Victorian Civil and Administrative Tribunal|1998-10-23|Before: Member David

These proceedings concern a permit issued in 1993 for nine Ministry of Housing units, one of which was to involve the "refurbishment of an existing historic house". Condition 8 of the permit required the historic house to be "restored to where possible, original condition". Put simply, the Director now seeks to amend the permit to enable a new dwelling to replace the historic house and a number of options for that new dwelling have been put to the Tribunal for its consideration. At the same time the Council seeks an enforcement order to ensure compliance with the permit and more particularly Condition 8. The remaining eight units have been constructed and are now occupied for residential purposes.

The subject land is on the west side of Gardenia Road between Robert and Rosedale Streets. The historic house, which is known as Maltzahns Farm, sits at the front, north-east corner of the site with the new dwellings extending in an "L" shape to its rear and around to the front, south-eastern corner. The farmhouse is now without a roof. It comprises two single storey, rectangular shaped sections sited one behind the other. The westernmost and smaller section is assumed to date from the 1850s and the eastern section, which is located closest to Gardenia Road, is assumed to date from later in that century, possibly the 1860s. Both sections are of rubble, bluestone construction which, in later years, was rendered both internally and externally.

Maltzahns Farmhouse was constructed by one of a group of immigrant German Lutherans who settled this area in the 1850s. The settlement, known as Westgarthtown, was organised around a small creek, Edgars Creek, which still survives. A number of other remnants of the settlement, including buildings, road alignments and plantings also survive. These lie scattered, as does the appeal site, amongst more recent suburban housing stock dating from the 1950s. Opposite the site however, between Gardenia Road and Edgars Creek, the subdivision dates from the 1980s. This subdivision has severed any visual connection between the creek and the farmhouse. All other extant buildings of the settlement have maintained their connection with the creek.

The land on which Maltzahns Farm is situated was acquired by the Director of Housing in July 1989. The Director's intention had been to demolish all existing structures on the land and to construct public housing units. At that time the dwelling occupying the site was substantially altered from its original appearance and neither the Council nor the Ministry was aware of its history. The Tribunal was advised that even enquiries of the National Trust had failed to reveal the significance of the building, despite the Trust having made the following group classification for Westgarthtown:

"The surviving elements of one of Victoria's most distinctive ethnic settlements, reflecting the historical circumstances of settlement, German vernacular building traditions, and the geology and conditions of the area.

The settlement dates from 1850, when a square mile of land was bought by the Melbourne merchant and historian Willam Westgarth on behalf of the immigrant German settlers. The surviving elements date principally from 1856 to 1873, and are now scattered through a sprawl of post-1950s suburban development. These elements comprise the cemetery and the Lutheran Church of 1856 both on Rosedale Drive; Ziebell's farmhouse and outbuildings at 100 Gardenia Road; Maltzahn's farmhouse at 127 Gardenia Road (now drastically defaced), Wuchatsch's farmhouse and outbuildings at 74 Robert Street; Siebel's house of 1860 at 77 Mount View Road, and Graff's barn and house of 1873 at 1 Thomas Street. The houses, excepting Siebel's tend to take the form of a single row of interconnecting rooms without corridors, and the roof forms vary, with the characteristic Saxon jerkin-head appearing on Wuchatsch's house and Graff's house and barn (the dormers of Graff's house being modern). They were built in local basalt in forms varying from the almost cyclopean rubble wall of split grey and red-brown floaters on the west face of the Ziebell house, through the largely squared bluestone of the Graff barn, in which upper faces are dressed back to snugly accommodate the irregular bases of overlying stones, in the true cyclopean tradition; to the largely squared but partially irregular courses of the Siebel house; to the common squared coursed rubble of the Ziebell outbuildings." (Tribunal's emphasis)

In October 1989, when demolishing the roof and 1950's additions to the farmhouse, the nature of the underlying building fabric, including the timber shingle roof covering and thus the potential age of the structure, was revealed and it became apparent to the Ministry of Housing that the building might have heritage significance. Following an on-site meeting of Council and Ministry Officers, Dr Miles Lewis, a well known architectural historian, was engaged by the Ministry to assess the significance of the structure.

