NORTH FREMANTLE JV PTY LTD and CITY OF FREMANTLE

[2022] WASAT 70

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   NORTH FREMANTLE JV PTY LTD and CITY OF FREMANTLE [2022] WASAT 70

MEMBER:   MS C BARTON, MEMBER

MR R POVEY, MEMBER

HEARD:   19 AND 20 JULY 2022

DELIVERED          :   19 AUGUST 2022

FILE NO/S:   DR 57 of 2022

BETWEEN:   NORTH FREMANTLE JV PTY LTD

Applicant

AND

CITY OF FREMANTLE

Respondent

Catchwords:

Town planning - Development application - Demolition of industrial warehouse - Cultural heritage significance - Conditions of approval requiring retention and conservation of certain structures - Heritage-protected place - Heritage area - Whether limited or no cultural heritage significance - Whether significant contribution to broader cultural heritage significance and character of locality - Whether contributory place - Whether contribution to streetscape - Asbestos containing materials - Asbestos contamination

Legislation:

City of Fremantle Local Planning Scheme 4, Sch 1, cl 1.6.1(f), cl 1.14.1, cl 4.14, cl 4.14.1, cl 4.14.2
Evidence Act 1906 (WA)
Heritage Act 2018 (WA), s 5(1), s 5(2), s 7, s 42, s 90, Pt 4
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1A, cl 1A(1)(f), cl 7, cl 8, cl 9, cl 9(1), cl 9(2), cl 9(2)(c), cl 11, cl 61(1), cl 61(1)(b), cl 67(2)
Planning and Development Act 2005 (WA), s 112, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 29(3), s 31, s 32(1), s 32(2)(a), s 32(2)(b)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Applicant	:	Ms B Moharich
Respondent	:	Mr J Skinner

Solicitors:

Applicant	:	Moharich & More
Respondent	:	Thomson Geer - Perth

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

Australian Communist Party v The Commonwealth (1951) 83 CLR 1

Do Carmo and City of Fremantle [2009] WASAT 169

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

Kakulas and City of Stirling [2013] WASAT 168

Klopper and City of Fremantle [2008] WASAT 138

Koltasz Smith & Partners v Western Australian Planning Commission (2000) SR (WA) 266

Mackinlay and City of Fremantle [2013] WASAT 84

Permanent Trustee Australia Limited and City of Wanneroo (1994) 11 SR(WA) 1

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Slusarczyk and City of Stirling [2008] WASAT 194

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 11 October 2021, North Fremantle JV Pty Ltd (applicant) applied to the City of Fremantle (respondent or City) under the City of Fremantle Local Planning Scheme 4 (LPS 4) for development approval to demolish the existing warehouses and office building (proposed demolition) located at 90 Bracks Street, North Fremantle (subject land or site).

2. On 17 March 2022, the City approved the proposed demolition subject to conditions (development approval) including the imposition of conditions 2, 3 and 9 that relate to the retention of certain built elements on the site because of their purported cultural heritage significance.

3. The site is located in the North Fremantle Heritage Area, a heritage­protected place.  It is contaminated with asbestos fibres due to the presence of asbestos containing materials, including roof sheeting and cladding, which have deteriorated over time.

4. By application lodged on 30 March 2022, the applicant sought review by the Tribunal of the City's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) and the removal of conditions 2, 3 and 9 from the development approval. On 25 May 2022, the City reaffirmed its original decision in respect of the development approval following reconsideration of its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (City's decision).

5. For the reasons set out in this decision, we conclude that the application should be allowed. The Tribunal will vary the City's decision by deleting conditions 2, 3 and 9 from the development approval.

The issues for determination

1. Clause 4.14.1 of LPS 4 provides that development approval for the demolition of a building or structure will only be granted where Council (or the Tribunal on review) is satisfied that the building or structure has limited or no cultural heritage significance, and does not make significant contribution to the broader cultural heritage significance and character of the locality in which it is located.

2. Consequently, the following issues arise for determination in this proceeding:

   1)Do the buildings and structures the subject of conditions 2, 3 and 9 have limited or no cultural heritage significance?

   2)If the answer to 1) is in the affirmative, do the buildings and structures make a significant contribution to the broader heritage significance and character of the locality in which they are located?

   3)If the answer to 2) is in the negative, should the Tribunal exercise its discretion to permit the demolition of the structures?

Conditions 2, 3 and 9

1. The conditions imposed on the development approval that are the subject of review in this proceeding are as follows:

   2.The following structures and/or buildings are excluded from the demolition approval and all original fabric, not including asbestos roofing or other replacement claddings shall be conserved on site, be made structurally sound where necessary, and be maintained, all in accordance with a Preservation Management Plan to the satisfaction of the City of Fremantle:

   a.The three (3) central structural bays of the Massey Harris Buildings, measuring approximately 38 metres in east-west width, and to a minimum depth of at least 25 metres measured northwards from the original Vaughan Street boundary are to be conserved.  The original fabric of this portion of the building may be temporarily dismantled and stored in accordance with the approved Preservation Management Plan. All other original timber trusses of the c.1928 Massey Harris Buildings are to be salvaged and stored so as to be available for re-use as part of any future conservation works, including any conservation works requiring reinstatement and/or interpretation.

   b.The two structural bays of the J Gadsden Buildings located on the western side of the site with a frontage to Bracks Street of approximately 38 metres and a frontage to the former Vaughan Street of approximately 28 metres.

   c.The masonry facade wall that formed the southern elevation of both the Massey Harris Buildings and J Gadsden Buildings, including the facade walls that unified these buildings together, measuring approximately 73 metres in length located on the north side of the former Vaughan Street road reserve. The wall is to be retained in situ.

   3.Prior to the issue of a Demolition Permit, a detailed Preservation Management Plan shall be submitted that demonstrates the demolition methodology, specifically the removal of the timber trusses of the Massey Harris Buildings, and ongoing protection of the structures required to be retained to the satisfaction of the City of Fremantle. All works shall be undertaken in accordance with the plan. The Preservation Management Plan shall;

   a.Identify those timbers that are being removed and preserved.

   b.Include photographs and other such information as may be required to describe, document and identify the preserved timbers.

   c.Sets out measures to be taken by the owner and/or applicant to store and preserve the timbers.

   d.Sets out measures for the protection of the remaining structures on site.

   9.Prior to commencement of works the owner shall enter into a legal agreement with the City of Fremantle, drafted by the City's solicitors at the expense of the owner and be executed by all parties concerned that ensures the implementation and ongoing compliance with the Minutes - Planning Committee 2 March 2022 99/186 Preservation Management Plan to the satisfaction of the City of Fremantle.

The subject land

1. The subject land is 1.6863 hectares in area and is comprised of 25 individual lots bounded by Walter Place to the north, the Fremantle railway line to the east (railway line), Irene Street to the south and Bracks Street to the west.  The applicant is the registered owner of the subject land with the land title details of each lot set out in Annexure A.[1]

   [1] Exhibit 4, page 258.

2. The subject land contains several industrial buildings, including buildings identified as:[2]

   a)Massey-Harris Co. Ltd (constructed pre-1936)

   b)J. Gadsden Pty Ltd (constructed 1937-1939)

   c)Irene Street Block West (constructed circa 1954-1965)

   d)Irene Street Block East (constructed circa 1954-1965)

   e)Corner Office (constructed circa 1966-1974)

   [2] Respondent's Amended Statement of Issues, Facts and Contentions (SIFC), para 5.

