Slusarczyk and City of Stirling
[2008] WASAT 194
•26 AUGUST 2008
SLUSARCZYK and CITY OF STIRLING [2008] WASAT 194
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 194 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:87/2008 | 21 MAY 2008 | |
| Coram: | MR P McNAB (MEMBER) | 26/08/08 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review is affirmed and the application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | CARL ANTHONY SLUSARCZYK CITY OF STIRLING |
Catchwords: | Town planning Development application for demolition Heritage considerations c1920 bungalow in Mount Lawley Property in Heritage Protection Area Property substantially modified over time and in need of repair State of intactness of subject property Absence of State or local heritage listing Whether Scheme and corresponding Guidelines presumed conservation of such properties as a starting point Contribution of property to cultural heritage discussed Differing views of heritage experts Significant heritage conservation values underlying planning framework Planning framework not inconsistent with 2007 State Planning Policy 3.5 Historic Heritage Conservation Interpretation of heritage values Whether Tribunal should inquire into the creation of and assumptions that underlay the local planning framework Demolition refused by Tribunal Application dismissed |
Legislation: | City of Stirling District Planning Scheme No 2, cl 2.1, Sch 4 Planning and Development Act 2005 (WA), Pt 3 |
Case References: | Branca and City of Stirling [2008] WASAT 69 May and Town of Victoria Park [2008] WASAT 40 Tooth v City of Subiaco (2005) 41 SR (WA) 198; [2005] WASAT 317 Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316 |
Orders | 1. The decision under review is affirmed.,2. The application for review is dismissed. |
Summary | This review dealt with the proposed demolition of a house in Mount Lawley, originally constructed around 1920. The house had had substantial modifications made to it over the decades, and was, in parts, badly in need of repair.,The City of Stirling had extensive heritage controls in the Mount Lawley area. Although the house was not on any heritage list or register it was located within a Heritage Protection Area. Practically this meant that a considerable case had to mounted for demolition to be approved. This position was not inconsistent with the State's 2007 State Planning Policy 3.5 Historic Heritage Conservation.,The City of Stirling refused demolition approval on the basis that the house, notwithstanding the previous modifications and the repairs that were needed to it, significantly contributed to the heritage values expressed in the planning framework.,The Tribunal, on review, agreed with the City of Stirling. The Tribunal accepted expert evidence that the house made a contribution to the streetscape, and to the Mount Lawley Heritage Protection Area "through its form, scale, mass, texture and colour". The Tribunal also agreed with the proposition that the heritage significance of the Mount Lawley Heritage Protection Area would be adversely affected if this existing building were to be demolished.,The applicants had also sought to argue wider matters of heritage policy issues, and attacked the processes that led to, or the assumptions that underlay the current heritage policy reflected in the City of Stirling's planning framework.,The Tribunal discussed why such matters were not generally within its jurisdiction. It was the Tribunal's task to apply such instruments faithfully in accordance with the maker's intention. The Tribunal said, "Where policy is expressed as here mainly in legislative form and is otherwise rational and capable of application it ought to be applied as it was intended.",The decision under review was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SLUSARCZYK and CITY OF STIRLING [2008] WASAT 194 MEMBER : MR P McNAB (MEMBER) HEARD : 21 MAY 2008 DELIVERED : 26 AUGUST 2008 FILE NO/S : DR 87 of 2008 BETWEEN : CARL ANTHONY SLUSARCZYK
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application for demolition - Heritage considerations - c1920 bungalow in Mount Lawley - Property in Heritage Protection Area - Property substantially modified over time and in need of repair - State of intactness of subject property - Absence of State or local heritage listing - Whether Scheme and corresponding Guidelines presumed conservation of such properties as a starting point - Contribution of property to cultural heritage discussed - Differing views of heritage experts - Significant heritage conservation values underlying planning framework - Planning framework not inconsistent with 2007 State Planning Policy 3.5 Historic Heritage Conservation - Interpretation of heritage values - Whether Tribunal should inquire into the creation of and assumptions that underlay the local planning framework -
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Demolition refused by Tribunal - Application dismissed
Legislation:
City of Stirling District Planning Scheme No 2, cl 2.1, Sch 4
Planning and Development Act 2005 (WA), Pt 3
Result:
The decision under review is affirmed and the application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr N Maull (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Stirling
Case(s) referred to in decision(s):
Branca and City of Stirling [2008] WASAT 69
May and Town of Victoria Park [2008] WASAT 40
Tooth v City of Subiaco (2005) 41 SR (WA) 198; [2005] WASAT 317
Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316
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Summary of Tribunal's decision
1 This review dealt with the proposed demolition of a house in Mount Lawley, originally constructed around 1920. The house had had substantial modifications made to it over the decades, and was, in parts, badly in need of repair.
