Sharpe v Town of Vincent - [2010] WASC 391

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHARPE -v- TOWN OF VINCENT [2010] WASC 391

CORAM: JENKINS J

HEARD: 19 AUGUST 2010

DELIVERED : 21 DECEMBER 2010

FILE NO/S: GDA 8 of 2010

BETWEEN: KAREN DAWN SHARPE
ROBERT ROWDEN SHARPE
Appellants
AND
TOWN OF VINCENT
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P McNAB (MEMBER)
Citation  :SHARPE and TOWN OF VINCENT [2010] WASAT 24
File No  :CC 615 of 2009

Catchwords:

Administrative law - Appeal from decision of State Administrative Tribunal - Refusal of application for approval to demolish house on local government inventory of buildings of cultural heritage significance - Adequacy of reasons - Relevant considerations

Legislation:

Heritage of Western Australia Act 1990 (WA), s 4(3), s 34, s 45, s 78
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 409
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 103, s 112, s 137, s 241
State Administrative Tribunal Act 2004 (WA), s 27, s 105(1), s 105(2)
Town of Vincent Town Planning Scheme No 1, cl 23, cl 38, cl 38(5), cl 38(5)(d), cl 41, cl 41(a)

Result:

Leave to appeal on grounds 2, 3 and 4 granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: Mr M C Hotchkin
Respondent: Ms N J Raphael

Solicitors:

Appellants: Hotchkin Hanly
Respondent: Minter Ellison

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

Barnes v State Planning Authority (1977) 37 LGRA 298
City of Canning v Avon Capital Estates (Australia) Ltd (2009) 169 LGERA 15; [2009] WASCA 120
Do Carmo and City of Fremantle [2009] WASAT 169
Lenehan and Anor v Town of East Fremantle [2004] WATPAT 145
Moullin v Town of Cottesloe [2002] WATPAT 23
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Physiotherapists Registration Board v Townsend [2008] WASCA 25
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Sharpe and Town of Vincent [2010] WASAT 24
Slusarczyk and City of Stirling [2008] WASAT 194
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316
Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94

JENKINS J: Karen Dawn Sharpe and Robert Rowden Sharpe (Mr and Mrs Sharpe) applied to the Town of Vincent (the Town) for approval to demolish a house which was built around 1912 on Joel Terrace, Mount Lawley. The Town refused the application. Mr and Mrs Sharpe's application to the State Administrative Tribunal (SAT) for a review of the Town's decision was dismissed: Sharpe and Town of Vincent [2010] WASAT 24. Mr and Mrs Sharpe have appealed that decision.

Grounds of appeal

There are five grounds of appeal which are:
1.The [SAT] erred in law in finding that demolition of the premises was not consistent with orderly and proper planning as a consequence of the finding that the premises had 'relevant cultural heritage significance', in that it was open to find that, by having regard to all relevant considerations, the demolition of the premises would nonetheless be consistent with orderly and proper planning.
2.The [SAT] erred in law by failing to pay due regard to provisions 6.5 and 6.6 of State Planning Policy 3.5. which materially made the following matters relevant for consideration, but which were not considered by the [SAT]:
(a)an objective analysis of whether the cost of restoration was 'reasonable' or 'feasible' in all the circumstances;
(b)an objective analysis of the relative significance the place had, compared to other places of cultural significance;
(c)an assessment of the extent of the benefit the public would derive from the replacement development; and
(d)the rights of [Mr and Mrs Sharpe] as property owners.
3.The [SAT] erred in law in failing to have any regard to relevant considerations in the proper exercise of its discretion to approve the application, including such matters as:
(a)whether the application for approval for demolition should properly be deferred until after either the [SAT] or the [Town] had received an application by [Mr and Mrs Sharpe] for approval of the proposed new development, and assessed whether, in the event of demolition of the premises, any such new development proposed by [Mr and Mrs Sharpe] at the subject site would be consistent with orderly and proper planning for the area;
(b)the fact that [Mr and Mrs Sharpe] had purchased the subject premises when the premises had not been registered on the Municipal Heritage Inventory such that it would be an unjust fetter on their property rights to constrain their use of the premises by such registration; or
(c)the uncontradicted expert evidence of Mr Wilson, a qualified structural engineer, to the effect that the premises had reached the end of their useful economic life, such that the cost of properly restoring it may exceed the cost of complete demolition and construction of a new dwelling with a design and style which would complement other developments within the area.
4.The [SAT] erred in law in failing to give any, or any adequate, reasons in support of the finding that the premises had 'relevant cultural heritage significance'.
5.The [SAT] erred in law in refusing to set aside the [Town's] notice purportedly issued pursuant to section 409(1) of the Local Government (Miscellaneous Provisions) Act 1960, which should have followed upon allowing [Mr and Mrs Sharpe's] application for review of the [Town's] refusal to its development approval for demolition of the premises.
I have attempted to deal with all the issues raised by the grounds of appeal as well as all the issues raised by the written submissions, even where the latter go beyond the grounds of the appeal.

Leave to appeal

Leave to appeal is required in respect to each proposed ground of appeal: State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(1). Further, an appeal against a decision of SAT may only be brought 'on a question of law': SAT Act s 105(2).
In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18] Buss JA (Wheeler and Pullin JJA agreeing) enunciated the principles relevant to the grant of leave from a decision of SAT. His Honour said that leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice. The guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 should be taken into account when considering whether to grant leave. The guidelines and the SAT Act require the applicant to identify a question of law which is the subject of the appeal. The importance of the question, either generally or to the appellant is relevant. The appellant must show that there is a real or significant argument to be put on the question of law in order to justify the grant of leave.

What is a question of law?

Also in Paridis v Settlement Agents Supervisory Board [53] ‑ [57] Buss JA considered what constituted a question of law. His Honour said:
Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. [53]
Buss JA then stated some applicable principles, which I summarise as follows:
1.A question of mixed law and fact is not a question of law within s 105(2);
2.A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law;
3.A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis;
4.A ground of appeal that a tribunal has made a finding which is manifestly unreasonable in the sense that no reasonable tribunal could have made that finding alleges an error of law;
5.A ground of appeal that a tribunal has failed to take into account a consideration which in the circumstances it was bound to take into account alleges an error of law; and
6.It is not sufficient if the consideration which the tribunal is alleged not to have taken into account is merely one that may be properly taken into account or that many persons may have taken into account.
These principles are relevant because the Town submits that some of the grounds of appeal do not raise questions of law.

