Vorrasi v Adelaide City Council
[2010] SASC 25
•16 February 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
VORRASI v ADELAIDE CITY COUNCIL
[2010] SASC 25
Judgment of The Honourable Justice Bleby
16 February 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - HERITAGE
Appeal from the Environment Resources and Development Court – development application to install PVC blinds around an outdoor dining area of a cafe – subject land designated as a Local heritage place – whether Commissioner properly carried out an assessment against all relevant principles of Development Plan – failure to provide reasons for departing from uncontradicted expert evidence as to effect of development on heritage value – whether Commissioner misdirected himself as to heritage value – whether particular principles of development control misapplied – whether reversible nature of development considered – relevance of effect on townscape – appeal allowed.
Local Government Act 1999 (SA) Div 6, Ch 11; Development Act 1993 (SA) s 33, referred to.
City of Mitcham v Freckman (1999) 74 SASR 56, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"heritage value"
VORRASI v ADELAIDE CITY COUNCIL
[2010] SASC 25Land and Valuation Division
BLEBY J.
Introduction
This is a case about the installation of three clear PVC blinds around the outdoor dining area of a King William Street cafe. It comes by way of appeal from the Environment Resources and Development Court (“the ERDC”) which confirmed a decision of the Adelaide City Council to refuse an application by the appellant for development approval to install the blinds on a portion of the verandah of the building housing the cafe.
The Baretto Courte Caffe, previously known as the Court Cafe, is a King William Street landmark well-known to those who frequent the heritage court buildings facing King William Street, and particularly the Adelaide Magistrates Court and the Coroner’s Court.
The premises form part of a two storey building between 302-306 King William Street, Adelaide, which has been designated as a Local heritage place (City Significance) in the Adelaide (City) Development Plan. The building is a two storey Victorian Terrace originally of four shops and associated first floor dwellings. It is in a conspicuous location on the eastern side of King William Street opposite the State heritage buildings presently occupied by the Supreme Court. It is immediately south of the Adelaide Magistrates Court and Coroner’s Court, and on its southern boundary adjoins the Crown and Sceptre Hotel, another State heritage place. A little further south on the corner of King William Street and Carrington Street is the former Kings Hall, designated as a Local heritage place (Townscape). The building is constructed of stone with rendered surrounds to openings and quoins.
The first floor is described in the Council’s information sheet as follows:
The exterior of the first floor is intact although neglected. The façade of this section of the building is divided into four equal bays, each with a doorway and window sheltered by a wide roofed balcony. The balcony is decorated with cast iron lacework to the balustrade, verandah fascia. Metal Classical columns support the roof of the balcony. The building is capped by an elaborately decorated Classical parapet with pediments and incised decoration as is found in designs of this period. It represents a good example of high Victorian attached shop and dwelling design.
Mr Weidenhofer, a heritage architect called by the appellant in the ERDC described the first floor as “relatively intact and maintains a high degree of integrity”, a description agreed with by Mr Brown, the architect called by the Council.
The ground floor frontage originally contained four shop fronts immediately beneath each of the four equal bays of the first floor of the premises. It would seem that of the original shop fronts, only that on the southern end of the building, No 306, remains in its original form, namely a shop window with moulded surrounds adjacent to an inset double door providing access to the premises.
The shop front at the northern end of the premises, No 302, was restored in 1997 as part of the Magistrates Court development, but is not used for access to those premises. The next premises to the south are the Cafe premises, No 302A. That shop front was severely modified in 1954 to provide a new and narrowed shop front and an entrance to a separate tenancy on the first floor. That involved the construction of a concrete staircase, an additional front door and a dividing wall between the staircase and the cafe premises. In February 2004 the Council granted consent for a new and modern shop front which still exists and is out of keeping with the original and restored shop fronts at Nos 302 and 306.
The premises now designated No 304 are the first floor premises with the separate entrance adjacent to No 302A.
The shop front of what is now No 304A was remodelled in 1958 in a manner unsympathetic to the original. Accordingly, at ground level there are alterations that have been undertaken such that the integrity of the external fabric has been compromised.