3. The subject land is zoned 'Industrial' under the Metropolitan Region Scheme (MRS).  A portion of the subject land falls within Planning Control Area 158 (as declared by the Western Australian Planning Commission (WAPC) under s 112 of the PD Act).[3]  As a consequence, the proposed demolition requires development approval from the WAPC.  The WAPC granted development approval on 5 January 2022.[4]

   [3] Witness statement of Jarrod Nathan Ross dated 12 July 2022, Exhibit 11, para 18 and Annexure 4.

   [4] Parties' Combined Bundle of Documents, Exhibit 4, page 464; Application for review, Exhibit 1, pages 111­113.

4. The subject land is zoned 'Industrial' under LPS 4 and is located within the North Fremantle Heritage Area, which is a heritage area[5] designated under cl 9 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) as an area that requires special planning control to conserve and enhance the cultural heritage significance and character of the area.

   [5] Schedule 1 to LPS 4 defines a 'heritage area' to mean an area of heritage and character value having a distinctive nature, which may contain elements of only minor significance but heightened collective significance, and within whose boundaries controls may be necessary to retain and enhance its character.

5. Consequently, the subject land is a 'heritage-protected place' pursuant to cl 1A(1)(f) of the Deemed Provisions and as defined in cl 7 of the Deemed Provisions.[6]

The Tribunal's review jurisdiction

[6] Respondent's SIFC, para 6.

1. By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[7]  

   [7] Section 18, SAT Act.

2. Where a condition of a development approval is the subject of the application for review, as is the case in this proceeding, the Tribunal will not generally embark on a review of the City's decision to approve the proposed development.[8]  The Tribunal's review of the conditions imposed by the City is by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[9]

   [8] Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) SR (WA) 266 at 274.

   [9] Section 27, SAT Act.

3. The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[10] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[11] 

   [10] Section 32(2)(a), SAT Act.

   [11] Section 32(1), SAT Act.

4. The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[12]  The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[13] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.

The conduct of the proceeding and expert evidence

[12] Section 27(1), SAT Act.

[13] Section 32(2)(b), SAT Act.

1. The parties adduced expert evidence from heritage architects, all of whom we found to be reliable witnesses.  The applicant relied on the evidence of Mr Philip Griffiths, who is a Principal of Griffiths Architects and Ms Flavia Kiperman who is a Principal/Director of Element.  The respondent relied on the evidence of Mr Kent Lyon, who is a Principal of Kent Lyon Pty Ltd.  Each of the expert heritage architects prepared witness statements for the purposes of the proceeding and attended the final hearing to give oral evidence.

2. In 2015 and 2021, Mr Griffiths (with historian, Mr Eddie Marcus, who was not called as a witness) prepared reports examining the site history of the area which includes the subject land.[14]  Based on these reports, Mr Griffiths provided his assessment of the heritage impact of the proposed demolition.[15]  In March 2022, Mr Griffiths prepared an archival record which included a photographic record made from the exterior and interior of the buildings on the subject land.[16]  Mr Griffiths' evidence included consideration of the generally accepted conservation principles and The Burra Charter:  the Australia ICOMOS[17] Charter for Places of Cultural Significance, 2013 (The Burra Charter).[18]

   [14] North Fremantle Industrial Sites Site History, November 2015 (Exhibit 12); and updated March 2021.

   [15] Application for review, Exhibit 1, pages 13-16.

   [16] Witness statement of Philip John Griffiths dated 12 July 2022, Exhibit 9, para 10.

   [17] International Council of Monuments and Sites.

   [18] Witness statement of Philip John Griffiths dated 12 July 2022, Exhibit 9, para 15.

3. Ms Kiperman prepared a heritage impact assessment in February 2022 which included an internal inspection of the buildings located on the subject land.[19]  Ms Kiperman's assessment also included consideration of the heritage impact assessment prepared by the City's heritage officer.[20]

   [19] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, paras 8-9; Parties' Combined Bundle of Documents, Exhibit 4, pages 321-341.

   [20] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, paras 10, 27, 29, 33-36.

4. Mr Lyon was engaged by the respondent to review the various heritage assessments that have been prepared for the site, including that of Mr Griffiths and Ms Kiperman and also the Heritage Impact Assessment prepared by the City and the Bracks Street Heritage Comment prepared by Hocking Heritage and Architecture.[21]  He was asked by the respondent to provide an opinion on whether or not the buildings and places the subject of those reports have some significance in the context of the North Fremantle Heritage Area having regard to cl 4.14.1 of LPS 4 and the provisions of City of Fremantle Local Planning Policy 3.6 Heritage Areas (LPP 3.6).[22]

   [21] Bracks Street Heritage Comment, Hocking Heritage and Architecture, Parties' Combined Bundle of Documents, Exhibit 4, page 305.

   [22] Witness statement of Kent Lyon dated 12 July 2022, Exhibit 7, para 6.

5. Mr Griffiths and Ms Kiperman completed their assessments of the subject land in accordance with established heritage practices, in line with The Burra Charter which is identified as the key document guiding the management of heritage places in City of Fremantle Local Planning Policy 1.6 Heritage Assessment and Protection (LPP 1.6) and LPP 3.6.[23]  In contrast, the scope of Mr Lyon's engagement by the respondent was narrower and, therefore, his assessment was necessarily limited.  In oral evidence, Mr Lyon confirmed that he had not undertaken an assessment of the subject land in accordance with established assessment criteria, such as The Burra Charter, as he had only been commissioned to provide a 'desktop' review of the other heritage assessment reports.[24]  Mr Lyon also confirmed he had not visited the subject land to inform his opinions.[25]  For these reasons, we prefer the evidence of Mr Griffiths and Ms Kiperman to that of Mr Lyon to the extent it is inconsistent.

   [23] Parties' Combined Bundle of Documents, Exhibit 4, pages 182, 189.

   [24] ts 29, 19 July 2022.

   [25] ts 29, 19 July 2022.

6. The applicant relied on the evidence of Mr Jarrod Ross, a town planning consultant with Taylor Burrell Barnett.  The City relied on the evidence of Ms Chloe Johnston, a qualified town planner who is the Manager of Development Approvals at the City.  Both town planning experts prepared a witness statement and attended the final hearing to give oral evidence.

7. Finally, the applicant relied on the evidence of Jordan Hare with respect to the presence of asbestos containing materials on the subject land.  Mr Hare is a licensed asbestos assessor and principal consultant with Meta May Environmental Pty Ltd.  Mr Hare also prepared a witness statement and attended the final hearing to give oral evidence.

8. At the commencement of the final hearing on 19 July 2022, the Tribunal had the benefit of a site view attended by the legal representatives of the parties and expert witnesses, Ms Johnston, Mr Lyon, Ms Kiperman and Mr Griffiths.  Due to the presence of asbestos containing materials in the buildings, the view was limited to the exterior of the buildings from the boundaries of the subject land at street level and its immediate surrounds.  Internal photographs of the relevant buildings formed part of the expert heritage evidence, including images of those elements which the City seeks to retain pursuant to condition 2 of the development approval.

