WILL THE DEMOLITION UNREASONABLY IMPACT UPON THE HERITAGE SIGNIFICANCE OF THE PLACE?

1. The site is located within the Heritage Overlay ('HO') and the purpose at clause 43.01 include:

To implement the Municipal Planning Strategy and the Planning Policy Framework

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places.

To conserve specified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.

1. Relevant decision guidelines at clause 43.01-8 include:

The Municipal Planning Strategy and the Planning Policy Framework.

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.

Any applicable heritage design guideline specified in the schedule to this overlay.

Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

1. Clause 15.03-1S - Heritage conservation includes the following objectives and strategies relevant to demolition:

Objective

To ensure the conservation of places of heritage significance.

Strategies

Provide for the conservation and enhancement of those places that are of aesthetic, archaeological, architectural, cultural, scientific or social significance.

Retain those elements that contribute to the importance of the heritage place.

1. Clause 15.03-1L includes the following relevant strategies:

Strategies

General

Conserve and enhance Significant and Contributory buildings as identified in the incorporated document in Schedule to Clause 72.04 'City of Port Phillip Heritage Policy Map'.

Conservation of heritage places and new development are guided by the statement of significance, the urban context and any relevant documentary or physical evidence.

Maintain the integrity and intactness of heritage places.

Conserve and enhance the significant historic character, intactness and integrity of streetscapes within heritage precincts including:

• - The layering and diversity of historic styles and character where this contributes to the significance of the precinct.
• - The consistency of historic styles and character where this contributes to the significance of the precinct.

Avoid development that would result in the incremental or complete loss of significance of a heritage place by:

• Demolishing or removing a building or feature identified as Significant or Contributory in the incorporated document in Schedule to Clause 72.04 'City of Port Phillip Heritage Policy Map.'
• Altering, concealing or removing a feature, detail, material or finish that contributes to the significance of the heritage place.

Demolition and relocation

Avoid demolition where it would result in the retention of only the façade and/or external walls of a Significant or Contributory building.

Support demolition of part of a Significant or Contributory building or feature if it will not adversely impact upon the significance of the place and any of the following apply:

• It will remove an addition or accretion that detracts from the significance of the place.
• It is associated with an accurate replacement, or reconstruction of the place.
• It will allow an historic use to continue.
• It will facilitate a new use that will support the conservation of the building.

1. It is evident from the decision guidelines of the HO that an important starting point is in an understanding of the significance of the heritage place.
2. The site is located within the HO5 known as the St Kilda Hill heritage precinct. This area is bounded by Fitzroy Street to the north, Barkly Street to the east, Carlisle Street to the south and Port Phillip Bay to the west. This precinct is extensive encompassing multiple streets and properties.
3. The Statement of Significance of this precinct provides:

The St. Kilda Hill area encompasses the Port Phillip Bay shoreline and is further defined by Fitzroy Street, Barkly Street and Carlisle Street. It has historical importance (Criterion A) as a seaside resort for the metropolis and location for marine villas since the commencement of settlement during the 1840's. This importance is demonstrated primarily by the privately owned building stock of houses, hotels and apartments but also by places of entertainment and other recreational facilities. Government and to a lesser extent privately funded infrastructure such as transport facilities, schools and churches also make a crucial contribution to the interpretation of life on St. Kilda Hill at various times in its history. The long history of the place has combined with its role as a resort to impart a diverse architectural character to the area that reflects its socioeconomic profile and is highly valued by the community (Criterion G). Today, the Hill offers valuable insights into the housing styles of the rich from the 1840's onwards, retaining important examples of architectural styles from each period in its history (Criterion C). It also includes unusual street layouts, with Alfred Square and Church Square demonstrating past planning practices.

1. The Port Phillip Council Heritage Design Guidelines (August 2022) ("Design Guidelines') are a relevant consideration. The Guidelines are a listed 'policy document' at Clause 15.03-1L. Relevant sections of the Guidelines are reproduced below:

Guidelines basis

Good design may include part demolition where, for example, the section to be demolished is of no significance or will remove an inappropriate later addition.

Within a heritage precinct, the loss of a single Contributory building may not seem important when considered in isolation. However, the incremental loss over time of buildings or other features that contribute to the significance of the precinct can lead to detrimental impacts upon the integrity and historic character.

