Fantinel v City of Norwood, Pay & St Peters & Kensington Residents Assincnam No ERD-01-1118 [2002] SAERDC 9 (18 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

17/12/2001 to 18/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to demolish Local Heritage Place - Historic (Conservation) Zone - Residential - refused by Council - appeal - dilapitated condition of building - whether "irredeemable" - engineering and heritage evidence suggests building recoverable - relevance of economic considerations - proposal in conflict with relevant provisions of Development Plan - appeal dismissed and decision of Council confirmed.

• Development Act 1993 , referred to.

Representation

Appellant: B FANTINEL
In Person

Respondent: CITY OF NORWOOD, PAYNEHAM & ST PETERS
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Respondent: KENSINGTON RESIDENTS ASSOCIATION
Advocates: MR P SKELLON

ERD-01-1118

Judgment No. [2002] SAERDC 9

18 January 2002

B FANTINEL

v

CITY OF NORWOOD, PAYNEHAM & ST PETERS

and

KENSINGTON RESIDENTS ASSOCIATION INC

(ERDC No. 1118 of 2001)

[2002] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By Development Application dated 23 February 2001, Mr B Fantinel ("the appellant") sought provisional development plan consent from the City of Norwood, Payneham & St Peters ("the Council") for the demolition of an existing dwelling at 63 Maesbury Street, Kensington. On 13 August 2001 the Council resolved to refuse the subject application, its reasons for refusal being as follows:

"1. The proposal is contrary to Zone Objective 1 in that the proposal does not conserve and enhance the historic and residential character of the relevant policy areas of the zone.

2. The proposal is contrary to Zone Principle 7 in that existing buildings originally constructed prior to 1920 (and prior to 1940 in ... Kensington 1 ... Policy Areas) and which contribute to the desired character of the Zone or relevant Policy Area should not be demolished. Sites in the Kensington 1 ... Policy Areas which contain buildings which contribute to the desired character of the relevant policy area shown on Fig HC(R)/1.

3. The proposal is contrary to Council Wide Objective 20 where buildings which are of historic significance, particularly Local Heritage Places should be conserved."

2. By Notice of Appeal dated 3 October 2001, Mr Fantinel appealed against the decision of the Council. A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not result in a compromise or settlement, and accordingly the matter proceeded to a hearing, at which time the appellant represented himself, while the Council was represented by Mr G Leydon, of counsel. The Kensington Residents Association Inc, which had made a representation to the Council opposing the proposed demolition, and which was subsequently joined as a party to these proceedings, was represented by Mr P Skellon.

3. The Court conducted a view of the subject land and its locality and received a number of exhibits. It heard sworn evidence from the appellant, Mr P Harmer, a qualified structural engineer, Mr M Butcher, a qualified architect and heritage conservation expert, Ms S Manley, a qualified town planner in the employ of the respondent Council, and Mr P Skellon, a member of the Kensington Residents Association Inc.

The Subject Land

4. The subject land lies on the northwestern side of Maesbury Street, within the suburb of Kensington. It has a frontage to Maesbury Street of 14.25m, including a free and unrestricted right of way over a portion of land 5.21m in width. Excluding the right of way, the width of the allotment is 9.05m at the front and 11.52m at the rear. The depth of the allotment averages approximately 38.0m, producing a total area of approximately 390m2, excluding the right of way, and approximately 539m2 including the right of way.

5. The land is more particularly described as number 63 Maesbury Street, Kensington, being Allotment 35 in Filed Plan 138915, Certificate of Title Volume 5749 Folio 270.

6. Situated on the land is a small single-storey four-roomed masonry cottage. On the evidence of Mr Butcher, it dates from the early 1840's. The building is identified as a Local Heritage Place in Table KeN/1 within the Historic Conservation Zone in the Development Plan for the City of Kensington and Norwood dated 15 February 2001. It is also identified as a Contributory Item in Figure HC(R) 1 as contributing to the desired character of the Historic (Conservation) Zone.