The building has always had a wide verandah extending over the full width of the King William Street footpath. The verandah has been extensively rebuilt. The present five verandah posts opposite the dividing walls of the four shop fronts are of plain circular steel section rather than the original cast iron shaped posts; the timber facia has been replaced; the ogee profile gutter has been replaced with that of a different profile; the corrugated iron roof has been replaced with colorbond coated corrugated iron and the original cast iron corner decorations at the head of each verandah post have been substantially lost. Therefore, all that remains of the original ground floor frontage is the shop front to No 306, some remnant pieces of cast iron decoration under the verandah, the boxed empanelling over two of the shop fronts only visible from under the verandah, the cellar lights within the pavement, also only visible from under the verandah, the soffit lining to the underside of the balcony, also visible only from under the verandah and the angle iron support frame to the verandah roof. The shop fronts to what is now 302A, 304 and 304A King William Street have little or no heritage value.
Only the premises at 302A King William Street are used as a cafe. The proprietor of the business has been granted a permit by the Adelaide City Council for outdoor dining on the adjacent footpath pursuant to Div 6, Ch 11 of the Local Government Act 1999 (SA). The permit was for the period 1 September 2008 to 31 August 2009 and, I assume, has been renewed. The permit may be transferred in circumstances described in cl 25 and cl 26 of the permit. It may be renewed each 12 months and may be cancelled in circumstances described in cl 27 of the permit. These include “other valid reasons (which) require cancellation, such as streetscape upgrades or refurbishment, or any other reason Council deems necessary”.
The development proposal
The application to the Council was for approval to install what are known as Channel X Clear PVC blinds on the two northern bays of the verandah facing west, with a further blind at the northern end of the verandah extending from the verandah post in an easterly direction for approximately 3 metres, leaving a similar distance between the blind and the building frontage. It was proposed that a roller mechanism should be attached to the underside of the verandah or its facia, with a channel system attached to each of the verandah posts to allow the blinds to slide up and down. Attached to the footpath would be a channel to lock the blinds into place when drawn. The eastern edge of the north facing blind would not be guided by a channel track. It was accepted that the blinds were to be made of high quality PVC material of Japanese origin. Their purpose was to protect customers in the outdoor dining area from wind, dust and rain. When weather conditions did not require them, the blinds would be raised.
There was no suggestion that the installation would require the demolition of any existing fabric. There would be no interference with the main building, but only with the poles and facia of the verandah. The installation would be easily reversible by unscrewing the components from their supporting structures. They would only be required to be drawn down on a limited number of days during inclement weather.
The relevant provisions of the Development Plan
The building is within the Courts and Market Policy Area 18 of the Central Business Area Zone described in the Development Plan. In the introduction to that Policy Area the Plan notes that the provisions which follow are additional to those expressed for the whole of the Zone. It indicates how to deal with apparent conflict between the Policy Area provisions and the Zone provisions and then continues:
In the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Policy Area.
The Desired Character of the Policy Area is stated to comprise:
(a)judicial and administrative functions together with development opportunities for a wide range of retail, commercial activity and professional services including legal offices;
…
(c)a medium scale built-form transition south from the Victoria Square Policy Area to the Residential Zones while respecting the scale and detailing of the many significant heritage places; and
…
The relevant Principles of Development Control include:
2Along King William Street, development should contribute to the creation of a visually cohesive townscape of imposing buildings along a tree-lined boulevard.
3Development along the King William Street frontage should acknowledge the importance of the location along the City’s major north-south axis and present high quality design, building materials and finishes that complement the adjacent heritage places.
While Principle 2 is of obvious relevance, Principle 3 is of more subtle relevance in that the Principle is not speaking of development to a heritage place itself other than in relation to the existence of other heritage places along King William Street.
The Courts and Market Policy Area 18 is within the Central Business Area Zone. The introduction to the Central Business Area Zone provisions notes that they are additional to those expressed for the whole of the Council area. It deals with the resolution of conflict between the two and provides:
In the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Zone.
