WALSH and SHIRE OF PEPPERMINT GROVE - [2011] WASAT 79

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WALSH and SHIRE OF PEPPERMINT GROVE [2011] WASAT 79

MEMBER: MR P McNAB (MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 15 DECEMBER 2010 AND 18 JANUARY 2011

DELIVERED : 16 MAY 2011

FILE NO/S: DR 261 of 2010

BETWEEN: TERENCE ALAN WALSH
JANICE MARY WALSH
Applicants
AND
SHIRE OF PEPPERMINT GROVE
Respondent

Catchwords:

Town planning Development application Heritage listed building Building on the municipal heritage inventory Listed as 'category 1' Surviving substantial residence from the preWorld War I period Premium suburb Demolition proposed Building substantially intact Impact of approved neighbouring development Neighbouring development a modern substantial residence on vacant block Heritage significance of subject land marginally diminished Heritage significance of immediate precinct marginally diminished Extent to which other impact of neighbouring development can be considered in demolition cases Significant heritage conservation values underlying planning framework Demolition refused by Tribunal Application dismissed

Legislation:

Heritage of Western Australia Act 1990 (WA), s 45
Metropolitan Region Scheme
Planning and Development Act 2005(WA), s 241(1)
Shire of Peppermint Grove Town Planning Scheme No 3, cl 5.1.1, cl 5.1.2

Result:

Application for review dismissed
Decision of the Shire of Peppermint Grove to refuse demolition affirmed

Category: B

Representation:

Counsel:

Applicants: Mr K Adam
Respondent: Mr C Slarke

Solicitors:

Applicants: KA Adam & Associates (Architects and Town Planners)
Respondent: McLeods

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

Sharpe v Town of Vincent [2010] WASC 391

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This review considered the refusal by the Shire of Peppermint Grove to approve an application by Mr and Mrs Walsh (the applicants in the Tribunal) to wholly demolish an existing house and outbuildings at No 12 The Esplanade, Peppermint Grove.
The subject site had been included on the Shire of Peppermint Grove's Municipal Heritage Inventory 1999 on the basis that it was one of the surviving residences on The Esplanade from the preWorld War I period and, otherwise, that it formed part of a cultural group with neighbouring properties in nearby Forrest Street.
The Shire of Peppermint Grove took the view that the demolition of the existing heritage listed building would adversely impact upon the cultural heritage values of the Shire.
The applicants argued two matters: first, that the intrinsic cultural heritage value of the place was already limited; and that its streetscape contribution was not sufficient to preserve the site from the improvement that would flow from development following demolition.
Their second argument related to the impact of a new adjoining, very large, residential development immediately to the north of the site, at No 10 The Esplanade. The applicants had opposed that development.
The applicants submitted that this neighbouring development (which was being constructed at the time of hearing) was such that it would reduce the heritage values of the place significantly, and that the new development would adversely impact on the amenity of the place, given the close location of the existing building to the northern boundary and the natural topography of the adjoining site. For example, it was argued that the subject land would then have restricted access to winter northern sun.
Thus, the applicants submitted that because of a combination of these factors demolition of the existing heritage building was warranted.
The Tribunal disagreed with the applicants.
The Tribunal held that, whether taken separately or together, these factors were insufficient to warrant demolition of the existing heritage structures on the subject land.
With regard to the intrinsic cultural heritage value of the place the Tribunal found that the place was substantially intact and retained the characteristics for which it was originally placed on the Shire of Peppermint Grove's 'Heritage List'. The site thus had relevant heritage value that in effect triggered a planning regime that made demolition difficult.
While the new adjoining development would have some impact on the heritage values of the place it was not significant enough to permit demolition of the listed structures on No 12 The Esplanade. And, even taking at their highest the alleged amenity concerns arising from the impact of the development at No 10, these matters were also insufficient to warrant demolition at No 12.
This was because, as a matter of principle, planning decisions concerning the demolition of heritage listed properties should not be relevantly influenced by other development that had been, in its own context, carefully considered, properly approved and was otherwise justified.
Further, a decision favouring demolition in such circumstances would significantly undermine the extensive and restrictive State and local policies which tended to favour the retention of heritage listed places.
Therefore, notwithstanding the approval by the Shire of Peppermint Grove of a large residence immediately to the north of the subject site, the Tribunal was satisfied that the heritage value of the subject land had not been reduced to such an extent that demolition was warranted.
The application for review was therefore dismissed and the decision of the respondent to refuse development approval for demolition was affirmed.