At Part 6 of his report, dated September 1989, Dr Lewis came to the following conclusions about the building's significance:

"The significance of this building can be assessed in two contexts, firstly as an example of an early German immigrant's dwelling and secondly as a component in the remaining evidence of Westgarthtown.

As an example of a German immigrant's dwelling the Maltzahn house would rate very low indeed, because so little of it survives in any way intact. It would not compete with the other Westgarthtown examples, Ziebell's, Wuchatsch's, Siebel's and Graff's, all of which are much more intact, and three of which have outbuildings. Nor would it compete with examples elsewhere in Victoria including "Friedensruch", Waldau Curt, Doncaster; Schwerkolt's Cottage, Deep Creek Road, Mitcham; the Johann Sohr house, 224 Torquay Road, Groedale; Pastor Hiller's house, Hiller Lane, Hamilton; Burger's and Murtchen's farms, near Penshurst; and probably other examples yet to be identified in the vicinity of Minyip and elsewhere.

As a component in the remaining evidence of Westgarthtown the house certainly is or has been significant, in the sense that very little remains to evoke the old settlement. The evidence consists only of five houses, the church and the cemetery, scattered within a relatively large area of modern development. On the other hand, Maltzahn's in its altered state has been recognisable only to those who are appropriately informed on the matter, and it is arguable that it has been more misleading than otherwise.

My conclusion is that the house has a significant role in the Westgarthtown context, and, misleading as it is in its present form, there is always the potential to clarify its form and history with a plaque. It would be better still if the envelope of the house were restored. I do not argue that the significance is high, but that it is at least potentially a legitimate focus of interest: a small landmark at the community level rather than a monument of national significance."

Dr Lewis gave consideration to a number of options for the site, from major restoration through to demolition and the display of a plaque outlining the building's history. He considered total restoration (both internal and external) as unlikely - due primarily to cost. Restoration of the external fabric, with the interior recycled for modern residential occupation was however an option which he recommended. As set out at page 7 of his report, Dr Lewis recognised that this too "would involve considerable expense and my understanding is that the Ministry does not have the funds that could be diverted to such a purpose".

Notwithstanding Dr Lewis' assessment of "considerable expense" the Ministry proceeded to negotiate with the Council, with input also from Ms Meredith Gould, the Council's Heritage Conservation Consultant. The focus of these discussions were redevelopment options which retained and restored the farmhouse. In a letter dated 2nd November 1989 to Mr Peter Carroll of the Ministry of Housing and Construction, Mr R. Baggio, then Acting Manager of Statutory Planning at the City of Whittlesea stated:

"The objective of the City of Whittlesea is to achieve the retention and restoration of the farmhouse without incurring increased costs to the Ministry or reducing the capabilities of the site." (Tribunal's emphasis)

Dr Lewis had also recommended that the matter be brought to the attention of the then Historic Buildings Council with a view to establishing whether:

"a the house is considered eligible for the Government Buildings Register and

b whether if eligible demolition would be permitted having regard to the proposed development of the site."

By letter dated 5th of October 1989 the Historic Buildings Council was asked for its comments. A response was not received until 7th of February 1992 when the Director advised that the Committee of the Historic Buildings Council had resolved to "dismiss interest in the building ... and recommend to the local municipality that protection be given under the local Planning Scheme".

In 1991 Ms Meredith Gould completed the Whittlesea Heritage Study. This study assessed, among other things, the historic significance of Westgarthtown and recommended its protection as a heritage conservation area. The following extract is relevant to these proceedings:

"The houses and farm complexes constructed (are) all located near the Creek. ... With the exception of Maltzahn's cottage all the buildings which survive, retain an understandable relationship with the Creek and each other. In drawing the boundary for the Heritage Conservation Area this connection has been emphasised as have the boundaries of the original Section. The defined area includes the central community facility, the whole of the Creek, all the surviving buildings, and the land between all these elements. The reason for the inclusion of the land now occupied by modern homes is to ensure the connection between the existing buildings is maintained and that no new development should limit views between the properties.

