SHARPE and TOWN OF VINCENT
[2010] WASAT 24
•17 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SHARPE and TOWN OF VINCENT [2010] WASAT 24
MEMBER: MR P McNAB (MEMBER)
MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD: 10 AND 11 NOVEMBER 2009
DELIVERED : 17 FEBRUARY 2010
FILE NO/S: DR 313 of 2009
CC 615 of 2009
BETWEEN: KAREN DAWN SHARPE
ROBERT ROWDEN SHARPE
ApplicantsAND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development application for demolition Heritage considerations circa 1912 Federation bungalow in Mount Lawley State of intactness of subject property Property in significantly dilapidated state Property in need of substantial repair Corresponding notice to repair also under review Property entered in local Municipal Heritage Inventory (MHI) as 'Conservation Recommended' Significant heritage conservation values underlying planning framework Importance of State Policy on heritage matters Neglect of building not to lead automatically to demolition Contribution of building to streetscape Whether heritage streetscape existed Contribution of property to cultural heritage discussed - Differing views of heritage experts Other significant nearby heritage properties not listed Explanation for nonlisting of other properties Whether in effect a de facto heritage precinct notwithstanding failure to list other properties Interpretation of heritage values Whether Tribunal should in effect inquire indirectly into MHI listing Demolition refused by Tribunal Application dismissed Notice to repair confirmed with consensual variations Application for review of refusal to permit demolition dismissed
Legislation:
Heritage of Western Australia Act 1990 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 409(1)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1)
Town of Vincent Town Planning Scheme No 1, cl 23, cl 38, cl 38(5), cl 38(5)(d), cl 41
Result:
Application for review of refusal to permit demolition dismissed; notice to repair consequently varied by consent
Category: B
Representation:
Counsel:
Applicants: Mr S Allerding (Representative)
Respondent: Mr SJ Bain (Representative)
Solicitors:
Applicants: Allerding & Associates
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Do Carmo and City of Fremantle [2009] WASAT 169
Slusarczyk and City of Stirling [2008] WASAT 194
Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter concerned a review of the refusal of a development application for the demolition of a circa 1912 house (a 'Federation bungalow') in Joel Terrace, Mount Lawley in the Town of Vincent.
The Town of Vincent had issued a notice to repair the building in accordance with a schedule of works. This matter was also the subject of review, and both reviews were heard and determined together.
The Tribunal found that the relevant planning framework had a significant heritage preservation component, including, in effect, restrictions imposed by a State policy dealing with heritage matters and demolition. The house that was proposed to be demolished here had been placed upon the Municipal Heritage Inventory in the category 'Conservation Recommended'.
Substantial building work would be needed to repair and restore the property. However, such matters, although relevant, did not relevantly control decisions on demolition.
There was a significant disagreement between the experts as to the effect of the Town of Vincent's failure to similarly list other properties in the immediate vicinity, being places of apparently equal heritage value or worth. The respondent's expert maintained that regard could be had to what was, in effect, a de facto heritage precinct. In other words, the place contributed sufficiently to heritage values when considered both by itself and in its true context, such that protection against demolition was warranted.
The Tribunal accepted this position, and therefore refused to permit demolition. The parties had agreed that if demolition were to be refused, then certain modifications would be made to the notice.
The Tribunal varied, by consent, the schedule of repairs in the notice accordingly, but otherwise the Tribunal dismissed the application for review.
Introduction
There are two related matters for review, and the parties agreed that they be considered and determined together.
First, there is an application by Ms Karen Sharpe and Mr Robert Sharpe (applicants) for a review of some aspects of a notice issued by the Town of Vincent (Town or respondent) under s 409(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA). The notice originally required eight matters of repair, maintenance or reinstatement 'to bring the appearance of the [b]uilding on the [subject land] into conformity with the general standard of appearance of the buildings in the locality'.
The second matter is an application for a review of the decision of the Town of Vincent on 28 July 2009 to refuse development approval for the demolition of the existing residence on the subject land.