Among other things the Desired Character for the Zone comprises:
(b)the distinctive character and style of the area created through the conservation, enhancement and re-use of heritage places;
(c)a supportive environment for business and new enterprise through an attractive public environment, meeting places and places for eating, drinking and leisure;
…
(e)external colonnades, verandahs and, where appropriate, internal malls and arcades facilitating safe and convenient pedestrian movement and encouraging social interaction during and after business hours;
…
The Council Wide provisions contain a number of relevant objectives and principles. Under the heading “Heritage and Conservation” appear the following Objectives:
Objective 43: Conservation and enhancement of those places and areas which contribute to the heritage of the City in recognition of the distinctive contribution they make to the historic character of the City.
Objective 46: Facilitation and encouragement of the continued use or adaptive reuse of land, buildings and structures comprising a heritage place.
There follow the following relevant Principles of Development Control under the subheading “General”:
134 Development of a heritage place which is:
…
(b) identified as a Local heritage place (City Significance) or Local heritage place (Townscape)
in the provisions for the relevant Zone or Policy Area should not diminish its heritage value.
135 Heritage places should:
(a) be restored and adaptively reused in a manner that does not diminish the heritage value of their original style, design and materials;
(b) be conserved by alteration and addition so as to maintain the value and prominence of the original street facade of the building, locating new development away from street frontages; and
(c) integrate improvement additions without compromising the heritage value of the original building.
136Development of a heritage place, including conversion to a new use, additional construction, part demolition, alterations to the fabric or affecting the setting of a heritage place, should:
(a) be compatible with the heritage value of the heritage place; and
(b) should not be detrimental in terms of design, height, scale, siting, set-back, materials, external finishes and architectural detail to the heritage value of the heritage place.
[Emphasis added]
Under the subheading “Local Heritage Place (Townscape)” are the following provisions:
140Development should not diminish the heritage value of a Local heritage place (Townscape), as identified in each Zone or Policy Area, and should retain the place to the relevant depth specified in the table below.
Any development on land containing a Local heritage place (Townscape) should occur behind that retention depth unless such development positively contributes to the heritage value of the Local heritage place (Townscape).
[There follows a table of Required Retention Depths for a number of named streets within the City of Adelaide. The depth for King William Street is 15 metres. On all other streets, the required retention depth is four metres.]
The retention depths are to be measured from the line of building frontage (excluding verandahs and/or balconies) of the Local heritage place (Townscape).
141In those streets where single-storey heritage places prevail at or close to the street frontage, single storey development and a consistent building line should be maintained.
142Sympathetically designed second storey additions that utilise or extend existing roof space to the rear may be appropriate, subject to scale, overshadowing and privacy considerations.
Under the heading “Active Street Frontages” there appear the following Objectives:
Objective 54: Development that enhances the public environment and, where appropriate provides activity and interest at street level, reinforcing a locality’s desired character.
Objective 55: Development designed to promote pedestrian activity and provide a high quality experience for City residents, workers and visitors by:
(a) enlivening building edges;
(b) creating welcoming, safe and vibrant spaces;
(c)improving perceptions of public safety by natural surveillance; and
(d) creating interesting and lively pedestrian environments.
These are followed by a number of relevant Principles of Development Control:
198Commercial buildings should be designed to ensure that ground floor facades are rich in detail so they are exciting to walk by, interesting to look at and to stand beside.
Design Techniques (these are ONE WAY of meeting the above Principle)
198.1 Design solutions may include:
…
(d) Cafes and restaurants utilising footpath space; and/or
…
Under the subheading “Outdoor Dining” is Objective 56:
Objective 56: Development that contributes to the vibrancy, activity and desired character of a locality.
This is followed by the following relevant Principle of Development Control:
201Fixed glass screens, plastic blinds or freestanding removable canvas screens should not create enclosure or clutter the footpath, nor detract from the desired character of the locality. Glass screens should be clearly marked to ensure adequately visible for pedestrian safety.
