| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PAZ and CITY OF STIRLING [2011] WASAT 157 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 7 SEPTEMBER 2011 DELIVERED : 4 OCTOBER 2011 FILE NO/S : DR 198 of 2011 BETWEEN : DAVID PAZ ANNA PAZ
CZESLAW PAZ
Applicants
AND
CITY OF STIRLING
Respondent
Catchwords: Town planning Development application for demolition Heritage considerations Circa 1908 dwelling in Mt Lawley Property in Heritage Protection Area Absence of State or local heritage listing Character Retention Guidelines for the Heritage Protection Area Differing views of heritage experts State of intactness of subject property Whether subject property represents a good example of housing from the early 1900s and interwar period Contribution to the Heritage Protection Area and the streetscape Broader planning issues associated with the proposed demolition Expectations in terms of contemporary living standards Adaptation likely to
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impinge on heritage value Weighing the heritage contribution against the broader issues of orderly and proper planning of the subject site State Planning Policy 3.5 Demolition approved by Tribunal Application upheld Legislation: City of Stirling Local Planning Scheme No 3, Pt 6, cl 1.6, cl 1.6(e), cl 4.2.12(a), cl 6.6, cl 6.6.1, cl 6.6.3, cl 10.2
Metropolitan Region Scheme
Planning and Development Act 2005(WA), s 252(1) Result: The appeal was upheld subject to a condition Category: B
Representation: Counsel:
Applicants : Self-represented
Respondent : Mr N Maull
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Branca and City of Stirling [2008] WASAT 69
Campbell and City of Stirling [2008] WASAT 254
Sipsas and City of Stirling [2009] WASAT 10
Slusarczyk and City of Stirling [2008] WASAT 194
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 These proceedings involved an application for review of a decision by the City of Stirling to refuse the demolition of an early 20th century dwelling located on the front portion of the subject land at No 86 (Lot 174) Third Avenue, Mt Lawley. 2 The issue arising for determination in the review was as follows: whether planning approval for the proposed demolition of the dwelling at No 86 (Lot 174) Third Avenue, Mt Lawley should be granted if, as the City contends, 'the demolition would be contrary to the requirements of the respondent's Character Retention Guidelines for the Heritage Protection Area Special Control Area of theCity of Stirling's Local Planning Scheme No 3'. 3 In this case the Tribunal found that while the subject dwelling was generally intact, it was questionable whether it met the criterion of a good example of housing from the early 1900s and inter-war period, and its contribution to the Heritage Protection Area and the streetscape was undermined by the fact that its setback substantially reduced its visibility from the street and was at variance with the other dwellings in the street. 4 In this context, and other things being equal, it would still in the Tribunal's view have been preferable to retain the dwelling. However, this was only one consideration in reaching a conclusion on the broader planning issues associated with the proposed demolition. 5 In the context of the evidence provided at the hearing it was clear that should the existing dwelling be retained any adaptation was not only likely to impinge on the heritage value of the dwelling but would not meet any reasonable expectations in terms of contemporary living standards or in fact a number of requirements of the current planning provisions for residential development 6 Therefore, in the circumstances and weighing the heritage contribution the existing dwelling made to the Heritage Protection Area and streetscape against the broader issues of orderly and proper planning of the subject site, the Tribunal was of the view that the demolition of the dwelling should in this instance be supported. 7 For these reasons the review was upheld subject to a condition requiring documentation of the existing dwelling. (Page 4)
Introduction 8 These proceedings involve an application brought by Mr Czeslaw, Ms Anna and Mr David Paz (applicants) under s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Stirling (City or Council) to refuse the development approval under the City of Stirling Local Planning Scheme No 3 (LPS or Scheme) for the demolition of an existing house at No 86 (Lot 174) Third Avenue, Mt Lawley (subject site). 9 The site is zoned Residential and is subject to a residential density coding of R30. It is located within the Mt Lawley Heritage Protection Area (HPA) designated in Pt 6 of the Scheme. The Council has adopted Character Retention Guidelines (Guidelines) as a planning policy for three heritage areas including Mt Lawley. 10 On 19 May 2011 the Council refused to grant development approval for the demolition of the dwelling for the following reason: Demolition of the dwelling is contrary to the requirements of the City's Character Guidelines for the Heritage Protection Control Area of the City's Local Planning Scheme No 3. 11 The issue arising for determination in the review was as follows: whether planning approval for the proposed demolition of the dwelling at the subject site should be granted if, as the City contends, 'the demolition would be contrary to the requirements of the respondent's Character Retention Guidelines for the Heritage Protection Area Special Control Area of the City's Local Planning Scheme No 3'.