2 The City of Stirling had extensive heritage controls in the Mount Lawley area. Although the house was not on any heritage list or register it was located within a Heritage Protection Area. Practically this meant that a considerable case had to mounted for demolition to be approved. This position was not inconsistent with the State's 2007 State Planning Policy 3.5 Historic Heritage Conservation.
3 The City of Stirling refused demolition approval on the basis that the house, notwithstanding the previous modifications and the repairs that were needed to it, significantly contributed to the heritage values expressed in the planning framework.
4 The Tribunal, on review, agreed with the City of Stirling. The Tribunal accepted expert evidence that the house made a contribution to the streetscape, and to the Mount Lawley Heritage Protection Area "through its form, scale, mass, texture and colour". The Tribunal also agreed with the proposition that the heritage significance of the Mount Lawley Heritage Protection Area would be adversely affected if this existing building were to be demolished.
5 The applicants had also sought to argue wider matters of heritage policy issues, and attacked the processes that led to, or the assumptions that underlay the current heritage policy reflected in the City of Stirling's planning framework.
6 The Tribunal discussed why such matters were not generally within its jurisdiction. It was the Tribunal's task to apply such instruments faithfully in accordance with the maker's intention. The Tribunal said, "Where policy is expressed as here mainly in legislative form and is otherwise rational and capable of application it ought to be applied as it was intended."
7 The decision under review was affirmed.
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Introduction and background
8 Dr and Mrs Slusarczyk (applicants) applied to the respondent City of Stirling (respondent or City) in February 2007 for the demolition of their existing dwelling at No 6 (Lot 548) Regent Street West, Mount Lawley (subject land) and for the construction of a replacement dwelling. They have resided on the subject land since 1991.
9 The subject land comprises a large block (1194 square metres) with a low density residential zoning. The land is on the north side of Regent Street West and west of Beaufort Street in the Mount Lawley precinct. The house is in a Heritage Protection Area (HPA) under the City's planning scheme but is not listed on any heritage list or register. The house was probably constructed around 1920, but may have been built in the decade before then.
10 The Tribunal has been assisted with a view of the subject land, the dwelling house itself (including its interiors) and the immediate surrounding streetscape.
11 The application was eventually refused in February 2008 on the basis that the planning framework required the house's preservation from demolition on heritage protection grounds.
12 Alternatives to demolition were explored between the parties (including discussions in the Tribunal) but no satisfactory alternative outcome could be agreed between the applicants and the respondent.
13 From the very commencement of the process of seeking development approval for demolition (which led eventually to this review), Dr Slusarczyk has maintained his opposition to a heritage retention policy which would have effect so as to preserve this type of dwelling, having regard to its history and condition. He is not opposed to heritage protection in Mount Lawley but, shortly put, his dwelling needs significant repair and has been substantially modified over time. It is not suggested that the house is structurally unsafe. The house is, however, in his view, neither rare nor outstanding; it is "low worth in terms of its heritage values". He is supported in this view by expert opinion.
14 In his view, the virtual prohibition on demolition effected under the City's planning framework (discussed in detail below) does not meet proper heritage goals and was otherwise flawed in terms of its creation.
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15 He has argued this position in well-written, lengthy and well-researched submissions made to both the City and to this Tribunal.
The planning framework
16 The City's District Planning Scheme No 2 (DPS 2 or Scheme), so far as is relevant, provides as follows:
2.1 PRELIMINARY
This Part of the Scheme [PART 2: RESIDENTIAL PROVISIONS] shall apply to the development of all residential dwellings and other uses which are permitted or may be permitted by the Council in any of the Residential Zones within the Scheme Area listed in Clause 2.2.1.
...
2.2.3 HERITAGE PROTECTION AREAS
2.2.3.1 INTENT OF THE HERITAGE PROTECTION AREAS
It is the intention of the Council to ensure that any new development within a Heritage Protection Area is in harmony with and reflects:
(a) the character of existing dwellings in the area; and
(b) the local streetscape and existing pattern of development.
The land comprising the Heritage Protection Areas is depicted in Schedule 4 of the Scheme and is also delineated accordingly on the Scheme Map.
2.2.3.2 DEVELOPMENT WITHIN A HERITAGE PROTECTION AREA
Development within a Heritage Protection Area shall comply with the following:
(a) the intention of the Council under Clause 2.2.3.1 of Scheme [see immediately above];
(b) unless otherwise approved by the Council, the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and
- (c) the Character Retention Design Guidelines adopted by the Council.
