WHELANS (WA) PTY LTD and TOWN OF CLAREMONT
[2009] WASAT 94
•13 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WHELANS (WA) PTY LTD and TOWN OF CLAREMONT [2009] WASAT 94
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 7 MAY 2009
DELIVERED : 13 MAY 2009
FILE NO/S: DR 61 of 2009
BETWEEN: WHELANS (WA) PTY LTD
Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords:
Town planning Development application Demolition Federation Bungalow - Heritage place under local government schedule of historic and other buildings and places 'Significant place' Medium density R40 coding Subdivision approval granted subject to demolition Whether demolition consistent with orderly and proper planning Whether demolition justified Level of cultural heritage significance of building Feasibility of incorporating building into new development State Planning Policy 3.5 - Historic Heritage Conservation Contribution of building to streetscape Contemplation of coding
Legislation:
Planning and Development Act 2005 (WA), s 135, s 241(1), s 252(1)
Town of Claremont Town Planning Scheme No 3, cl 25(3), cl 78(1), cl 78(3)(a), cl 86(2)
Result:
Demolition allowed
Category: B
Representation:
Counsel:
Applicant: Mr V Butterly (Acting as Agent)
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned a development application for demolition of a house built in 1904 in the Federation Bungalow style of architecture. In the late 1980s, significant alterations and additions were made to the house. While the house retained substantially its original form when viewed from the street, it did not retain substantially its original fabric or detail.
The Tribunal determined that demolition was justified in the circumstances of the case. The place had little historic value, no aesthetic scientific, social or rarity value, some value in terms of representativeness, and, while still used as a single house, its integrity as a single residence was compromised by more intensive residential development surrounding it, including a 12-unit residential development next door. It was also not feasible to incorporate the house into new development consistent with the medium development R40 coding of the site.
The Tribunal found that the house made a positive contribution to the streetscape. However, as demolition was justified from a heritage perspective, and as the site did not form part of a heritage protection area, its contribution to the streetscape did not warrant its retention. Two new houses on the site would also make an acceptable contribution to the streetscape, given the built form and traffic context of the property.
The Tribunal concluded that demolition of the house was consistent with orderly and proper planning and granted conditional development approval for the proposal.
Introduction
In October 1985, Mr and Mrs Robinson purchased No 32 Shenton Road, Claremont (site) which comprised a single house built in 1904 in the Federation Bungalow architectural style. In 1987 and 1989, Mr and Mrs Robinson carried out substantial alterations and additions to the house with the consent of the Town of Claremont (Town or Council). Most significantly, Mr and Mrs Robinson removed and replaced the front and side verandah, reroofed the whole house with corrugated zincalume metal cladding, added a family room extension at the rear, replaced most ceilings, replaced glazing, and added a double carport.
Clause 78(1) of Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme) states that the Council shall maintain a Schedule of buildings, objects and places which the Council considers to be of architectural, historical or townscape value (Schedule). Clause 78(3)(a) of TPS 3 requires the Council to include in the Schedule:
any building constructed prior to the year 1910 and which retains substantially its original form and detail as seen from any public place;
In 1998, the Council included the site in the Schedule as a heritage place. The site is identified as a 'significant place' in the Schedule, although there are approximately 700 places with this designation included in the Schedule.
In September 2006, Whelans (WA) Pty Ltd (Whelans) applied to the Western Australian Planning Commission (Commission), on behalf of Mr and Mrs Robinson, for subdivision approval of the site under s 135 of the Planning and Development Act 2005 (WA) (PD Act) into two roughly equal lots with frontages of 10 metres and 10.42 metres to Shenton Road. The subdivision would necessitate the demolition of the house because of its central location on the site.
At about the same time, Mr and Mrs Robinson requested the Council to remove the site from the Schedule. The Council commissioned a heritage assessment by Mr Ronald Bodycoat, a heritage architect, and Ms Gaye Nayton, the Town's heritage officer. In their heritage assessment dated October 2006, Mr Bodycoat and Ms Nayton assessed the site as having cultural heritage significance for the following reasons:
The place has significance as a brick Federation bungalow constructed in 1904 as part of the 1903 ‑ 1905 development of the southern half of Shenton Road and as such demonstrates the initial residential subdivision and development of the locality;
The place contributes to the social history of the locality and to the community's sense of place as an example of typical housing of its time;
The place makes a contribution to the townscape of the district and the immediate streetscape as an example of a brick Federation bungalow constructed in 1904;
The place has some historical significance for its association with the former dairy industry at Butler's Swamp demonstrating the close historical links between Shenton Road and Butler's Swamp.
