Tonkin v Rajendran [2002] VSC 128

Heritage Act 1995 - Parts 2, 7; sections 1, 15(b), 19, 64, 160, 161, 162, 163, 164, 166, 167, 168, 175, 176,

Sentencing Act 1991 - sections 110, 111

Klein v Domus [1963] HCA 54; (1963) 109 CLR 467

R v Anderson Ex p Ipec-Air [1965] HCA 27; (1965) 113 CLR 177

Sharp v Wakefield [1891] AC 173

Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746

2. This proceeding was brought by the plaintiff in his capacity as the Executive Director appointed under Part 2 of the Heritage Act 1995 ("the Act") for the purposes of the Act. The proceeding was commenced by originating motion on 25 July 2000, and relates to a building situated at 664-666 Riversdale Road Camberwell known as "the former Robin Boyd House". The Victoria Government Gazette of 2 October 1991 [1] records that on 1 October 1991 the Governor in Council amended the Register of Historic Buildings maintained under section 14 of the Historic Buildings Act 1981 ("the Historic Buildings Act"), by adding:

Historic Building No. 879 Former Robin Boyd House, 664-666 Riversdale Road Camberwell, to the extent of all the buildings known as the former Robin Boyd House, 664-666 Riversdale Road Camberwell and all land entered in the Register Book Certificate of Title Volume 6968 Folio 567 shown hatched on the plan endorsed by the Chairperson, Historic Buildings Council and held by the Director, Historic Buildings Council.

The Historic Buildings Act (which had replaced the Historic Buildings Act 1974) was repealed and replaced by the Act with effect, so far as here relevant, from 23 May 1996. By virtue of section 19 of the Act, the building remains on the Victorian Heritage Register established under the Act ("the Register") where it is described as "Heritage Place Number 879".

7. No copy of the hatched plan referred to is before the Court, and it is not clear whether the whole of the land in the Certificate of Title referred to is in fact included on the Register, but nothing turns on this. The Certificate of Title shows an irregular block of land ("the land") with a frontage of 82 feet 3 inches to the south side of Riversdale Road, a width at the rear of 50 feet, and depth of some 200 feet on the eastern boundary and 270 feet on the western. Robin Gerard Penleigh Boyd ("Robin Boyd") became registered as the proprietor of an estate in fee simple in the land on 31 January 1947, and in that year he caused to be built on the land a house which he designed. On 10 June 1959 the property (i.e. the house and land) was transferred to David Kevin Ferrier and Heather Annette Stickland, who in turn transferred it on 5 January 1973 to the defendants. (The names of the transferees shown on the title are Arumagam Rajendran and Maria Rajendran, but it is not in issue that those names refer to the defendants.) Thus the property was acquired by the defendants in 1973, but was not placed on the Register until October 1991, although an interim preservation order under section 40 of the Historic Buildings Act affecting the property had been served in October 1990.

10. In 1947 Robin Boyd caused to be built on the land a house which he designed ("the 1947 building") which is a long narrow building, running north and south, on the west side of the land. In 1952 he added another bedroom to the south which was subsumed in the 1947 building ("the south bedroom") and also built an extension to the north, between the 1947 building and Riversdale Road ("the 1952 extension"), which is described in [8] below. The area between the 1947 building and the 1952 extension was used as a carport before the building of the 1952 extension and later as a study and is referred to as "the link". It is convenient to refer to the 1947 building (including the south bedroom), the link and the 1952 extension collectively as "the house". In 1975 the defendants caused to be constructed a two-storey addition to the south of the 1947 building ("the 1975 building").

13. The main purposes of the Act are set out in section 1 as:

(a) to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects; and

(b) to establish a Heritage Council; and

(c) to establish a Victorian Heritage Register.

19. This proceeding is brought under section 168 of the Act, which appears in Division 3 of Part 8 of the Act, reading:

(a) a reference to a contravention of this Act includes a threatened or an apprehended contravention.

(b) a reference to this Act includes a reference to a permit, consent or exemption under this Act or the conditions of a permit, consent or exemption under this Act.

167. Remedy or restraint of contraventions of this Act

The Heritage Council, the Executive Director, the Director of Public Prosecutions or any other person may bring proceedings in the Supreme Court for an order to remedy or restrain a contravention of this Act.

(a) this Act has been contravened; or

(b) this Act will be contravened unless restrained by order of the Court -

the Court may make any order it thinks fit to remedy or restrain the contravention.

(2) Without limiting the powers of the Supreme Court under sub-section (1), an order made under that sub-section may -

(a) if the contravention of this Act comprises the construction of a building or the carrying out of works, require the demolition or removal of the building or works; or

(b) if the contravention of this Act has the effect of altering the appearance or physical nature of a place or the state of land on which there is a registered place or registered object, require the restoration or reinstatement, so far as is possible, of the place or object to the condition it was in immediately before the contravention.

(3) An order made under sub-section (1) has effect and may be enforced as if it were an order or judgment made by the Supreme Court under the Supreme Court Act 1986.

39. In the originating motion the plaintiff (alternatively "Mr Tonkin"), seeks an order under section 168(1):

"for the reinstatement of the former Robin Boyd House at 664-666 Riversdale Road, Camberwell, being Heritage Place Number 879 on the Victorian Heritage Register, so far as is possible to the condition it was in before 4 May 1999. In particular, an order requiring the following works to be undertaken: . . ."

