THE OWNERS OF HIGHAM BUILDING STRATA PLAN 9737 and CITY OF FREMANTLE

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: THE OWNERS OF HIGHAM BUILDING STRATA PLAN 9737 and CITY OF FREMANTLE [2009] WASAT 206

MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 27 JULY 2009

DELIVERED : 22 OCTOBER 2009

FILE NO/S: DR 472 of 2008

BETWEEN: THE OWNERS OF HIGHAM BUILDING STRATA PLAN 9737
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development application - Heritage listed building - Rendering to face brickwork walls - The cultural heritage significance of the place - Whether rendering will impact the heritage values of the place - Whether the proposed render is an appropriate conservation method

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 2.5, cl 1.6.1, cl 4.2, cl 7.1.1, cl 7.1.7, cl 10.2.1
City of Fremantle Town Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241

Result:

Application for review dismissed
Decision of the Council to refuse development approval affirmed

Category: B

Representation:

Counsel:

Applicant: Mr I Rogers
Respondent: Mr A Roberts

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application by the City of Fremantle to render the rear face brick walls of a heritage listed building known as the Higham Building in the West End of Fremantle.
The building is on the City of Fremantle's Heritage List on the basis of its historic significance as an example of a commercial building built in the Old Port City of Fremantle during the gold boom period of the late 19th and early 20th centuries. It is considered to have landmark significance as well as social significance.
The building is stratatitled and occupied by a number of businesses. The applicant, the Owners of Higham Building Strata Plan 9737, was of the view that rendering the rear face brick walls was required in order to prevent water ingress to some of the strata units. The works were commenced prior to applying for planning approval and consequently all of the ground floor rear walls and a portion of the upper floor rear walls have been rendered.
The Tribunal found that the rear face brick walls were an integral part of the existing built fabric of the heritage place and that the rendering of these walls, particularly in a faux limestone finish, would have a detrimental impact on the cultural heritage significance of the place.
The Tribunal was satisfied that the building could be maintained satisfactorily without rendering the walls and indeed, that the applied render could possibly reduce the lifespan of the building.
The application for review was therefore dismissed and the decision of the City of Fremantle to refuse development approval for rendering the rear face brick walls of the building was affirmed.

Introduction

These proceedings involve an application brought by the Owners of Higham Building Strata Plan 9737 (applicant) for a review of a decision made by the City of Fremantle (City or respondent) on 13 November 2008 to refuse development approval for the rendering of the face brick walls to the rear elevation of the Higham Building, No 107 (Lot 4) High Street, Fremantle (subject site).

Site and Locality

The subject site is located on the corner of Market Street, High Street and Bannister Street in the West End of Fremantle. The property is stratatitled and includes No 101 to No 107 High Street, No 61 to No 83 Market Street and a common property area to the rear.
The historic building on the subject site is known as the Higham Building and was built in the 1890s with additions in the 1900s. The building is Lshaped with zero setbacks to Market Street, High Street and Bannister Street and a 3.6 metre wide access way from Bannister Street to the rear common service area. It is two storey, with rendered facades and awnings over retail shops fronting Market Street and High Street.
The rear walls are face brickwork and abut the communal service area which contains a separate toilet block and rubbish storage area. Rendering of these walls commenced prior to the current planning application under review and consequently the ground floor walls and a portion of the upper floor walls have been rendered. The finish is yellow in colour, textured, and lined out to give the impression of limestone block construction.
The Tribunal had the benefit of a view of the subject site and the immediate surrounds in the presence of the parties during the hearing on 27 July 2009.