Background

The property the subject of the appeal is located at 125 Joel Terrace, Mount Lawley (the Land). It has an area of 521 sq m and contains a dwelling house (the House) and a separate garage. The garage has no relevant value.
Mr and Mrs Sharpe have owned the Land since about 1993. For at least that period of time the House has been unoccupied. Photographs of the House show that it is in a state of disrepair. For example, its front windows and doors are boarded up with corrugated iron.
The Town refused applications to demolish the House in 1998 and 2000. In 2001 the then Minister for Planning and Infrastructure dismissed an appeal from the then most recent refusal and in doing so noted that it was 'not appropriate for heritage dwellings to be neglected to the point where demolition is the only option.'
In 2006 the Town undertook a community consultation of its Municipal Heritage Inventory (MHI). The House was part of that review because it had been on the MHI since 1998. No objections were received from Mr and Mrs Sharpe to the inclusion of the House on the MHI which is compiled and maintained in accordance with the Heritage of Western Australia Act 1990 (WA) (the Heritage Act) s 45. Section 45 requires each local government to compile an inventory of buildings within its district which in its opinion are, or may become, of cultural heritage significance. Cultural heritage significance is defined to mean:
[T]he relative value which that place has in terms of its aesthetic, historic, scientific, or social significance, for the present community and future generations.
In September 2006 the Town included those places onto the MHI, including the House, about which it had not received any written objections.
In March 2009 the Town resolved to issue a Renovation Notice in accordance with the Local Government (Miscellaneous Provisions) Act 1960 (WA) s 409 requiring Mr and Mrs Sharpe to bring the appearance of the House into conformity with the general standard of appearance of other buildings in the locality. Section 409 empowers a local government to serve such a notice where a building is dilapidated. The section also provides for the enforcement of such a notice.
On 25 May 2009 Mr and Mrs Sharpe applied for approval to demolish the House. They say that, on the recommendation of the Town's officers, they did not simultaneously submit an application for approval of a new home on the Land. Mr and Mrs Sharpe advised the Town that a replacement building could be designed to comply with Council Design Guidelines to ensure that the replacement dwelling positively contributed to the streetscape. At a council meeting on 28 July 2009 the Town resolved to refuse the application, amongst other reasons, because:
1.the demolition was not consistent with the 'orderly and proper planning and the preservation of the amenities of the locality';
2.the House contributed to 'an important cultural landscape'; and
3.the House had 'cultural heritage significance in terms of its aesthetic and social values' and was listed on the MHI.
In the meantime, Mr and Mrs Sharpe had submitted an application to SAT for a review of the Renovation Notice. That review was held over until the determination of the application to demolish the House.
Mr and Mrs Sharpe then applied for a review of the decision of 28 July 2009 to refuse approval for the demolition of the House. The two applications for review were heard together by SAT. On 17 February 2010 SAT dismissed the application for review of the refusal to permit demolition of the House. The parties were in agreement if that was SAT's decision the Renovation Notice should be reviewed in part by amending some of the requirements of the Notice, but in essence the Renovation Notice would remain in effect.
When dealing with Mr and Mrs Sharpe's application for a review of the Town's decision to refuse demolition approval, SAT was obliged to have regard to certain matters as set out in the Planning and Development Act 2005 (WA) (the PD Act) s 241 which relevantly states:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including ‑
(a)any State planning policy which may affect the subject matter of the application; and
…
(2)In the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the State Administrative Tribunal ‑
(a)is to refer the matter to the Heritage Council for advice;
(b)may receive and hear submissions made on behalf of the Heritage Council;
(c)may join the Heritage Council as a party to the application; and
(d)is to have due regard to the objects of the Heritage of Western Australia Act 1990.
The review by SAT was by way of a hearing de novo. The purpose of the review was to 'produce the correct and preferable decision at the time of the decision upon the review': SAT Act s 27. When determining the review SAT had the same functions and discretions as the Town when it made its decision.

SAT's reasons for decision

SAT used the description of Mr and Mrs Sharpe's heritage consultant to describe the House in the following terms:
The [House] 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.
The [House] 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.
The [House] 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 [House].
The [House] 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.
The [House] 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.
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 [12] ‑ [17].
SAT noted that the Land was within a historic residential subdivision called East Norwood Estate. SAT used the description of the locality of the Land penned by the Town's heritage consultant:
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.
[The Land] 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.
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.
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 [The House] with front facing gables, hipped roofs and timber‑framed front verandahs under separate roofs. Similarities in detailing of render, brickwork and joinery are also evident.
All of the historic dwellings in the locality (with the exception of [The House]) 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 [23] ‑ [27].

The 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). TPS 1 cl 23 requires the Town to establish and maintain a heritage list of places considered to be of heritage significance and worthy of conservation. As I have already noted, the House is on the MHI in 'Category B ‑ Conservation Recommended'.
TPS 1 cl 38 lists matters that the Town is to have regard to when considering applications for planning approval. Clause 38(5) provides:
(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 Scheme 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.
TPS 1 cl 41 provides that the Town is to have regard to the matters listed in cl 38(5) when considering an application for a demolition. Clause 41(a) provides that the Town may defer consideration of an application for demolition until it has granted planning approval for subsequent development of the relevant site; it has issued a building licence for that development and it is satisfied that the subsequent development will commence. The Town may also approve an application for development, subject to conditions or it may refuse the application.
SAT stated that there was no specific reference in cl 38(5) or cl 41 to places on the MHI but said that the fact that a place was on the heritage list will be relevant to the determination of any planning approval.
SAT referred to relevant provisions of State Planning Policy 3.5 ‑ Historic Heritage Conservation (SPP 3.5) as a relevant policy to which it was required to have due regard pursuant to the PD Act s 241 and TPS 1 cl 38(5)(d) and 41.
SAT also referred to the Town's Heritage Management ‑ Development Guidelines (Policy 3.6.1) and its objectives which included the following:
1Encourage the appropriate conservation and restoration of places listed on the [MHI] in recognition of the distinct contribution they make to the character of [the Town].
SAT also referred to the Town's Heritage Management Assessment (Policy 3.6.2) and its Heritage Management ‑ Adding/Deleting/Amending Places Listed on the [MHI] (Policy 3.6.5).
In its reasons, SAT said that the main issues at the review had been agreed by Mr and Mrs Sharpe and the Town to be as follows:
a)whether the [House] 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 [House] influences the decision to demolish [36].

