1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application_,_ but modified to show:-

a)

Schedule of colours and finishes (including samples) for the dwelling extension hereby approved.

b)

Deletion of the reference to a new carport.

All buildings and works are to be constructed and or undertaken in accordance with the endorsed plans to the satisfaction of the Responsible Authority, prior to the commencement of construction works. The endorsed plans may only be amended with the further written consent of the responsible authority.

2 The exterior colour and cladding of the building works must be of a non-reflective nature to the satisfaction of the responsible authority. Under no circumstances is zincalume material to be used to clad any external surface of the building works hereby approved.

3 All air conditioning plant and equipment shall be located so as to be incorporated within the building and shall not project beyond the roofline or from an external wall without the consent of the Responsible Authority.

4 No material shall be permitted to be deposited or remain deposited on any road external to the site by any means including construction vehicles or associated plant entering or leaving the land subject to this permit. Any material deposited on the road shall be removed by mechanical or manual means to the satisfaction of the Responsible Authority.

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

•

The development and use is/are not started within two years of the date of this permit

•

The development is not completed within four years of the date of this permit

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Pursuant to s 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this decision.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

1 The review site is located on the eastern side of Wendouree Parade, opposite Lake Wendouree. It has a frontage of 20m, a depth of 49m and a total site area of approximately 1030m2. The land has a rear abuttal to Lake Street which provides access to a large garage situated at the rear of the dwelling.

2 The review site supports a single storey dwelling of the Spanish Mission style. The dwelling is in good condition although a single carport has been erected along its front façade. In evidence given by Ms Jean, on behalf of the responsible authority, the following description appears:

The subject dwelling is a substantially intact example of a 1930s Inter War single storey residence, with a typical domestic construction, brick bearing walls and timber roof construction, terra cotta tiles roof and tall brick chimney. The architectural style is a good local representative example of an Inter War Californian influenced Spanish Mission Style house. Typical features of this style are illustrated by the central arcaded loggia front verandah with triple arched openings, twisted barely decorated columns, stuccoed walls, large tiled hip roof with jerkin style roof over the loggia4.

Changes to the original front façade of the subject building were carried out in the late 1980s. On either side of the front entrance, the central window of the group of three windows was removed. The central opening was enlarged and a picture window inserted between the two side original windows. The decorative arched plasterwork above the windows remain intact. These changes are well documented and are regarded as reversible.

The subject dwelling was designed by the prominent Ballarat architectural firm of Clegg and Morrow for a Mr Isaac J. Thompson, the manage of a local service station. Apperly notes that the Spanish Mission style was "a romantic, evocative style, essentially suburban and middle class".5. It was an attractive option when designing a house, cinema or even a service station.6 The subject building retains most of its original external architectural design features, although the original windows on the front façade have been altered prior to the introduction of heritage controls over this site.

3 Immediately to the south of the review site is a contemporary style, two storey dual occupancy development. To the north is a recently modified, Mediterranean style dwelling which has been altered to include an upward extension which is clearly visible from the frontage.

4 The applicant seeks a permit to extend the existing dwelling by constructing a first floor extension of approximately 75m2 over the front roof area. The extension will be set in from the existing roof eaves by approximately 1.5m on the western elevation, and by 2m on the remaining elevations. The extension would include a hipped roof front balcony directly above the existing verandah and front entrance. The internal layout indicates the inclusion of two new bedrooms located on each side of a central rumpus room. While there are some consequential alterations at ground level, the existing building footprint would remain unchanged. Mr Pitt told the Tribunal that a proposal to replace the existing single carport with a double carport in front of the dwelling had now been abandoned, and should be deleted from the application.

5 The application was advertised; there were no objections. On 19 September 2006, under delegation, the application was refused on the following grounds:

1. The proposal is considered to be inconsistent with the following objectives and decision guidelines of Clause 43.01 Heritage Overlay (Schedule 164):-

•

The proposed alterations to the dwelling will significantly diminish the intactness and understanding of an important heritage building;

•

The location and bulk of the proposed additions and the changes to the original features and design elements of the dwelling will adversely affect the significance of the heritage place.