The planning framework

1. The relevant planning instruments which we have considered in determining the application are summarised in Annexure B, and include:

   1)LPS 4 which incorporates the Deemed Provisions

   2)LPP 1.6[26]

   3)LPP 3.6[27]

   4)MRS

   5)State Planning Policy 3.5 - Historic Heritage Conservation (SPP 3.5)

The Tribunal's consideration

[26] LPP 1.6 as amended on 23 March 2022.

[27] LPP 3.6 as adopted on 23 March 2022.

1. One of the aims of LPS 4 is to protect and conserve Fremantle's unique cultural heritage.[28]

   [28] LPS 4, cl 1.6.1(f).

2. Condition 2 of the development approval proposes the retention of certain built elements (structures) from the Massey-Harris & Co. Ltd building (Massey-Harris building) and the J. Gadsden Pty Ltd building (Gadsden building).  In relation to the Massey-Harris building, condition 2(a) includes the conservation of the three central bays (which may be temporarily dismantled and stored) as well as all other timber trusses to be salvaged and stored so as to be available for reuse.  In relation to the Gadsden building, conditions 2(b) and 2(c) respectively require the retention in situ of two structural bays on the western side of the site with a frontage to Bracks Street, and the masonry façade and façade walls that form the southern elevation of both buildings.

3. The exact portions of the structures that will be retained is dependent on the details of the Preservation Management Plan that is required by condition 3 of the development approval.[29]

   [29] ts 126, 20 July 2022.

4. The Massey-Harris building is a pre-1936 building from the inter­war period.  Massey-Harris Co. Ltd imported farm equipment through the Port of Fremantle which was assembled on the site and then distributed to the agricultural regions of Western Australia, including the Wheatbelt.[30]  A heritage impact assessment carried out by the City's heritage officers following a site visit in November 2021 describes the Massey-Harris building as follows:[31]

   Dating from the Inter-War period and associated with the Massey­Harris Co. Ltd, this is one of the earliest buildings on site.  The building is roughly rectangular with three gable roofs running north to south.  The north end of the building has retained its timber gable vents but the south end was modified when it was extending (sic) in the early 1960s.  Aerial photos show that existing corrugated asbestos cement sheet roofing with matching verge capping, ventilators and ridge vents was installed in the early 1960s replacing earlier corrugated steel sheeting with a trim deck profile above.  This is not an original wall cladding and its use across the site suggests that it was replaced as part of a later project to upgrade the complex.

   [30] North Fremantle Site History Report, March 2021, Griffiths Architects, Exhibit 1, page 30.

   [31] Parties' Combined Bundle of Documents, Exhibit 4, page 273.

1. The Gadsden building was constructed in two stages around 1937 to 1939.  J. Gadsden Pty Ltd manufactured products including cans, mattresses, sheets and bags, canvas for tarpaulins and hatch covers for shipping.[32]  The heritage impact assessment undertaken by the City's heritage officers describes the Gadsden building as follows: [33]

   The building was built in two stages.  The eastern half had been constructed by 1936 and the western half and the brick, south facing face that unifies the two halves of the building had been constructed by 1940.  The western façade is constructed from painted, red face brickwork.  It is a late example of the Federation warehouse style and shows the influence of classical composition in the way that [the] façade is modulated with expressed mass brickwork structural elements such as engaged piers, beams and entablature.  Each half of the façade is divided into four bays by the engaged piers and each bay contains a 12 pane, steel windows.  The façade has a parapet that conceals the corrugated steel sheet clad gabled roof.  The façade has a small return on Bracks Street but most of this elevation the standard wall cladding with a dado red, stretcher bond, face brick with corrugated steel sheeting with a trim deck profile above.

   [32] Parties' Combined Bundle of Documents, Exhibit 4, page 271.

   [33] Parties' Combined Bundle of Documents, Exhibit 4, page 273.

2. Both the Massey-Harris building and Gadsden building (buildings) used to face the former Vaughn Street, which was closed in 1965 and incorporated into the subject land.  There is a small return with some original fabric of the façade of the Gadsden building on Bracks Street.[34]

   [34] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, para 31.

3. The buildings have been significantly altered.[35]  The City's heritage officers identified the nature of the alterations and concluded that the inter-war and post-war era industrial buildings have little heritage significance or landmark quality and do not contribute to a significant streetscape.[36]  The heritage impact assessment supported the proposed demolition provided that an archival record of the buildings was prepared.[37]

   [35] Witness statement of Philip John Griffiths dated 12 July 2022, Exhibit 9, para 24; Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, para 30.

   [36] Parties' Combined Bundle of Documents, Exhibit 4, page 275.

   [37] Respondent's SIFC para 12; Parties' Combined Bundle of Documents, Exhibit 4, pages 267-281.

4. We will next consider whether the buildings and structures have limited or no cultural heritage significance for the purposes of the first limb of cl 4.14.1 of LPS 4.

Do the buildings and structures have limited or no cultural heritage significance?

1. In Mackinlay and City of Fremantle [2013] WASAT 84 at [22], the Tribunal described the process of inquiry under a former scheme provision which was in the same terms as cl 4.14.1 of LPS 4, as follows:

   The Tribunal will firstly address the level of cultural heritage significance of the existing dwelling.  If it is found to be 'limited or none' then the Tribunal will need to determine whether the existing dwelling makes a significant contribution to the broader cultural heritage significance and character of the locality.  If the Tribunal is satisfied that the dwelling has both, limited or no cultural heritage significance, and does not make a significant contribution to the broader cultural heritage and character of the locality then planning approval for its demolition may be granted.

2. The test in the first limb of cl 4.14.1 of LPS 4 is whether a building or structure has limited or no cultural heritage significance.

3. The expression 'cultural heritage significance' in LPS 4 has the meaning given in s 5(1) of the Heritage Act 2018 (WA) (Heritage Act) as follows:

   Cultural heritage significance means aesthetic, historic, scientific, social or spiritual value for individuals or groups within Western Australia.

4. Section 5(2) of the Heritage Act provides that cultural heritage significance may be embodied in a place itself and in any of its fabric, setting, use, associations, meanings, records, related places and related objects.

The parties' contentions and evidence

1. It is the City's position that the buildings are of cultural heritage significance and, by the imposition of condition 2, seeks to retain certain built elements (structures).  In support of its position the City relied on the evidence of Mr Lyon.  Mr Lyon is of the opinion that the buildings and structures meet the threshold of having some cultural heritage significance because they demonstrate a way of life and associations with the former industrial character of the area.[38]

   [38] Statement of evidence of Kent Lyon dated 12 July 2022, KL-2. paras 58 and 61.

2. In contrast, the applicant contends that the buildings and structures are of limited cultural heritage significance and relied on the evidence of Mr Griffiths and Ms Kiperman.  Ms Kiperman observed that the buildings, which used to face Vaughn Street, now form part of a single industrial site.  She further observed that only a small return of the original building presents to the Bracks Street streetscape and the remainder, including the entrance portal with classical composition, is located within private property.[39]  In Ms Kiperman's opinion, the buildings are generic industrial buildings with limited cultural heritage significance.[40]

   [39] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, para 31.

   [40] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, para 36.