After detailing the background and the planning and policy documents which SAT considered relevant, it proceeded to consider the cultural heritage significance of the House. SAT noted that the House had been listed on the Town's MHI since 1998 and was re‑entered following the review of the MHI in 2006. SAT noted that the statement of significance prepared as part of the Town's heritage assessment considered that the House held 'some aesthetic and social value' and quoted it as stating:
The [House] 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 [House] has some aesthetic value as a good example of the Federation Bungalow style of architecture.
The [House] 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 [House] has some social value as it is valued by the local community for its contribution to the built environment of the [Town], and as a result contributes to the community's sense of place [39].
Mr and Mrs Sharpe called evidence from a heritage expert Ms Laura Gray. The Town also called evidence from a heritage expert Ms Nerida Moredount. They prepared a joint statement of evidence which summarised the issues on which they agreed and those on which they did not agree. The experts agreed on the condition of the House, the aspects of it that could be demolished and with the proposition that the House could be restored to a similar presentation to other houses in the area from the same era. SAT noted that the experts were not in agreement on several aspects including whether the streetscape was an aesthetic value, the role of the streetscape and the contribution of the House to the Joel Terrace Streetscape, 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 whether the House should have been included on the MHI [42] ‑ [45].
SAT accepted Ms Gray's argument that relevant social value had not been reasonably demonstrated for the House [62]. Mr and Mrs Sharpe argued that the absence of a heritage assessment of the adjoining properties of similar style, namely 123, 127, 129 and 131 Joel Terrace, either in their own right or as part of an area, meant that the Town could not logically use the presence of those buildings in any heritage argument regarding the House.
The Town submitted otherwise and said that it was neither practical or realistic, even with the heritage review in 2006, for all relevant places be so assessed.
SAT concluded that on the material available to it, the adjoining properties had, more or less, all of the heritage characteristics ascribed to the House. It determined that as a group, they constituted an area or precinct of value, albeit one not formally determined as such by the Town.
SAT was satisfied that the House had relevant cultural heritage significance utilising the broad interpretation of aesthetic value, explained and applied by Ms Moredount [66] ‑ [67].
It found that demolition was not consistent with 'orderly and proper planning'. It said that orderly and proper planning did not require that all of the nearby properties be assessed and dealt with before a relevant heritage status could be ascribed individually to the House [71].
SAT noted that the experts agreed that the condition of the House should not be the key determining factor in the decision whether to demolish. It relied on the report of Mr Wilson, Mr and Mrs Sharpe's expert structural engineer. Mr Wilson summarised the condition of the House in the following manner:
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.
SAT accepted Mr Wilson's report and found that it was satisfied that the place was 'capable of conservation' [72] ‑ [75].
SAT then mentioned two other cases. The first was Do Carmo and City of Fremantle [2009] WASAT 169, the subject of which was a dilapidated heritage cottage. SAT noted that demolition had been refused because the building had historic value as a place and aesthetic value as part of a streetscape including other heritage listed properties. SAT also noted that although other properties in Joel Terrace were not heritage listed, the lack of the listing did not affect the reality that they were there, they complemented the House and provided relevant cultural heritage value [76] ‑ [77].
The second case, Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94, involved a demolition application in respect of a heritage bungalow which had been significantly altered. SAT had found that demolition was consistent with orderly and proper planning as the cultural heritage significance level was low and the integrity of the house had been compromised by more intensive residential development surrounding it, including a 12 unit residential development next door. SAT considered that this case was 'significantly different' to the matter under review [78] ‑ [80].
SAT's conclusions in respect of the merits of the review were:
1.the social value of the House is low;
2.the House has some aesthetic value;
3.the House substantially contributes to the cultural heritage significance of the area or locality;
4.the adjacent group of houses are relevant factors in the review, even thought they have not been assessed for or included on the MHI;
5.the House is in a poor state;
6.the House can be restored so that it contributes positively to the area; and
7.the cost of restoring the House would be considerable but it did not lead to a conclusion favouring demolition.
SAT dismissed the applications for review on the basis of these findings [81] ‑ [84].

Ground 1

Ground 1 as expressed does not raise a question of law. Simply to say that it was open for SAT to find that demolition of the House would be consistent with orderly and proper planning does not allege an error of law due to SAT concluding that it was not so consistent.
Mr and Mrs Sharpe's written submissions, in effect, say that SAT incorrectly stated the weight to be given to heritage values in determining an application for demolition and failed to apply the principle from two relevant authorities, Moullin v Town of Cottesloe [2002] WATPAT 23, [9(d)], [9(e)]; Lenehan and Anor v Town of East Fremantle [2004] WATPAT 145, [24] ‑ [32].
Moullin was a decision of the now abolished Town Planning Appeal Tribunal of WA on appeal from a decision of the Town of Cottesloe on a development application. The Tribunal determined the appeal having regard to the provisions of the Heritage Act, the relevant town planning scheme, the Town of Cottesloe's heritage policy and the provisions of the Metropolitan Region Scheme. It was in the context of those governing instruments that the Tribunal determined that the placement of the property on the Cottesloe MHI raised heritage values for consideration but such values would carry little weight and would only be one factor in the determination of a development application.
Lenehan was also a decision of the Town Planning Appeal Tribunal and it considered the correctness of the principles enunciated in Moullin. In that decision the Tribunal determined an appeal from the decision of the Town of East Fremantle to refuse an application to demolish a heritage property. The relevant governing instruments included the relevant town planning scheme, policies made under it and the Heritage Act. The Tribunal determined that the principles enunciated in Moullin were correct.
This review by SAT was governed by quite different planning instruments and principles than applied in Moullin and Lenehan. Amongst these were TPS1 cl 38(5) and the PD Act s 241(1). Section 241(1) was not in force when either Moullin or Lenehan were decided. It required SAT to have 'due regard' to a number of matters including 'any State planning policy that may effect the subject matter of the application'. TPS 1 also required SAT to have regard to any State planning policy.
SPP 3.5 came into effect on 29 May 2007; that is after Moullin and Lenehan were decided. SPP 3.5 cl 4 states, in part, that an objective of the policy is to:
[E]nsure that heritage significance at both the State and local levels is given due weight in planning decision‑making.
SPP 3.5 cl 6.6 states, in part, 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, and social or environmental factors that may apply.
It was a matter for SAT to consider all relevant matters and for it to determine the 'due weight' to be given to the heritage significance of the House in determining the relevant applications. It would have been both misleading and unnecessary for SAT to refer to the principles in Moullin and Lenehan. Further, the determination of the weight to be given to a certain relevant consideration does not involve a question of law: Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 [48] and the authorities cited therein.
Mr and Mrs Sharpe argue that SAT considered that its findings in respect to the heritage value of the House were determinative of the question of whether demolition was consistent with orderly and proper planning and also of the applications for review. They say that SAT failed to have regard to other relevant factors which may have impacted on those determinations. I disagree with this interpretation of SAT's reasons for decision. SAT set out the statutory provisions, policies and legal principles which it had to apply when determining the applications [20] ‑ [32]. SAT then considered a number of factors separately and then drew its findings in respect of those separate factors together when it made its final determination on the review of the application to demolish the House. SAT's conclusion that demolition of the House would not be consistent with orderly and proper planning, which it said was consequential on its finding that the House had 'relevant cultural heritage significance', was one of a number of intermediate opinions it came to and took into account when deciding the ultimate question before it.
Mr and Mrs Sharpe have not indentified any authority which says that, in determining whether demolition of the House was consistent with orderly and proper planning, SAT was required to take matters into account beyond those it considered. But even if SAT did fail to take a relevant matter into account in making that finding, it would not justify me granting the appeal, if SAT had taken that matter into account at another point in its decision making process. Mr and Mrs Sharpe's contention that SAT was required to, and failed to, take certain considerations into account when making the ultimate decision on review is the subject of other grounds of appeal.
I would not grant leave to appeal on ground 1.

