BALLARAT PLANNING SCHEME AMENDMENT C58 HERITAGE AMENDMENT

PANEL REPORT

JANUARY 2004 BALLARAT PLANNING SCHEME AMENDMENT C58 HERITAGE AMENDMENT

PANEL REPORT

HELEN GIBSON, Chair

MAGGIE BARON, Member

ELIZABETH JACKA, Member

JANUARY 2004 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 1

TABLE OF CONTENTS

1. OVERVIEW...... 4

2. THE PANEL PROCESS...... 9

2.1 THE PANEL ...... 9 2.2 HEARINGS AND INSPECTIONS...... 9 2.3 SUBMISSIONS ...... 10 3. WHAT IS PROPOSED? ...... 11

3.1 THE AREA AFFECTED BY THE AMENDMENT ...... 11 3.2 THE AMENDMENT...... 11 3.3 THE NATURE OF THE AMENDMENT...... 16 4. ISSUES ...... 19

4.1 NATURE OF SUBMISSIONS ...... 19 4.2 ISSUES ASSOCIATED WITH THE APPLICATION OF HERITAGE CONTROLS ...... 19 4.3 PANEL’S APPROACH ...... 21 5. STRATEGIC CONTEXT ...... 24

5.1 PLANNING POLICY AFFECTING THE AMENDMENT ...... 24 5.2 METROPOLITAN STRATEGY – MELBOURNE 2030 ...... 24 5.3 STATE PLANNING POLICY FRAMEWORK (SPPF)...... 25 5.4 BALLARAT PLANNING SCHEME LOCAL PLANNING POLICY FRAMEWORK (LPPF) ...... 26 5.5 STRATEGIES ...... 28 5.6 PLANNING GUIDELINES...... 29 5.7 HERITAGE STUDIES...... 32 6. RECENT PANEL REPORTS ON HERITAGE...... 35

6.1 INTRODUCTION ...... 35 6.2 REPORT ON TRENDS AND ISSUES EMERGING FROM CONSIDERATION OF THE FIRST FIVE NEW FORMAT PLANNING SCHEMES (1988) ...... 35 6.3 FINAL REPORT ON THE NEW FORMAT PLANNING SCHEMES (1999) ...... 36 6.4 FINAL REPORT ON THE GOOD DESIGN GUIDE AND VICCODE 1 (2000)...... 36 6.5 MONASH L51 (2000) ...... 37 6.6 STONNINGTON L47(D) (2000)...... 38 6.7 STONNINGTON C12 PART 2 (2002)...... 41 6.8 STONNINGTON C5 & C6 PART 2 (2003) ...... 42 6.9 YARRA RANGES C16 PART 2 (2003) ...... 45 6.10 HOBSONS BAY C17 (2003) ...... 47 7. BALANCING COMPETING OBJECTIVES...... 51

7.1 HERITAGE OVERLAY...... 51 7.2 HERITAGE CONSERVATION POLICIES...... 52 8. APPLYING THE HERITAGE OVERLAY...... 55

8.1 APPLYING THE HERITAGE OVERLAY IN BALLARAT ...... 55 8.2 BALLARAT HERITAGE STUDY STAGE 2...... 55 8.3 DELINEATING HERITAGE AREAS...... 58 8.4 STATEMENTS OF SIGNIFICANCE ...... 59 9. MANAGING HERITAGE PLACES ...... 61

9.1 WAYS OF MANAGING HERITAGE PLACES ...... 61 9.2 LOCAL PLANNING POLICIES...... 62 9.3 GUIDELINES ...... 68 9.4 SCHEDULE TO HERITAGE OVERLAY ...... 69 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 2

9.5 INCORPORATED PLAN ...... 71 9.6 EXTERNAL PAINT CONTROLS...... 72 9.7 DEMOLITION OF ‘NON-SIGNIFICANT’ PLACES ...... 74 10. HERITAGE CONSERVATION POLICY...... 76

10.1 HERITAGE CONSERVATION POLICIES IN AMENDMENT C58 ...... 76 10.2 STRATEGIC BASIS FOR HERITAGE CONSERVATION POLICY ...... 78 10.3 IS A LOCAL PLANNING POLICY NECESSARY?...... 80 10.4 NEW DEVELOPMENT AND ALTERATIONS ...... 83 10.5 LANGUAGE, FORM AND STRUCTURE...... 90 10.6 SIGNIFICANT AND NON-SIGNIFICANT BUILDINGS ...... 93 10.7 DESIGNATING NON-SIGNIFICANT BUILDINGS ...... 101 10.8 CRITERIA FOR DETERMINING SIGNIFICANCE...... 104 10.9 SUMMARY OF RECOMMENDATIONS REGARDING THE HERITAGE CONSERVATION POLICY FOR BALLARAT ...... 111 11. HERITAGE PLANNING CONTROLS IN VICTORIA...... 115

11.1 HISTORY OF HERITAGE PROTECTION IN VICTORIA ...... 115 11.2 OPERATION OF THE HERITAGE OVERLAY ...... 117 11.3 WHAT IS ‘HERITAGE SIGNIFICANCE’?...... 118 11.4 SHORTCOMINGS WITH THE HERITAGE OVERLAY AND ITS MANAGEMENT...... 123 11.5 HERITAGE PLANNING POLICIES ...... 129 11.6 OPTIONS FOR REFORM ...... 130 11.7 CRITERIA FOR ESTABLISHING LOCAL SIGNIFICANCE ...... 133 12. CONSIDERATION OF SUBMISSIONS ...... 135

12.1 INTRODUCTION ...... 135 12.2 REQUESTS FOR CHANGES TO PRECINCT BOUNDARIES...... 135 12.3 INCLUSION OF INDIVIDUAL SITES (SUBMISSION 6)...... 146 12.4 MAPPING ISSUES (SUBMISSIONS 23 AND 32) ...... 146 12.5 INCORPORATED PLAN (SUBMISSIONS 23, 29, 30)...... 147 12.6 HERITAGE CONSERVATION POLICY (SUBMISSIONS 3, 4, 23 AND 32) ...... 151 12.7 INCORPORATED AND REFERENCE DOCUMENTS (SUBMISSION 23)...... 155 12.8 INADEQUATE NOTIFICATION & NON-AVAILABILITY OF REFERENCE DOCUMENTS (SUBMISSIONS 23, 35 AND 37) ...... 156 12.9 LOSS OF OWNERS PROPERTY RIGHTS (SUBMISSIONS 8, 14, 17, 21, 31, 35, 37, 41) ...... 157 12.10 DEMOLITION CONTROLS ARE INAPPROPRIATE (SUBMISSIONS 9 AND 39) ...... 158 12.11 NEED TO ENCOURAGE INNOVATIVE DESIGN (SUBMISSION 25)...... 158 12.12 COST OF CONTROLS & DEVALUATION OF PROPERTIES (SUBMISSIONS 8, 19, 23, 34, 37, 39) ...... 159 12.13 TREE PROTECTION CONTROLS (SUBMISSIONS 15, 18,20, 32, 38)...... 160 12.14 MODIFICATIONS SUGGESTED BY COUNCIL ...... 161 12.15 OTHER MATTERS...... 162 13. STRATEGIC ASSESSMENT GUIDELINES...... 164

14. CONCLUSIONS & RECOMMENDATIONS ...... 168

14.1 CONCLUSIONS...... 168 14.2 RECOMMENDATIONS...... 169 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 3

APPENDICES

A. LIST OF WRITTEN SUBMISSIONS

B. CLAUSE 43.01 – HERITAGE OVERLAY

C. AHC CRITERIA FOR THE REGISTER OF THE NATIONAL ESTATE

D. REVISED INCORPORATED PLAN

E. REVISED HERITAGE POLICIES

F. ANALYSIS OF ALL OBJECTIVES, POLICIES & DECISION GUIDELINES APPLYING TO HERITAGE PLACES IN BALLARAT

G. FINAL REPORT ON THE GOOD DESIGN GUIDE AND VICCODE 1

H. STONNINGTON L47(D) PANEL REPORT

I. MONASH L51 PANEL REPORT

J. STONNINGTON C5 & C6 PART 2 PANEL REPORT

K. HOBSONS BAY C17

L. STRATEGIC ASSESSMENT GUIDELINES BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 4

1. OVERVIEW

Amendment C58 to the Ballarat Planning Scheme proposes to introduce extensive Heritage Overlays for 19 precincts covering a major part of Ballarat’s established urban area. The Amendment also proposes to introduce a Heritage Conservation Policy consisting of a general heritage policy and 19 separate policies for each precinct. Management of the Heritage Overlay will be aided by an incorporated plan under the schedule to the Heritage Overlay, which exempts certain minor works at the side and rear of buildings from the need for a planning permit.

The Heritage Overlays are underpinned by a lengthy, detailed heritage study, Ballarat Heritage Study Stage 2, which builds on the substantial volume of heritage studies undertaken about Ballarat over many years.

There are three sets of issues relating to Amendment C58 that the Panel has addressed: ƒ Application of the Heritage Overlay ƒ Subsequent management of the Heritage Overlay ƒ The implications it raises in the broad context of heritage planning in Victoria generally 1. Application of the Heritage Overlay

The first set of issues concern the adequacy or rigour of the Ballarat Heritage Study Stage 2 and the delineation of the heritage areas. The need for rigour in the preparation of heritage studies is emphasised in the Planning Practice Note on applying the Heritage Overlay and has been commented upon in many panel reports.

In the case of Ballarat, there was no independent, expert evidence that tested or challenged any aspects of the Ballarat Heritage Study Stage 2. The Panel considered the role of the panel in evaluating heritage studies in such circumstances. On the basis of the material before it, and in the absence of any conflicting expert opinion, the Panel finds that the Ballarat Heritage Study Stage 2 provides adequate justification for the application of the Heritage Overlay to the relevant precincts.

Likewise, the Panel finds that the statements of significance in the Ballarat Heritage Study Stage 2 are adequate for the purpose of identifying the nature of the heritage significance relied upon as justifying the Heritage Overlay. However, whilst they meet the requirements of the Local Government Heritage Guidelines (1991), which are referred to in Clause 15.11 of the SPPF, the Panel considers they will be less useful in guiding day to day decision-making affecting the heritage precincts. This is a shortcoming common to many statements of significance and indicates a need for better guidance about the role of statements of significance in planning decision-making, their preparation and their integration into planning schemes. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 5

In terms of the application of the Heritage Overlay to widespread areas of Ballarat, the Panel endorses the findings of previous panels that the Heritage Overlay should be applied to places of identified heritage significance without reference to the effect this may have on other planning objectives. Other issues and objectives should be considered within the context of heritage management policies or the decision-making process. However, where heritage conservation policies include policies which effectively prohibit demolition of significant or contributory buildings or which otherwise restrict the height or form of new development contrary to other provisions of the planning scheme, the Panel concludes that they should not be approved unless they are supported by an analysis of the way in which the policy will impact on the achievement of other strategic objectives.

In the case of Ballarat, the Panel has concluded there is a strong strategic basis within the MSS for protecting the City’s heritage areas and maintaining the integrity of its heritage streetscapes. The Panel considers the existing strategic directions within the MSS provide justification for a strong policy against demolition of significant or contributory buildings in heritage precincts and for careful controls over new development. Nevertheless, the intended primacy of this strategic direction could be better articulated.

2. Management of the Heritage Overlay

In the second set of issues addressed by the Panel, the different ways in which heritage places may be managed once the Heritage Overlay has been applied are identified. They include: ƒ A local planning policy which identifies how the council will exercise its discretion with respect to demolition or new development in certain circumstances ƒ Guidelines about the way in which heritage places should be managed, including the way in which demolition, alterations, additions and new development should be undertaken ƒ Scheduling items in or out of the schedule to the Heritage Overlay ƒ Introducing an incorporated plan which exempts certain matters from the need for a permit In Ballarat, the Council has used the mechanisms of a local planning policy, scheduling certain works out of the need for a planning permit and the introduction of an incorporated plan.

The Panel endorses the Council’s proposed use of the incorporated plan as a means of reducing the burdens associated with the Heritage Overlay in terms of administrative and compliance costs. The incorporated plan will set out a range of minor works that will not affect the heritage significance of a place and will exclude these works from the need for a permit.

The Panel also endorses the use of the schedule to the Heritage Overlay to ‘schedule out’ certain areas from some of the controls under the overlay, such as external painting controls. It recommends that greater use could be made of these mechanisms to: ƒ Further remove external painting controls from most areas. ƒ Exempt demolition of non-significant buildings from the need for a permit. The Panel endorses the Council’s proposal to identify non-significant buildings in a new incorporated document as a means of introducing further certainty to the planning scheme, but recommends that the designation should be limited to non-significant buildings only. It BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 6

recommends that a new policy should be introduced to the effect that all other buildings will be considered to contribute to the significance of the heritage area unless it is established to the satisfaction of the responsible authority that the building is not of contributory significance. This may be done at the time an application for a planning permit is made. In considering whether a building contributes to the significance of the heritage place, the responsible authority should have regard to the criteria for establishing the significance of the heritage precinct set out in the statement of significance for each precinct.

Buildings listed in the new incorporated document as not of heritage significance would not require a permit for demolition under the incorporated plan specified in the schedule to the Heritage Overlay.

The other important aspect of managing the Heritage Overlay is through a local planning policy. The Panel is supportive of appropriate local planning policies on heritage conservation provided they: ƒ Comply with the Planning Practice Note on writing a local planning policy ƒ Fit within an overall strategic framework for the municipality ƒ Are not introduced for an ulterior purpose (ie a purpose not related to the objectives of the Heritage Overlay and the discretion which must be exercised under it) ƒ Are not contrary to accepted conservation practice and the principles of the Burra Charter Whilst the Panel is supportive of the need for a local planning policy on heritage conservation in Ballarat, and finds strong strategic support for it in the MSS, it is critical of the proposed policy in Amendment C58 on the grounds that: ƒ Its sheer size and complexity is confusing and makes it difficult for users to comprehend. ƒ It does not meet the requirements of the Planning Practice Note on writing a local planning policy. ƒ Many of the concepts and guidance it contains: − are not clearly expressed or readily intelligible to people without a heritage conservation background − possibly offend good conservation practice and the principles of the Burra Charter − contain material and constraints (eg height limits) that do not properly belong in a heritage policy − contain contradictory messages about the appropriate style of alterations, additions and new development ƒ It is uncertain in its operation. It depends on distinctions, such as between significant and non-significant buildings, which cannot be ascertained from the amendment or other exhibited material. ƒ It contributes to the proliferation of different local planning policies on heritage throughout the state. ƒ With respect to the 19 precinct policies, many of these are simply repetitive of information to be found in the statements of significance or so excessively generalised as to be unnecessary and unhelpful. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 7

By contrast, the Panel finds that the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) address the same range of matters and policy outcomes that the Council is concerned with but do so more comprehensively and with greater clarity.

The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) were prepared by Heritage Victoria with the express aim of providing assistance in the administration of the Heritage Overlay and to provide consistency in decision making across the state. The Panel considers that where guidelines such as these have been prepared for the specific purpose in question, it is more appropriate for them to be used than for individual councils such as the City of Ballarat to ‘reinvent the wheel’ by drafting their own guidelines or policy.

The Panel recommends that the general heritage policy in Amendment C58 should be deleted and replaced by a simple policy that would require the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) to be considered when dealing with applications under the Heritage Overlay. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be made an incorporated document in the Ballarat Planning Scheme. The 19 precinct policies should also be deleted. Separate precinct policies should only be included if they will achieve an outcome or objective that would not be achieved by a proper consideration or application of other aspects of the planning scheme.

3. Implications for heritage planning in Victoria

The Panel has reviewed a series of previous panel reports dealing with heritage planning in Victoria, which express concern about a range of matters affecting heritage planning. It examines the history of heritage protection in Victoria, the evolution of the current Heritage Overlay and the expansion of the concept of cultural significance. In the Panel’s view, the Ballarat Heritage Study Stage 2 and the application of the Heritage Overlays proposed by Amendment C58 are examples of the outcomes that the expansion in the concept of cultural significance and the growth in community expectations about heritage planning and protection are having.

The Panel considers that the present Heritage Overlay suffers from a series of shortcomings and reflects a ‘one size fits all’ approach both in the nature of control and the degree of rigour expected in the preparation of heritage studies required to justify the application of the Heritage Overlay. In terms of planning controls, the level of strategic justification required and expectations about management outcomes, the Panel questions whether the concept of ‘one size fits all’ remains appropriate for the full spectrum of heritage places, which may range from buildings of state and national significance to the type of large heterogeneous areas with buildings dating from the 1850s to the 1940s and 1950s, as represented by Ballarat. The Panel suggests there should be a less onerous, more equitable approach to the protection of assets the community perceives to have cultural significance, but which recognises the discrepancies in levels of significance and the type of management appropriate to the different levels.

The Panel examines some options for reform, which it recommends should be considered in the context of a review to be undertaken by DSE of the Heritage Overlay and the criteria used to assess heritage significance at a local level. Foremost among the changes suggested for the Heritage Overlay is the introduction of a two-tier system of heritage significance, which BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 8

would involve different standards in the initial justification of heritage significance, different opportunities to challenge heritage significance and different expectations about demolition.

Recommendations and outcomes

The Panel recommends the adoption of Amendment C58 with a number of modifications. Minor changes are recommended to the extent of the Heritage Overlay as a result of individual submissions. More significant changes are recommended to the Heritage Conservation Policy, although retaining similar policy outcomes, by incorporating the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) in lieu of the exhibited policy. Other improvements are recommended to ways in which the Heritage Overlay will be managed, including changes to the schedule and the incorporated plan, and introduction of a new incorporated document, which will identify non-significant buildings. This would be accompanied by a new policy that would regard all other buildings as being contributory to the significance of the heritage precinct but would allow the assumption of contributory significance to be challenged at the time of application for a planning permit.

The Panel further recommends that DSE undertake a review of the Heritage Overlay and the criteria used to assess heritage significance at a local level.

The outcome of Amendment C58 will be to protect Ballarat’s heritage, which is an important aspect of strategic directions within the Ballarat Planning Scheme. However, the Panel finds the amendment will have an adverse effect on the potential for increasing housing densities within existing areas. Opportunities for new development in areas with good access to existing services and facilities and close proximity to the central city will be reduced by the extensive application of the Heritage Overlay.

It is possible that this impact on other strategic directions within the planning scheme may not constitute an impediment to sustainable growth in Ballarat due to the city’s unique circumstances. Unlike some other places, Ballarat may well have sufficient space to accommodate such growth without the need to intrude upon its heritage areas or there may be opportunities within parts of its heritage areas to recycle buildings to achieve more intensive housing densities. It may also be that the economic and other benefits associated with conserving and promoting Ballarat’s heritage outweigh the possible disbenefits associated with application of the overlay.

However, the Panel does not consider that these outcomes are as clear as they might be and it considers that these factors could be articulated more clearly in the MSS. This will be especially important at times when the objectives of the Heritage Overlay conflict with other strategic planning objectives. It will help to resolve the weight to be placed on respective objectives if there is some explicit guidance in the MSS about the way the Council views the balance. This should also be reflected in the policy basis forming part of the rewritten Heritage Conservation Policy. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 9

2. THE PANEL PROCESS

2.1 THE PANEL The Panel was appointed under delegation on the 11 September 2003 pursuant to Sections 153 and 155 of the Planning and Environment Act 1987 to consider and hear submissions in respect of Amendment C58 to the Ballarat Planning Scheme. This amendment applies the Heritage Overlay to 19 heritage precincts in Ballarat, Learmonth and Buninyong, and introduces a new Heritage Conservation Policy and a local planning policy for each of the 19 precincts. The planning authority is the City of Ballarat.

The Panel consisted of: ƒ Helen Gibson, Chairperson ƒ Maggie Baron ƒ Elizabeth Jacka

2.2 HEARINGS AND INSPECTIONS A Directions Hearing was held on 14 October 2003 and a number of directions were made, which related primarily to the exchange of witness material and the provision of further material to the Panel. The Panel also directed that the planning authority should address the following matters as part of its submission: ƒ Reference is made in the submission by John Manton to the many reference documents in the policies, which he submits should be included as Incorporated Documents. Is there information in the reference documents which should be considered that is not included in the policies? In other words, why are they included as documents to be considered in the exercise of discretion? ƒ To what extent is the information in the earlier documents included in or subsumed by the Ballarat Heritage Study Stage 1 or Stage 2? ƒ Should the Ballarat Heritage Study (either Stage 1 or 2) be an Incorporated Document? ƒ The policies refer to significant, contributory and non-contributory buildings. John Manton submits that such buildings are not identified therefore it is impossible to apply the policy. How are significant, contributory and non-contributory buildings to be identified in order that the policies can be applied? ƒ What is the relationship between the Heritage Policies and other policies in the LPPF or Melbourne 2030, which might impact on the future development of Ballarat? BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 10

ƒ How does the policy objective to promote reconstruction sit with the principles of the Burra Charter? ƒ Are the definitions in Clause 22.15-2 the same as in the Heritage Act? ƒ Mapping issues identified in John Manton’s submission should be addressed or responded to. In particular, how will the Heritage Overlay for precincts sit with respect to Heritage Overlays over individual buildings? ƒ What is the status of the interim controls and how do they sit with respect to Amendment C58? ƒ Have the operating costs to the Council of Amendment C58 been assessed? ƒ What are the overall economic and social benefits and/or disbenefits to Ballarat likely to be as a result of Amendment C58? The Panel Hearing was held on 18 November 2003 at Old Colonists’ Club, Ballarat.

The Panel members inspected some of the precincts to gain a better appreciation of the issues raised in submissions and the statements of significance.

2.3 SUBMISSIONS A list of all written submissions to Amendment C58 is included in Appendix A.

The following people were heard at the Panel Hearings

Submitter Represented By

City of Ballarat Mr Heath Martin, Manager Strategic Planning, and Ms Vicki Johnson, Heritage and Urban Design Officer.

John Manton Mr John Manton

Anne Beggs Sunter Ms Anne Beggs Sunter

Joan Hellyer Mrs Joan Hellyer

The Panel has considered all written and oral submissions and all material presented to it in connection with this matter. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 11

3. WHAT IS PROPOSED?

3.1 THE AREA AFFECTED BY THE AMENDMENT Amendment C58 to the Ballarat Planning Scheme applies to inner areas of the City of Ballarat, parts of Buninyong township and Learmonth township.

Figure 1 shows the extent of the area covered by the Heritage Overlays under Amendment C58. Figure 2 shows the combined areas of existing and new Heritage Overlay areas.

3.2 THE AMENDMENT

3.2.1 Interim controls The amendment will replace interim heritage controls that were introduced into the Ballarat Planning Scheme in April 2001. The interim controls were introduced following completion of Stage 1 of the Ballarat Heritage Study. The Stage 1 study identified a wide area of heritage significance covering the inner areas of Ballarat and the townships of Buninyong and Learmonth. Stage 2 of the study was to conduct a detailed assessment of the areas of heritage significance identified in Stage 1. However it was recognised that the Stage 2 study would take some time to complete, and Council was concerned that the heritage values of the areas of significance could be eroded if there were no interim controls over demolition and building construction and works in the intervening period.

The interim heritage controls comprised: ƒ Application of the Heritage Overlay to three broad precincts: one covering the inner areas of Ballarat, one covering parts of Buninyong and one covering Learmonth. ƒ Introduction of a Heritage Policy for each of the three precincts. ƒ Introduction of an incorporated plan that exempts properties covered by the three heritage precincts from various permit requirements of the Heritage Overlay. The interim heritage controls contained a sunset clause limiting the life of the controls to 31 January 2002. By this time it was anticipated that Stage 2 of the Heritage Study would be completed and a replacement amendment would have been prepared. However, this time frame proved to be optimistic and life of the interim controls has been extended a number of times. The interim controls are now to expire on adoption of Amendment C58. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 12

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3.2.2 Amendment C58 Amendment C58 proposes to create 19 heritage precincts that will replace the three existing interim heritage precincts; to introduce heritage policy that relates to the 19 precincts and replaces the existing heritage policy at Clause 22.15; and to introduce a new incorporated plan that replaces the existing Interim Heritage Controls 2001 – Incorporated Plan.

The proposed amendment is based on the recommendations of the Ballarat Heritage Study Stage 2.

3.3 THE NATURE OF THE AMENDMENT The exhibited amendment proposed to amend the schedule to the Heritage Overlay by adding the following Heritage Places: ƒ HO163 Lake Wendouree Precinct ƒ HO164 West Ballarat Precinct ƒ HO165 Victoria Park Precinct ƒ HO166 Central Ballarat Precinct ƒ HO167 Sturt Street Precinct ƒ HO168 South Ballarat Precinct ƒ HO169 Waller Estate Precinct ƒ HO170 Soldiers Hill Precinct ƒ HO171 Lydiard Street Precinct ƒ HO172 Creeks and River Channels Precinct ƒ HO173 Mount Pleasant/Golden Point Precinct ƒ HO174 Black Hill Precinct ƒ HO175 Humffray Street Precinct ƒ HO176 Bridge Mall/Bakery Hill Precinct ƒ HO177 Victoria Street Precinct ƒ HO178 Ballarat East precinct ƒ HO179 Eureka Street Precinct ƒ HO180 Learmonth Precinct ƒ HO181 Buninyong Precinct The permit exemptions set out in the Incorporated Plan are to apply to each precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 17

External paint controls are to apply to HO167 – Sturt Street Precinct, HO171 – Lydiard Street Precinct, HO176 - Bridge Mall/Bakery Hill Precinct and parts of HO177 – Victoria Street not exempted from the controls by the incorporated plan.

Tree controls are to apply to HO163 – Lake Wendouree Precinct, HO165 – Victoria Park Precinct, HO172 – Creeks and River Channels Precinct and H0174 – Black Hill Precinct.

Notice of an application and appeals rights are to apply to any application to demolish or remove an outbuilding or fence in HO163 – Lake Wendouree Precinct, HO165 – Victoria Park Precinct and HO174 – Black Hill Precinct.

The exhibited amendment also proposed to replace the three local planning policies relating to the interim heritage precincts with a Heritage Conservation policy at Clause 22.15, and planning policies relating to each of the 19 heritage precincts at Clauses 22.16 to 22.34. The Heritage Conservation policy contained definitions, and general objectives, policy and decision guidelines that relate to each of the precincts and the other heritage places listed in the schedule to the overlay. The planning policies relating to each of the heritage precincts contained objectives, policies and decision guidelines that are specific to the precinct and are derived from the citation for the precinct contained in Stage 2 of the Heritage Study.

The incorporated plan in the exhibited amendment proposed to exempt from the permit requirement, a proposal to: ƒ Construct a front fence less than 1.2 metres in height above natural ground level. ƒ Externally paint a building that does not face Victoria Street within the Victoria Street Precinct. At the Panel hearing the Council officers presented to the Panel a modified version of the amendment that responded to some of the issues raised by submittors.

The modified version proposes to extend the external paint controls in the schedule to parts of HO164 – West Ballarat Precinct and HO181 – Buninyong not exempted from the controls by the incorporated plan.

The modified version of the amendment proposes to consolidate the 20 local planning policies into one Heritage Conservation policy at Clause 22.15, by including as sub-clauses to that policy the specific policies relating to each of the precincts. The modified policy also deletes reference to ‘contributory heritage places’ and includes these places within the definition of ‘significant heritage places’. Furthermore, the modified policy deletes the definition ‘non- contributory places’ and inserts a new definition: ‘not significant places’. The modified policy also contains a significant number of other editorial changes.

The modified version of the amendment also proposes to make much greater use of the incorporated plan to increase exemptions from the permit requirement. The proposed incorporated plan now proposes the following exemptions from the permit requirement: Front Fences ƒ Construct a front fence less than 1.2 metres in height above footpath level except for the Waller Estate Precinct (HO169). BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 18

External Painting ƒ Externally paint a building: − that does not face Victoria Street within the Victoria Street heritage precinct (HO164) − that does not face Sturt Street within the Ballarat West Heritage Precinct (HO165) − that is located within that part of the Buninyong Heritage Precinct (HO181) identified within Map 1 to this incorporated plan. Properties shown in Map 1 still comprise the majority of properties within the Buninyong Heritage Precinct.

The incorporated plan also proposes exemptions from the permit requirement for building works that are minor or will not be visible from the street. These proposed exemptions are set out in Appendix A. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 19

4. ISSUES

4.1 NATURE OF SUBMISSIONS Forty submissions and a petition signed by 20 residents of Buninyong were received by the Council in relation to the proposed amendment to the Ballarat Planning Scheme. Seven of the submissions supported the proposed heritage controls, and a further five supported the controls, with qualifications relating to matters of detail. Two of the submissions were from public authorities, advising that they have no objection to the amendment.

Of the remaining 25 submissions, a number requested changes to the heritage precinct boundaries by either deleting or including properties in individual precincts. Other submissions expressed concern about loss of land owners’ basic property rights; the cost of permits and the cost to ratepayers to administer the controls; inappropriate emphasis on retention of past building stock; and potential stifling of innovative and progressive building design. On the other hand, a number of submissions argued that the proposed controls do not go far enough.

A number of submissions expressed concern about errors contained in the Heritage Study, and matters of detail in the Heritage Conservation policy and the incorporated plan. One detailed submission by Mr John Manton raised a number of concerns about the form, drafting and effect of the proposed amendment.

