Swanbourne Estate Development Joint Venture and City Of Nedlands

[2008] WASAT 274

SWANBOURNE ESTATE DEVELOPMENT JOINT VENTURE and CITY OF NEDLANDS [2008] WASAT 274

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 274
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:247/2008	Heard:	4, 5 AND 6 NOVEMBER 2008
Coram:	MR D R PARRY (SENIOR MEMBER) MR J JORDAN (MEMBER) MS R MOORE (SENIOR SESSIONAL MEMBER)	Delivered:	19/11/08
No of pages:	25	Judgment Part:	1 of 1
Result:	Outline development plan and development application refused
Category:	B
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Parties:	SWANBOURNE ESTATE DEVELOPMENT JOINT VENTURE CITY OF NEDLANDS
Catchwords:	Town planning Outline development plan Development application Heritage conservation Swanbourne Hospital, formerly Claremont Hospital for the Insane Place listed in State Heritage Register and in local planning scheme Place has exceptional cultural heritage significance Adaptive re-use Proposal includes conversion of most heritage buildings, demolition of some heritage buildings and construction of five­level above basement building Heritage Council supports proposal Significance of Heritage Council's support Whether proposal is generally in accordance with development plan referred to in local planning scheme Development plan states that existing heritage buildings are to be retained and converted to residential Whether discretion available in relation to heritage places to vary maximum building height standard should be exercised Identification of factors to guide exercise of discretion Whether proposed physical works to and private communal use of former dining and recreation hall is acceptable
Legislation:	City of Nedlands Town Planning Scheme No 2, cl 3.8.1, cl 3.8.4, cl 3.8.7, cl 5.9, cl 5.9.6, cl 5.11, cl 5.15, cl 5.15.1, cl 5.15.2, cl 5.15.5, cl 7.8, App II, Amendment 158 Heritage of Western Australia Act 1990, s 46, s 78 Lunacy Act 1903 (WA) Planning and Development Act 2005 (WA), s 241(2), s 252(1) Transfer of Land Act 1893 (WA), s 70A
Case References:	Nil
Orders	DR 247 of 2008,1. The application for review is dismissed.,2. The decision of the respondent made on 27 May 2008 not to proceed with the outline development plan submitted by TPG Consultants dated 11 February 2008 in accordance with cl 3.8.7 of the City of Nedlands Town Planning Scheme No 2 is affirmed.,DR 256 of 2008,1. The application for review is dismissed.,2. The decision of the respondent made on 27 May 2008 to refuse the application for development approval submitted by The Planning Group on 1 April 2008 is affirmed.
Summary	This case concerned the proposed redevelopment of Swanbourne Hospital, formerly Claremont Hospital for the Insane, a place listed on the State Heritage Register.  The proposal involves the conversion of most of the heritage buildings to residential use and the demolition of buildings dating from 1904 and 1912 to enable construction of a five-level building accommodating over half of the proposed units.,The Tribunal determined that the proposal warrants refusal.,The demolition of substantial buildings with considerable heritage significance, at least in relation to their three dimensional built form, and their replacement with a building containing over half the units, is not generally in accordance with a development plan referred to in the local planning scheme and is therefore contrary to the scheme.,Furthermore, the proposed building exceeds the maximum building height development standard prescribed by the scheme.  The Tribunal found that it is not appropriate to exercise a discretion available in relation to heritage areas to vary the standard, because, on balance, the building does not facilitate the conservation and preservation of the conservation area.  The building would have significant and detrimental impacts on the heritage significance of the site by requiring the demolition of buildings with considerable heritage significance, compromising the landmark significance of the place and visually dominating the central courtyard.,However, in its conclusion, the Tribunal suggested that a three level contemporary building, comprising six units, could be accommodated centrally within the site, consistently with the scheme and development plan.  This would enable the conservation, preservation and conversion of all heritage buildings and the development of a total of 28 units as contemplated in the development plan.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SWANBOURNE ESTATE DEVELOPMENT JOINT VENTURE and CITY OF NEDLANDS [2008] WASAT 274 MEMBER : MR D R PARRY (SENIOR MEMBER)

MR J JORDAN (MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD : 4, 5 AND 6 NOVEMBER 2008 DELIVERED : 20 NOVEMBER 2008 FILE NO/S : DR 247 of 2008

DR 256 of 2008

BETWEEN : SWANBOURNE ESTATE DEVELOPMENT JOINT VENTURE

Applicant

AND

CITY OF NEDLANDS
Respondent

Catchwords:

Town planning - Outline development plan - Development application - Heritage conservation - Swanbourne Hospital, formerly Claremont Hospital for the Insane - Place listed in State Heritage Register and in local planning scheme - Place has exceptional cultural heritage significance - Adaptive re-use - Proposal includes conversion of most heritage buildings, demolition of some heritage buildings and construction of five­level above basement building - Heritage Council supports

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proposal - Significance of Heritage Council's support - Whether proposal is generally in accordance with development plan referred to in local planning scheme - Development plan states that existing heritage buildings are to be retained and converted to residential - Whether discretion available in relation to heritage places to vary maximum building height standard should be exercised - Identification of factors to guide exercise of discretion - Whether proposed physical works to and private communal use of former dining and recreation hall is acceptable

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 3.8.1, cl 3.8.4, cl 3.8.7, cl 5.9, cl 5.9.6, cl 5.11, cl 5.15, cl 5.15.1, cl 5.15.2, cl 5.15.5, cl 7.8, App II, Amendment 158

Heritage of Western Australia Act 1990, s 46, s 78
Lunacy Act 1903 (WA)
Planning and Development Act 2005 (WA), s 241(2), s 252(1)
Transfer of Land Act 1893 (WA), s 70A

Result:

Outline development plan and development application refused

Category: B

Representation:

Counsel:

Applicant : Mr MJ Hardy
Respondent : Mr CA Slarke

Solicitors:

Applicant : Hardy Bowen
Respondent : McLeods

Case(s) referred to in decision(s):

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This case concerned the proposed redevelopment of Swanbourne Hospital, formerly Claremont Hospital for the Insane, a place listed on the State Heritage Register. The proposal involves the conversion of most of the heritage buildings to residential use and the demolition of buildings dating from 1904 and 1912 to enable construction of a five-level building accommodating over half of the proposed units.