Ground 2

Mr and Mrs Sharpe allege that SAT failed to take into account SPP 3.5 and TPS1, cl 38(5)(h) insofar as they required consideration of four matters. I will consider each alleged relevant matter in turn.

Ground 2(a)

Mr and Mrs Sharpe concede that SAT referred to SPP 3.5 but says that it failed to give a 'reasoned assessment' of its contents and how it was to be applied to the facts, as found by SAT. In particular, they say that SAT's finding that the House had 'cultural heritage significance' and that this precluded demolition as a matter of orderly and proper planning, precluded SAT's consideration of the provisions of SPP 3.5 which 'said otherwise'.
Relevantly, SPP 3.5 cl 6.5 and cl 6.6 state:
6.5Relevant 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.
Development within a heritage area
…
6.6Development control principles
The following development control principles should be applied in considering planning applications in relation to a place entered in a heritage list, …
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.
Alterations, extensions or change of use affecting a heritage place
…
Demolition of a heritage place (including a place within a heritage area)
•     … 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.
SPP 3.5 cl 6.5 and cl 6.6 required SAT to consider, amongst other things, whether the House was reasonably capable of conservation and whether it was feasible to restore it, adapt it or incorporate it into a new development.
SAT noted that the parties' heritage experts were in agreement that the House could be restored [43], and that cost should not be the key determining factor in the decision whether to permit demolition to occur [72]. This was because of the terms of SPP 3.5 and Policy 3.6.5.
SAT noted that the Town did not provide expert opinion on the state of the House or challenge Mr Wilson's report [73]. SAT referred to and relied on the report but 'notwithstanding the issue of costs' it was satisfied that the House was capable of conservation [75]. It is true that SAT did not use the phrase 'reasonably capable' as is contained in cl 6.5. However, SAT relied on Mr Wilson's report and, as SAT noted, Mr Wilson confirmed that the House was capable of conservation. The excerpt from Mr Wilson's report which was quoted by SAT indicates that the House was 'reasonably capable of conservation' and that Mr Wilson's reservation in that regard was in respect of the cost of such work.

SAT did consider the feasibility of restoring the House by considering the cost of doing so as well as considering whether the House was capable of being conserved. SAT said that the cost of restoring the House would 'be considerable'. Despite that finding, SAT considered that 'under the planning framework' this did not lead to a conclusion favouring demolition [83]. This was a finding that was open to it.
Whilst SAT was obliged to and did take into account whether the House was reasonably capable of conservation and whether it was feasible to restore it, the weight it gave to those factors was a matter for it. It was also obliged to take into account the other statements in cl 6.6 to the effect that demolition of the place should be avoided 'wherever possible' and that demolition approval should not be granted simply because redevelopment was a more attractive economic proposition. Mr and Mrs Sharpe have not satisfied me that SAT's consideration of SPP 3.5 was flawed in law.

Ground 2(b)

Mr and Mrs Sharpe complain that SAT failed to consider, as they say it was required to do under SPP 3.5, 'an objective analysis of the relative significance the place had compared to other places of cultural heritage significance'.
Clause 6.5 expressly required consideration of the level of heritage significance of the House and cl 6.6 required consideration of the degree of significance of the House. The phrase 'compared to other places of cultural heritage significance' does not appear in the relevant portions of cl 6.5 and cl 6.6. I see no reason why this phrase should be read into the relevant clauses of SPP 3.5.
SAT considered the cultural heritage significance of the House [37] ‑ [68]. It was satisfied that the House had 'relevant cultural heritage significance'. Mr and Mrs Sharpe have not satisfied me that SAT failed to consider the level of heritage significance of the House, as it was required to do.

Ground 2(c)

Mr and Mrs Sharpe say that SPP 3.5 cl 6.6 required SAT to consider 'the extent to which the community would benefit from the proposed redevelopment' of the Land, but that it failed to do so.
A specific proposal for redevelopment was not put before the Town or SAT. In those circumstances neither decision‑maker can be criticised for not extensively referring to the benefit of a replacement development. However, SAT noted that Mr and Mrs Sharpe had advised that a replacement building could be designed to comply with design guidelines to ensure that it positively contributed to the streetscape [34]. SAT does not appear to have given this advice much weight in its final decision. This is not surprising given the lack of detail provided about the proposed replacement dwelling. SAT can not be expected to give weight to the benefit from a development when there is no or insufficient evidence before it to enable it to determine what the benefit would be. Given that lack of evidence, I am not persuaded that SAT erred in the weight that it gave or failed to give to that consideration.
Mr and Mrs Sharpe make a similar complaint in respect of the way in which they say that SAT failed to take TPS1 cl 38(5)(h) into account. Clause 38(5)(h) provides:
(5)Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to -
…
(h)the conservation of the amenities of the locality.
They say that in fairness to them, SAT was required to consider what was proposed to replace the House, if it was demolished, and the impact of that proposal on the amenities of the area.
My response to this submission is the same as my response to the proposition that SAT should have taken into account or given more weight to the benefit to the community from the proposed replacement building. Without evidence of the proposal, SAT could not take it into account or assess what its impact would be on the amenities of the locality.
Littered throughout Mr and Mrs Sharpe's submissions are references to the fact that Mr and Mrs Sharpe acted on the advice of the Town's officers in not submitting plans for a new home at the same time as they applied for demolition approval. Either expressly or impliedly, Mr and Mrs Sharpe say that in those circumstances it was unfair for SAT to refuse their application without taking into account their proposal for a replacement building. I disagree.
There is a difference between, on the one hand, not applying for development approval of a new home at the same time as applying to demolish the House and, on the other hand, not presenting any evidence of the proposed new development in support of the application for demolition approval. I am prepared to assume that the Town's officers recommended the first course of action. This would not have prevented Mr and Mrs Sharpe from taking the second course of action. It was entirely a matter for them as to how they ran their case before SAT. In SAT, Mr and Mrs Sharpe were represented by an expert planner. After no doubt receiving his advice, they chose to present certain evidence to SAT but not evidence about their proposed development. They did not seek an adjournment to present further evidence. Those are choices by which they are bound. As I have said above, SAT can not be expected to take into account matters about which there is no evidence. I would go further and say that it would be wrong for SAT to take into account matters which were not proved in evidence.