The siting, scale and bulk and design of the new second storey addition will compromise the existing house to an unacceptable degree and as a result diminish the significance of the Central Ballarat Heritage Precinct. The proposed two storey addition at the front of the dwelling will totally obscure the original architectural style of the building and cause substantial loss of integrity and authenticity to its original features and design elements;

2. The proposal is not considered to accord with the following decision guidelines and policy statements of the Design and Development Overlay, Schedule 6:-

•

The proposed carport setback is not consistent with the character of the area or the design objectives of the relevant schedule to the Design and Development Overlay control (Schedule 6), which states that garage setbacks should be 3 metres greater than the house frontage setback;

•

The design, form, layout, proportion and scale of the proposed buildings will not be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

3. The proposal fails to comply with the objectives of Planning Scheme Amendment C58. In particular the Heritage Victoria 'Guidelines for the Assessment of Heritage Planning Applications' (August 2000), which will become a formally incorporated document within the Ballarat Planning Scheme as soon as C58 has been formally gazetted;

4. Proposal is not considered to accord with the purpose statements of Clause 32.01 (Residential 1 Zone), as it fails to provide for residential development that respects the neighbourhood character;

5. It is considered that the proposal fails to accord with elements of Clause 21.01, 21.03 and 21.05 of the Municipal Strategic Statement (MSS) of the Ballarat Planning Scheme;

6. The proposed additions are not considered to accord with the objectives of Clauses 22.01 and 22.16 of the Local Planning Policy Framework (LPPF) from the Ballarat Planning Scheme;

7. The proposal is not considered to accord with elements of Clause 65 (Decision Guidelines) of the Ballarat Planning Scheme.

6 The applicant now seeks a review of the Council's decision.

7 On the hearing written submissions were tabled on behalf of both the responsible authority and the applicant for review. Mr Kneebush called evidence from Ms A Jean, an architectural historian employed by the responsible authority. Mr Pitt SC called evidence from Mr A Willingham, also an architectural historian. Both witnesses tabled and read written statements. In coming to a decision in this matter, all the material put before the Tribunal has been carefully reviewed.

8 It is unnecessary to repeat all that was said at the hearing. The Council's case can be summarised by a single sentence in Mr Kneebush's written submission wherein he stated:

The proposed alterations and additions are considered to substantially compromise the understanding of a substantially intact period dwelling that is considered to be of contributory heritage significance to the Central Ballarat Heritage Precinct.

9 The applicant's case is best summarised by the following extract from the evidence provided to the Tribunal by Mr Willingham:

The subject place is not of cultural heritage significance such that the existing residence should be preserved intact (albeit in an already much altered state). It is my view that the proposed alterations are stylistically compatible with the existing style of the former Thompson House, and should therefore be sanctioned under Clause 43.01 provisions in the Ballarat Planning Scheme.

Further, and in consideration both of the low level of integrity of the existing house at 116 Wendouree Parade and the fact that the place is not of any clearly established individual or contributory cultural significance to HO166, it is my finding that the location, bulk, form and appearance of the proposed building will not adversely affect the significance, character or appearance of the exceedingly large heritage place (HO166) or the immediate locality of Wendouree Parade.

As well, it is my assessment that the proposal meets with the broad Guidelines for the Assessment of Heritage Planning Applications, as prepared by Heritage Victoria in August 2000, when it is accepted that the existing residence is now much altered and of imperceptible cultural significance either in its own right, or as a contributor to the cultural significance of the exceedingly large urban area of Ballarat defined as Heritage Overlay HO166 in the Ballarat Planning Scheme.

It is my view that the proposed design by FMSA Architects, which is essentially styled to respect the surviving elements of the original Isaac J. Thompson House, and which would stand in its own right as an appropriate development on a clear site in Wendouree Parade, has merit on heritage and conservation grounds, and should not be rejected because of urban design or cultural heritage issues.