2 The Tribunal determined that the proposal warrants refusal.

3 The demolition of substantial buildings with considerable heritage significance, at least in relation to their three dimensional built form, and their replacement with a building containing over half the units, is not generally in accordance with a development plan referred to in the local planning scheme and is therefore contrary to the scheme.

4 Furthermore, the proposed building exceeds the maximum building height development standard prescribed by the scheme. The Tribunal found that it is not appropriate to exercise a discretion available in relation to heritage areas to vary the standard, because, on balance, the building does not facilitate the conservation and preservation of the conservation area. The building would have significant and detrimental impacts on the heritage significance of the site by requiring the demolition of buildings with considerable heritage significance, compromising the landmark significance of the place and visually dominating the central courtyard.

5 However, in its conclusion, the Tribunal suggested that a three-level contemporary building, comprising six units, could be accommodated centrally within the site, consistently with the scheme and development plan. This would enable the conservation, preservation and conversion of all heritage buildings and the development of a total of 28 units as contemplated in the development plan.

Introduction

6 In 1903, the Parliament of Western Australia passed the Lunacy Act 1903 (WA) (Lunacy Act), amending the law relating to insane persons. The Lunacy Act reflected and embodied a new approach for the care and treatment in 'hospitals for the insane' of those suffering from mental illness, rather than their incarceration, as previously, in 'asylums'.

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7 Also in 1903, the State set aside 394.5 acres (160 hectares) at Claremont for a new hospital for the insane. The planning and construction of the hospital, at first known as the Claremont Hospital for the Insane, and subsequently as Swanbourne Hospital, reflected the new approach for care and treatment.

8 The initial phase of construction of hospital buildings took place during the period from 1904 to 1908/1909 at the crest and along the ridgeline of a hill. The initial phase of construction included a central core of buildings at the crest of the hill, comprising Stores Block and Workshop (1904), Kitchen and Scullery (1904), Female Attendants' Block (1904) (also known as North Block), Male Attendants' Block (1904) (also known as South Block), Administration Block (1905), and Dining and Recreation Hall (1905), subsequently known as Montgomery Hall. Also during this period, two ward blocks were built to the north of the core for female patients and two ward blocks were built to the south of the core for male patients. By 1909, the hospital accommodated 528 male patients and 202 female patients. In 1912, the Female Attendants' Block was extended south to the Kitchen to provide additional accommodation. By 1933, two further ward blocks were constructed for female patients and three further ward blocks were constructed for male patients.

9 Swanbourne Hospital was the largest institution for the care of the mentally ill in Western Australia for about 80 years. In the mid 1970s, the Health Department decided to phase out the hospital, consistently with the new approach to disbanding large residential institutions for the mentally ill and reintegrating patients into the community. In 1983, Swanbourne Hospital was officially closed.

10 During the late 1980s, most of the hospital buildings were demolished, leaving only the central core comprising the Stores Block, Kitchen and Scullery, Male and Female Attendants' Blocks, Administration Block and Montgomery Hall. Also during the 1980s and 1990s, most of the former hospital site was subdivided and sold, including 32 hectares for the construction of John XXIII College to the east of the central core.

11 This case concerns the proposed redevelopment of Lot 12040 St John's Wood Boulevard, Mount Claremont (site), which has an area of approximately 2.5 hectares and comprises the former central core of Swanbourne Hospital and areas to the north, east, south and west, known as 'north wing', 'east wing', 'south wing' and 'west wing'.

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12 In particular, the proceedings involve applications brought by Swanbourne Estate Development Joint Venture (applicant), pursuant to cl 7.8 of the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme) and s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decisions of the City of Nedlands (City or Council) not to proceed with an outline development plan and to refuse development approval for the site. The outline development plan and the development application propose demolition of the Kitchen and the 1912 extension to the Female Attendants' Block, conversion of the remainder of the principal buildings into 15 grouped dwellings and one multiple dwelling, construction of a basement car park in part within Montgomery Hall and between the Female and Male Attendants' Blocks, and construction of a five-level above basement apartment building comprising 18 multiple dwellings within the footprint of the demolished buildings and extending into the central courtyard.

13 The outline development plan and the development application also propose the conversion of Montgomery Hall for private communal use by residents of the development, by constructing a swimming pool and incorporating a gymnasium at the lower level and providing a residents' lounge on the upper level. The proposed physical works to Montgomery Hall include demolition of over half of the original wall on the eastern side at the lower level, which retains the land to the east, to enable the construction of five tandem car parking spaces and other facilities, and the removal of part of the original timber floor of the upper level and its replacement with glazing to provide light and view of the pool below.

14 In addition, the outline development plan proposes six residential lots in the north wing, and eight residential lots in the south wing, public open space and roads in the east wing, and public open space in the west wing and between the central core and the north and south wings.

15 Because of its elevated position and the substantial historic buildings, particularly the Administration Block visible from the east and Montgomery Hall visible from the west, the site provides 'a focus and landmark for the area', to quote the evidence of Mr Stephen Allerding, a consultant town planner who gave evidence on behalf of the City.