Westgarthtown is a cultural landscape which describes the importance of access to water in a new community, the pattern of life in a culturally German, Victoria (sic) town, and the way buildings were constructed and used in the middle of the nineteenth century.

Westgarthtown is of National and Statewide significance for its representation of German migration to Victoria. In addition it is significant for its illustration of the transportation of a German type village, farm subdivision plan and building techniques to Australia. It is historically significant for its association with Westgarth the Germans and the early development of Thomastown. It is architecturally significant for its early 1850s architecture and the use of German building techniques in Australia."

In the heritage study's individual citation for Maltzahns Farm, which at the time of Ms Gould's survey between the end of 1989 and early 1990 still retained its roof timbers and most roof sheeting, Ms Gould made the following observations:

"The house incorporates the typical Westgarthtown features of no internal hall, east orientation and a simple steeply pitched gable roofed form. Originally the farm included several outbuilding, all of which are now demolished.

Maltzahns's farm has suffered from the obstruction of the relationship between the house and the Creek caused by recent land subdivision. Despite this it is still prominently visible from the church and its trees can be seen from the Wuchatsch farm. Though altered this building makes an important contribution to the Historic Area."

On 9th of October 1991 Amendment L44 to the Whittlesea Planning Scheme was gazetted. This introduced interim heritage area controls for the Westgarthtown Lutheran Settlement, including controls over demolition. Prior to this there had been no planning controls preventing demolition and the Ministry, whilst not prevented from demolishing Maltzahns Farm chose, for whatever reasons, not to do so.

Permanent heritage area controls followed with the gazettal, in December 1992, of Amendment L45 to the Whittlesea Planning Scheme. These controls are set out at Clause 134 of the Scheme. In October 1997 individual heritage place controls were introduced by Amendment L146. These affect all of the extant buildings in the Westgarthtown Settlement except Maltzahns Farm. Again with the exception of Maltzahns Farm, all extant buildings in the settlement have been included on the Victorian Heritage Register.

Application for Permit No. 701129 was lodged with the City of Whittlesea in November 1992. The application sought approval for seven two-storey units and two single storey units, one of which involved the renovation and refurbishment of Maltzahns Farm as a two bedroom dwelling with an external laundry and carport. The land is and was then zoned Residential C where use of the land for more than one dwelling requires a planning permit. Being also within a heritage area a permit was required to construct buildings and works, to make external alterations to the existing building and to demolish or remove parts of any building.

Notice of the application was directed to be given and 30 objections, including a petition were received. The grounds of objection related solely to traffic and amenity issues. The Council resolved to grant a permit subject to conditions and, in the absence of any appeal by objectors, the permit issued on 8th of February 1993.

At page 10 of her written submission Ms Komesaroff described the sequence of events which followed the issue of Permit No. 701129:

"The planned contract letting date was originally scheduled for May 1993, but was deferred on the 15th April 1993 to August 1995 due to budgetary constraints and funding priorities. Put simply, other areas in the Shire of Whittlesea had greater waiting lists of needy people.

Being vacant, the building fell into disrepair and decay a factor common to other conservation cases:

National Trust of Australia (Vic) v Shire of Campaspe (18 AATR 125 note; 1996/43714) where the Brigidine Convent had been vacant for eight years;

National Trust of Australia (Vic) v Shire of Mt Alexander (18 AATR 125 note; 1996/390731) where the mud brick and clay brick cottage had been unoccupied for thirty years.

In the meantime, vandals got into the building and caused damage, as the site was vacant. A cyclone mesh fence constructed outside the house was ineffective to prevent vandalism. The balance of the roof materials were vandalised, and fires started. When the builder went into possession, he discovered that severe fire damage had occurred to all exposed timbers, especially the roof, and there was evidence of several fires being lit in various parts of the house.