10 In assessing these competing viewpoints, it is convenient first to turn to the Heritage Overlay's Statement of Significance which describes the Central Ballarat Precinct as being "historically, architecturally, aesthetically, scientifically and socially significant" at a local level. The statement goes on to say:

The urban development and character of the Precinct has historic significance for its association with a number of significant activities that links together some of the main themes in the historical, social and architectural development of Ballarat.8

The Precinct is architecturally significant for its many substantially intact residential, commercial, cultural/community and educational buildings and important early industrial buildings dating from the 1860s and 1940s, and into the early 1950s. The residential architecture of the area is aesthetically significant for its high degree of integrity and condition, and forms an important collection of Victorian, Federation, Inter-War and early Post-War buildings. The western section of the Precinct including Wendouree Parade is architecturally significant for the collection of Inter-War houses that exhibit a great variety of individual architectural styles. These examples are aesthetically important as within a small locality it is possibly to view a range of designs that illustrate the personal tastes and creative inspiration of a provincial mid 20th century Australia city.9

The Precinct is recognised and highly valued by the local community for its early and ongoing residential, commercial, religious, and educational associations.10

The Central Ballarat Residential precinct covers a large and diverse area on the northern side of Sturt Street covering Lake Wendouree in the west, MacArthur Street on the north and sections of Creswick Road on the eastern boundary. Land use in this area is primarily residential today, but the precinct's past is also linked to mining, commercial, educational and institutional aspects of Ballarat's history. Its prime location on high ground on the plateau, away from the noise, filth and bustle of the Diggings in East Ballarat, made it a popular location for all of these activities.11

11 The evidence provided to the Tribunal by Ms Jean describes the existing dwelling as "substantially intact". This view is to be contrasted with the analysis provided by Mr Willingham who stated that:

Reference to the documentation prepared by FMSA Architects in the late 1980s also shows that the subject house was extensively altered both externally and internally at that time. Now it is clear that not one of the four principal elevations of the house as built for Isaac and Marion Thompson in 1934 is recognizably intact. As a consequence, the subject building can no longer be seen as even a representative specimen of Inter-War period residential building in Ballarat, or even the Lake Wendouree locality, an area of exceedingly diverse architectural character and one which is in part characterised by houses and other structures of the Inter-War period and later.

It is clear that the house has been substantially altered, the principal façade has been emasculated, and the former Thompson House is now of comparatively low integrity. It is not an important or even representative specimen of the work of local Ballarat architects Clegg and Morrow, nor can it be held to demonstrate notable or otherwise distinctive residential design characteristics of the Inter-War period or of the Mediterranean Revival or Spanish Mission idioms in Ballarat or the Lake Wendouree locality.

The only element in the existing fabric which is of some aesthetic interest is the arcaded loggia and the jerkin-head gable roof form above. However, it must be appreciated that the tri-arcade element is stereotypical of the Inter-War period, and has no intrinsic interest as a rare manifestation of this approach to residential design in the 1930s at Ballarat. In any case, it is intended to retain this element of the existing façade in the new design proposal for a two-storey addition to the residence at 116 Wendouree Parade.

There is no cultural history data to hand to establish that the place is of cultural or historical significance because of its locality or because of any notable and discernable associations with significant persons or events.

12 The difficulty presented by this case stems from two separate facts. First, in contradistinction to many (if not most) heritage overlays, there has been no rigorous assessment of which particular buildings should be designated as contributory, nor any attempt to "grade" individual buildings". Rather, as Ms Jean put it:

The visual character of the area is distinguished by the very heterogeneous architectural styles and pattern of development. The visual heritage importance of the area lies in not just individually significant buildings, but the history and particular evolution of the settlement of this area from Victorian days to the 1950s.

13 The Council has identified and listed those buildings which it regards as non-contributory. Predictably, it is a long list and, presumably, it was created as a result of a process of kerbside inspections. Economical as this process may have been, it will inevitably lead to differences of opinion as to the level of protection that ought to be given to specific buildings.