4.2 ISSUES ASSOCIATED WITH THE APPLICATION OF HERITAGE CONTROLS The key issues raised by Amendment C58 include: ƒ Is application of the Heritage Overlay over the 19 precincts justified? ƒ Are the Heritage Conservation Policy and the 19 local precinct policies appropriate for inclusion in the LPPF? ƒ How do the Heritage Conservation Policy and the 19 local precinct policies measure up when assessed against the Planning Practice Note on Writing a Local Planning Policy? The extensive application of the Heritage Overlay by Amendment C58 and the type of local planning policies it includes are similar to many other heritage amendments that planning panels have considered since the introduction of the new format planning schemes. Panels considering these amendments have raised numerous concerns relating to the quality of supporting heritage studies, whether it is the heritage significance of these areas that is being protected or some other urban character, and the expectations or assumptions that are BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 20

created by the application of the Heritage Overlay. More specifically, these concerns relate to matters such as: ƒ Inadequately drafted statements of heritage significance ƒ Inadequate historic research, reliance on facts that are wrong, reliance on conjecture, supposition or probabilities, lack “rigour” in the processes of historic research and assessment ƒ Inconsistency in the use of the AHC (or any other) criteria for assessing heritage significance, including the absence of any reference to such in relation to individual sites, inconsistency in the application of such criteria within and between studies ƒ Inconsistency in the application of thresholds of significance for the various heritage criteria ƒ Inadequate comparative analysis ƒ Inconsistency in the way that ‘hidden’ elements of a building (whether this be the external surfaces or its more basic structure) are taken into account in assessments ƒ The pre-emptive application of the Heritage Overlay to extensive sites, where the Heritage Overlay boundary is drawn in excess of the areas of known significance ƒ Inconsistency between local conservation policies and those applied by Heritage Victoria to buildings of State significance. ƒ ƒ Inconsistencies arising from the fact that Councils may have rejected earlier Panel recommendations supporting buildings of heritage value equivalent to or greater than those proposed in a particular amendment ƒ Difficulties in providing a clear statement of significance for extensive areas of Heritage Overlay ƒ The need to amend the Heritage Overlay in the VPPs to establish the status of statements of significance ƒ The need to clarify and simplify the criteria for assessing heritage assets of local significance ƒ The need to update the heritage guidelines referred to in the Heritage Overlay ƒ The substantial increase in resources entailed for both communities and councils when Heritage Overlays are applied to extensive areas ƒ The implications that the application of a Heritage Overlay has for the increased application of ResCode provisions to single dwellings that would not otherwise be affected by Clause 54 ƒ The assumptions that surround the listing of a building in a Heritage Overlay The issues associated with Amendment C58 raise concerns similar to a number of these matters.

Amendment C58 is an example of the growing trend to apply the Heritage Overlay to large areas of a municipality and then to set quite prescriptive local planning policies in place that will govern the management and future development of these areas. The practical effect of BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 21

these policies in many cases is to prohibit demolition of any ‘significant’ or ‘contributory’ buildings (frequently most of the existing built fabric); to limit new development to one or two stories in height; to promote reconstruction and reproduction architecture; and in some cases to require new buildings to be detached buildings.

In other words, the objective, in many cases, is to preserve the status quo so far as possible.

4.3 PANEL’S APPROACH Consideration of Amendment C58 involves consideration of many of the issues bedevilling heritage conservation within the planning system generally. For this reason, the Panel has taken the approach of considering a range of these issues in principle and in light of other recent panel reports and then applying those principles to its consideration of Amendment C58. These issues can be grouped as follows: ƒ Balancing competing objectives. Should this occur when the Heritage Overlay is applied or at the time of a planning permit application? ƒ Issues associated with application of the Heritage Overlay. This includes the quality of supporting heritage studies; the criteria used for determining what is of heritage significance, particularly at a local level; and the drafting of statements of significance. ƒ Issues associated with management of heritage places. This includes the way in which policies directing the exercise of discretion are being used and the matters that can be taken into consideration at the time of a planning permit application. ƒ The nature of heritage planning controls. This includes an examination of the way in which the Heritage Overlay currently functions and suggestions for changes in order to take account of the issues raised. At the outset, as background to its consideration of Amendment C58, the Panel has reviewed some recent significant panel reports dealing with heritage issues (see Section 6).

Section 7 considers the issue of balancing competing objectives and when this should be done.

In Section 8, the Panel looks at the issues associated with applying the Heritage Overlay. It considers what might constitute local heritage significance, what community expectations are with respect to heritage conservation and how these may differ from heritage significance established by using the AHC criteria.

In Section 9, the Panel looks at the way in which heritage places are managed under a Heritage Overlay. This includes the way in which local planning policies are being used to guide the exercise of discretion, the use of heritage controls to achieve other than heritage objectives and how they should be assessed in a broader strategic context.

Section 10 looks at the way in which ht policy is proposed to be used in Ballarat.

In Section 11, the Panel considers the nature of heritage controls generally within Victoria, how they might be modified to reflect the differences between State and local heritage significance, and how they might accommodate competing interests associated with community expectations, resources and the principles of fairness and equity. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 22

As will be seen from the Panel’s review of recent panel reports, a proper application of the AHC criteria (as contemplated by the Planning Practice Note on applying the Heritage Overlay) and use of the Local Government Heritage Guidelines (1991) even when considered in a local as distinct from State or national context, is very demanding. Proper application demands a rigour in research and analysis that is beyond many heritage studies that underpin Heritage Overlays.

Where the AHC criteria have been tested by recent panels, many studies have been found to be inadequate in their rigour with many individual properties failing to meet the criteria and consequently being recommended for removal from the Heritage Overlay. However, this still leaves many properties subject to the Heritage Overlay, which probably also fail to meet the criteria, where there has been no challenge or objection to their inclusion and no proper scrutiny of the rigour of the underpinning heritage study or statement of significance at the time of the amendment introducing the Heritage Overlay.

This leaves Victoria in a situation where arguably many of the so-called heritage places affected by the Heritage Overlay lack sufficient heritage significance based on the current criteria for inclusion to justify the controls. Conversely, it has led to some properties being excluded from the Heritage Overlay that members of the public would probably expect to see protected, based on public perceptions of what constitutes ‘heritage’.

It has also led to a situation where some councils, such as Stonnington, feel discriminated against, in terms that other councils are not being subject to the same degree of rigour. There is also the issue of expense associated with meeting the standards of rigour identified by panels as being appropriate to meet the AHC criteria and the Local Government Heritage Guidelines (1991). Other municipalities, which are arguably less well resourced than Stonnington, have also found themselves in the position of being required to undertake further expense by way of additional studies in order to justify the heritage controls that the community appears to want.

The discrimination complained of is based on the fact that clearly in other places the Heritage Overlay has been applied based on much less rigorous research and analysis either because there have been no objections, and hence no panel scrutiny, or the level of panel scrutiny has been less intense or lesser standards have been accepted.

The following options present themselves for consideration in response to the dilemmas associated with inconsistency in the quality of justification for heritage controls: ƒ Should panels ‘back off’ and take a less rigorous or onerous approach to the level of justification required for a Heritage Overlay? ƒ Alternatively, should a more realistic set of criteria for establishing heritage significance at a local level be devised, which better reflects community expectations as opposed to the more academic approach represented by the AHC criteria? ƒ In the event of the latter option being adopted, with a lesser standard being required to establish local significance compared to State or national significance, should the same set of controls apply and the same set of expectations about how the controls will be administered and places managed? In terms of the first option – whether panels should ‘back off’ – this Panel takes the firm view that the answer is no. Panels must apply the law as they find it. The ‘law’ in this case BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 23

includes the Planning and Environment Act 1987; the VPPs, which include the SPPF and the Heritage Overlay; incorporated documents such as the Local Government Heritage Guidelines (1991); and other aspects of the strategic context which are intended to guide decision-making and which are not the subject of review by the panel.

Thus it is not open to a panel to disregard the direction in the Planning Practice Note on applying the Heritage Overlay to require recognised criteria to be used for the assessment of the heritage values of a heritage place when deciding whether or not to apply a Heritage Overlay. Nor can a panel ignore the Local Government Heritage Guidelines (1991) or the Burra Charter and the guidance it gives to the management of heritage places when considering a local planning policy on heritage conservation. If there is a perception that these are not the right assessment tools, then the responsibility for changing them or identifying alternative tools lies with the Minister for Planning not the panel.

Nor is it an answer to the first option to say that panels should take a ‘softer’ line more in accord with the standards accepted by other councils or departmental officers when dealing with heritage amendments where there has been little or no panel scrutiny. The Panel considers that if other bodies are not properly applying the law, this is not justification for panels failing to do so. A panel would be failing in its duty if it was to take a deliberately relaxed view of the rigour and standards that the strategic context for heritage amendments demands be established in order to justify the application of a Heritage Overlay.

In March 2000, the Stonnington L47(D) panel found that the AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration, and recommended that Stonnington Council should seek State Government support for a review of these criteria for use at the local level. The Stonnington City Council wrote to the then Minister on 18 April 2000 seeking such a review, but to date nothing has happened so far as the Panel is aware.

This Panel considers that the preferable way to resolve the dilemma created by an unduly high or onerous standard for establishing heritage significance at a local level and the inconsistencies in the quality of the underpinning justification for heritage controls is to adopt the second option identified above. In other words, DSE should develop a more realistic set of criteria for establishing heritage significance at a local level, which better reflects community expectations, leaving the more academic approach represented by the AHC criteria to be applied when assessing the heritage value of places of State or national significance. As part of this recommendation, the Panel also recommends that the department should review the Heritage Overlay.

Recommendation The Panel recommends that DSE should undertake a review of: ƒ The criteria to be used for establishing heritage significance at a local level. ƒ The Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 24

5. STRATEGIC CONTEXT

5.1 PLANNING POLICY AFFECTING THE AMENDMENT This Section identifies the strategic context within which issues associated with Amendment C58 must be considered.

The relevant documents that provide the strategic context for considering Amendment C58 are as follows: ƒ Metropolitan Strategy – Melbourne 2030 ƒ Ballarat Planning Scheme – SPPF and LPPF ƒ Planning guidelines ƒ Heritage studies

5.2 METROPOLITAN STRATEGY – MELBOURNE 2030 The key directions of Melbourne 2030 that are of most direct relevance to this matter include:

Policy 3.1 Promote the growth of regional cities and key towns on regional transport corridors as part of a networked cities model. Melbourne 2030 envisages that Ballarat and other major regional centres will become a focus for accelerated development. Melbourne 2030 proposes to promote these cities as alternative growth centres. Issues associated with development of these cities, identified by Melbourne 2030, include: ƒ ... supporting development in those urban areas that can accommodate growth ƒ developing and reinforcing the distinctive roles and character of each city

Policy 5.2 Recognise and protect cultural identity, neighbourhood character and sense of place. Heritage, neighbourhood character and other non-physical aspects of an area combine to create sense of place. Melbourne 2030 proposes to reinforce the sense of place of areas by emphasising, amongst other things: ƒ heritage values and built form that has resonance for the community BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 25

Policy 5.4 Protect heritage places and values Melbourne 2030 recognises that heritage places ‘offer a way of experiencing the heritage and unique cultural identity of the people who live in a region.’ For this reason the cultural heritage of a place is seen as important not only to the people who live in the area, but also as an attraction to tourists. Melbourne 2030 states that the identification, conservation, protection and management of cultural heritage values across the region will receive continued support and lists as initiatives: ƒ Promote a consistent framework for assessment of heritage places and refine guidelines for the assessment of development proposals under the Heritage Overlay ƒ Provide guidance to local government and other agencies on preparing statements of heritage significance ƒ Ensure that planning schemes reflect the full extent of heritage values in each municipality

5.3 STATE PLANNING POLICY FRAMEWORK (SPPF) Many of the elements of the SPPF that are of relevance to Amendment C58 also reflect policies in the Metropolitan Strategy. Relevant elements of the SPPF include:

Clause 11.03 Principles of land use and development planning The SPPF recognises that society has various needs and expectations that need to be addressed by planning schemes. Clause 11.03 sets out seven general principles that must be considered by a planning authority when preparing a planning scheme. The general principle relating to the environment makes particular reference to the need to: ƒ Protect areas and sites with significant historic, architectural, aesthetic, scientific and cultural values. Clause 11 also emphasises the State Government’s expectation that planning authorities will endeavour to integrate conflicting objectives in favour of net community benefit and sustainable development.

Clause 14.01 Planning for urban settlement The objectives of planning for settlement are to ensure sufficient supply of land for various uses and to facilitate orderly development. To achieve these objectives planning authorities should: ƒ ... encourage consolidation of existing urban areas while respecting urban character. ƒ ... encourage higher density and mixed use development near public transport routes.

Clause 15.11 Heritage The heritage objective at Clause 15.11-1 is: To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or other special value important for scientific and research purposes, as a BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 26

means of understanding our past, as well as maintaining and enhancing Victoria’s image and making a contribution to the economic and cultural growth of the State. To achieve this objective: Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development. These include:… ƒ Sites associated with the European discovery, exploration and settlement in Victoria. ƒ Important buildings, structures, parks, gardens, sites, areas, landscapes, towns and other places associated with the historic and cultural development of Victoria, including places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria. ... Planning authorities should have regard to Local Government Heritage Guidelines (Department of Planning and Housing 1991) when preparing planning schemes or amendments to assist the conservation and enhancement of places, sites and objects of non-Aboriginal cultural heritage value.

Clause 18.01 Declared highways, railways and tramways In order to integrate land use and transport planning:

Higher land use densities and mixed-use developments should be encouraged near railway stations, major bus terminals, transport interchanges, tramways and principal bus routes.

Clause 19.03 Design and built form The design and built form objective at Clause 10.03 is: To achieve high quality urban design and architecture that: ƒ Reflects the particular characteristics, aspirations and cultural identity of the community. ƒ Enhances livability, diversity, amenity and safety of the public realm. ƒ Promotes attractiveness of towns and cities within broader strategic contexts. The design principle in relation to heritage is that: ƒ New development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations.

5.4 BALLARAT PLANNING SCHEME LOCAL PLANNING POLICY FRAMEWORK (LPPF)

MSS There are various elements of the LPPF that are relevant to Amendment C58. Many of the issues and objectives of the LPPF directly overlap with those of the SPPF and the Metropolitan Strategy. The Council’s MSS places particular emphasis on the city’s rich BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 27

historical and architectural heritage, and the value this has for tourism and the city’s economy. The following clauses are of particular relevance.

Clause 21.7-1 in relation to city image states that: Tourism based around Ballarat’s heritage is an increasingly important element of the City’s economy. The local community can enjoy the benefits and potential economic returns of a well preserved and cared for historic environment. The use and development of identified historic buildings in the City of Ballarat will now be controlled by a standard Heritage Place overlay, including all buildings listed on the Heritage Register. Key issues in relation to city image are listed at Clause 21.7-2, and include: ƒ The presentation of the main entrances to Ballarat. ƒ Preservation of the key historic and scenic features which contribute to Ballarat’s character. ƒ Loss of contributory buildings within residential streetscapes. In relation to residential development, Clause 21.11-1 states that there is sufficient zoned residential land in the city to meet demand for at least 20 years. However, in order to maximise use of existing resources and infrastructure urban consolidation is promoted within the older, established areas of Ballarat.

Key issues listed at Clause 21.11-2 include: ƒ Managing change in established areas. Clause 21.17 summarises key issues associated with development of the municipality. These include: ƒ Loss of urban character in residential areas within the older areas. ƒ Managing the City’s historic assets. One of the City’s key strengths is identified as: ƒ An historic city, with a wealth of heritage assets.

Clause 22.01 Residential Objectives of the Residential Policy include: ƒ To promote and facilitate urban consolidation within the older, established areas of Ballarat to maximise the use of existing resources and infrastructure. ƒ To protect the residential areas identified as being of historic and conservation value. It is policy that: ƒ The integrity of historic streetscapes not be diminished by the intrusion of out of character (medium density) housing. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 28

Clause 22.10 Buninyong township The policy relates to future development within the township and surrounding area. The policy refers to an Outline Development Plan for the Buninyong Township. General principles of development include: ƒ The existing character of Buninyong (which is of a small township nestling in a basin formed by vegetated or relatively undeveloped hills) is to be retained by preventing new higher density development from encroaching into these elevated areas. ƒ The existing ‘green belt’ between Buninyong township and Mt Helen is to be maintained. The existing Ballarat Planning Scheme also includes three local planning policies relating to interim heritage precincts – Clause 22.15: Learmonth Interim Heritage Precinct, Clause 22.16: Inner Ballarat Interim Heritage Precinct and Buninyong Interim Heritage Precinct. These policies will be deleted from the scheme on approval of the proposed heritage Conservation policy.

5.5 STRATEGIES

Victoria Heritage Strategy 2000 – 2005 The Victoria Heritage Strategy 2000-2005 is a State government five year vision to identify, protect and manage the State’s cultural heritage assets. Its key goals are: ƒ knowing by increasing knowledge of Victoria’s heritage places and objects. ƒ communicating by enhancing community understanding and appreciation of heritage. ƒ protecting by providing mechanisms for the strategic and practical protection of heritage places and objects. ƒ managing by supporting proactive management and sustainable use of heritage assets. The most relevant goal to these amendments is ‘Protecting’. The objectives of the Strategy under this goal include: An appropriate level of protection for all significant heritage assets, based on a balanced assessment of values. Improved use and application of local government planning controls to protect a broader range of heritage places at local level. A ‘Proposed Program’ to implement these objectives include: Protection of places at the local level The Heritage Council, in conjunction with the Department of Infrastructure, will develop a model of agreed protocols to assist local government authorities to comply with the provisions of the Heritage Act 1995 and the Planning and Environment Act 1987, as they relate to the protection of heritage assets. This program will work with the current review of the Department’s Local Government Heritage Guidelines 1991. The protocols will help to add clarity by recommending the use of more consistent grading and terminology in heritage studies, conservation policies and planning schemes. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 29

Heritage Victoria is currently working on a model of agreed protocols and assessment standards.

5.6 PLANNING GUIDELINES

5.6.1 Local Government Heritage Guidelines (1991) The Local Government Heritage Guidelines were produced by the former Department of Planning and Housing in April 1991 (that is, prior to the introduction of the Victoria Planning Provisions and the new format planing schemes). The guidelines primarily provide advice on the conservation of Victoria’s post-contact cultural heritage. They are referred to in Clause 15.11 of the SPPF as something that planning authorities must have regard to when preparing amendments to planning schemes.

The guidelines explain the importance of conserving cultural heritage, the concept of cultural significance and thresholds of cultural significance. The guidelines also state that: A primary source of protection for all historic places and particularly those not protected by a listing on the Register of the National Estate or the Register of Historic Buildings is through planning schemes at local government level. Planning scheme controls may relate to individual buildings, heritage areas and notable trees. In relation to heritage areas the guidelines state that: A heritage area might encompass a small urban or suburban area, a town or a landscape of cultural significance. A heritage area might be significant because: ƒ the area itself, or the places within it have intrinsic heritage value; ƒ the area is composed of places that individually have little or no intrinsic value but which are important for what they tell us as a group or collection of places. Heritage areas, particularly those of a large size, are also likely to include places that have little or no intrinsic value and are not contributory to the significance of the area. Within a heritage area, the primary objective is to ensure the conservation of those elements that contribute to the area’s significance. The removal or alteration of non-contributory elements or the development of their sites, while requiring a planning permit, is usually not a major concern The objective is to ensure that where development does occur, it occurs in a manner which is appropriate to the significance, character and appearance of the heritage area. Use of planning policies and guidelines are also advocated to: ƒ assist in coming to an appropriate decision on a planning application; ƒ ensure that discretion under the planning controls is exercised in a consistent manner; ƒ assist permit applicants to have some idea as to what will be considered favourably by the council and what will not; and ƒ ensure support for council’s actions should it be necessary to justify a decision before the Administrative Appeals Tribunal. Finally, the guidelines summarise the Department’s expectations in relation to a heritage amendment, including: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 30

ƒ That all places proposed for planning scheme protection are documented in a manner which clearly substantiates their scientific, aesthetic, architectural or historic interest, or other special cultural value. The documentation... must include a Statement of Significance. The Department may request further supporting information where it is considered that the: − Statement of Significance or documentation justifying the amendment fails to sufficiently establish the scientific, aesthetic, architectural or historic interest, or other special cultural value; or − The approach taken to identifying heritage places for planning scheme protection lacks rigour. ƒ That heritage amendments will be in a ‘plain-English’ and ‘user-friendly’ format in accordance with Department standards. ƒ That where a heritage amendment is proposed which is a significant departure from the format or content of the model heritage controls, the Department will consider whether the proposed amendment is likely to achieve the conservation of heritage places in accordance with the heritage objectives of the Planning and Environment Act 1987 Section 4(1)(d)). ƒ That in the preparation of any major heritage amendment, consideration will be given to the general effect of the amendment in terms of the overall planning of the municipality and the achievement of Council’s strategic planning objectives. ƒ That in the case of amendments applying to an extensive list of heritage places, the Department expects the Council to have given some consideration to supporting measures (e.g. advice, guidelines, policies etc) to provide assistance to the community, to effectively administer the proposed controls and to ensure the consistent and justifiable application of discretion under the planning scheme. Whilst the guidelines were written prior to the introduction of the VPPs and the new format, planning schemes, the advice contained within the guidelines is still relevant to consideration of Amendment C58.

5.6.2 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) Heritage Victoria has released a draft set of guidelines that are intended to guide decision- makers in the assessment of permit applications for heritage places. The guidelines provide detailed advice on the wide range of applications that may be made in relation to heritage places. The guidelines cover: ƒ Subdivision and consolidation of land ƒ Demolition and removal of buildings ƒ Construction of new buildings, including additions and extensions to existing buildings, verandahs and shopfronts, and demolition and construction of fences ƒ External alteration of an existing building ƒ Construction and carrying out of works ƒ Installation, demolition and alterations to utilities and services ƒ Signs ƒ External paint work BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 31

ƒ Internal alterations ƒ Significant trees ƒ Heritage areas, including gardens, parks and landscapes ƒ Change of use ƒ Historical and maritime archaeological sites. The guidelines for each of these matters are set out in a standard format, providing a Guideline Basis, Objectives and Guidelines.

The guidelines are comprehensive and provide a very helpful reference for the assessment of permit applications.

5.6.3 Planning Practice Note on applying the Heritage Overlay The Planning Practice Note provides advice about the use of the Heritage Overlay in the new format planning schemes. The Practice Note states that: All places that are proposed for planning scheme protection, including places identified in a heritage study, should be documented in a manner that clearly substantiates their scientific, aesthetic, architectural or historical interest or other special cultural or natural values. The Practice Note also states that: The heritage process leading to the identification of the place should be undertaken with rigour. The documentation for each place should include a statement of significance that clearly establishes the importance of the place. Recognised heritage criteria are discussed in the Planning Practice Note. Heritage criteria that could be adopted include those adopted by the Australian Heritage Commission or Heritage Victoria. However, the Practice Note emphasises that: The most important thing is that the assessment of heritage places has been rigorous and that heritage controls are applied judiciously and with justification.

5.6.4 Australian Heritage Commission criteria The criteria used by the Australian Heritage Commission to assess heritage places for inclusion on the Register of the National Estate are the most commonly criteria used in heritage studies for local government. These are the criteria that were used in the City of Ballarat Heritage Study, Stage 2. The criteria comprise eight broad criteria, with more specific sub-criteria under each of the broad headings. The criteria are set out in Appendix A to this report.

5.6.5 Burra Charter The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter) defines the basic principles and procedures to be observed in the conservation of heritage places. The Charter includes definitions of concepts such as ‘cultural significance’, ‘conservation’, ‘preservation’, ‘restoration’, reconstruction’; and it defines conservation principles, conservation processes and conservation practice. The Charter also contains BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 32

guidelines for the establishment of cultural significance, including a discussion on the concept of cultural significance, the establishment of cultural significance, and the content of the report relating to the cultural significance of the place.

The definitions, principles and processes set out in the Burra Charter are widely accepted as the basis for development of conservation policy in relation to heritage places in Australia.

5.7 HERITAGE STUDIES

5.7.1 Early heritage studies Ballarat has had numerous heritage studies conducted over the years that have informed the most recent study which Amendment C58 is based upon, namely the Ballarat Heritage Study Stage 2. These studies include the following: ƒ Ballarat Heritage Study, 1978, Jacobs Lewis and Vines ƒ Ballarat Heritage Study, 1981, Jacobs Lewis and Vines ƒ Buninyong Conservation Study, 1983, Coleman Sutherland Conservation Consultants The Buninyong Conservation Study was commissioned by the former Shire of Buninyong to identify objects within the township for their architectural and historic significance. A total of 62 significant buildings and objects, and 7 conservation precincts were identified as part of the study. ƒ Ballarat Historic Landscapes, Trees and Gardens, 1983, Royal Botanic Gardens and Department of Crown Lands and Survey The Ballarat Historic Landscapes, Trees and Gardens study was commissioned by the former Department of Planning and the Ballarat Restoration Advisory Committee. This study was largely a preliminary study to discover historic gardens, reserves, avenues, and trees or stands of trees that may be worthy of analysis. The study examined a number of reserves and other sites that are included in the heritage precincts proposed by Amendment C58. These include: Ballarat Botanical Gardens, Lake Wendouree, Victoria Park, Black Hill and a number of creek channels. The sections devoted to each of these sites in the report include a Historical background, Site description and Recommendations. ƒ Ballarat Botanical Garden, Conservation Analysis and Policy, Volumes I and II, 1994, and Ballarat Botanical Gardens Masterplan and Management Strategy, 1995, John Patrick Pty Ltd and Allom Lovell & Associates Pty Ltd The Conservation Analysis and Policy report by the consultants preceded preparation of a Masterplan and Management Strategy for the gardens by the consultants. The conservation analysis described the history of development of the gardens, provided a survey of the landscape elements and features, provided a comparative analysis with other botanic gardens, analysed the significance of the gardens and provided a Statement of Significance, and developed some policies for the gardens. The study has provided excellent background to development of a Masterplan and Management Strategy for the gardens. The central philosophy of the masterplan is the BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 33

future preservation and management of the gardens to provide for its ongoing role as a pleasure garden, and to give appropriate recognition to the garden’s Victorian/Edwardian history.

The conservation analysis and the masterplan provide a sound basis for management of this significant heritage place. ƒ Lake Wendouree Heritage Conservation Analysis, 1994, Mark McWha Landscape Architects Pty Ltd and Positive Space The Heritage Conservation Analysis is intended to be used in conjunction with the Site Analysis and Landscape Masterplan for Lake Wendouree that has been prepared by Mark McWha Landscape Architects. The Heritage Conservation Analysis sets out what is significant about the place and appropriate actions to ensure that the significance of the place is appropriately protected. The report includes an inventory of the elements and features which contribute to the character and cultural significance of the lake, a statement of cultural significance, and recommendations for future conservation and development of the lake and surrounds that are intended to form the basis the development of conservation policies by Council. ƒ Ballarat Heritage Study, 1998, Andrew Ward and Associates Andrew Ward and Associates were commissioned in 1997 to undertake Stage 1 of the Ballarat Heritage Study. The purpose of the study was: To provide a consistent overall assessment of places of post-contact cultural significance, both inside and outside areas which have been previously studied. The central aim of this study is to establish the full ’scope’ of heritage items of potential National Estate significance within the City, and to document these to a basic standard prior to more detailed recording and analysis in future projects. Stage 1 was completed in 1998 and recommended that further analysis should be undertaken of 19 precincts and 425 individual places.

5.7.2 Ballarat Heritage Study Stage 2, 2003, Hansen Partnership Pty Ltd, Wendy Jacobs and Naga Services The Hansen Partnership and sub-consultants were commissioned to undertake Stage 2 of the Ballarat Heritage Study in 2000. The study was a direct follow-on from the Stage 1 study conducted by Andrew Ward and Associates.

The study was undertaken in the following phases: ƒ Identification of the themes and sub-themes and preparation of a Thematic Environmental History for Ballarat. ƒ Cultural mapping to identify key heritage elements in the municipality. ƒ Review and audit of material on heritage places, including a review of the City of Ballarat database, a literature review and an assessment of previous recommendations relating to heritage conservation. ƒ Definition of heritage precincts, a detailed field review of heritage places within each precinct, preparation of a Statement of Significance for each precinct, and preparation of a specific planning policy for each precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 34

ƒ Preparation of a planning scheme amendment, including a heritage policy and the inclusion of heritage precincts in the Heritage Overlay. The study identified 20 heritage precincts, including 18 within urban Ballarat, and precincts at Buninyong and Learmonth. The majority of precincts were assessed as being of local significance, but the Lydiard Street precinct, the Lake Wendouree precinct and the Creek and River Channels precinct were assessed as being of State significance.

The material produced in the last phase of the study was used as the basis for preparation of Amendment C58 to the Ballarat Planning Scheme. However, whilst the study identified 20 precincts, in resolving to prepare the planning scheme amendment, Council decided not to include the Railway Precinct. That precinct is to be introduced by a later amendment. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 35

6. RECENT PANEL REPORTS ON HERITAGE

6.1 INTRODUCTION Section 6 includes a synopsis of some of the more important panel reports dealing with heritage controls since the introduction of the new format planning schemes. They express consistent concerns about the quality and rigour of heritage studies used to justify the application of Heritage Overlays and the lack of adequate statements of significance. In particular, they provide interpretations about the way in which various of the AHC criteria should be applied. Further, they discuss many of the issues commonly raised in heritage amendments and some of the broader issues relating to issues of fairness and equity arising from the objectives of planning found in Section 4(1) of the Planning and Environment Act 1987.