Background

16 In 1987, the Health Department vacated the buildings on the site. Over the next four years, the buildings were extensively vandalised, with many original fixtures and fittings stolen. In 1991, the site became the responsibility of the Building Management Authority, and subsequently the Department of Housing and Works.

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17 In August 1994, the site was included on the Register of Heritage Places (Register) compiled pursuant to s 46 of the Heritage of Western Australia Act 1990 (WA) (HWA Act). The statement of significance for the entry of the site on the Register published by the Heritage Council of Western Australia (Heritage Council) is as follows:

Swanbourne Hospital, comprising the remaining buildings of the former Claremont Hospital for the Insane, including Administration Block, Montgomery Hall, Male Attendants Block, Female Attendants Block, Kitchen and Store, has cultural significance for the following reasons:

The buildings remaining on the Swanbourne Hospital site are the remnant core of the original Claremont Hospital for the Insane, constructed in 1904;

The buildings are associated with Western Australia's largest institution for the care of the mentally ill throughout most of the 20th Century;

The buildings, occupying a prominent site, are a landmark;

The buildings display a high degree of aesthetic quality, in particular the former grandeur of the Administration Block, on the eastern side of the site, with its limestone and brick façade and Donnybrook stone portico; and

The site contains the following elements of considerable significance:


The Administration Block (1904),

Montgomery Hall (1904),

Male Attendants Block (1904);

Female Attendants Block (1904 and 1912),

Kitchen (1904),

Store (1904),

Covered Way between the Administration Block and the Store (1906), and

the formal space to the east of the Administration Block, including the driveway, circular planted bed and the Eucalyptus Clodocalyx on the northern side of the site.

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18 In relation to aesthetic value, the assessment documentation states as follows:

The remnant group of buildings on the Swanbourne Hospital site are typical of early 20th Century institutional buildings. Their formal planning and design with an emphasis on rectangular forms and Georgian detailing, create the impression of austerity and strength which is enhanced by their prominent location on the crest of the hill…

The remaining group of buildings and mature trees located on the crest of the hill overlooking John XXIII College and the residential subdivision that has developed on the original Claremont Mental Hospital site, provide a focus and prominent landmark to the area.

19 Similarly, in relation to 'physical evidence', the assessment documentation states as follows:

The visual dominance of the site and the Administration Block in particular give the buildings a landmark quality in the area. The formal arrangement of the building group and their scale and proportions of individual structures reinforces this effect.

20 In September 1994, Heritage and Conservation Professionals prepared a conservation plan for the site. A program of external conservation works and some renovation of the Male Attendants' Block was carried out, the latter to enable Government use of part of that building. Other than minor tenancies, including the use of Montgomery Hall by the Gymnastics Association, the buildings have remained largely unoccupied. The vandalism of the late 1980s to early 1990s is still evident.

21 In 2003, the Department of Housing and Works appointed Taylor Burrell Barnett, town planning and design consultants, to undertake a study of the site. The study resulted in the preparation of a development plan for the site dated October 2005 (development plan). The development plan formed the basis for Amendment 158 to TPS 2 which, on 8 November 2005, rezoned the site to 'Development' under TPS 2 and inserted cl 5.15 into the Scheme to specifically regulate subdivision and development of the site.

22 The site is also listed as the 'Swanbourne Hospital Conservation Area' in Appendix II of TPS 2, which concerns 'conservation and preservation of places of natural beauty and historic buildings and objects of historical and scientific interest'. The site is therefore subject to the provisions of cl 5.9 of the Scheme.

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23 In October 2005, Heritage and Conservation Professionals prepared a conservation plan for the Department of Housing and Works which superseded the earlier document. The 2005 conservation plan is referred to in these reasons as the 'conservation plan'. The conservation plan identifies the site as a place of exceptional cultural heritage significance.

24 In January 2006, the Department of Housing and Works undertook a tender process and sold the site to the applicant.

25 In April 2006, design concept drawings for the proposal in the outline development plan and the development application were provided to the Heritage Council. In the same month, the Heritage Council conditionally supported in principle the design concept drawings.

26 In September 2006, the outline development plan and development application were lodged with the City.

27 In accordance with cl 5.15.5 of TPS 2 and s 78 of the HWA Act, the City referred the outline development plan and the development application to the Heritage Council for advice. On 12 December 2006, the Heritage Council's Development Committee considered the applications and resolved to advise the City that the proposal was supported subject to conditions.

28 On 11 February 2008, the applicant submitted a revised outline development plan and a revised development application to the City.

29 The City advertised the outline development plan in accordance with cl 3.8.4 of TPS 2, but did not advertise the development application on the basis that it is substantially the same as the proposal in the outline development plan. The City received a total of 93 submissions, of which 80 were objections to some or all of the proposal in the outline development plan and two were petitions.

30 On 27 May 2008, the City accepted its officer's recommendations not to proceed with the outline development plan and to refuse approval for the development application.

Issues for determination

31 The following four principal issues arise for determination in these proceedings:

1) Whether the Tribunal has power to grant approval to the development application in the absence of the approval by the Western Australian Planning Commission (Commission) of an outline development plan.

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2) Whether the proposal is generally in accordance with the development plan.

3) Whether the maximum building height standard in cl 5.11 of TPS 2 should be varied to allow the proposal.

4) Whether the proposed development and use of Montgomery Hall is appropriate.

32 The Tribunal will address each of these issues in turn.

Does the Tribunal have power to grant development approval in the absence of the Commission's approval of an outline development plan?