3. The evidence of Mr Griffiths and Ms Kiperman is consistent with the findings of the City's heritage officers.  It is also consistent with the heritage assessment conducted by Hocking Heritage and Architecture which reached the following conclusion about the impact of demolition on the heritage values of the buildings:[41]

   The original sections of the Massey Harris building and the J Gadsden building are reflective of early industrial development in the area but both have lost much of their original fabric which impacts on their authenticity and any potential heritage significance they may demonstrate.  They are not exemplars of their form rather they are representative of general warehouse development form the Inter-War and Post-War years, with no outstanding features and are in variable condition.  The buildings on the site are not considered to demonstrate heritage significance in their own right.

Findings

[41] Bracks Street Heritage Comment, Hocking Heritage and Architecture, Parties' Combined Bundle of Documents, Exhibit 4, page 319.

1. Pursuant to cl 61(1) of the Deemed Provisions, development approval for the demolition of a warehouse is required where the works are located in a 'heritage-protected place'.[42]

   [42] Deemed Provisions, cl 61(1) Table, item 2.

2. The expression 'heritage-protected place' is defined in cl 1A of the Deemed Provisions to include a place that is entered in (or under consideration for entry in) the State Register of Heritage Places under s 42 of the Heritage Act (State Register), is on a local government heritage list established under cl 8 of the Deemed Provisions (local heritage list) or is within a heritage area as defined in cl 7 of the Deemed Provisions. The expression 'heritage-protected place' also includes a place that is the subject of an order under Pt 4 of the Heritage Act or is the subject of an agreement that has been certified under s 90 of the Heritage Act.

3. The site is not included on the State Register or on the City's local heritage list.[43] There was no dispute, and we find, that the site is within the North Fremantle Heritage Area which is a 'heritage-protected place' for the purposes of cl 1A(1)(f) of the Deemed Provisions.[44] We further find that the site does not otherwise meet the definition of a 'heritage­protected place' for the purposes of cl 1A(a)-(e) of the Deemed Provisions.

   [43] Parties' Combined Bundle of Documents, Exhibit 4, page 267.

   [44] Schedule 1 to LPP 1.6, page 52.

4. In considering an application under cl 4.14.1 of LPS 4 for the demolition of a building or structure, the Council (and the Tribunal on review) must have regard to any heritage assessment required under cl 11 of the Deemed Provisions.[45]  Although we did not require heritage assessments of the site to be produced at the final hearing, we consider that the findings contained in them are relevant to our determination.

   [45] LPS 4, cl 4.14.2.

5. Based on the heritage assessments before us, and the evidence of Mr Griffiths and Ms Kiperman, which we accept, we are satisfied that the buildings and structures have limited cultural heritage significance for the purposes of the first limb of cl 4.14.1 of LPS 4.  Whilst the buildings reflect the former use and industrial character of the area, we find that they comprise generic warehouse development which has been substantially altered over time and has lost much of its original fabric.  Consequently, for these reasons, we find that the buildings and structures have little to no cultural heritage significance.

6. We will next consider whether the buildings and structures contribute to the broader heritage significance and character of the locality in which they are located.

Do the buildings and structures make a significant contribution to the broader heritage significance and character of the locality in which they are located?

1. The test in the second limb of cl 4.14.1 of LPS 4 is whether a building or structure makes a significant contribution to the broader cultural heritage significance and character of the locality in which it is located.

2. The subject land is located within the North Fremantle Heritage Area, which is a designated heritage area for the purposes of cl 9(1) of the Deemed Provisions. The City is required by cl 9(2) of the Deemed Provisions to adopt a local planning policy for the area when it designates a heritage area.[46]  The City has adopted LPP 3.6 for the North Fremantle Heritage Area, which is to be read in conjunction with LPP 1.6.[47]

   [46] See also SPP 3.5, cl 6.2.

   [47] LPP 3.6, Exhibit 4, page 188.

3. Relevantly, cl 2 of LPP 3.6 refers to places within heritage areas being either 'contributory' or 'non-contributory' to the significance of the area.  A contributory place will generally include places on the local heritage list but may also include places which are not individually listed.[48]

   [48] LPP 1.6, cl 3; Exhibit 4, page 183.

4. The expression 'place' is not defined in LPP 3.6 but s 7 of the Heritage Act provides that the term 'place' means a defined or readily identifiable area of land and may include buildings, structures, other built forms, and their surrounds. Similarly, The Burra Charter defines 'place' to mean a geographically defined area which may include elements, objects, spaces and views, and have tangible and intangible dimensions.[49]

   [49] Article 1.1, The Burra Charter.

5. Clause 2 of LPP 3.6 provides that a 'contributory place' includes representative examples of a place type, period or style and places which contribute to the streetscape.  It also includes a place which combines with other related places to demonstrate the historic development of a heritage area.  Clause 2 of LPP 3.6 provides:

   Places within heritage areas can be defined as either 'contributory' or 'non-contributory' to the significance of the area.  Contributory places may include places which are not individually heritage listed.  Contributory places are determined by Council having due regard to an assessment against the criteria of the Burra Charter¹ and may include representative examples of a place type, period or style, places which contribute to the streetscape; and/or one which combines with other related places to demonstrate the historic development of a heritage area.

   Where mapping of contributory places has not been undertaken for a Heritage Area, or has not been completed due to the inaccessibility of the site or the inability to fully reveal the existence of potentially (sic) fabric of cultural significance, this will be assessed upon planning application.

   ¹ Refer Local Planning Policy 1.6 – Heritage Assessment and Protection

6. The applicant observed that the test in the first paragraph of cl 2 of LPP 3.6 as to whether a place in a heritage area makes a significant contribution to that area goes beyond the two limbs of cl 4.14.1 of LPS 4.[50]  On this basis, the applicant contends that cl 2 of LPP 3.6 fetters the Tribunal's statutory discretion in cl 4.14.1 of LPS 4 and, therefore, is contrary to the doctrine that 'a stream cannot rise higher than its source'.[51] 

   [50] ts 115, 20 July 2022.

   [51] See Kakulas and City of Stirling [2013] WASAT 168 at [22]. The doctrine is applied in constitutional law: see Australian Communist Party v The Commonwealth (1951) 83 CLR 1 per Fullagar J at 258.

7. The development of government policy guides the exercise of statutory discretion and has the benefit of aiding consistency in decision-making: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634 (Re Drake) at 644 (Brennan J). We consider that cl 2 of LPS 3.6 provides guidance to decision-makers on the types of places (which includes buildings or structures) that are considered to make a significant contribution to a heritage area and how they may do so, such as contributing to the streetscape. That guidance is of assistance in determining whether a building or structure makes a significant contribution to the broader cultural heritage significance and character of the area in which it is located for the purposes of cl 1.14.1 of LPS 4, particularly those buildings or structures located in heritage areas. Consequently, for these reasons, we do not accept the applicant's contention that the first paragraph of cl 2 of LPS 3.6 fetters or changes the test in cl 4.14.1 of LPS 4.

8. We will next consider whether the building and structures are a 'contributory place' for the purposes of cl 2 of LPS 3.6.

Are the buildings and structures a contributory place?