Introduction

These proceedings involve an application brought by Mr Terence Walsh and Mrs Janice Walsh (applicants) for a review of the decision made by the Shire of Peppermint Grove (respondent or Shire) in August 2010 to refuse development approval for the demolition of the buildings at No 12 (Lot 19) The Esplanade, Peppermint Grove (subject land or site or place).
The refusal related to the heritage value of the site and its existing improvements.

Site and locality

The subject land is located at No 12 (Lot 19) The Esplanade, Peppermint Grove and has an area of 1,597 square metres. The site contains a dwelling, outbuildings and a pool. The subject land is a premium residential site in a premium suburb.
The Tribunal had the benefit of a view of the subject land and its immediate surrounds in the presence of the parties during the hearing in December 2010. Mr Phillip Griffiths, the respondent's heritage expert, was unable to attend the site view and subsequently visited the site in January 2011.
Mr Griffiths prepared a supplementary witness statement including a full description of the subject place externally and internally. Although Mr Kenneth Adam, the applicants' heritage expert and representative, was unable to accompany Mr Griffiths, he did agree that Mr Griffiths' description of the interior and exterior of the place was substantially accurate. It appears that this was the first detailed internal inspection of the subject land that Mr Griffiths had undertaken.
The applicants' full assistance and cooperation in this exercise are noted.
For convenience of reference we set out that full description, as follows:
Main House
Exterior
The complex comprises a limestone, brick, stucco and tiled roof residence in the Federation Queen Anne style, with a small addition to the rear of it, and a set of outbuildings across the rear of the lot, a pool, fences, and gardens.
The house is made up in two parts, being the original house and later additions to the rear of it.
The original house is built on black tuck-pointed limestone foundations, some of which have been rendered over subsequently, most likely as a repair strategy. The walls are tuck-pointed brick with stucco sills, with some instances of local re-pointing at the wall bottoms. The tuck-pointing has been painted over, which is a strategy that will most likely in the long term [sic], and can be reversed, probably without too much damage to the underlying material. There are single pane double hung sash windows to most of the rooms, except for the diagonally oriented wall to the current kitchen, where a pair of them have been removed to make a single 'picture' window. An additional window is fitted to the north-east corner of the kitchen in the north wall.
There is a timber floored verandah across the front of the house and along to the front entrance, with turned verandah posts, moulded handrail and turned balusters, to which a [sic] vertical members have been added for pool fence compliance. The floor boarding to the verandah is wide timber boards, which would appear to be replacements for the original boards, most likely of a similar width.
The main roof is hipped and gabled, with a jettied gable over the south thrust bay. While this bay retains its details, the stucco work within the gable has been covered with a sheet material as a repair strategy. The original rough cast material most likely remains behind the decorative repair.
The complex hipped and gabled roof is covered with Marseilles pattern tiles of the same pattern as the original. The present tiles are an autumn blend colouring that was popular as a replacement tile in the 1950s and 1960s.
A feature of the front entry is the timber panel work and scrolling under sills, glazed panels, sidelights and hopper lights. The glass would all appear to be replacement material, possibly in place of leadlighting. The joinery work in the entry is fine work.
The additions to the original house are constructed in face brick with cut and struck joints, which [have] also been painted over. It has a flat roof, timber and aluminium joinery. The plan form suggests that a verandah was removed along the north face of the southern bedrooms to achieve the modest addition to the north of them.
Interior
The original interior would have comprised entrance hall, east west passage, two front rooms with fireplaces, three rooms along the north side of the passage, lounge and dining room south of the passage, scullery, kitchen and maid's room at the east end of the southern wing. The original bathroom may have been where the present bathroom and powder room are located.
The original internal construction would have comprised timber floors, compound moulded timber skirtings in principal rooms, four panel doors, hardwall [sic] plastered walls, lath and plaster ceilings, with cornices in the principle [sic] rooms and ceiling roses in the same rooms and hall. Much of this fabric has remained in place, some has been removed and other elements modified.
