Staged Developments Australia v Minister for Planning, Heritage Victoria and Ors [2001] VCAT 1447

Staged Developments Australia v Minister for Planning, Heritage Victoria and Ors [2001] VCAT 1447 | Case summary | Zoe

[125]

43. A further possible modification, referred to above, and discussed considerably in the course of the hearing, was the idea of retaining a significantly larger portion of the existing building whilst still demolishing a substantial portion of the building extending from the north east corner. This was the idea of retaining the original fabric beyond the first row of columns from the Flinders Street and Exhibition Street frontages, as far as the second row of such columns. This was frequently referred to as retaining two, rather than one "bay". This arrangement, on our estimation, would mean the demolition of approximately 60%, rather than 74%, of the existing building. Such an arrangement was originally supported by the National Trust, although it withdrew that approval when it was realised that the certified plans provided for the retention of only one bay. There were other considerations motivating this change of attitude by the National Trust. The Executive Director, and the heritage witnesses called on behalf of the Executive Director, do not favour the two bays idea, as they apparently would only support retention of the entire existing building. The attitude of that party, as we understand it, is that two bays is marginally better than one, but that the difference is sufficiently slight as not to warrant support of the proposal. Staged Developments, on the other hand, support one bay, and ultimately the certified plans. Nevertheless it would contemplate the retention of two bays if that was necessary to win approval. The retention of two bays requires some significant modification to the proposal because it constricts the potential area for the basement levels of car parking and consequently redesign of those areas. While Staged Developments might prefer the retention of only one bay, that idea does not enjoy the enthusiastic support of any of the heritage witnesses called on its behalf. On our understanding of their evidence, all these witnesses take the view that two bays ought to be retained, or at least that the retention of two bays is markedly preferable to keeping only one. We agree with this proposition and have ultimately come to the view that, if approval is to be granted, that it should be on the basis of modified plans that retain two bays in from each of the street frontages.

[187]

94. In the case of Ms Gould we were disturbed at her lack of impartiality and evasiveness. We were not impressed at her unwillingness to admit things that should have been admitted and which had to be cross-examined out of a reluctant witness, and we were shocked at the attempted suppression of her own work in the Melbourne Central Activities District Typological Study referred to previously. This document, in its paragraph 1.2, claims to be a major piece of work and it apparently took over a year to create. It was significant and relevant that its assessment of the building did not recommend registration. The written report lodged on behalf of Ms Gould, and adopted by her, made no mention of this conclusion and clearly sought to suppress the Typological Study. She said in cross-examination that in her report she had referred to her Typological Study. Although the written report contains many footnotes and references, the only reference in the whole document to the Typological Study is a footnote on page 8 which appears to refer to the work of the architect Walter Burley Griffin, and not to the HWT building or its assessment. In spite of this it was demonstrated that the written report contained a number of word for word quotations from the Typological Study's assessment of the HWT building without reference, footnote or acknowledgment, and without noting the conclusion in relation to registration. Ms Gould admitted in her evidence that she had told Heritage Victoria of the Typological Study when she was engaged in relation to this case. Perhaps she thought they should know as its assessment of the HWT building could be embarrassing. She told them. She chose not to tell us. Not just that, she attempted to hide it from us, or to hide from us the fact that it contained a relevant assessment of the HWT building that might not be helpful to her client's case. This was all with a consciousness of the Tribunal's Practice Note VCAT 2 in relation to expert evidence including its references in Clause 2 to an expert's duty to the Tribunal. This indicates that an expert witness has a paramount duty to the Tribunal and not to the party retaining the expert, that the expert witness has an overriding duty to assist the Tribunal on matters relevant to the expertise of the expert witnesses and that an expert witness is not an advocate for a party. Clause 3 also deals with matters to be included in an expert's written report including the expert's experience, expertise and the facts, matters and assumptions on which the report proceeds. It is also to include reference to, amongst other things, "the literature and other material used in making the report". This last requirement was blatantly breached. We can only say that Practice Note VCAT 2 is regarded as being of considerable importance and that it is our view that it should be observed by expert witnesses in both the letter and the spirit.

[190]

97. We have, in fact, placed more reliance on the evidence of Mr Lovell than on other witnesses called in relation to heritage matters. We have no great problems with the evidence of Mr Lucas, but we can't help noticing that his conservation management plan was devised after the parameters of the Applicant's proposal were made known to him and that was modelled, at least in some respects, to accommodate the proposal. To give an example, one thing he laid down was that a new building constituted by the proposed tower should have separate address, distinct from that of the existing heritage building. However, the only separate address the tower can have, if the Flinders Street and Exhibition Street facades are to be maintained, is to the rear part of Sargood Lane. That is a totally inadequate address for such a building. However, we are satisfied that, at the time he laid down the requirement of a separate address, he was under the impression that his client's proposal was to demolish a northern section of the Exhibition Street façade to allow the new building to have an address to Exhibition Street from the south-eastern corner of the intersection of Exhibition Street with Sargood Lane, and extending for some distance south along Exhibition Street. This is betrayed in the sketch of the building appearing at page 44 of the Conservation Management Plan produced by Mr Lucas. On this sketch the pilasters running up Exhibition Street ceased some distance short of Sargood Lane beyond a dotted line indicating the extent of possible demolition. There is a notation applying to the area between the dotted line and the north-western corner of the building on the Sargood Lane corner which reads "1.9 MAY BE ADAPTED TO ACHIEVE INDEPENDENT ADDRESS". There is another note on this sketch reading "1.8 ALLOW NEW BUILDING TO SITE ... & 1.9 WITH INDEPENDENT ADDRESS & ...". In fact the proposal, as supported on behalf of the Applicant, now requires retention of this section of facade and also of a return of the existing wall of the building for some distance from the Exhibition Street frontage back east along the southern side of Sargood Lane. We recognise the advantage of an independent address, but it is not possible here, if the full façades on Exhibition Street and Flinders Street are to be retained. The only choice is an entrance through the heritage building. Although not ideal, we are prepared to recognise it as acceptable where it cannot be avoided. The point for present purposes however is that the separate address was advanced as a requirement when it was thought not to prejudice the client's proposal.

[211]

116. However, not all cases are as straightforward as that. There are cases where absolute preservation of everything might be theoretically desirable but practically self-defeating. A church or industrial building that is no longer required for its original purpose and which will not be used again for its original purpose, is likely to be lost altogether if it cannot be touched and cannot be made suitable for some other reasonable or economic use. A building that will not be used for its original purpose and cannot be used for any other purpose without some alterations, will not be used at all if permission is refused for alterations essential to a possible new use. If it is not used at all it is unlikely to be maintained. On the contrary it is likely to be neglected, abused by strangers and ultimately to fall into ruin and be lost by decay or other effects. This would be counter productive, from a heritage point of view. It is no doubt for this reason that the definition of conservation includes "any ... sustainable use of a place". Thus consideration (b) contemplates a degree of practical compromise. Where retention without change is not a practical possibility, and where it would ultimately lead to loss of that which is sought to be saved, then consideration (b) allows such an assessment to be made. Without it being said in reasons, it is obvious that this approach has been well recognised and applied in relation to many places on the register. In spite of this the Executive Director resists the idea of any such approach being adopted in relation to this proposal. That is so, although apparently a different approach might have been adopted in relation to this building for the purpose of some other proposal thought to be appropriate. We must assess this proposal, and decide whether a permit should be granted for it. The answer might be yes or no, or yes subject to conditions, but it is this proposal rather than some other imaginary one not actually applied for that must be assessed and granted or refused.

[242]

139. While it is true that the retention of one bay would hold up the facades, it would retain not just the facades but also 26% of the building structure. Facadism does not require the retention of structure to hold it up as can be seen by the way the Gertrude Street terrace was dealt with and, for that matter, the Commerce Building. A proposal that retains significant structure behind the façade is something more than facadism. We think it a rather biased exaggeration to describe this proposal in those terms. The retention of structure was more than for the purposes of holding up facades. It was also genuinely for the retention of part of the building. There is a legitimate question as to whether 26% is sufficient, in all the circumstances of this particular case, or whether something more or a lot more or all of the building ought to be retained. The genuineness of the intention to retain more than a façade can be seen by recommendations of expert advisers on behalf of the Applicant to retain two bays. It can also be seen by the recommendation, expressed in terms amounting to a requirement, to retain a return of building structure along the south side of the lane. It might be asked why consultants concerned about heritage issues insist on that point. After all, Sargood Lane is a minor "back of house" feature, and views into it are of minor significance. We take it that the insistence on this retention is part of the insistence that the proposal should not be mere facadism, but rather that it should retain the impression, and some of the actuality, of the three dimensional form of the building. It is the two dimensional aspect, and the appearance of falsity, that is a major part of the condemnation of facadism. This building, on its corner, with the Flinders Street and Exhibition Street façade set at right angles to each other demonstrates to all passers-by, the three dimensional structure of the building. The Flinders Street façade has height and breadth, but as soon as the viewer can see the Exhibition Street façade at the same time, the third dimension becomes apparent. Vice versa the same is true in relation to the Exhibition Street façade. If the viewer is north of the intersection of Exhibition Street with Sargood Lane, and can see down the lane to some extent, then the building might appear as a façade if the original structure stopped, say, half a metre from the Exhibition Street alignment. By retention of the building down the lane the three dimensions are retained for that lesser corner, just as they are for the major corner at the intersection of Flinders and Exhibition Street.

[437]

284. It will be recalled that, at the beginning of the discussion of heritage matters in these reasons, we referred to the phenomenon of a complex proposal like this one evolving over some time, even with suggestions arising in the course of the hearing. In this case the present plans, that is to say the certified plans and the M2 plans, were prepared without regard to a number of constraints that have since emerged, as well as a number of requirements that we have indicated we think necessary. Thus the basis upon which the current plans were prepared was deficient in quite a number of respects. For example, they were prepared on the basis that Spark Lane would be available for access purposes. In fact there are no rights to use Spark Lane, and the owner will not allow its use. We have indicated that we would require two bays of the existing building to be retained. This calls for a redesign of the basement carpark, and, together with the question of Spark Lane, requires a redesign of vehicle access arrangements. We agree with Mr Pitt that the interrelationship between the proposed tower and the retained building has not been satisfactorily resolved. There is a rather uncertain requirement in relation to a plaza which Dr Goad says should be glazed. We have no proposal in relation to how the retention, display and interpretation of columns of mushroom heads would be handled. A return of the northern wall of the existing building along the south side of Sargood Lane from the Exhibition Street frontage is now required. We have been discussing heritage considerations, however having regard to planning considerations further modifications are also required. We would require a reduction in the height of the tower to prevent its shadow reaching the north bank of the Yarra river. In the course of the hearing difficulties were encountered in relation to the orientation of some of the proposed apartments together with the arrangements of their windows, screens and balconies which, if left as depicted in the M2 plans, would unduly impinge on the privacy of Sargood House apartments. This list is not necessarily exhaustive. The point is, that the modifications involved are sufficiently complex, and in some cases far reaching, as to make it difficult to impose them adequately by permit conditions. We consider that the preparation of new plans is called for. This would not only enable a proper appreciation of the solutions proposed, but would also enable approval to be given on the basis of the new plans, if acceptable, or on the basis of the new plans with some limited extent of further modifications. As it is now, the extent of amendments and conditions to achieve them has become too complex and unmanageable. It is perhaps significant that Dr Goad said, under cross-examination by Mr Pitt, that more work was needed to be done on this proposal. We agree with him.

At a glance

Court

Decision date

Source

Judgment (440 paragraphs)

Staged Developments Australia v Minister for Planning, Heritage Victoria and Ors [2001] VCAT 1447 (29 June 2001)

Parties

Legislation Cited (2)