7. Mr Fantinel resides next door at number 65 Maesbury Street. He purchased the property at 63 Maesbury Street in 1974, and rented it out for some time, but in more recent years, on his evidence since approximately 1987, the house has been vacant. Ms Manley, in her evidence, described the building thus:

"The building is recognised as a typical example of the Victorian architecture being built in the area during Kensington's settlement period, between 1840's and 1850's. In terms of main architectural features, the current building maintains the four main original rooms, with a rear lean to addition. From the street the cottage displays a hipped corrugated roof, chimney and concave verandah to the front. The dwelling is set low in comparison to footpath level and set back further from the road in comparison with other dwellings in the locality. A lemon tree in the front garden obscures a reasonable portion of the dwelling. Upon closer inspection, the front façade has two windows, a door and an opening that appears consistent with a removed air-conditioner. The rear lean to displays no particular architectural merit. Inside, the building is currently inhabitable as there are portions of the floor missing and openings in the walls. There is some graffiti on the internal walls. The original wooden shingles beneath the galvanised roof remain and are visible looking from inside the left front room."

The Locality

8. The locality defined by Ms Manley, the only qualified town planner to give evidence, was limited to those properties which were within sight of the subject land. Accordingly, her locality extended some 4 allotments south of the subject land and 3 allotments north of it along Maesbury Street.

9. The locality is characterised by detached dwellings, including a number of contributory heritage items, and a number of residential flat buildings. To the northeast of the subject land is a public park adjoining a former church, now converted to a dwelling. Most dwellings are single-storey, but opposite the subject land is a number of two-storey residential flat buildings. Maesbury Street is a local street which runs in a northeast-southwest direction between Kensington Road and Hill Street.

Background

10. The subject application to demolish the dwelling on the subject land is the second such application. The appellant lodged an earlier application to demolish in August 1997. That application was subsequently refused on 15 November 1999. The appellant appealed that decision to this Court in November 2000. His appeal was dismissed as being late and leave to institute the appeal was refused. Subsequent to that decision, the application the subject of these proceedings was lodged.

Assessment

11. The subject land is located in the Historic (Conservation) Zone - Residential as depicted on Map KeN/4 in the Development Plan for the City of Kensington and Norwood dated 15 February 2001, and more specifically, is located within the Kensington 1 Policy Area of that zone, as depicted on Map KeN/6 in the same Plan. The greater part of the suburb of Kensington falls within the same zone and the same policy area.

12. Demolition of a Local Heritage Place is included within the definition of "development" in the Development Act 1993. Being listed as neither a complying nor a non-complying form of development within the Historic (Conservation) Zone - Residential, the consent of the Council is required for the subject proposal.

13. The relevant objectives for the Historic (Conservation) Zone - Residential are as follows:

Historic (Conservation) Zone - Residential

"Objective 1: Development which conserves and enhances the historic and residential character of the relevant policy areas of the zone."

"Objective 2: Development accommodating a variety of housing types which are compatible with the historic character of the relevant policy area."

14. The text of the Development Plan under the heading "Kensington One Policy Area" provides a description of the historic and residential character of that policy area:

"Development in the Kensington 1 Policy Area should conserve and maintain the existing character created by buildings, settings, street patterns and natural features which together characterise the residential urban village of Kensington. The principal historic development periods of the Policy Area are 1838 to 1860, 1861 to 1880, 1881 to 1900, 1901 to 1915 and 1916 to 1939. The buildings which represent those periods include early buildings of pise, stone or brick construction, larger Victorian style brick and stone buildings, Federation era brick and stone buildings and bungalow-styled buildings of the post-1918 period, and these buildings are complemented by a range of settings typical of those periods. Development should have particular regard to the character of the immediate locality of the subject site."

15. Relevant zone principles are as follows:

"Principle 3: Development should conserve, maintain, enhance and reinforce the existing streetscape of the relevant policy area and the historic character of individual buildings, exhibiting architectural and roof-forms, design, street frontage widths, materials, colours, fences and landscape settings which complement without effecting the reproduction of historic buildings or their detailing. New buildings should be designed to maintain the prominence of existing historic buildings."

"Principle 4: Development within the zone should restore and rehabilitate existing historic buildings and may incorporate compact extensions to buildings of a scale, bulk and external appearance which is sympathetic to the existing historic character."

"Principle 7: Existing buildings originally constructed prior to 1920 (and prior to 1940 in the Kent Town 1, Norwood 4 and Kensington 1, Kensington 2 and Kensington 3 Policy Areas) and which contribute to the desired character of the Zone or relevant Policy Area should not be demolished. Sites in the Kensington 1, Kensington 2 and Kensington 3 Policy Areas which contain buildings which contribute to the desired character of the relevant policy area shown on FIG HC(R)/1."

16. Other Development Plan provisions of particular relevance are:

Council Wide

"Objective 16: Identification and conservation of places, areas and items within the city of cultural, environmental, social, historic or architectural significance and promotion of public awareness of such places and items."

"Objective 17: Development which conserves and reinforces the historic integrity of the city and is compatible with the desired future character of the appropriate zone or policy area."

"Objective 20: The conservation and enhancement of land, buildings and structures which are of aesthetic, architectural, historic, social, economic, cultural, aboriginal, archaeological, technological or scientific significance, particularly those identified in Table Kensington and Norwood/1 - Local Heritage Places."

"Principle 45: Development should not significantly impair the character or nature of buildings or sites of architectural, historical or scientific interest, sights [sic] of natural beauty, or items of heritage significance."

"Principle 46: Development should not compromise or impair the character of integrity of buildings or sites afforded Local Heritage status or State Heritage status as identified in Tables KeN/1 and KeN/2."

"Principle 47: Nominated Local Heritage Places, designated in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should not be demolished other than in the most extreme circumstances, and unless:

(a) the place or any designated significant element of the place is so structurally unsound as to be unsafe and irredeemable; and

(b) the extremely poor state of the structure is verified and supported by appropriate independent qualified expert advice."

"Principle 49: Nominated Local Heritage Places as designated in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should be restored, rehabilitated, altered and added to, including all designated associated development on the site, in an appropriate manner, which:

(a) preserves, respects and complements the original integrity, character, scale, street frontage, architectural style, design, roof form and pitch, window and door openings and specific features, materials, colours and finishes of the existing identified places; and

(b) maintains or reinstates the integrity and prominence of the original street frontage and significant streetscape and other aspects and features; and

(c) integrates contemporary improvements and achieves opportunities to the rear or the side behind the main building alignment, but without any compromise to the original character, street prominence, siting, boundary setbacks, significant aspects and heritage value of the place; and

(d) does not detrimentally affect the character, setting, heritage value, integrity or function of development, including land division."

"Principle 50: Development of any Local Heritage Place contained in Table KeN/1 or any State Heritage Item as designated in Table KeN/2 should have regard to the heritage value of the place and to the character of the locality within which the development is to be undertaken."

"Principle 51: Local Heritage Places identified in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should:

(a) not be totally demolished, particularly facades that face public roadways;

(b) be restored and rehabilitated in accord with their original style, design and features;

(c) not be detrimentally affected in terms of character or function by development, including land division;

(d) integrate improvements without compromise to the character of the original building;

(e) not be altered except if the alterations do not involve the removal of any significant elements of the hereto places' street elevation."

"Principle 55: In respect to Local Heritage Places listed in Table KeN/1 and State Heritage Items as designated in Table KeN/2 the extent of control and protection applies only to all exterior parts of the original main portion of the subject building (exterior walls, facades and roof) and contiguous elements (verandahs and balconies, including balustrading and lacework, doors and windows and their frames, original materials and finishes and similar features) and otherwise with particular attention to certain parts or to other additional elements where specifically designated in the Description of the Local Heritage Place in Table KeN/1."

Metropolitan Adelaide

"Objective 34: The preservation of buildings or sites of architectural, historical, or scientific, interest."

17. Zone Principles 3, 4 and 7 and Council Wide Principles 45, 46, 47, 49, 51 and 55 collectively place considerable emphasis on the retention of the external fabric of Local Heritage Places. Principle 47 in particular provides that listed Places should be demolished only in the most extreme circumstances and where:

"(a) the place or any designated significant element of the place is so structurally unsound as to be unsafe and irredeemable; and

(b) the extremely poor state of the structure is verified and supported by appropriate independent qualified expert advice."

18. The only expert evidence as to the structural condition of the building was given by Mr Harmer, who is a qualified structural engineer and a consultant building surveyor. Mr Harmer's brief was to provide advice as to whether the building was "so structurally unsound as to be unsafe and irredeemable".

19. Mr Harmer summarised his evidence thus:

"Whilst the masonry walls are significantly effected [sic] by damp they are considered to be structurally sound. In order to make a determination that the building is unsafe and irredeemable it is considered that the masonry walls would need to have suffered significant structural failure and currently be in a unsafe condition. This was not found to be the case. Remedial measures are available to address the damp in the masonry walls.

In relation to the other structural elements in the building, the roof, ceilings and floors were found to be effected by either damp or termite infestation to varying degrees. Some sections of the roof, ceilings and floors are considered structurally unsound. Rectification measures are however available for all of these structural elements. The replacement of roof, ceiling and floor framing is in fact a common practice during the renovation of old buildings.

In conclusion, the requirement of Principle 47 of the Kensington and Norwood Development Plan that the building be 'so structurally unsound as to be unsafe and irredeemable' was not found to be satisfied."

20. The evidence of Mr Butcher, a qualified architect with considerable expertise and experience in heritage conservation, was that the subject building contributed significantly to the historic character of the locality because:

(a) it was one of the oldest houses in the street;

(b) it was an attractive building architecturally;

(c) it was a good example of an early pioneer's cottage; and

(d) its siting and setback added historic interest to the streetscape.

21. Mr Butcher's view was that the cottage could be easily redeemed or repaired and ungraded to present day standards. He illustrated this in a series of plans attached to his statement, which plans entailed the repair and upgrading of the existing cottage and the construction of a rear extension to create a residential development about 160m2 in area. On his evidence, the work involved would include repairing and recladding the roof, repairing the walls and putting in a damp-proof course, replacing the floors and ceilings, repairing the front window, rewiring, repainting and a new front door.

22. In the course of the view, Mr Skellon pointed out a number of examples of buildings of an age comparable to that on the subject land, and, on his evidence, formerly in a comparable condition, which had been rehabilitated successfully and were now occupied as dwellings.

23. The evidence of Mr Fantinel was that he lacked the means to upgrade the building in the manner suggested by Mr Butcher. He had placed the property on the market at one time but had been unable to attract a purchaser in the absence of approval to demolish the cottage on the land. Mr Fantinel advised the Court that after he purchased the property, he had carried out some upgrading work and then let it to tenants for a period of approximately 12 years. In 1987, as a consequence of progressively worsening salt damp problems, a Housing Improvement Order was imposed by the South Australian Housing Trust, which order had the effect of fixing a maximum rental payable for the property until such time as drainage and ventilation problems which had given rise to salt damp were rectified. Since that time, said Mr Fantinel, he had spent no money on the property other than to paint the front. He had taken this decision, Mr Fantinel said, because at the time the Housing Improvement Order was imposed on the property, he had concluded that the cost of rectifying the problems giving rise to the order was too great relative to the income that the property could generate.

24. The principal thrust of Mr Fantinel's evidence was that maintenance by the Council of a requirement that the cottage on the subject land be retained had the effect of substantially devaluing his property. It was his opinion that, as a vacant allotment, the land was readily saleable for a sum in the order of $200,000. He would be unable to achieve this sum, he said, were there a requirement that the cottage be retained.

25. Mr Fantinel may well be correct, although Mr Skellon was of the view that there was a ready market for the property in its present condition. In assessing the proposal against Council Wide Principle 47, however, I am not of the view that evidence of a diminution in the value of a Local Heritage Place, by comparison with the value of the underlying land as a cleared site (and there is no such evidence before me in this matter) would be sufficient of itself to demonstrate that a Local Heritage Place was so run down as to be "irredeemable". There may be circumstances in which the evidence put to the Court is sufficient to demonstrate that the costs entailed in restoration of a run-down Local Heritage Place are such that they could never be recovered, in which case the building concerned might be considered "irredeemable" in the absence of a purchaser willing to undertake restoration as a labour of love, rather than as an exercise in economics, and having regard to those provisions of the Development Plan which require development to be economic, as well as orderly (Metropolitan Adelaide Objective 1 and Council Wide Principle 2). However, there is no evidence in this matter to demonstrate that the costs of restoration could not be recovered.

26. The building, in my observation, is in poor condition. On the uncontested evidence of Mr Harmer, however, it is recoverable. Significant parts of the fabric would have to be replaced, including the roof, the ceilings, the floors, and the front door. Nevertheless, the evidence of Mr Butcher was that the amount of original building fabric which could be retained, being external walling, chimneys, and windows, was sufficient, having regard to Council Wide Principle 55, to justify the building's retention, both on the basis of its significance as one of the earliest buildings in the Kensington area and on the basis of its contribution to the character of the locality and the Kensington 1 Policy Area.

27. Having regard to all the evidence, I am not satisfied that the criteria set out in Council Wide Principle 47 have been met, such as to justify demolition of the cottage on the subject land. On the evidence of Mr Harmer, the building may presently be unsafe in terms of the condition of the floorboards and ceilings. However, it is not, on his evidence, irrecoverable, nor has there been any countervailing expert evidence which would satisfy Principle 47(b).

28. I have considerable sympathy for Mr Fantinel. His frustration with the processes whereby his property became a Local Heritage Place is understandable. However, the entire thrust of his evidence in this matter was premised on the assumption that listing of the cottage at 63 Maesbury Street was justifiable only in the event that the value of the property was not affected negatively by listing. It was that assumption which led him to conclude that it was uneconomic to restore the cottage, based on a further assumption that the underlying value of the land at 63 Maesbury Street should be a constant, with or without the cottage. It may be that the effect of a requirement to retain the cottage is to depress the value of the land on which it stands, by comparison with its value as a cleared site, but the evidence before me is insufficient for any conclusion to be drawn on this question. However, even were the evidence sufficient to demonstrate that listing had had that effect, there is nothing in the Development Plan which would suggest any connection between diminution in the value of the subject land and the cottage thereon becoming "irredeemable" in terms of Council Wide Principle 47.

29. The relevant provisions of the Development Plan speak with considerable force in favour of the retention of Local Heritage Places, other than in the circumstances set out in Council Wide Principle 47. On the evidence, those circumstances do not apply, and accordingly, I have decided that the decision of the Council to refuse approval to demolish the subject cottage was correct, and should be upheld.

30. There will be an order accordingly.

31. My decision in this matter, as it must be, has been based squarely on the relevant provisions of the Development Plan. Those provisions, however, while they may be called in aid to prevent demolition of the subject cottage, cannot secure its ongoing maintenance, and the evidence of Mr Fantinel is that he lacks the means to have such maintenance carried out. That being the case, the Council may wish to consider entering into arrangements with Mr Fantinel for the expenditure of Council funds on essential maintenance works, directed towards securing the cottage and ensuring that further deterioration does not occur. Such an arrangement could provide for recovery of those funds when the subject land is sold.