In September 1994, the planned contract letting date was further deferred, again due to requests from the area housing manager who stated that there were no people waiting to move into this particular area.

On 30 January 1995, the Responsible Authority granted a first extension of permit to allow completion by 8th February 1997.

No conditions requiring protection of the building in the meantime were imposed or adverted to by the Council.

On 21st July 1995 amendments to the plans were sought by the Ministry's architect, and on 24th July 1995 amended plans were endorsed and sent back to the architect.

The contract was let to Hilderhand Constructions Pty Ltd in November 1995, with $87,496-00 being allocated to the builder in respect of works to the farmhouse alone.

Building works pursuant to the permit commenced on 24th November 1995."

"In about February 1996, works were commenced on Maltzhans Farm ... partial demolition commenced in accordance with the endorsed plans. The verandah and first floor dormer window framing were demolished. The first floor roof framing was removed to make way for a single storey construction with a high pitched tin roof. The balance of the roof that had been left after the 1989 demolition was now demolished. Internal walls were marked for demolition as per the endorsed plans. ... Several trenches were made in the slab to install new service pipes for the propose (sic) refurbishment of the building."

It was Ms Komesaroff's submission that only with the removal of this material was the true nature and state of the rubble bluestone walls revealed - their soil mortar, their render, the condition of the timber members, plates and lintels. Further, some of the render, which had been found to be drummy, was removed at this time. With hindsight this was most unfortunate as it was later discovered that the render assisted in bonding the wall stones and in particular protected the soft soil mortar from weather damage.

The architect's design for the refurbishment of the farmhouse had relied upon a new roof supported on the existing wall structure, timber members and plates. Having discovered that the wall plates had rotted, the builder requested that a different method for fixing the roof be designed. The architect recommended a perimeter, concrete bond beam to tie the roof to the walls and to hold the walls together. Marcon Tedesco and Associates, structural engineers, were appointed to assess the structural implications of a concrete bond beam. They reported on 19th of August 1996 that in their view the footings of the building could not be guaranteed to support such a beam.

Following this advice the architect, on 23rd of August 1996, instructed the builder to cease all works on the farmhouse. Ms Komesaroff advised that following removal of the roof the builder "protected the walls with a layer of polythene". We found evidence of this in Mr Hogg's photographs of October 1996. The extent of protection afforded by this plastic sheeting and the efficacy of its attachment cannot be gauged from the photographs. On the face of it it does not look to us to be comprehensive.

The Ministry then commissioned Mr David Hogg of Beauchamp Engineers, specialists in the structural stability of old buildings, to assess the remedial measures required to ensure that the building could be safely used and occupied.

In his report of October 1996 Mr Hogg found that the walls were relatively stable and the footings capable of supporting a bond beam. He confirmed however that the nature and extent of reconstruction works necessary to achieve an appropriate residential standard would be substantial. He recommended:

* removal and reconstruction of all original masonry to window head height in order to support a bond beam

* that the bond beam, with the use of specially braced internal stud walls, could provide a diaphragm to support a new roof

* replacement of the slab floor with a specially designed timber floor having joists and bearers in the same plane in order to maximise the otherwise limited opportunity for sub-floor ventilation.

In addition to these recommendations Mr Hogg noted the very great difficulties in ensuring that the building could meet the Ministry's standards for damp proofing of residential buildings. This standard includes a 30 year guarantee against damp penetration.

Mr Hogg suggested that in addition to chemical damp proof measures in the external stone walls, an isolated, internal stud wall should be constructed. He noted however that this would reduce the floor area of the dwelling. A possible solution, suggested later by the quantity surveyor would be to replace the interior stone wall with a timber frame wall so introducing a veneer construction.

The insertion of a damp proof membrane in the walls was not recommended by Mr Hogg due to the structural risks associated with cutting through the unevenly laid bluestones. This unevenness was found to be a factor also in the likely ineffectiveness of a chemical damp proof system.