Planning panels have considered many other heritage amendments than those discussed here. For example, Amendments C5 and C14 to the Port Phillip Planning Scheme (December 1999) dealt with a complex amendment involving the introduction of Heritage Overlays, Design and Development Overlays, including height controls, and six neighbourhood local planning policies. The panel report contains a detailed discussion about the role of local planning policy and the structure of the planning scheme, which is worth reading, especially the section dealing with the heritage policy.

Planning panels are currently considering a number of heritage amendments involving the application of Heritage Overlays to large areas and the concurrent introduction of local heritage policies. Of particular relevance are Amendment C43 to the Yarra Planning Scheme and Amendment C34 to the Hobsons Bay Planning Scheme. Unfortunately, the panel reports for both these amendments are not available at the time this report was prepared. However, Ms Maggie Baron is a common member of these two panels as well as this panel. She advises that common concerns raised relate to the quality of the research used to justify the Heritage Overlay; lack of reliability in the mapping; the restrictive nature of the local planning policies; their lack of strategic justification and problems with their language, form and structure.

6.2 REPORT ON TRENDS AND ISSUES EMERGING FROM CONSIDERATION OF THE FIRST FIVE NEW FORMAT PLANNING SCHEMES (1988) In the Report on Trends and Issues Emerging from Consideration of the First Five New Format Planning Schemes, Planning Panels Victoria drew specific attention to the practice of most councils to simply replicate the extent of exiting heritage controls based on pre-existing studies. It was also noted that panels assessing the new format planning schemes were not BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 36

evaluating any of the studies on which application of the Heritage Overlay was based or the adequacy of statements of significance due to lack of time.

6.3 FINAL REPORT ON THE NEW FORMAT PLANNING SCHEMES (1999) In the Final Report on the New Format Planning Schemes, Planning Panels Victoria reiterated the comments made in the Report on Trends and Issues Emerging from Consideration of the First Five New Format Planning Schemes. It noted that release of the Planning Practice Note on applying the Heritage Overlay had addressed a number of matters previously raised, but that panels still considered the standard of the material upon which Heritage Overlays are based should be upgraded to meet current guidelines and criteria. The Report recommended that the Department should require councils to review all places covered by a Heritage Overlay and an assessment of the material upon which it is based to ensure it meets the guidelines and criteria in the Planning Practice Note.

The Report also recommended that appropriate statements of significance should be prepared in respect of each heritage place and that the Department should provide guidance about what is required with respect to statements of significance.

A further recommendation (not acted upon) was made that the third dot point of Clause 43.01- 5 of the Heritage Overlay should be amended to read as follows: ƒ Any applicable heritage study and any applicable conservation policy or heritage guidelines incorporated in Clause 81.

6.4 FINAL REPORT ON THE GOOD DESIGN GUIDE AND VICCODE 1 (2000) Demolition was one of the issues discussed by the Standing Advisory Committee in its Final Report on The Good Deign Guide and VicCode 1. The relevant section of the report is included in Appendix A.

The Advisory Committee noted the widespread community demand for demolition control but at the time it was only possible to control demolition through the application of a Heritage Overlay.1 It noted the value attached by the community to urban character and heritage character even though it was not possible to point to a clear dividing line between the two. On this point the Advisory Committee observed:2

The Standing Advisory Committee considers it is a semantic exercise to attempt to distinguish between the levels of heritage character, urban character and neighbourhood character, and ultimately, for the purpose of demolition control, an unnecessary one. The considerable overlap between the level means it is far better to regard them as a continuum of the same thing; namely, the built form fabric of our society. The greatest threat to this fabric is its destruction by insignificant increment.

1 The Neighbourhood Character Overlay, which also has a demolition control, was introduced subsequently. 2 Final Report of the Standing Advisory Committee on Review of The Good Deign Guide and VicCode 1 (March 2000), pages47-48 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 37

Instead of focussing on what we as a society want to keep, it may be easier to focus on what we don’t want to lose without serious thought.

The Advisory Committee then went on to discuss the possibility of introducing a two tier version of demolition control that would take account of the different levels of significance and would involve different expectations about whether demolition would be permitted.

6.5 MONASH L51 (2000) Amendment L51 to the Monash Planning Scheme proposed to apply the Heritage Overlay to extensive areas or precincts – approximately 20% of the municipality. Key issues considered by the panel in Monash L51 included whether heritage value could be ascribed to the inter-war residential areas of Oakleigh, which many residents regarded as poor quality housing ‘not old enough’ to have heritage value, and the extent of heritage precincts. Extracts from the Monash L51 panel report are included in Appendix 0.

In terms of heritage value, the panel said:3

Many of Oakleigh’s streets remain as typical examples of the housing stock of the inter-war era and the suburban lifestyle to which their owners aspired. These were not homes built for the wealthy - they are modest weatherboard houses, consciously presenting a brave face to the world in the form of a more substantial brick verandah. In their original form they had two or three bedrooms at most, simple kitchen and bathroom facilities, and a back yard shared by the kids, the washing line, the dog, the shed, the lemon tree and perhaps a few chooks. They were the inter-war version of the great suburban dream, tailored to a modest income. The heritage value of the most intact of these streets lies in their very clear expression of the aspirations of that time.

Although a number of streets are intact in appearance, they are not just static relics, and heritage controls are not intended to make them so. There are many examples where the houses have been lovingly restored and sensitively extended to meet the family accommodation expectations of the 1990s. This is exactly what the heritage controls encourage. The objective is to retain the main characteristics of the street that are intrinsic to its heritage value. It allows owners to upgrade or extend their properties, as long as it is done in a way that does not detract from the heritage value of the street overall.

In terms of the extent of heritage precincts within which properties were listed as ‘contributory’ or ‘non-contributory’, the panel considered the following matters to be relevant:4

As outlined in the previous section, the Panel supports in principle the conclusion of the Heritage Study that areas of intact inter-war development have local heritage significance and are therefore worthy of protection through the planning scheme. Given the large extent of the overlay and the varying levels of ‘intactness,’ there are a number of questions that need to be answered before a conclusion could be reached that all areas are of similar heritage value and worthy of protection under the scheme. These questions are:

a) to what extent is the degree of ‘intactness’ relevant? b) how is ‘contributory’ and ‘non-contributory’ status determined? c) are there other issues in some areas which might over-ride heritage objectives? d) do the overlay boundaries adequately define the heritage precincts?

3 Monash L51 Panel Report (October 1999), page 16 4 Monash L51 Panel Report (October 1999), page 17 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 38

The panel was faced with the situation where the Heritage Overlay had been applied in areas or streets where the proportion of intact housing stock ranged from 80-90% of all properties, to 40-50% of all properties, or to a group of 3-6 houses representing as little as 10-20% of properties in a street. The question was whether these widely varying areas all met the criteria for a ‘heritage precinct’. The panel found that a survey of heritage guidelines and studies failed to locate a definitive answer to this question and it was not satisfied that the Monash Heritage Study had addressed this question rigorously.

In considering the issue of whether a street in which less than half the houses are listed as ‘contributory’ can be defined as a heritage precinct or whether it is just a pleasant street in which some houses belong to a similar era, the panel said:5

In the Panel’s view, an appropriate basis for the judgement is whether or not the overlay has any realistic potential to achieve its own purpose - ‘to conserve and enhance heritage places.’ At best, the overlay has the potential to conserve the contributory buildings, and enhance them by ensuring sympathetic development on the remaining properties in the HO. However, the street can never increase its proportion of contributory buildings. Indeed, the proportion may well reduce in future because the overlay could not prevent future demolition of at least some of the contributory buildings on the grounds of poor condition or cost of restoration.

The panel concluded that the overriding principle should be that an area should not be included in the Heritage Overlay as a heritage precinct unless it is clear that the purposes of the overlay – ‘to protect and enhance a heritage place’ – can be realistically achieved.

With specific reference to Monash L51 and the amendment in question the panel took the view that:6

… Monash has such a wealth of inter-war development that it could well afford to discriminate between intact and partially intact streets. There would be much to gain by focussing the HO on those streets or precincts where heritage values are clearly discernible to residents and visitors alike. The integrity of the HO would be enhanced instead of dissipated, as at present, by the inclusion of marginal areas. This approach, by its very transparency, would also be more likely to gain the support of the local community.

It must also be noted that any areas excluded from the HO would instead be covered by Monash’s extensive urban character controls. Thus the loss of the HO overlay would not result in new development that is insensitive to local character, including those elements specifically identified as characteristic of inter-war development. This is another good reason for Council to be particularly selective when applying the HO.

6.6 STONNINGTON L47(D) (2000) Amendment L47(D) to the Stonnington Planning Scheme proposed to apply the Heritage Overlay to 49 individual properties.7 The panel report on Stonnington L47(D) is important because of its detailed analysis of and findings on a number of significant issues of principle, which then formed the basis of the panel’s assessment of individual properties. Perhaps the

5 Monash L51 Panel Report (October 1999), page 18 6 Monash L51 Panel Report (October 1999), page 21 7 In fact the properties were already covered by interim controls and the amendment would have made the controls permanent. Amendment L47(D) related to the old format Stonnington Planning Scheme. However, as the new format Stonnington Planning Scheme was about to be adopted, the panel considered the properties in the context of the new Heritage Overlay and the VPPs. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 39

most important finding and recommendation relates to the panel’s criticism of the AHC criteria as a useful basis for the assessment of heritage significance at a local level.

The full text of Section 5 of the report on Stonnington L47(D) dealing with the panel’s consideration of matters of principle is included in Appendix A. The following is a summary of the panel’s findings and recommendations on these significant issues. 8 Re the Assessment of Local Significance We conclude that the AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration. In our view, much difficulty is caused by the uncertainty of, and various interpretations of, the application of these criteria to the local level.

We recommend that Council should seek State Government support to a review of these criteria for use at the local level. State (Heritage Victoria is the obvious body with the appropriate responsibility. The AHC criteria provide the obvious basis for such criteria, but the elaboration and illustrative examples are the critical features that are required to assist Councils and the community in this matter. Re Over-Use of AHC Criteria We consider that there has been insufficient rigour in the application of AHC criteria to assess buildings. We consider that, in many cases, fewer criteria are applicable and that they should be applied and explained with greater care.

For our assessment, we have adopted the following view: that where an AHC criteria that is cited as the basis of a building’s heritage importance at the local level, the building should be sufficiently important in relation to that criterion that it alone should merit the building’s preservation. A building’s significance is not justified through its lesser satisfaction of several criteria. Re the Importance of a Building’s Association with an Historically Important Person In principle, we have adopted the position put by Sir John Summerson, that is, that while it may be of interest to know that a building is associated with someone of importance in the local or wider community, that will not be considered to have major heritage significance unless the ”the man and the building he inhabited somehow help to interpret each other”. Re the Importance of Particular Architectural Styles or Examples of Styles We have concluded that an example of an architectural style would be important pursuant to Criteria D(i) and E if it can stand as a good exemplar of a style (ie. it provides a particularly good representation of the principal or archetypal features of that style) that was itself important (eg. widely used) in domestic architecture. Where buildings were held to include elements of different architectural styles, thereby representing a transition from one to the other, we would require reasonable certainty that the elements provide a genuine reflection of that transition process. Re the Issue of Rarity In considering the importance of rare examples of buildings, we have taken into account a number of factors relating to the cultural importance of the relevant architectural style at the local level. Re Judgements About Aesthetic Values We have taken the view that aesthetic value of a building, in relation to assessing its heritage significance, relates to the period in which the building was built or architectural style applied. In accepting aesthetic value as a basis for recommending inclusion of a building in this amendment, we would look for evidence of its contemporaneous aesthetic appreciation of its elements or architecture.

8 Stonnington L47(D) Panel Report (March 2000) pp5-8 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 40

Re Significance of Particular Architects or Examples of Their Work We consider it appropriate that where an architect’s use of an architectural style is unrepresentative of the work on which his professional prominence is based, it is less important for that reason. We consider that such buildings, while providing some additional understanding of an architect, do not contribute to understanding the basis of his major professional contribution to our architectural culture, ie. while they may contribute at the margin of our understanding, they do not contribute to its core. We have likewise taken the view that there is less heritage significance in the domestic work of architects whose professional prominence relates to non-domestic architecture. Re the Importance of Particular Building Types or Associations We are only prepared to accept examples of particular building types or landuse mixes as being of heritage significance if it is also demonstrated that the examples relate to a significant and important aspect of their culture period. Re Implications of a Building’s Heritage Designation on Future Development Opportunities We accept the argument that this amendment should provide an appropriately thorough case for the protection of the specified buildings in perpetuity. We consider any suggestion that this amendment only provides a prima facie justification as being inappropriate and misleading. We do not accept that the existence of a subsequent development approvals process justifies any lack of appropriate rigour in the initial assessment (This issue is discussed further in the following section). Re the Rigour of the Historic Analysis The overall task which Council has undertaken, in seeking to meet its obligations under the Planning & Environment Act 1987, and the resources committed to it, have both been considerable. We accept that, over a number of years, Council has collected considerable historic research and undertaken valuable analysis of heritage significance has been undertaken.

Overall, however, we do have serious misgivings about the rigour with which the assessment process has been undertaken – relating in some cases to the weak documentation of some evidence, the absence of clear interpretations of the application of the AHC ‘s assessment criteria to the local level of assessment and lack of care in drafting of the statements of significance.

We have taken these points into account on a site-by-site basis as we have conducted our assessment of the amendment.

With respect to the drafting of statements of significance, we recommend that these statements adopt a more precise description of the heritage significance of each building and that the format of the statements be amended to exclude any reference to ‘contributing elements’ – which should be incorporated in the analysis section of the assessment. These statements are critical to the future conservation of the designated buildings and should be drafted with reasonable care. Re Any Lack of Visibility of the Elements of a Heritage Building We accept the general proposition put by Raworth and Lewis, namely that in assessing the effect of the concealment of part or all of a heritage building, it is appropriate to place greater importance on those facades that represent the traditional display elements of a building; also, that a decision on the heritage significance of a building should not have regard to whether the important elements of that building are concealed by, whatever means.

Finally, we consider it inappropriate that any regard be given to building interiors in relation to the designation of buildings as being of local heritage significance. Re the Importance of Building Interiors In the absence of any argument as to why building interiors are important in assessing the local heritage significance of a building, we consider it appropriate to accept the principle embodied in the proposed Heritage Overlay and adopted by Council for the new-format planning scheme – namely, that building interiors are not relevant to this assessment. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 41

Re the Effect of Loss of Integrity on a Building’s Historic Value We have relied on a building-by-building assessment of the effects of loss of integrity on a building’s heritage significance. However, because of the limitations on many of the statements of significance (refer earlier discussion) we have only been able to make this assessment by a wide reading and interpretation of all the supporting (and critical) material that was placed before us. Where the matter is not readily resolved, we have adopted a cautious approach. Re Effect of Hardship Issues on the Panel’s Considerations In reaching a recommendation in relation to the buildings in this amendment, we have chosen not to take into account any issues of property owners’ hardship. We accept that hardship, as it may financially affect the owners of properties of heritage significance (particularly the owners at the time of this amendment’s gazettal), may be a relevant consideration in a future decision as to whether to allow alterations to, or demolition of, a heritage building. However, that decision is one to be made at the relevant point in time.

We also consider that transparency of the planning process should be maintained. This certainly relates to the objective of fairness [Planning & Environment Act 1987, Clause 4(1)(a)] and will assist in the process of balancing the “present and future interests of all Victorians” [Planning & Environment Act 1987, Clause 4(1)(g)]. This transparency will be assisted by separating the process of designating heritage significance from the process of making decisions about building’s conservation, whether this be related to its replacement, unreasonably expensive maintenance or unsuitability for modern living. Re Requests for Reduction in the Area Affected by the Heritage Overlay We consider that, in principle, it is acceptable that the area designated in the Heritage Overlay be reduced from the whole title area where it can be shown that the area to be excluded, or the future development of this area, will not result in detriment to the heritage significance of the heritage place – being in most instances the building itself.

Consequently, and where appropriate, we have made recommendations for a reduction in the area to be defined in the Heritage Overlay on a case-by-case basis. Planning Controls Affecting Sites Adjoining Heritage Sites We recommend that, in preparing general planning controls and policies affecting areas adjoining heritage sites, Council should seek to ensure that new development close to heritage sites does not exceed a scale compatible with the heritage places. Recommendation Re Reference in the New Format Planning Schemes to the Statement of Significance of Individual Properties We recommend that Council seek the support of the Minister to amend the VPPs to give greater importance to the role of Statement of Significance for heritage places, either by specific reference in the Decision Guidelines, or by including the Statement of Significance in the schedule to Clause 43.01.

The outcome of the panel’s application of these principles was to recommend that 40 per cent of the exhibited properties should be excluded from the Heritage Overlay. Subsequently, Stonnington City Council expressed concern that the panel had been unduly cautious in its review of assessments and that other Councils have not been subjected to the same rigour as Stonnington council.

6.7 STONNINGTON C12 PART 2 (2002) Amendment C12 Part 2 to the Stonnington Planning Scheme included a proposal to apply the Heritage Overlay to the small (15 properties) Inverness Avenue precinct in Armadale. The BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 42

panel rejected the amendment on the grounds that it was not convinced there was a strong strategic basis for it. Essentially the panel was critical of the lack of professional involvement and rigour in the heritage report relied upon to establish the heritage significance of the precinct and to support the amendment. The author of the report basically adopted work previously undertaken by residents and the panel found it did not constitute an ‘independent evaluation’. The report did not refer to the Local Government Heritage Guidelines or to the Planning Practice Note on applying the Heritage Overlay. The conclusion was that:9

The Panel is not convinced that there is a strong strategic basis for the amendment. The amendment was initiated by a group of local residents who prepared much of the heritage assessment, but it has not been subject to a wider strategic review in the context of other heritage work in the municipality. While the Panel does not doubt the sincerity of their work, it does not agree that this should form the basis of introducing a Heritage Overlay to the area.

In considering the issue of whether the Inverness Avenue precinct had heritage significance, the panel said:10

The key issue here for the Panel is to determine whether heritage significance has been established in this precinct, and in this regard it does not believe that it has. There is no contention that the area has an association with a particular builder and architect. The precinct has a cohesive and intact group of buildings which are well preserved and well presented. They are all single storey, with similar set backs and a similar level of architectural detail. But in the opinion of the Panel this does not mean that it should have the level of protection afforded by a Heritage Overlay. The Inverness Avenue precinct has a high degree of urban and/or neighbourhood character but it does not have a high degree of heritage significance. There are other tools in the Planning Scheme that can be used to protect neighbourhood character, including the new provisions of ResCode, which were introduced in August 2001. Council can also identify areas for inclusion in a Neighbourhood Character Overlay, and the Panel considers this area to be more suitable for that type of overlay rather than a Heritage Overlay.

The panel recommended that this part of the amendment be abandoned.

6.8 STONNINGTON C5 & C6 PART 2 (2003) Amendments C5 and C6 Part 2 to the Stonnington Planning Scheme proposed to apply the Heritage Overlay to 36 individual properties.11 The strategic justification for applying the Heritage Overlay included a review of previous heritage work in the light of the panel report for Stonnington L47(D) and new citations for the properties. According to the Council the new citations:12 ƒ are prepared by an independent consultant; ƒ are much more comprehensive, and rigorously researched and documented; ƒ are based on a standard template, to ensure consistency and completeness; ƒ are clearly assessed against accepted standard criteria (AHC); ƒ include a comparative analysis of other buildings; ƒ clearly indicate the ‘significance’ of the place;

9 Stonnington C12 Part 2 Panel Report (February 2002), page 27 10 Stonnington C12 Part 2 Panel Report (February 2002), page 25 11 In fact the properties were already covered by interim controls and the amendment would have made the controls permanent. 12 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 2 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 43

ƒ contain clear, concise and carefully drafted ‘statements of significance. The panel report for Stonnington C5 & C6 Part 2 is important because it considers many of the issues of principle canvassed in Stonnington L47(D) in light of the Council’s more recent work, which specifically sought to address those matters. This section of the panel report is included in Appendix A. There were some aspects of the panel report for Stonnington L47(D) relating to the use of the AHC criteria that the Council took issue with. The Stonnington C5 & C6 Part 2 report contains a useful table in Section 4.1.2 which compares the AHC criteria, the way in which they were used by the Council’s heritage consultant (Mr Graeme Butler) and the panel’s position. The report then comments in more detail on two of the specific AHC criteria: ƒ E1 valued aesthetic qualities ƒ H1 close association with individuals Important points that are made in connection with these two criteria are that: ƒ The panel rejects the suggestion that the Heritage Overlay should be applied to areas of non-heritage, urban (aesthetic) character. It notes there is already a considerable body of practice and implementation related to defining and protecting valued urban character, with special planning scheme provisions and a specially created overlay, the Neighbourhood Character Overlay, for this purpose.13 ƒ In its interpretation of the application of Criterion H1, the panel placed emphasis on what it saw as the key adjectives or clause:14 ƒ Its special association with the life or works of a person ……(quoting here from the overall statement of this criterion’s purpose) ƒ Importance for close association … ƒ Association with the person’s productive life … ƒ Extent to which the association affected the fabric of the place … (or) … the place affected the person or events associated with the person … In its assessment of the 36 properties against the AHC criteria the panel acknowledged that it was taking a conservative approach. However, it did so on the basis that the various guidelines for the preparation of cultural analysis of places at the national and local level make it clear that such research and analysis must be undertaken with rigour.15

With respect to the adequacy of rigour in the Council’s work, the Council sought to argue that the resources of a council were not without limit, and that whilst an analysis must be rigorous, it must also be a level of analysis which is capable of practical implementation. The panel in Stonnington C5 & C6 Part 2 did not agree with this proposition. It took the view that heritage planning and conservation involved striking an appropriate balance between four competing issues:16

ƒ Council’s obligations under S. 4(1)(d) of the Planning & Environment Act 1987, being ‘to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value.’

13 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 35 14 Stonnington C5 & C6 Part 2 Panel Report (July 2003), pages 37-38 15 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 40 16 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 42 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 44

ƒ The requirement to only protect those places that are of appropriate heritage value – the application of appropriate rigour, and not places of lesser value. ƒ The economic and social consequences of applying a Heritage Overlay to properties, particularly individual buildings, which could be seen to invoke Council’s obligations under S. 4(1)(a) of the Planning & Environment Act 1987, namely ‘to provide for the fair, … use and development of land.’ ƒ The resources Council requires to satisfy the first obligation, taking account of the second and third issues. In giving each of these issues reasonable weight, the panel said:17

If there were no economic costs imposed on individuals and businesses as a result of cultural conservation, then it perhaps would not matter as much if places were identified on the basis of limited research or analysis, but the Panel believes that this is not the case.

The Panel considers that the degree of rigour that should be applied should not be qualified by any proposition that the costs are not affordable. If the beneficiary of heritage conservation is the general public, a large part of the cost is necessarily born by individuals whose properties have been identified on the basis of current assessment of historic values. Where the Heritage Overlay is applied to individual properties, rather than a group, the disparity of effects on the affected property and its neighbours can be very marked and, understandably, the sense of arbitrariness and injustice is heightened. The Panel received a large number of submissions about this issue. However, that is how the heritage controls are drafted and have been consistently applied.

In this context, the Panel agrees with Mr. Wren’s submission that Council is obliged to apply appropriate care. If that requires that the research must proceed at a slower pace, then that is an appropriate consequence.

However, whilst acknowledging in its reasoning that heritage protection may impose economic costs on affected landowners, the panel explicitly rejected including any consideration of economic effects in its decision about the heritage significance of places and hence whether or not to apply the Heritage Overlay. The panel considered that this might be an appropriate matter to take into account when a decision has to be made on a proposal to modify a heritage place.18 More significantly though, it considered that the potential or real economic consequences of the application of the Heritage Overlay does raise the issue of fairness in establishing the threshold of local significance and reinforces the need for rigour and in applying the Heritage Overlay.19

Another issue of principle considered by the Stonnington C5 & C6 Part 2 panel involved the integrity of places. On this issue the panel said:20

It is clearly necessary to accept some loss of originality to the historic fabric as, given the passage of often 80 to 120 years or more, and with changing social, economic and technological circumstances over this time and the inevitable need for ongoing maintenance, it is inevitable that buildings will have been altered and often substantially. However, there can be considerable variation in the extent of changes, in the way these impact on a building’s cultural value and on how any cultural value can be communicated to observers.

The L47(D) Panel discussed this issue, pointing out the variety of roles that housing in particular fulfils and the necessity, if a house is to be lived in and maintained, that it be continually adapted to suite this changing context. That Panel concluded that loss of integrity per se did not necessarily destroy a

17 Stonnington C5 & C6 Part 2 Panel Report (July 2003), pages 42-43 18 See Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 47 19 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 46 20 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 48 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 45

building’s cultural significance and that it had “relied on a building-by-building assessment of the effects of loss of integrity on a building’s heritage significance”. This, of course, requires the Panel to take account of the effect of the loss of integrity on the particular criterion that is relevant to the assessment of cultural significance.

The panel acknowledged that there is a considerable degree of qualitative professional judgement involved in taking account of the specific nature of alterations to buildings and their effect on the heritage significance of a place. One outcome of the Stonnington C5 & C6 Part 2 panel report was that:21

The Panel has rejected some places that have been extensively extended in matching style. In these cases the Panel believes that while replication of the historic details in the new works minimises the risk of obvious incongruity, it also creates a falsity about the presentation of the building as continuing to represent the original conception.

This view about the implications of requiring additions or alterations to match the style of the original has relevance when considering local planning policies on heritage that require reconstruction or reproduction of original features.

The Stonnington C5 & C6 Part 2 report also provided guidance about the drafting of statements of significance. In particular, it drew attention to the fact that statements of significance do not follow the advice provided in Guidelines to the Burra Charter: Cultural Significance about statements of cultural significance, namely:

3.4 Statement of cultural significance The practitioner should prepare a succinct statement of cultural significance, supported by, or cross referenced to, sufficient graphic material to help identify the fabric of cultural significance.

It is essential that the statement be clear and pithy, expressing simply why the place is of value but not restating the physical or documentary evidence.

The panel found the following problems:22

ƒ A small number of statements that include the supporting arguments or unnecessary descriptive statements that do not add usefully to the statement of significance itself; ƒ Placing the descriptive material at the beginning of a statement, with the crux of the argument at the end; and ƒ Use of words or phrases that have doubtful meanings in terms of cultural significance (eg. “evocative of” and “symbolic of”).

6.9 YARRA RANGES C16 PART 2 (2003) Amendment C16 to the Yarra Ranges Planning Scheme proposed to apply the Heritage Overlay to a total of 284 individual heritage places and to introduce a new local planning policy into Clause 22.13 – Heritage Conservation Policy. The proposed Heritage Conservation Policy provides policy guidelines and context for the implementation of the Heritage Overlay provisions. It also describes several heritage policy areas with particular heritage values and features that should be taken into account where existing planning controls apply. Heritage

21 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 49 22 Stonnington C5 & C6 Part 2 Panel Report (July 2003), page 54 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 46

policy areas are proposed for Warburton Township, Powelltown, Castella Street Lilydale, Symons Street Healesville, Belgrave Township and the Mount View Estate, Lilydale.

A total of 40 submissions were received. Of these, 15 were submissions that either supported the amendment or could be dealt with by changing or clarifying the amendment. The remaining 25 were objecting submissions. The Council resolved to split the amendment into two parts. Yarra Ranges C16 Part 1 included those heritage places for which no objecting submissions were received. It was adopted but has not yet been approved. Yarra Ranges C16 Part 2 includes the properties for which objecting submissions have been received and the proposed Clause 22.13 – Heritage Conservation Policy.

After its hearings, the Yarra Ranges C16 Part 2 panel delivered an interim report that was highly critical of the Yarra Ranges Heritage Study, which was relied upon by the Council as providing the strategic justification for application of the Heritage Overlay. Concerns expressed by the panel were that the Heritage Study: ƒ Did not make any explicit reference to any of the various AHC assessment criteria in the statements of significance ƒ Was prepared without reference to the Local Government Heritage Guidelines (1991) or the Planning Practice Note on applying the Heritage Overlay ƒ Lacked comparative analysis in relation to establishing the significance of particular places ƒ Appeared to have assessed a place’s significance on the basis not of any one of the AHC criteria but on the basis of an accumulation of criteria, where the place would not have satisfied the threshold of significance in relation to any one, but was assessed as being of local significance because of a number of partially satisfied criteria. The panel noted this was contrary to the conclusions reached by the panel that reported on Stonnington Planning Scheme Amendment L 47 D, where that panel conclude that each AHC criterion should be assessed separately and that an accumulation of partially satisfied criteria was not acceptable). ƒ Lacked photographs and plans. In commenting on the lack of rigour displayed by the Yarra Ranges Heritage Study, the panel said:23

The Panel accepts that most of the places included in the Amendment are of Local Significance and that the Yarra Ranges area were assessed as having only local heritage significance and include many vernacular places that have not previously been regarded as being of heritage value. However, an assessment of heritage significance can only be made against some type of criteria and it is important that the choice of specific criteria and how they have been applied should be clearly stated. That an expert Panel was uncertain regarding the heritage reasons for the significance of places is an indication of the shortcomings of the Statements of Significance.

