demolition' Slusarczyk and Branca and City of Stirling [2008] WASAT 69 (Branca) in heritage areas in the City of Stirling is not only included within Scheme No 3 but is specific in applying to buildings dating from the early 1900s to the 1950s. These provision are supported by policy provisions though the Character Retention Guidelines Mt Lawley, Menora and Inglewood.
With those caveats the Tribunal has approved the demolition of dwellings in the heritage area.
In Paz and City of Stirling [2011] WASAT 157 the Tribunal found at [53]:
In this case the Tribunal finds that while the subject dwelling is generally intact, it is questionable whether it meets the criterion of a good example of housing from the early 1900s and inter-war period, and its contribution to the HPA and the streetscape is undermined by the fact that its setback substantially reduces its visibility from the street and is at variance with the other dwellings in the street.
In Rampono and City of Stirling [2014] WASAT 20 the Tribunal found at [37] [38]:
[T]he built form on the south-western side has little consistency, and includes a large 1970s two and three storey multi-unit development on a larger than usual lot with an untraditional street presentation, a grouped dwelling development immediately adjacent to the subject site to the west, and a modern replacement dwelling on the lot immediately to the east.
[W]hile the subject dwelling is, in itself, a relatively intact pleasant example of its time and scale, it has lost its immediate context and sits, as described above, within a significantly eroded streetscape.
In the former case the existing dwelling was at variance with the streetscape and in the latter case the streetscape was significantly eroded. As neither of these circumstances apply in the matter under review these cases are to be distinguished from the current proceeding.
In addition the Tribunal has on a number of occasions dismissed applications seeking approval for the demolition of a dwelling in the heritage areas in the City of Stirling.
In Branca the Tribunal found at [53]:
In regard to the question of the cultural heritage value of the existing dwelling, the Tribunal finds that while the alterations to the existing dwelling have clearly impacted on the level of integrity of the existing dwelling the fact that it is still 'representative of its architectural style' suggests this impact has not been so extensive as to render it devoid of cultural heritage significance.
In Campbell and City of Stirling [2008] WASAT 254 the Tribunal found at [66] and [67]:
In this instance the Tribunal finds that while the existing house has undergone changes, the form of the house and its location on the site are representative of its architectural style. While evidence was led that the condition of the house has 'deteriorated to some degree', no evidence was provided that it was structurally unsafe or irredeemable.
The Tribunal therefore finds that if the existing residence were to be retained, it would continue to make a contribution to the character of an overall streetscape largely characterised by traditional houses, while its removal would further undermine a section of the streetscape already compromised by new development which does not conform to the Guidelines.
These cases are of more relevance in that they establish that dwellings which have undergone change may still both retain cultural heritage significance and contribute to the character of the streetscape.
Importantly, however, in Branca the Tribunal at [67] stated:
The objective of the Guidelines to 'retain and conserve original buildings ... particularly those dating from the early 1900s to the 1950s' creates a general presumption in favour of retaining such buildings. However, such a policy aspiration is not determinative of the matter and individual applications are required to be assessed on their merits.
Findings
Based on the evidence before it in this proceeding the Tribunal has made the following findings:
1)The residence at 5 Charles Street is not structurally inadequate and that it would be feasible to address the structural issues of the dwelling identified by the experts.
2)While the alterations have clearly impacted on the level of integrity of the existing dwelling the fact that a reasonable amount of significant original fabric remains intact means this impact has not been so extensive as to render it devoid of cultural heritage significance and it retains a moderate level of authenticity.
3)The streetscape, with the exception of No 7 Charles Street, remains a streetscape of heritage buildings of a similar form and scale.
4)A fundamental aspect of the value of Nos 1, 3, 5 and 9 Charles Street is that together they form a cohesive group.
5)In this context 5 Charles Street makes a contribution to the cultural heritage of the Charles Street streetscape.
6)The streetscape of Nos 1 9 Charles Street, in maintaining a streetscape of heritage buildings of similar form and scale, retains a meaningful level of cultural heritage significance.
7)The streetscape of Nos 1 9 Charles Street contributes to the cultural heritage significance of the EBHA.
The planning principles that find expression in the policies, and specifically objective (b) and cl 4.1(a) of LPP 6.1, cl 6.6 of SPP 3.5 and cl 67(a), (b), (c), (g) and (l) of the LPS Regulations, are relevant to this particular application and based on the findings set out above there is no sound basis to depart from these provisions. Therefore, given the evidence before the Tribunal in this proceeding, the policies should be applied and the decision of the respondent to refuse approval for the demolition of the dwelling at 5 Charles Street be affirmed.
For these reasons the review is dismissed and the decision of the respondent affirmed.
Orders
For the reasons set out above:
1.The application for review is dismissed.
2.The decision of the respondent to refuse the demolition of the dwelling at 5 Charles Street Bunbury is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR P DE VILLIERS, MEMBER
2 MAY 2019
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