2.2.3.3 APPLICATION FOR APPROVAL
In addition to the provisions of Clause 1.3.5 [dealing with applications for the use or development of land zoned or reserved under DPS 2], an application for a Building Licence or for the Council's prior approval to commence development, as the case may be, shall also include:
(a) street, side and rear elevations, drawn to a scale of 1:100, showing the proposed development.
(b) an internal floor plan, drawn to a scale of 1:100, of the proposed development.
(c) In addition to a site plan, a plan of the proposed development site showing existing and proposed ground levels over the whole of the lot and the location, type and height of all existing vegetation exceeding two metres in height. Such a plan shall be drawn to the same scale as the site plan.
(d) A detailed schedule of finishes, including type and colour of existing and new materials to be used in the proposed development.
2.2.3.4 DEMOLITION WITHIN A HERITAGE PROTECTION AREA
In addition to the provisions of Clause 1.3.5, an application to demolish a building in a Heritage Protection Area must be accompanied by an application for Council's prior approval to commence development for that site. The Council shall not issue a demolition licence for a site, if the application for Council's prior approval to commence development for that site has not been approved.
2.2.3.5 GRANTING OF APPROVAL
The Council in having regard for the Heritage Protection Area Design Guidelines may in respect of an application for a Building Licence or for its prior approval to commence development, as the case may be:
(a) refuse to grant a Building Licence or its approval to commence development if it is of the opinion that the proposed development does not comply with the Design Guidelines.
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- (b) specify alterations to be made to the design of the proposed development.
(c) notwithstanding the schedule of finishes submitted, specify an alternative schedule of finishes to be used in the proposed development.
17 It is common ground that the subject land is located in "[t]he land comprising the Heritage Protection Areas [as] depicted in Schedule 4 of [DPS 2] and is also delineated accordingly on the [DPS 2 scheme map]". The precise description of the relevant HPA is, according to the Heritage Protection Areas of Mount Lawley, Menora and Inglewood:Character Retention Design Guidelines dated July 2006 (Guidelines), the "Mt Lawley (Estates 1 & 2) Heritage Protection Area". This document, at page 5, describes this area as "an area of exceptional significance".
18 The Guidelines are an extensive document and include coverage of the character and history of each area (with illustrations). It is also common ground that this document is the instrument described as the "Character Retention Design Guidelines adopted by the Council" referred to in cl 2.2.3.2 of DPS 2 set out above.
19 Critically, the following "design guidelines" appear in that document (at 18):
3.0 DESIGN GUIDELINES
3.1 Demolition Of Existing Buildings
Objective
• Retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s.
From time to time it is acknowledged that applications will be received proposing to demolish houses within the Heritage Protection Areas. Applicants wishing to demolish a house within the Heritage Protection Area are required to lodge a planning application (Application for Approval to Commence Development) as per Clause 1.3.5.1 of the District Planning Scheme. The application should include a written justification for the proposed demolition addressing the points below, as well as any further justification that may be relevant:-
a) Detail why the character of the building and its setting does not contribute to the character of the Heritage Protection Area and streetscape;
- b) Detail why the building is not a typical or intact example of a specific architectural style or building type, or is not an example of a building containing unusual or finely executed detailing;
c) Detail (with written documented evidence provided by an independent expert) why the place is structurally unsafe and irredeemable, and the conservation of the place is not viable (NB; property owners are responsible for the maintenance of their asset, and allowing a property to fall into disrepair will not facilitate an approval for demolition). Only where the place has been identified as an "intrusive" or "neutral" place (houses or unit developments of more recent design), consideration can be given to varying this requirement;
d) Is the building listed on the City's Heritage List[?];
e) Is the building the work of a noteworthy architect, designer or builder[?];
f) Was the building the home of an important person in the history of the locality, or the location of a significant event or activity in the history of the locality[?];
g) Does the building have a significant meaning to a specific and identifiable group in the community[?].
- Prior to the approval of any demolition/development proposed in a Heritage Protection Area, the City may require a heritage assessment by a heritage/architectural professional to be carried out. This assessment will assist the City in determining if an application and the written justification provided by the applicant is accurate and in accordance with the objectives of these guidelines.
Where is it proposed that a place on the Heritage List is to be demolished then the proposal may be advertised in accordance with Clause 1.3.5.3 of District Planning Scheme No. 2.
20 Dr Slusarczyk's application for demolition has been particularly assessed against the seven criteria a) to g), which are set out above.