The panel adjourned the hearing of Yarra Ranges C16 Part 2 for six months to enable the Council to undertake further work in order that the panel may have the information it needs to make appropriate and properly based recommendations, namely:

23 Yarra Ranges C16 Part 2 Interim Panel Report (July 2003), page 8 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 47

ƒ Assessment of each place included in Amendment C16 Part 2 according to the Australian Heritage Commission criteria for cultural significance and such assessment included on the place record. ƒ Revision of each Statement of Significance to ensure that the statement of significance for each place precisely and accurately sets out the heritage criteria on that the AHC grading has been made. ƒ Presentation of photographs for each place record nominated for inclusion in the amendment, together with appropriate plans of layout for the more complex groups of buildings. ƒ Revision of maps related to each place record to ensure that boundaries are precisely recorded according to current information. The panel also drew attention to the implications that its concerns had for Yarra Ranges C16 Part 1 and all the properties included in the Heritage Overlay for which there was no scrutiny.

6.10 HOBSONS BAY C17 (2003) Amendment C17 to the Hobsons Bay Planning Scheme proposed to include in the Heritage Overlay a number of additional properties, including both dwellings and a number of institutional, commercial and industrial sites, as identified in the Altona, Laverton & Newport Districts Heritage Study. The Altona, Laverton & Newport Districts Heritage Study was proposed to be included as an incorporated document in Clause 81. A number of other consequential changes and elaborations of existing policies were also proposed.

The key issues considered by the Hobsons Bay C17 panel were: ƒ The extent and quality of the research that was provided and the facts on which the assessment has been based ƒ The adequacy of the comparative analysis of a place against other equivalents and the quality of the documentation illustrating this ƒ The elaboration of the criteria on which the judgement of the heritage significance of each building has been based ƒ The quality of the logical argument by which an understanding of a place’s heritage value is developed ƒ The adequacy of the statements of heritage significance of individual buildings to support and illustrate the claim of heritage significance. With respect to the quality of the research used to justify the application of the Heritage Overlay, the panel said:24

This amendment suffers from a number of failures that appear to be systemic. For sites referred to the panel, these include a lack of adequate rigour in the areas of historic research, comparative analysis, the application of the assessment criteria, the drafting of the Statement of Significance and the development of a clear, logical explanation for a place’s heritage values. On the basis of its review of a number of

24 Hobsons Bay C17 Panel Report (February 2003), page 10 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 48

properties not referred to it, and taking account of the systemic character of the above failures, the Panel felt that the same problems would exist in relation to those properties not referred to it. The Panel has concluded that Council should undertake a further review of the Altona, Laverton & Newport Districts Heritage Study, as the absence of demonstrated rigour across a number of its facets is critical to the standing of this amendment.

The section of the Hobsons Bay C17 Panel Report containing the panel’s discussion of key issues is included in Appendix A.

The reasons why the Hobsons Bay C17 panel takes such a strict view of the need for rigour in establishing the heritage significance of places is expressed in the following extract and is based on the implications which flow from the application of a Heritage Overlay:25

It may be helpful to provide a further understanding of the consequences of a decision to include a property in the Heritage Overlay, consequences which in our view underline the importance of applying rigour in undertaking heritage assessments. The Heritage Overlay has the effect of requiring Councils to take account, in any decision about the development of land, of a series of policies designed to protect that place’s heritage values. In the case of properties included in the Heritage Overlay as a result of Amendment C17, Council’s planning officers will be obliged, in recommending any such decision, to refer to the Altona, Laverton & Newport Districts Heritage Study (as an Incorporated Document in the planning scheme, its conclusions and Management Objectives will be accorded substantial weight). By using that report, the officers will seek to understand the heritage values of the relevant property by examining in particular the relevant Statement of Significance and, more importantly, the relevant Management Objectives that are, it is claimed, drawn from that Statement.

If the owner of a property in the Heritage Overlay seeks to have a Council decision reviewed by the Victorian and Civil Administrative Tribunal, then that Tribunal will start with the assumption that the heritage value of the property has been established and cannot be questioned.

In effect, the Tribunal is, in such cases, obliged to assume that the research and analysis underlying the Heritage Overlay has been sufficiently rigorous for the intended purpose.

The only matter the Tribunal will be able to consider, in brief, is the implication of any proposed buildings or works on a property’s heritage value. Consequently, it is important in both the interests of heritage conservation and fairness to property owners (reflecting the public benefits and private costs respectively that flow from the use of the Heritage Overlay), that:

ƒ Properties are not included in the Heritage Overlay unless this is fully justified ƒ The Statement of Significance for each property provides a reliable statement of a place’s heritage significance ƒ The extent and nature of the controls applied to each property, including any heritage policy, are those most relevant to conserving its identified heritage values.

Clearly, the concept of rigour, involving as it does strictness, harshness with justice and severity, is an approach to historic research that must be taken seriously. The definition of “rigorous” means that the research that supports any statement that a place is of local or state heritage significance should, relative to any standard, be quite thorough. Given that a Heritage Overlay will impose quite onerous restrictions and obligations on arbitrarily selected property owners, often on a site-specific rather than class basis, and entirely for the public’s benefit, this seems a reasonable requirement [refer S. 4(1)(a) of the Planning & Environment Act 1987 relating to the objectives of planning, including “to provide for the fair, orderly, economic ad sustainable use, and development of land”]. (Panel’s emphasis)

In turning our minds to some way of making the concept of a rigorous heritage assessment clearer, we suggest the following explanation is appropriate:

25 Hobsons Bay C17 Panel Report (February 2003), page 31 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 49

“rigorous assessment would be that level of assessment that is sufficiently thorough as to provide a high level of confidence that any further research or analysis would have only a low probability of providing further, verifiable information of direct relevance to the grounds on which a building’s heritage significance would be established.”

In our view, the issue of rigour in historic assessment relates to the thoroughness of the research and comparative analysis that is applied to that a particular building in order to ensure that a building is of sufficient cultural importance, at the relevant level of significance, that it should be protected in the planning scheme under the provisions of the Heritage Overlay.

The Hobsons Bay C17 panel report contains an informative elaboration of the criteria used to determine whether a place is of local heritage significance. In particular, it discusses the AHC criteria of ‘association’ and ‘rarity’.

Hobsons Bay C17 was unusual in that the amendment sought to apply the Heritage Overlay to a number of industrial properties, including some large function industrial sites such as the Mobil Oil Refinery. The panel concluded that the Heritage Overlay should be applied generally to the whole extent of the large industrial sites nominated as being of heritage significance. However, the Panel also concluded that, due the detrimental effects that such an overlay could have on the viability of industries, an Incorporated Document should be included, which would be clearly justified by the extent and quality of detailed research. This Incorporated Document would, in the first instance, limit the extent of discretion applied pursuant to Clause 43.01 of the planning scheme to the extent that could be justified by the available research. The Panel considered that it would be inappropriate for the discretionary powers of the Heritage Overlay to be applied to building fabric or works on an industrial site beyond those that had been identified as of significance through appropriate and rigorous research. The Panel also concluded that it would be inequitable for Council to place the responsibility on land owners to undertake the necessary detailed research required to support changes to such an Incorporated Document.26

Finally, the Hobsons Bay C17 panel report is important because of its discussion about consistency and fairness in heritage management objectives. This discussion focuses on requirements for ‘reinstatement’ of buildings where this refers to ‘reconstruction’ as opposed to ‘restoration’. The discussion is relevant to many local planning policies on heritage conservation which likewise seek to encourage reconstruction, including Ballarat Amendment C58. The panel compares the approach being promoted for sites of local significance with the approach taken under the Burra Charter and under the Heritage Act 1995 to sites of State significance:27

The revised management objectives are referring to reconstruction rather than restoration, as restoration would require the addition of materials not currently present. Reconstruction in heritage terms, certainly in relation to the practices of the Heritage Council, is usually only applied in cases where the significance of a place has been shown to be paramount and the place often is the only one of its type shown by comparative analysis. The commentary to the Burra Charter states: “Reconstruction is to be regarded as a radical intervention in the fabric, which carries a great risk of destroying the authenticity of the place, unless the rigorous process of decision making has been followed”. Reconstruction also requires the new work to be identifiable on close inspection from the original fabric.

We were concerned about the inconsistence with respect to heritage management proposals as set out in this amendment, prepared under the Planning & Environment Act 1987, and what currently occurs

26 See Hobsons Bay C17 Panel Report (February 2003), pages 44-50 27 Hobsons Bay C17 Panel Report (February 2003), pages 51-52 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 50

under the Heritage Act. The Heritage Act 1995 applies to sites that are of special cultural significance to the State of Victoria. These sites are included on the Victorian Heritage Register and given legal protection under the Heritage Act. The Heritage Council, which oversees the Act, cannot force an owner to repair or restore a property to its original condition. Registration of a place by the Heritage Council does not imply that a place cannot be altered, developed or excavated or that owners will be expected to live in outdated or sub-standard conditions.

The application of external paint control is only applied by the Heritage Council to such buildings when the significance of the paint scheme has been established by comparative study and appropriate research. The Burra Charter, in its commentary states: “It is common perception that conserving buildings involves returning them to some former historic configuration and appearance, complete with colour schemes and furnishings. But this is not the inevitable result of good conservation. There are many cases when the significance of the buildings does not suffer damage from the application of modern taste.”

Reinstatement of known missing historic elements when the original fabric is not present is reconstruction. If the original fabric exists then it is restoration. The requirement for restoration is usually carried out in combination with preservation, reconstruction and adaptation. Restoration can sometimes achieve a major objective for a place such as halting decay, providing security, providing new facilities or interpreting the significance of a place. Restoration is limited to the reassembling of displaced components or removal of accretions. By definition this means that no new material is introduced. In practice it is seldom possible to restore by reassembling existing components, since the components rarely survive. Restoration by removing accretions is a much more common case.

Reconstruction however, is very rarely applied or required by the Heritage Council and only when the authenticity of a place can be safeguarded. The proposed work must demonstrate a place’s heritage significance and sufficient evidence must be available to support this conclusion. Reconstruction must be identifiable as new work without being intrusive. Clear thinking about the significance of a place is paramount.

On this point, the panel concluded that heritage conservation is preserving what is significant about the site but still allowing appropriate modifications and allowing a property’s owners to continue their lives under reasonable conditions. It concluded that the application of the level of controls proposed by Hobsons Bay Council in its management objectives for sites of local significance was at odds with the current practices of the Heritage Council dealing with places of State Significance. The higher level of protection and restriction should occur with sites that are of the highest level of significance (ie. State level) rather than the most stringent management policies being applied to places of least (ie. local) heritage significance. The panel therefore found that it was not appropriate to require restoration or reconstruction of sites of local significance. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 51

7. BALANCING COMPETING OBJECTIVES

7.1 HERITAGE OVERLAY It is sometimes argued that the Heritage Overlay should not be applied to certain properties because the objectives of the overlay, namely ‘to conserve and enhance heritage places of natural or cultural significance’, and ‘to ensure that development does not adversely affect the significance of heritage places’, will be contrary to the achievement of other planning objectives.

Panels have consistently held that whenever there may be competing objectives relating to heritage and other matters, the time to resolve them is not when the Heritage Overlay is applied but when a decision must be made under the Heritage Overlay or some other planning scheme provision. The only issue of relevance in deciding whether to apply the Heritage Overlay is whether the place has heritage significance. The issue of potentially competing objectives was discussed by the panel in Whittlesea C24, which said:28

Amendment C24 involves a consideration of whether or not this land has heritage significance. If the place lacks heritage significance, the Heritage Overlay should not be applied. If it does have heritage significance, then the fact there may be other objectives and strategies applying to the place is irrelevant; they will not change the heritage significance. For this reason the Panel does not consider that the competing environmental objectives referred to by Parks Victoria should influence its finding about the heritage significance of any part of The Farm Vigano or the application of the Heritage Overlay to such land.

In the case of Hobsons Bay C17 with respect to functioning industrial sites, the panel adopted the position put in the Burra Charter and found that:29

…[T]he Heritage Overlay should identify places of heritage value without fear or favour. Other issues should be considered within the context of heritage management policies.

A similar position was taken by the panel in Stonnington L47(D) in dealing with the issue of whether the Heritage Overlay should be applied due to considerations of economic hardship. In that case it said:30

In reaching a recommendation in relation to the buildings in this amendment, we have chosen not to take into account any issues of property owners’ hardship. We accept that hardship, as it may financially affect the owners of properties of heritage significance (particularly the owners at the time of this amendment’s gazettal), may be a relevant consideration in a future decision as to whether to allow alterations to, or demolition of, a heritage building. However, that decision is one to be made at the relevant point in time.

28 Whittlesea C24 Panel Report (January 2003), page 18 29 Hobsons Bay C17 Panel Report (February 2003), page 45 30 See Stonnington L47(D) Panel Report ( March 2000), pages 42-44 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 52

We also consider that transparency of the planning process should be maintained. This certainly relates to the objective of fairness [Planning & Environment Act 1987, Clause 4(1)(a)] and will assist in the process of balancing the “present and future interests of all Victorians” [Planning & Environment Act 1987, Clause 4(1)(g)]. This transparency will be assisted by separating the process of designating heritage significance from the process of making decisions about building’s conservation, whether this be related to its replacement, unreasonably expensive maintenance or unsuitability for modern living.

The Panel therefore finds that the Heritage Overlay should be applied to places of identified heritage significance without reference to the effect this may have on other planning objectives. Other issues and objectives should be considered within the context of heritage management policies or the decision-making process.

7.2 HERITAGE CONSERVATION POLICIES The Panel believes that a different situation is presented when determining whether to include a local planning policy on heritage conservation where the objectives and potential outcomes may conflict with other planning objectives within the planning scheme or strategies such as Melbourne 2030. In these circumstances the Panel considers that an application of the Planning Practice Note on Strategic Assessment Guidelines for planning scheme amendments and Ministerial Direction 9 on the Metropolitan Strategy requires an assessment of the effect of operation of any local planning policy on the achievement of objectives or the implementation of any directions or policies within the planning scheme or Melbourne 2030. More specifically, a panel must assess whether an amendment is inconsistent with strategic directions elsewhere in the planning policy framework or whether it may compromise the implementation of the Metropolitan Strategy.

The reason for the difference in approach is based on the difference in the nature of the Heritage Overlay compared to a local planning policy and the expectations that councils (and the community) have about heritage conservation policies.

The Heritage Overlay is the means of identifying places of recognised heritage significance within the planning scheme. It requires a planning permit to be obtained before demolishing or removing a building, constructing a building or carrying out various development or works. The provisions of the Heritage Overlay apply in addition to the provisions of the zone and any other provision of the planning scheme (Clause 41). This is notwithstanding they may have different objectives or produce different outcomes.

By contrast, a local planning policy is a tool for day-to-day decision-making in relation to a specific discretion in a zone or overlay. It helps the responsible authority and other users of the planning scheme to understand how a particular discretion is likely to be exercised. A local planning policy enables a planning authority to give local expression to the wide discretion provided in many zones and overlays, including the Heritage Overlay. Local planning policies however are statements of intent or expectation. They are not controls.31

The Planning Practice Note on writing a local planning policy acknowledges that some local planning policies may compete and deciding between them is a normal function of the

31 See Planning Practice Note on writing a local planning policy. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 53

planning system. However, it warns that repetitive or contradictory local planning policies for the same theme or area will only confuse and weaken the planning authority’s intentions.

The problem is that many local planning policies on heritage conservation contain quite rigid policies, which many councils treat as tantamount to controls, about prohibiting demolition of significant or contributory buildings and restricting new development in height (often to much less than ResCode provisions) or form (eg to single detached dwellings). Councils (and some members of the community) then expect that these policies should take precedence over other policies or directions in the planning scheme or Metropolitan Strategy, such as promoting a mix of housing types and encouraging higher density and mixed use development near public transport routes and in proximity to Activity Centres.

Unfortunately, these local planning policies are frequently introduced without a proper examination of their implications for the operation of other aspects of the planning scheme or the achievement of other planning scheme objectives. Rarely are they backed up by an analysis of their potential impacts on the type of policies or directions referred to above. Nor are they introduced as part of a comprehensive housing strategy for a municipality.

In a series of recent panel reports regarding the introduction of various neighbourhood character planning controls, which include changes to ResCode standards in the schedule to the Residential 1 Zone and the introduction of Neighbourhood Character Overlays, Significant Landscape Overlays, Vegetation Protection Overlays and Design and Development Overlays, panels have consistently emphasised the need for neighbourhood character strategies to be integrated with other strategies, especially residential and housing strategies. In a number of instances where this integration was lacking, panels have recommended that the amendment be abandoned. Planning Panels Victoria has carried out a brief review of these panel reports and has summarised their key outcomes as follows:32

Strategic justification

ƒ There is a lack of reference to and integration with other strategies, especially residential and housing strategies.

In many instances councils have failed to consider the impact that neighbourhood character controls will have on aspects of the SPPF or Metropolitan Strategy which address urban consolidation objectives, or on other aspects of the LPPF. Neighbourhood character studies and strategies have been prepared in isolation from housing or residential strategies. An exception is Kingston C8, which stands out as an example of an integrated strategic approach.

ƒ There is a lack of analysis of the way in which controls will impact on the achievement of other strategic objectives.

There is little guidance or consideration about how competing objectives within the planning scheme will be balanced. In some instances, there is a perception that neighbourhood character controls are being used for an ulterior purpose, namely to prevent medium density development.

ƒ There is a lack of analysis of the outcomes that the controls will achieve in practice and whether or not those outcomes will achieve the objectives for the controls. ƒ There is an emphasis placed on protecting existing neighbourhood character at the expense of innovative design or strategies to provide increased numbers of dwellings to accommodate future population needs.

32 Review of Planning Panel Reports in Respect to Neighbourhood Character (October 2003) Planning Panels Victoria, pages 4-5 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 54

Implementation measures

ƒ The existing suite of VPP tools are inadequate to achieve appropriate neighbourhood character objectives, especially the provisions of the Neighbourhood Character Overlay and the limitations on amending the Schedule to the Residential 1 Zone. ƒ The widespread application of neighbourhood character controls will place a significant burden on the resources of councils and the community, which has not been adequately calculated or assessed. ƒ It is unclear whether the additional resources and level of control will be justified by the quality of the outcomes. ƒ The standard of drafting statutory provisions needs improvement.

Many controls are too generalised, unnecessarily repetitious and fail to reflect principles of good drafting technique. The distinction between objectives, strategies and means of implementation, which should exist in planning schemes, is ignored. There is a lack of transparency in many provisions.

Many of the same comments apply to heritage amendments, especially the heritage conservation policies.

The Panel has concluded there is a strong case for recommending that where heritage conservation policies include policies which effectively prohibit demolition of significant or contributory buildings or which otherwise restrict the height or form of new development contrary to other provisions of the planning scheme, they should not be approved unless they are supported by an analysis of the way in which the policy will impact on the achievement of other strategic objectives. The Panel considers that when any such heritage conservation policies are approved, they should be integrated with other strategies, especially residential and housing strategies. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 55

8. APPLYING THE HERITAGE OVERLAY

8.1 APPLYING THE HERITAGE OVERLAY IN BALLARAT In deciding whether the Heritage Overlay should be applied, the Panel considers the following principles, which were articulated by the Hobsons Bay C17 panel, should be used as a guide:33

ƒ Properties are not included in the Heritage Overlay unless this is fully justified ƒ The Statement of Significance for each property provides a reliable statement of a place’s heritage significance ƒ The extent and nature of the controls applied to each property, including any heritage policy, are those most relevant to conserving its identified heritage values. The Panel has considered these principles in its assessment of Amendment C58 to the Ballarat Planning Scheme. In particular, it has addressed the following issues: ƒ What criteria have been used in the Ballarat Heritage Study Stage 2 to justify the inclusion of places in a Heritage Overlay? ƒ Have those criteria been rigorously applied such that they justify the inclusion of those places in the Heritage Overlay? ƒ How should the question of rigour be judged in the absence of independent or challenging expert evidence? ƒ Is the Heritage Overlay being applied judiciously? ƒ Do the statements of significance provide a reliable statement of the place’s significance? ƒ Are the controls specified in the schedule relevant to conserving the heritage values?

8.2 BALLARAT HERITAGE STUDY STAGE 2

8.2.1 Preparation and antecedents In its submission, the City of Ballarat outlined the history of heritage studies for the municipality preceding the Ballarat Heritage Study Stage 2. These include: ƒ Ballarat Conservation Study part 1 (1978) Jacobs, Lewis and Vines ƒ Ballarat Conservation Study part 2 (1980) Jacobs, Lewis and Vines ƒ Ballarat Historic landscapes Trees and Gardens (1983) Lumley et al.

33 See Hobsons Bay C17 Panel Report (February 2003), page 31 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 56

ƒ Royal Botanic Gardens Melbourne and department of Crown Lands and Survey (1983) ƒ Buninyong Conservation Study (1983) Coleman et al ƒ Learmonth Township Study (1988) Shire of Ballarat ƒ Report of Provision of Verandahs in Areas of Cultural Significance: City of Ballarat (1989) Ward ƒ City of Ballarat Streetscape Policy (1991) Wilson Sayer Core P/L ƒ Lake Wendouree Heritage Conservation Analysis (1994) Positive Space and Mark McWha P/L ƒ Ballarat Botanical Garden Conservation Analysis and Policy (1994) Patrick and Allom Lovell and Associates ƒ Buninyong Botanic Gardens Conservation Study (2001_) Jones, Dr. ƒ Ballarat Heritage Review (1998) Ward The Heritage Study undertaken by Ward (Ballarat Heritage Review 2000) was a comprehensive study and undertaken as a primary piece of work. The objective of this study was to identify places of potential heritage significance (at all levels – national, state and local) and to document them to a basic standard in order to establish which places required additional analysis prior to the application of permanent heritage controls. The places identified in this study were given interim protection without exhibition or notification procedures being implemented (Amendment C40, gazetted 26th April 2001).

Recommendations from the Ward study included further analysis on twenty precincts and 425 individual places.

The Ballarat Heritage Study Stage 2 effectively builds on the Ward study and includes the complete municipal area. During this study the consultants also reviewed the suite of existing studies which are documented above. Council’s submission notes that the review supported recommendations from earlier studies in relation to the precincts.

The Study was managed by a Steering Committee comprising City of Ballarat staff and Councillors, two community representatives from the Ballarat Restoration Advisory Committee and a representative from Heritage Victoria. The Steering Committee also drew on advice from a 36 member Community Reference Group.

The approach employed conforms to the accepted methodology for heritage studies. Additionally, Council noted that the Study was prepared in accordance with the Burra Charter. The recommendations from the Ballarat Heritage Study Stage 2 have led to the preparation of Amendment C58 in its exhibited form.

8.2.2 Criteria used in Ballarat Heritage Study Stage 2 The criteria used in the Ballarat Heritage Study Stage 2 are the Australian Heritage Commission (AHC) criteria, which are referred to in both the Planning Practice Note and the Burra Charter. They are set out in detail in Appendix A. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 57

The study report details the methodology used to apply the AHC criteria34 and notes the criteria have been used to ascertain the precinct boundaries (ie at State or local level) and that a ‘subset’ of levels of heritage significance have been applied to places within each precinct.

Grading of places within precincts have been grouped into four key levels of cultural significance: ƒ State significance ƒ Local significance ƒ Contributory local significance ƒ Non-contributory The Ballarat Heritage Study Stage 2 notes that these gradings are for research assessment only. ‘They do not designate a legal level of protection in the Ballarat Planning Scheme.’35

The statements of significance for each heritage precinct in the Ballarat Heritage Study Stage 2 are expressed to be of either local or state significance.

Notwithstanding these statements about grading within the study, the Panel has not discerned evidence of more detailed grading within the descriptions of the precincts. The implications of this are discussed in more detail in Section 10.8, in particular Section 10.8.1.

8.2.3 Have the criteria been rigorously applied? The Planning Practice Note on applying the Heritage Overlay refers to the need to for the heritage process leading to the identification of the place to be undertaken with rigour. The Planning Practice Note clearly states that: The most important thing is that the assessment of heritage places has been rigorous and that heritage controls are applied judiciously and with justification. The need for rigour, and regrettably the lack of rigour that is to be found in many heritage studies, has been emphasised in the Collie Report36 and numerous panel reports. However, in cases such as Stonnington L47(D), Yarra Ranges C16 Part 2 and Hobsons Bay C17, the panels were presented with expert heritage evidence on behalf of submitters and this caused the panel to question the accuracy of the heritage study in question. Such evidence, coupled with panels’ own assessments, has led to the conclusion in a number of instances that the relevant criteria have not been applied rigorously and for this reason the panel has recommended that either more work is required or certain places should be excluded from the Heritage Overlay.

In the case of Amendment C58, the consultant team included Ms Vicki Johnson, Heritage Planner. Since completing the Study Ms Johnson has been employed by the City of Ballarat as their Heritage Planner. The Study authors were not called to present their Study to the Panel however Ms Johnson attended the hearing and responded to queries raised. No

34 City of Ballarat Heritage Study (Stage 2): Heritage Precincts, Hansen Partnership (July 2003), page 17 35 City of Ballarat Heritage Study (Stage 2): Heritage Precincts, Hansen Partnership (July 2003), page 17 36 The Collie Report (1994) was prepared as a precursor to review of the planning ht controls as part of the planning reform program in the 1990s – see Section 11.1. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 58

alternative expert evidence that challenged any aspect of the Ballarat Heritage Study Stage 2 was presented as part of submissions.

The Panel is therefore in the situation of having to accept the Ballarat Heritage Study Stage 2 at face value and rely upon its own expertise and experience to assess the rigour of its preparation.

The Study has been carried out by reputable and acknowledged heritage experts, which included Wendy Jacobs who has had a long standing involvement in the identification and assessment of heritage places within the City of Ballarat. Based on its examination of the Study, the Panel has concluded that it represents a comprehensive and exhaustive exposition of the heritage features of the precincts and their significance. It also appears as though the relevant AHC criteria have been applied appropriately.

However, whilst the Panel brings a degree of expertise in heritage matters to bear in its analysis of the Ballarat Heritage Study Stage 2, the Study’s sheer size and complexity means that the Panel is not able to review the assessment of each place exhaustively. The Panel’s role is not to undertake a peer review but rather to make an intelligent judgement about whether it meets the standards expected by the Planning Practice Note on applying the Heritage Overlay.

On the basis of the material before it, and in the absence of any conflicting expert opinion, the Panel finds that the Ballarat Heritage Study Stage 2 provides adequate justification for the application of the Heritage Overlay to the relevant precincts.

8.3 DELINEATING HERITAGE AREAS The Heritage Overlay has been applied to 19 precincts. These cover the majority of the inner, older parts of Ballarat City, including the CBD, other commercial areas and extensive residential areas – see Figure 1. It is a vast area in total that will be covered and the question arises whether this represents a judicious application of the Heritage Overlay or whether the area is just too big.

Many of the residential areas covered are not affluent areas and the houses are modest. The proportion of non-contributory buildings varies from place to place and in many locations there are dwellings in need of refurbishment and upgrading to meet modern standards of accommodation. The imposition of a Heritage Overlay with its attendant need to apply for permits for demolition and virtually all types of development, including painting, will impose a substantial administrative and compliance cost burden on the Council and residents. The question arises whether there is an excessive level of control being applied and whether the outcomes will justify the delays and expense associated with administering the controls. There is also the risk that the widespread application of heritage controls to building fabric which has no intrinsic heritage value may confuse the public and bring the process of heritage protection into disrepute.

An issue raised in the submission by Mr John Manton is the stifling effect that the Heritage Overlay may have on other planning objectives such as encouraging new development which takes advantages of the proximity of many precincts to the city and to public transport BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 59

services. In response, the Council submitted that it is the role of the entire Local Planning Policy Framework to address the full range of strategic objectives for Ballarat. It is not the role of the Heritage Overlay or a local planning policy on heritage conservation to attempt to balance competing policy objectives.

As the Panel has described in Section 7.1, it takes the view that the Heritage Overlay should be applied to places of identified heritage significance without reference to the effect this may have on other planning objectives. Other issues and objectives should be considered within the context of heritage management policies or the decision-making process. The Panel therefore considers that in delineating the areas to which the Heritage Overlay should apply, the Panel and the Council should be guided by the findings of the Ballarat Heritage Study Stage 2 about the extent of heritage significance. With the exception of some minor modifications to the boundaries of the Heritage Overlay, which are raised in individual submissions and are addressed in Section 12.2, the Panel finds that the areas covered by the proposed Heritage Overlay in Amendment C58 are justified and should not be altered or reduced because of their size.

Nevertheless, in a broader strategic context, the Panel considers the Council needs to recognise that the potential for increasing housing densities within existing areas, which have good access to existing services and facilities and close proximity to the central city, will be reduced by the extensive application of the Heritage Overlay. It may well be that this will not constitute an impediment to sustainable growth in Ballarat due to the city’s unique circumstances. Unlike some other places, Ballarat may well have sufficient space to accommodate growth without the need to intrude upon its heritage areas, or there may be opportunities within parts of its heritage areas to recycle buildings to achieve more intensive housing densities. It may also be that the economic and other benefits associated with conserving and promoting Ballarat’s heritage outweigh the possible disbenefits associated with application of the overlay. The Panel considers that these factors should be reflected clearly in the MSS for the Ballarat Planning Scheme. There will be times when the objectives of the Heritage Overlay will conflict with other strategic planning objectives. It will help to resolve the weight to be placed on respective objectives if there is some explicit guidance in the MSS about the way the Council views the balance. It is not something that should be left to a local planning policy. This matter is discussed further in Section 9.