Ground 2(d)

Mr and Mrs Sharpe say that SPP 3.5 cl 6.5 and cl 6.6 embody the principle that potential hardship to a land owner is a relevant consideration on a heritage matter. They say that this follows from the requirements in those clauses to:
(a)have regard to the structural condition of the relevant place, and whether it is reasonably capable of conservation; and
(b)have regard to the relative significance of the relevant place, the feasibility of restoring it, and what other benefits the community might receive from a proposed development.
I agree that pursuant to SPP 3.5 cl 6.5 SAT was required to have regard to (a), amongst other matters. Pursuant to SPP 3.5 cl 6.6 SAT was also required to base its consideration of the application for demolition on the significance of the House, the feasibility of restoring it or incorporating it into a 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. To the extent that (b) above differs from the wording in SPP 3.5 cl 6.6, cl 6.6 prevails.
I acknowledge that the cost and inconvenience of the conservation of a heritage place is a factor in a consideration of whether a place is 'reasonably capable of conservation' and 'the feasibility' of restoring a place or incorporating it into a new development. In turn, the cost and inconvenience of conservation, restoration or incorporation is something that is likely to impact on a property owner. Except to the extent that a decision‑maker may decide that such cost or inconvenience is or is not something which affects the decision as to whether a place is 'reasonably capable of conservation' or whether it is feasible to restore or incorporate it into a new development, hardship to a landowner is not a relevant consideration under SPP 3.5 cl 6.5 and cl 6.6.
Mr and Mrs Sharpe also submit that hardship to them was a relevant consideration because the House is on the MHI, compiled pursuant to the Heritage Act s 45. Therefore, they submit that SAT should have had regard to the Heritage Act s 4(3) which states:
(3)The objects of this Act, with due regard to the rights of property ownership, are ‑
(a)to identify, conserve and where appropriate enhance those places within Western Australia which are of significance to the cultural heritage;
(b)in relation to any area, to facilitate development that is in harmony with the cultural heritage values of that area; and
(c)to promote public awareness as to the cultural heritage, generally.
I reject this proposition. Unless the PD Act s 241(2) is applicable to a review before SAT, it is not required to have regard to the objects of the Heritage Act in that review. If it were otherwise, the relevant part of s 241(2) which provides that in the case of an application that relates to land to which the Heritage Act applies, SAT is required to have regard to a number of matters, and to have due regard to the objects of the Heritage Act, would be superfluous. Mr and Mrs Sharpe did not submit, either to SAT or to me, that the PD Act s 241(2) applied to this case.
The Town has referred to s 241(2) in support of its submission that SAT was not required to have regard to Mr and Mrs Sharpe's rights of property ownership. It does not submit that it applied to this case.
Given that neither party submits that s 241(2) applies and neither did SAT apply it, it is not appropriate that I decide on appeal whether s 241(2) should have been applied by SAT.
I would grant leave to appeal on ground 2 but refuse the appeal.