On 21 November 2006, the Council resolved to retain the site as a 'significant place' in the Schedule. On 19 December 2006, the Council resolved to advise the Commission that the Council did not support the subdivision of the site because it involved the demolition of the house.
On 14 March 2007, the Commission granted subdivision approval subject to conditions, including a condition requiring the demolition of all buildings on the site.
In October 2008, Whelans applied to the Council, on behalf of Mr and Mrs Robinson, for development approval under TPS 3 for demolition of all buildings on the site. On 7 January 2009, the Council refused to grant development approval, principally because the site is listed as a heritage place under the Schedule.
On 9 February 2009, Whelans sought review of the Council's decision under s 252(1) of the PD Act.
The issue for determination in this review is whether the demolition of the house on the site is consistent with orderly and proper planning. This issue turns largely on the level of cultural significance of the place. The Tribunal will address the issue for determination after a brief description of the site and locality and the planning framework.
Site and locality
The site has a roughly rectangular shape, a frontage of 20.42 metres to Shenton Road, a depth of over 40 metres and an area of 856 square metres.
Ms Laura Gray, a heritage and conservation consultant with 15 years' experience who holds an honours degree in Architecture and a graduate diploma in Applied Cultural Heritage Studies, was called on behalf of Whelans and gave the following evidence which, having had both an internal and external inspection of the house, the Tribunal accepts:
There has been considerable intrusion to the fabric and form of the Place. The authenticity of the Place has been compromised by a number of interventions including: replacement of the entire front verandah structure, roof, floor and balustrades; painting over exterior tuck pointed brick walls and other face brick external walls; an entire reroof with long sheets of corrugated zincalume metal cladding; double carport and expansive living room and wet area extensions; alterations to the kitchen roof and ceiling form; replacement ceilings with deep cornices and decorative roses throughout except the entry hall; new decorative interior arch over main front windows; replacement glazing to the front door set; replacement door elements at the opening adjacent to the front door; extensive intrusions to the slope of the land and landscaping; and construction of a brick fence across most of the front boundary.
The Place is in fair to good condition. There is evidence of falling damp and extensive rising damp, particular along the western side where the exterior and interior walls are damaged up to 1.0 metre high. There is interior vertical cracking through the hallway arches. The external paint and timbers are weathered and deteriorated. Drainage is poor.
The site is located on the southern side of Shenton Road which is a distributor road that, in 2003/2004, carried in excess of 10,000 vehicles per day. To the immediate east of the site is a block of 12 residential units on a large property extending between Shenton Road and Claremont Crescent. There is also a grouped housing development further to the east within the street block between Shenton Road and Claremont Crescent. To the immediate west of the site is a subdivided property with two‑storey dwellings nearing completion on each of the new lots fronting Shenton Road.
Other than the site and four narrow properties at the eastern end of the street block some distance from the site, none of the properties on the southern side of Shenton Road within the street block contain a heritage place listed on the Schedule.
The site is located approximately 250 metres by foot from Claremont railway station and a short further walk from Claremont Town Centre.
Planning framework
The site and the other properties in the street block are zoned 'Residential' with a residential coding of 'R40' under TPS 3. The properties on the northern side of Shenton Road are also zoned 'Residential', but have a residential coding of 'R20' under TPS 3.
Clause 25(3) of TPS 3 states as follows:
No person shall, unless the consent of the Council is obtained, demolish any building, structure or part thereof that is listed in the Schedule referred to under Clause 78 of Council's Town Planning Scheme or is listed on Council's Heritage Survey undertaken in November 1991 and as amended from time to time. Council may refuse to grant planning approval to any application to demolish any building listed in the Schedule referred to under Clause 78 of Council's Town Planning Scheme or Council's Heritage Survey as amended from time to time which has been identified in that survey as a place which has high intrinsic architectural merit, to be an outstanding example of its kind, or be of historical significance or to substantially contribute to the streetscape.
Clause 86(2) of TPS 3 provides that, in determining an application for development approval, the Council shall have regard to the orderly and proper planning of the locality and the preservation of the amenities of the locality.
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' under s 241(1) of the 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 decision‑making.
•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 states that consent authorities should have regard to the following specific matters in relation to, among other types of development, demolition affecting a heritage place:
•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 adaption to a new use which will enable its retention and conservation.
Clause 6.6 of SPP 3.5 contains development control principles that should be applied in considering a development application in relation to a place entered in a local government's heritage list. The clause 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.