The proceedings before the ERDC
The Commissioner described as the “central planning issue” in the case “whether the proposal diminishes to an unacceptable extent the value of the heritage place or conflicts with the desired townscape character for development along King William Street”.
Having referred to the above and other Objectives and Principles the Commissioner said:
The following factors are among those that should be considered when dealing with the policy tension. Firstly, the extent to which the Plan’s desire to create a welcoming, safe and vibrant kerb-side atmosphere is tempered by its provisions that discourage development that would diminish the value of the building (and other heritage places in its near vicinity) and those that encourage the creation of a “visually cohesive townscape of imposing buildings” along King William Street. Secondly, the way and degree to which the heritage value of the building has been compromised, and the weight that should be given to this reality in the assessment.
The Commissioner summarised the evidence of the three expert witnesses called before him. Mr Weidenhofer considered that the impact of the proposal on the heritage value of the building should be measured against its ground floor which had been greatly compromised. That led him to conclude that the introduction of the blinds would not affect the building’s heritage value, and that in any event the blinds would not affect the original building fabric. He also noted the use of PVC blinds on certain State heritage places in the Central Business District without diminution of their heritage value, and he noted that any perceived impact on the building’s heritage value was easily reversible. Although not noted by the Commissioner, Mr Weidenhofer noted, as period photographs confirmed, that in its original form, and certainly as early as 1911, canvas blinds were attached to the front of the verandah of the building to mitigate the weather. There was therefore a historic precedent for the use of blinds on the verandah of this building. He concluded that the proposal would not have a detrimental effect on the heritage value of the subject building, adjacent heritage places or the integrity of the streetscape.
Mr Brown tended to assess the impact of the proposal against the heritage value of the building as a whole. The building was an important element in the streetscape, “reinforcing the scale and architectural integrity of the adjacent heritage places”. He considered that the blinds, when drawn, will, by reflection or distortion, obscure or disrupt the view of the building and nearby heritage places. The heritage value of the building would be diminished by the introduction of a “closed in” visual element along the footpath and overall by modification to its existing setting. However, it is clear that Mr Brown’s principal concern was not so much with the effect of the development on the building itself but on the building when assessed within the wider streetscape. In his oral evidence he confirmed that if the blinds were on the building in a different street in a different location, they would probably be approved. “It’s purely because this is on King William Street”. He confirmed that a little later by saying: “If the same building were around the corner on Carrington Street it would get a big tick and it would go ahead”. Mr Brown’s focus was therefore clearly on the broader King William Street streetscape.
Mr Jensen did not have qualifications in architecture that the other two witnesses did, nor did he claim particular expertise in advice on heritage matters. Although he considered that the proposed development would have a detrimental visual impact on the heritage significance of the building and on the integrity of the verandah, it appears that his principal concern was its effect on the visual cohesiveness of the townscape.
The Commissioner’s reasons for dismissing the appeal are expressed in the following three paragraphs:
(1)Whether the proposal diminishes the heritage value of the building is not an issue determined solely by an evaluation against the prevailing character and heritage integrity of its lower or ground level. The integrity of the building as a whole ought to be considered and due recognition be given to those elements that have been restored to heritage value status. Such an approach would be consistent with the Plan’s overall thrust for heritage conservation and enhancement unless, of course, its heritage value was so damaged as to make it fruitless to pursue the aims and objectives of heritage conservation. That is not the case here. To the contrary, restoration work has occurred at the lower level and resources have been expended to prepare a conservation plan to assist in its restoration over time.
(2)Taken as a whole the proposal would, because of the appearance of and the distortions created by the PVC material when drawn, alter the appearance of the building in a material way. In my view the alteration would not be consistent with what remains of the original street façade when the building is viewed in its totality. For that reason, it would be in conflict with Council wide Principles 135 and 136, would not pay sufficient respect to those parts of the ground level that have been conserved and may well have the effect of discouraging further restoration in accordance with the Plan’s aims and objectives for heritage and conservation.