It was argued by the parties at the hearing that should the Tribunal approve the demolition of the buildings, then the notice should be set aside. If the demolition were not to be approved, then the notice would be further considered, as the applicant sought modification of some aspects of it.
In the event, a consensual position was reached as to the content of the notice if demolition were to be refused.
Site and locality
The subject land (or place) is located at No 125 (Lot 311) Joel Terrace, Mount Lawley and has an area of 521 square metres. The site contains the subject dwelling and a garage outbuilding.
The subject land is described by the applicants' heritage consultant as follows:
12.The [p]lace is a single storey brick residence with a short sheet corrugated iron roof. Designed in the Federation bungalow architectural style, it was built between 1911 and 1913, featuring tuckpointed face brickwork and contrasting horizontal rendered banding to the front façade. The remaining brickwork is a face finish laid in a stretcher bond. A bullnose verandah extends across the entire frontage, recessed on the south frontage and narrow across the protruding gable north frontage. The verandah is supported by turned timber posts and evidences the remains of a decorative timber valance and post brackets. The hipped gambrel roof features a gable with timber detailing over roughcast infill, a break pitch skillion across the rear, and tall face chimneys with moulded corbel detailing. The remnants of guttering evidence non original square profile guttering. The rear skillion section is enclosed on the north end with [a]sbestos sheeting, and the south end is a masonry construction.
13.The [p]lace is set back from the road, consistent with similar residences along the north side, and has minimal setbacks to both sides. The front setback area comprises lawn with minimal plantings and no fence delineating the front boundary. Side fences have collapsed, particularly in the vicinity of the front setback. The rear ROW (right of way) provides vehicular access to the site. The outbuildings at the rear have no significance.
14.The [p]lace is similar in design, front elevation, scale, form and materials to adjacent houses at 127, 129 and 131 Joel Terrace particularly, each with a two room frontage, projecting gable, return bullnose verandah, and main hipped roof. Although 127 and 131 have tiled roofs, 129 has a corrugated iron roof as for the [p]lace.
15.The [p]lace is boarded up with sheets of corrugated iron covering door and window openings on the front and side walls. At the rear, the entire skillion section is in ruinous condition, and the rear door opening onto what was the rear verandah, is also boarded.
16.The [p]lace is in poor condition on the exterior, and the rear skillion section is derelict. The roof is rusted with loose sheets and evidence of adhoc replacement sheets. The timber detailing associated with the gutters and gable barge are extremely weathered, and gutters not secured or effective. The front verandah structure is weathered and the valance deteriorated with sections missing. The concrete verandah floor and upstand is cracked and deteriorated. The external brick walls are fretted and evidence deterioration from rising damp in some areas. The rear masonry construction (kitchen) is derelict. The remainder of the skillion extension has damaged and deteriorated [a]sbestos sheeting. The timber elements associated with the rear skillion are deteriorated beyond redemption and the roof sheeting is missing from the kitchen, as is much of the framework.
17.The interior condition of the main construction is in fair condition. There are several areas of moisture ingress damage to the lathe and plaster ceilings, and moisture damage and cracking on the upper walls (falling damp). The floors are in relatively good condition, as are the window frames (evidenced on the interior), although glazing has been damaged. Two of the three fireplaces remain insitu, and one has been replaced with cream face brickwork and a wood fired heater.
The place is part of a historic residential subdivision called East Norwood Estate and the character of the locality is described by the respondent's heritage consultant as follows:
Character of the locality
23.Joel Terrace runs from Summers Street in the south to Mitchell Street in the north in Mt Lawley. It is located on a ridge that slopes rapidly away to the east to the riverfront and forms the spine of the historic residential subdivision called East Norwood Estate that was primarily developed from 1899 until 1915. This residential area comprises predominately single storey Federation style houses with some more substantial Federation style dwellings along Joel Terrace. The lots to the western side of Joel Terrace remain largely as originally developed with some infill development and alterations and additions to historic dwellings, the lots to the eastern (riverside) of the estate have undergone more extensive redevelopment.