Planning framework

The subject land is zoned 'Central City' under the Metropolitan Region Scheme (MRS) and 'City Centre' under the City of Fremantle Local Planning Scheme No 4 (LPS 4).
Clause 1.6 of LPS 4 lists the aims of the Scheme and includes:
…
(f)protect and conserve Fremantle's unique cultural heritage,
(g)ensure all development complements and contributes to the community’s desired identity and character for Fremantle,
…
Clause 4.2 of LPS 4 contains the objectives of the City Centre zone and states that development within this zone shall:
…
iii)conserve places of heritage significance the subject of or affected by development.
Under cl 7.1.1 of LPS 4, the City is to establish and maintain a Heritage List which identifies places of cultural heritage significance which are worthy of conservation.
Clause 7.1.7 of LPS 4 states that the Municipal Heritage Inventory (MHI) established under the previous town planning scheme, City of Fremantle Town Planning Scheme No 3 (TPS 3), is to comprise the Heritage List under the current scheme, LPS 4. The following notes append to the clause:
Note:1. The purpose and intent of the heritage provisions are ‑
(a)to facilitate the conservation of places of heritage value; and
(b)to ensure as far as possible that development occurs with due regard to heritage values.
2. A 'place' is defined in Schedule 1 and may include works, buildings and contents of buildings.
Clause 10.2. of LPS 4 lists matters that the City (and, on review, this Tribunal) should have due regard to when considering applications for planning approval. They include:
(a)the aims, zoning objectives and provisions of this Scheme and any other relevant planning Scheme(s) operating within the Scheme area, including the Metropolitan Region Scheme,
(b)the requirements of orderly and proper planning including any relevant proposed new local planning Scheme or amendment, or region Scheme or amendment which has been granted consent for public submissions to be sought,
(c)any approved Statement of Planning policy of the Commission,
…
(f)any planning policy adopted by the Council under clause 2.4, any heritage policy statement for any designated heritage area adopted under clause 7.2.2 and any other plan, strategy or guideline adopted by the Council under the Scheme,
…
(k)the cultural significance of any place or area affected by the development, including but not limited to provision for the preservation, incorporation or recording (by means including public art works) and significant cultural values of the site,
…
(zh)the comments or submissions received from any authority consulted under clause 10.1.1,
(zi)the Heritage List, …
State Planning Policy 3.5 'Historic Heritage Conservation' (SPP 3.5) is a State Planning Policy to which the Tribunal is required to have 'due regard' to under s 241(1) of the Planning and Development Act 2005 (WA) (PD Act). The objectives of SPP 3.5 are:
•To conserve places and areas of historic heritage significance.
•To ensure that development does not adversely affect the significance of heritage places and areas.
•To ensure that heritage significance at both the State and local levels is given due weight in planning decisionmaking.
•To provide improved certainty to landowners and the community about the planning processes for heritage identification, conservation and protection.
Clause 6.6 of SPP 3.5 contains development control principles to be applied when considering planning applications in relation to a place on a heritage list and states that:
The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.
Clause 6.6 of SPP 3.5 contains specific development control principles relating to the alterations of a heritage place, as follows:
Development should conserve and protect the cultural significance of a heritage place based on respect for the existing building or structure, and should involve the least possible change to the significant fabric.

Relevant planning policies

The following City of Fremantle planning policies are relevant to this review. First, there is the City of Fremantle Local Planning Policy 2.5 'External Treatment of Buildings' (LPP 2.5). Second, is D.G.F 14 Fremantle West End Conservation Area Policy (D.G.F. 14).
In addition, there is DBH 13 'Impact of Development on Heritage Places Policy' (DBH 13). This was replaced on 25 February 2009 by Local Planning Policy 1.6 'Preparing Heritage Assessments' (LPP 1.6).

Proposed development

The proposed development is the rendering of the rear two storey face brick walls facing the communal service courtyard of the subject site. The development application is for 'retrospective rendering and proposed rendering' as rendering commenced prior to a planning application being submitted to council. Consequently, the ground floor brickwork and a portion of the upper floor brickwork have already been rendered.
The composition of the render, according to a letter from Mr Thompson, the contractor responsible for the work, is 5 parts sand: 1 part lime : 1 part cream cement. The in situ render is yellow in colour with a textured surface and is lined out to resemble limestone block construction.
A letter from the applicant accompanying the development application stated that:
The work needs to be carried out to maintain and repair fretted mortar and chipped brickwork. The mortar is so worn that water damage was detected inside one of the shops, currently operating as a boutique. The insurance company refused to undertake any repairs until the outside brickwork has been attended to.

Council's decision

The application for planning approval for the rendering of the face brickwork walls to the rear elevation of the subject site was refused on 13 November 2008 for the following reason:
The proposal is inconsistent with the City of Fremantle's Planning Policies, D.B.H. 13: Impact of Developments on Heritage Places Policy and D.G.F. 14: Fremantle West End Conservation Area.

Issues

The key issue arising for resolution in this matter is whether applying render to the rear face brick walls of the existing building will have an adverse impact on the cultural heritage significance of the subject site.