Demolition guidelines

For Significant places, the extent of demolition will be guided by the Statement of Significance and decided on a case-by-case basis. The aim should be to conserve all buildings and other features identified as contributing to the significance of the place.

Part demolition may be appropriate if, for example, it results in the removal of fabric that is not significant or detracts from the significance of the building

1. It is not in dispute that the review site originally contained a Marine Villa dwelling constructed around the late 19th century. The dwelling had a large front setback with a garden, and in the 1920's the façade of the Villa dwelling was demolished and a commercial building erected within the frontage that remains today.
2. Based on Mr Raworth's evidence, Marine Villas with substantial front gardens was evident at this time for the lots adjacent and beyond the subject site within the broader HO5 area. The most notable example within Fitzroy Street is 'Brooklawn' at 97 Fitzroy Street, which is a retained Marine Villa that remains visible from the street (despite commercial development within its original front setback).
3. Similar commercial development within the frontage of the Marine Villas has occurred on many of the lots near the subject site on Fitzroy Street. Full demolition of some of the Marine Villas has also occurred, as well as significant development to the rear of some of the remaining lots that still contain Marine Villas.
4. While the 1920's shopfront largely obscures the 19th century roof of the original Marine Villa structure, the associated remaining 19th century chimneys could be seen from both Fitzroy and Jackson Streets, prior to the demolition. It is largely not disputed that the chimneys and roof constitute the visible fabric that identifies the rear section of the property as being 19th century fabric.

1. The council says that the chimneys and roof of 85-87 Fitzroy Street are significant 19th century features that contribute to the heritage values of HO5, noting that the chimneys and roof are visible to the public realm, from both Jackson and Fitzroy Streets. The council says that no evidence of any structural unsoundness of the chimneys has been provided and as the demolition has already been carried out, evidence of what these alleged defects were, is gone.
2. Mr Raworth's evidence is that not every single building element that can be connected to the Marine Villa typology makes it significant. In his view, the chimneys don't make a contribution to the significance of the HO5 precinct. They exist on a highly modified building and are not highly visible. They make no appreciable contribution to the significance of the precinct, are visible fleetingly, not visible in their entirety and only visible if one is looking for them.
3. Mr Raworth notes that the Port Phillip Heritage Review 2021 (referred to in the Planning Scheme at clause 15.03-1L) describes defaced buildings as "E" grade being a "contributory" heritage place and not "significant" heritage place. In his view, based on the relatively poor intactness of the original building, the heritage review (being how gradings are applied) makes it clear that this highly modified Marine Villa building has limited significance equivalent to an E grading. In his view, this combination of factors, being a highly degraded, highly altered and almost entirely obscured Marine Villa means that removal of the three chimneys as sought will have no consequential significance. In his view the sites significance flows from the 1920's shopfront addition (which is not altered by this application), not because of its former life as a Marine Villa dwelling.