33 Clause 5.15.5 of TPS 2 states as follows:

Prior to Council considering any application for subdivision and/or development on the site, in accordance with clause 3.8 of the Scheme, the applicant shall submit an Outline Development Plan for the approval of the Council, in consultation with the Heritage Council of Western Australia;

34 The applicant has complied with the literal meaning of cl 5.15.5; the applicant has submitted the outline development plan for the approval of the Council, in consultation with the Heritage Council. However, the City contends that, on its proper interpretation, cl 5.15.5 requires not only submission of an outline development plan to the Council, but also approval by the Commission. This is because cl 3.8.1 of TPS 2 states that it is the intention of the Council to ensure that development of land in the Development zone takes place 'only after comprehensive planning ensures the maximum possible benefits of urban design and servicing' and cl 3.8.7 states that the Council may submit an outline development plan to the Commission and request it to approve the plan submitted 'as the basis for approval of subdivision and development applications within the area covered by the plan'.

35 It is unnecessary to resolve this difficult question of interpretation in these proceedings, because, on either view, the Tribunal must address the substance of the proposal in the determination of the outline development plan application, and, for reasons discussed below, the Tribunal considers that both applications require and warrant refusal.

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36 However, it is unfortunate that the literal meaning of a provision in the City's Scheme does not accord with its submission as to its legal effect. It is suggested that the Council should amend cl 5.15.5 to bring the wording of the provision into conformity with the City's understanding of its intent.

Is the proposal generally in accordance with the development plan?

37 Clause 5.15.2 of TPS 2 states as follows:

Council shall require subdivision and development to be generally in accordance with the [development plan];

38 The development plan states:

EXISTING HERITAGE BUILDINGS TO BE RETAINED.

39 The development plan also identifies the Kitchen and the 1912 extension to the Female Attendants' Block, which are proposed in the outline development plan and in the development application for demolition to make way for the new five-level apartment building, as 'existing hospital buildings', and states as follows in relation to these buildings:

Conversion to Residential/retirement Housing or Assisted Care Facility (approx. 28 units).

40 Mr William Burrell, who is a town planner and the author of the development plan, was called to give evidence on behalf of the applicant. Mr Burrell described the development plan as 'indicative only'. Mr Burrell said that the development plan did not constitute an outline development plan and did not consider all possible development scenarios. Rather, it was intended to highlight key considerations for future development. Mr Burrell considers that the proposal 'could be supported by Council since it reflects a logical extension to the [development plan]'.

41 Mr Michael Rendell, the designer of the proposal, and Mr David Caddy, a consultant town planner who has been closely involved with the proposal, each gave evidence on behalf of the applicant and also characterised the development plan as 'indicative only'.

42 In contrast, Mr Allerding considers that the development plan cannot be characterised as 'indicative only'. Mr Allerding pointed out that the word 'indicative' does not appear in the development plan itself or in any relevant planning instrument or policy. Mr Allerding also said that, because the site area is relatively small, the development

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plan details 'the core development provisions including the retention of buildings' and 'provides a substantive and detailed recognition of the development principles and form of development that ought to occur on the site', including that existing heritage buildings are to be retained. Mr Allerding described this aspect of the development plan as a 'fundamental'.

43 Similarly, Ms Gabriela Poezyn, the City's coordinator of strategic planning, gave evidence that there are 'some fundamental principles' embodied in the development plan, including that existing heritage buildings are to be retained, because the development plan was put in place to allow a fairly wide Development zoning and followed a process of extensive community consultation.

44 The Tribunal agrees with Mr Allerding and Ms Poezyn that the development plan cannot be, relevantly and reasonably, characterised as 'indicative only'. While the words 'generally in accordance with' in cl 5.15.2 of TPS 2 provide an element of flexibility, the mandatory expression that 'Council shall require subdivision and development to be generally in accordance with the [development plan]' (emphasis added) mean that the provisions of the development plan are more than merely indicative.

45 Furthermore, in relation to the retention of existing heritage buildings and the conversion of existing hospital buildings to residential, the development plan is expressed in unambiguous and explicit terms; existing heritage buildings are to be retained and existing hospital buildings are to be converted. This is entirely consistent with the Taylor Burrell Barnett study and Amendment 158 to TPS 2 which introduced cl 5.15 into the Scheme. The report prepared by Taylor Burrell Barnett in relation to Amendment 158 identifies the study objectives as including:

To retain and protect the existing heritage buildings and features on the site. (Emphasis added)

46 The report identifies the 'development expectations' as including the following:

All of the buildings on the site are of heritage significance and must be conserved/retained for conversion to appropriate alternative uses - there is a need to maintain the cultural heritage significance of these buildings. (Emphasis added)

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47 The report states that the general provisions of the development plan include:

The existing heritage buildings on the site are required to be retained, given their inclusion on the State Register. (Emphasis added)

48 The report identifies a specific provision in relation to existing hospital buildings in the development plan as:

All buildings are to be retained and conserved in situ. (Emphasis added)

49 Consequently, while the words 'generally in accordance with' in cl 5.15.2 of TPS 2 contemplate the possibility of some minor demolition of existing heritage buildings, they do not contemplate demolition of a substantial building or buildings which are of considerable heritage significance. The evidence shows that the building envelope or shell of the Kitchen and 1912 extension to the Female Attendants' Block, as well as part of the second level of the Female Attendants' Block, are of considerable heritage significance.

50 The Tribunal had the benefit of heritage evidence from the following witnesses:

• Ms Nerida Moredoundt, a heritage architect and the author of the heritage impact assessment that accompanied the outline development plan and the development application, who gave evidence on behalf of the applicant;

• Dr Adelyn Ai Li Siew, an architect and the Heritage Council's Manager, Development Referrals, who gave evidence on behalf of the applicant and supplemented the Heritage Council's advice to the Tribunal contained in its letters to the Council, in accordance with s 241(2) of the PD Act;

• Mr Ian Hocking, an architect and town planner specialising in heritage conservation, who gave evidence on behalf of the City;

• Mr Donald Newman, an architect and town planner specialising in heritage conservation, who gave evidence on behalf of the City; and

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• Mr John Taylor, an architect and heritage and conservation consultant, who gave evidence on behalf of the City.