The works there listed may be summarised as follows:

2. Making good the brickwork to the head of those walls.

3. Reinstating the roof framing, ceiling framing and roof cladding "in their original form".

4. Collection of roof water and discharge to effective stormwater drains.

5. Replacement of cracked or broken glass "in sympathy with the original construction".

6. Installation of ceiling lining and eave lining "in sympathy with the original construction".

7. Reinstatement of floor coverings, bathroom fittings, fireplace, partitions, wall linings, light fittings, window coverings and associated items "in sympathy with the original construction".

9. Repair of all windows and doors, including locks and fittings.

53. However, at the outset of the hearing Mr Dreyfus, for the plaintiff, handed up a form of order ("the draft order") containing a clause setting out inter alia the works which he indicated were now sought by his client in lieu of those specified in the originating motion. That clause reads:

1. The defendants must perform the following works to the satisfaction of the Executive Director:

(1) Remove earth at north end to below damp course level and clear away accumulated rubbish.

(2) Remove existing floor coverings, lightly scabble slab surface and install a non-structural levelling screed with an average thickness of 35 mm.

(4) Remove all loose bricks and re-lay top courses of brickwork.

(5) Rake out and re-point existing crack in east wall.

(9) Frame up roof in 170 x 45 mm F17 hardwood rafters.

(10) Grout into wall cavity @ 900 mm centres, 10mm diameter galvanised threaded rod 1200 long tie-downs.

(11) Fix battens, 75 x 38 mm graded to give 300 mm high ridge.

(12) Fix roof deck of 12mm external grade ply, shaped to form eaves gutters.

(13) Lay three-ply roofing membrane and top with selected pebble finish.

(15) Supply and install copper and iron firebox and flue to detail.

(17) Install metal deck roof, fit two (2) downpipes, and reconnect drain.

(18) Reconnect services: sewerage, hot and cold water services, stormwater, telephone and power.

(19) Repair or replace all window and doorframes and sashes, and replace broken glass.

(20) Provide and install lighting fixtures in ceiling to detail and exhaust fan.

(22) Reconstruct bathroom with pan, basin, cistern, taps etc, and tiling to detail.

79. While both the originating motion and the draft order appear to require the reinstatement of the whole house, the proceeding was conducted on the basis that what is being sought is solely the reinstatement of the 1952 extension. The following extract from the conservation management plan (as to which see [9] below) provides a convenient description of what is there referred to as "the northern section of the 1952 addition", but which clearly refers to the 1952 extension, at the time when it was built.

The form of the northern section is essentially a spare rectangular box (although cut away at the corner because of setback requirements) with two opposing blank walls and two punctuated with openings. The sharp functional elements are transmuted and re-interpreted to reflect Boyd's theoretical position. There is face brickwork, a pitched roof (albeit minimal slope), and the louvred windows to north were a strong external textural component - creating patterns of light and shade

The northern section of the addition also relates to the 1947 building for the glazed south wall allows for the appreciation of the courtyard-like space crated under the pergola [presumably a reference to the link]. The blank east wall is treated boldly and represents a displacement of the original arrival format Boyd had established with the blank north wall of the earlier phase of building. The low pitched gable roof with exposed rafters sliding over adjacent volumes as they are staggered along the site, is re-applied in this part of the building as was the strip of clerestory lighting at the junction between different roof heights. . .

Internally, the northern section of the 1952 additions was divided into a large living area with a central copper fireplace, and a bedroom with small ensuite bathroom by a large cupboard. This cupboard contained a bar and kitchenette but did not reach to the ceiling. The finishes were sleek and planar but the choice of materials also resonates with textural qualities, as had the earlier part of the building. The ceiling of plaited plywood interspersed with glass lighting panels provides a strong statement but it again provides a pattern of light and shade. A variety of colours were used in this area (silvered black on the west wall, a pale shade on the east wall), and the different sized doors of the cupboard were a hot pink (smaller door) and blue (larger door). The concrete floor is covered in Semtex black vinyl tiles. Vinyl tiles were not widely employed until the late 1950s.

The experimental interests of Boyd are indicated in the 1952 northern section of the additions by the employment of a reinforced concrete raft slab. This represents an early use of this type of technology in the domestic sphere, as it was not widely used with houses until the 1970s, although it had been used in the commercial sphere for some time.

86. Oral evidence was given for the plaintiff by Mr Tonkin himself and by Mr Simpson, a design engineer, Mr Holt, a geotechnical engineer, Mr van der Molen, a structural engineer, and Mr Beeston and Mr Clerehan, both of whom are architects. Oral evidence was given for the defendants by the secondnamed defendant ("Mrs Rajendran"), and by Mr Schofield, Mr Hodkinson, and Mr Haworth, all of whom are structural engineers, and Mr Buckle and Mr Ervin, both of whom are geotechnical engineers. There was extensive documentary material in evidence, including a conservation management plan ("CMP") of some one hundred pages (including appendices) prepared by Mr Beeston's firm and dated 4 September 2001. The CMP was prepared at the expense of the plaintiff pursuant to a consent order made on 12 February 2001 in proceeding No 5090 of 2001, brought by the defendants against the plaintiff and discontinued on 1 October 2001. While the CMP has no formal status, it constitutes a useful source of background information. The Court was assisted by a visit to the subject property.