Specifically in relation to demolition of a heritage place, cl 6.6 of SPP 3.5 states as follows:
•… Demolition of a local heritage place should be avoided wherever possible, although there will be circumstances where demolition is justified. The onus rests on 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.
Is demolition consistent with orderly and proper planning?
Ms Gray considered that the heritage assessment carried out by Mr Bodycoat and Ms Nayton in October 2006 was 'flawed', because it was not based on then current Heritage Council of Western Australia (Heritage Council) criteria for assessment of cultural heritage significance. Ms Sofia Boranga, the Town's heritage officer who holds a post graduate diploma in Applied Cultural Heritage Studies conferred in 2008, called on behalf of the Council, did not counter Ms Gray's criticism of the 2006 heritage assessment, although Ms Boranga concurred with its findings. The Town did not present any argument to counter Ms Gray's criticism.
Having regard to Ms Gray's criticism and the fact that the authors of the 2006 heritage assessment were not called to give evidence, the Tribunal gives little weight to the 2006 heritage assessment.
Ms Gray and Ms Boranga agreed that:
•the area surrounding the place comprises intrusive infill development which has negatively impacted on the streetscape;
•as the place is not part of a heritage area or streetscape, the heritage significance of the place needs to be assessed on its individual merits; and
•the place has cultural heritage significance.
Ms Gray and Ms Boranga each carried out a heritage assessment of the level of cultural heritage significance of the place and disagreed in relation to that level. Ms Gray was of the view that the place did not demonstrate a level of cultural heritage significance to satisfy retention as an individual place, whereas Ms Boranga was of the view that the place was of a level of significance to warrant its retention.
The heritage experts helpfully jointly identified the relevant criteria for determining the level of cultural heritage significance of the place as authenticity, aesthetic value, historic value, social value, rarity and integrity.
Authenticity
Authenticity refers to the extent to which the fabric of a heritage place remains in its original state.
Ms Boranga was of the view that the place has a medium to high level of authenticity 'with most of the external fabric and the form of the building in its original state, excluding verandah details'. Ms Boranga argued that changes made to the place, such as the rear addition, carport and front fence, were common changes to increase amenity, and did not adversely impact on the significance of the place. Ms Boranga did not inspect the interior of the place.
In contrast, Ms Gray considered that the authenticity of the place has been compromised and impacted upon significantly by works carried out in accordance with Council consent. The works Ms Gray identified are set out earlier in these reasons. Ms Gray stressed, in particular, the removal of the original fabric of the roof, the removal of the original front and side verandah, the replacement of most original ceilings, the extensive refit of bathrooms and kitchen, and a significant change to the front feature wall by a new decorative interior arch over the main front windows.
Having had the benefit of an interior and exterior inspection of the place, the Tribunal prefers the opinion of Ms Gray on the issue of authenticity. While, when viewed from the street through the entry gate and, to some extent, over the front brick wall, the building retains substantially its original form, it does not retain substantially its original fabric when viewed from this location, because of the removal of the original roof and verandah fabric. Internally, as well, much of the original fabric has been removed. The level of authenticity of the place is, therefore, low or low to medium.
Aesthetic value
The Heritage Council's criterion of aesthetic value is:
It is significant in exhibiting particular aesthetic characteristics valued by the community.
The Heritage Council has identified the following specific aspects of this criterion:
Importance to a community for aesthetic characteristics.
Importance for its creative design or artistic excellence, innovation or achievement.
Importance for its contribution to aesthetic values of the setting demonstrated by a landmark quality or having impact on important vistas or otherwise contributing to the identified aesthetic qualities of the cultural environs or the natural landscape within which it is located.
In the case of an historic precinct, importance for the aesthetic character created by the individual components which collectively form a significant streetscape, townscape or cultural environment.
The heritage experts agreed that the aesthetic values of the streetscape have been compromised by surrounding infill development. Nevertheless, Ms Boranga was of the view that the form, scale and materials of the place have aesthetic significance, as they are characteristics that are valued in the local district. In particular, Ms Boranga considered that the presentation of the place as a Federation style bungalow and its prominence within the streetscape results in aesthetic significance.
In contrast, Ms Gray gave evidence that the 'architectural type is not a consideration of aesthetic significance of a place'. Rather, architectural type falls within a different criterion of heritage significance identified by the Heritage Council, namely, representativeness. Ms Gray said that the prominence of the place in the immediate streetscape was due to differences in setback and the intrusive nature of surrounding developments.