1. It is the applicant's position that the buildings and structures do not meet the requirements of a 'contributory place' as defined in cl 2 of LPP 3.6 and, therefore, they do not contribute to the broader heritage significance and character of the locality for the purposes of the second limb of cl 4.14 of LPS 4. The applicant relied on the evidence of Mr Griffiths and Ms Kiperman in support of its contentions.

2. Mr Griffiths described the site as a complex assemblage of places which has grown as it has needed to grow.  He observed that previous stages of development have been rather callously treated by subsequent ones, resulting in visual chaos.[52]  In Mr Griffiths' opinion, the buildings are not part of a contributory place for the purposes of LPP 3.6 because they are not representative examples of a place type, style or period.[53]  Ms Kiperman agreed with Mr Griffiths' assessment.[54]  In her opinion, what remains of the brick façade, which orients to the former Vaughan Street, cannot be regarded as contributing to a streetscape because it is private property (and has been for nearly sixty years) and has been incorporated into the amalgam of buildings on the subject land.[55]

   [52] ts 29, 19 July 2022.

   [53] ts 29, 19 July 2022.

   [54] ts 30, 19 July 2022.

   [55] ts 30-31, 19 July 2022.

3. Based on his assessment, Mr Griffiths concluded that the buildings do not meet the criteria set out in The Burra Charter as having aesthetic, historic, social or scientific value.[56]  Mr Griffiths observed that the Council decision refers to retaining fragments and does not suggest that the site as a whole has heritage significance.  In Mr Griffiths' opinion, it would seem inconsistent to refer to a fragment of a place that is not readily visible as contributing to a locality, especially given its much altered state.[57]  Whilst buildings representative of the industrial character of the heritage area west of the railway line is limited, Mr Griffiths said that there are 'some very fine examples still being used for their intended purpose' east of the railway line.[58]

   [56] ts 61, 19 July 2022.

   [57] Witness statement of Philip John Griffiths dated 12 July 2022, Exhibit 9, para 22; ts 62, 19 July 2022.

   [58] ts 43, 19 July 2022.

4. In contrast, it is the City's position that the buildings are a contributory place and relied on the evidence of Mr Lyon in support of its position.  Based on the period in which the Massey-Harris building was constructed, and the fact that it was one of the first buildings in the industrial area, Mr Lyon was of the opinion that it does contribute to that type and style of industrial building.[59]  Mr Lyon stated that there is a potential streetscape that could be reintroduced but acknowledged, under cross­examination, that only a small portion of the Gadsden building is part of the existing streetscape.[60]

The status of LPP 3.6 and its amendments

[59] ts 30, 19 July 2022.

[60] ts 30, 19 July 2022; ts 63, 19 July 2022.

1. It is the applicant's position that limited weight should be given to the second paragraph of cl 2 of LPP 3.6 because it was added at the time LPP 3.6 was adopted by Council and after the advertising period had concluded.  Because it has not been the subject of public consultation, the applicant said that it offends the test set out in Permanent Trustee Australia Limited and City of Wanneroo (1994) 11 SR(WA) 1 regarding the weight to be given to local planning policies.[61]

   [61] ts 117, 20 July 2022.

2. The applicant further contends that the second paragraph of cl 2 of LPP 3.6 is inconsistent with the intent of the designation of a heritage area which is to manage streetscapes and heritage that can be viewed from the public realm, not the internal fabric of a building. In support of its position, the applicant referred the Tribunal to the table of exemptions from the requirement to obtain development approval in cl 61(1)(b) of the Deemed Provisions, specifically item 5 which provides that internal building work that does not materially affect the external appearance of the building is exempt from development approval where the building is within a heritage area under cl 1A(1)(f).[62]

Findings

[62] Letter from applicant's solicitor dated 22 July 2022.

1. Having regard to second limb of cl 4.14.1 of LPS 4, the question is whether the buildings and structures make a significant contribution to the broader cultural heritage significance of the locality in which they are located.  A general presumption applies in favour of retaining buildings that make a positive contribution to the significance of a heritage area.[63]

   [63] SPP 3.5, cl 6.6.

2. We accept the evidence of Mr Griffiths and Ms Kiperman, and we find, that the buildings and structures that are the subject of conditions 2, 3, and 9 do not qualify as a contributory place for the purposes of the first paragraph of cl 2 of LPP 3.6. Whilst the façade of the Gadsden building is a late example of the Federation warehouse style and shows the influence of classical composition, we find, based on the evidence of Mr Griffiths which we accept, that neither the Gadsden building nor the Massey-Harris building meet the criteria set out in The Burra Charter as having aesthetic, historic, social or scientific value. We further find, based on the evidence of Mr Griffiths and Ms Kipperman, which we accept, that the structures are physical fragments that are not readily visible from the public domain and, therefore, do not make a positive contribution to the local streetscape. Consequently, we find that their demolition would have minimal impact on the overall significance of the North Fremantle Heritage Area. For these reasons, we are satisfied that the buildings and structures do not make a significant contribution to the broader heritage significance and character of the locality in which they are located for the purposes of the second limb of cl 4.14 of LPS 4.

1. We observe that the buildings are not recorded as a place of heritage significance in LPP 3.6 as required by cl 9(2)(c) of the Deemed Provisions, nor are they identified as significant physical fabric on a local government inventory for the purposes of cl 6.2 of SPP 3.5. However, we acknowledge that a place of potential heritage significance may not be identified until a development application is lodged with Council and, therefore, an assessment of its heritage contribution to the locality must necessarily be carried out at that stage. Having assessed the significance of the heritage contribution of the buildings and structures to the broader locality and found that they do not significantly contribute, it is unnecessary for us to determine the weight to be given to the second paragraph of cl 2 of LPP 3.6 or otherwise consider its legitimacy.

Exercise of discretion in this case

1. Because the Tribunal is 'only' empowered to grant approval for the demolition of the structures if both limbs of cl 4.14.1 of LPS 4 are satisfied, the City contends that it is open to the Tribunal, in the exercise of its discretion, to preserve the structures on other planning and heritage grounds.[64]  That is, once the prerequisites in cl 4.14.1 of LPS 4 are met, the provisions of LPP 1.6 and LPP 3.6 become relevant to the exercise of the Tribunal's discretion.[65]

   [64] ts 129-130, 20 July 2022.

   [65] ts 130, 20 July 2022.

2. In contrast, it is the applicant's position that cl 4.14.1 of LPS 4 covers the field on the subject of heritage and while there may be other non­related heritage reasons why demolition might be refused, it is not open to the Tribunal to require retention of the structures on heritage grounds if both limbs of cl 4.14.1 of LPS 4 are satisfied.[66]  The applicant contends that, due to asbestos contamination at the site, human health and safety is a factor that weighs in favour of the deletion of conditions 2, 3, and 9.[67]

   [66] Applicant's response to respondent's amended SIFC, dated 21 June 2022, para 1C; ts 114, 20 July 2022.

   [67] Applicant's response to respondent's amended SIFC, dated 21 June 2022, para 3A.