90. The jurisdiction of the Court to make an order under section 168(1)(a) is a jurisdiction to remedy a contravention of the Act which the Court is satisfied has occurred. Section 168(1)(b) is not relevant to this proceeding. The two provisions of the Act on which the plaintiff relies as having been contravened are sections 64 and 160. Section 64 reads, so far as relevant:

1500 penalty units or imprisonment for 5 years or both.

(4) Sub-sections (1), (2) and (3) do not apply to works or activities -

(a) carried out in accordance with a permit issued under this Part; or . . .

(c) for which the Heritage Council has determined that a permit is not required pursuant to Part 3 or this Part.

Section 67 provides that a person may apply to the Executive Director for a permit to carry out works in relation to a registered place, and the succeeding provisions deal with matters concerning such applications, including appeals to the Heritage Council established under the Act and applications to the Victorian Civil and Administrative Tribunal ("VCAT"). It should be noted that one penalty unit equals $100, and that the stated penalties are maximum penalties [2] . The potential penalty for breach of section 64 is thus substantial.

109. Section 160 reads:

160. Registered place [or] object - disrepair and failure to maintain

The owner of a registered place or registered object must not-

(a) allow that place or object to fall into disrepair; or

(b) fail to maintain that place or object to the extent that its conservation is threatened.

Subsequent sections provide for the service of notices to show cause why works should not be carried out (section 161), orders for the carrying out of works (section 162), applications to VCAT for review of such orders (section 163) and penalties, similar to those provided in section 64, for failure to comply with such orders (section 164).

117. Mrs Rajendran, in evidence, disputed that there had been a contravention of the Act. However, it is not in issue that the roof of the 1952 extension, as well as the internal partition, was removed on 4 May 1999 on her instructions and under her supervision, in circumstances which she described in her evidence**.** The 1952 extension is part of a registered place (see [1] above). No permit under the Act had been issued for either of these changes, and no determination made under section 64(4)(c). I am satisfied (and Mr Porter, for the defendants, did not attempt to argue otherwise) that the removal of the roof and the partition constituted contraventions of section 64 of the Act. A temporary cover has since been placed over the building, and the walls braced.

120. In her affidavit of 4 March 2002 Mrs Rajendran deposes that in late 1998 and in 1999 she was aware that the property was listed on the Register and that a permit would be needed for alterations and additions to the house. In cross-examination she agreed that since 1990 she had been well aware that she was not permitted to carry out works on the land without a permit. Thus the question of whether the offences created by section 64 are offences of strict liability does not arise.

123. The hearing proceeded on the assumption that if I were satisfied that the removal of the roof constituted a contravention of section 64, I would then be in a position to make any order sought by the plaintiff with a view to reinstating the condition of the building prior to the removal, on 4 May 1999, that order being the relief sought in the originating motion. However, the power of the Court under section 168(1)(a) is limited to the making of an order to remedy a contravention of the Act, as to the existence of which the Court is satisfied, and section 168(2) does not extend the limits of that power. Thus if I am to make an order to remedy any defect in the building not constituted by what I have found to be the contraventions of section 64, I must be satisfied that that defect results from some other contravention of the Act.

126. It is not possible for a contravention of the Act to have occurred before 23 May 1996, the date on which, so far as here relevant, the Act came into operation. Mrs Rajendran conceded in evidence that at some unstated time she oversaw the removal of the plumbing fittings from the 1952 extension, and that she had consented to having the central fireplace removed and stored on site in about 1994 or 1995 because the space occupied by the fireplace was needed for the storage of furniture. Those actions would have constituted contraventions of section 64, had the Act been in force at the time when they occurred. However, I cannot find, on the evidence before me, that the plumbing fittings or the fireplace were removed on or after 23 May 1996, and accordingly I cannot be satisfied that their removal constitutes a contravention of the Act.

129. Section 160 has, since 23 May 1996, required the defendants, as the owners of the 1952 extension, not to allow it to fall into disrepair and not to fail to maintain it to the extent that its conservation is threatened. To the extent that the 1952 extension may be said to be in disrepair, or its conservation to be threatened, as a result of any matter unrelated to what I have found to be the contraventions of section 64, I cannot make an order to remedy that situation unless I am satisfied that it necessarily arose on or after 23 May 1996, so as to be a contravention of section 160. The only evidence as to the state of the building at any time before that date is that of Mr Clerehan, Mr Tonkin and Mrs Rajendran. Mr Clerehan was a friend of Robin Boyd and visited the land when the house was being built in 1947 and on many occasions later, including occasions during the construction of the 1952 extension. He was consulted by Mrs Rajendran in approximately 1989 and visited the property then. However, his evidence was brief, and not of assistance on this issue. Mr Tonkin's evidence on this point was limited to the production of photographs taken at the time of the initial registration in 1991. It is not possible from those photographs to draw any conclusion as to the precise state of the building at that time (save, of course, that it had a roof).

132. The evidence of Mrs Rajendran contained manifest inconsistencies (see for example [46], [47], [49] and [50] below), and she appears to have found it difficult to answer questions directly. I do not regard her as a satisfactory witness, and I could not rely on her unsupported evidence as to any matter apparently in her favour. She stated in evidence that the crack in the east wall of the 1952 extension had been repaired on a number of occasions from 1974 to 1998, by grouting and painting. However, in a letter to the plaintiff on 10 November 1999 she stated that "the cracks in the walls were so in 1973 and show little or no change". She also said that some major maintenance had been carried out to the 1952 extension in 1974 and 1975, well prior to registration, but that she had done very little repair work, except for painting, since late 1991. She said that she had a gardener who regularly scraped away dirt which washed down to the level of the door, but that she had done nothing since 1990 towards finding a permanent solution to that problem. She mentioned various comments which had been made to her by tradesmen about the state of the 1952 extension, and on which she said that she had relied, but none of those people were called to give evidence.

135. The evidence before me, such as it is, does not enable me to be "satisfied", as required by section 168, that any of the items of disrepair or failure to maintain in respect of which the plaintiff seeks an order under that provision, were allowed to occur on or after 23 May 1996 so as to constitute a contravention of section 160. Further, the plaintiff made no submission that any particular item of failure to maintain could be said to have effect "to the extent that [the building's] conservation is threatened" so as to fall specifically within section 160(b).

138. The effect of section 168(1) is thus that the Court is empowered to make any order it thinks fit to remedy the contraventions of the Act constituted by the removal of the roof and the partition from the 1952 extension. Considering the several items in the list of works sought by the plaintiff which is set out in the draft order (see [7] above), items (3) to (7), (9) to (14) and (17) would appear to be intended to remedy those contraventions, allowing for the fact that, if the walls are to support the roof, as they supported the original roof, the restoration of the brickwork in the walls is a prerequisite to the replacement of the roof.

141. Mr Clerehan, whose report formed the basis of the list of items set out in the draft order, said in response to a question asked of him in cross-examination "The whole theme of this is to get the building fixed up and do a very low level conservation job." However, the Court does not have power to make orders to "get the building fixed up" or to "do a conservation job"; its only relevant power is that conferred on it by section 168(1)(a), namely to make an order to remedy a contravention of the Act which it is satisfied has occurred.

145. Nevertheless, within the limits of that power the Court has a wide discretion to "make any order it thinks fit". The specific powers set out in section 168(2) do not in any way limit that discretion. The exercise of a wide discretion of that kind was considered by Dixon CJ in Klein v Domus [3] :

This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

Similarly, Kitto J said in R v Anderson Ex p Ipec-Air [4] :

It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v. Wakefield [1891] A.C. 173, at p. 179.

The purpose of the Act

152. When the exercise of the discretion here in question is considered according to the justice of the case, as indicated by the passages cited above from Klein v Domus and Ipec-Air, it will be apparent that there are a number of relevant considerations to be taken into account. To begin with, the main purpose of the Act, as appearing from section 1 (see [4] above), is:

to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects.

The cultural heritage significance of the house

157. A number of factors have been found to justify the house being determined to be a place of cultural heritage significance and thus to be registered as a "heritage place", initially pursuant to the Historic Buildings Act and now to the Act. It is appropriate to set those factors out first, as well as other statements expanding on them.

160. Mr Tonkin deposed that the Register provides the following statement of the significance of the heritage place (that is, the house):

The former Robin Boyd House at 664-666 Riversdale Road, Camberwell, (previously known as 158 Riversdale Road) was built in 1946-7. It has historical and architectural significance for the following reasons -

* The house is the earliest known extant residence designed by the renowned Australian architect Robin Boyd.

* It is unique in being a house that Boyd designed for his personal use and occupied and extended over a period of twelve years.

* This strong association with Boyd is particularly significant because Boyd was an important architect and a prominent social critic and commentator. He played a major role in the development of architecture and architectural thinking in Victoria for four decades.

* The house through its alteration is important in that it demonstrates the architectural development of Robin Boyd from the early period of his career in the 1940s when he expounded his theories on "Victorian Regionalism" to the emerging "Internationalism" of the 1950s.

* The building is a seminal work which can be regarded as the prototype of the post-war Modern Victorian house. It extended the leading architecture of its time and strongly influenced an emerging group of architects.

* The house is of architectural significance in that it demonstrates innovative design with regard to response to site, informality in planning, flowing spatial arrangements, innovative use of materials and incorporation of built-in features. These are all aspects of domestic design which have now become common.

The Robin Boyd house is a residence built for [Robin Boyd's] own young family in the suburbs of Melbourne. It demonstrates the application of professional architectural expertise to small homes. It introduced concepts which have now become common in domestic design but were innovative at the time such as flowing spatial arrangements, use of built-in features and the staged growth of small houses. Conservation of this property is important because it demonstrates the characteristics promoted by Robin Boyd in a unique way and for himself and his family. Robin Boyd stands as a dominant figure in Victoria's architectural history. The house is an important part of the cultural history of Victorians. It is of the utmost importance that it be conserved.

Prior to the registration of the heritage place on the Register of Historic Buildings photographs were taken for the Historic Buildings Council's records. The photographs show that the 1952 northern extension was in a habitable condition, the ceiling was lined, the free standing copper fire place remained in its original location and the windows had curtains.

176. The 1952 extension and its significance are discussed as follows in the CMP [5] :

The original house was extended by additions Boyd designed in 1951 to the north and south, which were completed in 1952. It was designed and built after Boyd had been to Europe on the Haddon Travelling Scholarship. While there was an easing of building shortages by this time, there were still restrictions and building was expensive. . . .

While these additions have often been described as Boyd coming to terms with the International Style it is not a clear ideological leap as he integrates the additions with the earlier phase although the treatment is different. In the article `A New Eclecticism' he hints at what might appear to be a duplicitous approach to architectural design where he says that organic and functional, as stylistic approaches are not necessarily mutually exclusive. He qualifies however his approval of an `eclectic' approach by saying that the aim was to achieve ultimate simplicity of means. Boyd thus defends an architect's (especially his own) right not to be tied to any particular type (organic/regional versus functionalism), but rather suggests they should have the freedom of expression to produce a design which is apt. He himself achieved a variety of responses throughout his career. . . .

181. On 6 February 2000 Mr Clerehan wrote to the Heritage Council in the context of the appeal referred to in [47] below. His letter, more readily comprehended by the non-architectural reader than are some of the other statements here quoted, reads, omitting formal parts:

I regard [the house] as one of the most significant houses of the post-war period for many reasons including the following.

It was the first complete dwelling designed by one of the past century's most important architects. Furthermore, being for his own occupancy, increases its significance. In his first book, the seminal Victorian Modern (published as he moved into the house) Boyd mentions the especial importance of an architect's own house, where no client has to be considered, as a measure of the designer's skill. The Boyd House incorporates many if not most of that era's architectural aspirations and features, all of which were to be eventually incorporated into advanced house design as the post-war age progressed. Its very existence showed that an innovative, non-traditional approach could render a site which had previously been considered useless, capable of being built on.

Its very siting and its planning and construction made use of many then-unknown and untested techniques and materials. These include the integrated carport, split-level and open planning, slab floor, clerestory lighting, cork tiling, the Windowwall, the constructed vanity and the Storagewall. The Malthoid/Solomit/Caneite combination roof-ceiling was unique. In most instances these elements had to be assembled from scratch rather than ordered from a catalogue, as was to eventually happen.

All this was attained within the stifling wartime control of "12 and a half squares" of floor area.

I sincerely hope that on February 17, the Heritage Council will affirm and assign this house the place in history which an earlier generation (which can remember its impact and influence) believes it wholeheartedly deserves.

189. The CMP includes a statement of the significance of the house taken from the Camberwell Conservation Study, which reads:

Architecturally, considered by Boyd's contemporaries as the prototype post-war Modern house which took up new ideas about spatial flow, both inside and outside the building, revelling in the minimalism required by the war's materials conservation programme and the challenges posed by the near impossible site: of State and national importance.

Historically, the first house designed for, and by, Australia's best known architectural critic, writer and post-war designer, Robin Boyd; of State and national importance.

194. A report by Ms Mullens, an architect employed under the Act, was prepared in August 1999, in the context of an application by Mrs Rajendran for a permit to demolish the 1952 extension. In that report Ms Mullens said that the 1952 extension was an integral component of the significance of the heritage place, and assessed the demolition of that extension as substantially reducing the significance of the heritage place in the following ways:

* It would no longer demonstrate Robin Boyd's thinking in the late 1940s early 1950s of the designing for staged growth of a house;

* The significant interior of the 1952 extension which epitomised the finer points of "modern" design at the time would be lost;

* The early use of the concrete slab for residential use would be destroyed.

201. I have given thought to the question as to whether the carrying out of the works described in the items of the draft order which are listed in [19] above will restore the 1952 extension to a state where it will maintain the significance which led to its being included on the Register with the status of part of a heritage place. It is clear that before 4 May 1999 the 1952 extension had been altered since its original construction. An example is the imposition of a metal roof on top of the original roof with a Malthoid surface which is described by Mr Clerehan in [27] above, although that particular alteration was already in place at the time of registration of the building in October 1991. I note that in evidence Mr Clerehan expressed the hope that there would not be a metal deck roof installed, although the recommendation for a metal deck roof appears in his report from which the items listed in the draft order derive.

204. However, section 15(b) of the Act provides that it is a function of the plaintiff to make recommendations to the Heritage Council for the registration of places. The plaintiff seeks the performance of the works set out in items in the draft order. I must assume, from the listing of those items by the plaintiff, on the advice of Mr Clerehan who has a long familiarity with the building (see [16] above), that in so far as they relate to the roof and partition, being the only matters with which the court is concerned, those items in his view constitute a sufficient restoration of the 1952 extension to preserve its status as part of the heritage place. That being so, I am not concerned to go behind that view and enquire into the details of the previous state of the 1952 extension or as to which of its components were significant in the decision to include it on the Register, and whether the carrying out of the works sought will restore that significance. Accordingly, I am satisfied that the purpose of the Act will be advanced by the making of an order for the carrying out of the works listed in [19] above.

208. By far the greater part of the hearing was devoted to evidence relating to the reinforced concrete raft slab on which the 1952 extension was constructed, and the future of that slab. Clearly this is a matter to be taken into account in the exercise of the discretion conferred upon the Court by section 168. If the slab is unlikely to be able to bear the weight of the building and a reinstated roof for more than a short time, if at all, so that reinstatement of the roof would be futile, that is a consideration relevant to the question of whether the defendants should be required to carry out the works sought by the plaintiff which the Court has power to order.

211. It is not in issue that the slab was laid on ground built up with badly compacted fill, which has settled since the slab was laid, or that the slab has become deformed and cracked since it was laid in 1952, or that the walls have become deformed and cracked**,** or that the technology of reinforced concrete slabs has developed considerably since 1952.

214. Turning first to the witnesses for the plaintiff, Mr Holt, a geotechnical engineer, investigated the soil under the slab. His opinion, expressed in his report of 19 February 2002 was that "ongoing settlements within the fill materials are likely now to have little [e]ffect on future performance" and that "the foundation arrangement, as existing, has performed relatively well given the circumstances and conditions which prevail on this particular site. There is no reason, given appropriate design, that it cannot be enhanced and the structure maintained with the recognition of some ongoing maintenance." In cross-examination he said that in this kind of filled land there would be a large amount of settlement early on, but which would then diminish: "The settlement in the first year will be the same as the settlement in the next ten years and that will be the same as the settlement in the next hundred. That's based on research in tips." The performance of the slab was reasonable for a structure of this type on filled land.

217. Mr Simpson, a consulting engineer, made several inspections of the slab and prepared several reports. In his final report, he gave his opinion that "the existing floor slab and perimeter brick walls may be retained and re-used in the repaired building," and that the consolidation settlement "would taper to be insignificant after 50 years," and concluded "the existing building shell can be stabilized and made good in its current shape by the remedial works proposed in our earlier reports." That last passage was a reference to his report of 11 May 2000, in which he recommended works broadly similar to those sought in the originating motion, as well as temporary stabilisation and bracing of the walls, which at that stage had not been carried out. He said in evidence that his opinion was confirmed by the later report of Mr Holt.

220. Mr van der Molen, a structural engineer, was of the opinion that all of the settlement of the slab had taken place in the first five years of its life. He concluded in February 2002, "The slab does not seem to be in any distress and can be used as the foundation for the restored 1952 extension, if desired." However, he had recommended in August 2001 that "Further building activity, which invariably would entail installation of piles and the operation of other heavy construction equipment, should not be entertained. Equipment and heavy truck vibrations could cause additional settlement of the foundation slab of the 1952 extension." He accepted in cross-examination that some settlement, however minimal, would continue.

223. Of the defendants' witnesses on this issue, Mr Buckle of Hardrock Geotechnical Pty Ltd, a consulting geotechnical engineer, investigated the filling and predicted in his report of 30 April 2001 that there would be movement of the existing building foundations (presumably the slab) due to settlement of the filling and the effect of the clay component of the filling, and that it would be difficult to predict the magnitude of the movement. He did not agree with the conclusion of Mr Holt that the slab had "performed relatively well" and he considered that Mr Holt did not have enough information to conclude that ongoing settlement within the fill were likely to have little effect on future performance.

226. Mr Ervin, also a consulting geotechnical engineer, concluded in his report of 1 March 2002 that it was probable that settlement would continue to occur. It was probable that much of the settlement due to the building load probably occurred soon after construction, but he would expect that replacing the roof would lead to further settlement. Redevelopment of the site would alter the drainage characteristics and possibly impose additional stress on the fill. To avoid future settlement, it would necessary to underpin the slab to rock. He agreed in cross-examination that it would be possible to monitor the future movement of the slab, and to take remedial action, although at some cost. He considered it probable that settlement would continue to occur, but he could not say how much.

229. Mr Schofield is a consulting structural engineer. In his report of 5 July 1999 he recommended that the 1952 extension should be demolished, and any new structure in its place should have footings, such as steel screw piles, designed to allow for the deep fill and trees. In his draft report of 8 February 2001 he expressed the opinion that it would be uneconomical to undertake rectification measures that would make the 1952 extension free from future defects, and said that it was for this reason that he believed that "full demolition and reinstatement of new" should be considered. In cross-examination he said that the building could crack in the long term. It was put to him that that meant one or two decades, and he agreed, but said that there would be cracking and continued movement. He agreed that the greater part of the movement would have happened in the first few years after the slab was laid, but said that changes in the environment could affect the rate of consolidation. He was not happy to agree with the view of Mr Simpson that the existing slab and walls could be retained and reused in the repaired building.

232. Mr Hodkinson, another consulting structural engineer, concluded in his report of 11 May 2001 that the movement apparent in the building would most likely continue to occur for a very long time, perhaps ultimately resulting in the collapse of the brick walls. If the building was of no state significance it would probably be simplest to demolish it and construct a new building with appropriate footings. However, with appropriate remedial works the building would survive for future generations. He recommended that the existing beams stiffening the edge of the slab be supported off a pier and beam type system and that the slab itself also be supported by a beam type system below the slab. After Mr Holt's report was put to him he said that he now considered that the predicted future movement would be able to cope with the building. He agreed in cross-examination, on the basis of Mr Holt's report, that reconstruction of the 1952 extension on the present slab was a feasible proposition.

235. Finally Mr Howarth, another consulting structural engineer, in his report of 4 March 2002, concluded that a piling method should be used in order to underpin the walls, by the insertion of pairs of screw piles enabling strip footing to span between them under the slab. He was unable to estimate the likely extent of the future settlement of the fill, but was of the opinion that there was no conclusive evidence that it had ceased.

238. After consideration of the whole of that evidence, while it is clear that the future of the slab is difficult to predict, I cannot find, on the balance of probabilities, that that future is such that the reinstatement of the roof of the 1952 extension would be futile.

The position of the defendants as owners of the property

242. Dixon J in Swan Hill Corporation v Bradbury [6], was considering the discretion as to the grant or refusal of building permits which was vested in a municipal council. His Honour said:

But it does not follow that the by-law should be taken to mean that the council may withhold its approval of a proposal to build for any reason whatever or for no reason at all. The approbation of the council is made an essential condition of relief from a prohibition against building otherwise general and complete. But no one supposes that the object of so framing the clause was to make building an exceptional privilege lying in the special grace of the council. In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement.

246. In the present case, it is the Court which has been vested by statute with a wide discretionary power "to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good"; the common good being in this case the protection and conservation of a place of cultural heritage significance, as appears from section 1 of the Act. It cannot be thought that the justice of the case does not require the Court, in the exercise of that discretion, to take account of the position of the owners of the proprietary rights which conflict with the pursuit of the common good.

250. As has been said (see [1] and [2] above), the defendants purchased the house and land in 1973, the interim preservation order was served in October 1990, and the property was placed on the Register in October 1991. Thus the defendants are not in the position of owners who purchased a property already on the Register. On the contrary, they owned the property for seventeen years before it became affected by legislation relating to places of heritage significance. The service of the interim preservation order brought into operation the provisions of section 40 of the Historic Buildings Act, prohibiting the removal or demolition of the house or alteration of the house without a permit. The constraints imposed by the registration appear from section 26 of the Historic Buildings Act and on and after 23 May 1996, from sections 64 and 160 of the Act, cited above. Thus the service of the interim preservation order, and subsequently the registration of the building, placed significant limitations, albeit in the public interest, on the power of the defendants to deal with the buildings on their property.

253. The evidence of Mrs Rajendran is that the defendants have lived on the property from time to time, either in the house or in the 1975 building. At times the property has been let, at times it has been occupied by relatives of the defendants, and at times it has been vacant. They presently live in a house nearby which she owns. She said in cross-examination that it had been her longstanding intention to build a home on the land and to do so it was necessary to demolish the 1952 extension. However in her affidavit sworn on 4 March 2002 she deposes, "I deny that it was my intention to have the 1952 extension demolished at this or any other time". That statement made on oath is inconsistent with the lodging by her of the two applications for permits to demolish the 1952 extension which are described in [48] and [50] below.

256. The two affidavits of Mr Tonkin set out at considerable length the history of dealings between the parties, principally since the removal of the roof of the 1952 extension on 4 May 1999. Many meetings and much correspondence are described. On 15 July 1999 Mrs Rajendran applied for a permit to complete the demolition of the 1952 extension and construct a substantial addition, incorporating 5 bedrooms with servants' quarters, lap pool and living areas. The report of Ms Mullens on that application is summarised at [29] above. The application was refused, and on 3 March 2000 that refusal was confirmed by the Heritage Council on an appeal by Mrs Rajendran.

259. On 14 September 1999 Mr Tonkin issued a Notice pursuant to section 161 of the Act requiring Mrs Rajendran to show cause why specific works to repair the damage caused by the removal of the roof should not be ordered to be done. That Notice was superseded by a further Notice issued on 3 March 2000. On 12 May 2000 Mr Tonkin issued a Repair Order pursuant to section 162 of the Act, specifying works which in his opinion were necessary to prevent further deterioration in the condition of the heritage place, and ordering that they be carried out by 21 July 2000. The works were similar to, although not identical with, those described in the draft order. Sundry discussions and negotiations took place between the parties, but the Repair Order has not been complied with. If the owner does not carry out the works specified in the Repair Order within the prescribed time, section 165 of the Act empowers the plaintiff, with the consent of the Minister, to have the works carried out and recover the cost from the owner. However, the plaintiff has taken no action under that section.

262. On 25 July 2000 Mrs Rajendran lodged two further applications for permits, one being an amended version of that referred to in [47] above, and thus still involving the demolition of the 1952 extension, and the other being based on new plans which involved the retention of the 1952 extension. The first application was refused, and an appeal to the Heritage Council was withdrawn. In response to the second application a permit was granted, subject to conditions, and an appeal to the Heritage Council against the conditions was withdrawn. However, that permit has not been acted upon. Mrs Rajendran's several explanations in cross-examination for the failure to act upon that permit were "That permit had so many conditions attached to it that we didn't consider going further", "It was not viable, and besides I need to use the 47 house", and "I didn't consider what the restrictions were or the conditions. I just accepted my architect's advice that there were difficulties".

265. On 2 October 2001 Mrs Rajendran lodged another application for a permit similar to that lodged on 15 July 1999. That application was refused, and an appeal to the Heritage Council has been lodged against that refusal.

269. Sections 175 and 176 provide for the bringing of prosecutions for offences under the Act. No prosecution has been brought against the defendants in respect of the contraventions of section 64. It should be noted that the present proceeding is not a prosecution, and I do not consider that any component of punishment should enter into the exercise of the discretion vested in the Court by section 168. To say that is not to condone the action of Mrs Rajendran in removing the roof and the partition, or the failure of the defendants to comply with the Repair Order issued on 12 May 2000.

The cost of remedying the contraventions of section 64

273. Mr Woodley, a building costs consultant, was retained by the plaintiff to provide an estimate of the costs of reinstating the 1952 extension. His affidavit was before the Court, and he was not required to attend for cross-examination. His estimate of the total cost of the items sought in the draft order amounted to $75,868. The following items from the estimates set out in his report, totalling approximately $35,000, would appear to be relevant to the remedying of the removal of the roof and partition:

Rake out and re-point sections of cracked wall to east and west sides

277. Mrs Rajendran agreed in cross-examination that she, or companies which she controls, own other unencumbered properties. There is no other material before me as to the financial position of the defendants. I can perhaps infer from that lack of evidence that it was not considered appropriate that submissions should be made to the effect that their financial position was such that $75,868, the estimated total cost of the items sought in the draft order, would be an impossible burden for them. I am not in a position to draw any relevant inference from the decision of the defendants to incur expense in the defence of this proceeding.

280. Mrs Rajendran also agreed that she had not asked for financial assistance in the maintenance of the building. Part 7 of the Act establishes the Heritage Fund, from which financial and other assistance may be given by way of grant or loan to the owner of a registered place for the purpose of conserving any part of Victoria's cultural heritage (section 140). However, there was no material put before the Court as to the state of that fund, as to whether assistance is readily available and if so upon what conditions, as to whether assistance is means tested, or as to any other matter which would enable me to make any assessment as to whether assistance from that fund would be available to the defendants to reinstate the 1952 extension.

283. I am thus not in a position to take into account the actual or potential financial ability of the defendants to pay for the reinstatement of the roof and partition of the 1952 extension. Accordingly, it is not necessary for me to form any view as to whether that is a relevant consideration in the exercise of the Court's discretion under section 168, and I do not do so.

287. The submissions on behalf of the defendants related more to the history of the dealings between the parties than to the considerations relevant to the power of the Court to make the order sought, and the criteria for the exercise of the discretion conferred upon the Court by section 168 of the Act. It is clear that that history has not been happy; but that is not a matter relevant to the exercise of that discretion.

291. The recommendation of the author of the CMP in relation to the 1952 extension is in the following cautious terms:

Whether reconstruction is warranted is an important issue and must be considered in the light of an overall redevelopment strategy where an effective and balanced wholistic [sic] approach is taken to the site incorporating conservation objectives and the need for amenity of the owners/occupants.

Mr Porter relied on this recommendation, if I understood him correctly, to support an argument that the Court should make no order of the kind sought by the plaintiff, but that the whole issue should be left to be determined by the Heritage Council on the appeal referred to in [50] above, or subsequently by the plaintiff. However, the CMP has no formal status in the structure of this proceeding. Desirable as it may be to consider the decision in the light of an overall redevelopment strategy for the site, no document setting out such strategy has been put before me, and I must decide the application of the plaintiff on the material which I have. The absence of such a strategy does not appear to me to be a matter to be weighed very strongly when all of the considerations relevant to the exercise of the Court's discretion are being taken into account. This proceeding was commenced on 15 July 2000, and the CMP is dated 4 September 2001. Both parties have had ample time to prepare an overall development strategy had they considered it appropriate to do so.

297. Mr Porter also submitted that the defendants have never been certain as to precisely what the plaintiff required to be done in respect of the house. Whatever may have been the case in the past, as to which I make no finding, that submission is not relevant to the decision which I am asked to make now. While the details of the draft order do not go so far as to include full specifications of the works which are sought to be performed, they appear to me to be clear and unequivocal.

The condition of the 1952 extension before 4 May 1999

301. I accept the submission of Mr Porter that although the plaintiff seeks reinstatement of the house "so far as possible to the condition it was in before 4 May 1999", as claimed in the originating motion, the case for the plaintiff has not been focussed on the condition of the building before that date. A question also arises as to whether the expression "before 4 May 1999" in the originating motion was intended to read "immediately before 4 May 1999". However, it would appear to me that the inclusion of the specific items set out in the draft order, which makes no reference to the "condition it was in before 4 May 1999", is designed to override the generality of the originating motion and to indicate specifically what is now sought by the plaintiff. Similarly the references in the originating motion to the "original form" and "original construction" of the 1952 extension, I take also to have been replaced by the details in the draft order, in which those expressions do not appear. In any case, the power of the Court, as I have said, is a power to make an order to remedy a contravention of the Act which the Court is satisfied has occurred, and that power contains its own precision. On this issue I would refer also to what I have said in [30] and [31] above.

305. Mr Porter criticised the delay in preparation of the CMP, and referred to a number of passages in documents prepared for the plaintiff which referred to the desirability of preparing such a document. However, this submission has no relevance to the making of a decision under section 168.

309. Taking into account the purpose of the Act so far as it relates to the 1952 extension, and the evidence set out above as to the future of the concrete slab, and as to the position of the defendants as owners of the property, I find that it is an appropriate exercise of the discretion conferred on the Court by section 168 of the Act following the contraventions of section 64 to order that the defendants carry out, to the satisfaction of the plaintiff, the works described in items (3) to (7), (9) to (14) and (17) of the draft order. There was some consideration at the hearing of the other matters included in the draft order, and I invite submissions from counsel as to the terms of the order to be made and as to costs.

[2] sections 110 and 111 Sentencing Act 1991

[3] [1963] HCA 54; (1963) 109 CLR 467 at 473

[4] [1965] HCA 27; (1965) 113 CLR 177 at 189

[6] [1937] HCA 15; (1937) 56 CLR 746 at 758