51 Ms Moredoundt considers that the proposed demolition is acceptable 'in view of the identified levels of significance of the elements proposed for demolition, the overall outcome and the Heritage Council's support'.

52 Ms Moredoundt said that the Kitchen and Female Attendants' Block have 'little heritage significance and minor internal elements of some significance'. She considers that these portions can be demolished, to allow new development, without impacting adversely on the heritage values and in accordance with the intent of the development plan. Ms Moredoundt also said that the external walls of these areas, which are identified as being of considerable significance, 'are proposed to be rebuilt in their original footprint on the ground floor and will form the base of the new building'.

53 While the Heritage Council's assessment documentation and the conservation plan each note that, in 1958, part of the original fabric of the Kitchen was demolished, both documents identify the Kitchen, and in particular its external built form, including the roof, as having considerable heritage significance. The assessment documentation identifies the 'high clerestory roofs over both main Kitchen and Scullery areas' as 'a distinctive feature of the original building'. The conservation plan states:

Retain and conserve roof structure and form. Consider restoration of skylights to lantern roofs over former Scullery and Kitchen.

54 The conservation plan states that the Kitchen should be retained and conserved and, in particular, the clerestory roof should remain evident, although adaption of the internal fabric of the building is possible and, in particular, there is scope to increase the volume of the Kitchen area by removing a suspended ceiling and exposing the original clerestory space. This space is apparent in the adjoining Scullery, which is proposed to be retained.

55 Similarly, both the Heritage Council's assessment documentation and the conservation plan identify the Female Attendants' Block as of considerable significance. The assessment documentation specifically notes that the building was extended in 1912. The conservation plan identifies not only the external and internal walls of the 1912 addition as

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having considerable significance, but also identifies part of the first floor area as being of considerable significance.

56 The conservation plan states that areas and elements of considerable significance should be preserved or restored, or reconstructed to original detail as far as possible. It states that only minor reversible adaptions should be made to areas and elements of considerable significance.

57 Ms Moredoundt described the conservation plan as a 'template' which is not predicated upon any particular preferred form of development. However, while a particular proposed re-use of a building may affect its heritage significance, it does not alter the original assessed level of significance.

58 As both Mr Hocking and Mr Taylor observed, the Kitchen and the 1912 additions to the Female Attendants' Block have considerable heritage significance 'in their three dimensional elements', including not only the walls at the lower level, but the walls above and, significantly, the distinctive clerestory roof form. The Tribunal accepts their evidence, and the evidence of Mr Newman, that the proposed demolition would have a severe detrimental effect on the heritage values of the site.

59 Furthermore, contrary to Ms Moredoundt's evidence, the external walls that are proposed to be removed and then rebuilt would not form 'the base of the new building', as they could not be sufficiently load-bearing for a five-storey building. Moreover, contrary to Dr Siew's opinion that the rebuilt walls would be an 'interpretive element', as Mr Taylor said, the demolition of significant walls and their reconstruction in a different context and, importantly, without other walls and the roof, does not adequately allow interpretation of the former three dimensional structure.

60 In relation to the 'overall outcome', Ms Moredoundt observed that the demolition is not being undertaken for its own sake, but as part of an overall programme to be able to adapt and refurbish a substantial part of the heritage buildings on the site. Ms Moredoundt said that the proposal involves the vertical, rather than horizontal, division of the heritage buildings to be retained and that this maximises the retention of heritage fabric while reducing the number of units within the existing buildings. The other heritage experts did not question this evidence.

61 However, there is no evidence to suggest that the overall outcome, including the vertical, rather than horizontal, division of the other buildings, cannot be achieved while retaining and converting the buildings proposed to be

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demolished. Mr Taylor said that the Kitchen and the 1912 addition to the Female Attendants' Block are readily adaptable for residential use. Consistently with the floor plan of the proposed replacement building, with the removal of the suspended ceiling above the Kitchen, there appears to be capacity to accommodate six multiple dwellings within the three dimensional built form of the Kitchen and 1912 addition to the Female Attendants' Block, increasing the total yield to 22 dwellings. Furthermore, as noted in the conclusion below, there is capacity to accommodate a new, three-level, contemporary building within and in an extension of the footprint of the portion of the proposed replacement building projecting east into the courtyard, which would be generally in accordance with the development plan and consistent with TPS 3. This would increase the yield to 28 units, the number of units contemplated in the development plan. Such a development would have an appropriate overall outcome. A development involving the demolition of substantial buildings with considerable heritage significance is not an acceptable overall outcome.

62 In relation to the significance of the Heritage Council's support, Ms Moredoundt expressed the opinion that substantial weight should be given to the Heritage Council's advice, because it is the 'pre-eminent body on heritage matters in the State and has enormous experience in assessing the potential impact of development on heritage places while considering the requirements of the guiding documents'.

63 It is implicit in s 78 of the HWA Act and in s 241(2) of the PD Act that the Tribunal is required to consider the advice of the Heritage Council and give it appropriate weight in the circumstances of the case. However, the Tribunal is required to undertake an independent planning assessment of the proposal, having regard to the applicable planning instrument and the evidence presented to it.

64 Furthermore, the weight to be given to the Heritage Council's advice in this case is affected by two specific factors in relation to this issue and two specific factors in relation to the height issue considered below.