Ground 3

Although this ground is expressed as relying upon a failure by SAT to have regard to relevant considerations, Mr and Mrs Sharpe's written submissions commence by complaining that SAT failed to give adequate reasons in support of its findings. This is unhelpful to me in my efforts to discern the gist of the ground of appeal.
In relation to the allegation in the written submissions that SAT failed to give adequate reasons in support of its findings, the SAT Act s 77(2) requires SAT to give reasons for a final decision which include its findings on material questions of fact and which refer to the evidence or other material on which those findings are based. In addition, it is often said that a decision‑maker's reasons must enable an unsuccessful party to know the reasons why it has failed.
The first matter complained of by Mr and Mrs Sharpe in their written submissions is that SAT failed to give adequate reasons in support of its finding that Ms Moredount's opinions 'integrate well with the heritage aspect of the planning framework' [67]. I do not agree. SAT's discussion of the cultural heritage significance of the House is from [37] ‑ [67]. The Tribunal accepted Ms Moredount's evidence that the House had relevant cultural heritage significance for the reasons 'explained or applied' by Ms Moredount. SAT's conclusion that Ms Moredount's opinions integrated well with the heritage aspects of the planning framework is not an opinion which required, as opposed to could have been the subject of, further explanation. In effect, SAT agreed with Ms Moredount on this issue and for the reasons expressed by her.
The second complaint in the written submissions is that SAT's finding that the cost of restoring the House did not 'lead to a conclusion favouring demolition' under the planning framework [83] was not the subject of adequate reasons.
It is apparent from SAT's reasoning that whilst it considered that the cost of restoring the House would be 'considerable', it did not consider that the cost was so great as to lead it to a conclusion favouring demolition. Again, this finding was not one that required, as opposed to could have been the subject of, further explanation.
Mr and Mrs Sharpe also complain that SAT did not analyse any elements of the planning framework in order to justify its findings that entry on the MHI 'precluded demolition, regardless of the cost of restoring the premises in order to achieve the aesthetic cultural heritage significance which the premises lacked by virtue of its derelict state, or regardless of any other consideration' (appellants' written submissions, par 12).
It can be seen from the above quotation from Mr and Mrs Sharpe's written submissions that, in effect, they are simply complaining that SAT reached conclusions or findings of fact which they do not agree with. It seems to me that it would not have mattered what SAT had said in order to justify its finding that demolition should not be approved, Mr and Mrs Sharpe would not have found the reasons to be adequate, let alone compelling. SAT does not make an error of law by failing to give reasons for decision which an unsuccessful party believes does not justify its decision.
Further, SAT did not find, as alleged, that entry on the MHI precluded demolition no matter what the cost of restoration or regardless of any other consideration. This is a misrepresentation of SAT's findings, which is apt to obscure any questions of law arising out of SAT's decision rather than illuminate them.
Mr and Mrs Sharpe complain that SAT referred to Slusarczyk and City of Stirling [2008] WASAT 194 'in a way which suggests that an analysis of the planning framework in that case was incorporated by reference' into SAT's reasons. Mr and Mrs Sharpe say that Slusarczyk suffers from the same fault of generalising the planning instruments. In Slusarczyk SAT, comprising the presiding officer from the SAT panel which heard this review, considered the contents of the instruments providing the planning framework in that case and said:
The net result of the instruments referred to above is, generally speaking, to place significant barriers in the way of a party seeking to demolish a dwelling house in Mount Lawley. In Branca and City of Stirling [2008] WASAT 69 (Branca) the Tribunal went further, saying (at [67]):
'The objective of the Guidelines to "retain and conserve original buildings ... particularly those dating from the early 1900s to the 1950s" creates a general presumption in favour of retaining such buildings. However, such a policy aspiration is not determinative of the matter and individual applications are required to be assessed on their merits.'
Whether these instruments, correctly interpreted, go so far as to create a presumption against demolition or are just 'significant barriers' to the same might turn out to be a distinction without a difference [25] ‑ [26].
In addition, in Slusarczyk SAT agreed with what was said by SAT, differently constituted, in Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316 [56] when preferring the local government's expert evidence to that of the applicant homeowners:
[I]f for no other reason than that the heritage values [the Council's expert's name] articulated are consistent with the tenor and aim of the respondent's planning instruments (which are themselves, importantly, based upon modern conceptions of 'heritage': see, for example, Boer and Wiffen's Heritage Law in Australia, OUP 2006, Part IV), and are, unsurprisingly, easily demonstrated by, or applicable to, the social and physical context of this particular house and land [56].
In Slusarczyk, SAT went on to say in the context of that case:
In addition, [the expert's name] evidence particularly emphasised what he saw as the severely compromised condition of parts of the premises and, indirectly at least, the significant costs associated with repair or restoration. However, such matters are to be considered in the context of the overarching heritage values enunciated most recently and emphatically in SPP 3.5. We should recall that that important document contains this statement:
'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.'
SPP 3.5 had not been published when Tran was decided yet, speaking generally, they arrive at the same position.
[The experts name] already properly concedes in the joint statement that:
'[The] house makes a contribution to the streetscape of Regent Street West and to the Mt Lawley Heritage Protection Area through its form, scale, mass, texture and colour. In particular, the form of the main roof extending over the deep front verandah with its curved timber beams and simple decorative posts make a positive contribution to the streetscape.'
In Branca, the Tribunal was faced with similar issues to that under review here. Demolition was sought of an existing residence, 'a simple Californian Bungalow constructed circa 1930s' in nearby Inglewood. Its condition 'appear[ed] to be sound'. While the existing house '[had] undergone changes, the form of the house and its location on the site [were] representative of its architectural style'. Senior Sessional Member P de Villiers decided, at [53], as follows:
'In regard to the question of the cultural heritage value of the existing dwelling, the Tribunal finds that while the alterations to the existing dwelling have clearly impacted on the level of integrity of the existing dwelling the fact that it is still "representative of its architectural style" suggests this impact has not been so extensive as to render it devoid of cultural heritage significance.'
Demolition was therefore refused and the decision there under review was affirmed; the Tribunal as presently constituted respectfully agrees with that conclusion.
In support of his case, Dr Slusarczyk cited May and Town of Victoria Park [2008] WASAT 40, a decision of Member J Jordan of this Tribunal. However, the demolition of an existing dwelling, originally from the 1920s, that was approved in that case was made under a much less restrictive scheme that that of the City of Stirling's. There was no HPA or heritage listing and the Town of Victoria Park was not particularly advanced as regards their preservation policies ('the Council has not, [since] November 2006, implemented "development control measures that would secure the retention of the remaining dwellings" identified in the Residential Character Study').
That case is of no relevance to the respondent's Scheme and the policies adopted here, which are exactly to the opposite effect.
[The expert's name] further concedes that repair and restoration would be possible, although significant work would have to be undertaken. So much may be accepted, and likewise as to the corresponding burden that this places upon the owner who does not wish to sell his property.
The Commonwealth's Productivity Commission observed in 2006 that:
'Existing appellate bodies, such as the Land and Environment Court in New South Wales and Victorian Civil and Administrative Tribunal [to which list this Tribunal could be added], could be used to hear appeals against [heritage] listing on the basis of "unreasonable costs". Introduction of such appeals would be facilitated by the inclusion of a non‑exclusive indicative list of examples in amending legislation. For example, "unreasonable" would not include normal maintenance, but would, prima facie, include forgone development opportunities in relation to use and enjoyment otherwise permitted for the property, and unjustifiable hardship imposed on the owner by additional maintenance, repair or restoration costs to provide the extra heritage conservation. It could be expected that initially there would be a number of appeals, while owners and listing authorities test the new ground for appeal and precedents are established. However, it would also be expected that appeals that occur currently on the basis of a lack of heritage significance (to avoid statutory listing) would not proceed. Conservation of Australia's Historic Heritage Places, Productivity Commission Inquiry Overview, No 37, 6 April 2006 at 31.'
Such matters of policy cannot, of course, be pursued in this Tribunal. But the point can be made that such considerations of hardship, even perhaps suggestions of 'unreasonable hardship', were well‑known to the promulgators of instruments imposing restrictions on the owners of heritage property and notwithstanding that recognition, the policies were still issued or made. I have previously made the point that policies 'found to be valid and applicable, must be applied in the knowledge that they were drafted with reference to the status quo and must be construed and applied in that light': Tooth v City of Subiaco (2005) 41 SR (WA) 198; [2005] WASAT 317 at [58]. [44] ‑ [53]