3. We have already considered the provisions of LPP 1.6 and LPP 3.6 in determining whether or not the heritage significance of the buildings and structures satisfy the two limbs of cl 4.14.1 of LPS 4.  The buildings and structures are located in the North Fremantle Heritage Area.  The statement of significance for the heritage area has its focus on industries related to the Port of Fremantle and its former industrial character resulting from the former Leighton Marshalling Yards industries such as the Dingo Flour Mill located in the area.[68]  Whilst we acknowledge that the buildings and structures have a connection to the Port of Fremantle and the former industrial character of the heritage area, we do not consider that this factor alone would warrant their conservation.  Based on our findings at [63], the buildings and structures do not contribute to the broader heritage area because they do not meet the criteria set out in The Burra Charter as having aesthetic, historic, social or scientific value.  We are also satisfied that the buildings and structures do not make a positive contribution to the local streetscape of the heritage area.

   [68] Schedule 1 to SPP 3.6, Exhibit 4, pages 238-239.

4. Consequently, having regard to LPP 1.6 and LPP 3.6, we do not consider there is any further heritage ground that, in the circumstances of this case, would militate against the demolition of the buildings and structures.

5. The City further contends that it is relevant to our determination that there is no replacement development and, therefore, the subject land may be vacant for some time.[69]  The City observed that there are two alternative future potential uses of the subject land, either industrial use, or subject to rezoning, residential use.  The fate of the buildings, the City said, will be dealt with when an application is made for a replacement development and, therefore, the conditions relate to the temporary retention of the structures until that time.[70]

   [69] ts 126, 20 July 2022.

   [70] ts 126, 20 July 2022.

6. The form of replacement building is a relevant consideration in determining whether a demolition should be approved:  Klopper and City of Fremantle [2008] WASAT 138 at [37]. However, there is no proposed replacement building or redevelopment proposal in the application before us. We consider that condition 2 of the development approval will act as a permanent prohibition on the demolition of the buildings and structures unless the condition is modified by the grant of approval by the City to a future development application. For this reason, we do not accept the City's contention that condition 2 has the effect of temporarily retaining the structures on site until a replacement development is proposed. We acknowledge that if the demolition of the structures is approved, the site may be vacant for some time until it is redeveloped for industrial or residential use.

The presence of asbestos

1. Mr Hare was engaged by the applicant to undertake an asbestos survey of the site for the purposes of developing an asbestos management plan and register.  Tape testing was conducted by a licensed assessor which returned positive results for chrysotile and amosite asbestos fibre bundles (29 of the 89 samples taken in August 2021 were positive for asbestos).[71]  Mr Hare stated that each of the asbestos bundles is capable of disturbance and that exposure to the fibres can cause asbestos related diseases such as asbestosis, mesothelioma, lung cancer and pleural plaques.  In Mr Hare's opinion, the risk posed by the site is extreme because of the significant dust deposition and contamination from the deterioration of the roof sheeting over time.[72]

   [71] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 14.

   [72] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 17; ts 95, 20 July 2022.

2. Mr Hare described the process of site contamination from asbestos as follows:[73]

   The external roof surfaces appear to have been left untreated/raw/exposed for what appears to be almost seven decades.  As a result, the bonded matrix has been compromised to the point where organic matter such as moss and lichen are able to grow on it.  Asbestos sheeting over time can absorb water.  As it soaks and dries it begins to destabilize the bonded matrix.  The salty environment due to the proximity to the coast will also accelerate degradation.

   Damage to the roof has led to water intrusion into the building which is likely a major contributing factor to internal contamination, as well as general wind movement over the external surfaces blowing fibres in.

   …

   Because the buildings were added over time, there are gutters which drain into downpipes, and then drain into soak-wells below ground level internally within the warehouse building, as well as externally.  There is therefore considered to be asbestos contamination in the sump/soakwells in these locations, as well as other contaminants from historic uses of the site[.]

   [73] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, paras 22-23 and 26.

3. Mr Hare observed that the western wall of the Gadsden building was potentially clad with asbestos, and that asbestos is considered to have been deposited in the core holes of the bricks.[74]

Decontamination of the structures

[74] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 27; ts 99, 20 July 2022.

1. Mr Hare stated that if the structures were retained and the asbestos roofing removed, a process of vacuuming and wet wiping would be required.[75]  However, the re-use of materials which contain asbestos is not permitted and, therefore, Mr Hare said that the structures would need to be dismantled and all porous materials encapsulated with an encapsulant, such as foam or polyvinyl acetate (PVA), before they are reconstructed.[76]  The core holes of the bricks would also need to be vacuumed and filled with an encapsulant.[77]  There was no evidence before the Tribunal of the cost of the remedial work.

   [75] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 33.

   [76] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 30.4; ts 100, 20 July 2022; ts 109; 20 July 2022.

   [77] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 30.5.

2. Mr Hare expressed concern that if the encapsulation is compromised in the reconstruction process, through drilling into the structures for example, then asbestos fibres may be released.[78]  He also stated that encapsulants have a finite life-span and as they deteriorate the risk of fibre release increases.  In Mr O'Hare's opinion, any encapsulated structures remaining on site would need to be subject to a regular maintenance and re-inspection schedule.[79]

   [78] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 33; ts 98, 20 July 2022.

   [79] Witness statement of Jordan John Hare dated 12 July 2022, Exhibit 8, para 36; ts 98, 20 July 2022.

3. In Ms Kiperman's opinion, the deconstruction of the decayed and contaminated fabric would severely impact the authenticity and integrity of the fabric.[80]  Mr Lyon agreed that if deconstruction is necessary the heritage significance of the structures would be diminished dramatically.[81] 

   [80] Witness statement of Flavia Kiperman dated 13 July 2022, Exhibit 10, para 30.

   [81] ts 36, 19 July 2022.

4. Due to the asbestos contamination of the brickwork, we find that it would be necessary to clean individual bricks and reconstruct the structures which would further reduce their authenticity.  In Do Carmo and City of Fremantle [2009] WASAT 169 (De Carmo), the Tribunal was satisfied that an existing cottage, which was listed on the City's heritage list, was capable of conservation and making a positive contribution to the existing heritage streetscape notwithstanding the issue of cost.[82]  We do not consider the Tribunal's approach in De Carmo to be of assistance this case because we have found the buildings and structures will not make a significant contribution to the streetscape and will be further compromised by the cleaning and encapsulation process.

   [82] De Carmo at [63]. See also Slusarczyk and City of Stirling [2008] WASAT 194.

5. Further, based on the evidence of Mr Hare, which we accept, we find that the encapsulation of the structures and the management of the materials in storage and on-site will present a significant, and potentially latent, risk of harm to human health and safety.  In the circumstances of this case, we are not satisfied that the limited heritage significance of the buildings and structures, or their location in a heritage area, justifies their retention given the significant risk to human health and safety associated with the presence of asbestos contamination and the need for future management of those risks.

6. Consequently, we will exercise our discretion in favour of the demolition of the structures that are the subject of conditions 2, 3, and 9 and will order the deletion of those conditions from the development approval.

Conclusion

1. Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, we find that the correct and preferable decision is to allow the application for review.

2. We are satisfied, for the purposes of cl 4.14.1 of LPS 4, that the buildings and structures have limited cultural heritage significance and do not make a significant contribution to the broader heritage significance and character of the heritage area in which they are located.  The experts agreed that any measures employed to decontaminate and encapsulate the structures that are the subject of conditions 2, 3 and 9 would further reduce their authenticity and the significance of their fabric.  In the circumstances of this case, we are satisfied that the potential risk to human health and safety from the decontamination and encapsulation process, together with the limited heritage significance of the structures, are factors that weigh against their retention for cultural heritage purposes.