65 In relation to this issue, the first factor is that it is not clear whether the Heritage Council's Development Committee was aware or appreciated that the proposed demolition is not simply of the Kitchen but also the 1912 extension to the Female Attendants' Block. The heritage impact assessment did not refer to the fact that the 1912 addition to the Female Attendants' Block is proposed to be demolished. Ms Moredoundt explained that she had a conversation with an officer of the Heritage Council two weeks before the meeting of the Development Committee in

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which she pointed out the error. However, the Tribunal has a concern, on the evidence, that the Development Committee was not aware or adequately aware of this aspect of the proposal.

66 Second, Dr Siew gave evidence that the Heritage Council supported demolition on the basis that the provision of adequate car parking was dependent on the demolition. The Tribunal considers that the provision of car parking is not an adequate justification for demolition of a significant building with considerable heritage significance, particularly as the proposal involves an overprovision of car parking in comparison to the acceptable development provision in the Residential Design Codes of Western Australia (2008) (Codes).

67 The two factors affecting the weight to be given to the Heritage Council's advice in relation to the height issue are addressed below.

68 It follows that the proposal is not generally in accordance with the development plan because it involves the demolition of substantial buildings with considerable heritage significance, rather than their retention and conversion in place.

69 The proposal is also not generally in accordance with the development plan because over half the units would be accommodated within a substantial, new building, rather than within the existing hospital buildings. As noted earlier, the development plan states in relation to existing hospital buildings 'conversion to Residential/retirement housing or assisted care facility (approx. 28 units)'. It is implicit in the development plan that the contemplated residential units are to be substantially accommodated within the existing hospital buildings, rather than within a new building or buildings. As Mr Allerding said, the development plan anticipates that there would be an adaption and refurbishment of the existing buildings, rather than a new building. Therefore, while the accommodation of some residential units in a new building or buildings in the central core may be generally in accordance with the development plan, the accommodation of over 50% of the units in a new building is not.

70 Mr Caddy expressed the opinion that the proposal is generally in accordance with the development plan, because it complies with 46 of 58 policy provisions in the development plan. However, not all noncompliances are of equal significance. The demolition of substantial buildings with considerable heritage significance and the accommodation

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of over half of the proposed units in a substantial, new building, rather than in a conversion of the existing hospital buildings, are fundamental inconsistencies with the development plan.

71 The Council also raised concerns in relation to the proposal in the outline development plan to increase the number of residential lots from the maxima nominated in the development plan in the north wing from five to six and in the south wing from seven to eight, and the reduction in the publicly accessible areas between the central core buildings and the private front gardens of the lots in the north and south wings.

72 The Tribunal considers that the increase in the number of lots in the north and south wings is minor, particularly given that the development plan expressly contemplates that the density of development may be subject to further consideration, at least in relation to the south wing, at the subdivision stage, and the housing density would remain similar.

73 The development plan dimensions a 'curtilege' of 23 metres between the Female Attendants' Block and the north wing and 20 metres between the Male Attendants' Block and the south wing. The proposal before the Tribunal reduces the area to which the public has physical access to 10 metres, by introducing private front gardens for the units and lots facing these areas, but substantially maintains the 'curtilege' in visual terms by limiting the type and size of structures and landscaping in the front gardens.

74 As Mr Hocking said, the critical issue is not necessarily maintaining the size of the 'curtilege', but rather its visual character. The Tribunal considers that while it is important that the heritage buildings should retain their essential physical form, some minor external physical structures and landscaping are appropriate and acceptable in terms of adaptive re-use for residential purposes. If the proposal would otherwise warrant approval, conditions of development approval could be imposed to restrict physical structures and landscaping in these areas so as to maintain an adequate visual 'curtilege'. Because these conditions would be unusual, it would also be appropriate to require notification of the conditions on title under s 70A of the Transfer of Land Act 1893 (WA).

75 As the development contemplated by the outline development plan and proposed in the development application is not generally in accordance with the development plan, the applications must be refused under cl 5.15.2 of TPS 2.

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Should the maximum building height standard be varied?

76 Clause 5.11 of TPS 2 precludes development:

• containing more than two storeys for residential use;

• with exterior wall height greater than 8.5 metres; and

• with any point on the building exceeding 10 metres.

77 The proposed apartment building contains five storeys, has an exterior wall height of 17.7 metres and a maximum height of 18.3 metres at the lift overrun. The Scheme does not confer a general discretion to vary development standards or a specific discretion to vary the development standard prescribed by cl 5.11.

78 However, cl 5.9.6 of TPS 2 confers a discretion to vary development standards prescribed by the Scheme in relation to places of natural beauty and historic buildings and objects of historic or scientific interest listed in Appendix II of the Scheme, including the Swanbourne Hospital Conservation Area.

79 While cl 5.9.6 of TPS 2 does not expressly state considerations to guide the exercise of discretion to vary a development standard, it is apparent, when cl 5.9 is read as a whole, that the purpose of the discretion is to facilitate the conservation and preservation of places, buildings and objects contained in Appendix II.

80 The Tribunal does not consider that the discretion conferred by cl 5.9.6 of TPS 2 should be exercised to vary the maximum building height development standard in the circumstances of this case because, on balance, the proposal does not facilitate the conservation and preservation of the Swanbourne Hospital Conservation Area.

81 Ms Moredoundt considers that the proposed building is a suitable insertion into the complex 'as it assists in making the adaptive re-use both compatible and feasible'. In particular, Ms Moredoundt considers that the proposed building enables the vertical, rather than horizontal, division of the heritage buildings to be retained, thereby maximising the retention of heritage fabric.

82 However, the proposed building enables a development comprising 34 units, six more than contemplated by the development plan. More fundamentally, while vertical division of the heritage buildings facilitates the conservation and preservation of those buildings, this positive consideration is strongly outweighed by three significant and detrimental

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consequences of the proposed building in terms of conservation and preservation of the cultural heritage values of the site.

