1 The Permit Applicant is to advise the Registrar, the other parties and the Responsible Authority in writing within 28 days of the date of this interim decision ('notification date') whether it intends to lodge amended plans in accordance with the opportunity and leave hereby given, and in accordance with the Tribunal's recommendations.

2 Within thirty days of the notification date the Permit Applicant must complete any modified plans ('completion date').

3 Within seven days of the 'completion date', the Permit Applicant must file with the Tribunal and serve on the parties and the Responsible Authority as follows:

a) fully detailed plans drawn to a scale of 1:100 showing the proposal with any and all modifications;

b) an accompanying letter pointing out each modification made;

d) one such copy is to be served on the Responsible Authority for its own use; and

e) one such copy is to be served each on Alex and Rebecca Lubanksy, Judy and John Haywood, and Mr. Darren Farguhar.

4 The date by which the Permit Applicant must complete service in accordance with the foregoing direction is the 'circulation date'.

5 The Permit Applicant must file with the Tribunal within seven days of the 'circulation date', a statement of service evidencing its compliance with these directions, together with a copy of the form of letter and any other document sent with it.

6 Within 14 days from the circulation date the parties must give notice to the Tribunal, the Responsible Authority and the Permit Applicant of their comments on the modified plans.

7 The Tribunal will then consider the revised plans and comments received to finalise its determination. The Tribunal reserves the right for parties to call a hearing to clarify or make submissions on the revised plans, noting that this is not an opportunity to re-open the substantive hearing.

8 If the Permit Applicant finds this course unacceptable, the Tribunal will disallow the review application and direct that no permit is to issue.

Ms. Rebecca Lubanksy appeared on behalf of all review applicants. She subpoenaed Ms. Vicki Johnson, City of Ballarat's Heritage and Urban Design Officer to appear before the Tribunal to give heritage evidence.

Mr. John Cicero, Solicitor, Best Cooper Lawyers. He called Mr. David Bick, Heritage Consultant, to give heritage evidence.

1 This is an Application brought by objectors against Council's Notice of Decision to Grant a Permit to demolish the existing building and construct three single storey dwellings at 512 Talbot Street South, Redan. The grounds of review were the demolition of a heritage building, adverse effect on the heritage character of the area, overdevelopment of the site, design and development not in keeping with neighbourhood and historical character of the area, and contrary to Council officer's recommendation to refuse the application on six grounds, all related to the heritage character of the area.

2 At the commencement of the hearing, Mr. Darren Farquhar of 505A Talbot Street requested to be joined as party. Council and Mr. Cicero offered no objection to his request. Leave was granted to join Mr. Farquhar as party to the proceeding.

3 The Tribunal was advised that Ms. Vicki Johnson, City of Ballarat's Heritage and Urban Design Officer has been summoned pursuant to sec. 104 of the VCAT Act to appear before the Tribunal. Mr. Cicero submitted that although he had no difficulty for Ms. Johnson to rely on her original report to Council and answer questions based on that report, there has been no forewarning that she would be giving evidence at the hearing. VCAT practice note requires all correspondence to be circulated to all parties. There has been no supplementary report served in accordance with VCAT practice note.

4 The Tribunal agreed that should there be fresh information or report prepared by Ms. Johnson as a result of Mr. Bick's statement of evidence, that report should be served in accordance with VCAT Practice Note. In giving evidence, Ms. Johnson was instructed to confine herself to the information already contained in her report.

5 One last preliminary matter is Mr. Cicero's confirmation of his client's request to amend the application to substitute plans as circulated on 31 May 2005. There was no objection from any party to the request. Leave was granted to amend the application as requested.

6 The review site is located on the west side of Talbot Street South and is regular in shape. It has a frontage of 20.67 metres, a depth of 50.79 metres, and a site area of 1032 square metre. It is developed with a single storey weatherboard house. Developments immediately abutting are also single storey dwellings.

