IN THE MATTER of an appeal to the HERITAGE COUNCIL from a decision of the Executive Director dated 29 January 2002 refusing permission for alterations and additions to the heritage place at 664-666 Riversdale Road Camberwell, and to demolish the 1952 addition to the northern end of the existing building.

MARIARAJENDRAN

CONTENTS

A brief history
Observations - 1st, 2nd, 3rd, 4th, 5th & 6th
The previous appeal to the Heritage Council
Subsequent meetings with the Executive Director
The second and third permit applications
A chronology of the above matters
Evidence in relation to the issues under Section 73(1)(a) and (b)

A brief history

I. On 2 October 1991, the heritage place, then (as now) owned by the permit Applicant and her husband, was placed on the Register.

2. The statement of significance claims that the 1952 addition demonstrates Boyd's architecture "from the early period of his career",

3 .In early May 1999, the Permit Applicant removed the roof and ceiling of the 1952 addition without permission.

4. A CMP was not prepared until 4 September 2001. It focused on the 1952 addition.

5. At page ii) the following passage appears:

"It can now be concluded that, since it has been built on recovered fill with an inadequate amount of stabilisation, with an unusual for its time and inadequate footings system, the walls and concrete slab are currently in an unstable structural condition. Further to this; the observed defects in the walls and footings appear to be long standing and not the result of the roof being removed in 1999. Stabilisation of the existing footings and walls is deemed to be possible, but it would involve substantial interventions and would be expensive, meaning that the extant structure probably needs to be demolished."

At page 75, dealing with recommendations for different sections of the building, the following statement appears, in the paragraphs devoted to the 1952 addition:

"Whether reconstruction is warranted is an important issue and must be considered in the light of an overall redevelopment strategy where an effective and balance holistic approach is taken to the site incorporating conservation objectives and the need for amenity of the owners/occupants ,"

6. It is debatable that the Executive Director knew very little about the heritage place, or its condition, until the preparation of the CMP, and that details of the 1952 addition in the CMP are scant, to say the least.

7. The Permit Applicant has not been able to obtain a permit for an overall redevelopment strategy, since her first attempt to do so, on 15 July 1999 (ignoring an early pewit application in 1990).

8. It has not been for want of trying.

9. This is the second appeal to the Heritage Council, and the fourth permit application, since 15 July 1999j the date of the first application. Since that date, the Executive Director has issued two show cause notices, and one repair order, against the Permit Applicant. None were fully complied with, by the permit Applicant. The Executive Director did not seek a penalty under Section 164 of the Heritage Act 1995; nor did he seek to carry out the work himself.

10. There have been two proceedings in the Supreme Court; one, commenced by the Permit Applicant, complained that the show cause notices and the repair order were vague, uncertain, and beyond power; the other, commenced by the Executive Director, complained that various contraventions had occurred with regard to the heritage place, and sought orders for works to be carried out on the heritage place.

11. The CMP was not available prior to the making of this application. Quite possibly it would still not be available, but for consent orders which were made in the two Supreme Court proceedings on 12 February 2001.

12. Pursuant to those orders, the Executive Director agreed to commission the CMP (and pay for it). He also agreed to discontinue his proceeding if the Permit Applicant complied with its recommendations or the directions of the Executive Director, in relation to the 1952 addition.

13. The Executive Director made no directions, and the only recommendation in the CMP relating to the 1952 addition was the recommendation set out above, that there should be an overall redevelopment strategy prepared.

14. The application which is the subject of this appeal, was prepared and lodged on 4 October 2001, in response to the CMP recommendation.

15. The response of the Executive Director to the CMP. was to ignore the recommendation and push on with the Supreme Court proceeding. It was duly listed for hearing, and heard on 5 March 2002.

16. On 29 January 2002j some four months after the lodging of the application, and after obtaining an extension of time from the Heritage Council, pursuant to an application to which the Permit Applicant was not privy, and accordingly not heard, the Executive Director refused the permit.

17. In the result, the earliest date obtainable for an appeal to the Heritage Council, was today.

18. The Executive Director successfully opposed an application to adjourn the Supreme Court hearing, and the Permit Applicant was forced to defend the proceeding over a week or more. in the Supreme Court.

19. In the result, the Executive Director was partially successful. in that orders were made in respect of roughly half the work referred to in the originating Motion commencing the proceeding.

20, The work which was the subject of the orders made by the Court, was confined to the re-building of the roof and ceiling removed without a permit on or about 4 May 1999.

Some observations of critical importance

The first observation

21. In each of the three Notices of Refusal. dated 31 August 1999j 28 November 2000. and 29 January 2002. respectively, the Executive Director made the following statement:

"Achievement of the brief in its present form is not supported ahead of the retention and reinstatement of the 1952 extension."

The conclusion reasonably to be deduced, is that the Executive Director did not and will not entertain an overall redevelopment strategy for the heritage place. which proposes the demolition of the 1952 addition, unless the roof and ceiling are first rebuilt.

The accuracy of this conclusion is rendered more likely. by an examination of the three officer reports, supporting the refusals. In respect of the first two applications, dated 9 August 1999, and 27 November 2000~ respectively, the following comment is made:

"Is there a Conservation Plan? No and it is desirable that one be prepared before any further new work is proposed. "

From the above, one might have thought that the documented information with regard to the heritage place, which was available to the officer, was virtually NIL, and certainly insufficient. This is borne out by an examination of those files in the possession of the Executive Director. which he was prepared to make available for the examination of the Permit Applicant. On that basis it might have been doubted whether the first statement quoted above was truly an expression of intention on the part of the Executive Director. However, in the officer report in respect of this application prepared ~ publication of the CMP ~ the same statement appears, i.e.:

"Achievement of the brief in its present form is not supported ahead of the retention and reinstatement of the 1952 extension."

22. This leaves no room for doubt. It follows therefore, that the Executive Director has never property exercised his discretion in refusing the permits sought.

23. It behoves the Permit Applicant to explain why she made three permit applications, none of which proposed the retention of the 1952 addition.

The second observation

24. Accordingly, the second observation: since July 19991 although advised that the extant walls and slab floor of the 1952 addition are subject to movement. And from a technical point of view, preferably demolished, the Executive Director has declined to take these circumstances into account, or to give them any or sufficient weight.

a. On the basis of geo-technical information supplied by Hardrock Geotechnical Pty. Ltd. (20 July 1999, and 30 April 2001) and MacGregor Soil & Rock Engineering Pty .Ltd. (21 June 1990), her architect ~ Mr. Rippon was advised by consulting engineers, Greg Schofield & Associates Pty. Ltd. (5 July 1999~ 8 February 2001~ and 9 February 2001) that the 1952 addition should be demolished, because "there remains doubt as to the structural integrity of the footings system for this section".

b. This information, together with the reports, accompanied the first application.

c. The Executive Director failed or refused to give any or sufficient weight to the above matters; as can be seen from the officer reports.

The third observation

25. By means of the show cause notices and the repair order, the Executive Director has consistently demanded the reinstatement or reconstruction of the 1952 addition, not just to the extent necessary to prevent further deterioration, as permitted by Section 161(2), but to the condition it was in, when originally constructed.

26. Quite apart from the above ~ the Permit Applicant took umbrage at these requirements:

a. They were imposed in terms which were vague and uncertain; further, so far as the Permit Applicant could ascertain, the Executive Director did not have any documented or definite information, such as plans or specifications~ from which the original condition of the 1952 addition could accurately be ascertained.

b. The condition of the 1952 addition, throughout the period was (and still is) far removed from its original condition as a result of alterations and additions which were made before the building was registered, and simple wear and tear. The building is now in a state of such dereliction as to be uninhabitable.

c. The innuendo felt by the Permit Applicant, was and is, that she allowed the building to fall into the above state, whereas in fact, it was very lightly constructed in the first place, and long past its use-by date, say. by 1975, long before it was registered.

27. The validity of the show cause notices and the repair order, was thus seriously in doubt.

The fourth observation

28. Ultimately, the Executive Director, did not rely on either of the notices or the repair order.

29. Instead. he issued a proceeding pursuant to Section 168. Such a proceeding must be based on a contravention. None was actually specified in the Originating Motion commencing the proceeding; however the Permit Applicant obviously enough, assumed that reliance would be placed on the unauthorised removal of the roof and ceiling.

30. The ambit of the Court's discretion was wide as discussed in the judgment.

31. In the result, the parties debated in full, the construction issues affecting the 1952 additions. In the process, both sides called very sophisticated expert evidence~ and the hearing was extended to a week or more, as already stated.

The fifth observation

32. The Executive Director forced the Permit Applicant into the Supreme Court, not once, but twice ~ knowing that the future of the 1952 addition could only be resolved by the Heritage Council.

33. On the first occasion, the proceeding was adjourned, to enable the preparation of the CMP as indicated above.

34. On the second occasion! the Executive Director forced the Permit Applicant on, notwithstanding the recommendations of the CMP referred to above.

The sixth observation

35. Quite apart from the matters referred to above, the Executive Director demonstrably failed to exercise his discretion properly, in all of the previous applications, and with regard to the present application.

a. Nowhere, in any of the officer reports, is there an adequate assessment of the heritage significance of the 1952 addition or the significance of any item referred to in the Statement of Significance. This goes for the officer report on the present application, which fails to properly analyse the CMP.
b. Nowhere in the officer reports, is there an adequate assessment of the reasonable or economic use of the 1952 addition.

The previous appeal to the Heritage Council

36. The Heritage Council disallowed the appeal, but made the following comments:

• Whilst we understand the technical constraints of the site) we do not see this as an impediment to further development.
• There should be scope in any new proposal, to influence the reinstatement of the 1952 extension in a manner acceptable to the Executive Director.
• In considering the available site) we recommend Some compromise be explored to allow construction within 6 metres of the frontage.

Subsequent meetings with the Executive Director

37. There were four meetings with the Executive Director and/or his Reporting Officer, between the unsuccessful appeal to the Heritage Council) apd the issue of the application in the Supreme Court.

They took place on:

• 23 March 2000;
• 5 April 2000;
• 8 June 2000; and
• 14 June 2000.

38. At those meetings, the Executive Director was requested to consider and comment on proposals for a permit. When he declined to do so at the meetings, he was requested to do so after the meetings.

39. He did not do so.

40. The proceeding was commenced, when the Executive Director, through his solicitors, demanded an undertaking that the roof would be replaced, failing which, a range of measures which might be brought against her, were referred to 'in terrorem'.

The second and third permit applications

41. The second and third applications, accordingly, were aimed at obtaining an indication from the Executive Director, with regard to the following issues:

• the permissible height and bulk of any new building, at the front of the site;
• its location, in relation to the existing building;
• the extent to which the 1952 addition. if retained, could be adapted from its original use;
• having regard to the fact that the 1952 addition was built on unconsolidated fill, and had moved after construction, resulting in a doming of the slab, and cracking of the east and west walls, whether reconstruction and/or reinstatement would be required;
• whether and if so, how and to what extent, the Executive Director was willing to weigh up the "reasonable and economic use" of the site, against the heritage value of the building.

42. Application P5041 was for a proposal which involved the demolition of the 1952 addition, and the construction of a new building at the front of the site.

43. Application PS042 was for a similar new building, and for the retention of the 1952 addition, adapted for a new purpose.

44. The decisions were not delivered until 28 November 2000. They were to refuse the proposal involving demolition, and to grant a permit for the proposal involving retention. Copies of the decisions are attached to these submissions.

45. An appeal to the Heritage Council against the refusal, was lodged on 15 December 2000; however, as indicated above, a hearing date was not set by the Heritage Council, possibly because the Executive Director's application under Section 168, and the Applicants' proceeding, were set down for hearing in the Supreme Court on 12 February 2001.

A chronology of the above matters

47. A brief chronology of the above matters is set out below:

Evidence in relation to the issues under Section 73(1)(a) and (b)

I. It is proposed to call two highly qualified valuers to give evidence as to the effect on the highest and best use of the site, resulting from the presence of the extant buildings.

2. Two lay witnesses, one of which will be the permit Applicant will be called to give evidence with regard to the practical difficulties associated with residing in the extant buildings.

3. The Council will be invited to conclude from the above, that the highest and best use of the site would be for residential purposes, possibly for units, were it not for the extant buildings, and that as a result of the controls On the extant buildings. The attractiveness of the site to a purchaser is so severely limited that it might not be saleable at all.

4. It is proposed to call Mr.Beeston, Dr.Goad, and Mr Rippon, with regard to the effect of the application, if approved on the cultural heritage significance of the place.

5. It is proposed to call Mr. Ervin at least, and possibly further expert witnesses on the technical constraints affecting the decision whether to require reinstatement or reconstruction of the 1952 addition.

6 Ultimately, however, the Permit Applicant again requests some indication of what is expected of her, regarding the site, and what will be permitted. She has now waited virtually for three years, for all indication as to what would be acceptable.