24.125 Joel Terrace is located on the western side of the street between Pakenham and Leslie [S]treets. This section of Joel Terrace is a largely intact historic streetscape with predominately single storey Federation style dwellings, which were all constructed between 1911 - 1913 (Nos. 123, 125, 127, 129 and 131). A single storey infill development dating from the 1970s is located at 133 Joel Terrace. A substantial (two-storey) Federation era residence, which is also on the Town's Heritage list, is located at 137 Joel Terrace on the corner with Leslie Street. Two substantial Federation era residences remain on the eastern side of the street at 120 and 124 Joel Terrace.
25.The western side of Joel Terrace to the north of Leslie Street is also a largely intact historic streetscape of single storey Federation style dwellings (Nos 141 to 159) and the streetscapes of both Pakenham and Leslie [S]treets are also predominately Federation single storey Federation style dwellings.
26.Most of the historic dwellings in the locality are Federation Bungalow with Queen Anne influences. The row of historic dwelling adjacent to the subject property all exhibit these characteristics. Some of these dwellings are almost identical to 125 Joel Terrace with front facing gables, hipped roofs and timberframed front verandahs under separate roofs. Similarities in detailing of render, brickwork and joinery are also evident.
27.All of the historic dwellings in the locality (with the exception of 125 Joel Street) have been well maintained with brickwork, roof and rainwater goods and timber joinery in good condition and paint finishes regularly maintained. There is evidence of restorative work to the historic cottages in the street and some have additions to the rear or as a second storey.
The Tribunal viewed the place and aspects of Joel Terrace in the presence of the parties on 10 November 2009.
Planning framework
The subject land is zoned Urban under the Metropolitan Region Scheme and is zoned Residential R20 under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
Under cl 23 of TPS 1, the Council is to establish and maintain a heritage list of places considered to be of heritage significance and worthy of conservation.
The place is in the Town of Vincent's Heritage List as Category B Conservation Recommended.
Clause 38 of TPS 1 lists matters that the respondent is to have regard to when considering applications for planning approval and, relevantly, subclause (5) provides as follows:
(5)Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to
(a)the provisions of this Scheme and of any other written law applying within the Schedule area including the Metropolitan Region Scheme;
(b)any relevant planning policy;
(c)the Scheme Map;
(d)any Statement of Planning Policy of the Western Australian Planning Commission;
(e) any planning study approved by the Council;
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Clause 41 of TPS 1 relates to the 'Determination of an Application for Demolition', and links back to cl 38(5). The clause states that the respondent may defer consideration of the application until it has granted planning approval for subsequent development; or it may approve the application, subject to conditions; or it may refuse the application.
There is no specific reference to places on the Heritage List, but that consideration will be relevant to the determination of any planning approval.
State Planning Policy 3.5 - Historic Heritage Conservation (SPP 3.5) is a relevant policy to which the Tribunal is required to have 'due regard' under s 241 of the Planning and Development Act 2005 (WA); see also TPS 1, cl 38(5)(d).
The objectives of SPP 3.5 are:
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
•To ensure that heritage significance at both the State and local levels is given due weight in planning decision-making.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.
Clause 6.5 of SPP 3.5 firstly lists the general considerations that local government should have regard to in determining applications for planning approval, and then, more specifically, when considering 'demolition affecting a heritage place'. These matters are:
•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 adaption to a new use which will enable its retention and conservation.
Clause 6.6 of SPP 3.5 contains development control principles to be considered in relation to an application to demolish a heritage place. These are (emphasis added):
•… Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests on 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.
Clause 6.6 also provides 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.
Slusarczyk and City of Stirling [2008] WASAT 194 illustrates the significant role SPP 3.5 plays in demolition cases involving heritagelisted properties.
Local planning policies
The respondent has the following relevant policies:
•Heritage Management Development Guidelines (Policy 3.6.1) which, within its objectives, includes the following:
1)Encourage the appropriate conservation and restoration of places listed in the Town of Vincent Municipal Heritage Inventory (The Heritage List) in recognition of the distinct contribution they make to the character of the Town of Vincent.