Site and locality 12 The subject site is located on the northeastern side of Third Avenue, Mt Lawley approximately halfway between Clifton Crescent and Wenberi Lane. Lot 174 has an area of 880 square metres and the dwelling the subject of this review is set well back on the site. At the rear of this dwelling is an additional two storey residence constructed in 2001 which takes vehicular access from the right of way at the rear of the property and has pedestrian access from Third Avenue. The site is currently on a single title. 13 The dwelling the subject of this review comprises a single storey brick and tile bungalow setback approximately 20 metres from the front boundary. The dwelling, which was constructed in 1908, broadly represents the Federation bungalow architectural style. The structure has (Page 5)
a broad and simple roof plane with the ridge parallel to the street. A gable is present on the southeast elevation. The dwelling appears to have been subject to a number of changes during the interwar period. Externally the splayed rough cast veranda piers are presumed to date from this period. The dwelling has a leanto structure to the rear containing the bathroom and laundry with the fence between the two houses immediately adjacent to the rear wall of the front dwelling. This is approximately 3 metres from the rear dwelling at its closest point. 14 The dwelling to the southeast is an example of the more decorative Federation Queen Anne style. Both this residence and the dwelling to the northwest are set back between 10 and 11 metres from the front boundary, although the dwelling to the northwest has a carport within the front setback area on the northwestern side of the property. 15 In this locality the northeastern side of Third Avenue comprises residential dwellings while the opposite side of the street contains residential dwellings and the site of the Mount Lawley Primary School. 16 This section of Third Avenue comprises a mix of generally single storey dwellings, the majority of which represent Federation and interwar dwellings displaying a variety of characteristics of those architectural styles. A number of these dwellings have had additional dwellings constructed to the rear. A number of original houses on both sides of the street have been demolished and replaced with new dwellings. These replacement dwellings are generally two storey dwellings.
Planning framework 17 The site is zoned Urban under the Metropolitan Region Scheme (MRS). It is zoned Residential and has a residential density coding of R30 under the LPS 3. 18 Clause 1.6 of LPS 3 sets out the aims of the Scheme and at subclause (e) seeks: To encourage the conservation and continued use of identified places and objects of cultural heritage significance[;] 19 The objectives of each of the zones are set out in cl 4.2.12(a) of the Scheme which identifies the following objective for the Residential zone: To provide for residential development at a range of densities with a variety of housing type and size, to meet the current and future needs of the community (Page 6)
20 Clause 6.6 of the Scheme sets out the provisions applying in the Heritage Protection Special Control Area and at cl 6.6.1 establishes the following objectives: 21 Clause 6.6.3 of the Scheme requires development in the Heritage Protection Special Control Area to conform with the following: 22 Finally, at cl 10.2 the Scheme sets out Matters to be Considered by the Council in dealing with a planning application and includes the following: … c) any approved statement of planning policy of the Commission; … f) any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.2.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme; … k) the cultural significance of any place or area affected by the development[.] 23 In regard to local planning policies the Council has adopted Policy Manual - 3.1 - Character Guidelines Mt Lawley, Menora & Inglewood which seek to: (Page 7)
Ensure the retention of buildings within the Heritage Protection Areas dating from the early 1900s to the 1950s where the architectural style of the building is generally intact[.] 24 This policy identifies the significance of Mt Lawley (East) as: … a good example in Perth of a substantially intact residential area characterised by large and medium sized homes from the early twentieth century and inter-war period, many of high architectural quality, in established landscaped gardens. 25 The area is regarded as having aesthetic, historic and social significance as it contains: Good examples of housing from the early 1900s and inter-war period including some very good examples of Federation Bungalow and Californian Bungalow style houses. 26 In dealing with the demolition of existing buildings the policy seeks to: Retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s[.] 27 It requires any applicant seeking to demolish an existing building to provide a written justification which addresses: 28 State Planning Policy 3.5: Historic Heritage Conservation (SPP 3.5) at cl 6.6 establishes principles for development control in heritage areas. Clause 6.6 notes that: … The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply. 29 In dealing with demolition of heritage places (including a place within a heritage area) the policy emphasises that: (Page 8)
… 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[.] And that … 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[.]