Ms Gray also gave the following evidence:
[The place] is typical of the Federation Bungalow architectural style evident throughout the Town of Claremont and does not exhibit any particular innovation or design;
The scale, form and materials of the building, present compromised aspects and contribute minimal heritage aesthetic to the streetscape context, located between a 1970s block of three-storey units, and a recently subdivided site comprising two double-storey residences;
It is one of numerous residences throughout the Town of Claremont that typify the Federation period of architecture, many of which present more intact and authentic examples …
The Tribunal prefers Ms Gray's evidence on this point, having regard to her architectural qualification and considerably greater practical experience in heritage assessment. While the building certainly makes a positive aesthetic contribution to the amenity of the area as an example of a Federation‑style bungalow, which retains substantially its original form although not substantially its original fabric and detail, and therefore has some representative value, it has little aesthetic value as a matter of heritage assessment. It plainly does not meet the Heritage Council's criterion, in that it is not significant in exhibiting particular aesthetic characteristics valued by the community and does not satisfy any of the specific aspects of the criterion set out earlier.
Historic value
The Heritage Council's criterion of historic value is:
It is significant in the evolutional pattern of the history of Western Australia.
More particularly, the Heritage Council identified the following aspects of this criterion:
Importance for the density or diversity of cultural features illustrating the human occupation and evolution of the locality, region or the State.
Importance in relation to an event, phase or activity of historic importance in the locality, region or the State.
Importance for its close association with an individual or individuals whose life, works or activities have been significant within the history of the nation, State or region.
Importance as an example of technical, creative, design or artistic excellence, innovation or achievement in a particular period.
Ms Boranga was of the view that the place demonstrated 'significant historic value' for two reasons. First, it was 'closely associated with one of the two most important periods for establishing the built environment character of the Town ‑ the "Consolidation Period" and also demonstrates the original subdivision and residential development of the area'. Second, it was associated with the former dairy industry at Butler's Swamp, to the north‑east in the area of Lapsley Road, because the place was occupied by retail dairymen between 1927 and 1934 who obtained milk from Butler's Swamp and elsewhere and carried out dairying activities on the site.
In contrast, Ms Gray considered that the place has no more or less significance in relation to historic value than many other places in the local government area. She was of the opinion that the place demonstrated a 'tenuous association' with the dairy industry in the locality. While dairymen lived and worked at the place between 1927 and 1934, they also lived and worked in many other places in the locality. Furthermore, the heritage experts agreed that there is no evidence in the fabric of the place showing the association with the dairy industry.
The Tribunal accepts with Ms Gray's evidence that the place has little historic value. It is correct that the place was originally developed during the consolidation period. However, so were many other properties. The place is not, in itself, significant in the evolution of the locality and, in the immediate area of the site on the southern side of Shenton Road, most of the original subdivision and residential development of the area has been lost. While the place has some association with the dairy industry in the locality, the association was hardly significant, given its short length, lack of reflection in fabric and lack of association with an individual or individuals whose life, works or activities were of significance. The place has little historic value.
Social value
The Heritage Council's criterion of social value is:
It is significant through association with a community or cultural group in Western Australia for social, cultural, education or spiritual reasons.
Ms Boranga was of the view that the place has social significance 'as the Claremont community have [sic] a high regard for the Federation built environment character of the Town'. Ms Gray disagreed.
The place clearly has no social value. It has no association with a community or cultural group. While, as noted earlier, the place makes a positive aesthetic contribution to the amenity of the area, because it retains substantially its original form as a Federation bungalow, this does not reflect or give rise to social value.
Rarity
The Heritage Council's criterion of rarity is:
It demonstrates rare, uncommon or endangered aspects of the cultural heritage of Western Australia.
The heritage experts agreed that the place is not rare.
Integrity
Ms Boranga was of the view that the place has a high level of integrity as the building continues to retain its original function. In contrast, Ms Gray was of the view that the integrity of the place as a single residence was compromised by the surrounding higher‑density residential development in its immediate locality.
While the building continues to function as a single house, its integrity has been compromised by more intense development in its immediate locality.
Is demolition justified under SPP 3.5?
Although TPS 3 recognises the importance of heritage conservation, it does not provide specific criteria to enable assessment of a development application concerning a heritage place listed in the Schedule and, in particular, demolition of a heritage place. Therefore, the development control principles set out in SPP 3.5 provide the principal criteria for determining whether demolition of the house on the site is justified from a heritage planning perspective.