7 Talbot Street South is a straight street typical of a grid system, and lined with street trees.

8 The proposal is to demolish the existing dwelling and construct three single storey dwellings. All dwellings provide two-bedroom accommodation and a single garage from a common driveway of the existing crossover. The front dwelling is set 6.08 metres from the front (not including the front bay window for bedroom 1), a minimum 3 metres from the northern and western (rear) boundaries. It is constructed to the southern boundary for the length of the garage of Unit 3. This garage is set approximately 40 metres from the street frontage. Secluded private open space for the dwelling is located on the north side of the dwellings.

9 The design of the dwellings adopts hipped roofs and external weatherboard cladding for walls.

10 The review site is located in the Residential 1 Zone of the Ballarat Planning Scheme, under which a permit is required to develop more than one dwelling on a lot.

11 It is affected by Heritage Overlay (Schedule 164), Design and Development Overlay (Schedule 14), and Vegetation Protection Overlay (Schedule 2 Urban Character Vegetation), under all of which a permit is required to demolish, build and construct works, and removal of vegetation as specified in the schedule for the Vegetation Protection Overlay.

12 Other relevant planning provisions and controls of the Planning Scheme include Clauses14, 15.11, 15.12, 16.02, 21.05, 22.01, 22.16, and 65.

13 At the hearing, parties relied on written and oral submissions. The two heritage witnesses were made available for cross examination. Submissions, reports, additional documents in sewerage plans, records of transfer of house, rate book records, family photographs from Mr. Farquhar, decisions of other divisions of the Tribunal, and photographs of the site and vicinity, were tabled. These documents are kept on file. At the conclusion of the hearing, I reserved my decision and indicated that I would inspect the site and surrounding area.

14 Having heard the submissions and evidence, inspected the site and reviewed the Ballarat Planning Scheme, I partly share Council's decision that a medium density development in the proposed modest single storey scale should be supported, but I do not share its view that the existing building on the land should be demolished.

15 The critical consideration of this review is the heritage aspect of the proposal, and particularly the demolition of the existing building.

16 The objectors' application for review was based on the loss of the building on the land, and that the proposed medium density development is not consistent with the heritage character of the area. In fact, Council officer's assessment was that the demolition of the existing building would adversely affect the significance of the heritage place and the character of the area. It recommended refusal of the application on 6 grounds, five of which relate to heritage consideration. This recommendation was rejected by Council. Instead, it issued a notice to grant a permit subject to conditions, allowing the demolition of the existing building.

17 To assess whether the existing building should be allowed to be demolished, I have evidence from Ms. Johnson, Council's Heritage and Urban Design Officer, summoned by the review applicants/objectors to give evidence, and Mr. David Bick, conservation consultant called by Mr. Cicero on behalf of the respondent permit applicant. Above that, Mr. Farquhar's family, had a long association with the house, being the family home of his grand parents since 1940s'. He tabled old family photographs showing the life of the household in the 1950s, and parts of the existing building at the time including the chimney on the eastern façade which has since been demolished.

18 Without reciting at length their evidence, Ms. Johnson's report to Council's Planning Office at the time was that, based on documented evidence and her specialist knowledge, the house could have been an early Victorian era miner's cottage but substantially altered in 1923 to its present Inter-war era bungalow form. Whilst accepting there is anecdotal evidence that there have been changes in the 1950s, there was no documentary evidence to support this claim. The appearance of the building is similar to many other weatherboard houses built in the area in the Inter-war period (1920s and 1930s) and unlike a 1950s era house. She, however, acknowledged that there have been some non-significant alterations that appear to have been made in the 1950s, such as demolition of the early external chimney on the south façade and possibly an extension of the porch verandah from a smaller square to its present longer form. Although the building is in some disrepair, there is no structural distress and works required are more remedial than major.

19 Her comments to Council was that the existing building contributes to the heritage significance of the area: "It is the very presence and variety of buildings that remain in existence from the first 100 years or so of Ballarat's development that has been identified in the Municipal Strategic Statement and Local Planning Policies as integral to the unique identity and continuing prosperity of the municipality". She urged Council to consider the representative nature of many of the buildings, rather than as a highly individually significant building, that each building in its modest way contribute to the overall significance of a heritage area through its form and architectural detailing, and that gradual loss of contributory buildings in a heritage area will ultimately devalue the significance of the area and undermine the reasons for its protection.

20 As part of her research, she has reviewed all available documentation on the building, such as City of Ballarat's General Rate and Valuation Book, the Ballarat sewerage Authority detail Plan No. 74 (April 1923), and all subsequent available building permits and plans. It led her to conclude that the existing building is of contributory significance to the Inner Ballarat Interim Heritage Precinct because it is consistent with the important heritage qualities identified in the Policy basis of Clause 22.16, and the Statement of Significance for the South Ballarat precinct.

21 As for the grading of the building as 'E' in the Andrew Ward 1998 study, this grading is defined as "representative buildings, either defaced and/or making an individually small contribution to the cultural values of a place but when situated in conjunction with other examples, being contributory to the character of an urban conservation area". It does not mean that the building can be readily demolished. Besides, the grading of that study has not been considered as part of the Amendment C58 (the reason for the current interim heritage control). This individual grading of buildings as the basis to determine the heritage significance of a place has been superseded by the 'non-significant' assessment process. She recommended against the demolition of the existing building.

22 Contrary to this view is Mr. Bick's evidence. His opinion is that the HO164 Inner Ballarat Precinct is a very large area. The vicinity of the review site contains typical dwellings from the late 19th and between the 1900s and circa the 1950s, not dwellings that can be regarded as being unusual in any sense. Ballarat contains a very large number of standard late 19th century and early 20th century timber dwellings like those found at Nos. 507, 510 and 514 Talbot Street. In his view, there are a number of dwellings that have no heritage overlay precinct value and this part of the precinct is not very intact. The street block of the review site does not have a high level of intactness.

23 The existing detached timber house on the review site, according to his research, appears to have been constructed in 1920 or 1921 and the existing front windows, verandah and the chimney were installed in the 1950s or later. Thus the front of the house is now circa 1950s in style and all that remains of the 1920/1921 is the side and rear walls and the roof. The confirmation that the building has been altered in the 1950s came from the present owner the Farquhar family. The existing house is best an example of a much altered but quite basic timber dwelling. This is reflected in the E grading given by the Andrew Ward 1998 study. The demolition of this house will reduce one of the numbers of old houses in the overlay precinct, but it will have no impact on the significance of this large precinct. To him, the existing house is a standard 1950s style single storey weatherboard house of quite basic detailing and construction, or otherwise an older (1920/1921) weatherboard dwelling that was extensively altered, possibly in 1957. If that is the case, all that survives of the older dwelling are the weatherboard walls and the roof. The front corner window, chimney detailing and the front bay windows all date later than 1923, that is 1930s or 1950s. The intactness value of the building is very low. In fact this street block exhibits a low degree of intactness.

24 Given the combination of the questionable value of this block of Talbot Street and very low value of the existing house at 512, his opinion is that the demolition of the existing dwelling will not adversely impact on the significance of this precinct.

25 During the cross-examination of Ms. Johnson and Mr. Bick, it became a debate whether the existing house has remnants of a Victorian miner's cottage, whether it is more 1920s than 1950s, and its value as a contributory building to the precinct. It is worthwhile mentioning that the permit application process has also generated inspection of the structural integrity of the house by two structural engineers and Council's building surveyor, expressing opposite views. However, these specialists have not been called to give evidence and their views not tested. The external visual appearance of the building does not suggest that it is in imminent danger and I am not aware of any dangerous building or dilapidated notice issued under the Building Act.

26 From my reading of the planning scheme, supporting document in the Ballarat Heritage Study that underpinned the introduction of heritage control for the area, I am persuaded that the basis of heritage overlay control over this area is not on the significance of individual buildings but the area: that is a precinct approach. I am not persuaded by Mr. Bick inference that non-substantial buildings or non-highly graded building are somehow of lesser relevance.

27 The character description of the precinct according to "Ballarat Heritage Study Stage 2", the strategic work that underpinned the heritage overlay control described the area as (page 103):

".. a heterogenous combination of substantially intact residential buildings, which were constructed from the early 1860s (or possibly earlier) to the 1940s and into the early 1950s.....

28 This study identified the precinct to be architecturally significant on a local level due to the demonstration of many original and early design qualities associated with development between the 1850s and 1940, and into early 1950s. The precinct is aesthetically significant at a local level because its demonstration of the important visual qualities that reflect the historical, cultural and architectural development of the precinct, and contribute to its setting. It is socially significant on a local level because this area is recognised and highly valued by the local community for its early and ongoing residential, commercial, social, educational, and recreational associations. This study found that the precinct is of local significance.

29 The evidence of Ms. Johnson and Mr. Bick suggest to me that the house is primarily 1920's. If it was a miner's cottage, there is no visible external evidence. It has undergone some alterations in the 1950s'. This is not disputed by Mr. Darren Farquhar, whose family occupied the house for decades after World War II. Except it is not known of much was altered in the 1950's. The various sewerage and drainage plans are not of sufficient detail to establish the dates that it might have undergone rebuilding or renovation. There is no documented evidence that it has undergone a major rebuilding. The corner window and part of the verandah are possibly 1950s, although the materials used could have been 1930s. The current built form, the bay window and the external walls are 1920s. In a way, the works done to the house reflected the settlement evolution of the precinct, at least from the 1920's to the 1950s. On the basis, I am not persuaded by Mr. Bick's (oral evidence) that the building is "a basic 1950s house, not particularly authentic and no significance at all". I also reject his notion that demolition of this building is the loss of one of many like buildings with no consequence on the overall heritage character of the area, and that because the review site is in a street block on the fringe of the heritage area, it should somehow have less significance than if it is in the middle of a precinct.

30 My reading of the Ballarat Heritage Study is that the area is heterogeneous, its importance lies in not just individually significant building, but the history of settlement and development of Ballarat from Victorian days to the 1950s. The fact remains that the area is protected by heritage controls based on the significance of the area as a precinct and not individual buildings.

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.

33 In all, there is insufficient justification to demolish the existing building. I am of the view that all of the main house should be retained, with the 'lean to' section at the rear, the part of the house not covered by the main roof, and the outbuildings at the rear can be demolished. That would yield a substantial area for redevelopment.

34 Given the size of land and the modesty of the development, I am confident that the balance of the land is capable of accommodating two additional single storey two-bedroom dwellings similar to units 2 and 3 currently proposed.

35 Two such additional dwellings, given their low profile and consistent built form and design with houses in the area, and given their location behind the existing building, would not detract from the heritage streetscape. I am not persuaded by Mr. Farquhar's argument that there is significance to the garden to the extent that it should be retained as is. Two additional dwellings would help to achieve the housing policy of both the state and local planning policy frameworks.

36 The proposal is for three single storey two-bedroom dwellings. The crux of the matter is the demolition of the existing building at the front. Having considered the evidence and submissions presented, I am not persuaded that there is justification to demolish this building.

37 However, there is scope to develop the site incorporating this building rather than rejecting the proposal in total. In the interest of dealing with matters in an expeditious manner, I have decided to provide the permit with an opportunity to review the design in a process as set out in the directions.

38 This opportunity to redesign should be seen as an opportunity to rectify the shortcomings of the proposal as a response to the planning scheme controls. This will enable the Tribunal to further review the proposal. It does not mean that a permit would be granted as a matter of course.

39 I now summarise my recommended modification expressed above which may lead to the grant of a permit for the development. Multiple designs must not be provided. The plans must be based on the submitted plans but amended to show the incorporation of the existing building, at least to the extent of the entire building under the main roof, into the scheme with two further single storey two bedroom dwellings generally consistent with the submitted plans.