I disagree with Mr and Mrs Sharpe's submission that to the extent that SAT in this case incorporated the above analysis of the planning framework from Slusarczk, that it was incorporating an inadequate and generalised analysis of the relevant planning instruments. As can be seen from the above excerpts, in Slusarczk SAT considered and weighed the overall effect of the planning framework which applied in that case. It was substantially the same framework which applied to this case.
Mr and Mrs Sharpe say that the analysis in Slusarcsk overlooks the Heritage Act s 4(3). I accept that it does not consider s 4(3), but for the reasons given earlier I am not of the view that Mr and Mrs Sharpe can rely on that omission.
In the context of their complaint that SAT failed to take into account their rights as landowners, Mr and Mrs Sharpe rely on Barnes v State Planning Authority (1977) 37 LGRA 298. This was a decision of a single judge of the Supreme Court of South Australia under the relevant town planning scheme. It has little, if any, relevance to an analysis of either the planning framework which applied to this case or to the statutory decision‑making provisions which applied to this case. Another point of distinction is that the general approach to planning law has moved on considerably in the over 30 years since Barnes was decided.
Finally, I see little in Barnes which is of assistance to Mr and Mrs Sharpe. In Barnes Jacobs J said that the decision‑maker had a 'delicate and difficult task' in weighing public interest against private rights, but that balancing the public interest against private interests could not allow personal considerations of sympathy with litigants to dictate or influence a departure from sound principles and personal hardship could seldom be decisive. His Honour said that where planning principles invoked produced 'grave hardship' the relevance and applicability of those principles to the facts of a particular case demand very close and careful scrutiny (302).
I do not acknowledge that this case required balancing public interest against private interests. The planning framework clearly puts the emphasis on the conservation of places of cultural heritage significance. Whether this was such a place was primarily a question of fact for SAT to decide. However, assuming that the cost and inconvenience of conservation to a property owner were relevant matters to be taken into account in making a decision of this nature, there was no evidence before SAT of 'grave hardship' to Mr and Mrs Sharpe or of any particular hardship to Mr and Mrs Sharpe in respect of these issues that would have been a significant factor in the decision‑making process in this case.
Mr and Mrs Sharpe, in their written submissions list eight matters which they say that SAT failed to take into account in making its decision. In response to a question I asked at the hearing of the appeal, their counsel said that the obligation to take these matters into account arose from SPP cl 6.5 and cl 6.6 and the Heritage Act s 4(3). It is important to determine the source of the obligation as a decision‑maker's failure to take a matter of fact into account is not an error of law unless it is legally obliged to take the matter into account.
The first two matters which Mr and Mrs Sharpe say that SAT failed to take into account were that they purchased the property in 1993, with the intention that it be demolished and a new home built on it, and it was not placed on the MHI for a further five years. Reading SAT's decision as a whole it can not be said that SAT was unaware of or failed to take into account when the land was entered on the MHI [37] and what Mr and Mrs Sharpe wished to do with the Land, once the House was demolished [34]. Although SAT did not refer in its reasons to the length of time Mr and Mrs Sharpe had owned the Land, I am not of the opinion that it was required as a matter of law to do so. Given that it was common ground between the parties that Mr and Mrs Sharpe had known since at least 1998, that is for the previous 12 years, that the Town was against demolition of the House, it is not unsurprising that SAT did not think that it was of particular importance that Mr and Mrs Sharpe had owned the Land for five years before that.
The next matter which Mr and Mrs Sharpe say that SAT failed to take into account in making its decision is that SPP 3.5 only came into affect in 2007, that is 14 years after they purchased the land and nine years after they first applied to demolish the House. Again this is a matter which SAT was not required as a matter of law to take into account. This is especially as Mr and Mrs Sharpe had been aware since 1998 that the Town would refuse demolition of the House on heritage grounds, even absent SPP 3.5.
The fourth matter which Mr and Mrs Sharpe say that SAT failed to take into account in making its decision is that there was no evidence that they had deliberately allowed the House to become derelict in order to avoid heritage issues. I am unsure as to the meaning of this submission. I do not see how it was relevant to SAT's decision that the House had not become derelict due to deliberate neglect by Mr and Mrs Sharpe, let alone that SAT was required as a matter of law to take that matter into account. The fact is that the House was in a state of disrepair. The tribunal took into account its current condition when it made its decision.
The fifth matter which Mr and Mrs Sharpe say that SAT failed to take into account in making its decision is that it would cost more to restore the House than to replace it, such that it had reached the end of its economic life. I do not accept that contention and I explain why when I separately consider ground 3(c).
The sixth matter which Mr and Mrs Sharpe say that SAT failed to take into account is the 'relative significance' of the place to the streetscape and how much benefit its retention would confer on the community.
SPP 3.5 cl 6.5 and cl 6.6 and the Heritage Act s 4(3) did not require SAT to take these matters, as articulated by Mr and Mrs Sharpe, into account. The Heritage Act defines cultural heritage significance in terms of a place's relative value. SAT made a finding that as a group, the House and adjourning properties constitute an area of value [66] and that demolition of the House would have an adverse impact on the cultural heritage value of the area [67]. Whilst SAT could have been more expansive in its view, I do not accept that it erred in law in failing to take the alleged matters into account.
The seventh matter which Mr and Mrs Sharpe say that SAT failed to take into account is that the House's significance and benefit to the community rested on its presumed capacity for restoration, not on its current derelict state. Yet Mr and Mrs Sharpe say that there is no evidence of when or how the House would be restored to a standard which would justify its retention.
SPP 3.5 cl 6.5 and cl 6.6 and the Heritage Act s 4(3) did not require SAT to take these matters, as articulated by Mr and Mrs Sharpe, into account. However, I have dealt with this general grievance under ground 4.
The eighth and final matter which Mr and Mrs Sharpe say that SAT failed to take is really two separate matters. The first is a failure to take into account the views of the Heritage Council and the second is that it was open to infer and SAT should have inferred that the unexplained failure to list adjoining heritage houses in Joel Terrace on the MHI meant that the House was not sufficiently significant such that its significance outweighed all other relevant matters favouring demolition.
I will deal with the second matter first. This point does not raise a matter of law. I do not read the submission as suggesting that it was not reasonably open to SAT to come to its conclusion that the absence of other heritage houses in Joel Terrace from the MHI did not preclude it finding that the House had cultural significance and that the demolition of the House would have an adverse impact on the cultural heritage value of the locality. Even if the submission is saying that this was not an inference open to SAT, I would not agree with it. SAT was entitled to come to this view on the facts before it.
As to the first point, as the Heritage Act s 4(3) did not apply to the review, there was no requirement of law for SAT to seek and rely on the views of the Heritage Council. I have dealt with the issue as to whether the Heritage Act s 4(3) applied under ground 2.
Next, I will consider the specific terms of the subparagraphs of ground 3.

Ground 3(a)

Mr and Mrs Sharpe complain specifically in ground 3(a) that SAT failed to have any regard to whether the application for approval for demolition should properly be deferred until after they had applied for approval of a new development on the Land and the Town assessed it in the context of this application and the relevant planning principles.
The simple fact is that Mr and Mrs Sharpe did not ask SAT to defer this application until they had made an application for approval of a new development. The power given to a decision‑maker to defer an application for demolition pending such an application is discretionary. SAT was aware that Mr and Mrs Sharpe proposed to seek approval for a replacement building if demolition of the House was approved. SAT raised with Mr and Mrs Sharpe's representative their failure to present, what SAT described as, a 'plan B' (SAT ts 11/11/09, page 206) if their primary argument that the demolition application should be allowed even though it was not accompanied by an application for a proposed new building, was unsuccessful. Despite this, Mr and Mrs Sharpe did not make any application for a deferral of the decision on the application for demolition.
I agree with the Town that no question of law is involved in a ground of appeal if an appellant attempts to raise an issue concerning facts which were not in issue before SAT and, as a result, were not dealt with or determined by it: City of Canning v Avon Capital Estates (Australia) Ltd (2009) 169 LGERA 15; [2009] WASCA 120 [23]; Physiotherapists Registration Board v Townsend [2008] WASCA 25 [19], [21].

Ground 3(b)

Ground of appeal 3(b) asserts that SAT erred in law in failing to have any regard to the fact that Mr and Mrs Sharpe had purchased the Land when the premises had not been registered on the MHI such that it would be an unjust fetter on their property rights to constrain their use of the premises by such registration.
For the reasons given in respect of ground 2 the relevant planning framework did not require SAT to take this consideration into account when determining the review.

Ground 3(c)

Mr and Mrs Sharpe complain by way of ground 3(c) that SAT erred in failing to have regard to the uncontradicted expert evidence of Mr Wilson to the effect that the House had reached the end of its useful economic life, such that the cost of properly restoring it may exceed the cost of complete demolition and construction of a new dwelling with a design and style which would complement other developments within the area.
SAT accepted the evidence of Mr Wilson but came to a view in respect of that evidence that the cost of restoring the House did not 'lead to a conclusion favouring demolition': [72] ‑ [75], [83]. This was a finding on the facts which was open to SAT.
An opinion that the cost of restoration of a building 'may' exceed the cost of complete demolition and replacement with a complementary building does not, as a matter of fact or law, preclude a decision‑maker from concluding that the cost of restoration does not lead to a conclusion favouring demolition. Some extra cost to private landowners in conserving and restoring places of cultural heritage significance as opposed to demolishing and redeveloping may well be the result of the appropriate application of the planning framework.
I do not accept that SAT failed to have any regard to the evidence of Mr Wilson. Its conclusions in respect to his evidence were open to it.
I also note that Mr and Mrs Sharpe did not present any comparison of the costs of restoration as opposed to demolition and replacement with a complementary building. No details were given about any proposed redevelopment of the site. SPP 3.5 cl 6.6 states that demolition of a local heritage place should be avoided wherever possible. The House was a local heritage place because it was on the MHI and was found by SAT to have cultural heritage significance. Whilst cl 6.6 admits that there will be circumstances where demolition of a local heritage place is justified, it states that the onus rests with the applicant to provide a clear justification for it. Merely showing that the cost of restoration 'may' exceed the cost of demolition and replacement with a complementary building does not provide 'clear justification' for demolition of a local heritage place. This is made clear by the second dot point in cl 6.6 which says, expressly, that demolition approval should not be expected simply because redevelopment is a more attractive economic proposition.
SAT considered the demolition proposal as required by cl 6.6 on the basis of the significance of the building, the feasibility of restoring it and any local planning policies relating to the demolition of heritage places. It did not consider the extent to which the community would benefit from the proposed redevelopment as there were no details of such proposed redevelopment before it; see [110].
For these reasons, I would grant leave to appeal in respect of ground 3 but refuse the appeal.

Ground 4

Ground 4 complains about the inadequacy of SAT's reasons for its finding that the House had 'relevant cultural heritage significance'. I have previously set out the statutory framework which requires SAT to give reasons for its decision.
Part of this ground restates the earlier complaint that SAT failed to give adequate reasons for its finding that the House had cultural heritage significance. For the reasons given earlier, I am of the view that SAT's reasons in this regard were adequate and do not give rise to an error of law relating to a failure to give adequate reasons.
However, this ground extends that complaint by asserting that the Tribunal wrongly based its analysis on the assumption that the House would one day be restored to match the aesthetic value of the houses around it and secondly, that it caused a miscarriage of justice in depriving Mr and Mrs Sharpe of being able to construct the home they had been striving to construct for more than 12 years.
I do not discern in SAT's reasons that it assumed that Mr and Mrs Sharpe would restore the House to entirely match the aesthetic values of the houses around it. Nevertheless, the fact is that Mr and Mrs Sharpe had been served with the Renovation Notice, issued under the Local Government (Miscellaneous Provisions) Act s 409(1), which required them to bring the appearance of the House 'into conformity with the general standard of appearance of the buildings in the locality'. The notice there set out works which were required including repairing the roof, repairing the fascia and associated woodwork to the front gable, removing corrugated iron cladding to all external openings, reinstating and reglazing all external windows and doors, repairing the decorative timber valence of the verandah, removing a pergola at the rear of the House and general garden maintenance. I do not see that there would be any error in a decision‑maker taking into account that a notice of this type had been issued and assuming that a landowner will comply with it.
Mr and Mrs Sharpe's submission that a miscarriage of justice occurred because SAT's decision deprived them 'of being able to construct the home they had been striving to construct for more than 12 years' is most unhelpful. There was no evidence before SAT that there was anything in particular which Mr and Mrs Sharpe wished to construct, which was not able to be constructed in conjunction with the preservation of that part of the House which had cultural heritage significance.
Further, planning laws often fetter a landowner's wish and freedom to develop their property in a particular way. SAT cannot be expected to take into account such a broad consideration without detailed evidence. This is so because of the requirements of SPP 3.5. It specifically states that demolition of a local heritage place should be avoided wherever possible and that the onus rests with an applicant to provide a clear justification for it. Further, demolition approval should not be expected because a building has been neglected. If an applicant for demolition of a property, which has cultural heritage significance, wishes to justify demolition of that house in a review before SAT, then they must present 'a clear justification' for the demolition. Simply providing evidence that redevelopment may be cheaper or asserting that demolition should be approved because a building is in a state of neglect, is unlikely in the context of a relevant planning framework which includes SPP 3.5 to provide a clear justification for demolition. SAT was entitled to, and did, on the facts of this case find that those factors did not provide a clear justification for demolition.
I would grant leave to appeal in respect of ground 4 but refuse the appeal.

Ground 5

This ground only arises if another ground of appeal is successful. For the reasons I have given, none of the other grounds of appeal are successful. This ground of appeal must also fail.
The appeal is dismissed.