8.4 STATEMENTS OF SIGNIFICANCE In order to effectively apply the heritage control within the planning scheme, the heritage values of the place need to be determined. These values are then described in the statement of significance, which is relied upon when making decisions to establish the significance of the place. It is the significance of the place that proposals must be assessed against to determine their impact upon significance. Thus a critical feature of the Heritage Overlay is the statement of significance for each heritage place. In applying the Heritage Overlay it is important to ascertain whether the statements of significance provide a reliable statement of the place’s significance.

Interestingly, the provisions of the Heritage Overlay make no specific reference to statements of significance as such and there is no mechanism in Clause 43.01 to incorporate a statement BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 60

of significance for each heritage place affected by the overlay. This is one of the shortcomings of the Heritage Overlay, which is discussed further in Section 10. However, the need for a statement of significance is implicit in the controls and the Planning Practice Note on applying the Heritage Overlay states: The heritage process leading to the identification of the place should be undertaken with rigour. The documentation for each place should include a statement of significance that clearly establishes the importance of the place. There is no further guidance in the Planning Practice Note about what a statement of significance should contain. The Guidelines to the Burra Charter: Cultural Significance state with respect to statements of cultural significance: It is essential that the statement be clear and pithy, expressing simply why the place is of value but not restating the physical or documentary evidence. In the Model Brief for a Heritage Study included in the Local Government Heritage Guidelines (1991), the following Note 5 is included: The statement of significance should reflect the principles outlined in the Guidelines to the Burra Charter: Cultural Significance….Specifically the Statement of Significance must clearly express why the place is of value. It should not simply restate descriptive or historical material. It is not sufficient to state that a place is, for example, of historical or architectural significance without explicitly stating the reasons for this. The statement should conclude with a sentence which indicates the relative level of significance (national, state, local) of the place. Statements of significance have been developed as part of the Ballarat Heritage Study Stage 2 based on the AHC criteria and then matched to the Burra Charter values.

The Panel could not describe the statements of significance in the Ballarat Heritage Study Stage 2 as ‘pithy’. However, they do meet the requirements otherwise provided in the Local Government Heritage Guidelines (1991) in terms of articulating what is significant, how it is significant and at what level the heritage significance has been determined. This does not necessarily indicate how useful they will be in guiding future decision-making in a planning context, and the Panel finds they are of limited assistance in this respect as discussed further in Section 10, in particular Section 10.8. But in terms of establishing that the precincts have heritage significance that justifies the application of the Heritage Overlay, the Panel finds that the statements of significance are adequate.

The Panel therefore finds that the statements of significance in the Ballarat Heritage Study Stage 2 are a reliable statement of the heritage significance of each heritage precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 61

9. MANAGING HERITAGE PLACES

9.1 WAYS OF MANAGING HERITAGE PLACES Once the Heritage Overlay has been applied, heritage places must be managed. Clause 43.01, which sets out the controls applicable to land in a Heritage Overlay, contains very broad requirements for a planning permit for all demolition and most development. This discretion must be exercised by considering the decision guidelines set out in Clause 43.01-5. In addition to the basic provisions of Clause 43.01, there are a number of other ways in which a council can manage heritage places by: ƒ A local planning policy which identifies how the council will exercise its discretion with respect to demolition or new development in certain circumstances ƒ Guidelines about the way in which heritage places should be managed, including the way in which demolition, alterations, additions and new development should be undertaken ƒ Scheduling items in or out of the schedule to the Heritage Overlay ƒ Introducing an incorporated plan which exempts certain matters from the need for a permit These mechanisms were discussed in the Hobsons Bay C17 panel report:37

The issue is, rather, how to develop a management policy for a heritage site that takes account of the matters referred to in the Guidelines to the Burra Charter: Cultural Significance (para 1.5) by making use of the various controls and discretion available within the Heritage Overlay (Clause 43.01).

There are three ways that the broad discretion created by the Heritage Overlay can be varied to suit different types of management policy:

ƒ Without reducing the extent of the Heritage Overlay’s controls, Council can adopt policies varying the strictness with which Council will seek to achieve heritage outcomes (i.e. while a permit will generally be required for all buildings and works, the circumstances in which Council might seek restoration or reinstatement of missing items, or would refuse demolition of buildings or their parts, may be varied widely by such a policy) ƒ The items in the Schedule to Clause 43.01 can be varied to include or exclude permit requirements in relation to such matters as tree protection, external paint colours or alterations to the interior of buildings ƒ An Incorporated Document, introduced pursuant to the provisions of Clause 43.01-2, would allow Council to vary considerably the matters that would be subject to a permit. Such a document could exempt specified buildings and works from requiring a permit and this could be done by specifying a class of buildings and works or buildings and works in specified parts of a site or a combination. A class of buildings and works could also be specified as those meeting certain conditions (e.g. as to age, type, required for OH&S or safety reasons, etc).

37 Hobsons Bay C17 Panel Report (February 2003), page 46 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 62

In Ballarat, the Council has used a combination of all three mechanisms. It proposes to introduce a suite of very comprehensive local planning policies to guide the exercise of discretion. It has used the schedule to the Heritage Overlay to schedule out certain works and development (see Section 9.4) and it proposes to introduce an incorporated plan that will exempt a range of minor development from the need for a permit (see Section 9.5).

9.2 LOCAL PLANNING POLICIES

9.2.1 Common trends The most common, contentious and problematic of the mechanisms for managing heritage places is the use of local planning policy. Increasingly, councils are using local planning policies on heritage to prohibit or severely constrain demolition of buildings and to direct the style of new infill development or additions and alterations to existing buildings – often a style that reflects surrounding heritage built fabric. The issues arising with respect to these policies are: ƒ Their proscriptive nature, ie they are treated as de facto controls rather than guidelines to the exercise of discretion. ƒ The way that constraints on demolition and the form of new development conflict with other planning objectives. ƒ The way that local planning policy is being used for ulterior planning purposes, eg to prevent medium density development. ƒ The inclusion of height limits and density measures (eg policies to allow only detached houses) which are more appropriate in a Design and Development Overlay or other built form overlay not a heritage policy. ƒ Whether policies on restoration, reconstruction and reproductive architectural styles are in accordance with accepted conservation practice and the principles of the Burra Charter. ƒ The proliferation of differing policies, definitions and permit application requirements, which is undermining the principle of a consistent set of planning controls that the VPPs and new format planning schemes were intended to achieve. ƒ Whether excessively long heritage policies are intelligible to users and whether they are aiding or confusing decision-making.

9.2.2 Reasons for introducing heritage policies There is a common perception among councils that VCAT is not sufficiently sympathetic to the need to protect and retain contributory buildings in heritage areas or is too ready to allow demolition of individually significant buildings which have lost integrity. Many local planning policies that discourage demolition of significant heritage places and state that it is policy not to support the demolition of significant or contributory buildings except in exceptional circumstances are introduced with the express purpose of strengthening the council’s hand at VCAT. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 63

In many instances, councils are also seeking to be more explicit about the type of new development, alterations or additions they will support as means of clarifying the general decision guidelines in the Heritage Overlay, which refer to matters such as ‘the significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place’.

A problem associated with this latter reason is the misconception that by adding more and more specific details to a policy the ‘right’ answers or solution will fall out at the end. Good new development depends on educating both applicants and their designers and empowering decision-makers to appreciate the components that make a design appropriate for its context. Above all, it depends on decision-makers being prepared to make a judgement based on their professional skills and in accordance with appropriate criteria, rather than enumerating endless design details in the hope that a solution will emerge automatically out of the process. These comments apply equally to decision-makers at council and VCAT level.

The Panel does not doubt there have been decisions at VCAT which have allowed the demolition of contributory buildings or new development that perhaps are not as soundly based as one would wish. On the other hand, VCAT is sometimes accused of making ‘bad’ decisions when in fact it is considering competing planning objectives and where it finds that heritage objectives have been outweighed by other objectives.

There is a view amongst some councils that heritage objectives should always be pre- eminent. The introduction of local planning policies on heritage is often a means to reinforce this view. It is for this reason that the Panel has concluded in Section 7.2 that a heritage policy should not be accepted without consideration of the implications it will have on achieving other strategic objectives within the planning scheme or Metropolitan Strategy. Just as panels have rejected restrictive neighbourhood character controls when they are not part of an overall residential strategy, so this Panel believes a similar approach should be adopted with respect to heritage policies.

The Panel considers that restrictive and proscriptive local planning policies on heritage should not be used as a substitute for informed decision-making and the proper exercise of discretion based on professional judgement. If there is a lack of professional understanding on the part of decision-makers (either at council or VCAT level) this should be addressed through education and improvement not by attempting to change the rules.

However, the Panel does believe there is a proper role for local planning policy in guiding the exercise of discretion, as outlined in the Planning Practice Note on writing a local planning policy, by establishing how certain matters will be considered and what expectations will apply. In large, heterogeneous areas subject to the Heritage Overlay, the Panel considers this is particularly important. In such areas or precincts there is often found a variety of places that individually have little intrinsic heritage value but which collectively are important for what they say about the history of a place or for what they tell us as a group or collection of places.

There is sometimes criticism from within the heritage fraternity that the application of the Heritage Overlay to large, heterogeneous areas devalues the notion of heritage significance and that what these places display is neighbourhood character, which might constitute heritage character as opposed to landscape or built form/urban character, rather than heritage significance. In Section 11.3.2, the Panel discusses the concept of heritage character versus heritage significance. The Panel’s conclusion is that the community’s perception about what it BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 64

regards as heritage and what it values as a community has outstripped the views of the heritage fraternity who continue to agonise about the distinction between heritage significance and urban or neighbourhood character. The Panel considers that in reality heritage significance and character are all part of a continuum and there is no clear dividing line. It will be relatively easy to identify buildings at opposite ends of the scale and say what are clearly significant and what are not significant. It will be much harder to be specific about the grey areas in between. It is for this reason that the Panel is very sceptical about efforts to be too definitive and too prescriptive in advance of considering specific buildings in the context of individual planning permit applications.

At the same time, the Panel acknowledges that the loss of contributory buildings from a precinct, even buildings which have lost much of their integrity, creates a precedent for the demolition or removal of others and this will ultimately devalue the significance of the area and undermine the reasons for its protection in the first instance.38 Like much in planning, ultimate outcomes are usually the result of a cumulative decision-making process. Thus the continued loss of contributory buildings on the grounds that individually they are of little or no heritage significance can erode the character of a heritage area where the significance of the whole may exceed the sum of the significance of the parts.

Regrettably, since the Heritage Overlay replaced separate planning controls for urban conservation areas and individual historic buildings (see Section 11.1), there appears to have been a decline in understanding about the subtle difference in approach required when considering the heritage significance of individual buildings and the significance of heritage areas. This has not been assisted by directives to rely upon criteria such as the AHC criteria to establish heritage significance for both places and individual buildings (see Planning Practice Note on applying the Heritage Overlay). Panels such as the Stonnington L47(D) panel have criticised the AHC criteria as not being readily suited in their present form and elaboration to the purpose of assessing local significance of buildings. Whilst the Stonnington L47(D) panel was speaking in the context of assessing individual buildings, this Panel considers that the comments apply even more so to the use of the criteria to assess the heritage significance of large, heterogeneous areas.

The upshot is that there is a tendency to regard individually significant buildings as in some way ‘more significant’ than contributory buildings. It is this attitude that councils are anxious to counteract. The Panel believes there is a legitimate role for local planning policy to play in providing guidance about the management of heritage places and the way in which both individually significant buildings and heritage areas should be treated. It believes that policies may improve the level of understanding about the role of contributory buildings. However, it does not believe that such policies should attempt to remove the proper exercise of discretion under the Heritage Overlay itself or substitute the enumeration of numerous detailed directives regarding new built form for professional judgement based on the decision guidelines of Clause 43.01. Any local planning policy must assist decision-making not confuse it.

The Panel is therefore supportive of appropriate local planning policies on heritage conservation provided they: ƒ Comply with the Planning Practice Note on writing a local planning policy

38 See Draft Guidelines for the Assessment of Heritage Planning Applications (Heritage Victoria) August 2000, page 60 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 65

ƒ Fit within an overall strategic framework for the municipality ƒ Are not introduced for an ulterior purpose (ie a purpose not related to the objectives of the Heritage Overlay and the discretions which must be exercised under it) ƒ Are not contrary to accepted conservation practice and the principles of the Burra Charter

9.2.3 Proliferation of local planning policies One of the biggest problems the Panel has in considering the local planning policies in Amendment C58 is the further addition they make to the proliferation of local heritage policies throughout Victoria. The Panel is most concerned that the growth in number of these policies and their lack of consistency is undermining the principle of having a ‘consistent and co- ordinated framework for planning schemes in Victoria’39 through a common set of statewide planning controls in the form of the VPPs.

The Panel believes this is an issue that the Department of Sustainability and Environment and Heritage Victoria should urgently address. It considers that the continued proliferation of different heritage policies is complicating decision-making, leading to inconsistent decisions, adding substantially to compliance costs for applicants and administrative costs for councils, and generally bringing the process of heritage protection into disrepute. The proliferation of heritage policies is compounding the problems associated with the inconsistent and poor quality of heritage studies, which Heritage Overlays are based upon.

In the Panel’s view, the preparation of a model heritage conservation policy, which is suitable for all councils to use or customise to their own circumstances, is desirable. Alternatively: ƒ The Heritage Overlay should be modified so that the need for policy guidance on general heritage matters is removed by ensuring it is properly addressed in the overlay itself. ƒ A Planning Practice Note on writing a local planning policy on heritage conservation is prepared. ƒ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be finalised and incorporated into the VPPs. The Panel addresses the need to review the Heritage Overlay in Section 11. It believes a review is needed to address a number of issues, one of which is the need for more specific guidance about the exercise of discretion.

The concept of a model heritage policy and a Planning Practice Note would conserve councils’ scarce resources and save each one from having to ‘reinvent the wheel’ every time there is a need for a policy on heritage conservation. It would also prevent the confusion that arises from a plethora of subtly different definitions and concepts being introduced to planning schemes via local planning policies. An example of this confusion can be gleaned from a comparison of the Port Phillip Heritage Policy40 with the exhibited version of Amendment C58 to the Ballarat Planning Scheme.

The Port Phillip Planning Scheme is an example of a planning scheme which has a heritage policy that is based upon the distinction between ‘significant heritage places’, ‘contributory

39 Section 4A(1) Planning and Environment Act 1987 40 Clause 22.04 of the Port Phillip Planning Scheme BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 66

heritage places’ and ‘non-contributory heritage places’, in a similar fashion to the exhibited version of Amendment C58. However, the definitions vary in certain respects as the following table shows:

PORT PHILLIP HERITAGE POLICY BALLARAT AMENDMENT C58 HERITAGE CONSERVATION POLICY (AS EXHIBITED)

Significant heritage places include buildings and Significant heritage places are individually important surrounds that are individually important places of places of State, regional or local cultural significance either State, regional or local heritage significance or that make a contribution to the heritage values of the are places that together within an identified area, are wider municipality. part of the significance of a Heritage Overlay. These places are included in a Heritage Overlay either as an area or as an individually listed heritage place and are coloured “red”…

Contributory heritage places include buildings and Contributory heritage places are representative surrounds that are representative heritage places of places that contribute to the significance of a heritage local significance which contribute to the significance precinct. Through restoration or reconstruction they of the Heritage Overlay area. They may have been may be brought back to a condition that enables the considerably altered but have the potential to be place to achieve individual cultural significance.41 conserved. They are included in a Heritage Overlay and are coloured “green” …

Non-contributory properties are buildings that are Non-contributory places are neither significant nor neither significant nor contributory. They are included contributory. Any new development on these places in a Heritage Overlay and have no colour… However may impact in [sic] the significance of the place and any new development on these sites may impact on should therefore consider the heritage characteristics the significance of the Heritage Overlay, and should of any adjoining heritage place and streetscape as therefore consider the heritage characteristics of any covered in this policy. A non-contributory place adjoining heritage place and the streetscape as does not share the architectural/aesthetic, historical, covered in this policy. scientific or social values significant to a precinct or does not make a wider contribution to cultural values of the wider municipality.

The Panel believes these differences offer a potential minefield for debate and dispute about their meaning and the implications that can be drawn from their differing expression. DSE and Heritage Victoria could avoid all this by ensuring there is a consistency in approach to heritage policies.

41 In fact, the Panel believes this notion is misconceived. In Section 6.8, the Panel refers to the panel report in Stonnington C5 & C6 Part 2 where the issue of alterations to buildings and the impacts on their heritage significance is discussed. In the Stonnington C5 & C6 Part 2 report the panel said: The Panel has rejected some places that have been extensively extended in matching style. In these cases the Panel believes that while replication of the historic details in the new works minimises the risk of obvious incongruity, it also creates a falsity about the presentation of the building as continuing to represent the original conception. It is arguable whether restoration or reconstruction can increase the heritage significance of a place although it is clear that these processes may assist its appreciation. The Panel is doubtful whether the restoration or reconstruction of a contributory heritage place could result in that place acquiring individual cultural significance if it does not already posses it. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 67

9.2.4 Heritage Conservation Policy in Ballarat Planning Scheme The exhibited and revised versions of the Heritage Conservation Policy in Amendment C58 to the Ballarat Planning Scheme are considered in detail in Section 10. The Panel has experienced considerable difficulty in dealing with this policy for a number of reasons: ƒ Its sheer size and complexity is confusing and makes it difficult for users to comprehend. ƒ It does not meet the requirements of the Planning Practice Note on writing a local planning policy. ƒ Many of the concepts and guidance it contains: − are not clearly expressed or readily intelligible to people without a heritage conservation background − possibly offend good conservation practice and the principles of the Burra Charter − contain material and constraints (eg height limits) that do not properly belong in a heritage policy − contain contradictory messages about the appropriate style of alterations, additions and new development ƒ It is uncertain in its operation. It depends on distinctions, such as between significant and non-significant buildings, which cannot be ascertained from the amendment or other exhibited material. ƒ It contributes to the proliferation of different local planning policies on heritage throughout the state. ƒ With respect to the 19 precinct policies, many of these are simply repetitive of information to be found in the statements of significance or so excessively generalised as to be unnecessary and unhelpful. Nevertheless the Panel appreciates the City of Ballarat’s desire to provide more detailed guidance on the management of its many heritage places, particularly in light of the strong strategic support for the City’s heritage in the MSS.

The Panel has taken the general view that most, if not all, of what the Council wants to achieve through the content of its general heritage policy is better and more comprehensively expressed in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). It would be more appropriate to reference these guidelines and apply them through a local planning policy than attempt to repeat them in a truncated form or their presently more convoluted form in Amendment C58.

To the extent that the Council wishes to provide more certainty about the status of significance of buildings through the inclusion of additional information in an incorporated document, this should be done in a way that does not preclude an applicant from challenging the designation at the time when a permit application is made. In other words, it should be no more than a prima facie designation capable of rebuttal. The Panel believes that the designation should be limited to the identification of ‘non-contributory’ buildings for the reasons outlined in Section 10.2. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 68

With respect to the precinct policies, the Panel takes the view that much of their content is repetitive and unnecessary. To the extent that there are some genuine local policy issues that would not otherwise be evident by reference to the relevant statements of significance, the Panel takes the view that they may be included in a local precinct policy but in a rewritten form.

Specific recommendations are included in Section 10 together with a more detailed discussion of the issues.

9.3 GUIDELINES

9.3.1 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) The Panel believes that many of the needs of councils for guidance in managing heritage places and administering the Heritage Overlay could be met by use of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). The Draft Guidelines address many of the matters that council policies include but with far greater clarity and with more useful detail.

The Draft Guidelines were prepared with the express aim of providing assistance in the administration of the Heritage Overlay. They were also intended to provide consistency in decision-making across the state. After referring to the decision guidelines in Clause 43.01, the Introduction to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) states:42 The question arises as to what constitutes an adverse effect and how does a Responsible Authority assess whether a new building is in keeping with the character and appearance of the heritage place? These guidelines aim to provide that assistance. The guidelines are also intended to ensure a consistency in decision making across the state. The heritage considerations in a planning application to sandblast a historic building in Beechworth, for example, are no different to the heritage considerations in a planning permit to sandblast a historic building in Portland. The guidelines aim to ensure that similar decisions are arrived at for similar types of development. It is unfortunate that the Guidelines for the Assessment of Heritage Planning Applications (2000) still remain in draft form three years after their release and that the SPPF still only refers to the Local Government Heritage Guidelines (1991). Whilst the 1991 Guidelines contain some useful general information, they are out-of-date in their reference to planning controls which predate the Heritage Overlay and their lack of practical detail to guide day to day decision-making.

The Panel believes that it is time for the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) to be finalised and incorporated into the VPPs. They should be included amongst the decision guidelines in the Heritage Overlay. In the short term, they may be given effect by a local planning policy, which says it is policy to apply the Draft Guidelines

42 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 1 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 69

for the Assessment of Heritage Planning Applications (2000) when considering any applications under the Heritage Overlay.

9.3.2 Other guidelines Over the years many councils have prepared conservation guidelines to assist in the conservation of heritage buildings. The Ballarat Conservation Guidelines were prepared by Jacobs Lewis Vines in 1981 and are still listed as a reference document in the Heritage Conservation Policy exhibited in Amendment C58. Many of these guidelines are well illustrated with photographs and diagrams.

The Panel considers that many guidelines applicable to managing heritage places are difficult to comprehend if words alone are relied upon, but they become much clearer when illustrated with pictures or diagrams. (The diagrams proposed in the revised incorporated plan are an example – see Section 9.5.) It believes that the City of Ballarat might consider the preparation of a series of illustrated information sheets for the public, which give examples of how the main guidelines taken from the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) would be applicable in Ballarat’s heritage precincts.

9.4 SCHEDULE TO HERITAGE OVERLAY The use of the schedule to the Heritage Overlay to schedule items in or out of the need for a permit is one way of managing heritage places. The issue is whether the controls specified in the schedule are relevant to conserving the heritage values identified in the statements of significance.

The schedule to the Heritage Overlay allows for a range of controls to be activated or not under the provisions of Clause 43.01. They include whether: ƒ External paint controls apply ƒ Internal alteration controls apply ƒ Tree controls apply ƒ Outbuildings or fences are exempt under Clause 43.01-4 (ie reactivates notice and appeal provisions for outbuildings and fences) ƒ Prohibited uses are permitted ƒ Things specified in an incorporated plan are exempt under Clause 43.01-2 The Council has made use of the schedule to schedule out a range of minor development that will not impact on streetscape or significant heritage fabric through use of the incorporated plan. This is discussed further in Section 9.5. Other relevant aspects of the schedule are the application of external paint controls and tree controls.

The external paint controls are activated in a number of precincts but are then referenced to the incorporated plan, which then reduces their application within those precincts. External paint controls are dealt with in detail in Section 9.6. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 70

Tree controls apply to HO163 – Lake Wendouree Precinct, HO165 – Victoria Park Precinct, HO172 – Creeks and River Channels Precinct and H0174 – Black Hill Precinct. They are discussed also in Section 12.13 in the context of individual submissions.

As noted in Section 12.13, the Council indicated that it has also applied the Vegetation Protection Overlay to parts of Ballarat. The Panel did not delve into the interrelation between the tree controls in the Heritage Overlay and the Vegetation Protection Overlay, however it considers that the Council should consider this relationship more closely.

In terms of Amendment C58, the Panel considers the activation of tree controls in the Lake Wendouree Precinct (H0165), Victoria Park Precinct (HO172) and Black Hill precinct (HO174) are reasonable based on the role of vegetation in establishing their significance in the relevant statements of significance in the Ballarat Heritage Study Stage 2. The Panel is not so sure why they have been applied in the Creeks and River Channels Precinct (HO172). There is nothing in the description of this precinct or its statement of significance that refers to trees or vegetation. There therefore appears to be no justification for scheduling in tree controls for this precinct. On the other hand, the Panel is surprised that Sturt Street Precinct (HO167) does not have tree controls. Its description in the Ballarat Heritage Study Stage 2 and statement of significance refers to its boulevard layout and landscape character. The Panel also notes the policy in the local precinct policy to ‘Encourage the retention of the garden settings of Church properties.’

The Panel is concerned there may also be other precincts where landscape is an important component of their significance but tree controls have not been included in the schedule. It believes that a close analysis of the descriptions and statements of significance for the various precincts and integration with the tree controls in the schedule is required. At the same time, the Panel is mindful of the burdens that tree controls will place on managing authorities, particularly for large sites. The Council falls into this category with its responsibilities in managing parks, streets and other aspects of the public realm (see Submission 30 discussed in Section 12.5.1). One of the reasons why the incorporated plan provisions were included in the Heritage Overlay was so councils or other managing authorities for parks and gardens could develop management plans which properly took account of the heritage significance of the vegetation, layout and other features of the heritage place. The management plan could then be incorporated and any work in accordance with the management plan would be exempt from the need for a permit. The Panel therefore encourages the City of Ballarat to prepare management plans for parks, gardens and other aspects of the public realm within its care and control which are in a Heritage Overlay and to include them as incorporated plans in the schedule to the Heritage Overlay.

Recommendation The Council should: ƒ Review the tree controls in the schedule to ensure that they properly reflect the precinct descriptions in the Ballarat Heritage Study Stage 2 and statements of significance. ƒ Prepare management plans for parks, gardens and other aspects of the public realm within the Heritage Overlay which it is responsible for and where vegetation is a component of the significance of the heritage place. The management plans BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 71

should take proper account of the heritage significance associated with the place and should be included as incorporated plans in the schedule to the Heritage Overlay.

9.5 INCORPORATED PLAN An incorporated plan was exhibited with Amendment C58, which exempted the following development from the need for a planning permit. ƒ Construct a front fence less than 1.2 metres in height above natural ground level. ƒ Externally paint a building that does not face Victoria Street within the Victoria Street precinct. The Council advised at the hearing that it proposed to modify the exhibited version of Amendment C58 by including a revised incorporated plan, a copy of which is included in Appendix A. The effect of the revised incorporated plan is to remove the need for a permit for works and development of a minor nature that do not impact on the streetscape or affect significant built fabric. The Council has introduced similar permit exemptions for certain buildings and works in its interim heritage controls and has found that the exemptions have successfully reduced the number of applications that have been lodged and have not resulted in the loss of significant heritage fabric. In the light of this experience, the Council proposes to include additional permit exemptions in the incorporated plan to those included in the exhibited documents. Reducing the need for planning permits in many cases will reduce administrative and compliance cost burdens for the Council and property owners.

The permit exemptions proposed by Council are based on the principle that ‘external changes to places that are not significant and will not be visible from the public domain should not be controlled’. It was submitted to the Panel that: Most extensions at the rear of a building that do not exceed the height of the existing building are not going to be visible from most non-elevated viewing points except from a small area immediately either side of the property and would therefore have an insignificant impact on the surrounding area. Likewise any addition located at the side of the back half of the building would have an insignificant impact on the surrounding area. The revised incorporated plan proposes that no permit will be required for: ƒ Front fences less than 1.2 metres in height except in the Waller Estate Precinct where the absence of fences is a part of the heritage significance. ƒ Externally painting a building except in certain locations facing Victoria Street and Sturt Street, and in Buninyong. ƒ Alterations, additions and new buildings at the rear and to the side of ‘not significant’ places which are set back from the front façade in line with certain criteria. ƒ New outbuildings (carports/garages/sheds) at the rear and to the side of ‘significant’ places in line with certain criteria. ƒ Minor development to the rear of ‘significant’ places. Minor development includes a pergola, verandah, deck, water tank or domestic plant and services. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 72

Interpretation of the provisions of the incorporated plan is assisted by the inclusion of a series of simple plans with shaded areas showing where certain development will or won’t require a permit.

The distinction between ‘significant’ and ‘non-significant’ places in the revised incorporated plan represents a further change proposed by the Council, which is discussed in Section 10.6. The following comments should be read subject to the Panel’s conclusions and recommendations about the introduction of this distinction.

The Panel finds that the permit exemptions proposed for buildings and works in the heritage precincts will not diminish the heritage significance of the precincts and will be effective in reducing the number of permit applications that need to be made for buildings and works within the heritage precincts.

However, the Panel believes that other exemptions could also be included, which would further simplify the controls. They are discussed in the following sections.

In terms of other changes to the incorporated plan, the Panel refers to the decision by Council, noted in Section 12.5.3 in response to the submission by Mr John Manton, to remove the decision guidelines and reference documents from the incorporated plan as being inappropriate for inclusion.

The Panel also notes that the revised incorporated plan includes a purpose, ‘To protect places of cultural significance from inappropriate development.’ The Panel considers this is superfluous and a statement of purpose is unnecessary in a document such as the incorporated plan. Accordingly, it should be deleted.

9.6 EXTERNAL PAINT CONTROLS The schedule to the Heritage Overlay includes external paint controls for the West Ballarat Precinct (HO164), Sturt Street Precinct (HO167), Lydiard Street Precinct (HO171), Bridge Mall/Bakery Hill Precinct (HO176), Victoria Street Precinct (HO177) and Buninyong Precinct (HO181). The revised incorporated plan further confines the areas to which external paint controls apply in the West Ballarat and Victoria Street Precincts to buildings facing Sturt Street and Victoria Street, and to only certain areas within the Buninyong Precinct. They are thus limited to the main route through town, to the main commercial precinct and to small parts of Buninyong.