Our account of Mr Hogg's recommendations omits much of the detailed remedial work, including the extensive use of wall ties to stabilise the structure, remedial work for the brick chimney and the very careful removal, where necessary, of existing render and the consequent re-pointing and re-rendering of the underlying stone work. The need for care follows from the fact that for the most part it is the render which bonds the wall stones rather than the weak soil mortar of the original construction. In his October 1996 report Mr Hogg observed how, even in the short space of time from commencement of work in about February 1996, the walls could be seen to have deteriorated due to exposure of the soil mortar.

At Part 5 of his October 1996 report Mr Hogg made the following observation:

"In considering the amount of work that would be required to bring the building up to habitable standards this option (demolishing the building and rebuilding it as close as possible to its original form) must be seriously considered."

The report by Mr Hogg was referred to the Ministry's Quantity Surveyors, D.J. Jones and Partners, for an assessment of the costs of remedial works. Mr Kummerle of that firm estimated, in February 1997 that the cost of carrying out the remedial and structural works recommended by Mr Hogg, including the bond beam, timber floor and damp isolated internal stud walls would be $318,392. By March 1998, when he gave evidence to the Tribunal, his estimate for the same work was $319,229. The option of no isolated internal structure - and hence no 30 year guarantee against damp penetration - was also assessed and came to $252,867 at February 1997 prices and approximately $300,000 by March 1998.

In February 1997 the Ministry sought and was refused a second extension of its permit. However, a subsequent request was acceded to by letter dated 16th of April 1997. The extension was "for completion of the development" by 8th of February 1999.

Following receipt of D.J. Jones and Partners' cost estimates, which included estimates for replicating the farm house using rendered brick veneer construction and at a cost of $151,183 (at March 1997 prices), the Ministry commenced discussions with the Council with a view to first establishing whether replication would satisfy the "restore to where possible original condition" requirement of Condition 8 of the permit or alternatively, whether a minor amendment could be granted by the Council under Section 73 of the Planning and Environment Act to provide for replication rather than restoration. Legal advice confirmed that restoration did not include replication and the Council took the view that a Section 73 amendment was not appropriate and further, that such a proposal was best dealt with through a fresh application for permit. This view was put to the Ministry by letter dated 11 April 1997.

On 12th of August 1997 the Ministry was advised in writing that the Council "at its meeting on 8th of August 1997 ... resolved to apply to the Administrative Appeals Tribunal of Victoria (Planning Division) for an enforcement order for your failure to comply with Planning Permit No. 701129".

On 26th of August 1997 the Ministry then lodged its request to amend Permit 701129. All persons who had objected to the original permit were notified of the request and none objected or appeared at the subsequent hearing. A hearing was set initially for 12th of January 1998. However, due to Counsel for the Director of Housing and an officer of the Department being "unavailable at this time of the year" application was made for an adjournment. A directions hearing to consider this request took place on 16th of December 1997. The adjournment was granted by then Deputy President R. Ball and the Department was directed to investigate ways to prevent further deterioration of the structure. It was noted also that the Council was intending to make application for an enforcement order. Mr Ball directed that if this was the case the Council should make its application in sufficient time to enable both matters to be heard at once. The enforcement order application was lodged on 2nd of January 1998. On 19th of January, following advice from Mr David Hogg, an orange plastic, waterproof membrane was secured over the existing walls of the building.

THE SECTION 87 REQUEST

Section 87 of the Planning and Environment Act provides for the cancellation or amendment of planning permits. These provisions incorporate a series of "hurdles" which must be cleared before the Tribunal can be said to have the discretion to decide whether the particular permit may be cancelled or amended. First it must be demonstrated, where the permit relates to the construction of buildings or the carrying out of other works, that those operations have not been completed. The subject request meets this criteria. Then it must be demonstrated that one of the stated grounds or reasons for cancelling or amending a permit, as listed at Section 87(1) of the Planning and Environment Act, apply. In the subject case the ground being relied upon by the Director of Housing is that there has been "a material change of circumstances which has occurred since the grant of the permit". The Director of Housing argues that since the grant of this permit in February 1993, the structural integrity of the building known as Maltzahns Farm has deteriorated so substantially as to make the restoration required by the permit, inappropriate. The Director argues that this is a material change of circumstances. The City of Whittlesea counters this by saying that the extent of deterioration since the grant of a permit is not so great as to warrant reliance on this ground alone and that the Director could and should have been aware, at the time the permit was granted, of the extent of works likely to be required. The Council argues also that rather than there being a material change of circumstances the request by the Director amounts to little more than a change of "intention".