The Tribunal considers that demolition of the buildings on the site is justified under SPP 3.5 in the circumstances of this case. Having regard to the Tribunal's findings expressed earlier in relation to considerations and criteria for determining cultural heritage significance, the Tribunal considers that the level of cultural heritage significance of the place is low. In particular, the place has low or low to medium authenticity in its fabric as a result of physical works carried out with Council consent, little historic value, no aesthetic, social or rarity value, some value in terms of representativeness, and, while still used as a single house, its integrity as a single residence is compromised by the more intensive residential development surrounding it. Furthermore, it was not asserted that the site has any scientific value.
Mr Andrew Malone, a town planning officer called on behalf of the Town, and Mr Vernon Butterly, a consultant town planner called on behalf of Whelans, agreed that the location of the house 'on the middle of the lot … mak[es] any future redevelopment of the site problematic [if the house is to be retained]'. The Tribunal finds that it is not feasible to incorporate the house into new development consistent with the medium density R40 coding of the site.
The community would benefit from the proposed redevelopment of the site, because it would facilitate a doubling of the residential density on the site, in close proximity to major public transport, retail and commercial facilities.
The Town does not have a local planning policy relating to the proposed demolition.
Finally, as noted earlier, the place is in fair to good condition. The structural condition of the place does not warrant its demolition.
Having regard to each of these considerations under SPP 3.5, the Tribunal considers that demolition of the buildings on the site is justified in the circumstances of this case.
Contribution to streetscape
Mr Malone gave evidence that the building on the site 'makes a positive contribution to the immediate streetscape'. The Tribunal accepts this evidence, because the building retains substantially its original form, although not substantially its original fabric and detail.
However, as the Tribunal has determined that demolition of the house is justified under SPP 3.5, and as the site does not form part of a heritage protection area, the positive contribution of the building to the immediate streetscape does not warrant its retention in the interests of orderly and proper planning and the preservation of the amenities of the locality. Two new houses on the site could also make an acceptable contribution to the streetscape, particularly given the character of adjoining built form and the high traffic volume nature of the street.
Contemplation of coding
Mr Butterly gave evidence, which was not questioned or contradicted, that the medium density R40 coding was given to the site in application of the transit‑oriented development principles guided by State Planning Policy No 3 ‑ Urban Growth and Settlement and the Commission's Development Control Policy 1.6 ‑ Planning to Support Transit Use and Transit Oriented Development. As noted earlier, the site is within a short walking distance to Claremont railway station as well as the Claremont Town Centre. It is consistent with orderly and proper planning, therefore, for the site and adjoining and adjacent properties on the southern side of Shenton Road to be coded R40, which is the highest density attributed to land zoned Residential under TPS 3.
The medium density residential coding of the site contemplates physical redevelopment including demolition of the existing single house. However, if demolition of the house on the site would not have been justified under SPP 3.5 and, in particular, if the level of cultural heritage significance of the place were such that the house should be preserved, then in the circumstances of this case the contemplation of the coding would not have been a sufficient consideration to warrant approval of the development application for demolition.
Conclusion
The Tribunal has determined that the demolition of the house and other buildings on the site is consistent with orderly and proper planning.
Demolition is justified in the circumstances of this case under SPP 3.5. In particular, although the place has cultural heritage significance, its level of significance is low.
While the house makes a positive contribution to the immediate streetscape, demolition of the building is consistent with orderly and proper planning as it is justified from a heritage perspective and the site is not located within a heritage protection area. Two new houses on the site would also make an acceptable contribution to the streetscape, given the built form and traffic context.
Therefore, demolition of the house is consistent with orderly and proper planning under the Scheme.
It follows that the application for review should be allowed and development approval for demolition of all buildings on the site should be granted subject to agreed conditions.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 7 January 2009 to refuse development approval for the demolition of existing buildings at No 32 Shenton Road, Claremont is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)Any future development of the site should incorporate a plaque relating to the heritage significance of the site, including its association with the Dairy Industry at Butler's Swamp, to the satisfaction of the Chief Executive Officer.
2)Archival records to be provided to the Town of Claremont to the satisfaction of the Chief Executive Officer for No 32 Shenton Road, Claremont prior to the commencement of demolition.
3)A demolition licence must be obtained from Council's Building Services Unit prior to commencement of any works on the site.
4)No work shall be carried out at the site:
(a)before 7 am or after 6 pm Monday to Saturday inclusive; or
(b)on a Sunday or public holiday.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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