Cultural heritage significance of the subject site

The subject site is listed on the City's MHI and in accordance with cl 7.1.7 of LPS 4, is included in the Heritage List under the Scheme. It has a management category level of 1B and is described as being of exceptional significance to the City with its conservation required. The MHI data sheet states its significance as follows:
The Higham Buildings have landmark significance as they are situated on the corner of High and Market Streets. The place is of historic significance as an example of a commercial building in the Old Port City of Fremantle dating from the gold boom period in the late nineteenth and early twentieth century. The place is a fine example of a Federation Free Classical style building, with elaborate stucco decoration above the ground floor level, that makes a significant contribution to the streetscape. The place is of social significance as evidenced by its classification by the National Trust. Awning and shop fronts are not significant.
The subject site is on the Register of the National Estate and forms part of the Fremantle West End Conservation Area. The façade is classified by the National Trust.

The impact of development on the heritage values of the subject site

The Tribunal had the benefit of expert evidence from two architects specialising in heritage matters. These were, Mr Ronald Bodycoat, called on behalf of the applicant, and Mr Alan Kelsall, called on behalf of the respondent.
The heritage experts prepared a joint statement which summarised the issues on which they agreed and those on which they did not agree. It was agreed that the rear elevations of the subject site were in need of repair and that this could be achieved by either re-pointing the face brickwork or applying render to it. The experts did not agree on the preferred conservation method but did agree that removal of the render already applied would be likely to cause damage to the existing brickwork.
The cultural heritage significance of the subject site was not disputed by the parties or the heritage experts. The areas of disagreement relate to the degree of significance of the rear face brick walls in particular and whether the proposed render is an appropriate conservation method in this situation.
In his witness statement, Mr Bodycoat expressed the opinion that a render mix incorporating cement:
•will not degrade the amenity of the building nor the cultural heritage significance of the place;
•will not have an adverse impact on the physical character of the building;
•should proceed to complete consistently the render of all walls of the place, and
•will contribute positively to a resolution of the degradation of the brickwork and to a cessation of water penetration to the interior of the building.
Regarding the significance of the rear face brickwork walls in particular, it is Mr Bodycoat's view that the MHI describes the subject place as a rendered building without specific reference to the rear face brick elevations and 'by implication, the rear face brick walls of the building have less, or no, heritage significance'. He is also critical that there is no conservation plan or impact statement in place, 'hereby highlighting [the] difficulty in determining specific heritage values which could be applied to the Higham's Buildings'.
Mr Alan Kelsall, in his witness statement expressed his opinion that:
The cultural heritage significance of Higham's Buildings derives mainly from:
•It being a good example of a competently designed and built retail/office building displaying the aesthetic characteristics of the Federation Free Classical Style;
•The positive contribution it makes to a largely intact precinct of mainly Federation period buildings set in streets displaying the characteristics of streetscapes from that period which collectively form a significant townscape;
•The place being representative of the reconstruction of the west end of Fremantle during late Gold Boom period and also a demonstration of the contribution made by the Port of Fremantle in the commercial development of Western Australia; and
•The place being of high authenticity with the fabric of the exterior of the original part of the building remaining largely in its original state.
And importantly at para 81:
The cultural heritage significance of the Higham's Building is, by definition, partly embodied in the original fabric of the building. The face brickwork of the rear façade is a defining characteristic of retail/office buildings constructed in the West End of Fremantle during the late Gold Boom period. The intactness of the rear contributes positively to the significance of the building and should be conserved.
As mentioned previously, the subject site is located within the West End Conservation Area covered by D.G.F. 14.
Clause 5.2 of D.G.F. 14 lists guidelines for the conservation of places within the West End and includes the following:
•CONSERVATION of a place should take into account all aspects of its cultural significance.
•CONSERVATION is based on respect for the existing fabric and should involve the least possible intervention.
•Historically, valuable places do not consist solely of individual buildings. Conservation of the place requires the maintenance of an appropriate visual setting and context. New construction, demolition or modification which would adversely affect enjoyment or appreciation of the place should be excluded.
•Architectural features, elements or components which have deteriorated should be repaired rather than replaced, if possible
•Wherever possible, additions and alterations should be done in such a way that if they were removed in the future, the original fabric would again be visible.
Clause 5.3.1 contains definitions of words used in the performance standards of D.G.F. 14 and includes the following:
Significance means of historic, architectural or social value for past, present or future generations. All classified buildings (listed by the National Trust or on the Register of the National Estate) are significant.
…
Visible means anything that can be seen from any part of the street serving the front of the building, including:
•Side elevations that are readily visible from the front street.
•Anything that can be seen from a side or rear laneway which itself may be assessed as significant.
Contributory building means the building not significant in its own right but which together with other adjacent buildings in the townscape or streetscape contributes to and enhances the unique character of Fremantle.
Fabric means all the physical material of the place (e.g. a building).
Intact means unaltered, authentic and original fabric of the place.
In his witness statement, Mr Bodycoat contends that Policy D.G.F. 14 refers to the street facades of buildings and their contribution to the streetscape and does not specifically refer to the significance or materials of the rear elevations of buildings within the West End Conservation area.
He argues that the rendering 'does have respect for the existing fabric of the building by addressing deterioration of the rear walls of the building which are not viewed with the streetscape elevations to High Street and Market Street, the elevations which are the subject of the guidelines'.
And finally, Mr Bodycoat is of the view that as the rear walls cannot be seen from the streets at the front of the building, namely High Street and Market Street, and that the rear service area has not been identified as significant, 'it is therefore an appropriate option to render the rear face brick walls'.
Having considered the positions of both experts in the light of D.G.F. 14, the Tribunal prefers Mr Kelsall's argument that the cultural heritage value of the place is among other things embodied in the fabric of the building and that fabric includes the rear face brick walls. This argument is given further weight by cl 5.3.2 (b) of D.G.F. 14 which concerns conservation standards for intact significant fabric and reads:
…
intact external and internal fabric on any part of a significant building and on any visible part of a contributory building, should be preserved. Elsewhere conservation is discretionary.
In this case the subject site has been identified as a significant building within the West End Conservation Area and the rear face brick walls are considered to be intact external built fabric. The issue of visibility is with regards to a contributory building, which this is not. However, it is useful to note that the rear face brick walls are partially visible from Bannister Street via the 3.6 metre wide access to the service area.