14 The panel appointed to consider amendment C58 (the precursor to the introduction of the Heritage Overlay) wisely made the following observation:

•

The Heritage Conservation Policy should include a policy to the effect that all buildings within a heritage place that are not listed as 'not of heritage significance' within the incorporated document are considered to be prima facie contributory the significance of heritage place, but an applicant may establish to the satisfaction of the responsible authority that a building is not of contributory significance. In considering whether a building contributes to the significance of the heritage place, the responsible authority should have regard to the criteria for establishing significance set out for each precinct.

15 Having regard to all these factors, it is clear that it is necessary to carefully consider the role played by the existing dwelling and the contribution it makes to the heritage of the precinct. In this regard:

•

The original dwelling has been heavily modified. All elevations have been altered at some point in time, and its original windows and roof have been replaced. The dwelling is not "substantially intact" as both the Council and Ms Jean claim.

•

The dwelling sits between a contemporary two storey dual occupancy on one side, and a modified two storey Mediterranean style dwelling on the other. Neither structure makes any contribution to the heritage assets of the precinct.

•

It is noteworthy that the Council recently granted a permit for an upward extension of the dwelling to the north which is of a similar age to the dwelling the subject of the present proceedings and which, prima facie, makes a similar contribution to the precinct. At best, this suggests the Council's attitude to these applications is inconsistent.

•

Ms Jean was unable to identify any link between the subject dwelling and Ballarat's gold-mining past, nor was she able to identify any particular architectural, aesthetic, scientific or social association that would justify the stance adopted by the Council's delegate. It is simply not enough to argue that the precinct (or for that matter, the dwelling) is "valued" by the Ballarat community.

•

It was not disputed that Wendouree Parade forms part of Ballarat's fully serviced urban area where development that respects neighbourhood character is encouraged. Having regard to the immediate surrounds of the review site, the Tribunal does not accept Mr Kneebush's submission that the extension would result in a development that is inimical to the prevailing character of the neighbourhood.

16 It follows from these observations that the Council has failed to make an objective assessment of the contribution made by the existing dwelling to the heritage precinct. The analysis prepared by Mr Willingham was extremely thorough. No doubt, in appearing for the permit applicant, Mr Willingham had advantages of access (and perhaps time) that were not available to Ms Jean. For whatever reason, Mr Willingham's assessment of the application is to be preferred.

17 Before parting with this matter the Tribunal notes the Council's reliance on a decision made by another division of this Tribunal in Lubansky v Ballarat CC [2005] VCAT 1477 (21 July 2005) wherein it was stated:

31 In terms of architectural intactness and significance, the existing building may not be of gem quality. It is one of many 1920's buildings in Talbot Street with some 1950s' alterations. It is a contributory building of local significance. If a contributory building of local significance can be demolished, it chips away at the corner stone of a precinct based heritage overlay.

32 In considering whether the building should be demolished, I refer to the decision guidelines of Clause 43.01-5. My finding is that it would not be consistent with the objective and policy of Clause 22.16-2 and 22.16-3, particularly the objectives of maintaining the culturally significant residential housing stock and retaining and enhancing the diverse significant historic and architectural character of the area. I also find that it would adversely affect the cultural significance of the place (precinct) that demolition of the existing building chip away the overall heritage significance of the area.

18 As that case concerned the demolition of an existing dwelling, it is clearly distinguishable on its facts. However, it needs to be emphasised that, given the heterogenous nature of the area covered by the Overlay, and the means chosen to protect its assets, every application needs to be carefully scrutinised in terms of the particular contribution made by the building in question. Unless applications under the Heritage Overlay are approached in that way, there is a danger that the precinct will be placed in some form of time-warp. This would not be an appropriate planning outcome, nor would it be consistent with other provisions contained in the planning scheme.

19 For all the foregoing reasons the decision of the responsible authority will be set aside and a permit granted subject to conditions.