The third hurdle to be cleared is that under Section 89(3) "the Tribunal may refuse to consider a request ... unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request."

The City of Whittlesea contends that the request should have been made in 1996 when, following removal of the roof framing, the Ministry first became aware of the extent of deterioration, and the fact that without additional treatment the walls would be incapable of supporting a new roof. The Council claims also that the additional lapse of time has simply enabled the structure to deteriorate further. The Ministry on the other hand claims that it made its application in August 1997 as soon as it became clear, following the threat of enforcement action, that negotiation with the Council had broken down irreparably.

A final hurdle in relation to cancellation or amendment proceedings brought by persons "who objected to or would have been entitled to object to the issue of a permit" is set out at Section 91(3)(c). The Tribunal "must not direct a Responsible Authority to cancel or amend a permit ... unless it is satisfied that ... it would be just and fair in the circumstances to do so". Oddly, and despite Mr Stewart's submissions which were couched in a manner which assumed that this "hurdle" applied, this particular provision does not apply to requests by permit holders, responsible authorities or referral authorities for the cancellation or amendment of permits

Despite the lack of any statutory obligation to consider this question in the subject proceedings, we are of the view that it is, in any case, a relevant matter for us to have regard to. As such we agree with the finding by Tribunal Member Mr Liston in Skye Heights Pty Ltd v City of Port Phillip, M. Henry and Others Appeal No. 1995/22823 15 AATR at 219. He held, in respect of an application by a responsible authority seeking to amend an existing night club permit, that once it is established that the Tribunal has the discretion to amend a permit it must still resolve whether the proposed amendment is reasonable and appropriate in the context of the request and whether it is fair and just in the circumstances to do so, notwithstanding that the provisions of Section 91(3) do not apply. In order to make these judgments the Tribunal must give consideration to the merits of the amendment. In the subject case we think it relevant to assess whether today's understanding of the structural integrity of this building, coupled with its present state of deterioration, warrants the retention of a permit condition requiring its restoration.

It was contended by the Responsible Authority that rather than use the vehicle of a Section 87 amendment to consider the merits or otherwise of demolishing Maltzahns Farm and giving consideration to replacement structures, the preferable option was for the Director to seek a new planning permit. Mr Stewart did not specify the nature or extent of such a permit, whether for example it should be for nine dwellings as originally applied for, or whether a discrete new permit for demolition and subsequent construction of a single new building should be sought? Presumably also, upon the grant of any such permit, application would be necessary in any case for the original permit to be either cancelled or amended.

It was Ms Komesaroff's submission that the Section 87 avenue had been pursued owing to it being a potentially quicker route to resolve what was already known to be in dispute. Section 90(2) of the Act requires other persons likely to have an interest in the outcome to be notified, as well as the Minister for Planning and Local Government, and the Tribunal gave notice of the request to all persons who had originally objected. None appeared at the hearing or otherwise made a written submission.