The current kitchen that is located across the front of the house was originally two rooms. The rooms would have had fireplaces on the common wall that has been removed. This combined room has had a door blocked off from the hall, and a wall removed and replaced with an arch with cast plaster imposts. The arch and imposts are poorly conceived and look very improbable. It seems that the lath and plaster ceilings, cornices and ceiling roses have been retained, as have the timber floors, but skirtings have been replaced. An additional window has been fitted to the north wall, kitchen fittings located around the walls and air conditioning let into the ceilings. The original four panel internal door leading into the hall, hopper light, and hardware have been retained.
The hall and corridor retain their original form, complete with timber floors, compound moulded skirtings, arched entrance to the corridor from the hall, complete with stop chamfers to the corners of plaster corners. The architrave and impost are in very good condition, which may indicate they are replacements of an earlier version. There is a cast plaster ceiling rose that would appear to be original in the entrance hall together with a run cornice. There are no cornices in the hall, which is a detail that is consistent with houses of this size of the period. A window has been added to the north wall of the lounge into the corridor.
On the north side of the entrance hall there is a powder room fitted with travertine floor and wall tiles and modern fittings. The absence of a hopper light over this door suggests that it was fitted in association with the adaptation of the powder room at a later date.
The lounge retains its original eastern doors, timber floor, and single pane double hung sash windows. The fireplace has been retained also, but the firebox, mantle and surround were fitted at some later period, possible [sic] as late as the 1960s. A doorway has been made into the adjacent dining room, with a poorly detailed arch and imposts that match the work in the kitchen. The ceiling, cornices and rose have been replaced with Art Deco style pieces. Skirtings match those in the kitchen. This work would appear to be of a suite of works that occurred early in the building's life.
The dining room has been remodelled in the same manner and a door introduced in to the eastern wall to link this room with the adjacent room that may have served as a scullery in the past.
There are two further rooms (Bedrooms 2 and 3) on this side of the house that would have been entered from a verandah originally. They are currently bedrooms but may have been the kitchen and maid's room. They retain most original features, other than the firebox to the fireplace in [B]edroom 2 and its mantle and surround.
Returning to the northern side of the house, three rooms have become two, being a bathroom and bedroom. Again, the bathroom is a contemporary affair like the kitchen. The bedroom was formed by combining two rooms retaining the basic features of the original rooms. It would appear that the lath and plaster ceilings were retained.
A good deal of the work to the kitchen, bathrooms and the new bedroom (Bedroom 1) would appear to have been completed at the same time, as skirtings carry through in the same style.
The rear addition has concrete floors, small profile bull-nosed skirtings, plastered walls, plasterboard and compressed strawboard ceilings, flush doors and mixture of timber and aluminium joinery.
Changes were noted on the building['s] exterior and interior. Some changes are the result of cyclical maintenance required of a building, some as cosmetic changes, and others changed [sic] some of the planning arrangements.
Outbuildings
The purpose of the outbuildings is not readily apparent, but most likely comprised stables, buggy shed and the like. They now serve as storage and garage facilities. The base walls are limestone with framed and asbestos cement clad upper walls lined internally in various locations with asbestos cement, particleboard and canite.
…
Of some importance in this review is that, immediately to the north of the subject place is No 10 The Esplanade where a new, modern residence is currently under construction. Number 10 was originally two separate lots and is now one substantial amalgamated lot and has planning approval for a large two storey plus basement premium residence. The site was previously vacant for more than 20 years. It should be noted that there is a significant height difference between the two properties, with No 10 being the higher.
The applicants had opposed that development which had been extensively assessed by the Shire, including consideration of the impact of the proposed development at No 10 on both the heritage value and amenity of the subject land.
As Mr Adam recognised, the Tribunal cannot 'review' that decision in this proceeding. The Tribunal can, however, but within limits, have regard to the impact or effect that the new development might have on any relevant issue arising in this review. We will return to this matter below.
There are no houses on the eastern side of The Esplanade. Both the subject land and No 10 have significant views, to the east, of the Swan River and its foreshore.