Proposed development 30 The application the subject of this review relates solely to the demolition of the early 20th century dwelling located on the front portion of the subject site.
Respondents decision 31 The application seeking approval for the demolition of the subject dwelling was submitted to the Council on 29 September 2010. 32 The development was referred to the City's heritage architectural consultants for assessment. This advice was received by the Council on 21 October 2010 and recommended that approval be granted for the proposed demolition. 33 Notwithstanding this advice the City's officers had significant concerns about the recommendation to demolish the dwelling 'given other SAT decisions in the HPA area'. Consequently a peer review of the City's heritage consultant's report was commissioned. The peer review found that demolition would result in an irreversible loss of an original dwelling in the HPA and would not meet the primary objectives of the Guidelines. 34 On the 19 May 2011 the Council refused the application for demolition of the dwelling at the subject site for the following reason: … demolition of this dwelling is contrary to the requirements of the City's Character Guidelines for the Heritage Protection Control Area of the City's Local Planning Scheme No 3.
The issues 35 The issue arising for determination in the review was agreed as follows: whether planning approval for the proposed demolition of the dwelling at the subject site should be granted if, as the City contends, 'the demolition would be contrary to the requirements of the respondent's (Page 9)
Character Retention Guidelines for the Heritage Protection Area Special Control Area of the City's Local Planning Scheme No 3'.
The Evidence of the Heritage Experts 36 The matters under consideration were narrowed by the joint witness statement provided by the heritage experts. 37 Ms Nerida Moredoundt, the heritage expert for the respondent, and Ms Laura Gray, the heritage expert for the applicant agree that: • the provisions of the Local Planning Policy adopted for the HPA Special Control Area, namely, LPP 3.1 Character Guidelines Mt Lawley, Menora and Inglewood, apply to the subject property; • the subject property is not listed on any other local or State heritage lists; and • the heritage issues under consideration relate to the contribution (or otherwise) that the subject property makes to the HPA and is not related to an assessment of its individual heritage values. 38 In this context the substantive matters in contention in the application of the Guidelines were: 1) In terms of the objective of the policy whether the architectural style of the building [was] generally intact. 2) In regard to the Statement of Significance for Mt Lawley (East) whether the subject dwelling constituted a 'Good example[s] of housing from the early 1900s and interwar period'. 3) In terms of the justification required by the demolition provisions of the policy: 39 The heritage experts agreed that the issues raised by SPP 3.5 Historic Heritage Conservation were adequately reflected in the Guidelines of the respondent and did not in their view require independent assessment. (Page 10)
40 On the matter of whether the existing dwelling was intact Ms Moredoundt argued that the dwelling was a generally intact example of a Federation bungalow style dwelling and exhibited the main elements of that style. In its simple form it reflected the general characteristics of the traditional Mt Lawley house. She accepted that there was evidence of changes to the place evident from the street, including the splayed rough cast veranda piers which may have been applied during the interwar era. 41 Ms Gray argued the dwelling was not substantially intact. In her view the intervention in the interwar period evidenced by the splayed rough cast veranda piers and the rough cast chimney meant that the dwelling does not represent either the Federation bungalow or interwar period to any degree. 42 In regard to whether the subject dwelling constituted a good example of housing from the early 1900s and interwar period, Ms Moredoundt submitted the dwelling was a good example of housing from the early 1900s and argued that the lack of maintenance and minor changes to the property do not detract from the positive contribution the dwelling makes to the HPA. 43 Ms Gray contended that although elements of the Federation bungalow style are evident, interventions in the interwar period are also evident and that the place is not sufficient to substantiate that it is a good example of either style or period. 