An associated table of Acceptable Development and Performance Criteria provides as follows:
P3To ensure the cultural heritage significance of a place is conserved and the majority of the significant parts of the heritage place and their relationship to the setting within the heritage place should be retained.
and:
A.3.1Demolition of a whole building listed on the Town's Municipal Heritage Inventory will generally not be supported.
•Heritage Management Policy (Policy 3.6.2)
This policy provides guidance on the values to be applied in assessing places for consideration on the Heritage Inventory, and is particularly relevant in the consideration of the heritage consultant's submissions (see below).
•Heritage Policy - Adding, Deleting, Amending Places Listed on the Municipal Heritage Inventory (Policy 3.6.5)
This policy provides a procedure for the amendment of the Inventory, recognising that it is a working document.
Proposed development
The development application is for the demolition of the existing residence and garage. The applicant has advised that they did not lodge plans for a replacement building, together with the application for demolition, on the advice of the respondent's officers.
The officers considered that the demolition was the main consideration and that needed to be resolved first. Nevertheless, the applicant advised that a replacement building:
… could be designed to comply with Council design guidelines to ensure that the replacement dwelling positively contributes to the streetscape.
The Town's decision
The respondent considered the applicants' planning application at its meeting on 28 July 2009, and refused it for the following reasons:
(a)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality by virtue of the demolition of the existing building, which contributes to an important cultural landscape.
(b)the existing place has cultural heritage significance in terms of its aesthetic and social values and is listed in the Town's Municipal Heritage Inventory/Heritage List as a Management Category B Conservation Recommended; and
(c)consideration of the objections received.
Issues
The main issues were agreed by the parties to be as follows:
a)whether the existing place has cultural heritage significance and whether that significance (if any) warrants refusal of the application for demolition;
b)whether the proposed demolition is consistent with orderly and proper planning and the preservation of the amenities of the locality; and
c)the extent to which (if any), the condition of the place influences the decision to demolish.
Cultural heritage significance of the place
The place has been listed on the Town's Municipal Heritage Inventory (MHI) since 1998, and was re-entered following a review of the MHI in 2006.
The place has a Management Category B - Conservation Recommended listing, as per the Town's Policy 3.6.2, that relates to Heritage Management - Assessment. The assessment undertaken considered that it held 'some aesthetic and some social value'.
The statement of significance prepared as part of the Town's Heritage Assessment states:
The place has some aesthetic value as its scale and composition contributes to a local cultural landscape, which comprises predominantly Federation style residences for the portion of Joel Terrace, between Pakenham Street and Leslie Street, built within a two year period from 1911 to 1913.
The place has some aesthetic value as a good example of the Federation Bungalow style of architecture.
The place is representative of the growth of suburban areas and the establishment of suburban identities, that occurred in Perth during the years immediately ensuing the Gold Rush period.
The place has some social value as it is valued by the local community for its contribution to the built environment of the Town of Vincent, and as a result contributes to the community's sense of place.
The management category is, as has been mentioned, Category B Conservation Recommended.
Ms Susan Kendall, a heritage/planning officer with the Town of Vincent gave evidence as to the procedures whereby places can be considered for the MHI, and, when questioned by Mr Allerding for the applicant as to why the adjoining similar properties at No 123, No 127, No 129 and No 131 Joel Terrace were not on the MHI, she could offer no clear reason, leading Mr Allerding to submit that, to some extent, listing was reactive. We will return to this issue below.
Evidence of the heritage experts
The heritage experts, Ms Laura Gray for the applicant and Ms Nerida Moredount for the respondent, prepared a joint statement of evidence which summarised the issues on which they agreed and those on which they did not agree.
There was agreement regarding the condition of the house, those aspects of it that could be demolished, and that the house could be restored to a similar presentation to the other houses in the area from the same era.
The experts were not in agreement on several aspects, and some are fundamental to this review.
Ms Gray considered that streetscape was not an aesthetic value and was not relevant in determining the cultural heritage significance of a place. She considered that the setting was relevant to the place, and if that were to be considered in a streetscape context, then the subject place made a negative contribution to Joel Terrace.
Ms Moredount argued that streetscape was relevant and contributed to the potential aesthetic value. She considered that the setting was the streetscape formed by, and within, the estate (locality) and, as such, was relevant.