The Tribunal has found that the opportunity to better understand the structural nature of this building, which only arose following the site preparation and partial demolition works in early to mid-1996, coupled with the continued deterioration of the building fabric, following the grant of the permit, does indeed constitute a material change of circumstances relevant to the planning matters at issue in this case. We disagree with Mr Stewart's submission that the fabric was always such as would make restoration difficult and costly and that the request by the Director is merely a change of "intention" in respect of this building. It was suggested by Mr Lovell, under cross-examination, that there may have been an element of naiveté on the part of the Director at the time the application for permit was originally made and that a more thorough cost and structural analysis might have revealed something more of what is now known. The Director may have also been insufficiently critical of advice received. We accept that this may have been the case. For example Dr Lewis had noted the possible cost implications of restoration and yet the final budget for the dwelling at $87,496 was only marginally in excess of the average price ($81,000) of the other eight, albeit slightly larger dwellings. Under cross-examination, Mr Lovell agreed that to an expert conservation architect the $87,496 budgeted for in 1993 seemed a "little on the light side". On the other hand the Council also appears to have proceeded on the basis of restoration being a cost effective heritage solution. This is clear from Mr Baggio's letter of 2nd November 1989 where the Council's intention is spelt out as "retention and restoration ... without incurring increased costs to the Ministry".

We found Mr Hogg's evidence as to the extent of deterioration in the few months between works ceasing and completion of his first report in October 1996, to be compelling. So too was his description of the further breakdown between completion of that report and his subsequent inspection prior to giving evidence at the hearing. This further knowledge about the nature of the structure and the deterioration of the fabric brought with it the need to adopt a different and as it turns out, far more expensive response to structural rectification and damp proofing, if the building was to be used as authorised by the permit, for a dwelling.

We reject Mr Stewart's assertion that issues such as better knowledge and on-going deterioration are not planning issues and are therefore not relevant grounds for amendment under Section 87. In a decision referred to us by Mr Stewart, Shire of Strathfieldsaye v Bendigo Club 1984 11 APA 372 the then Board found that the ground of material change of circumstance was a very wide one that "could include a change in technology or the way in which a use is conducted or a change in the character of the area in which it is conducted". It also found that to be "material", the change would need to be both substantial and relevant to the subject matter. Having regard to the heritage nature of the planning controls which apply in this case, we regard issues such as a change in knowledge and changes in the condition of the heritage structure to be very relevant to the subject matter. We also find that the evidence points to the changes as being "substantial".

HAS THE REQUEST BEEN MADE AS SOON AS PRACTICABLE?

In cases where deterioration of a heritage building is not at issue it might be reasonable to conclude that this hurdle is more relevant where a third party seeks to amend or cancel a permit. The Planning and Environment Act 1987 establishes a framework for the thoughtful and comprehensive assessment of permit applications so that once a permit issues the holder of that permit may reasonably expect to be able to rely upon it. For another person to go behind or challenge that permit, it is only reasonable that they not sit on their rights and so possibly worsen the situation. Arguably this is less important in cases where the amendment is sought by the permit holder.

In the subject case the lapse of time has contributed to the deterioration relied upon as the change in circumstances. To the cynically minded this may appear to have been deliberate. We believe however that the evidence points to bona fide efforts by the Director to better inform himself of the extent and nature of the situation and to seek to negotiate an acceptable solution with the Responsible Authority.

The Tribunal's power to refuse a request on the basis of it not being made "as soon as practicable" is also a discretionary power. It may refuse to consider a request or it may not. In the subject case we are of the view that the circumstances are such as to warrant our consideration of the request. We find in any case that the request was made as soon as practicable following the realisation that negotiation had broken down irretrievably. A lesson for all is the need, in cases such as this, to require as a condition of permit that the heritage structure be properly protected pending its redevelopment. Alternatively, approval of the extension of time could have been made subject to appropriate protection measures being implemented.

The Director of Housing has put forward three options for amending this permit. The least preferred option is to substitute a two bedroom replica of Maltzahns Farm. The most preferred option is to replace the building with a standard four bedroom Ministry dwelling having external detailing, for example window shapes, rendered finish and roof pitch, reflective of the form of other heritage buildings in the area as well as being consistent with the architecture of the Ministry dwellings on the site.

As an intermediate option the Director suggests replacement with a building having the same appearance and footprint as Maltzahns Farm but providing four bedroom accommodation. The costings for these options are as follows:

The fourth outcome of these proceedings is for the Tribunal to not amend the permit and to confirm instead the requirement for the building to be restored to a condition as close as possible to the original.