Planning framework

The subject land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Residential R10' under the Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3).
Clause 5.1.1 of TPS 3 sets out the purpose and intent of its heritage provisions as follows:
(a)to facilitate the conservation of places of heritage value;
(b)to ensure as far as possible that development occurs with due regard to heritage values and in harmony with it.
Clause 5.1.2 of TPS 3 obliges the Shire is to establish and maintain a 'Heritage List' of places considered 'to be of heritage significance and worth of conservation'. The Shire's Municipal Heritage Inventory 1999 (MHI) prepared under s 45 of the Heritage of Western Australia Act 1990 (WA) is considered to be the 'Heritage List' for the purposes of this clause.
State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5) is a planning policy to which the Tribunal is required to have 'due regard' under s 241(1) of the Planning and Development Act 2005 (WA). Both the significance and importance of this policy is, we think, emphasised in Sharpe v Town of Vincent [2010] WASC 391 (Sharpe) (Jenkins J). We will return to that case below.
The objectives of SPP 3.5 are as follows:
•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 6.5 of SPP 3.5 lists relevant considerations for development assessment, including demolition affecting a heritage place. The provision provides as follows:
•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.
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 provides that:
The weight given to heritage as a consideration will vary, depending on the degree of significance of a place or area, and relevant economic, social or environmental factors that may apply.
The specific development control principles relating to the demolition of a heritage place include the following:
•[…] 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.

The proposed development: demolition

The proposed development is the demolition of the whole of the existing dwelling and outbuildings on the subject land. There is, as yet, no proposed replacement building.
Under TPS 3 it is not necessary to consider at the same time as considering demolition any replacement development. The absence of such a proposal is therefore neither fatal nor relevantly critical to the review. However, it injects, perhaps, an element of further speculation when arguments are made about the impact on the subject land from the development approved for No 10.

However, even if such a proposed development for the subject land were before the Tribunal (directly or indirectly) if would not have, we think, materially affected our determination of the central issues in the review.

Respondent's reasons for refusal

The Shire resolved at its meeting on 24 August 2010 to refuse the application for planning approval for the demolition of the existing dwelling and outbuildings on the subject land for the following reasons:
1.The dwelling is listed as category 1 on the Shires' [sic] Heritage Inventory which states that 'Buildings which due to their character create the atmosphere of Peppermint Grove, therefore should be retained'.
2.The dwelling is significant to the cultural heritage values of the Shire.
3.The [d]welling is significant to the preservation of the amenities and the orderly and proper planning of the locality.

Overview of issues to be canvassed

The respondent's principal issue said to arise in the review was as follows:
Whether demolition of the existing dwelling on the subject land should be refused due to the heritage value of that dwelling.
The applicants agreed and added a further issue:
Whether the impact on the amenity and heritage value of the dwelling on the subject land caused by the dwelling under construction at No 10 The Esplanade warrants demolition of the dwelling.
The parties' heritage experts agreed on four issues to be canvassed:
1.The intrinsic cultural heritage value of the dwelling at [No] 12 The Esplanade.
2.The streetscape value/contribution of the dwelling at [No] 12 The Esplanade.
3.The impact of development at [No] 10 The Esplanade [on] the heritage values of the dwelling at [No] 12 The Esplanade.
4.The impact of development at [No] 10 The Esplanade to the amenity of the dwelling at [No] 12 The Esplanade.
We turn to consider each of these issues.

Intrinsic cultural heritage value of the subject land

The subject place is on the Shire's MHI with a 'category 1' management level. The objective of the MHI is 'to maintain the character and atmosphere of Peppermint Grove through the quality of the streetscape.'
Category 1 has the following definition:
Buildings, which due to their character create the atmosphere of Peppermint Grove, therefore should be retained, but may be altered and extended in a manner which is both discrete and sympathetic to the original fabric and character so that a significant proportion of the original building is retained and from the street the additions are seen to be a continuation of the same fabric and character.
The statement of significance for the subject land is as follows:
This elevated rendered brick, timber and tile residence, in the Federation Queen Anne style, although considerably adapted has cultural significance because:
•It is one of the older surviving residences along The Esplanade from the pre World War one period;
•It is typical of the style and scale of pre World War one residences that were constructed in [this part of] Peppermint Grove;
•It has associations with several Peppermint Grove families over nine decades;
•It is part of a cultural group.
Mr Griffiths, already mentioned, prepared a heritage assessment of the existing buildings on the subject land for the Shire in which he commented on the significance of the place as follows:
Though adapted, the place remains significant, and along with the residences at 6 and 8 The Esplanade, their retention is important to preserve cultural heritage values of the Shire on one of its primary streets. It is part of a larger collection of places from the same period that contribute to the Shire's sense of place. The historical integrity of the place remains, though it has been compromised by adaptation works. It is not beyond contemplation, in an effort to reinforce the significance of the place, for conservation works to be undertaken to reinstate its historic integrity and for the place to become an exemplar within the Shire.
In response to the MHI statement of significance, Mr Adam, for the applicants, submitted that the subject land should not be regarded as unique; that it was not rare; that it had no significant historic associations; that it had been significantly altered; and that it will be further compromised in terms of its context, streetscape and amenity by the development taking place on the adjacent property to the north (No 10 The Esplanade).
It was his opinion that the intrinsic heritage value of the subject land '[was] not all that high' and certainly not of the level of significance that would require, in effect, mandatory retention.
The parties' heritage experts did jointly agree, however, that the subject place had some cultural heritage significance, but disagreed on the level of that significance.
It was Mr Griffiths' opinion that while the house had been altered since its inclusion on the MHI those alterations were not significant enough to reduce the cultural heritage significance of the place, and its inclusion on the MHI was still warranted. Mr Adam, on the other hand, was of the opinion that the intrinsic values of the place were not especially high, and the heritage setting of the place had been compromised and will be further compromised by the construction of a new, large two storey plus basement residence on the adjoining property to the north of the subject land.
The Tribunal agrees with Mr Griffiths' expert opinion. Although this proceeding in the Tribunal is not a review of the subject land's placement on the MHI, we are of the view that the subject land does have sufficient intrinsic cultural heritage value to be listed as a category 1 on the Shire's MHI.
This is because we are satisfied that the subject land is, as to its buildings, still relatively intact, particularly externally, and even though it has been modified it remains, amongst other things, representative of the character of the preWorld War I residential development along The Esplanade.