LPP 2.5 concerns the external treatment of buildings particularly in regards to heritage listed buildings. Clause 1.1.4 states that the City shall have regard to 'any advice received from the Heritage Council of Western Australia relating to the site'.
In this case, the City received a letter dated 21 October 2008 from the Heritage Council of Western Australia which commented on the use of render as follows:
On the issue of render, it is not considered good conservation practice to introduce a new material to the original fabric where the original may be reinstated. The preferred approach to such work would be the conservation and maintenance of the existing brickwork, which would have minimal impact on its cultural heritage significance. Furthermore, the Heritage Council is generally not supportive of cement-based renders and recommends using lime-based renders on existing rendered walls. The lime-based render is a much more breathable material, and allows the building to breathe and move, whereas concrete is a rigid material.
Mr Kelsall was of the opinion that the proposed render mix of 5 parts sand: 1 part lime: 1 part cement would cause long-term deterioration of the subject site 'mainly through the loss of the outer surface of the bricks under this render'. He argued that the inclusion of modern cement in the render mix would create a render stronger than the substrate to which it is applied, in this case the existing face brickwork.
It was Mr Kelsall's view that an appropriate method of conservation for the rear face brick walls would be to replace any damaged bricks and re-point with a lime mortar. He also suggested that the water problems experienced by the tenants could be a result of the combination of deteriorated gutters, roof plumbing and/or window flashings.
Mr Bodycoat was also unsure of where water was entering the building but was of the view that using a render mix containing some cement would, in this case, be appropriate particularly as it would provide visual consistency as the majority of the wall is already rendered. It was his opinion that render would not cause longterm damage and that restoring the mortar joints would be expensive and potentially limited in duration of effectiveness.
Clause 1.2.1 of LPP 2.5 states that:
Council will not approve the rendering or painting of face brickwork or limestone fabric for buildings of recognised heritage significance unless it can be demonstrated by the applicant that it is not possible to conserve the face brickwork or limestone fabric in its current form, and painting or rendering the face brickwork or limestone fabric is the only suitable conservation treatment in the circumstances.
The Tribunal is satisfied that the rear face brick walls of the subject site could be conserved in their current form and that rendering has not been established as the only suitable conservation treatment.
The Tribunal finds that the rendering of the rear face brick walls will have an adverse impact on the heritage values of the subject site.

Conclusion

The Tribunal has found that the rear face brick walls form an integral part of the built fabric of the subject site. While the street facades of the building are more ornate and more visible, the face brick construction of the rear walls is typical of the building construction of the time. Rendering these walls, particularly in a faux limestone finish, will have an adverse impact on the cultural heritage significance of the subject site.
The Tribunal is satisfied that there are alterative methods available for the conservation and repair of the rear walls.
It follows that, applying the heritage values expressed in the planning framework, the application for review should be dismissed and the decision of the respondent to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.

2.The decision of the Council to refuse development approval is affirmed.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER

THE OWNERS OF HIGHAM BUILDING ­ STRATA PLAN 9737 and CITY OF FREMANTLE

[2009] WASAT 206

22 OCTOBER 2009