3. Accordingly, we will vary the decision of the City to grant approval to the demolition of the buildings and structure at the subject land by deleting conditions 2, 3 and 9 in their entirety.

Orders

The Tribunal orders:

1.The application for review is allowed.

2.The decision of the City of Fremantle made on 25 May 2022 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (being a reconsideration of its decision made on 2 March 2022) to grant approval for the demolition of buildings and structures at No 90 (Lots 241-260) Bracks Street, North Fremantle, is varied as follows:

(i)conditions 2, 3, and 9 are deleted in their entirety.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C BARTON, MEMBER

19 AUGUST 2022

ANNEXURE B

The Planning Framework

State Planning Framework

Metropolitan Region Scheme (MRS)
The subject land is zoned 'Industrial' under the MRS.

State Planning Policy 3.5 - Historic Heritage Conservation (SPP 3.5)
The objectives of SPP 3.5 are set out in cl 4 as follows:

·To conserve places and areas of historic heritage significance.

·To ensure that development does not adversely affect the significance of heritage places and areas.

·To ensure that heritage significance at both the State and local levels is given due weight in planning decision-making.

·To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.

Clause 6.2 deals with designation of heritage areas as follows:

Heritage areas are designated under local town planning schemes.
A heritage area should always be designated on the basis of a clear statement of significance, and a clear identification of the significant physical fabric in the area.  This information may be provided within a local government inventory or in other supporting assessment documentation.

In designating a heritage area, the local government is required to adopt a local planning policy that sets out the objectives and guidelines for conserving the significant heritage fabric of the area.

Clause 6.5 of SPP 3.5 provides relevant considerations for development assessment:

The Model Scheme Text provisions require local governments in considering applications for planning approval to have regard, amongst other things, to -

· The conservation and protection of any place or area that has been registered in the register of heritage places under the Heritage Act or is the subject of a conservation order under the Act, or which is included in the heritage list under clause 7.1 of the scheme, or which is designated as a heritage area under clause 7.2 of the scheme.

·    Whether the proposed development 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 to these broad considerations, local governments should also have regard 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 a relevant heritage assessment.

·    Measures proposed to conserve the heritage significance of the place and its setting.

·    The structural condition of the place, and whether the place is reasonably capable of conservation.

·    Whether the place is capable of adaptation to a new use which will enable its retention and conservation[.]

Clause 6.6 of SPP 3.5 outlines development control principles, as follows:

The following development control principles should be applied in considering planning applications in relation to a place entered in a heritage list, a place or area entered in the state register, or a heritage area designated pursuant to a local planning scheme.

The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.

…

Demolition of a heritage place (including a place within a heritage area)

·    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.

Development within a heritage area

·    Development within a heritage area should respect and complement the heritage significance of the area as identified in the local planning policy.  A respectful design approach gives special consideration to the siting, scale, architectural style and form, materials and finishes of the proposed development in relation to its neighbours, without copying historic detailing or decoration.

·    Alterations and additions to existing buildings should be designed and sited in a manner that respects and complements the heritage significance of the area.

·    A general presumption should apply in favour of retaining buildings that make a positive contribution to the significance of the area.

·    Approval for demolition, if granted, may be accompanied by a requirement for an acceptable redevelopment proposal to avoid gap sites.  If redevelopment is likely to be delayed, consideration should be given to the interim use of the land including a requirement for sympathetic treatment such as facade retention, landscaping or boundary treatment[.]

Local Planning Framework

City of Fremantle Local Planning Scheme 4 (LPS 4)

The subject land is zoned 'Industrial' under LPS 4. LPS 4 incorporates the deemed provisions by virtue of reg 8 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).

Although cl 61 of the Deemed Provisions exempts demolition of certain buildings and structures from the need to obtain development approval, the proposed development does not meet this exemption by virtue of the subject land being located within a heritage protected place (the North Fremantle Heritage Area).

Clause 1.6.1 of the Deemed Provisions outlines the aims of the Scheme and relevantly includes:

…

(f)      protect and conserve Fremantle's unique cultural heritage[.]

Clause 3.2.1(g) outlines the objectives of the Industrial zone as:

Development within the industrial zone shall:

(i)provide for manufacturing, processing and fabrication industry, the storage and distribution of goods and associated uses, service industry, utilities and communication, ancillary retail which by the nature of their operations should be separated from residential areas, and

(ii)ensure that development contributes to a high standard amenity and design as well as compatibility with adjacent residential areas.

Clause 4.14 of the Deemed Provisions deals with demolition of buildings and structures as follows:

4.14.1           Council will only grant development approval for the demolition of a building or structure where it is satisfied that the building or structure:

a)has limited or no cultural heritage significance, and

b)does not make significant contribution to the broader cultural heritage significance and character of the locality in which it is located.

4.14.2In considering an application under 4.14.1, Council shall have regard to any heritage assessment required under Clause 11 of the Planning and Development (Local Planning Schemes) Regulations 2015.

Clause 67(2) of the Deemed Provisions sets out matters that the local government is to have due regard, to the extent they are relevant to the proposed development. The matters that are pertinent in this case are:

(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

…

(c)      any approved State planning policy;

…

(g)      any local planning policy for the Scheme area;

…

(l)the effect of a proposal on the cultural heritage significance of the area in which the development is located;

…

(r)the suitability of the land for the development taking into account the possible risk to human health or safety;

…

(w)     the history of the site where the development is to be located[.]

Local Planning Policy 1.6 - Heritage Assessment and Protection (LPP 1.6)

Introduction and purpose

This policy supplements the overarching procedures set out under the Planning and Development (Local Planning Schemes) Regulations 2015, the Heritage Act 2018 and the Local Planning Scheme in relation to heritage management and seeks to outline the City's approach to heritage assessment and statutory protection processes.  It applies in addition to more detailed area and place and issue-specific policies and plans.

Objectives

The policy seeks to facilitate a transparent, consistent and robust approach to heritage protection by:

·    Outlining the guiding principles the City applies to the management of heritage.

·    Defining the criteria and method applied to heritage assessment, and Local Heritage Survey categories.

·    Defining how the City will manage requests to review heritage listing (either to add, amend or remove).

·    Defining when and how heritage assessments and heritage impact statements will be required.

Policy Statement

1.  Guiding Principles

The City of Fremantle uses The Burra Charter - the Australia ICOMOS Charter for Places of Cultural Significance as the key document guiding the management of heritage places.

2.  Assessment of Cultural Heritage Significance

Assessment of the heritage significance of places is undertaken in accordance with Heritage Council of Western Australia guidelines and using the criteria defined under the Burra Charter.

3.  Types & Categories of Listing

…

·Heritage Areas

Heritage Areas are precincts where special planning control is needed to conserve and enhance the significance of the area.  Additional planning controls apply to places within a Heritage Area.

Places within Heritage Areas can be defined as either 'contributory' or 'non­contributory'.  Contributory places will generally include places on the Heritage List but may also include places which are not individually listed.  Where mapping of contributory places has not been undertaken for a heritage area, or is incomplete, this will be assessed upon application.