21 It is useful to record some of the history that led to the Guidelines being adopted. This was summarised by the respondent's officers in January 2008 as follows (internal references omitted, emphasis added):
At its meeting on 12 November 2002, Council considered a report on the Heritage Protection Areas (HPA) of Mount Lawley, Menora and Inglewood, and resolved to proceed with a review of the Area Guidelines. In March and July 2003, a number of workshops (one involving
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- community representatives and two involving Councillors) occurred as a part of this process to determine the scope and direction of the review, with Council endorsing a number of key principles including "there should be a more flexible approach to the demolition of less significant buildings (i.e. post 1950's intrusive buildings) where replacement buildings meet the Guidelines. However, demolition of 'character' buildings is still discouraged and should be subject to assessment (not be 'as of right'), even where the proposed replacement dwelling is of an acceptable design".
Based on this direction, revised Guidelines were drafted in late 2003 but were subsequently discarded in favour of a revised policy format based on "deemed to comply" standards. This revised document, which became known as the "Character Retention Policy", was advertised for public comment in July 2004. Significant concerns were raised about the "deemed to comply" format, and as such, Council at its meeting on 19 April 2005 resolved to not proceed with the Character Retention Policy and continue the review based on the direction/principles previously endorsed.
At its meeting on 25 October 2005, Council considered a report confirming the direction of this second stage of the HPA Guideline review. Council resolved "that the second stage review proceed in accordance with the issues previously identified, plus those additionally identified in this report ..." which included "provide greater demolition control, and ensure that demolition is not 'as-of-right'".
Based on this direction, revised Guidelines were drafted and became known as the "Character Retention Design Guidelines". These Guidelines followed the direction endorsed by Council to protect character, discourage demolition, and identified construction periods where demolition may be appropriate (post 1950's). At its meeting on 21 March 2006, Council endorsed the Guidelines for the purposes of advertising.
At the conclusion of the public advertising period, comments on the issue of demolition generally expressed the view that the demolition provisions contained in the Guidelines did not adequately protect properties in the HPA's and that the City should impose further restrictions on allowing demolition to occur. Given this, and that Council has also expressed the desire to tighten demolition controls, minor changes to wording of the Guidelines to include stronger language were affected [sic, effected].
The Character Retention Design Guidelines for the HPA's of Mount Lawley, Menora and Inglewood were subsequently adopted by Council at its meeting on 18 July 2006.
22 Mention should also be made of State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) which was prepared under Part 3 of the Planning and Development Act 2005 (WA) by the Western Australian Planning
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- Commission and published in the Western Australian Government Gazette, No 112 (29 May 2007). So far as relevant, SPP 3.5 provides as follows:
Heritage supports urban and rural amenity by providing familiarity and the presence of landmarks, by underpinning our "sense of place", and by enhancing the quality of our built environment generally.
Heritage conservation can aid economic prosperity by contributing to the attractiveness of the living and working environment, and encouraging investment in a locality or region from homeowners, investors and tourists. The avoidable loss of buildings through demolition and neglect is a waste of economic as well as environmental resources.
As set out in the State Sustainability Strategy, heritage conservation and sustainable economic development should be seen as complementary rather than conflicting objectives. Most heritage places can be put to good economic use for commercial, residential or other purposes. Adaptation of buildings for new uses will often be the key to conservation of heritage places that no longer serve their original function, and will often require imagination and flexibility. Exercising effective controls over land use, density and plot ratios through town planning schemes and other planning controls is an important practical way in which the planning system can contribute to heritage conservation outcomes.
Tensions between those committed to retaining the best from the past, and those committed to building the new or optimising property investments, are common to most modern societies. The planning system provides one of the mechanisms by which those tensions can be resolved.
Effectively conserving, using and managing State and local heritage assets, therefore, requires a balanced, integrated and imaginative approach which properly takes into account the views of landowners, the community, and State and local governments. The Historic Heritage Conservation policy [SPP 3.5] promotes and facilitates such an approach.
6 POLICY MEASURES
6.1 Identification and assessment
…
6.2 Designation of heritage areas
Heritage areas are designated under local town planning schemes.
- A heritage area should always be designated on the basis of a clear statement of significance, and a clear identification of the significant physical fabric in the area. This information may be provided within a local government inventory or in other supporting assessment documentation.
In designating a heritage area, the local government is required to adopt a local planning policy that sets out the objectives and guidelines for conserving the significant heritage fabric of the area.
- 6.3 The difference between heritage areas and urban character areas
It is important to distinguish between "historic heritage significance" and "urban or neighbourhood character". Not all areas of urban or neighbourhood character have a level of historic heritage significance which warrants protection.