(3)Within the locality the building sits adjacent to or very near a number of heritage places and within a townscape recognised by the Plan as having particular importance. The townscape within the locality reflects with some accuracy the character sought for the Policy Area as expressed in part in Principle 2. That is to say “imposing buildings along a tree lined boulevard”. The importance of the boulevard townscape is reinforced in Principle 3. The existing townscape is devoid of any feature comparable to the proposal. Although not a decisive factor, and one diminished by the presence of regularly spaced street trees, the blinds when drawn would appear as a foreign element thus placing it at odds with the goal of achieving a visually cohesive townscape.
Consideration of the appeal
A focus that was too narrow?
The first argument of the appellant was that the Commissioner, having identified what he described as the “central planning issue” failed to take into account the necessary balancing of pros and cons of the proposal as a whole and other relevant objectives of the Development Plan, such as development that contributes to the vibrancy, activity and desired character of the locality. It was argued that he concentrated almost exclusively on heritage issues.
Heritage issues were significant, but they were not considered by the Commissioner to the exclusion of other relevant Objectives and Principles of the Development Plan. The Commissioner noted most of the relevant provisions of the Plan. I have already referred to his identification of the policy tension between creating a welcoming, safe and vibrant kerb-side atmosphere, on the one hand, and provisions that discourage developments that would diminish the value of a building or affect the visually cohesive townscape of other buildings in the street. Towards the end of his reasons he referred particularly to the evidence of the appellant and to aspects of the Zone’s desired character which was not challenged. He noted that the aim of Objectives and Principles to “create active street frontages to encourage adaptive reuse and continuation of heritage places is heavily qualified” by Principles 2 and 3 of the Policy Area, especially in the light of their opening qualification, reinforced by objective 43 and Principles 134-136.
Having considered all those matters the Commissioner concluded that “the pros and cons are finely balanced”. I cannot conclude that the Commissioner failed in his task of carrying out the balancing exercise required in the application of s 33(1)(a) of the Development Act 1993 (SA).[1] The Commissioner’s reasons must still be examined, however, to ascertain whether any errors occurred in the assessment process.
[1] For a more elaborate description of that process see City of Mitcham v Freckman [1999] SASC 234, [18]-[19], (1999) 74 SASR 56, 62-63.
The heritage value of the building
From the passage quoted above in which the Commissioner summarised his reasons, it is clear that his principal reason for dismissing the appeal was because the proposal would diminish the heritage value of the building. However, his reasoning on that issue discloses a number of flaws.
In the first place it is clear that the two heritage architects who gave evidence were not concerned about the effect of the proposal on the heritage value of the building itself. The only person to express that view was Mr Jensen whose qualifications and experience were in planning, not heritage architecture.
The ERDC is not obliged to accept or act on expert evidence led before it. It can form its own view as to the planning merits of a particular proposal in assessing it against the provisions of a Development Plan. However, if it does reject uncontradicted expert evidence, it should do so only for very good reason. The Commissioner did not explain why he did not accept the evidence of the two heritage architects on this topic. As it was the principal reason for dismissing the appeal, his implied rejection of their evidence needed an explanation. No such explanation was forthcoming.
This failure to accept the uncontradicted expert evidence was exacerbated by the fact that in determining the effect of the proposal on the heritage value of the building the Commissioner adopted an irrelevant definition of heritage value contained in Schedule 1 of the Development Plan. That Schedule contains a number of definitions of terms used in the Development Plan. The definition he adopted is in the following terms:
In relation to a local heritage place, the elements of heritage value comprise:
(a)all exterior parts of the original building(s) or structure(s) on the site, including external walls and roof forms, but not including alterations and additions that are not characteristic of the building period, style or type as defined in Schedule 2 and elements specifically excluded in the relevant Zone or Policy Area Table;
(b)original building elements, materials and details, including chimneys, verandahs, balconies and door and window joinery that are characteristic of the building period, style or type as defined in Schedule 2, unless specifically excluded in the relevant Zone or Policy Area Table;
(c)any non-original elements that are characteristic of the building period, style or type as defined in Schedule 2, unless specifically excluded in the relevant Zone or Policy Area Table; and
(d)any interiors or other elements described in the relevant Zone or Policy Area Table;
except where the elements of heritage value are described in the relevant Zone or Policy Area Table as: “Frontage and side wall returns visible from the street”, in which case the elements of heritage value for such places shall be so limited.