This difference in opinion between the heritage experts extended to their views on: whether the amenity of a place and its context was a consideration; whether the house had heritage significance through its aesthetic and social values; and, as a consequence, whether the house should have been included on the Town of Vincent's Heritage List.
At the hearing, Ms Gray elaborated on her written evidence regarding the extent to which streetscape, while an appropriate consideration in respect of heritage areas, was differently applied when considering heritage places.
She considered that the issue was 'the degree of value of that place as an individual place' and continued as follows:
[If] 125 Joel Terrace remained and was recognised as an element within the streetscape but all the other houses were knocked down, that element disappears so it is reliant on the other places in the street to actually make it significant in its own right, whereas the assessment criteria for a place is designed to actually recognise a place's individual significance, not for the extraneous elements within which it sits.
Ms Gray continued her exposition on heritage places, heritage areas and streetscapes by stressing that it was important to apply the agreed criteria so that:
… all assessments across the [S]tate [are] on the same foundation and [in] the same ballpark.
Ms Moredount considered that while streetscape was certainly a component of a heritage area, that did not preclude it from being a contributor to the value of an individual place.
A document prepared by the Heritage Council of Western Australia, called 'Criteria for the Assessment of Local Heritage Places and Areas' (Guidelines), was referred to repeatedly by the heritage experts, and s 2 thereof provides assessment criteria across four areas: namely, aesthetic; historic; research (scientific); and social areas.
The parties agreed that the criteria for consideration in this matter were 'aesthetic' and 'social', and that for a place to be of significance, it needed to meet one or more of the criteria.
To be considered to have aesthetic value, the Guidelines state, amongst other matters, that:
A place or area included under this criterion will have characteristics of scale, composition, materials, texture and colour that are considered to have value for the local district.
Mr Allerding put to Ms Moredount a sentence under the 'Guidelines for Inclusion' which read as follows:
In the case of a heritage area, the individual components will collectively form a streetscape, townscape or cultural environment with significant aesthetic characteristics …
He suggested that this created a difference in the application of 'streetscape' provisions as between a heritage place and a heritage area.
Ms Moredount did not agree with Mr Allerding's proposition and explained that as to the particular guideline, 'the contribution of a place to the quality of its setting', does not describe 'streetscape' but, rather, aesthetic value where its setting is a suburban streetscape or a local cultural landscape.
Ms Gray did not see the setting as streetscape. She agreed that one would have to consider the neighbouring properties but, importantly, not in terms of whether it enhanced its neighbours or not. She said: '… it's about the place itself'.
The other agreed area of consideration was social value, and the Guidelines state, amongst other matters, that:
Places of social value tend to be public places, or places distinctive in the local landscape, and generally make a positive contribution to the local 'sense of place' and local identity.
Ms Moredount considered that the place had some social value based generally on the level of communication that the respondent has received regarding the value that the local community had for the place.
Ms Gray, in her expert application of the guidelines, did not consider that the place had social value and that if there were any value, then it was 'commonplace'. The guidelines state:
A place will not normally be considered if its association is commonplace …
The Tribunal accepts Ms Gray's argument that relevant social value has not been reasonably demonstrated for this place. However, the competing arguments about aesthetic values and the cultural heritage significance of the place are more difficult to resolve.
The applicants argued that the absence of a heritage assessment of the adjoining properties of similar style, namely No 123, No 127, No 129 and No 131 Joel Terrace, either in their own right or as part of an area, meant that the respondent could not logically use the presence of those buildings in any heritage argument regarding No 125 Joel Terrace.
The respondent submitted that it was neither practical nor realistic, even with the heritage review in 2006, that all relevant places be considered, but rather they had a system, that was explained by Ms Kendall, for places to be considered by three main procedures or events:
1)A review of the Town's Municipal Heritage Inventory as required by the Heritage of Western Australia Act 1990 (WA).
2)The application of the provisions of the policy called 'Adding, amending and deleting places on the heritage list' whereby the public as either individuals or groups could nominate places for consideration.
3)An application for demolition precipitated a heritage assessment.