The Panel questioned the Council at the hearing as to why any external paint controls were needed in these or indeed any locations. It questioned whether the administration of the control is worth the slight risk that someone may paint a building in an inappropriate or non- heritage colour. The Council’s response is that Victoria Street and Sturt Street are the main entrances to Ballarat and it is important to protect the appearance of these boulevards as a means of establishing the heritage character of the city. In the commercial precincts, the Council wished to avoid the situation of buildings being painted inappropriately or in a way that constitutes an advertisement.

With respect to the latter situation, the Panel notes that there is a specific provision in Clause 43.01-1 that requires a permit for external painting of a building if the painting constitutes an advertisement. This is irrespective of whether external paint controls apply under the BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 73

schedule. The Panel also notes that there is a similar separate control in Clause 43.01-1 over externally painting a previously unpainted surface.

Control over external painting of buildings places a significant burden on property owners and the Panel considers that this area of control should not be introduced unless there is very good justification for it.

The Panel notes that properties fronting Sturt Street in the West Ballarat precinct comprise a mixture of dwellings, churches, schools and Department of Defence buildings. The buildings are set in well landscaped grounds and the predominant external cladding is unpainted face or rendered brick, and in some cases stone. A permit would be required to paint these surfaces in any case. The majority of external paintwork on these buildings that would be called up by the scheduled paint controls would be painting of windows, doors and other trim.

The Panel does not expect that painting of windows, doors and other trim would have a significant impact on the heritage significance of the precinct. Furthermore, the Panel does not believe that external painting of the timber buildings in the precinct is likely to impact on the heritage significance of the precinct – particularly in view of the substantial front setbacks and well established gardens along Sturt Street that allow only filtered views to the buildings from the street. The Panel therefore does not consider it is necessary to extend the exhibited paint controls to properties fronting Sturt Street in the West Ballarat precinct.

Properties fronting Victoria Street in the Victoria Street precinct are mainly residential properties that contain dwellings that are predominantly of weatherboard construction. External paintwork on these dwellings will be called up by the proposed scheduled paint controls. However, the Panel does not consider that the integrity and character of the precinct warrants imposition of external paint controls. Furthermore, the Panel notes that in the proposed local precinct policy the objectives make no reference to paint colours.

When inspecting the West Ballarat and Victoria Street Precincts, the Panel noted that where refurbishment of properties has occurred, careful consideration appears to have been given to the choice of colours which compliment the heritage features of the property. This appears to be occurring irrespective of the operation of heritage controls and is a feature of people’s appreciation of heritage properties and change in attitude to their value. This reinforces the Panel’s view that external paint controls are not necessary in these precincts.

On the other hand, the Panel accepts that the Sturt Street precinct, the Lydiard Street precinct, the Bridge Mall/Bakery Hill precinct, and the central area of the Buninyong precinct do have a degree of significance that warrant imposition of external paint controls. This has been recognised in the policy for the Sturt Street, Lydiard Street, and Bridge Mall/Bakery Hill precincts that include a policy to: Encourage the use of paint colours on buildings that are appropriate for the style and period of construction. However, the Panel notes that no such policy has been included in the policy for the Buninyong precinct.

Whilst the Panel supports the scheduling in of paint controls for these precincts and reference to use of appropriate paint colours in the policy for the precincts, the Panel considers that the policy as stated is vague and provides no useful guidance to property owners or decision BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 74

makers. The Panel suggests that Council work with property owners in these precincts to develop a range of paint colours for each precinct. A permit exemption could then be included in the incorporated plan for paint work that is in accordance with the approved range of paint colours. This approach would have the benefits of providing greater certainty to property owners in relation to paint colours and of reducing the permit requirement.

In general terms, the Panel believes that a positive attitude towards heritage conservation should be promoted in the community. For this reason, the Panel believes that councils generally should aim to ensure that heritage controls are viewed as a positive means to protect heritage assets from demolition and ensure that new development is appropriate. They should avoid the perception that heritage controls are a negative bureaucratic burden that inhibit or penalise people trying to look after or improve their properties. In this respect, the Panel believes it is very important to balance the worth of the outcome of a control against the cost of achieving it.

With respect to control over external painting, the Panel is not convinced that the slight risk of an inappropriate colour scheme, which is not a heritage colour scheme, justifies the administrative burden and cost of enforcing the control. It is the sort of onerous, petty control that gets people’s backs up and creates in them a negative impression of heritage controls. Paint is an ephemeral finish that will be renewed over time. It is also subject to fashion and taste. There is a strong current fashion that favours heritage colours for heritage buildings. The Panel believes it will be more effective and cost efficient to rely upon the fashion than the control to achieve this end. The Council can promote this fashion in the local context through positively reinforcing the benefits and value of Ballarat’s heritage in its communications with the community.

The Panel therefore recommends that all external paint controls should be removed from the schedule to the Heritage Overlay for the precincts affected by Amendment C58 except the Sturt Street Precinct (HO167), Lydiard Street Precinct (HO171), Bridge Mall/Bakery Hill Precinct (HO176), and Buninyong Precinct (HO181).

The Panel also encourages the Council to consider the necessity for external paint controls in respect of other heritage places in the Planning Scheme in line with the above reasons.

9.7 DEMOLITION OF ‘NON-SIGNIFICANT’ PLACES In Section10.6, the Panel discusses the distinction the Council proposes to make between significant and non-significant buildings. The Council intends to make specific designations regarding each building in the Heritage Overlay. The Panel recommends that the Council restrict its specific designation to non-significant buildings only.

It is Council policy to allow the demolition of a place identified as not significant under the planning scheme. In light of this, the Panel questions whether there remains a need to require a permit for demolition of non-significant buildings. Any replacement building will require a permit and any impacts that a replacement building may have on the streetscape can be managed in accord with other polices within the planning scheme. Eliminating the need for a permit to demolish non-significant buildings would be a further means of reducing compliance costs and administration without contravening the Council’s policy about demolition. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 75

The Panel therefore recommends that the incorporated plan should exempt demolition of a non-significant building from the need for a permit.

Recommendation ƒ Remove all external paint controls from the schedule to the Heritage Overlay except the Sturt Street Precinct (HO167), Lydiard Street Precinct (HO171), Bridge Mall/Bakery Hill Precinct (HO176), and Buninyong Precinct (HO181). ƒ Council should work with land owners and traders in the Sturt Street Heritage Precinct(HO167), the Lydiard Street Heritage Precinct (HO171), the Bridge Mall/Bakery Hill Heritage Precinct (HO176) and the Buninyong Heritage Precinct (HO181) to develop an appropriate range of paint colours for the precinct. ƒ A permit exemption should be included in the incorporated plan for external paint work that is in accordance with the agreed range of paint colours for the Sturt Street Heritage Precinct (HO167), the Lydiard Street Heritage Precinct (HO171), the Bridge Mall/Bakery Hill Heritage Precinct (HO176) and the Buninyong Heritage Precinct (HO181). ƒ Modify the revised incorporated plan to reflect the changes to the schedule regarding external paint controls. ƒ Modify the incorporated plan to exempt demolition of a non-significant building from the need for a permit. ƒ Delete the purpose from the incorporated plan. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 76

10. HERITAGE CONSERVATION POLICY

10.1 HERITAGE CONSERVATION POLICIES IN AMENDMENT C58

10.1.1 Exhibited and revised versions of policies The exhibited version of Amendment C58 includes 20 new local planning policies. Clause 22.15 is a Heritage Conservation Policy and applies to all land affected by a Heritage Overlay. Clauses 22.16 – 22.34 are a series of local heritage precinct policies applying to each of the new heritage precincts introduced by Amendment C58 (see list in Section 3). The exhibited policies add an additional 73 pages to the LPPF section of the Ballarat Planning Scheme.

At the hearing, the Council presented an amended version of the policies. The following are the main changes that have been made. ƒ The 20 policies have been combined into the one policy with a general section at the start applying to all heritage places and 19 sections applying to each new heritage precinct. The Council advised that this allowed the policy to flow logically from the general to the specific and removes repetition between each policy. ƒ A new description of where the policy applies has been provided. This includes the following statement: The scheduled controls applying to heritage precincts are, in the majority of instances, to be applied equally to all significant heritage places within that precinct. The only instance where a significant heritage place within a precinct is individually scheduled and mapped is where it triggers a variation to the scheduled controls of that precinct. It is important to note, however, that such places do not necessarily have a greater level of significance than those not individually identified in the schedule, and that they are also to be assessed with regard to the relevant precinct objectives and policy statements. ƒ The definitions have been modified to: − Replace ‘significant’, ‘contributory’ and ‘non-contributory’ with ‘significant’ and ‘non- significant’ − Include reference to the identification of significant and non-significant places within a new incorporated document (yet to be prepared) Ballarat Heritage Precincts – Statement of Significance (2004) − Include additional definitions for ‘restoration’, ‘reconstruction’, ‘maintenance’ and ‘enhancement’, as they are terms used throughout the policy ƒ Reformat the policy statements Appendix A includes extracts from the revised Heritage Conservation Policy submitted at the hearing, namely the General Heritage Policy at Clause 22.15-1 and the HO173: Mount Pleasant/Golden Point Heritage Precinct Policy, which is typical of the local precinct policies and which has been used by the Panel for the purposes of analysis later in this report. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 77

The Council advised that the revised version of the policies was a result of consideration of submissions and further independent consideration by Council. It submitted that the changes had been made to improve the operation of the policies and provide clarity and certainty rather than expanding the level of control. It requested that the Panel recommend approval of the modified amendment incorporating these changes.

In its discussion of the Heritage Conservation Policies the Panel has focussed on the revised version of Clause 22.15 rather than on the exhibited version.

10.1.2 Effect of heritage policies The revised version of the heritage policies in Amendment C58 still extends to 68 pages. They will add a further layer to the objectives and decision guidelines already included in the Clause 43.01 of the Heritage Overlay and other relevant objectives in the MSS. The result is a highly complex suite of objectives, policies and guidelines, which can be seen from the lists the Panel has prepared in Tables 1 and 2 in Appendix A.

The intended outcome of the heritage policies is to prevent demolition of any significant building except in exceptional circumstances. Based on the objectives in the individual precinct policies and the Ballarat Heritage Study Stage 2, a significant building is essentially anything that was built pre-1950. There are slight variations to this in the case of some precincts where it is only Victorian and Federation places that have been identified as having significance. But in the large heterogeneous precincts such as Central Ballarat (HO166), South Ballarat (HO168) and Soldiers Hill (HO170), which are the major areas covered by the Heritage Overlay, the specific objectives are: To conserve the Victorian, Federation, and Inter-War and early Post-war residential, commercial, cultural/community and educational places that demonstrate the historical significance of the precinct. With respect to new development, there are extremely detailed policies promoting restoration, reconstruction, re-creation, conjectural reconstruction and the use of traditional building material and techniques. The Panel is concerned that the way in which these policies are expressed will tend to produce reproductive, ‘mock’ architecture that is at odds with the principles of conservation set out in the Burra Charter and its guidelines. This issue is discussed further in Section 10.4.

The combination of the general heritage policy and the 19 precinct policies mean that there will be few opportunities for new infill development in the established urban areas of Ballarat. That which does occur will be low scale and unlikely to achieve much in the way of urban consolidation. The Council is unapologetic about these outcomes. It rates preservation of the existing built form of Ballarat pre-1950s as very important in maintaining the image of the City and its heritage. Whilst it supports urban consolidation, it believes there are adequate opportunities to achieve this and cater for future growth within the context of Ballarat without sacrificing existing significant buildings. The strategic basis for this approach is discussed in Section 10.2. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 78

10.2 STRATEGIC BASIS FOR HERITAGE CONSERVATION POLICY In Section 7, the Panel discussed the issue of balancing competing objectives. In Section 7.2, the Panel found that where heritage conservation policies include policies which effectively prohibit demolition of significant or contributory buildings or which severely restrict the form of new development, they should not be approved unless they are supported by an analysis of the way in which the policy will impact on the achievement of other strategic objectives. The Panel believes that any such heritage conservation policies should be integrated with other strategies, especially residential and housing strategies.

The following strategic directions are to be found in the Ballarat Planning Scheme MSS: ƒ Ballarat is a major regional centre. ƒ The vision for Ballarat set out in Clause 21.5 –1 is that Ballarat will have a lifestyle of the highest quality based on a number of factors including ‘a rich historical and architectural heritage’. ƒ ‘To protect and improve heritage assets’ is included as one of the ten principal land use planning objectives identified in Clause 21.5-1. ƒ The first substantive statement of strategic intent in the MSS is Clause 21.7 City Image. It focuses strongly on the image of Ballarat typified by its rich historical and architectural heritage and emphasises the importance of this for tourism and the local economy. Issues identified in Clause 21.7-2 include: − The presentation of the main entrances to Ballarat − Preservation of the key historic and scenic features which contribute to Ballarat’s character − Loss of contributory buildings within residential streetscapes ƒ There are two objectives included in Clause 21.7-3 the first of which is: ƒ To retain, protect, reinforce and enhance the quality and character of the City’s image ƒ The strategy to achieve this will be to identify and protect those elements which contribute to Ballarat’s character. This strategy will be implemented by applying the Heritage Overlay. Other actions to implement the strategy include a comprehensive heritage conservation study; development of residential guidelines for the City’s inner residential areas and operating a heritage advisory service. ƒ Clause 21.11 deals with Residential Development. It identifies that urban consolidation is promoted within the older, established areas of Ballarat to maximise the use of existing resources and infrastructure. Although there is no specific objective relating to this, there is a strategy in Clause 21.11-4 to ‘Promote and facilitate urban consolidation within the older, established areas of Ballarat to maximise the use of existing resources and infrastructure’. ƒ However, one of the objectives in Clause 21.11 is ‘To ensure that the future patterns of residential development protect and enhance the natural and man-made assets of the City’, and this is supported by a strategy to ‘Identify those elements which make up the character of established areas and ensure new development in these areas contribute to this character’. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 79

ƒ Issues identified in Clause 21.11 include: − Managing residential growth − Managing change in established areas − Providing an appropriate residential mix ƒ Key issues for the whole of the City of Ballarat are identified in Clause 21.17 and include: − Loss of urban character in residential areas within the older central areas − Managing the City’s historic assets ƒ There is a specific Residential Policy at Clause 22.01, which largely repeats what is already in the MSS. The only additional item of relevance is the policy that: The integrity of historic streetscapes not be diminished by the intrusion of out of character (medium density) housing43 The Panel was not presented with specific material in the form of a housing strategy or the like to demonstrate how Ballarat’s future housing needs would be met or the specific impact that the widespread application of the Heritage Overlay would have on them.

Nevertheless, Council advised the Panel that the future of Ballarat was seen to rest heavily on recognition of its heritage. Ballarat’s heritage would provide economic opportunities, affect tourism, and also the attraction of the city as a place to live, study or do business. For example, the Panel was told that Ballarat will host the 2006 League of Historical Cities Conference, which attract visitors worldwide. It was also told that the City of Ballarat and University of Ballarat are currently investigating the feasibility of establishing a school of classical building trades to provide training in skills necessary to conserve historic buildings. In the Council’s view, Ballarat’s heritage is a defining characteristic of the city and a point of difference. For this reason, it is essential to conserve all aspects of its heritage. This includes the remarkably intact period character of many of its residential areas – rich and poor, grand and humble – as well as its public, institutional and commercial built fabric.

The Panel’s conclusion is that there is a strong strategic basis within the MSS for protecting the City’s heritage areas and maintaining the integrity of its heritage streetscapes. The Panel considers the existing strategic directions within the MSS provide justification for a strong policy against demolition of significant or contributory buildings in heritage precincts and for careful controls over new development.

Ideally, the Panel believes that the emphasis being given to the retention of heritage built form over other policies of urban consolidation could be more strongly emphasised in the MSS. Alternatively, if the Council considers that it is able to implement its urban consolidation objectives in ways that will not compromise its heritage objectives, these strategies should be more clearly articulated and the relationship between the two explained so that the potential for argument is reduced. This is particularly important in the light of Melbourne 2030 and the implications this will have for Ballarat. The Panel also believes that the link between Ballarat’s

43 It is difficult to know quite how to interpret this policy, whether it means that all medium density housing is deemed to be ‘out of character’ or only medium density housing which is out of character is discouraged. Where does this then leave other development which is out of character? BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 80

heritage and its economy could be strengthened in the MSS to further reinforce the application of the Heritage Conservation Policy. However, whilst these are improvements that could be made to the wording of the MSS, they do not alter its basic directions or support for heritage conservation.

10.3 IS A LOCAL PLANNING POLICY NECESSARY? Any local planning policy should be assessed against the Planning Practice Note on writing a local planning policy. The first question that the Planning Practice Note poses is whether a local planning policy is necessary.

The City of Ballarat is convinced it needs a local planning policy to provide more detailed guidance about how discretion will be exercised in relation to applications under the Heritage Overlay. In particular, it is concerned to emphasise the value of contributory buildings within precincts and to counter a perceived attitude at VCAT that contributory buildings are of less significance than individually significant buildings and hence their demolition can be allowed more readily. It wishes to provide more detailed guidance about the type of alterations, additions and new development that are considered appropriate. The Council also wishes to provide more certainty about how its policies will apply through the designation of properties as significant or non-significant.

The need for additional and more detailed guidance is acknowledged in the Introduction to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). The Draft Guidelines were prepared with the express aim of providing assistance in the administration of the Heritage Overlay. They were also intended to provide consistency in decision-making across the state.

The Panel accepts the need for additional policy guidance on managing heritage places and administering the Heritage Overlay in Ballarat. However, as discussed in Section 9.3.1, the Panel believes that many of the needs of the Council for guidance could be met by use of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). The Draft Guidelines address many of the matters that are included in the Heritage Conservation Policy but with far greater clarity and with more useful detail.

For example, the following extract is taken from the Draft Guidelines dealing with demolition and removal of buildings:44 ƒ Demolition of individually listed heritage buildings and structures should normally be refused except in very exceptional circumstances. ƒ Demolition of places that contribute to the significance of heritage areas should normally be refused. The gradual loss of contributory buildings in heritage areas, irrespective of the design quality of the replacement building, will undermine the significance of the area and the justification for its protection in the first instance. ƒ …

44 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) pages 11-12 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 81

ƒ Demolition of any significant components or significant fabric of a heritage place should be avoided. ƒ Demolition is acceptable where the subject building, part of a building or structure has been identified as having no significance, is not contributory to the significance of the heritage place, or is intrusive. ƒ Demolition may be acceptable where the condition of the place has been assessed as being beyond repair, both physically and economically (see Basis). The test of physical condition might be that it is in a ruinous condition under the provisions of the Building Code of Australia. A conservation practitioner should be employed for an opinion in this process as they generally have more exposure to these issues than an equivalent practitioner.45 Arguments for the demolition of a significant building or structure need to be critically considered on the basis of clearly objective assessments and second opinions may well be necessary…. ƒ Demolition may be acceptable where the demolition is of a minor part of a significant heritage place and the element is of no significance or where the demolition helps to reveal the significance of the heritage place. ƒ The demolition of minor parts of a place may be acceptable where it could assist in achieving a greater conservation benefit…. In the Draft Guidelines there are also guidelines relating to the demolition of part of a building (including facadism) and to heritage areas. One of the guidelines for heritage areas is:46 ƒ Places located in a heritage area that are identified as having no heritage significance may be altered, demolished or removed. In many instances, the demolition of places that are not of heritage significance within a heritage area should not be undertaken until a planning permit for the replacement development is approved and a contract for the new work has been confirmed.47 The expression of these guidelines in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be compared to the expression of similar policies in the general heritage policy in Clause 22.15. Whilst the intent of the two is similar, the Panel considers that the wording, level of detail and intent of the policies is much clearer in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) than in Council’s Heritage Conservation Policy. The relevant provisions relating to demolition in the revised version of Clause 22.15 are set out below: Where a permit is required for demolition, it is policy to: ƒ not grant a permit for demolition unless a permit has already been granted for the development of the land, or is to be simultaneously granted for the development of the land. ƒ allow the demolition of a place identified as Not significant under the planning scheme. ƒ discourage the entire demolition of significant heritage places. ƒ consider the role that a significant heritage place plays in the streetscape, in relation to the surrounding built environment, and in contributing to the cultural significance of an area rather than simply focus on the individual merit of the place.

45 There appears to be a word omitted here? What sort of equivalent practitioner is meant? 46 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 61 47 In fact, the Panel does not consider this is necessary in the large, heterogeneous heritage precincts in Ballarat. It considers that demolition of non-significant buildings could reasonably be exempt from the need for a permit – see Section 9.7. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 82

ƒ allow the demolition of part of a significant heritage place if it will not affect the significance of the place, and the proposed development is considered to be sympathetic to the scale and form of the place. ƒ only support the demolition of those parts of a significant heritage place that are structurally unsound, as evidenced by a professional structural engineering report identifying that they cannot be reasonably retained. ƒ only support the demolition of a significant heritage place where a Statement of Significance produced by a heritage professional (as evidenced by membership of or eligibility for membership of Australia ICOMOS) demonstrates that the building is not significant to the satisfaction of the Responsible Authority. ƒ require an application for demolition to be accompanied by documentation that demonstrates: − that all viable options for the conservation of the place have been explored. − that the building or structure has structural defects incurred due to natural occurrences that cannot be economically remedied. − that the demolition involves the removal of later inappropriate modifications that are of no cultural significance, are not contributory to the cultural significance of the heritage place or are intrusive. − that significant fabric will be reinstated. Similar comments are applicable to guidelines dealing with construction of new buildings, additions and extensions to existing buildings and external alteration of an existing building. There are specific guidelines for verandahs and shopfronts, and fences. In each case, the expression in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) is much clearer than similar policies expressed in the Heritage Conservation Policy, especially to users who are not heritage experts.

Thus, whilst the Panel considers that additional policy guidance is needed, it is not convinced that the expression of that policy guidance as represented by the Heritage Conservation Policy in Amendment C58, either the exhibited or revised version, is the best means of providing it. The Panel has set out the broad reasons why it does not consider the exhibited or revised versions of the Heritage Conservation Policy are appropriate in Section 9.2.4.

The Panel has reached the conclusion that most, if not all, of what the Council wants to achieve through the content of its general heritage policy is better and more comprehensively expressed in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). It considers that where guidelines such as these have been prepared for the specific purpose in question, it is more appropriate for them to be used than for individual councils such as the City of Ballarat to ‘reinvent the wheel’ by drafting their own guidelines or policy.

In order to give effect to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000), it would be appropriate to incorporate them in the planning scheme and then have a very simple local planning policy that states something like: It is policy to apply the incorporated Draft Guidelines for the Assessment of Heritage Planning Applications (2000) when considering applications under the Heritage Overlay. The Panel suggests that the Draft Guidelines should be an incorporated document rather than a reference document because it meets the criteria for incorporating a document set out in the BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 83

Planning Practice Note on incorporated and reference documents. The Panel considers that the Draft Guidelines are too lengthy to include in the planning scheme itself in a local planning policy. Nor does it suggest truncating them because then valuable information and guidance would be lost.

The Panel notes that Clause 22.15 states that where a permit is required for signage it is policy to require that all advertising signs be consistent with the City of Ballarat Advertising Sign Guidelines. The Council may prefer to continue to apply this policy rather than the guidelines on signage in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). If so, it would be a simple matter to make an exception to the general policy to apply the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) with respect to permits for signage and state that it is policy to apply the City of Ballarat Advertising Sign Guidelines. Under the Planning Practice Note on incorporated and reference documents, the City of Ballarat Advertising Sign Guidelines should probably be included as an incorporated document.

Recommendation ƒ The general heritage policy in Clause 22.15 should be deleted. It should be replaced by a simple policy to the following effect: It is policy to apply the incorporated Draft Guidelines for the Assessment of Heritage Planning Applications (2000) when considering applications under the Heritage Overlay. ƒ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be included as an incorporated document in the Schedule to Clause 81. ƒ The Council should consider if it wishes to make an exception to the general policy to apply the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) with respect to permits for signage and state that it is policy to apply the City of Ballarat Advertising Sign Guidelines. If so, the City of Ballarat Advertising Sign Guidelines should be included as an incorporated document in the Schedule to Clause 81.

10.4 NEW DEVELOPMENT AND ALTERATIONS

10.4.1 Appropriate style of development The heritage profession has always recognised that managing heritage places does not mean creating a series of ‘house museums’ or blocking development. Instead it is about informing decisions so that development can proceed within frameworks and policy environments which allow for a balanced approach. At the local level this means recognising the need to accommodate change whilst upholding professional and community expectations about preserving our past. The Burra Charter is largely about the way in which this should be undertaken. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) interpret the philosophy of the Burra Charter in the context of providing guidelines for the assessment of heritage planning applications under Victoria’s planning system. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 84

The general heritage policy in Clause 22.15 of Amendment C58 to the Ballarat Planning Scheme contains a number of policy statements relating to the construction of buildings and works such as the following: ƒ encourage external alterations and additions to a significant heritage place that include preservation, restoration, or reconstruction of the place and its fabric in a way that relates to its original features and form. ƒ encourage the accurate reconstruction of original streetscape elements such as fences, verandas, shopfronts etc. ƒ promote the use of traditional building materials and techniques in the reconstruction and alteration of significant heritage places. ƒ encourage fences to be constructed in a style that corresponds to the architectural style and era of the associated place. ƒ require new infill buildings in heritage precincts to be sympathetic to adjacent heritage buildings while not reproducing historic detailing. ƒ encourage a contextual design approach for additions and /or alterations to a heritage place and for new development. A contextual approach is where the alteration, addition or new development incorporates an interpretive design approach (generally derived through comprehensive site analysis). New development should be compatible with, and not overwhelm, the heritage characteristics of neighbouring places, streetscapes and the natural and cultural setting. This approach can include: − contemporary architecture and innovative design which is an important part of the contextual approach because it adds to the existing diversity and layering of styles through time. This layering is a defining feature in a number of areas and is therefore an important component of Ballarat’s heritage. − accurate reproduction architecture may be employed in limited instances where detailed evidence , such as photographic evidence, exists for that alteration, addition or new development In the local precinct policies, greater detail about the style of construction is included. These details are taken from the relevant precinct descriptions on the Ballarat Heritage Study Stage 2 and represent common elements of heritage buildings within the precinct. For example, in South Ballarat Heritage Precinct (HO168) it is policy to promote buildings that incorporate the following design characteristics: ƒ hipped and/or gabled roofs with a pitch of between 25-40 degrees ƒ galvanised corrugated iron (painted or unpainted), slate or terracotta tiles (Marseilles pattern) roof materials ƒ weatherboard (horizontal or ashlar block patter), or brick (single or polychromatic face brick or rendered or a combination of the two) or bluestone wall construction materials ƒ eaves that range from modest and lined, to projecting with exposed rafters ƒ ogee or quad profile guttering ƒ unpainted brick chimneys ƒ projecting verandahs or porches with detailing appropriate to the era and style of the residence ƒ timber framed doors and windows BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 85

In the Lydiard Street Heritage Precinct (HO171), which has more commercial development, it is policy to encourage interpretation of traditional commercial shopfronts, where these have been removed or altered. Items may be include (but are not limited to): ƒ timber framed windows, which are sometimes integral with timber stallboards featuring timber mouldings as decorative trim ƒ panelled timber doors, with or without glass inserts ƒ recessed entries, sometimes with tiled floors ƒ metal window frames, usually chromium plated ƒ tile and/or ‘vitrolite’ structural glass facing to the stallboard and piers ƒ decorative trim, usually chromium plated, in ‘streamlined’ patterns ƒ paired timber framed doors with large glass panels ƒ leadlighted transom glazing above the shop windows ƒ centrally located zigzag recessed entries with patterned tiled floors ƒ stylised lettering as a prominent and integral feature of the shop front composition The Panel is concerned that the message conveyed by these policies will result in reproductive or ‘mock’ architectural styles and that new additions or alterations will be judged by how well they replicate the old. This is not the message conveyed by the Burra Charter or the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) and is contrary to accepted conservation practice. The Draft Guidelines contain a section ‘Guiding Principles of the Burra Charter’, which contains a good statement of accepted conservation practice:48 Distinguishing new from old Changes to buildings, areas and heritage places that falsify the evidence of their history should be avoided. Buildings and structures should not nostalgically create a false impression or interpretation of age or a style. Decorative detail or additions to heritage places should clearly show that they are new elements to the heritage place. To avoid any confusion, the distinction between old and new fabric should be distinguishable. While being sympathetic and respecting original fabric, the detail of new work should, on close observation or through additional interpretation, be identifiable from the old fabric. This message is reinforced in other sections of the Draft Guidelines dealing with different issues. For example, in the section dealing with ‘Construction of New Buildings’, the Guideline Basis states:49 Good and sensitive design of new buildings adjacent to heritage buildings and in heritage areas is of paramount importance. Good design is essentially about designing in context and having regard to the site and it surroundings. Consideration should be given to the nature of the adjoining and surrounding buildings and the overall significance and character of the heritage place.