1. Purposes of the Heritage Overlay include to conserve and enhance a heritage place - but not all elements of a building contribute to the significance of a heritage place. If it doesn't alter the heritage significance of the defined place, then approvals can be given.
2. Read as a whole the Planning Scheme requires a consideration of whether that part of the site in dispute contributes to the heritage significance. In reaching my decision, I have considered what elements contribute to the significance of the precinct. In other words, will the loss of the heritage fabric (being the 3 chimneys) adversely affect the heritage place - being St Kilda Hill as exemplified in HO5.
3. The degree of significance of these elements is relevant - the question is to determine what elements contribute to significance of precinct. I have had the benefit of Mr Raworth's evidence which breaks down what is significant about the building and the site.
4. The chimneys are an original feature of the former Marine Villa dwelling on the land. The extent to which they are a contributory element to the heritage significance of the broader heritage place is in debate. Just because it was a Marine Villa at a distant point in the past doesn't mean it cannot be altered from the remnant form it currently exists in.
5. Policy provides that demolition is generally discouraged unless the removal of the part would not adversely affect the contribution of the building to the heritage place. In this case, the chimneys are not identified as significant for the contribution that they make to the precinct. Where so little of the original fabric of the former Marine Villa remains visible, I consider that the loss of the chimneys will not adversely affect the building's contribution to the heritage place overall.
6. While it is true that the chimneys were visible in views from both streets, and therefore are part of the heritage fabric, I am satisfied that they tell a very limited story of the original Marine Villa form that is sought to be acknowledged and protected by the Planning Scheme. I agree with Mr Raworth that the heritage fabric of the former Marine Villa has been substantially altered. This includes the 'defacing' of the Marine Villa dwelling's façade, and according to Mr Raworth's evidence, the internal removal of the original front façade.
7. While the chimneys could be read in the context of a heritage streetscape which displays a pronounced presence of heritage buildings - both contributory and individually significant, they do not form part of the broader appreciation of the Marine Villa form that is evident more broadly in HO5. On a plain viewing of the site, it is doubtful whether a person would see the visible chimneys and understand that they belong to a Marine Villa dwelling. In my view, a person would see a remnant part of a 19th century fabric, no different to many other examples in this heritage streetscape. Demolition has allowed an appreciation of what the impacts are/would be. While the view is most obvious from the rear street, this does not suggest that the site is a Marine Villa dwelling, just a pre-20th century building.
8. While the council say that the particularly unique layering of development on Fitzroy Street has resulted in limited remaining chimneys and roofs of the original 19th century villas visible from both Fitzroy Street and Jackson Street, the extent of the "heritage place" is not limited to Fitzroy and Jackson Streets alone.
9. In the context of the whole of the precinct, Mr Raworth's evidence is there are a number of other Marine Villas that are more intact and representative of this typology which make a greater public representation than the subject site does. Virtually nothing is left of the Marine Villa that has a public character. When looking at the entirety of the precinct, there are other examples of Marine Villas in HO5 which have more intactness.
10. While I accept that there may only be three other Marine Villas that have any public visibility on the south side of Fitzroy Street, one being adjacent to the subject site, and other being 'Brooklawn' at 97 Fitzroy Street, Mr Raworth's oral evidence and my inspection of the broader HO5 area confirms that there are a large number of "Marine Villas" still extant in the precinct. I note that many of these existing Marine Villas retain either their original or slightly modified form and therefore clearly read as being contributory to the broader heritage precinct.
11. Based on Mr Raworth's evidence, even internally, there is little left to discern what was once - pre 1926 - a Marine Villa. The original Marine Villa building has been significantly de-faced. When looking at whole of precinct, the former Marine Villa remnant is so defaced - added to in its frontage, and with no internal remains - means that there is no clear appreciable story of the Marine Villa. The previous alterations significantly diminish the significance of the remnant building.
12. I accept that there are more than the three examples of the Marine Villa typology as expressed in council's submission. Walking around the broader HO5 area it is possible to see a number of such examples, such as in Grey Street and Robe Street, of the Marine Villa typology. Many of these examples in the HO5 area are unaltered and highly legible in their original character.
13. This contrasts with the review site.
14. While some elements of the Marine Villa are still extant such as the 19th century roofline (when viewed from the rear) they are largely concealed from view from Fitzroy Street. I agree that there is limited meaningful views of the chimneys. They are largely already obscured by existing built form. Even from Jackson Street at the rear, they are largely obscured by buildings including the Pride Centre and two storey form at rear. Views to the chimneys from the rear are limited or filtered with a fleeting aperture of views to the site. Even so, I agree with the applicant that from Jackson Street at the rear, the chimneys do not suggest the presence of a building with a former life as a Marine Villa. Losing the chimneys will not dimmish any existing visual link to this element that is sought to be protected by the Scheme. In my view, it is largely impossible to distinguish that a Marine Villa existed there previously.
15. From Fitzroy Street, existing shopfronts exclude significant views to the chimneys, with only limited oblique views from Fitzroy/Loch Street intersection.
16. HO5 is a geographically large precinct. There are a number of more intact examples of the Marine Villa typology that remain readable. The existing building is not publicly perceptible already as a Marine Villa. The chimney loss makes no greater impact.
17. I am persuaded by Mr Raworth's evidence that the extent of demolition sought is acceptable. I am not persuaded that the finalisation of the demolition will adversely affect the significance of the heritage place.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Demolish or remove a building (demolition of three chimneys)

1. The demolition shown on the endorsed plans must not be modified without the prior written consent of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the date of this permit.

(b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing:

1. before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and
2. within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.