44 With regard to whether the dwelling contributed to the character of the HPA and streetscape the heritage experts differed on the issue of the impact of the atypically large front setback on the contribution to the streetscape. 45 Ms Moredoundt submitted that the setback of the dwelling does not diminish the significance of its contribution. There is, in her view, considerable variation in terms of the characteristics of dwellings which adds richness to the area. The contribution of gardens is highlighted in the Guidelines and the current condition of the garden could be easily remedied providing a more positive contribution to the streetscape. 46 Ms Gray submitted that the existing setback was a key issue. While she accepted in principle that improvements to the garden could make a positive contribution to the streetscape, she stressed that the dwelling was not readily perceived from the street due to the considerable setback. This was exacerbated by the scale and low set character of the dwelling which results in it not adding to the character of the streetscape setting. (Page 11)
47 In terms of whether the architectural style of the building was generally intact the Tribunal prefers the evidence of Ms Moredoundt for the following reasons: • While the changes to the building have impacted to some degree on its character they are not so extensive as to undermine the original Federation bungalow style of the structure. • The major element of these changes, the splayed rough cast veranda piers presumably applied during the interwar era, fall within the early 1900s and interwar periods which constitute the primary focus of the Guidelines. • In a context where these architectural styles are in any event introduced and generally applied later than in their locations of origin, it is reasonable to expect some stylistic variety. The manner in which these architectural styles are presented in the Guidelines suggest they are intended as a broad guide to the character of the traditional Mt Lawley house rather than an indication of heritage significance. In coming to this view the Tribunal would stress that it needs to be read in the context of an assessment of the contribution of a dwelling to the HPA and not an assessment of the individual heritage values of the particular dwelling in question. 48 In regard to whether the subject dwelling constituted a good example of housing from the early 1900s and interwar period, the Tribunal takes the view that the evidence provided did not establish this case. The rather modest nature of the dwelling, its limited architectural embellishment and the current state of the garden, suggest it is unlikely to meet this criterion. 49 As to whether the character of the building and its setting contributes to the character of the HPA, the Tribunal is of the view that given the fact that the existing dwelling dates from the early 1900s and is generally intact suggests it does make some contribution to the HPA. In terms of its contribution to the streetscape, this contribution is undermined by both the fact that its setback substantially reduces its visibility from the street and is inconsistent with the adjoining dwellings and the majority of dwellings in the street. (Page 12)
50 These findings, however, need to be placed in the broader context established by the planning instruments. While Ms Moredoundt accepted that the development potential of the dwelling was restricted, she argued this was a condition which applied to many other dwellings in the HPA. She suggested there may be some potential for incursion into the front setback, although this would require the exercise of discretion by the respondent, and would not allow for a large dwelling. Partial demolition of the rear leanto roof would also be a possibility. 51 Ms Gray noted that the Guidelines preclude development in the front setback and that any second storey addition would preferably be located to the rear of the original building ridge line. This would not only impact on the existing dwelling but would raise amenity issues. It would not be possible, in her view, to develop the dwelling to meet contemporary living standards.