48 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 3 49 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 16 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 86

Design that closely imitates, replicates or mimics the surrounding historic styles should normally be discouraged (ie terrace house replicas or reproduction houses). Design of a contemporary nature that interprets the surrounding heritage place should be encouraged. Likewise in the section ‘Additions and Extensions to Existing Buildings’ the Draft Guidelines state in the Guideline Basis:50 A successful addition is one that on completion is complementary to the heritage place. An addition should not damage significant fabric or intrude on nearby historic buildings or the area as a whole. An addition should not distort or obscure the significance of the place and should not detract from the interpretation of the place. Additions should not mimic the place of significance – it is acceptable for additions to look like they have been added on to the building. Included in the Guidelines themselves are statements such as: ƒ The replication of historic detail in new work should be avoided. Good contemporary design is preferable to copying original design. Again, in the section on ‘Verandahs and Shopfronts’, the Draft Guidelines state:51 Verandahs and awnings should only be reconstructed where detailed evidence exists of the original or early verandah or awning including materials, design, details and proportions…. Where it is known that a verandah or awning was originally a part of the building, but inadequate evidence exists, a low key simple design without historic detailing may be acceptable. Shopfronts should only be reconstructed when there is detailed evidence of the original…. Slavish copying or reproduction of historic styles for shopfronts for new buildings should be avoided. Instead the design should be a simple contemporary style of shopfront sympathetic to the building and its surrounds. Key design elements (proportion, shape, height, entry arrangements, glazing patterns, materials) of adjoining/surrounding examples may be interpreted and incorporated in the new design. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) deal with the notions of reconstruction (and the limited occasions when this will be appropriate) sympathetic additions etc in a way that is far more intelligible to the lay person than the Panel considers is done in the Heritage Conservation Policy in Amendment C58. The Panel does not consider that the ‘message’ that emerges from Amendment C58 sufficiently captures the very fine nuances between the concepts of restoration, reconstruction and reproduction that a heritage expert might appreciate but which are likely to be lost on the average person. Instead, a person seeking a permit for development in the form of a new building, or an alteration or addition to an existing building in Ballarat is more likely to gain the impression that ‘if it looks old and the same as other houses in the street, it will be OK’. The Panel believes this is evidenced by much of the new development in the heritage precinct, which it saw during its inspections. Some examples are shown in Figure 3. The degree of detail referred to in the local precinct policies reinforces the perception that this is the sort of design detail that the Council wants and that will be acceptable. The detail in Amendment C58 is given without the context and guidance that are included in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000).

FIGURE 3 (OVERLEAF) – RECENT DEVELOPMENT IN HERITAGE OVERLAY IN BALLARAT

50 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 19 51 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) pages 22 and 23 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 87 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 88

An example of the way in which this message is conveyed is in the section of the general heritage policy in Clause 22.15 that states ‘accurate reproduction architecture’ is appropriate for new development as well as alterations and additions. This is completely at odds with the principles of the Burra Charter and the message conveyed in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). Similarly the message that reconstruction is acceptable and appropriate is conveyed through the policies to: ƒ encourage external alterations and additions to a significant heritage place that include preservation, restoration, or reconstruction of the place and its fabric in a way that relates to its original features and form ƒ encourage the accurate reconstruction of original streetscape elements such as fences, verandas, shopfronts etc. ƒ promote the use of traditional building materials and techniques in the reconstruction and alteration of significant heritage places The Panel believes the message about reconstruction, and what this means to the average non-expert person, will overshadow or outweigh the apparently conflicting policy statement to: ƒ require new infill buildings in heritage precincts to be sympathetic to adjacent heritage buildings while not reproducing historic detailing. Finally on this point about the messages being conveyed by the Heritage Conservation Policy, the Panel refers to the comments of the Hobsons Bay C17 panel discussed in Section 6.10 and extracted in Appendix A. In the case of Hobsons Bay C17, the panel was considering a set of management objectives that, like the Heritage Conservation Policy in Amendment C58, referred to matters of restoration and reconstruction. On the issue of reconstruction, the panel said:52

Reconstruction however, is very rarely applied or required by the Heritage Council and only when the authenticity of a place can be safeguarded.

The panel also referred to the Burra Charter commentary, which states:53

“It is common perception that conserving buildings involves returning them to some former historic configuration and appearance, complete with colour schemes and furnishings. But this is not the inevitable result of good conservation. There are many cases when the significance of the buildings does not suffer damage from the application of modern taste.”

In the case of Hobsons Bay C17, the panel concluded that the application of the level of controls proposed by Hobsons Bay Council in its management objectives for sites of local significance was at odds with the current practices of the Heritage Council dealing with places of State Significance. The higher level of protection and restriction should occur with sites that are of the highest level of significance (ie. State level) rather than the most stringent management policies being applied to places of least (ie. local) heritage significance. The panel therefore found that it was not appropriate to require restoration or reconstruction of sites of local significance.

The Heritage Overlays being applied by Amendment C58 will cover extensive areas of inner Ballarat. Whilst there are some very significant buildings and some very grand buildings

52 Hobsons Bay C17 Panel Report (February 2003) page 52 53 Hobsons Bay C17 Panel Report (February 2003) page 52 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 89

included in the heritage areas, the majority are conventional, often modest suburban dwellings from many different eras. In most instances, individually they have little intrinsic heritage value, but collectively they have significance as a group at a local level.

The Panel is concerned that the policies in Amendment C58 seek to apply a range of heritage conservation concepts that may have relevance when considering heritage places of state significance, but have only limited relevance to the management of heritage places at a local level. For this reason, it finds that the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) embody a more appropriate and practical level of guidance for the type of heritage places found in Ballarat within most of its Heritage Overlay areas than the Heritage Conservation Policy in Amendment C58.

10.4.2 Modern taste for period architecture. Among the many and varied approaches to modern development is the value the community places on period architecture as evidenced by the resurgence of ‘mock’ period architectural approaches such as the popular mock Georgian, mock Victorian or mock Federation styles.

The Panel understands that it is not the intent of the heritage professional to judge or influence public taste, but rather to provide expertise in respect of our heritage and support its preservation and enhance access to the information of our past. The Panel also recognises that some people prefer the sort of mock heritage styles referred to or willingly seek to reproduce heritage architecture and historic detailing when carrying out alterations, additions or new development in heritage areas.

The Panel does not consider that it or the Council should seek to interfere with the expression of people’s individual preferences in this respect so long as the general philosophy of the Burra Charter is upheld of being able to distinguish between the new and the old. Rather, the Panel is concerned that the preferences of some people for mock period architecture should not be imposed on everyone. People should be free to interpret the features of heritage places in a way that complements the heritage significance of the place or is sympathetic to it. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) emphasise the importance of this and identify two main approaches that can be taken. They are:54 1. To create an addition in the same style as the original place but with simplified details so it can be distinguished as new work; or 2. To design new work in a contemporary manner that relates to the old work in terms of location, bulk, form and materials. Thus, whilst the Panel acknowledges that much new development in Ballarat may reflect the modern taste for period architecture, as illustrated in Figure 3, people should not feel this is the only acceptable style within a Heritage Overlay, nor should this be a necessary outcome of the way in which Council assesses planning permit applications.

54 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 19. These approaches are identified in the context of additions and extensions to existing buildings but the same approaches are evident in the guidelines relating to the construction of new buildings. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 90

10.5 LANGUAGE, FORM AND STRUCTURE The proposed Heritage Conservation Policy will operate in addition to the provisions of the Heritage Overlay. Thus any planning scheme user will need to go first to the provisions of Clause 43.01, then to the general heritage policy in Clause 22.15, then to the specific precinct policy. The tables in Appendix A indicate the range of objectives, policies and decision guidelines that will be applicable even to the simplest application for a planning permit.

The Panel considers that apart from content, which is discussed in Section 10.3, the length and complexity of the planning policy framework will be offputting and confusing for the average person. It finds that the expression of the policy is convoluted and difficult to comprehend. For example, the Panel does not understand what is meant by the policy in Clause 22.15-12 for the Mount Pleasant/Golden Point Heritage Precinct (which is repeated in many other precinct policies) to: Ensure building heights incorporate the following… ƒ the overall proportion of the building roof should not be greater than the proportion of roof to walls of the building visually connected to it. ƒ the roof form and massing of the building should be drawn from the significant neighbouring buildings visually connected to it. Concepts such as these would be much better illustrated in diagrammatic form.

The policies are too wordy; they are too prescriptive; they contain an excessive level of detail and at the same time inherent uncertainty. For example, in Clause 22.15-12 for the Mount Pleasant/Golden Point Heritage Precinct (which is repeated in many other precinct policies) it is policy to: Promote buildings that incorporate the following design characteristics (but not limited to): ƒ detached buildings. ƒ hipped or gabled roof form, with a pitch between 25-30 degrees or steeper. ƒ timber framed windows. ƒ galvanized corrugated iron or terracotta tiles roof materials. ƒ horizontal weatherboard or face brick wall construction materials. What do the words “but not limited to” mean in this context? Do all buildings have to incorporate all these features? How could an interpretation of this policy avoid coming up with a reproductive or mock period style of architecture? Does the reference to detached buildings mean that no medium density development will be permitted or does it mean that semi- detached or terrace style dwellings are not encouraged? The Panel finds that these types of policy statements are too open-ended and ambiguous to be of real assistance. The characteristics mentioned are to be found in many of the representative buildings in the relevant precinct from various periods. They are characteristics that new development might interpret in an appropriate contemporary form. But the Panel does not consider the policy should be so proscriptive as to say that buildings should incorporate these features.

The policies are not clearly laid out. For example, in the general heritage policy there is a policy dealing with buildings and works to encourage a contextual design approach. However, the policy dot point includes both a definition of contextual approach and then a justification for BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 91

requiring it. This would be better expressed in a separate section of the policy where the component elements of definition, policy basis and policy were not so confused.

Mr John Manton raises various other problems and anomalies with the wording, structure and layout of the policies in his submission, which are set out in Section 12.6.

With reference to structure, the Panel notes the similarities between the content of Amendment C58 and the Port Phillip Heritage Policy. However, it considers that the Port Phillip Heritage Policy is far better structured in terms of layout of the policy and specifying the information required to accompany an application.

The Port Phillip Heritage Policy, which is currently included in Clause 22.04 of the Port Phillip Planning Scheme, was rewritten following consideration of the panel report for Port Phillip Amendment C5 and C14 (December 1999). In Section 6.12 of the Port Phillip C5 and C14 panel report, the panel included an example of a possible model heritage policy based on the Council’s exhibited policies but redrafted to better express their intent and in accordance with the principles set out in the Planning Practice Note on writing a local planning policy. It sought to show how the complex structure and wording of the exhibited policy could be reduced. Whilst the Port Phillip Council ultimately adopted a different approach to the draft model policy, the Panel nevertheless believes that when it comes to deal with Amendment C58, the City of Ballarat should consider the Port Phillip C5 and C14 Panel Report (December 1999) in terms of the general guidance it provides about the structure and language of local planning policies.

With respect to the Heritage Conservation Policy in Clause 22.15 of Amendment C58, the Panel has concluded that, irrespective of its content, it requires rewriting to address the problems raised above. The task of doing this is beyond the Panel’s role – it requires a good professional edit. The policy would benefit also by illustration of some of the concepts it seeks to encourage.

With respect to the precinct policies, the Panel does not consider that in many instances they are necessary. For the most part, they simply summarise and repeat information that is included in the Ballarat Heritage Study Stage 2 and which presumably will be included in the incorporated document Ballarat Heritage Precincts – Statements of Significance (2004) when it is introduced. The policies simply restate matters that should be considered in any event under the decision guidelines in the Heritage Overlay, in particular those in Clause 43.01-5 referring to: ƒ Any applicable heritage study and ƒ Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place The descriptions and statements of significance for the precincts in the Ballarat Heritage Study Stage 2 are very comprehensive. A proper consideration of the Ballarat Heritage Study Stage 2 in the context of a planning permit application should lead to a consideration of the matters set out in the precinct policies. Further detailed guidance is provided by the Draft Guidelines of the Assessment of Heritage Planning Applications (August 2000). The Panel’s BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 92

recommendations elsewhere will mean that both the Ballarat Heritage Study Stage 2 and the Draft Guidelines must be considered in connection with any planning permit application.

The Panel is not convinced that the repetition of material from the Ballarat Heritage Study Stage 2 in 19 separate precinct policies will necessarily guarantee the outcomes that the Council is seeking in terms of the quality of new development. Good new development depends on interpretation in accordance with a well-recognised set of principles. It requires judgement. It won’t be achieved by the repetition of common design characteristics and a policy that new development must incorporate these features.

In deciding whether a local planning policy is needed, the fundamental question must be asked: What will it do that an application of other decision guidelines will not achieve? The Panel’s conclusion with respect to the 19 precinct policies is that they will achieve little more than a proper application of other decision guidelines. For this reason the Panel considers they are unnecessary and in general should be deleted.

The may be exceptions to the Panel’s findings about the precinct policies in instances where there is some special feature that the Council wishes to see protected or implemented which would not naturally arise from a consideration of the descriptions and statements of significance in the Ballarat Heritage Study Stage 2 or from a consideration and application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). One example may be the Waller Estate Heritage Precinct (HO169). Unlike most of the other heterogeneous precincts, the Waller Estate is completely homogenous, which is part of what constitutes its significance.

Finally, the Panel considers that before any local precinct policies are included, they should be rigorously tested against the requirements of the Planning Practice Note on writing a local planning policy, especially the initial test – Is an LPP necessary? – and the tests relating to the use of language.

Unfortunately, heritage studies and resulting statements of significance are not usually prepared with their ultimate use in the planning system in mind. They tend to conform to a style which may be appropriate in a professional heritage context, but which are often not particularly helpful in a planning context. Heritage studies will often contain much in the way of descriptive detail and numerous characteristics, but little analysis about why those details may be important, especially when considering the significance of a heritage area. As a generalisation, heritage studies tend to focus too much on the ‘trees’ and not enough on the ‘wood.’ They may be useful for establishing if heritage significance exists and on what grounds. But in the context of their use for planning decision making purposes, it is often difficult to determine the precise nature of the significance of a heritage place or extract clear criteria for judging whether or not an element contributes to the significance of a heritage place and thus whether its demolition or removal will adversely affect that significance or how new development may affect the significance.

For these reasons, most statements of significance cannot be directly translated into a local planning policy. A more careful analysis is usually required to extract criteria that may be useful in a planning policy context as an aid to the decision-making required within the context of the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 93

Recommendation ƒ The Heritage Conservation Policy should be edited and rewritten to make it more comprehensible and to reduce the complex wording and structure. ƒ The 19 precinct policies should be deleted. ƒ Any new local precinct policy should only be included if it is necessary to achieve an outcome or objective that would not otherwise be met through an application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) or a proper consideration of the Ballarat Heritage Study Stage 2.

10.6 SIGNIFICANT AND NON-SIGNIFICANT BUILDINGS

10.6.1 Reasons for distinction Under the Heritage Overlay the demolition of all buildings requires a permit unless the demolition is authorised under an incorporated plan included in the schedule to the overlay.

A critical element in the operation of the proposed Heritage Conservation Policy is the distinction between ‘significant’ and ‘non-significant’ places. Under the revised version of the general heritage policy it is policy to allow the demolition of a place identified as not significant under the planning scheme but not to allow the entire demolition of a significant heritage place except in certain circumstances. Partial demolition of a significant heritage place is allowed if it will not affect the significance of the place and the proposed development is considered acceptable.

The revised version of the policy differs from the exhibited version, which relied upon a distinction between significant heritage places, contributory heritage places and non- contributory places.

A major shortcoming in the exhibited amendment, which the submission by Mr John Manton identified, was the failure to include in the planning scheme or in any incorporated document an indication of which places are significant, contributory or non-contributory. The Council seeks to remedy this by proposing that significant and non-significant places will be identified within the incorporated document Ballarat Heritage Precincts – Statements of Significance (2004). The Council has not yet prepared this document. It intends to undertake further work to designate all buildings within precincts as either significant or non-significant. These designations will be included in the Ballarat Heritage Precincts – Statements of Significance (2004), which will also contain information within Volume 2 of the Ballarat Heritage Study Stage 2 edited into a format appropriate for an incorporated document.

The designation of all buildings within the precinct as significant or not significant is intended to introduce certainty into the operation of the policy. It will make it easy for the Council or property owners to identify what they may or may not do with their properties in terms of demolition. The Council believes that an ‘up-front’ designation of significance will remove conjecture and argument at the time of a planning permit application. The Panel was told that the decision to restrict the distinction between heritage places to ‘significant’ and ‘non- BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 94

significant’ and to remove the distinction between significant heritage places and contributory heritage places is proposed for two main reasons: ƒ To emphasise that in a heritage area, it is the collective combination of all buildings which are important in contributing to the heritage significance. The heritage significance of a precinct is not dependent upon a hierarchy of buildings with those of individual significance more important than those of contributory significance. ƒ To overcome a perceived tendency for VCAT to allow buildings of contributory significance to be demolished because they are considered less important than buildings of individual significance, and hence not essential to keep. However, it appears that the status of a building as significant or not significant would still be open to challenge at VCAT notwithstanding its designation in the Ballarat Heritage Precincts – Statements of Significance (2004). This is indicated by the provision in the general heritage policy that says where a permit is required for demolition, it is policy to: ƒ Only support the demolition of those parts of a significant heritage place that are structurally unsound, as evidenced by a professional structural engineering report identifying that they cannot be reasonably retained, or where a Statement of Significance produced by a heritage professional (as evidenced by membership of or eligibility for membership of Australia ICOMOS) demonstrates that the building is not significant to the satisfaction of the Responsible Authority. [Panel’s emphasis]

10.6.2 Issues with the distinction between ‘significant’ and ‘non-significant’ Significant and non-significant places are defined in the revised version of the general heritage policy as follows: Significant heritage places are those identified under the schedule to the Heritage Overlay because they are considered to have a level of cultural significance that makes a contribution to the aesthetic (including architectural), historical, scientific, social or spiritual values of a local area, a regional area or the State. The significant heritage places that are located within a precinct are identified within the incorporated document Ballarat Heritage Precincts – Statements of Significance (2004). Note: the significance of a place will almost always be based on the fact that a substantial proportion of the significant fabric of the place remains, as the care of this significant fabric remains one of the fundamental principles of conservation. Not significant places are those buildings and sites that have been identified within a precinct as not having a level of cultural significance that makes a contribution to the heritage values of that precinct. However, any new development of these buildings or sites has the potential to impact on the cultural significance of the precinct and any adjoining significant heritage place, and should therefore be in accordance with the objectives and policy statements as covered by the General Heritage policy and the relevant precinct sub-policy. These places are identified within the incorporated document Ballarat Heritage Precincts – Statements of Significance (2004). In the exhibited version of the amendment, a distinction was drawn between ‘significant heritage places’, ‘contributory heritage places’ and ‘non-contributory places’. They were defined as follows: Significant heritage places are individually important places of State, regional or local cultural significance that make a contribution to the heritage values of the wider municipality. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 95

Contributory heritage places are representative places that contribute to the significance of a heritage precinct. Through restoration or reconstruction they may be brought back to a condition that enables the place to achieve individual cultural significance. Non-contributory places are neither significant nor contributory. Any new development on these places may impact in the significance of the place and should therefore consider the heritage characteristics of any adjoining heritage place and streetscape as covered in this policy. A non-contributory place does not share the architectural/ aesthetic, historical, scientific or social values significant to a precinct or does not make a wider contribution to cultural values of the wider municipality. The exhibited policy was more complex than the revised version. The Council has simplified it by changes to the wording and by restricting the distinction between places to only two – significant and non-significant places.

The Panel was told that Council has adopted this approach because previous VCAT decisions have allowed the demolition of contributory buildings. In Ballarat, the Council sees the majority of ‘old’ buildings as significant in terms of the contribution they make to the heritage character of the precinct and hence it wishes to protect and preserve all these buildings. It is worried about the incremental erosion to the character of the precincts that will result if too many ‘contributory’ buildings, as distinct from ‘significant’ buildings, are allowed to be demolished. The Council therefore seeks to alleviate the problems associated with contributory buildings and the distinction between them and individually significant buildings by removing this distinction from the planning scheme.

The Panel sees four major problems with the proposal to designate buildings as significant or non-significant: ƒ By introducing the distinction between significant and non-significant places into the planning scheme, the Council is introducing yet another variation into the State’s planning system of heritage management. ƒ Whilst the distinction between significant and non-significant places has the benefit of simplicity, there are no criteria specified for determining the distinction: ie it is not clear how their status will be determined. ƒ If the designation is to be undertaken with the type of rigour that the Planning Practice Note on applying the Heritage Overlay implies would be required, it may be a complex and costly exercise. The question arises whether this is a good use of Council’s resources. ƒ The designation is questionable in both legal and equitable terms. It seeks to limit the exercise of discretion under the Heritage Overlay in an arbitrary way and in doing so confuses the legitimate distinction between the nature of significance involved with an individually significant building and a contributory building. The outcomes would probably also require exhibition and on opportunity for people to comment. With respect to the first problem, the Panel is not aware that any of the terms – significant heritage place, contributory heritage place, non-contributory heritage place or not significant place – are defined in any recognised context. Although they may be recognised terms in heritage conservation practice, the Panel is concerned that the definitions and distinctions proposed in Amendment C58 will introduce terms that may have different meanings for different heritage practitioners and will certainly vary from the way in which these terms are used and defined in other planning schemes. For example, in Section 9.2.3, the Panel BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 96

contrasts the definition of terms in the exhibited version of the Amendment C58 and the Port Phillip Heritage Policy. In that Section, the Panel also raises a concern about the validity of the concepts included in the definition of contributory heritage place in the exhibited version of Amendment C58.

In the Panel’s view, the introduction of different definitions of terms into planning schemes erodes the principle of consistency, which introduction of the new format planning schemes based on the VPPs was intended to achieve. The Panel also believes it makes it difficult for bodies such as VCAT to adopt a consistent approach when dealing with cases under the Heritage Overlay and opens the way for technical legal argument. It is certainly confusing for the public and other people who must use and interpret these planning scheme provisions.

The Panel therefore concludes that it is inappropriate for local planning policies on heritage conservation to introduce different definitions of terms into the planning scheme. Terms used should be consistent with their definition or use in guiding legislation (such as the Planning and Environment Act 1987 or the Heritage Act 1995), the Burra Charter, the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) and other referable sources. Where it is appropriate to include definitions in a local planning policy to assist in understanding and interpreting it, the definitions should be the same as their source, not paraphrased or reinterpreted, and the source should be identified.

On this basis, the Panel finds the definitions of the terms used in the exhibited and revised versions of Amendment C58 relating to significant heritage place (either the exhibited or revised version), contributory heritage place, non-contributory place or not significant place should not be included.

The Panel is also concerned that the proposed drafting of the definition of ‘significant heritage places’ will be a source of argument. For example, is the note that ‘the significance of a place will almost always be based on the fact that a substantial proportion of the significant fabric of the place remains’, intended to provide the criterion for the designation of significance? If so, it should form part of the definition. Nor should the definition include the justification, namely ‘as the care of this significant fabric remains one of the fundamental principles of conservation’. This type of justification should be included in the policy basis. The issue of what criteria are used to designate significance is something that will be a source of future debate and argument and should be something that is evident from the definition. Otherwise, the definition will read as a tautology or circular argument – ie, a place is significant because it is considered to have significance. The issue of criteria is discussed further in Section 10.8.

With respect to the third problem identified by the Panel, namely making best use of Council resources, the Panel believes that the process of identifying the distinction between significant and non-significant buildings will not be as simple in practice as the Council implied at the hearing. The Panel considers that a cursory examination of each precinct will fairly readily reveal buildings that are clearly significant and buildings that are clearly non-significant. However, from its own inspections, the Panel believes there will be many buildings in that grey area in between, which will be much harder to categorise. The Panel considers that any categorisation will need to be undertaken with rigour in order to satisfy the Planning Practice Note on applying the Heritage Overlay, especially if the Council wishes to rely upon the designations. This emphasises the need for clear criteria for making a judgement about significance. It also leads the Panel to question whether it is cost-effective for the Council to expend the resources necessary to investigate the distinction between significant and non- BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 97

significant places with rigour at this stage. It may be preferable to leave the detailed consideration of individual buildings to the time when a permit application is made from the perspective of both resources and natural justice. This option is discussed further in Section 10.7 and forms the basis for the Panel’s suggestions about a way forward. It also recognises that in many instances the situation will never arise where the distinction will be relevant. It therefore avoids the need to undertake a complex, resource-intensive task before it is required.

There are further difficulties the Panel perceives with the Council’s proposal to designate the significance or otherwise of all buildings in a new incorporated document, which relate to natural justice and matters of general legal principle.

If the distinction between ‘significant’ and ‘not significant’ places is introduced into the planning scheme, the definition will apply to individual heritage places already identified in the Heritage Overlay schedule as well as to buildings and other elements introduced by Amendment C58. The Panel is not sure what the implications of this may be in the management of other heritage places in Ballarat in addition to those included in Amendment C58.

A question of equity arises in terms of whether including the designation of buildings as significant and non-significant places in the Ballarat Heritage Precincts – Statements of Significance (2004) would mean this document should be exhibited as part of a new amendment before it could be included in the planning scheme. It is arguable that the implications of designating a place as either significant or non-significant are so substantial from the perspective of the way in which the Heritage Conservation Policy will operate that natural justice demands that people should be given an opportunity to comment.

The problem is that most people will not appreciate the implications associated with the way in which their property is designated until they come to make a planning permit application, by which time it may be too late to take issue with the designation.

The Council’s proposal to include the designation of all buildings as significant or non- significant in an incorporated document could be interpreted as an attempt to make its demolition policy proscriptive. Just as the application of the Heritage Overlay removes the potential to argue at VCAT that the place to which the overlay applies lacks heritage significance, so it may be argued that an incorporated document, which designates that a building is significant, removes the potential to argue at the time of a permit application that the building is not significant and hence should not be subject to the non-demolition policy for significant buildings. In terms of the significance of the heritage place included in the Heritage Overlay, the argument is that the time to challenge significance is at the time the overlay is applied, ie at the time of the amendment. Once the Heritage Overlay applies to a place, its significance must be accepted. The discretion exercisable under the Heritage Overlay then turns not on whether the place is or is not significant, but rather on whether the demolition, alteration or new development will adversely affect the significance of the heritage place and if so, how this should be balanced against other competing objectives in the planning scheme.

The Panel can foresee a similar argument being mounted if the Ballarat Heritage Precincts – Statements of Significance (2004 becomes an incorporated document (and thus part of the planning scheme) and contains designations of significance and non-significance for all buildings. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 98

It is possible that the Council has recognised this problem because buried deep within one of the dot points in the general heritage policy on exercising discretion about demolition is the statement that it is policy to: ƒ Only support the demolition of those parts of a significant heritage place that are structurally unsound, as evidenced by a professional structural engineering report identifying that they cannot be reasonably retained, or where a Statement of Significance produced by a heritage professional (as evidenced by membership of or eligibility for membership of Australia ICOMOS) demonstrates that the building is not significant to the satisfaction of the Responsible Authority. [Panel’s emphasis] This implies that the designation of places as significant should be regarded as no more than a designation of prima facie significance, which is capable of rebuttal. The Panel considers that this is a far more realistic approach both in terms of resources and equity. However, the concept needs to be made far more explicit in the policy especially if the Council wishes to avoid the need to re-exhibit. It also leads the Panel to question what purpose would be served by the designation if it is open to challenge.

Finally, the Panel is concerned that the distinction between significant and non-significant buildings proposed by Council in the revised version of Amendment C58 is based upon a misunderstanding of the different judgements that must be made when exercising discretion under the Heritage Overlay. Elsewhere the Panel has referred to the loss of understanding about the differences in the nature of significance between heritage buildings and heritage areas. The Council is right to regard the erosion of its heritage areas through the loss of contributory buildings with concern. However, the Panel does not consider the situation is helped by further blurring the distinction.

The difficulties that most frequently arise when a heritage place is an area or precinct concern issues of whether the building in question contributes to the significance of the area (ie is of contributory significance) and whether its demolition will adversely affect the significance of the heritage place or area as a whole. If the adverse effect will be minimal, then it is often held that the achievement of other planning objectives will outweigh the disbenefits to heritage objectives.

Designating buildings as significant in an incorporated document would potentially remove the opportunity to challenge the contributory significance of buildings in a heritage area or precinct. This is especially so where the area is heterogeneous. In very mixed precincts the argument is often used that the building in question is not of the same period or not of the same style as other buildings in the immediate vicinity or lacks common features or is otherwise different, and hence is not contributory to the significance of the precinct. The larger and more heterogeneous the area is, the more difficult the argument is to refute. The designation of buildings in an incorporated document as either significant or non-significant is an attempt to circumvent this argument.

10.6.3 Distinction between individual significance and contributory significance There are two types of heritage significance that a building may have. It may be of individual significance as a heritage place, which means that it must meet one or more of the AHC criteria in its own right. Alternatively, it may be of contributory significance in that it contributes to the significance of the larger heritage place in which it is located even though it has no BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 99

individual heritage significance. In the case of a heritage place that is an area or precinct, it is the area or precinct that must meet AHC criteria, not the individual buildings within it.

On occasions, an individual building within a heritage area may exhibit both types of significance – ie individual significance and contributory significance. Similarly, it may be possible that a building of individual significance within a heritage area may not be of contributory significance. It will all depend on the elements which constitute the nature of the significance of the heritage area. It is therefore important not to confuse the distinction in the nature of heritage significance between individual and contributory significance or disguise the distinction by reference only to significant and non-significant buildings.

The Panel believes that decisions about whether a building is of contributory significance in a heritage area and whether its removal will have an adverse effect on the significance of the heritage place or area are fundamental judgements that must be made in the exercise of discretion under the Heritage Overlay. The Panel does not consider it is equitable to attempt to remove this aspect of the discretion contained within the Heritage Overlay by attempting to predetermine the issue of contributory significance. The Panel believes that this only confuses the issue of the significance of the heritage place with the issue of the contribution that a building makes to the significance of the heritage place when the place comprises multiple buildings.