Streetscape value/contribution of the subject land

With regard to streetscape, it was Mr Adam's contention that there was 'no valuable contribution to the streetscape made by this house sufficient to warrant its retention' and furthermore that 'its loss would be of minimal consequence'.
Mr Adam argued that there was no relevantly consistent streetscape of which the subject land formed part of. Further, it was 'impossible' to see the other heritage listed properties (in The Esplanade and in Forrest Street) from the same view point because of the particularly steep topography of that immediate precinct. Also, the subject land had a limestone retaining wall on the street boundary which Mr Adam said 'significantly detracts from the intrinsic architectural merit of the house as part of the streetscape'.
Mr Chidlow, a town planner employed by and called by the respondent, was of the view that when considering the streetscape value of the subject land it was appropriate to consider the relevant locality, which in this case included properties in both The Esplanade and in Forrest Street. Mr Chidlow agreed, however, that the subject place was not one of a group of similar houses and that the streetscape did have a variety of style of houses.
It was his view that the heritage character extant in the area related to the proximity of houses that may not necessarily be from the same decade, but nevertheless still had heritage value, and that they were in a cluster within that particular locality.
In his heritage assessment of the subject land, part of Mr Griffiths' description was as follows:
The immediate context to [No] 12 The Esplanade, including Forrest Street, has been compromised by the degree of new development and/or integrity of adaption works that have occurred to historic dwelling[s]. As can be observed through the demolition of the adjacent dwelling and current vacant site [that is, No 10], the progressive development of the context, including front boundary accretions, has substantive bearing on the streetscape appeal and legibility of historic building stock of one of the Shire's premier streets.
In terms of the heritage impact of demolition of the buildings on the subject land, he stated that 'the demolition will have a substantive impact upon the streetscape character extant about … Esplanade and Forrest Street[s].'
In the joint witness statement prepared by the experts it was agreed that there was no relevantly consistent style of dwelling in the vicinity, but Mr Griffiths remained of the view that the contribution of the property should be judged within the context of the whole of the Shire. Mr Adam was of the view that a replacement building would likely be an improvement to the streetscape, given the diversity of existing dwellings.

Impact of the development at No 10 on the cultural heritage values of subject land