83 First, the construction of the new building requires the demolition of substantial buildings with considerable heritage significance.

84 Second, owing to its height and width, the proposed building would have a significant and detrimental impact on the landmark quality of the heritage buildings when viewed from a distance. As noted earlier, the heritage significance of the buildings on the site, and in particular the Administration Block and Montgomery Hall, includes their landmark quality in the area. As Mr Hocking explained, the visual prominence of the heritage buildings is characterised by:

• large hipped and tiled pitched roofs, with hipped, gabled, chimney and fleche features giving skyline detail;

• two-storey and three-storey brick walls with limestone podiums and detailing, and a traditional pattern of openings with load-bearing structures; and

• the Administration Block and Montgomery Hall providing visual bookends to the conservation area.

85 The proposed building would have a flat roof, with shadow-casting eaves, 2.84 metres above the ridge line of Montgomery Hall and 6.45 metres above the ridge line of the Administration Block. Furthermore, the proposed building would be wider than Montgomery Hall and the Administration Block.

86 In the absence of architectural modelling from the applicant showing the visual impact of the proposed building on the heritage buildings from locations outside the site, Mr Hocking helpfully prepared montages showing a block perspective view of the proposal from five viewing positions in the locality. Having regard to Mr Hocking's qualifications and experience, and having viewed the site from each of the locations identified by Mr Hocking in the context of his montages and the architectural drawings, the Tribunal considers that Mr Hocking's work has a reasonable degree of accuracy. The montages demonstrate the correctness of Mr Hocking's following evidence:

Whilst the upper level of the proposed five[-]storey development would be a framed structure largely consisting of brick and glass[,] it would not de-materialise as shown on the Elevations contained in the Outline Development Plan and Development Application.

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The characteristic skyline of the heritage buildings would be lost against the taller bulk and considerable width of the proposed five[-]storey development.

The Elevations show that the proposed five[-]storey development would be wider than the Administration Building and Montgomery Hall. The height and width of the five[-]storey development would create a development element of considerably greater bulk than any of the heritage buildings and this would be the predominant visual element when viewed from a distance.

The juxtaposition of the proposed five[-]storey development within the group of heritage buildings visually reduces the Administration Building and Montgomery Hall to being peripheral elements to the larger bulk and scale of the proposed new development.

From a distance[,] the visual characteristics of the significant elements of the Swanbourne Hospital Conservation Area would be considerably impacted upon.

87 The Tribunal also accepts the evidence of Mr Newman and Mr Taylor to the same effect. As Mr Newman said, the height and bulk of the proposed building 'will compromise the landmark significance of the place and also be visually dominant over the complex'. As Mr Taylor said, the proposed building 'would overwhelm the scale of the heritage buildings, detracting from their prominence and imparting subservient character to the heritage buildings'. As Mr Allerding said, from a town planning perspective, the proposed building would 'cramp' the existing buildings.

88 Dr Siew gave evidence that the Heritage Council supported the new building after considering its location, bulk, height and scale. Dr Siew also expressed the opinion that the proposal may potentially increase the landmark quality of the site by drawing attention to the new building and consequently to the details of the heritage buildings.

89 Two factors affect the weight to be given to the Heritage Council's analysis and advice in relation to this issue. First, it appears that the Development Committee was only provided with architectural modelling of the proposal from the boundaries of the site. Given that the identified heritage significance of the place derives in part from the fact that 'the buildings, occupying a prominent site, are a landmark', it is surprising that the Development Committee did not call for the type of photo montages produced by Mr Hocking. Second, it does not appear that the Development

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Committee undertook a view of the locality so as to see the site from the positions identified by Mr Hocking and other significant viewing locations. In contrast, as noted earlier, the Tribunal had the benefit of a view which confirmed the evidence of Mr Hocking, Mr Newman, Mr Taylor and Mr Allerding.

90 The Tribunal agrees with Dr Siew that, because of the height and width of the proposed building, one's eye would be drawn to the site. However, the Tribunal does not accept her evidence that this will increase the landmark quality of the site. Rather, as the heritage witnesses for the City explained, the proposed building would visually dominate the complexity of the heritage buildings, reducing their significance.

91 Mr Burrell expressed the opinion that the proposed building is 'an elegant insert that celebrates the height of the land and reflects the heritage values of the existing buildings rather than mimicking it'. Both Mr Burrell and Mr Caddy emphasised the need to view the proposal from within and in close proximity to the site, 'at human scale'. While, as Mr Allerding accepted, the proposed building would not be dominant 'at human scale' when viewed from within the site, because the heritage buildings would generally be in the way, the topography and landmark character of the site requires a wider assessment. This assessment demonstrates that the proposed building would have a significant and detrimental impact on the cultural heritage significance of the site when viewed from a distance.

92 Third, the proposed building would have a significant and detrimental impact on the heritage significance of the site, as Mr Hocking, Mr Newman and Mr Taylor each explained, by visually dominating the central courtyard formed by the Kitchen, Stores Block and Male and Female Attendants' Blocks. In particular, as Mr Taylor said, the height of the proposed building would overwhelm the scale of the two-storey heritage buildings.

93 While the heritage witnesses for the City also raised a concern in relation to the impact of the projection of part of the proposed building into the courtyard in terms of heritage character, as Ms Moredoundt observed, the courtyard has undergone physical changes in terms of buildings projecting into it. In particular, it appears that, from 1958 to about 1990, the Kitchen projected well into the courtyard. The Tribunal considers that it is the height and width of the proposed building, rather than merely the projection into the courtyard, that has adverse heritage consequences.