Urban character is essentially identified by built form and age, topography, open space, streetscape, land use and activity, and all areas exhibit some form of urban character. However planning controls in urban character areas do not necessarily require restrictions on demolition or building design.
…
6.5 Relevant considerations for development assessment
…
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.
- ...
- 6.6 Development control principles
The following development control principles should be applied in considering planning applications in relation to a place entered in a heritage list, a place or area entered in the state register, or a heritage area designated pursuant to a local planning scheme.
The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.
…
Demolition of a heritage place (including a place within a heritage area)
• Demolition of a State heritage place is rarely appropriate and should require the strongest justification. Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests with the applicant to provide a clear justification for it.
• Demolition approval should not be expected simply because redevelopment is a more attractive economic proposition, or because a building has been neglected. Consideration of a demolition proposal should be based upon the significance of the building or place; the feasibility of restoring or adapting it, or incorporating it into new development; the extent to which the community would benefit from the proposed redevelopment; and any local planning policies relating to the demolition of heritage places. …
25 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
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- 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.
The respondent's case
27 The history of the development of the Guidelines is summarised above. Mr N Maull, a planner appearing for the respondent City, emphasised that the Guidelines "are focussed on 'character retention' which comprises not only the individual house but its setting within its street and surrounds".
28 Palassis Architects, on behalf of the City, first provided heritage advice to Council in June 2007. That document concluded as follows:
While [6 Regent Street West] appears to have undergone changes that have somewhat diminished its streetscape value, it still retains its general overall bungalow form and contributes to the streetscape character. From an external (street) inspection, the building appears to be in a reasonable condition for its age.
If the proponent wishes to proceed with the demolition proposal, the changes and the condition of the building needs to be independently verified. The proponent should be encouraged to seek independent expert advice regarding the integrity and authenticity of the existing fabric and the merits of ongoing maintenance and repair of the existing building and its foundations.
Demolition should not be considered until these requirements are met and reported to the City of Stirling through a brief proponent's statement, identifying the points raised above, and supporting independent report/s, bearing in mind the City of Stirling's requirements that generally demolition without such supporting documentation will only be considered for places that are deemed "intrusive" or "neutral".
Alternatively, the City of Stirling may request more detailed independent heritage advice including an internal inspection of the building.
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29 In response, the applicants commissioned Mr Michael Broderick, a highly qualified heritage architect, to conduct a heritage assessment of the subject land. Mr Broderick was a witness in these proceedings. His lengthy report discusses heritage principles, the Mount Lawley precinct's historical context, the subject dwelling, its suburban context, its past and current owners and occupiers, and the state of the property. Mr Broderick concluded as follows:
No. 6 Regent Street is of low overall significance.
The roof element fronting Regent Street is a contribution to Regent Street and Mt Lawley streetscape. The house has severe structural problems associated with the foundation of external and internal walls. The interior rooms have little or no significance, most of the original fabric has been defaced or replaced with reproduction items.
The house no longer answers the needs of a modern family home. No. 6 Regent Street could be demolished, without loss to the streetscape provided it is replaced with a house that reproduces the roof and verandah elements in colour, texture and scale.
30 Drawing upon the work of Mr Broderick and the applicants' submission (where necessary), the officers below fairly assessed the demolition proposal against the criteria a) to g) as follows:
a) Detail why the character of the building and its setting does not contribute to the character of the Heritage Protection Area and streetscape.
[House number] 6 Regent Street contributes to the streetscape of Regent Street and the overall aesthetic appeal of the Mount Lawley Heritage Area by the massing, scale, texture and to a lesser extent, the roof colour, however the simple verandah posts and curved verandah beam are not typical, or representative of the area. The house still retains its overall bungalow form. The subject home should not be refused demolition to ensure a consistency in streetscape, and to enhance the character of the street.
There are twenty-four original houses remaining with frontages to the street. Most of these would be regarded as being of the Californian Bungalow style and were built in the 1920's. A number of the houses on the southern side of the street were built by the same builder, hence their similar style. Generally the houses on the northern side slightly pre-date those on the southern side and are more varied in style. Only one of these original houses does not have a visible addition. One of them has been so extensively modified that it bares no resemblance to the original house.
- Most houses have extensive additions and some have been replaced by intrusive modern developments, such as the block on the left (west) of No. 6 Regent Street (a chocolate brick unit complex). The Beaufort Street end of Regent Street has had developments of narrow fronted town houses on both sides of the street in mock "Mount Lawley Style". These developments jar the visual commonality of Regent Street and are at best neutral, but probably intrusive on the streetscape.
- b) Detail why the building is not a typical or intact example of a specific architectural style or building type, or is not an example of a building containing unusual or finely executed detailing.
There is a low flat roof carport on the right front boundary. The carport is a relatively recent addition. The roof is quarter pitch with [mottled] coloured Marseilles tiles predominantly orange. The concrete verandah is not the original fabric and is poorly executed. The whole rear section of the house is a new addition (1980's), housing a kitchen, family room and laundry. The wall is mainly glass on framing with composite boarding.
[House number] 6 Regent Street is not rare. Similar houses are found in Leederville, Highgate, North Perth, Mount Lawley and Inglewood. There are no unique features evident on the planning, detailing or appearance of the house. [6 Regent Street] is not the typical Mount Lawley Bungalow. It is simpler in appearance and probably precedes most houses more typical of the Mount Lawley Heritage Area. The heavy detailing of the verandah supports is not part of this house.
This house has a style appropriate to its era of construction but has no unique or outstanding feature. Most of the basic fabric remains but much has been resurfaced or reclad. There appears to be changes to the roof, walling, front verandah, ensuite, ceilings, carport and sheds. The windows to the front facade appear to be the original windows, as do the surrounds of most fireplaces, the front door and floorboards.
c) Detail (with written documented evidence provided by an independent expert) why the place is structurally unsafe and irredeemable, and the conservation of the place is not viable (NB; property owners are responsible for the maintenance of their asset, and allowing a property to fall into disrepair will not facilitate an approval for demolition). Only where the place has been identified as an "intrusive" or "neutral" place (houses or unit developments of more recent design), consideration can be given to varying this requirement.
It should be noted that the information in regard to this point has been prepared by the owner of the property and Michael Broderick Architects (and not a qualified structural engineer). However the owner states that "I believe that I am the
- world's greatest expert on the current condition of my own house having lived in it most recently and for a number of years".
- There is evidence of a traumatic event in the house (the owner states that he was told that there had been a fire in the roof of the home at some time). At least three ceilings have been replaced with what appears to be flushed up asbestos cement or fibreboard. The flushing on joints is evident and deteriorating. [6 Regent Street] has severe cracking along the western wall, the entry and living room; bedroom 3 has [been] patched and reopened. The cornice has cracked away from walls. Cracking is evident over openings in internal walls (west side).
The extent of the cracking indicates that the foundation has been inadequately prepared. An independent soil test arranged by the [applicants] prior to the study (the heritage assessment) would indicate that compaction is unsatisfactory on this side of the building. There are several techniques to correct this settlement problem. All solutions are expensive and not completely reliable.
Approximately half the house is in good physical condition. The remainder is in poor condition. The added rooms at the rear are in good condition.
- d) Is the building listed on the City's Heritage List[?]
This house is not listed on the City's Heritage Register.
e) Is the building the work of a noteworthy architect, designer or builder[?]
There is no evidence that this building is the work of a noteworthy architect, designer or builder.
f) Was the building the home of an important person in the history of the locality, or the location of a significant event or activity in the history of the locality[?]
[House number] 6 Regent Street was owned by Mr Peter Dowding a former Premier of Western Australia. Peter Dowding owned the house from 1987 to 1991. Mr Dowding was Premier from 1988 to 1990. No other historical connection could be identified.
g) Does the building have a significant meaning to a specific and identifiable group in the community[?]
The house does not appear to have a significant meaning to a specific and identifiable group in the community.
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31 The Director of Heritage Planning with Palassis Architects, Ms Nerida Moredoundt, gave evidence to the Tribunal in rebuttal of both Mr Broderick's and the applicants' assessments.
32 Ms Moredoundt, who is also highly-qualified, was the supervising architect responsible for the June 2007 report referred to above. Her expert opinion, in summary, was as follows:
(i) [6 Regent Street West], Mt Lawley is a traditional Federation Bungalow house dating from c1920.
(ii) [6 Regent Street West] has undergone some changes since construction but remains a house where the architectural style is generally intact.
(iii) [6 Regent Street West] makes a positive contribution to the Mt Lawley (Estates 1 & 2) Heritage Protection Area.
(iv) [6 Regent Street West] is in good condition in relation to its heritage values. Like other houses of its era it has items that require repair, including evidence of settlement to its western portion, but this does not undermine the positive contribution of the house to both the streetscape and the Mt Lawley (Estates 1 & 2) Heritage Protection Area.
(v) I have assessed the proposed demolition against the City's Heritage Protection Areas - Mount Lawley, Menora & Inglewood - Character Retention Design Guidelines and find that:
a) the proposal does not meet a key objective of the Guidelines (Clause 1.2), which is to "encourage the retention of buildings within the Heritage Protection Areas dating from the early 1900s to the 1950s, where the architectural style of the building is generally intact"
b) the proposal does not meet the following important principle of the Guidelines, namely Clause 3.1 "Demolition of Existing Buildings", the primary objective of which is "to retain and conserve original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s".
c) the heritage significance of the Mt Lawley (Estates 1 & 2) Heritage Protection Area would be adversely affected if the existing building at [6 Regent Street West] were to be demolished.
(Page 18)
Joint expert evidence
33 In accordance with the Tribunal's usual practice, the parties' respective experts (Mr Broderick and Ms Moredoundt) produced a joint statement of evidence and gave evidence together. So far as material, that statement was as follows, (first, as to the matters that they were in agreement with):
...
6. We are in agreement that the external presentation of the existing house and its context is of primary interest in considering the demolition proposal.
7. We are in agreement that the existing house is an example of a Federation Bungalow style residence constructed c1920.
8. We are in agreement that the existing 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.
9. We are in agreement that the existing house has been modified over time by:
• Replacement of the original iron roof with tiles
• Replacement of the original timber verandah with a concrete finish
• The application of an external render finish (to either original face-brick work or partial brickwork and render)
• The infill of the eastern portion of the front verandah return
• The addition of rooms to the rear
• Some internal modification, including changes to some door openings and replacement of ceilings in four rooms.
10. We are in agreement that Regent Street West is a largely intact [in his later oral evidence to the Tribunal Mr Broderick qualified his agreement to say "somewhat intact"] and attractive example of a Federation era streetscape in Mt Lawley. The exceptions to this are the relatively recent two-storey town house development at the eastern end of the street ([house numbers] 1A and 2A) and a c1980s brown brick unit development at [house numbers] 810 (adjacent to the subject
- property), which detract from the historic streetscape. Where additions have been made to original houses these are generally set-back and do not intrude visually on the streetscape characteristics.
- 11. We are in agreement that some settlement and resultant cracking has occurred to the western portion of the existing house.
34 As to the matters that the experts were not in agreement with, the witnesses gave evidence as follows:
12. Our opinions differ in regards to the extent to which the changes to the original fabric and the condition of the building have affected the significance of the existing house.
Michael Broderick argues that changes to the south and east street fronting facades are of poor quality and are mostly irreversible. The severe structural problems and the compromises to lifestyle and good house planning, caused by additions and alterations warrant that the house could be demolished. The replacement dwelling should reproduce the form, mass, colour and texture of the roof form and verandah fronting the street.
Nerida Moredoundt argues that [the] existing house is of heritage significance as one of the original houses in the Mt Lawley Heritage Protection Area. In her view, the structural problems are able to be rectified and are not severe in relation to the heritage values of the place. Furthermore, she argues that the changes to the original fabric are largely reversible and do not detract in any substantial way from the overall positive contribution of the house to the streetscape and to the Heritage Protection Area as a whole. She argues that, as an original and largely intact Federation Bungalow house, it should be retained in keeping with the primary objective of the Guidelines.
35 Dr Slusarczyk gave evidence as to the context of the subject land as follows:
[The] HPA is comprised predominantly of houses, flats and unit developments of disparate styles and eras of construction with the majority being single dwellings dating from 1910 to 1940. There are also many commercial buildings, mostly in Beaufort Street but also in the adjoining areas of Walcott Street and Alvan Street. A longstanding private girl's school (Perth College) with approximately 1000 students occupies a large area of land either side of Beaufort Street and also occupies portions of Queen's Crescent and Lawley Crescent. There are ongoing tensions between these commercial interests and their residential neighbours.