Neither the witnesses nor counsel referred to that definition, and for good reason. It is plain that the material terms of the definition relate to a building period, style or type referred to in Schedule 2. Schedule 2 is entitled “House Periods, Style and Types in North Adelaide”, and proceeds to described building styles and types in various periods from the 1840s to beyond the 1950s relating only to houses and specifically to houses in North Adelaide. The definition quoted above has no bearing on the heritage value of other buildings in the City of Adelaide. Not only is the definition limited in its terms to house periods, styles and types in North Adelaide, but it appears within the definition of “Heritage Place – North Adelaide” in Schedule 1. By assessing the heritage value of this building by reference to that definition the Commissioner was in error. There is no other definition of heritage value in the Development Plan.
The reference to that term in Principles 134-136, so far it concerns this building, relates to ordinary concepts of what constitutes the heritage value of this building. It would appear that the real heritage value of this building is in its undisturbed upper floor facade. Viewed from the opposite side of King William Street, as the photographs in evidence indicate, the shop fronts themselves are largely concealed and shaded by the very wide verandah, itself of little inherent heritage value. A pedestrian walking on the eastern side of King William Street would be aware of the variety of shop fronts, but what they see bears no relationship to the first floor of the building which is invisible from the footpath below. That is not to say, as the expert witnesses recognised, that the ground floor does not retain some items of heritage value, particularly the shop front at No 306 and the restored front shop at No 302. However, that heritage value is substantially impaired by the fronts to No 302A, 304 and 304A and the replaced verandah itself, including the verandah posts to which the blinds are proposed to be attached. By making his own flawed assessment of the heritage value of the building and by not accepting, without explanation, the views of the two heritage architects, the Commissioner was in error.
It is also clear that in paragraph (2) of the summary of the Commissioner’s reasons quoted above the Commissioner failed properly to apply Principles 135 and 136 on which he relied. Those Principles refer to restorations and adaptive use of buildings that do not diminish the heritage value of the original style, design and materials, without compromising the heritage value of the original building and which are compatible with the building’s heritage value and are not detrimental to certain aspects of its heritage value. The test used by the Commissioner in paragraph (2) of his reasons used none of those terms which I have emphasised. Instead, he considered that the alteration would not be “consistent” with what remains of the original facade, that it would be “in conflict” with Principles 135 and 136 and would not “pay sufficient respect to” those parts of the ground level which had been conserved. None of those terms appear in the relevant Principles.
The proposal would have its greatest effect on the ground floor facade when viewed from the street or the western footpath. The heritage value of that part of the facade, including the verandah, is severely compromised. Coupled with the matters referred to in the next paragraph, the proposal does not diminish that heritage value. The prominent part of the original facade is the first floor. The value and prominence of that facade would be maintained. In the opinion of the expert the development will not compromise the heritage value of the original building. It will be compatible with and not detrimental to that heritage value. It will be compatible with other objectives of the Plan. It is therefore not in conflict with Principles 134-136.
Finally, in holding that the development may well have the effect of discouraging further restoration in accordance with the aims and objectives of the Development Plan for heritage and conservation, the Commissioner appears to have ignored and given no weight to the fact that this development is easily reversible. It is not independent of the use to which the premises at No 302A are put. The blinds will only be required for so long as there is an outdoor dining permit granted to the proprietor of the cafe. There would be no justification for the blinds remaining if the outdoor dining permit is cancelled or not renewed. While further restoration of the building should not be discouraged by a right in perpetuity to maintain in position blinds of the type proposed by the appellant – and this could be the case if the proposal were approved without appropriate conditions – conditions can be imposed which would ensure that further restoration of the building would not be discouraged. None of these matters appear to have been considered by the Commissioner in reaching his conclusion.
