The decision of the Responsible Authority is set aside. In permit application PL06/0412 a permit is granted and directed to be issued for the land at 38 Church Street, Fitzroy North. The permit allows demolition of the existing timber dwelling and outbuildings in accordance with the endorsed plans and subject to the following conditions:

1 Prior to the demolition of the existing dwelling and outbuildings:

(a)

A demolition plan, setting out all buildings and structures to be demolished must submitted to and approved by the responsible authority, when approved these plans will be endorsed and form part of this permit;

(b)

A photographic record of the building (in its context and in detail) shall be prepared. The photographs shall be submitted in black and white format and should be taken by a suitably qualified heritage photographer. The photographs are to be submitted to Council for historic recording and should be organised in consultation with Council's Heritage Advisor, and;

(c)

A planning permit must have been granted for the redevelopment of the land to the satisfaction of the responsible authority.

2 All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

3 Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.

4 Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

5 This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

1 This is an application to review the decision of the responsible authority to refuse permission for demolition of a timber dwelling and outbuildings, at 38 Church Street, North Fitzroy. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The dwelling is one of the earliest houses in the significant area and is contributory to the heritage streetscape.

2. Demolition of the dwelling fails to satisfy clause 22.02-3.2 of the Yarra Planning Scheme (Development Guidelines for Heritage Places).

2 At the commencement of the hearing Mr Goold applied to amend the permit application to make it clear that the demolition application also related to the outbuildings on the land. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Goode's request.

3 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

4 The subject site is located on the south side of Church Street, between St Georges Road to the east and Nicholson Street to the west. The site is a rectangular shaped lot, with a street frontage of 4.88 metres, a depth of 32 metres and a site area of 156 square metres. The land contains an exceedingly modest, dilapidated, single-storey Victorian weatherboard dwelling.

5 The south side of Church Street includes a group of remarkably intact, substantial, one and two storey Victorian dwellings and forms part of Heritage Overlay Area HO327 the North Fitzroy Precinct. The north side of Church Street has a more mixed character and is outside of the heritage overlay area.

6 The proposal is to demolish existing dwelling and outbuildings.

7 The land falls within Heritage Overlay Area HO327 the North Fitzroy Precinct. A permit is required for the proposed demolition. The statement of significance for the precinct is set out below:

The North Fitzroy Heritage Overlay Precinct is of outstanding significance. It contains a wide range of 19th and early 20th century buildings, many of which remain substantially intact. It contains some of the most substantial residential buildings in the municipality, many of which - particularly in Alfred Crescent - show evidence of conservation practices. In addition many are particularly distinguished in tier polychromatic brickwork and decorative details. It is also notable for the landscape character of many of the streets surrounding the Edinburgh Gardens, a focus of the Precinct.

The most intact streetscapes within the Precinct are Alfred Crescent, the west side of Brunswick Street between Scotchmer and Park Streets, Birkenhead, Egremont, Falconer, Newry, Rowe and McKean, Moss and Seacombe Streets. Other streetscapes with a low proportion of non-heritage buildings are Rushall Crescent, and Barkly, Bennett, Best, Delbridge, Freeman, Liverpool, Michael, Rae and Scotchmer Streets.

8 It is not my intention to set out the very helpful evidence of Mr Briggs and Mr Beaston in this matter. Suffice to say that there appears to be considerable uncertainty as to the precise significance of the subject building.

i

The building may be a rare example of early much more modest phase of development within North Fitzroy.

ii

The building was itself developed in phases, it may be the case that the front two rooms of the dwelling are the earliest part of the dwelling, but this is not by any means certain.

iii

The building had a verandah at the turn of the century, it is likely that the existing verandah is not that which was shown on the MMBW plans of that time.

9 Notwithstanding the possibility that the building is a rare early building it is under the current planning regime simply a contributory building within a relatively large heritage overlay precinct. Moreover, the building is a very unprepossessing building in a dilapidated state.

Demolition without any approved replacement building

10 It is argued in this case that the demolition of the existing building should not be permitted, unless there is a satisfactory replacement building, and in this case permission is not being sought for a replacement building.

11 In respect of this issue Mr Briggs on behalf of his clients suggested that a solution to this issue is a permit condition prohibiting demolition in accordance with the permit until there is a permit in place for the redevelopment of the land.

12 It is the case, that even when it is not embodied within the planning policy framework itself, it is commonly held that the demolition of heritage building should not be permitted without there being a satisfactory replacement building. The debate in this case has caused me to think about the purpose of such a rule. Purposes which occur to me include:

•

The prevention of whimsical or speculative demolition of heritage places;

•

The prevention of the creation of "bomb sites" within heritage precincts;

•

The need to assess the impact of the replacement building on the heritage place.