4.  Process for inclusion, removal or amendment of a place on the Local Heritage Survey (LHS), Heritage List or identified as 'Contributory' to a Heritage Area.

The City maintains the Local Heritage Survey, Heritage List and heritage areas, including undertaking periodic reviews.

Any person or organization may nominate a place to be added, removed or amended on the Local Heritage Survey, Heritage List and/or as a contributory place to a heritage area, at any time.  This shall be in the form of a written request to the City.  The basis for inclusion/removal/amendments of places on the Local Heritage Survey, Heritage List and/or as a contributory place to a heritage area shall be based on cultural heritage significance, determined through a heritage assessment.  Requests will be considered through an annual update.  The City itself can also identify places for inclusion, removal or amendment as required.

Where a proponent wishes to pursue demolition of or significant modification to a heritage protected place, this effectively triggers review of its listing outside of the annual review process but is subject to the applicable development application fees and process.

5.  Heritage Assessments and Impact Statements

…

·Demolition Applications

A (proponent-commissioned) Heritage Assessment will be required in support of any development application where demolition is proposed of a place which:

oIs included on the State Register of Heritage Places

oIs included on the Heritage List

oIs mapped as a 'contributory' place within a Heritage Area.

·City Assessment of Submitted Heritage Assessments and Heritage Impact Assessments

Where a proposal is accompanied by a proponent-commissioned Heritage Assessment or Heritage Impact Assessment, the City will undertake its own assessment but may draw on information submitted.

Local Planning Policy 3.6 - Heritage Areas (LPP 3.6)

Purpose and objectives

The purpose of this policy is to:

1. Define the statement of significance for each heritage area.

2. Outline the general assessment criteria for development proposals for properties subject to heritage area protection, and their relationship with more detailed area­specific policies and plans applicable to individual heritage areas.

The objectives of the policy are to ensure that:

·A consistent approach is applied to the assessment of heritage significance and impact.

·Development is undertaken in a sympathetic manner which does not cause loss of historic cultural heritage significance.

·Key features which contribute to an understanding of cultural heritage significance are retained and enhanced.

·Development within heritage areas responds to the specific characteristics of an individual heritage area as outlined in the area's statement of significance.

·Existing places and fabric located in Heritage Areas which are, or may become, of cultural heritage significance are protected until such time as mapping of Contributory Places has been completed and any significant fabric added to the Heritage Area mapping and/or the Local Heritage Survey, or as otherwise determined by Council upon planning application[.]

Policy statement

1. Heritage Areas and Statements of Significance

The following areas have been designated heritage areas.  For the purpose of this policy they are separated into two types.

A.Place-Specific Heritage Areas (which have Conservation Management Plans)

…

B.General Heritage Areas

…

13. North Fremantle

…

The boundaries of these areas and a statement of significance for each is provided in Schedule 1.

1. Contributory places

Places within heritage areas can be defined as either 'contributory' or 'non­contributory' to the significance of the area.  Contributory places may include places which are not individually heritage listed.  Contributory places are determined by Council having due regard to an assessment against the criteria of the Burra Charter[83] and may include representative examples of a place type, period or style, places which contribute to the streetscape; and/or one which combines with other related places to demonstrate the historic development of a heritage area.
Where mapping of contributory places has not been undertaken for a Heritage Area, or has not been completed due to the inaccessibility of the site or the inability to fully reveal the existence of potentially fabric of cultural significance, this will be assessed upon planning application.

[83] Refer Local Planning Policy 1.6 - Heritage Assessment and Protection.

1. Development Assessment

Aims and Outcomes

Fundamentally, development in a heritage area should acknowledge, maintain and enhance, the heritage significance of the area.  It should:

1. Retain and conserve significant places, fabric and elements, whilst supporting their continued use.

2. Recognise and respond to the traditional pattern of development in the area.

3. Retain or reflect and allow an understanding of the traditional land uses and evolution of the place and/or area.

…

3.4     Demolition (applicable to contributory places only)

3.4.1    Intent

Demolition is a permanent change that cannot be reversed: even removal of places with lower levels of individual heritage significance can cumulatively undermine the significance of a heritage area. Demolition of any building or structure on any site located in a Heritage Area requires development approval under the Local Planning Scheme. In considering a proposal for demolition on any site in a Heritage Area where the mapping of Contributory Places has not been completed and/or is incomplete, the Council shall determine whether any fabric located thereon qualifies as a Contributory Place and applications will be assessed against Clause 4.14 of Local Planning Scheme No. 4 with the following providing additional guidance.

3.4.2    Design Guidance

i.Demolition of a contributory place or removal of significant fabric within a heritage area is contrary to the objectives of this policy, and will generally not be supported.

·    Demolition approval will not be considered on the grounds of economic or other perceived gain for the redevelopment of the land.

·    Condition of the place is not necessarily an acceptable reason for demolition.

ii.When considering partial demolition, the original/early portion of the building should be retained and conserved:  demolition of elements of cultural heritage significance will generally not be supported.

iii.The removal and replacement of asbestos or other hazardous materials from a place located within a heritage area is supported if the removal involves the immediate replacement with a matching (but non­hazardous) material (e.g. flat asbestos wall sheeting with joint cover battens is replaced with flat fibre cement sheeting with joint cover battens in the same configuration - a replacement with timber weatherboards or fibre cement weatherboards would generally not be supported).

iv.Where demolition of a heritage protected place is approved, an archival record prepared in a format approved by the City may be required as a condition of planning approval.

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Schedule 1: Heritage Areas and Statements of Significance

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North Fremantle Heritage Area

Statement of Significance

North Fremantle is significant as an area located to the north of the Swan River and the Port of Fremantle with a history of settlement dating back to the Pensioner Guards in the mid nineteenth century.

The area is significant for:

·Its connection with the Pensioner Guards whose former Barracks was located in the area and Captain J. Bruce, commanding officer of the pensioner guards who was granted 150 acres in the area. Allotments were surveyed and allocated to the pensioner guards, who accompanied the convicts;

·its unique topography located between the river and the ocean which contributes to its unique character;

·its role in World War II defences with the establishment of the Leighton Battery;

·its concentration of mainly modest workers accommodation dating from the Federation and Inter-War periods;

·its focus on the industries relating to the Port of Fremantle, the railways and associated industries established in the area;

·its former industrial character resulting from the former Leighton Marshalling Yards industries such as the Dingo Flour Mill located in the area;

·its cultural diversity resulting from successive periods of migrant settlement in the area; and

·With the impact of the goldrushes in the 1890s and 1900s, in particular the huge growth in population and the increase in prosperity, North Fremantle began to develop as a residential area. Since the first decades of the twentieth century, North Fremantle has functioned as a mixed residential and medium to light industrial area and the area retains some of that mix today.

Area Specific Development Guidance:

Deemed to Comply Street Setbacks to residential development in a Residential zone: as per the Residential Streetscape Policy except where subject to a precinct­specific policy or guidelines.

Also Refer:

·Thompson Road, Craig Street and Lime Street Development Guidelines Local Planning Policy

·Minim Cove North Fremantle Local Planning Policy

·Northbank Development Guidelines DGN6

·Rocky Bay Estate DGN10

·Cypress Hill DGN11