Assessment of the Proposal 52 The Tribunal in Branca and City of Stirling [2008] WASAT 69 (Branca) found that 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, the Tribunal in that matter also argued such a policy aspiration is not determinative of the matter and individual applications are required to be assessed on their merits. 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 interwar 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. 54 In this context, and other things being equal, it would still in the Tribunal's view be preferable to retain the dwelling. However, this is only one consideration in reaching a conclusion on the broader planning issues associated with the proposed demolition. 55 It is clear that the dwelling does not meet contemporary living standards and the question then arises of the feasibility, and here the Tribunal refers to practical rather than financial feasibility, of adapting the dwelling to provide an acceptable outcome. (Page 13)
56 The evidence provided by the heritage experts suggests it would be difficult to adapt the existing dwelling given the parameters established by the Guidelines. Such adaptation is also likely to impact on the heritage value of the dwelling. 57 The proximity of the two storey dwelling at the rear is an additional issue. At the time this dwelling was constructed the applicants' intentions were that they would at some future point in time demolish the front dwelling and construct a new dwelling in which they intended to reside. Evidence provided at the hearing suggested that at that time such expectations were not unreasonable. However, the close proximity of the two dwellings effectively restricts any additions or alterations to the current footprint of the subject dwelling. This not only curtails expansion but precludes the provision of any private open space at the rear of the dwelling where it could benefit from northeastern sun. 58 In the context of the evidence provided at the hearing, it is clear that should the existing dwelling be retained, any adaptation is not only likely to impinge on the heritage value of the existing dwelling but would not meet any reasonable expectations in terms of contemporary living standards or, in fact, a number of requirements of the current planning provisions for residential development. 59 Should the dwelling be demolished, while it would provide the opportunity to construct a dwelling fulfilling reasonable expectations in terms of contemporary living standards, it would also provide for the construction of a dwelling which met the requirements of the Guidelines and current planning provisions, and establish a street setback more consistent with the other dwellings in the streetscape of Third Avenue. 60 In dealing with the issue of demolition SPP 3.5 states: 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[.] 61 In the circumstances of this case and weighing the heritage contribution the existing dwelling makes to the HPA and streetscape against the broader issues of orderly and proper planning of the subject site, the Tribunal is of the view that the demolition of the dwelling should in this instance be considered. (Page 14)
Precedent 62 A number of previous Tribunal decisions were raised by the parties in this matter. 63 These included Branca, Slusarczyk and City of Stirling [2008] WASAT 194, Campbell and City of Stirling [2008] WASAT 254 and Sipsas and City of Stirling [2009] WASAT 10. 64 These decisions can, however, be differentiated from the current review in that in none of those cases was the adaptation of the subject dwelling to contemporary living standards subject to the level of constraint pertaining in the current review. There was, therefore, in those cases no need to weigh the retention of the dwelling against the broader issues of orderly and proper planning of the subject site.
Conclusion 65 The objective of the Guidelines to 'retain and conserve original buildings … particularly those buildings dating from the early 1900s to the 1950s' in the HPA creates a general presumption in favour of retaining such buildings. 66 However, such a policy aspiration is not, and cannot be, determinative of the matter. The weight given to heritage requirements of the Guidelines needs to be considered within the broader context of orderly and proper planning and in response to the relevant provisions of LPS 3 which the respondent, or the Tribunal in its place, needs to consider. 67 In the current case while the Tribunal recognises that the dwelling does make some contribution to the HPA and the streetscape, in weighing this against the broader issues of orderly and proper planning of the subject site the Tribunal is of the view that the demolition of the dwelling should in this instance be supported. 68 For these reasons, the review was upheld subject to a condition requiring documentation of the existing dwelling.
Orders 1. The review of the decision by the City of Stirling on 19 May 2011 to refuse the application for demolition of the dwelling at No 86 (Lot 174) Third Avenue, Mt Lawley is dismissed. (Page 15)
2. Planning consent for the demolition of the dwelling on the front portion of No 86 (Lot 174) Third Avenue, Mt Lawley is granted subject to the following condition: A photographic record of the exterior and interior of the existing dwelling shall be carried out and provided to the City of Stirling prior to the issue of a demolition permit. |