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36 He also gave detailed evidence of the past alterations to the property, its state of disrepair and an indication of the work that would be needed to bring the place up to standard:
The house still retains its overall bungalow form. The appearance however is degraded by cement rendering to all visible walls. The return verandah is visually impaired by latticework on the western side and eliminated by a low quality Hardiplank clad en-suite on the eastern side. The original roof was iron but is now tiled. … The verandah posts are rotting at the bases. The original verandah floor has been replaced by cement. All guttering has perished. All external brickwork has been cement rendered presumably to repair severe degradation of the mortar. The front entry door and surround are not square due to subsidence of the foundations under the western walls of the house. Significant gaps exist between floorboards and there is minor unevenness of floor levels. Peeling and cracking of internal paint internally is due to inadequate preparation of the walls between multiple coats of paint. (This is visually minor but is an ongoing source of trouble unless the paint is stripped back to the plaster.) Timbers of architraves, doors and windows are badly pitted and have been painted over with thick acrylic gloss (mainly softwood -Oregon). Sash windows are mostly defective in their operation due to the degradation of components and thick layers of paint causing sticking or jamming. Incorrect weighting of one sash window is due to replacement of the broken original pane with new glass of a different thickness. Cracking of the internal walls on the western side of the house is due to subsidence. The addition of picture rails and cornices later in the history of the house have been applied with liquid nails to painted walls which is an unstable bond evidenced by one picture rail recently falling off the wall. The ceilings in two rooms have rough textured finish presumably applied to disguise the degradation of the surface and reduce the visual impact of joints in panels. Water stains are present on the ceiling of the back extension due to the tile roof having an inadequate slope to properly resist the rain. There is an external toilet which is derelict to the point of collapse. Overall the plumbing is a nightmare.
37 Consistent with these observations, Dr Slusarczyk also gave extensive evidence of what in his opinion would be needed for a full repair or restoration of the property. He also relied upon the opinion of Mr Broderick. He produced a structural engineer's report (from Structerre Consulting Engineers) on the extent of settlement which pointed to "aesthetic consequence[s] only". (Dr Slusarczyk thought that that report underrated the extent of this problem.) A building inspection report (from Abode Consulting) demonstrated that "significant repairs [to] and [partial] rebuilding" of the house were needed.
38 The applicants' evidence of the extent of the possible work needed for restoration was not generally challenged by the respondent.
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39 It may be accepted as a general proposition that substantial repairs, alterations and modifications are needed to bring the property up to an acceptable standard, and that significant additional work would be required to restore the property to its "original" condition. That condition is, however, a contestable notion and would in any event probably be inadequate for modern family living conditions.
40 Finally, the Tribunal observes that a very large part of the applicants' case was devoted to raising wider issues of heritage policy issues, or attacking the processes that led to, or the assumptions that underlay the current policy reflected in the instruments discussed above. These assertions were vigorously rejected (and in some detail) by Mr Maull in several pages of his written submissions.
41 As was explained by the Tribunal during the hearing of this matter, it is not the Tribunal's function to "investigate" such matters, still less to effectively re-write such instruments. Rather, it is the Tribunal's task to apply such instruments faithfully in accordance with the maker's intention. Where policy is expressed as it is here, mainly in legislative form and is otherwise rational and capable of application it ought to be applied as it was intended. This is so whether or not "better" models of regulation might exist or can be imagined. Similarly, any exercise of discretion should have regard to the underlying purposes of the instrument empowering the decision-maker to exercise their discretion.
42 Here, those underlying purposes are tolerably clear: demolition of property of the type we are concerned with in an HPA will ordinarily require a very significant, if not compelling, case to be made in its favour. The history and context, if not the express words of the heritage protection scheme itself, all support such an interpretation. Moreover, speaking generally, SPP 3.5 now arguably requires such a standard from local authorities.
Discussion of the issues in the case
43 First, it is necessary to resolve the question of which of the experts' evidence is to be preferred. Like the Tribunal in Tran v Town of Vincent (2006) 46 SR (WA) 75; [2006] WASAT 316 (Tran) (at [56]), I am of the view that Ms Moredoundt's evidence ought, with respect, to be preferred where it is inconsistent with that of Mr Broderick's. This is primarily so:
[I]f for no other reason than that the heritage values [the Council's expert there] 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
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- 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.
44 In addition, Mr Broderick's 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.
45 SPP 3.5 had not been published when Tran was decided yet, speaking generally, they arrive at the same position.
46 Mr Broderick 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.
47 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.
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48 Demolition was therefore refused and the decision there under review was affirmed; the Tribunal as presently constituted respectfully agrees with that conclusion.
49 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").
50 That case is of no relevance to the respondent's Scheme and the policies adopted here, which are exactly to the opposite effect.
51 Mr Broderick 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.
52 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 nonexclusive 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.
53 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
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- 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].
54 In the Tribunal's view, the respondent reached the correct and preferable decision when it refused demolition applying cl 2.2.3.2 of DPS 2. Amongst other things, demolition in this case would not meet the express objective of "[retention and conservation] of original buildings within the Heritage Protection Areas, particularly those buildings dating from the early 1900s to the 1950s".
Orders
55 For the reasons given, the decision under review will be affirmed and the Tribunal makes the following orders:
1. The decision under review is affirmed.
2. The application for review is dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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