The approved dwelling now currently under construction at No 10 will be, as we have mentioned, a large structure consisting of two storeys plus a basement on a large amalgamated lot that was originally two lots of a similar size to the subject land. It was Mr Adam's opinion that the approved dwelling would have a significant impact on the cultural heritage values of the subject land as a consequence of its large bulk and proximity.
It was agreed by both Mr Griffiths and Mr Chidlow that the approved dwelling will have an impact on the streetscape and context of the subject land due to the topography of the street, the size of the amalgamated lot and the proximity of the new dwelling to the subject land. However, neither expert was of the view that this impact reduced the cultural heritage values of the subject land to such an extent that demolition was warranted.
Mr Adam was of the view that the cultural heritage values of the subject land, according to the MHI, related to its contribution to the character and atmosphere of Peppermint Grove. Therefore, he suggested, these values were adversely impacted upon by the development taking place at No 10 and therefore demolition of No 12 would be appropriate.
The Tribunal accepts that the development at neighbouring No 10 will affect both the context and the streetscape in which the subject land is found. However, such acceptance does not lead to the necessary conclusion that the heritage value of the subject land is reduced to such an extent that justifies demolition.
This is mainly because the heritage planning controls that we have referred to above, as we read them, do not generally contemplate such matters as justification for demolition. In any case, here a vacant neighbouring lot is being improved, having survived a reasonably thorough assessment by the Shire. Assuming that the approved development will be yet another example of the context being 'compromised by the degree of new development,' nevertheless sufficient heritage value remains in the immediate vicinity of the subject land (as appears on the MHI, for example) to rebut any case for demolition.
We turn more directly to the critical issue of the impact of the development at No 10.

Impact of development at No 10 on the amenity of the buildings on the subject land

The heritage and planning experts agreed that the development at No 10 will have an impact on the amenity of the subject land, but they disagreed on the extent of that impact.
Mr Adam argued that the bulk and mass of the building at No 10 combined with the location of the existing house on the subject land meant that it would be extraordinarily difficult to provide a building (including adapting and using the existing structures on the subject land) with a high level of amenity which included direct access to northern light.
It was Mr Adam's view that the heritage value of the subject land, such as it was, should not be elevated so that it outweighed these amenity concerns of the current and future occupants of the subject land. He submitted that demolition should be permitted 'because the consequences of … demolition [would not be] devastating [but] the consequences of its retention [would be] significantly adverse under all [the] circumstances to the owners of the building'.

Discussion of the case and conclusions

The significant practical barriers to the demolition of heritage listed buildings arising out of the combined effect of both State and local planning frameworks is well illustrated by Sharpe and the line of recent Tribunal cases discussed therein, authorities that were either implicitly or expressly endorsed by the Supreme Court of this State in that appeal.
There is in this review an abundance of expert and material evidence before the Tribunal which supported the relevant heritage status of the subject land. Amongst other things, the relevant buildings are substantially intact and have retained the characteristics for which they were originally placed on the Shire's Heritage List.
Prima facie, then, the subject land's buildings must, on a proper application of that planning framework, be preserved from unjustified demolition. The only significant justification for demolition put forward by the applicants related to the impact on the subject land of the development on the neighbouring lot (No 10 The Esplanade).
The Tribunal holds that, whether taken separately or together, these factors (that is, the alleged 'low' heritage value of the subject land, and the 'restrictions' or impact said to flow from the approval for development at No 10) are insufficient to warrant demolition of the existing heritage structures on the subject land.
Although Mr Adam put the argument a variety of ways (all short of actually impugning the Shire's decision with respect to the development at No 10), the central thrust of his case was that the development at No 10 and its impact or effect on the subject land (and its future development potential, such as it was) should relevantly 'control' the outcome of the review in this case.
With respect, we do not agree.
While the new adjoining development will have some impact on the heritage values of the subject land and its immediate precinct (and will thus not be an irrelevant factor), these matters are not significant enough to permit demolition of the listed structures on No 12 The Esplanade. And, even taking at their highest the alleged amenity and other concerns arising from the impact of the development at No 10, these matters are also insufficient to warrant demolition at No 12.
This is because, as a matter of planning principle, planning decisions concerning the demolition of heritage listed properties in a case such as this should not be relevantly influenced by an adjoining one-off development that, in its own context, has been carefully considered, should be presumed lawful (absent any judicial review), has been properly approved and otherwise seems justified in principle for a large vacant block in a premium suburb.
Furthermore, a decision favouring demolition in such circumstances would significantly undermine the extensive and restrictive State and local policies which, as we have said, tend to favour the retention of heritage listed places. This is so even if adjoining development, as is the case here, diminishes marginally either the land or buildings in question or its immediate precinct, as regards heritage value.
Therefore, notwithstanding the approval by the Shire of a large, modern residence immediately to the north of the subject site, the Tribunal is satisfied that the heritage value of the subject land has not been reduced to such an extent that demolition is thereby warranted.

Orders

For the foregoing reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent Shire of Peppermint Grove to refuse demolition is affirmed.

I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER

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WALSH and SHIRE OF PEPPERMINT GROVE [2011] WASAT 79

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Sharpe v Town of Vincent [2010] WASC 391