There are therefore a number of flaws in the Commissioner’s principal reasons for rejecting the proposal. When properly taken into account the pros and cons of the proposal cease to be “finely balanced”, and the major reason for rejecting the proposal ceases to have any force. The decision must therefore be set aside on that ground alone.
The effect on the townscape
The other reason for the Commissioner’s rejection of the proposal was that the blinds “when drawn would appear as a foreign element thus placing it at odds with the goal of achieving a visually cohesive townscape”. There was support for this view from Mr Brown and Mr Jensen, but not Mr Weidenhofer. However, the Commissioner himself described it as “not a decisive factor, and one diminished by the presence of regularly spaced street trees”. Thus when left by itself, it would appear that that would be insufficient ground for rejecting the proposal. With that I agree. Once again, the reversible nature of the development and the intermittent use of the blinds are relevant factors.
It is also relevant that the Development Plan makes provision for the identification of two types of Local heritage place. One is described as “Local heritage place (City Significance). The other is described as “Local heritage place (Townscape)”. Those expressions are not further defined in the Development Plan. However, Objectives 43-48 and Principles of Development Control 134-147 apply, where appropriate, to both types of heritage place. However, Principles 140-142 apply only to a Local heritage place (Townscape). This building is classified as a Local heritage place (City Significance).
In the provisions of Principles 140-142, which apply only to a Local heritage place (Townscape) it would appear that such heritage places are so designated because of their contribution to the local townscape. There is a more stringent regime relating to development of facades and of the building to the specified retention depth, requiring that such development “positively contribute” to the heritage value of the building. That requirement does not apply to a Local heritage place (City Significance).
There are a number of reasons why a building might be designated as a Local heritage place. Section 23(4) of the Development Act provides:
(4) A Development Plan may designate a place as a place of local heritage value if—
(a) it displays historical, economic or social themes that are of importance to the local area; or
(b) it represents customs or ways of life that are characteristic of the local area; or
(c) it has played an important part in the lives of local residents; or
(d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or
(e) it is associated with a notable local personality or event; or
(f) it is a notable landmark in the area; or
(g) in the case of a tree (without limiting a preceding paragraph)—it is of special historical or social significance or importance within the local area.
It is not difficult to accept that provisions such as paragraphs (a), (b), (d) and (f) may have had some bearing in the decision to designate this building a Local heritage place (City Significance). The clear implication from the designation of a building as a Local heritage place (Townscape) is that its principal reason for designation is to be found in paragraph (d), and for that reason is likely to have applied to any development application relating to its facade a more stringent approach than would apply to a Local heritage place (City Significance), being an approach which requires that the development “positively contribute”[2] to the heritage value of that building. That is not a requirement for development of a Local heritage place (City Significance).
[2] Adelaide (City) Development Plan, Principle 140.
Conclusion
It follows that the appeal must be allowed and the decision of the ERDC set aside. In its place there should be an order allowing the appeal against the decision of the Council and granting Development Plan consent and hence Development Approval for the proposal. However, that will need to be subject to a number of conditions.
In order to ensure that the development does not compromise or discourage future restoration of the building, and given the ready reversibility of the development, one of those conditions should be to the effect that the approval remains in place only until:
(a)The blinds and fittings the subject of the approval are lawfully removed by the owner or occupier of the premises;
(b)The outdoor dining permit issued by the Adelaide City Council in respect of the premises is either not renewed or is cancelled; or
(c)Development Approval is granted for any alteration to the western facade of the building, including the verandah, of which the premises forms part
whichever first occurs.
There will also no doubt need to be conditions relating to such matters as the colour of the channels housing the blinds, conditions as to their maintenance and as to making good the verandah and footpath upon removal of the blinds, and possibly other matters. I will hear counsel as to whether the matter should be remitted to the ERDC for the purpose of determining the appropriate conditions or whether such conditions should be part of any final order made by me.
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