Ms Kendall had no real explanation as to why the adjoining properties had not been considered, other than by reference to the three standard procedures described above.
Conclusions on heritage value
On the material available to the Tribunal, we are satisfied that the adjoining properties have, more or less, all of the heritage characteristics ascribed to No 125 Joel Terrace, and that as a group, they constitute an area or precinct of value, albeit not yet formally determined as such by the respondent.
The Tribunal is satisfied that the place has relevant cultural heritage significance utilising the broad interpretation of aesthetic value, as explained or applied by Ms Moredount. In our view, Ms Moredount's opinions integrate well with the heritage aspects of the planning framework, and Ms Moredount is entitled to rely, in part, on the work of other experts as to the place in coming to her conclusions. The Tribunal considers that perhaps the respondent could have been more proactive in its consideration of the place and the adjoining properties, particularly at its most recent review. This review might spur them to appropriate action. However, notwithstanding that situation, the reality or substance is that a group of similar buildings do exist, and that the demolition of No 125 Joel Terrace would have an adverse impact on the cultural heritage value of the relevant area or locality.
Although the matter is not directly before the Tribunal, the conclusions that we have reached demonstrate that the entry of the subject land on the MHI was itself justified, whether or not, in fact, nearby properties were also listed.
Orderly and proper planning
Mr Allerding argues that the listing of a place as Management Category B does not of itself prohibit demolition and, further, that the applicants' heritage expert considers that the place had 'little' cultural heritage significance.
Mr Allerding and Ms Kendall, as planning experts, disagree on the level of significance and, as a consequence, the application of the principle of orderly and proper planning.
The Tribunal, having formed the view that the place has relevant cultural heritage significance, is of the consequential view that its demolition is not consistent with orderly and proper planning. Furthermore, orderly and proper planning does not, in our view, require that all of the relevant properties be assessed and dealt with before a relevant heritage status is ascribed individually to the subject land.
Condition of the subject house
The experts agree that as regards both the respondent's Policy 3.6.5 and SPP 3.5, the condition of the place should not be the key determining factor in the decision whether to demolish.
The respondent did not provide expert opinion on the state of the place or challenge the applicants' engineer's report.
Mr Wilson, a qualified structural engineer engaged by the applicants, provided a very comprehensive report and provided a summary as follows:
5.SUMMARY OF FINDINGS
5.1The current condition of the residence is not fit for human habitation. Substantial structural, weatherproofing and cosmetic remediation works are required to restore the residence to a habitable condition.
5.2The footings and masonry walls of the original residence and kitchen / bathroom / sunroom extension are generally in satisfactory condition although salt damp remediation, partial repointing and replastering is required.
5.3Floors to the original residence are slightly springy underfoot and warrant further investigation by a timber pest inspector.
5.4The roof and ceiling framing requires significant upgrade works, and the roof cladding and associated rainwater goods requires replacement in full. Ceiling linings require repair after installation of additional hanging beams.
5.5The laundry and rear verandah require demolition and reconstruction.
5.6While it is the considered opinion of [the writer] that the structure could be remediated and returned to original condition, it should be noted that the economic cost to achieve such an outcome may approach or exceed the cost of complete demolition and replacement with a new building.
5.7On this basis the writer is therefore of the opinion that the structure has reached the end of its useful economic life.
The Tribunal accepts Mr Wilson's report; however, notwithstanding the issue of cost, we are satisfied that the place is capable of conservation. Indeed, Mr Wilson confirms that is the case.
Other matters
The Tribunal was taken to some other matters and it is appropriate to comment on them. Do Carmo and City of Fremantle [2009] WASAT 169 (Do Carmo) involved a dilapidated cottage on the City of Fremantle's Heritage List. Demolition had been refused. In Do Carmo, there were several heritage listed places in the relevant street and the Tribunal there concluded that the building had historic value as a place, and aesthetic value as part of a streetscape.
Thus, Do Carmo differs from the matter under review, in that there were several other heritage listed properties in the street. The Tribunal, however, does not consider that here the current absence of a heritage listing, or otherwise, of the adjoining properties to No 125 Joel Terrace affects the reality that they are there, and, separate to the formalities of the heritage process, they complement and provide relevant cultural heritage value.
Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94 (Whelans) involved a demolition application in respect of a 1904 Federation bungalow that had had significant alterations and additions in the 1980s, but when viewed from the street, substantially retained its original form.
The Tribunal, in Whelans, determined that demolition was consistent with orderly and proper planning as the cultural heritage significance level was low and, as explained at [2], 'its integrity as a single residence was compromised by more intensive residential development surrounding it, including a 12unit residential development next door'.
We consider that the context of Whelans is significantly different to the matter under review.
Conclusions on the demolition issue
The Tribunal has found that although the social value of the place is low, it does have some aesthetic value and substantially contributes to the cultural heritage significance of the area or locality.
While it is acknowledged that the adjacent group of houses have not been assessed or considered as a heritage area, they are nonetheless extant and must be considered as relevant factors in this review.
The building is currently in a poor state; however, the Tribunal considers that it can be restored such that it contributes positively to the area. The cost of this exercise would be considerable, but such cost does not, under the planning framework, lead to a conclusion favouring demolition.
The application for review is dismissed and the decision of the respondent to refuse development approval for demolition is affirmed.
Conclusions on the repair notice
It was agreed between the parties that if demolition were to be refused then, as to the s 409(1) notice, it would be appropriate to allow the review in part and, in effect, to confirm the notice but upon certain understandings common to the parties, and with some agreed textual amendments to the schedule to the notice. By consent, these matters were as follows.
The schedule to the notice is to be amended by the deletion of cl (c) and its replacement with the following:
(c)Remove corrugated iron cladding to all external openings (door and windows) and install new roller shutters on the external face of the external windows and doors for those windows and doors identified on the basis of the sketch plan, dated October 2009, held in the Tribunal's records.
The schedule to the notice is to be further amended by the deletion of cl (d) and its replacement with the following:
(d)The type and colour finish of the roller shutters shall be agreed upon by the parties.
The schedule to the notice is to be further amended by the deletion of cl (f) and its replacement with the following:
(f)Take down and remove the exposed timber pergola structure at the rear of the property on the basis of the sketch plan, dated October 2009, held in the Tribunal's records.
As to matters dealt with by cl (c) the parties agreed on the following three matters:
[1]The openings identified reflects [sic] those window and door openings that currently have corrugated iron.
[2]The windows to the laundry and bath have not been identified for inclusion for roller shutter treatments as it is of concern that the asbestos sheeting may not be structurally adequate to support the additional weight of the roller shutters.
[3]It is considered appropriate that the existing window treatments remain.
As to matters dealt with by cl (d), the parties agreed on the following matter:
Preliminary investigations [indicated] that red roller shutters are preferred as this colouring will match/blend with the colour of the brickwork. White or cream is less preferred[,] given that the lighter colours may be more likely to attract graffiti.
Orders
For the reasons given above, the orders of the Tribunal are as follows:
1.The application for review in proceeding DR 313 of 2009 is dismissed.
2.Consequently, the decision of the respondent to refuse development approval for the demolition of the existing single residence at No 125 (Lot 311) Joel Terrace, Mount Lawley, is affirmed.
3.The application for review in proceeding CC 615 of 2009 is, by consent, allowed in part.
4.The notice under review is varied as follows:
The schedule to the notice is to be amended by the deletion of cl (c) and its replacement with the following:
(c)Remove corrugated iron cladding to all external openings (door and windows) and install new roller shutters on the external face of the external windows and doors for those windows and doors identified on the basis of the sketch plan, dated October 2009, held in the Tribunal's records.
The schedule to the notice is to be further amended by the deletion of cl (d) and its replacement with the following:
(d)The type and colour finish of the roller shutters shall be agreed upon by the parties.
The schedule to the notice is to be further amended by the deletion of cl (f) and its replacement with the following:
(f)Take down and remove the exposed timber pergola structure at the rear of the property on the basis of the sketch plan, dated October 2009, held in the Tribunal's records.
I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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