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94 As the Tribunal does not consider that the discretion to vary maximum building height under cl 5.9.6 of TPS 2 should be exercised in the circumstances of this case to enable construction of the proposed building, the proposal must be refused in accordance with cl 5.11 of TPS 2.

Is the proposed development and use of Montgomery Hall acceptable?

95 As noted earlier, the proposal includes the demolition of over half the original lower level wall on the eastern side of Montgomery Hall and the removal of part of the original timber floorboards on the upper level and its replacement with glass. The wall is proposed to be demolished to enable the construction of five tandem car bays. The glazed section of floor is proposed to bring light to the lower level comprising the pool and gymnasium.

96 The conservation plan identifies the external walls and the timber floorboards of Montgomery Hall as having exceptional cultural heritage significance. The conservation plan states that existing timber floorboards should be retained and conserved, and that, generally, external walls should be retained and conserved.

97 Ms Moredoundt considers that the proposed demolition is acceptable 'in view of the fact that it is a portion of the wall only and is at the lower level, which is of lesser significance than the upper level walls and is not visible externally, and is supported by the Heritage Council'. Dr Siew confirmed that the Heritage Council supported the demolition, but required detailed design by a structural engineer.

98 In contrast, Mr Hocking considers that the removal of part of the wall would reduce the amount of surviving heritage fabric and would impact on the heritage value of Montgomery Hall. Mr Taylor considers that the demolition of significant fabric in the form of the external wall and part of the timber floorboards is 'irreversible and intrusive intervention'.

99 The Tribunal considers that the demolition of part of the lower level wall and the replacement of part of the timber floor with glass is unacceptable because it would have a significant and detrimental impact on the cultural heritage values of the place. The proposed demolition of significant fabric is irreversible and intrusive. Furthermore, no reasonable justification has been put forward for it. As noted earlier, the proposal involves an oversupply of car

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parking in comparison to the acceptable development provision in the Codes. The lower level would have good access to natural light through existing openings to the west.

100 The proposal involves the use of Montgomery Hall for recreational purposes exclusively for residents of the development. Clause 5.15.1 of TPS 2 requires 'a suitable and sustainable low-key adaptive re-use for Montgomery Hall'. As Mr Allerding said, the proposed use is consistent with this provision.

101 The heritage experts for the City each consider that the proposed private communal use of Montgomery Hall reduces its heritage value. Mr Taylor pointed out that the conservation plan says that future use of Montgomery Hall 'should consider public access as a priority'. The conservation plan identifies examples of public use as a theatre, a venue for social functions or gatherings, or a place for conferences.

102 Montgomery Hall is of exceptional heritage significance and is arguably one of the most important buildings of its type in suburban Perth. However, the State elected to sell the building for private development and the City elected not to acquire it. While it is a great pity that Montgomery Hall was not retained by the State or acquired by the City, the fact is that it is now private property and, subject to heritage considerations, can be reasonably put to private use. Furthermore, the private communal use proposed is consistent with the dining and recreation use to which the building was put for 80 years, although the number of patients and staff significantly exceeded the likely number of residents of the proposal. Consequently, the proposed private communal use of Montgomery Hall is acceptable in planning and heritage terms.

Conclusion

103 The proposed outline development plan and development application must each be refused approval under TPS 2. The demolition of the Kitchen and part of the Female Attendants' Block, which have considerable cultural heritage significance, at least in relation to their three dimensional built form, and their replacement with a five-storey building comprising over half of the proposed units, is not generally in accordance with the development plan, and is therefore contrary to cl 5.15.2 of TPS 2. Furthermore, the proposed building exceeds the maximum building height development standard prescribed by cl 5.11 of TPS 2 and it is not appropriate to exercise the discretion to vary this standard under cl 5.9.6 of TPS 2, because, on balance, the building does not facilitate the conservation and preservation of the conservation area located on the site.

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104 However, provided that existing heritage buildings are retained and that the residential units are substantially contained within those buildings, the Tribunal considers that a three-level above basement contemporary building could be accommodated within the footprint of that part of the proposed building that projects into the courtyard plus an equivalent area extending to the east. This building should have a maximum height no greater than approximately 10 metres above the current level of the courtyard and could accommodate six units, two per floor. The scale of such a building would be consistent with the scale of the existing buildings forming the courtyard. The footprint of this building would be located within the approximate area of the Kitchen extension that stood between 1958 and about 1990.

105 The building suggested in the preceding paragraph would facilitate the conservation and preservation of all of the heritage buildings and their conversion into 22 units (15 vertical grouped dwellings and seven horizontal multiple dwellings). It would enable the redevelopment to achieve a total of 28 dwellings, consistently with the expectation in the development plan. The residential units would be substantially accommodated within the existing hospital buildings as these buildings would comprise about 80% of the units. The development would therefore be generally in accordance with the development plan and the discretion to vary the maximum building height development standard by one storey and by up to 1.5 metres exterior wall could be exercised positively.

106 The basement car park should not extend below existing heritage buildings. Based on the plans before the Tribunal, it appears that a basement car park could accommodate about 32 car bays without extending below heritage buildings. The building should be of contemporary design and appearance to contrast the new work from the heritage buildings.

Orders

107 The Tribunal makes the following orders:

DR 247 of 2008

1. The application for review is dismissed.

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2. The decision of the respondent made on 27 May 2008 not to proceed with the outline development plan submitted by TPG Consultants dated 11 February 2008 in accordance with cl 3.8.7 of the City of Nedlands Town Planning Scheme No 2 is affirmed.

DR 256 of 2008

1. The application for review is dismissed.

2. The decision of the respondent made on 27 May 2008 to refuse the application for development approval submitted by The Planning Group on 1 April 2008 is affirmed.

I certify that this and the preceding [107] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER