MICHELMORE v THE BAROSSA COUNCIL & ANOR [2011] SAERDC 5 (9 February 2011)

Last Updated: 11 February 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MICHELMORE v THE BAROSSA COUNCIL & ANOR

[2011] SAERDC 5

Judgment of Her Honour Judge Cole, Commissioner Green and Commissioner Koukourou

9 February 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Third party appeal against the granting of development approval for the demolition and removal of a railway station building listed in Development Plan as a Local Heritage Place - building in state of disrepair - relevant provisions of Development Plan considered - decision of the Council affirmed - appeal dismissed.

Development Act 1993, referred to.

Lakshmanan & Anor v City of Norwood, Payneham & St Peters [2010] SASCFC 15, considered.

MICHELMORE v THE BAROSSA COUNCIL & ANOR
[2011] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. A development application was made on behalf of Genesee and Wyoming Australia Pty Ltd (Genesee) to the Barossa Council (the Council) in June 2008, seeking development approval pursuant to the Development Act 1993 (the Act) for the demolition and removal of the Nuriootpa Railway Station building (the Station building) on Railway Terrace, Nuriootpa. The Council processed the application as an application for a Category 3 kind of development, and seven representations from third parties were received by the Council. The Council granted development approval to the application, subject to four development plan consent conditions and one building rules consent condition, on 2 June 2010. One of the third party representors, Mr Michelmore, appealed to this Court against that grant of development approval.
2. At the hearing of the matter, Mr Michelmore represented himself and gave evidence. He also called Mr Barrington, an architect, and Mr Russo, who is also an architect. Ms Shute appeared as counsel for the Council and called Mr Sarma, a town planner, Mr Hosking, an architect and Mr Williger, a building surveyor. Mr Botten appeared as counsel for Genesee and called Mr Hollitt, the property and access manager for Genesee, Dr Bell, a historian, Mr McBean, a structural engineer and Mr Knight, a quantity surveyor.
3. The parties took the Court on a view of the land.

The Land

4. Allotment 90 (FP 217572) Railway Terrace Nuriootpa comprises 2.3 hectares (the land). It is owned by the Minister of Transport and leased to Genesee under a ground lease, the 65 year term of which commenced in 1997. In addition to the station building, the land contains railway lines, two platforms, a standpipe, an oil store, a concrete water tower and water column, a station sign, a gate, an informal carparking area and vegetation. There is also a shed, which was referred to in evidence variously as a cream shed or a cream can shed. We will refer to it as the cream can shed. The station building is visible from Railway Terrace and presently has a dilapidated appearance.

The Development Plan

5. The applicable Development Plan in relation to Genesee’s development application is the consolidation for the Barossa Council of 3 April 2008 (the Development Plan). The land is in the Light Industry Zone. “Nuriootpa Railway Station” is listed in Table Baro/12 in the Development Plan as a Local Heritage Place. The listing records that the “section 23 criteria” was a,c,d, which we take to mean that the listing was made pursuant to s 23(4)(a),(c) and (d) of the Act, which provides:

S 23(4) A Development Plan may designate a place as a place of local heritage value if—
(a) it displays historical, economic or social themes that are of importance to the local area; or
...
(c) it has played an important part in the lives of local residents; or
(d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or

6. The objectives for the Light Industry Zone are as follows:

Objective 1: A zone primarily for light industry, service industry and storage, warehousing and depot facilities.
Objective 2: Development which is compatible with surrounding activities, particularly those in adjoining zones or areas of mixed use.
Objective 3: A high standard of development and amenity at interfaces with adjoining residential areas and external roads.
Objective 4: Redevelopment for industrial uses that results in the more efficient use of land within the zone.

7. The most directly relevant provisions of the council wide section of the Development Plan are the provisions which deal with built heritage. Objectives 86 to 90 in the council wide section are as follows:

Objective 86: Recognition, protection and promotion of the distinct cultural heritage of the Barossa Valley including the origin of its early settlers, patterns of development, architecture and strong association with agricultural and viticulture activities, which in combination present significant economic opportunities.
Objective 87: The identification, conservation and enhancement of land, buildings and structures, and their settings, which are of aesthetic, architectural, historic, cultural, social, economic, archaeological, geological, technological or scientific value.
Objective 88: The conservation, enhancement and maintenance of areas of architectural, historic and cultural significance and value through the use of:
(a) Historic (Conservation) Zones;
(b) Historic (Conservation) Policy Areas; and
(c) the identification of Contributory Items;
such that the unique historic character of the place, locality and the Council area is reinforced.
Objective 89: The conservation, enhancement and maintenance of the integrity of places of identified State and local heritage value by:
(a) the conservation and sympathetic development of such places; and
(b) complimentary development adjacent to such places;
such that the unique historic character of the place, locality and the Council area is reinforced.
Objective 90: Facilitate the conservation, enhancement and maintenance of buildings and structures of architectural, historic and cultural heritage value through their continued use or adaptive re-use for an economic purpose such that the integrity of the place is maintained.

8. Principles of development control (PDC) 318 to 321 provide:
   318. In respect to Local Heritage Places listed in Table Baro/12 the extent of control and protection applies to all exterior parts of the main portion of the subject building, such as exterior walls, facades and roof, and contiguous elements such as verandahs and balconies, including balustrading and lacework, doors and windows their frames, original materials and finishes and similar features, and other additional elements as specifically described that may affect the heritage value of the place.
   319. Local Heritage Places listed in Table Baro/12 should not be demolished or removed, all or in part, part unless:

(a) that portion of the building to be demolished or removed would not diminish the historical significance of the place;
(b) it can be demonstrated that the structural condition of the place is seriously unsound and cannot be rehabilitated; and
(c) the replacement development is of a scale and character compatible with the area and/or balance of the place in terms of materials, form, scale, and fenestration, and is designed to a high functional and architectural standard.

320. Local Heritage Places listed in Table Baro/12 should be restored, rehabilitated, altered and added to 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;
(b) maintains or reinstates the integrity and prominence of the original street frontage and significant streetscape and other aspects and features;
(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 by development, including land division.

321. Development on properties adjacent to a Local Heritage Place should afford recognition to and respect the heritage value, integrity and character of the Place, without necessarily replicating its historic detailing and should:

(a) not be undertaken if it is likely to detract by way of design, external appearance or standard of construction from the heritage value and integrity of the heritage place;
(b) complement the external form, massing, fenestration, rhythm, colours, and texture of materials, of the heritage place;
(c) be consistent with the overall height and proportion of surrounding buildings;
(d) have a roof shape and pitch consistent with adjacent buildings; and(e) be consistent with the siting and setback of adjacent buildings.

The Facts

9. There was some difference in opinion in the evidence as to when the station building was built. Estimates ranged from 1910 to 1913. Dr Bell’s evidence was that the station building was built in accordance with drawings of a standard design for a “Passenger Station Building” for small country towns. Those drawings were dated 1913, and, on that basis, Dr Bell thought that the early part of the station building was probably built in 1913. Mr Barrington thought that it was probably built in 1911. The early part of the station building comprised a ticket office and a waiting room, with a women’s toilet attached. The platforms, oil store, concrete water tower and water column probably date from about 1911. The cream can shed was built in 1932, and the present crane was placed on the site in 1962. In 1945 the station building was extended, with the addition of a parcels office and a storeroom, which were built on to the western end.
10. The station building was used for the purpose for which it was built until 1968, when passenger services to the Barossa Valley by rail ceased. From 1998 to 2003, the railway line on the land was used for the Adelaide to Barossa Wine Train, which ran three times per week. It may be that passengers sometimes alighted from this train at Nuriootpa, though the terminus for the train was at Angaston. Since July 2000, Genesee has operated one train per day from Penrice (Barossa Valley) to Osborne (metropolitan Adelaide). This train provides rail haulage for Penrice Soda Holdings Ltd, and passes through the Nuriootpa Station yard twice every day; at about 6am and at about 11am. It may be that the station building was used for some administrative functions to do with the railway until about 1992, when it was closed. The station building was leased for the purposes of a youth group centre called “Track 4” from about 2000 until 2004. The station building has not been used for any authorised purpose since, though it is plain that it has harboured vandals and graffitists. Genesee has no present use for the station building and does not envisage that it will ever have a use for the station building in the future.
11. Mr Russo described the station building in this way, in his statement:

The building is primarily timber framed and the walls are clad externally with horizontally timber boarding, except for the lean-to-toilet section to the east, which is galvanized iron framed. The roof is galvanized iron. The roof framing is timber trusses at irregular intervals. Door and windows are timber framed.

12. The station building is presently in a state of disrepair. The building has been extensively vandalised and adorned with graffiti. Much of the electrical wiring has been removed. Rainwater tanks, guttering and downpipes have been removed. The floor in the booking office has been damaged by fire. Sections of wall cladding have been kicked out, and windows and doors have been damaged or destroyed. The station building has sustained damage from termites and wood fungi. The roof has been infested with pigeons, and the ceiling supports a thick layer of pigeon droppings. The asbestos sheeting which lined the ceiling and walls of the wet area has been damaged.
13. Mr Russo, Mr Williger, Dr Bell, Mr Knight and Mr McBean met prior to the hearing. They prepared, for the Court, a report of that meeting, which was tendered, setting out points of agreement and disagreement among them. The report usefully reflects the state of the station building and aspects of the experts’ view on what would be required for its rehabilitation, so we will set it out in full:

POINTS OF AGREEMENT
The experts in attendance were able to agree the following matters (should it be decided to rehabilitate the building):

1. That the building requires a new stormwater collection and disposal system including new guttering, downpipes, and site drainage, together with perimeter bitumen paving falling away from the structure.
2. That earthworks are required to the perimeter of the building. The general surrounding ground level must be lowered to prevent timber framing from making direct contact with the soil, and to improve underfloor ventilation.
3. That the site requires treatment to kill any residual termite infestation and that an active termite monitoring and baiting system be installed. It was noted that no current termite activity was identified by the experts, however the inspections were generally non-invasive and of a visual nature only, and that ongoing attack could therefore not be ruled out.
4. That termite barriers should be introduced around the building perimeter and to all internal stumps.
5. That the asbestos clad amenities area located at the Eastern end of the building should be demolished by suitably qualified personnel and removed from the site.
6. That for issues of public safety, a secure perimeter fence should be immediately erected.
7. That the two ends of the building have been severely damaged by attack from termites; fungi; weathering and acts of vandalism, the aggregate effect of which is that they are no longer considered structurally sound.
8. Whilst not able to agree on the specific scope of works required to rehabilitate the building, the experts were able to agree that the cost of such rehabilitation would be in the order of $400,000.00 to $500,00.00. The lower bound being based on an estimate of $330,000.00 prepared by Mr Russo, to which the cost of suitable fencing, perimeter bitumen paving and professional fees have, with Mr Russo’s consent, been added. The upper bound being at the lower end of the cost estimate prepared by Mr Knight.

POINTS OF DISAGREEMENT
The experts were unable to reach agreement of the following:
1. Extent of ceiling replacement required:
Mr Russo agrees that the ceiling / roof area is and [sic] extensively contaminated with pigeon waste. He believes that the pigeons should be removed, and the ceiling space cleaned and professionally fumigated. He acknowledges that some of the ceiling will need replacement during this exercise, but the extent of replacement required is unlikely to be extensive.
Mr McBean and Mr Williger are of the opinion that the many years of accumulated pigeon waste will have thoroughly impregnated the matchboard timber ceiling, and that fumigation alone will not completely remove the existing biohazard for future building occupants. They recommend that the ceiling be completely replaced with new materials.
2. Adequacy of existing timber footing to Eastern (older) half of the building:
Mr Russo believes that having undertaken the actions noted above under Points of Agreement items 1, 2, 3 and 4 there will be no need to remove the existing hardwood timber footings.
Mr McBean proposes that the existing timber footing be upgraded to reinforced concrete similar to that used in the 1945 Western addition. Mr McBean believes this is necessary to ensure future termite attack is prevented.
3. Extent of demolition and inspection required to verify structural adequacy:
Mr Russo is of the opinion that the central portion of the building remains structurally sound. He proposes that selected areas of wall lining and flooring be removed for careful inspection in order to determine the extent of termite damage, but that the primary structure remains largely unaffected.
Mr McBean and Mr Williger believe that on the basis of the observed damage that there is a high probability of significant latent damage to the timber structure throughout the building. As such they strongly recommend that the entire building be disassembled for detailed inspection in order to verify ongoing structural performance of the building.
4. Extent of demolition required at ends:
As noted under Points of Agreement item 7, the ends of the building are severely damaged and considered unsound.
Mr Russo is of the opinion that these areas are in need of substantial upgrade which could be undertaken without demolition.
Mr McBean and Mr Williger are of the opinion that these areas are so badly damaged that they will require demolition and reconstruction with new materials.
ADDITIONAL COMMENTS

1. Dr Bell noted that if the building were to be opened to the public at some future time, safe access to the building would need to be provided across the active railway lines. This was likely to take the form of traffic gates and a pedestrian crossing, the cost of which could be substantial and would be additional to the rehabilitation estimates.
2. Dr Bell also noted that a large proportion of the building’s fabric would need to be replaced in the process of rehabilitation, and that the finished product would be about one-third built in 1913, one-third built in 1945 and one-third built in say 2011.

Local Heritage Listing

14. The “Nuriootpa Railway Station” was added to the list of local heritage places in Table Baro/12 in the Development Plan on an interim basis on 3 April 2003, and then on a permanent basis on 25 March 2004. This listing was made on the basis of a recommendation made by McDougall & Vines in the Barossa Council Heritage Review in 2001. The relevant assessment sheet prepared by McDougall & Vines was provided as part of Mr Barrington’s statement. It says:

ASSESSMENT: The Railway Station at Nuriootpa was part of the line from Gawler to Angaston which was completed in 1911. The Nuriootpa Railway Station comprises a complex of buildings including a weatherboard station building and corrugated galvanised iron shed with barrel roof. The station is now used as the terminus for the Adelaide to Barossa Wine Train, which makes use of one set of tracks; the other lines are no longer in use. The shed is also unused and is infested with pigeons. The station building has a simple gable roof form, and the weatherboard has been recently painted. There is also a substantial reinforced concrete water tower and associated water outlet at the track side for refilling steam train boilers.
STATEMENT OF HERITAGE VALUE: The Nuriootpa Railway Station and associated structures is an important element in the representation of the development of railway transportation links through the Barossa during the early years of the twentieth century.
RELEVANT CRITERIA: This Railway station complex fulfils criteria a, c and d under Section 23(4) of the Development Act 1993 as a place of local heritage value.
(a) This building displays historic, economic and social themes of importance to the development of the local area.
(c) This building has played an important part in the lives of local residents.
(d) This building displays design characteristics and construction techniques typical of the development of the local area.

15. At the time of that report, the station building was in reasonable condition, and was in use by “Track 4”. The “corrugated galvanised iron shed with barrel roof” referred to was present on the land. However, that shed was removed from the land in March 2001, prior to the local heritage listing. The evidence before us suggests that the Adelaide to Barossa Wine Train did not, in fact, use Nuriootpa as a terminus, but it certainly went through the station, and probably stopped there from time to time.
16. We accept the evidence of Dr Bell that the removal of the barrel rooved shed diminished the value of the Nuriootpa Railway Station as a local heritage place. It emerged in the evidence that, since 1911, the land has undergone numerous changes in relation to the structures on the land and their use. This is not an unusual state of affairs. However, where the role of a building as an element of a larger complex of structures is an important consideration in its value as a local heritage place, and significant recent changes have occurred to that complex of structure (particularly adverse changes, such as demolition), then the building’s heritage value will be reduced as a consequence.

Planning Assessment

17. The provisions of the Development Plan which relate to local heritage places are obviously relevant to an assessment of the planning merits of the proposed demolition of the station building. In approaching the application of the relevant provisions of the Development Plan to this application, we bear in mind the decision of Kourakis J (with whom White J agreed) in Lakshmanan & Anor v City of Norwood, Payneham and St Peters[1]. At paragraph 45 of his judgment, Kourakis J said:

It is well accepted that principles of development control are guidelines. An application for development must be assessed against those principles. On occasions, perhaps even commonly, developments will advance the objects of some parts of the development plan but be inconsistent with others. In that case, a planning judgment must be made as to the merits of the proposed development.

18. The development application in Lakshmanan sought development approval for the demolition of a local heritage place which had been flooded and which was vulnerable to flooding in the future. In discussing the application of the local heritage provisions of the relevant Development Plan to the development application, Kourakis J said:

An inquiry into the heritage value of a Local Heritage Place is not conducted by way of collateral challenge to the designation of the place by the Development Plan. To the contrary, the inquiry is undertaken for the purpose of determining the weight to be given to that listing. The inquiry is not much different to the assessment of the weight to be given to other competing principles of a Development Plan. In the case of a Local Heritage Place, an assessment of its relative heritage importance is necessary to determine whether to depart from the principles which protect it. The selection of a Local Heritage Place is necessarily a process of fact and degree. The listing itself is not challenged by inquiring where a particular place falls in the range of all Local Heritage Places which have qualified for listing.

19. In the present case, we accept that the station building is of some local heritage value. We take into account the evidence of Mr Michelmore as to the importance of the railway to Nuriootpa in the past, and, in particular, in the years immediately following 1911. Mr Barrington placed some emphasis upon the idea that the plans used for the early part of the station building were used for the railway stations in other country towns, so that for a time there were more than ten railway stations with the same basic design, albeit with minor variations. Nuriootpa is the only one which remains. As Dr Bell pointed out, however, the building extension in 1945 diminished the value of the station building as a member of that particular group of buildings. In his report entitled “Nuriootpa Railway Station: Assessment of Heritage Value”, which was tendered in evidence, Dr Bell said that there are in existence a number of other timber railway stations in South Australia, two of which, Port Elliot and Angaston, are listed on the South Australian Heritage Register. The Port Elliot railway station building is a timber building, but its listing hinges on its role as the terminus of Australia’s first railway, built from Goolwa to Port Elliot in 1854. Dr Bell said that the Angaston station is a timber building with essentially the same floor plan as Nuriootpa station, but with more elaborate gables, verandahs and chimneys, and with a more intact complex of buildings around it. We accept Dr Bell’s evidence that the Nuriootpa station building lacks both the historical associations and the physical integrity demonstrated by the Pt Elliot and Angaston railway stations. Dr Bell said, in his report, that the Nuriootpa railway station does not meet the criteria for the South Australian Heritage Register pursuant to the Heritage Places Act 1993. He said:

It is not from an early period, is of no architectural significance, was never an important station nor the scene of significant event, is in a dreary setting and is by no means intact. Even if the Nuriootpa station yard had remained miraculously intact to the present, the complex would be of very little heritage value. However, many elements of the former complex are now missing, and what remains consists of isolated fragments in very poor condition.

20. In terms of function, Dr Bell pointed out that the station building, in its present layout, was only used for the purpose for which it was built from 1945 to 1968.
21. Dr Bell acknowledged that different criteria apply to the assessment of whether a building should be listed on the South Australian Heritage Register from the criteria which apply to the assessment of whether the building should be listed as a local heritage place. Whilst accepting that the station building is the subject of a local heritage listing, Dr Bell related his assessment of the station building to the criteria for the listing of a local heritage place in s 23(4) of the Act, which we have quoted above. Dr Bell did not consider that the station building displays aesthetic merit, design characteristics or construction techniques of significance to the local area, so it does not meet the criteria in s 23(4)(d). We agree. It was Dr Bell’s opinion that, to the extent that the station building displays historical, economic or social themes that are of importance to the local area (s 23(4)(a)) and has played an important part in the lives of local residents (s 23(4)(c)), it has done so at the lower end of the scale of those places which could be considered to be of local heritage value. Again, we agree.
22. On the basis of Dr Bell’s evidence, which we accept, we determine that the local heritage value of the station building is at the lower end of the scale.
23. The Development Plan clearly seeks the conservation, enhancement and maintenance of buildings of local heritage value. Council wide Objective 87, 89 and 90, and council wide PDCs 311 and 320, all of which are quoted above, make it quite clear that it is desirable for local heritage places to be retained, restored and reused. The only circumstances in which demolition should be contemplated are set out in PDC 319, which is set out above. It was argued on behalf of Genesee that the station building can be demolished consistently with PDC 319 (b), because “the structural condition of the place is seriously unsound and cannot be rehabilitated”. There was no argument that there should be a replacement building.
24. The report of the meeting of experts set out above bears on this question. It is clear that the eastern and western end of the station building are no longer structurally sound. It is clear that the building is unsafe and unusable in its current condition. We accept the evidence of Mr McBean and Mr Williger that it would be imprudent to rehabilitate the building without undertaking a detailed inspection to determine the extent of the damage done by the termite attack, the weather damage and the vandalism, and that such an exercise would require the substantial disassembly of the building. We accept the evidence of Mr McBean that much of the fabric of the station building would need to be replaced, were it to be restored. Mr Michelmore believes that the building, in its current condition, cannot be said to be “seriously unsound” within the meaning of PDC 319(b), because much of the framework of the building (apart from the ends), and a considerable proportion of the flooring may be salvageable. We reject this argument. On all of the evidence, we determine that the structural condition of the station building is seriously unsound, and cannot be rehabilitated within the meaning of PDC 319(b). Any rehabilitation of the station building would involve such a degree of interference with the building, and involve the use of new materials to the extent that the value of the building as a local heritage place would be nugatory.
25. It seems to us that no planning purpose would be served by insisting upon the retention of the station building. It is of no use to Genesee, which holds a long term lease over the land. Witnesses for the appellant came up with various ideas about how the station building could be put to use, but there is no evidence at all that anyone wishes to put those ideas into practice. The location of the station building, next to the railway line, issues relating to vehicular access and the zoning of the land all pose obstacles to the reuse of the station building. Most significantly, the experts agreed that the cost of rehabilitation of the station building would be in the order of at least $400,000. We accept the evidence of Mr Knight that an identical, new building would cost substantially less than that. In our assessment, there is no realistic prospect that the station building will be rehabilitated or reused. In its present condition, the station building diminishes the amenity of the locality and poses a threat to public health and safety.

Summary and Conclusion

26. The station building is a local heritage place, but it is at the lower end of the order of value for such places. The Development Plan seeks the conservation, enhancement and maintenance of local heritage places. However, the Development Plan also acknowledges that where the structural condition of a local heritage place is seriously unsound, and the place cannot be rehabilitated, then removal may be considered. Having regard to the condition of the station building, the cost of rehabilitation, the effect of rehabilitation on the local heritage value of the building, our assessment that there is no prospect of any realistic proposal for the re-use of the building, and the fact that the building presently diminishes the amenity of the locality and poses a threat to public health and safety, we determine that the development application warranted approval. The decision of the Council will be affirmed. The appeal will be dismissed.

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[1] [2010] SASCFC 15