Having regard to the evidence of Messrs Hogg and Lovell we find that by this stage nothing of value would be achieved by requiring what is left of Maltzahns Farm to be restored.

As was suggested by Mr Lovell under cross-examination, restoration to the extent required would not add to the significance or value of the structure. All that would be achieved is that the subsequent building might contribute to the "character" of the area but then this could be achieved as easily by a new building which responded appropriately to that character.

It is never an easy matter to decide that a structure of clear heritage value has so deteriorated as to make restoration inappropriate. The evidence of Mr Lovell was however persuasive. He stated that as an exercise in restoration the extent of new works and new fabric required to bring this building back to a habitable condition would be contrary to proper building conservation objectives. The resultant structure would be nothing but a sham which would "confuse and falsify the evidence" for future generations.

Mr Hogg's evidence confirmed that about the only fabric which might survive this "restoration" would be the external walls and foundation stones and then only to head of window height. The "technology" of the building would be completely altered and the internal walls, floor, roof, lintels and render would all need to be of new fabric. Put simply the new would completely overwhelm the old. Accordingly we find ourselves in agreement with Ms Komesaroff's concluding comments that in so far as restoration is concerned, the end would not justify the means. We therefore find that the permit may be amended to allow for the demolition of Maltzahns Farm.

We have given some consideration to the three re-building options put forward by the Director and find, having regard to the evidence of Mr Lovell, that an exact replica would be inappropriate for reasons similar to the inappropriateness of extensive restoration. It would be confusing for future generations. Indeed Mr Lovell urged us to find, and we have so found, that replication is anathema to the principles of conservation.

We were provided with no real evidence, other than the cost differential, to compare the benefits of the first and intermediate options for a four bedroom dwelling. The intermediate preference adopts the same footprint of the existing dwelling and is estimated to cost $151,183 whereas the first preference adopts a standard, rectangular footprint with a front façade width of 16.2m compared to the current façade width of 18.4m. It would cost $133,338.

Given Mr Lovell's advice against confusing future generations, we favour the Ministry's first preference. In our opinion it will acknowledge and complement rather than imitate the characteristics which make this heritage area special. In other words it will act as a pointer to persons that the area is special without suggesting that the building itself has heritage value. We agree with Mr Lovell and Dr Lewis that a plaque on the land, setting out some background to the site and its place in the history of Westgarthtown would be an appropriate contribution to the heritage area. Indeed in the circumstances it seems to be the best available substitute for the loss of this structure. It follows from our findings also that the enforcement order application will be dismissed.

The determination of the Tribunal is that the enforcement order application is dismissed and the Section 87 request to amend Permit No. 701129 is granted The permit shall be amended as follows:

A. For the wording of the permission allowed, substitute "construction of nine dwelling units with associated car parking including demolition of an existing historic house" and

B. For Condition 8 substitute the following condition:

"8. (a) The building existing on the site, known as "Maltzahns Farm" shall be demolished and a new dwelling built in accordance with the attached plan No. 56743-AR3 dated 17 February 1998.

(b) A commemorative plaque must be placed upon the land, at the permit holder's expense, setting out background details to Maltzahns Farm and its contribution to Westgarthtown. The details, content, design and location of the plaque must be to the satisfaction of the Responsible Authority.

1. The Responsible Authority is directed under Section 91(1) of the Planning and Environment Act 1987 to amend the permit in accordance with this determination.

2. The Responsible Authority must give notice in accordance with the regulations of the amendment of the permit in accordance with the provisions of Section 92 of the Planning and Environment Act 1987.

Director of Housing v Whittlesea CC [1998] VCAT 462 (23 October 1998)

Director of Housing v Whittlesea CC [1998] VCAT 462

At a glance

Court

Decision date

Before

Source

Judgment (94 paragraphs)

Parties

Cases Cited (1)

Director of Housing v Whittlesea CC [1998] VCAT 462 (23 October 1998)