13 I am not sure that an Applicant's motivations, even if they could be described as being whimsical or speculative, are entirely relevant to the decision making process under the heritage overlay. In any event, I have no reason to doubt that in this case, the application is anything other than a serious attempt to explore the options for development of the land.

14 Mr Briggs proposed condition avoids the creation of a "bomb site", at least to the extent that it would be avoided by a permit which was both for demolition and the replacement building.

15 In the context of the subject land, there can be no serious doubt that an appropriate infill building could be designed to fit on the land. Satisfactory infill buildings in Victorian residential streetscapes are commonplace. If the application was for partial demolition, then it would be entirely necessary to consider the demolition in the context of the overall redevelopment of the heritage building, it seems to me that this is less necessary when the proposal is for the demolition of the entire building.

16 In addition to these considerations it is relevant that planning permit processes today are both very expensive and very time consuming. In this context it is unreasonable to expect an Applicant to negotiate a substantial infill building through the system only to be denied a permit not because there is anything wrong with the infill building, but rather because it is considered that the demolition of the significant building within the heritage place should not be permitted.

17 Victoria has very extensive protection of buildings of local significance through the heritage overlay system within planning schemes. Notwithstanding the controversy which surrounds heritage control elsewhere, there is broad community acceptance of heritage overlays and heritage controls within Victoria. In part this acceptance arises from the responsive implementation of the controls themselves. Even if a permit applicant does not really wish to keep their Victorian terrace or their Californian bungalow, the system is sufficiently flexible to allow them to adapt such buildings to their needs without unreasonable penalty in respect of:

•

The aesthetic enjoyment of the dwelling, or

•

The functional enjoyment of the dwelling.

18 In a sense these considerations raise the issue of fairness, and in a number of cases I have previously found that fairness is a relevant consideration in demolition applications under the heritage overlay provisions[1]. In the context of this particular case I think that this involves a consideration of the consequences of a decision to keep all or part of the building.

19 In part I explored this issue during the course of the hearing, particularly during the giving of evidence by the expert witnesses. Elements of a redevelopment strategy are discussed below.

i

Mr Beaston accepted that an acceptable outcome might be the retention of the front two rooms, it is certainly the case that the retention of these rooms and the middle portion of the existing dwelling will severely compromise the redevelopment potential of the land.

ii

The front two rooms, like the balance of the dwelling, is very dilapadated and it would be a significant task to reinstate these rooms to a reasonable standard[2].

iii

The front two rooms are very small, there is no hallway, and the rooms are connected by a narrow doorway in the dividing wall. There needs to be a connection from the front of the land to the new development at the rear of these two rooms. Using the rooms as a hallway would seriously compromise their utility for any other purpose. Alternatives would be to construct a hallway to one side of the dwelling, or to create a pathway to one side of the dwelling leading to a new dwelling entry to the rear of the retained two rooms. Both these options require the relocation of the existing building on the land[3].

iv

The front two rooms are very small and will not in any practical sense conceal the extension being built to their rear. The retention of the two rooms in effect ensures that the extension will be a two storey building, to achieve a building volume acceptable to modern requirements within the space that remains available on the land[4]. While not necessarily unresolvable the visual relationship between the new building and the retained parts of the building would be difficult to satisfactorily manage;

v

Victorian buildings, even simple Victorian buildings, usually have well resolved proportions which are pleasing to the eye, this is not true of the subject building. Setting aside for a moment the heritage significance of the building, a redevelopment retaining the front two rooms of the existing dwelling is unlikely to be an aesthetically pleasing outcome.

20 In summary it is my opinion that there is a potential to redevelop the existing building retaining its front two rooms. The economic cost and practical difficulty of doing so would be significant but not fundamentally unreasonable. The aesthetic and functional costs of the redevelopment would be considerable.

21 The building is currently protected as a contributory building within a heritage precinct. The building is an isolated building of its type and therefore its loss does not disrupt the heritage streetscape of Church Street, in the context of the broader precinct. The demolition of the building will have a very limited impact on the heritage significance of the heritage place as a whole. The retention of the building will adversely effect the owner's reasonable enjoyment of the land. In this context I think it reasonable to allow its demolition, subject to the conditions proposed by Mr Briggs.

22 In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

[1] Metro Giant PL v Boroondara CC [2001] VCAT 735

Peter Sgourakis Architect v Port Phillip CC [2001] VCAT 2022

[2] This is not fatal, significant works are normal to the maintenance of timber structures.

[3] The existing building is located centrally on the site with setbacks of 750 millimetres and

600 millimetres to the east and west respectively. A minimum satisfactory setback for a main entry pathway would be 900 millimetres, a larger setback would be required for a hallway

(to accommodate the structure) a hallway may in fact be desirable to ensure the utility of the retained rooms.

[4] Without unduly affecting adjoining properties.