The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) deal with the demolition and removal of individually significant buildings, contributory buildings and non- contributory buildings. These are all recognised terms within the field of heritage conservation. The distinction in the natures of significance described above – between the significance of a heritage place and the contribution that a building makes to the significance of a heritage place – are recognised and embodied in these terms and in the Draft Guidelines.

The Panel considers that the introduction of a new distinction into the planning scheme based only on significant and non-significant places ignores the valid differences in the nature of significance between buildings that are of individual significance and those of contributory significance in heritage areas, especially where the area may be significant because it ‘is composed of places that individually have little intrinsic heritage value but which are important for what they tell us as a group or collection of places.’55 Acknowledging the validity of the differences in the nature of significance does not make one type of significance more important than the other. Just because the Council considers VCAT may have made a mistake in some instances by ascribing greater importance to individually significant and listed buildings than contributory buildings does not, in the Panel’s view, justify changing acknowledged heritage terminology or obscuring a valid distinction in types of significance.

Elsewhere, the Panel has formed the conclusion that the general heritage policy in Amendment C58 should be replaced by reference to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). Whilst the Panel can appreciate why Council is anxious to avoid making the distinction between individually significant buildings and contributory buildings, nevertheless they are acknowledged heritage terms that are used within the Draft Guidelines. The Draft Guidelines have been prepared to assist in the exercise of discretion under the Heritage Overlay and the Panel believes they do this very clearly.

55 Local Government Heritage Guidelines (1991) page 22 and Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 60 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 100

The Panel is not convinced that changes to the terminology of significance as proposed in Amendment C58 will make the exercise of discretion under the Heritage Overlay any easier. Whilst the Council considers it will introduce a degree of certainty, the Panel considers that arguments will still arise based on the nature of the discretion contained in the Heritage Overlay. The Panel doubts that the blanket nature of the Heritage Overlays, the restrictive nature of the Heritage Conservation Policy and the attempts to oust any real exercise of discretion will find favour with VCAT or result in the type of certainty that the Council desires.

The Panel believes that the Council would be better advised to acknowledge the discretion inherent in the Heritage Overlay and the differences in the nature of significance between individually significant buildings and contributory buildings and to shape its heritage conservation policy accordingly. It needs to be much more clear about its real policy objectives and to address these in the context of other potentially competing objectives, which might favour demolition of some of the more marginal contributory buildings that the Council wishes to protect.

The Panel considers that it is reasonable for a policy to establish the criteria that will be used in making a judgement about the contribution that a building makes to the significance of a heritage place and how an adverse effect upon that significance might be judged.56 The Panel also considers it is reasonable to exempt particular buildings from certain requirements of the Heritage Overlay through the use of an incorporated plan specified in the schedule to the overlay. But in the Panel’s view, it is not reasonable to attempt to remove discretion with respect to all other buildings through the use of an incorporated document containing a designation that they are significant and hence subject to the policy that they will not be demolished. On the other hand, if it is then argued that this designation may be challenged and an applicant may demonstrate to the satisfaction of the responsible authority that a building is not significant, the Panel asks why such an elaborate policy and incorporated document would be adopted in the first place.

Therefore, for the many reasons outlined above, the Panel finds the Council’s proposal is not acceptable, namely to designate all buildings in Heritage Overlay areas as significant or non-significant in an incorporated document as a means of more certainly applying its policy against the demolition of significant buildings. The proposal contains many flaws and the Panel finds that it would be contrary to sound planning principles and the guidance of relevant Planning Practice Notes on writing a local planning policy and applying the Heritage Overlay.

In the following Sections the Panel outlines an alternative approach, which it considers will deliver some of the further certainty Council seeks and will make the Heritage Conservation Policy much easier to use.

56 In this context, the ‘criteria’ for judging whether a building makes a contribution to the significance of the heritage place must be distinguished from criteria, such as the AHC criteria, which are used to establish if a place has heritage significance. This is where the reasons why a building meets the AHC criteria will be important. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 101

10.7 DESIGNATING NON-SIGNIFICANT BUILDINGS The Council’s reason for limiting the designation of buildings in heritage areas to simply one of ‘significant’ and ‘non-significant’ is to overcome the perception that more weight or importance is attached by VCAT to buildings designated as of individual heritage significance than to buildings of contributory significance. The outcome is a perceived tendency on the part of VCAT to be more ready to consent to the demolition of contributory buildings, which the Council considers erodes the heritage value or significance of the area as a whole.

The Panel therefore suggests that if the Council wishes to introduce a degree of certainty into the planning scheme with respect to managing heritage places without consuming inordinate resources, it should confine its designation to non-significant buildings and leave all other buildings to be dealt with according to the guidelines set out in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000).

As a means of achieving this, the Council would restrict its designation of buildings in an incorporated document to those which were not of heritage significance. In other words, it would identify what is not significant rather than what is significant. All other buildings would be deemed to be prima facie contributory buildings. However, this categorisation of contributory significance could be challenged at the time an application for planning permit was made.

The Panel does not consider this approach will jeopardise the future of contributory buildings within the heritage areas covered by the Heritage Overlay. The Panel believes that the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) contain very clear and adequate explanation of why, in policy terms, no distinction in levels of importance should be attached to individually significant or listed buildings and contributory buildings. This explicit policy statement is something that decision-makers will need to take into account – both Council and VCAT. The Panel also believes that the authorship of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) by Heritage Victoria should carry weight in any arguments before VCAT to the contrary.

At the same time, by at least designating those buildings it does not consider significant, the Council will introduce a degree of certainty, which will facilitate the management of the very large heritage areas within Ballarat. It will also reduce compliance costs for property owners and Council’s own administrative costs. It can achieve this through the operation of the incorporated plan by authorising the demolition or removal of any part of a non-significant building without the need for a permit. This proposal is discussed in Section 9.7. It would operate in addition to the alterations, additions and new buildings on ‘not significant’ places, which do not require a planning permit, already included in the revised version of the incorporated plan to Amendment C58.

The Panel considers the designation of non-significant buildings could be achieved relatively simply and this would not conflict with good heritage conservation practice, sound planning principles or the proper exercise of discretion under the Heritage Overlay for the following reasons.

Notwithstanding the distinctions in terminology and the different approaches to designations of significance in the revised version of the Heritage Conservation Policy and the Draft Guidelines for the Assessment of Heritage Planning Applications (2000), there is a single BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 102

category that both have in common, namely buildings that are not of heritage significance. In each case, it is policy that places located in a heritage area that are identified as having no heritage significance may be altered, demolished or removed.57 Thus recognising the category of ‘buildings that are not of heritage significance’ or ‘non-significant’ buildings will not introduce a term into the planning scheme that is not an accepted and well-understood heritage conservation term.

As the Panel has previously indicated, it considers that it will be relatively easy to identify buildings that are clearly not of heritage significance. The most obvious and objective criterion would be period of construction, eg post-WWI, post-WWII, post 1950s etc. The criterion of period of construction would capture all buildings within the time frame considered of significance. The Council may have other criteria by which it refines the decision about significance, eg substantial intactness. It then becomes a matter for judgement whether that criterion (or any others that may be specified) is met. The Panel believes that the time for assessing criteria that depend upon judgement should be at the time when a planning permit application is made. It does not consider that the resources necessary to make a rigorous and definitive judgement about every building within the Heritage Overlay areas would be justified at the outset, particularly given the lack of appreciation that most people will have of the implications. Rather, the Panel believes that the time for challenging the prima facie designation of contributory significance should be at the time a planning permit application is made. At that time, if agreement cannot be reached, the Council and the applicant can devote whatever resources they consider necessary to establish significance to the satisfaction of the responsible authority.

Whatever criteria the Council may include within its policy for establishing the status of contributory buildings, they should be practical and clearly articulated. The issue of criteria for determining significance is discussed further in Section 10.8.

The way in which the Panel envisages the proposal would work is that the Ballarat Heritage Precincts – Statements of Significance (2004) would include a list of all buildings that are designated as not of heritage significance within each precinct. It would be policy to allow demolition of non-significant buildings58 and there would be an exemption in the incorporated plan under the Heritage Overlay from the need for a planning permit to demolish buildings listed in the Ballarat Heritage Precincts – Statements of Significance (2004) as not of heritage significance. All other buildings would be deemed to be contributory buildings unless demonstrated to the satisfaction of the responsible authority that they were not contributory buildings. Criteria to be taken into consideration in determining significance should be listed; for example period of construction, degree of intactness of the building, the presence of non- significant buildings in the streetscape near the building etc. A permit would be required under the Heritage Overlay to demolish a contributory building. It would be policy to apply the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) and they state that demolition of places that contribute to the significance of heritage areas should normally be refused.59

57 See Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 61 and proposed Clause 22.15-1 58 See Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 61 59 See Draft Guidelines for the Assessment of Heritage Planning Applications (2000) pages 10-13 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 103

The Panel believes that this framework would have the benefit of introducing a degree of certainty in terms of clearly identifying those elements of the precincts that are considered to be not of heritage significance. It would leave other judgements to be made at the time when individual decisions must be made, ie when a planning permit application is made. This is the time when an applicant is most likely to appreciate the implications of the planning controls and when resources are best expended in determining heritage significance to the satisfaction of the responsible authority. Prior to this, the Panel does not consider the Council could establish categorical significance for every building with the degree of rigour necessary to put the designation beyond future doubt or question.

The Panel notes that the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) state:60 ƒ Places located in a heritage area that are identified as having no heritage significance may be altered, demolished or removed. In many instances, the demolition of places that are not of heritage significance within a heritage area should not be undertaken until a planning permit for the replacement development is approved and a contract for the new work has been confirmed. The Panel does not consider that in Ballarat in the widespread areas covered by the Heritage Overlay there is a need to require planning permit approval prior to demolition of a non- significant building. Such a requirement would undermine the simplified process proposed and the main reasons for designating non-significant buildings. The Panel also doubts if the Council would have the capacity or the wish to chase up whether a contract for new work has been confirmed before demolition proceeds. Such a policy may be appropriate for high profile sites that the council does not wish to see vacant for extended periods of time. However, it is not a policy that the Panel sees applicable in Ballarat. The Council has adequate control over new development in a Heritage Overlay, all of which requires a permit except for the type of development proposed to be included in the incorporated plan. In the Panel’s view, this is sufficient to ensure that the objective of the Heritage Overlay is met, namely: ‘To ensure that development does not adversely affect the significance of heritage places.’

It may be appropriate for the Heritage Conservation Policy to specify that this aspect of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) is not policy.

Recommendation ƒ Introduce a new incorporated document into the planning scheme which lists all buildings not of heritage significance in each heritage place. ƒ Include within the Heritage Conservation Policy a policy to the effect that all buildings within a heritage place that are not listed as not of heritage significance within the incorporated document are considered to be prima facie contributory to the significance of heritage place, but an applicant may establish to the satisfaction of the responsible authority that a building is not of contributory significance. In considering whether a building contributes to the significance of the heritage place the responsible authority should have regard to the criteria for establishing significance set out for each precinct.

60 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 61 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 104

10.8 CRITERIA FOR DETERMINING SIGNIFICANCE

10.8.1 Statements of significance The Ballarat Heritage Study Stage 2 uses four levels of cultural significance: ƒ State Significance ƒ Local Significance ƒ Contributory Local Significance ƒ Non-contributory However, the Study states:61 It is important to note that these gradings are used for research assessment only. They do not designate a legal level of protection in the Ballarat Planning Scheme. Notwithstanding this statement, the Panel has not been able to identify from the Ballarat Heritage Study Stage 2 how or where these gradings have been specifically applied. The statements of significance identify precincts as of local or state significance according to various AHC criteria. They talk about individually significant and contributory buildings and occasionally about ‘inappropriate buildings and details’. But there is no grading of individual buildings according to either the definitions used in the exhibited version of the Heritage Conservation Policy in Amendment C58 or the revised version. Therefore the Panel does not consider the Council will be able to rely upon the descriptions or the statements of significance in the Ballarat Heritage Study Stage 2 to determine the significance of specific buildings in most instances.

There are some exceptions to this where buildings are individually mentioned. For example, the description of the Mount Pleasant Golden Point Heritage Precinct (HO173) in the Ballarat Heritage Study Stage 2, contains mention of the following: ƒ 109 Grant Street – a weatherboard clad house built in the Victorian era that has a more complex front façade than seen on similar houses elsewhere in the precinct. ƒ ‘Clowance’ at 518 Barkly Street – the only other distinctive brick house that was built in the precinct before the turn of the century.62 This important house, listed on the Victorian Heritage Register, is described as ‘an innovative example of a transitional design between Victorian and federation styles’. Throughout the precinct there are a number of other houses, not as notable as ‘Clowance’ but worthy of recognition, that can also be seen to combine late Victorian and early Federation features. ƒ 516 Barkly Street – one particularly distinctive transitional Victorian/Federation styled brick house. ƒ 1 Gladstone Street – the most distinctive example of the representative Federation style of house in the precinct. ƒ 713 Barkly Street – one of the more elaborate examples of the Federation Bungalow style.

61 Ballarat Heritage Study Stage 2 page 17 62 Ballarat Heritage Study Stage 2 page 260 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 105

ƒ 26 Steinfeld Street South – a good example of the transitional Federation/Inter-War Bungalow. ƒ 510 Barkly Street – a distinctive red face brick house built in the later Federation or possibly early Inter-War era that has a more solid front façade than seen on any of the other bungalows built within this period of time within the precinct. ƒ 830 Barkly Street – the only Inter-War Old English styled house in this precinct.63 This distinctive building is also the only two-storey house considered to be of significance within this precinct. The general description of Buildings and Significant Details for the Mount Pleasant Golden Point Heritage Precinct in the Ballarat Heritage Study Stage 2 states:64 The Mount Pleasant/Golden Point Precinct is especially characterised by a heterogenous mixture of residential, commercial, and cultural/community buildings constructed from the mid- 19th century to the end of the inter-war period in the 20th century. The individually significant or contributory buildings are well distributed throughout the precinct. The Mount Pleasant/Golden Point Precinct is also characterised by the Pearces Park, at the corner of Barkly and Gladstone Streets, which contains a distinctive rotunda; by the park beside the Yarrowee Creek on Humffray Street south near the intersection with Gladstone Street, which contains a number of community club buildings; and by the site of the Ballarat East Bowling Club, which was originally the location of the extensive quartz mining into the side of the hill. However, the only indication of what specific individual buildings might be considered significant is under the heading of Cultural/Community Buildings, which states:65 There are only a few cultural/community buildings in the Mount Pleasant/Golden Point Precinct but most of these are individually significant. A number of individual buildings are described in some detail, including the rotunda in Pearces Park and another in the parkland beside the Yarrowee Creek channel.

The balance of the section in the Study for Mount Pleasant Golden Point consists of a history of the area and detailed descriptions of the various styles of houses found within the precinct and their many characteristic features. A few examples of the styles are identified. However, there is no straightforward statement of what particular buildings are considered individually significant.

Thus whilst the Ballarat Heritage Study Stage 2 contains an exhaustive description of the Mount Pleasant Golden Point Precinct, there is very little analysis of the information. There are no reasons given why some buildings are considered to be significant or how the precinct or parts of it relate to the AHC criteria. In fact, the only time the AHC criteria are mentioned is in the statement of significance at the end of the section. The question therefore arises as to what criteria the Council will use to designate a building not of heritage significance. How will a decision-maker make a judgement about whether a building contributes to the significance of the precinct? The clues must be found in the statement of significance. The Panel considers the following extract to be the most relevant for this purpose.66

63 Ballarat Heritage Study Stage 2 page 265 64 Ballarat Heritage Study Stage 2 pages 256-257 65 Ballarat Heritage Study Stage 2 page 266 66 Ballarat Heritage Study Stage 2 page 269 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 106

The Mount Pleasant/Golden Point Precinct is architecturally significant at a LOCAL level (AHC criteria D.2, E.1). It demonstrates many original and early design qualities associated with the residential, commercial and cultural/community development of the Mount Pleasant/Golden Point area between the 1850s and the 1940s. These qualities include the Victorian, Federation and Inter-War styled residential, commercial, and cultural/community buildings that are predominantly single storey in height, although a few of the commercial buildings and residences have two storeys. Intact qualities of the individually significant and contributory buildings include their horizontal weatherboard, or brick (face brick or rendered) wall construction, hipped and/or gabled roof forms, which generally have a pitch of 25-30° or steeper and are clad with galvanised corrugated iron (predominantly residential and commercial) or terracotta tiles (some Inter-War residences). Other intact qualities are included but are not limited to the appropriate decorative detailing to the various styled buildings, the appropriate verandah rooflines, and the appropriate fence styles and heights. The criteria used to determine the status of buildings as contributory to the significance of the heritage precinct, or as not of heritage significance, must be gleaned from this passage.

10.8.2 Period of construction The most obvious criterion for determining significance, which emerges from the statement of significance for the Mount Pleasant/Golden Point Precinct, is period of construction – buildings from the 1850s to the 1940s. The heterogeneity of the precinct and its cross-section of styles and building type are key characteristics. No distinction appears to have been made between buildings in terms of style or type in establishing the significance of the precinct. Thus at a prima facie level, the Panel would say that any building constructed between the 1850s and the 1940s contributes towards the significance of the precinct. Conversely, any building constructed after the 1940s is not of heritage significance in terms that it does not contribute to the significance of the precinct. This does not mean that a building post-1940s could not be individually significant but it would not be a significance that contributes to the significance of the precinct.

Period of construction is a very simple criterion for identifying buildings that are not of heritage significance and one that is fairly easily determined from a straightforward, external visual inspection. Looking at other precincts in the Ballarat Heritage Study Stage 2 and their statements of significance, period of construction is a consistently dominant criterion used in establishing the significance of the precinct. The periods vary slightly. In some precincts, the period of significance includes the 1950s (eg Central Ballarat (HO166) and South Ballarat (HO168)). Others include only Victorian and Federation periods (eg Sturt Street (HO167)). The period of construction that is significant therefore needs to be separately established for each precinct where this criterion is relevant. For example, it won’t be relevant in the Lake Wendouree Precinct (HO163) or the Creeks and River Channels Precinct (HO172)).

10.8.3 Intactness of building The Panel has suggested that the criterion of ‘substantial intactness’ might be used to decide whether a building, which otherwise is considered to have contributory significance because it falls within the relevant period of construction, is not of heritage significance because it does not contribute to the significance of the precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 107

The issue of substantial intactness requires a judgement, which should be made at the time of a planning permit application in the context of addressing the decision guideline in the Heritage Overlay:

ƒ Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place. Looking at the statement of significance for the Mount Pleasant/Golden Point Precinct, the intact qualities of the individually significant and contributory buildings are mentioned in terms of their horizontal weatherboard or brick wall construction, hipped and/or gabled roof form, roof cladding, detailing, verandah rooflines and fences.

The issue of intactness of buildings and the effect this may have on their contributory significance is a matter that the Council should consider carefully in the context of the nature of its heritage precincts. It should bear in mind that on the one hand, it does not want to erode the heritage character of a precinct through the incremental loss of too many buildings even though they may have been altered over the years. The evolving modification of buildings over time to meet changed functional needs is part of the layering of history. This is recognised in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000), which state:67 It is important when assessing an application that all aspects of significance are recognised and given due importance. The importance of later additions should not be undervalued and the original should not necessarily be perceived as the most important. Previous changes to a building or structure can make a valuable contribution to an understanding of the total history of the place. On the other hand, Council also needs to consider practicalities. There are many modest dwellings that have been highly modified over the years, have had many of their detailing removed or which are very run-down. The issue of modifications was addressed by the panel in Monash L51 (see Section 6.5 and Appendix 0), which made the following observations: A number of houses identified as ‘contributory’ have been substantially altered by, for example, the addition of second story at the front of the house, or the application of external brick cladding. Submitters put the view that these buildings are ‘beyond recall’ in a heritage sense. The Panel is inclined to agree with them. Obviously, there are cases such as notable ruins where the feasibility of restoration is not an issue in assessing heritage value. But in a case such as the inter-war housing stock in Oakleigh, where many examples exist, a line can be drawn to distinguish between the reasonably achievable and the unreasonably achievable. Again, it is a matter of assessing whether the objectives of the overlay can be met. If the works required to restore the visible parts of the house to its original form are clearly out of proportion to the house’s value, and a requirement that the owners restore the facade would be unreasonable, the Panel does not believe that the objective can realistically be achieved. The Panel agrees with the Monash L51 panel that what is reasonably achievable and unreasonably achievable are relevant matters that should be considered when making a decision about a planning permit application. However, the Panel does not consider they affect the issue of contributory significance. Rather, they are matters of economics and feasibility, which are discussed further in Section 10.8.5.

67 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 10 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 108

Buildings that are highly modified, run down or stripped of their detailing are the type of buildings that fall into the grey area referred to previously by the Panel between clearly significant and clearly not significant buildings. In these cases it may be difficult to judge the degree to which they contribute to the significance of the precinct or whether their removal and replacement might not enhance the appearance of the precinct.

The issue of partial demolition must also be considered. Frequently applications are made to demolish the rear portions of buildings, which it is argued do not contribute to the heritage significance of the area or have often been substantially modified. Councils often adopt the view from the street as a test. But this test often becomes a rule divorced from the primary question of whether the ‘demolition, removal or external alteration will adversely affect the significance of the heritage place.’

The Panel does not consider that a blanket judgement can be made in these instances or a strict rule established that will automatically produce the right answer every time. Each case must be judged on its own merits according to available guidelines. The judgement is best made at the time an application for a planning permit is made and is part of the essential exercise of discretion under the Heritage Overlay. This is one of the main reasons why the Panel has recommended against the Council’s proposal to designate buildings as significant or non-significant in an incorporated document (see Section 10.6.2).

The issue of whether modifications are sufficient to influence the contribution that the building makes to the heritage significance of the precinct will depend on the following: ƒ The extent of modifications ƒ Style of modifications ƒ Effect on criteria against which the heritage place has been assessed as having significance. It is with respect to the last point that the importance of the statement of significance is again emphasised. What is the significance of the precinct? How is that significance determined? Unfortunately it is here that the circularity of many statements of significance fail to provide clear answers. They tend to say things like, ‘The precinct is significant because it is architecturally significant at a local level.’ If one then goes to the relevant AHC criteria, which would be D.2 or E.1 in the case of Mount Pleasant/Golden Point, they read:

D.2 Importance in demonstrating the principal characteristics of the range of human activities in the Australian environment (including way of life, philosophy, custom, process, land use, function, design or technique).

E.1 Importance for a community for aesthetic characteristics held in high esteem or otherwise valued by the community.

In the Panel’s view, such criteria are not very useful in reaching a conclusion about whether to permit the demolition, for example, a substantially modified 1920s dwelling in a suburban Ballarat street. Even if it was attempted to use these criteria to form a judgement, the Panel BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 109

believes they could lead to highly esoteric arguments out of proportion to the realities of the situation.68

The Panel therefore considers that the statement of significance itself must be examined for evidence about the factors which influence the contribution that a building makes to the significance of the precinct. On the face of it, reading the statement of significance for Mount Pleasant/Golden Point Precinct, the significance of the precinct rests on the collection of buildings exhibiting original design qualities constructed between the 1850s and 1940s, which demonstrates the succeeding periods of development in the history of Ballarat over this time.

The Panel does not believe the word ‘early’ in the statement of significance adds anything to the nature of significance – ‘It demonstrates many original and early design qualities associated with the residential, commercial, and cultural/community development of the Mount Pleasant/Golden Point area between the 1850s and the 1940s.’ The Panel has read the descriptions for the precinct and cannot discern any emphasis on early design features either in terms of building styles or period. The word therefore seems to be extraneous and may be disregarded in considering the nature of the significance of the precinct.

It is thus the exhibition of original design qualities that seems to be a feature of the significance of the precinct. This therefore leads the Panel to the conclusion that the criterion of ‘substantial intactness’ might be used to decide whether a building, which otherwise is considered to have contributory significance because it falls within the relevant period of construction, is not of heritage significance because it does not contribute to the significance of the precinct.

Of course identifying the criterion of substantial intactness does not avoid the need to interpret the concept in individual circumstances. However, the Panel believes it is a fruitless exercise to attempt to be more specific. The questions to be asked – Is the building substantially intact? Is it recognisable for what it is; namely a building of the XX style built in the period YY? – can only be responded to by reference to the facts of each case and by looking to factors such as the extent and style of modifications, the degree of loss of detail etc.

The Panel does not believe that reference to a long list of characteristics such as ‘horizontal weatherboard, or brick (face brick or rendered) wall construction, hipped and/or gabled roof forms, which generally have a pitch of 25-30° or steeper and are clad with galvanised corrugated iron (predominantly residential and commercial) or terracotta tiles (some Inter-War residences’, will assist in determining the question of substantial intactness or the contribution that a building makes to the significance of the precinct.

Nor does the Panel consider that issues such as whether or not the particular building represents a good example of a certain building style or how many other examples there are within the precinct are relevant to determining contributory significance. It is the collection of all buildings from the relevant periods that is important. As the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) put it, the significance of many of the heritage precincts in Ballarat identified by Amendment C58 rests on the fact that ‘the area is composed of places that individually [may] have little intrinsic heritage value but which are important for what they tell us as a group or collection of places.’ As a whole, for example, the

68 One has only to look at the type of arguments dealt with by the panel in Stonnington L47(D) to see the fine nuances of meaning that reference to these criteria give rise to. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 110

Mount Pleasant/Golden Point Precinct tells us what Ballarat was like and how it evolved during the period from the 1850s to the 1940s. For this reason all buildings constructed during this time, which are substantially intact and recognisable as buildings of this period, contribute to the significance of the precinct. In terms of the objectives of the Heritage Overlay and on a policy basis, they should not be demolished because their demolition or removal would adversely affect the significance of the heritage place.

10.8.4 Intactness of streetscape In considering the issue of contributory significance, the presence of non-significant buildings in the streetscape near the building is sometimes raised. Some panel reports, eg Monash L51, have considered the intactness of the streetscape in some detail – see Section 6.5 and Appendix 0. However, in all cases the context of the discussion and the nature of significance of the particular precinct are paramount when considering the relevance of the intactness of the streetscape.

In the case of Monash L51, the panel was considering the application of the Heritage Overlay to extensive areas of inter-war housing in Oakleigh – in total some 20% of the suburb. Given the large extent of the overlay and the varying levels of streetscape ‘intactness’, the panel was required to considered a number of matters including to what extent is the degree of intactness of a streetscape relevant. The panel was faced with the situation where the Heritage Overlay had been applied in areas or streets where the proportion of intact housing stock ranged from 80-90% of all properties, to 40-50% of all properties, or to a group of 3-6 houses representing as little as 10-20% of properties in a street. The question was whether these widely varying areas all met the criteria for a ‘heritage precinct’. The panel found that a survey of heritage guidelines and studies failed to locate a definitive answer to this question and it was not satisfied that the Monash Heritage Study had addressed this question rigorously. It concluded that:69

… Monash has such a wealth of inter-war development that it could well afford to discriminate between intact and partially intact streets. There would be much to gain by focussing the HO on those streets or precincts where heritage values are clearly discernible to residents and visitors alike. The integrity of the HO would be enhanced instead of dissipated, as at present, by the inclusion of marginal areas.

The situation the panel was dealing with in Monash though is quite different to the situation in Ballarat. In Monash, the Heritage Overlay was being applied to protect buildings that came from a common period – inter-war housing. Thus the heritage significance of the areas in question depended on their homogenous inter-war character. In such cases, the level of intactness of the streetscape will be relevant. It will be primarily relevant in establishing the initial boundaries of the area to which the Heritage Overlay should apply. However, it may also be relevant in considering subsequent permit applications for demolition of a building that is isolated from other buildings of the same period or is in a street where the proportion of buildings from the relevant period is very low compared to other streets within in the precinct. In such cases, because the heritage significance of the precinct as a whole is based on its homogeneity and relates to the presence of significant numbers of buildings of a common type or from a common period, an isolated building or one in a streetscape with a low level of intactness may well be held not to contribute to the heritage significance of the precinct.

69 Monash L51 Panel Report (October 1999), page 21 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 111

In Ballarat though, with the exception of the Waller Estate (HO169), most precincts are characterised by their heterogeneity, not their homogeneity. Thus it will be expected that a streetscape may contain a wide variety of buildings from numerous periods. In the Mount Pleasant/Golden Point Precinct for instance, a single house dating from the 1940s in a street of Victorian dwellings would still be considered of contributory significance because it was constructed in the relevant period (1850s – 1940s) and there is nothing in the statement of significance to suggest that the homogeneity of the streetscape is relevant to the heritage significance of the precinct. However, a building dating from the 1950s or later would not be of contributory significance no matter how fine an example of its type it may be.70

The Panel’s conclusion, therefore, is that in Ballarat, in most instances, intactness of streetscape will not be relevant in determining the contributory significance of a building. However, this is not a categorical statement. In all instances the relevance of the intactness of the streetscape will depend on the nature of the heritage significance in question. The same consideration will apply whether this is at the time of an amendment when the Heritage Overlay is being applied or subsequently in the context of a planning permit application and deciding whether a building contributes to the significance of a heritage area.

10.8.5 Economics and feasibility The Panel considers that when judging whether a building contributes to the heritage significance of the precinct, issues of economics should be kept separate. Economics do not affect the issue of contributory significance but are a separate reason why demolition might be permitted. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) address this issue in the following terms:71 Demolition may be acceptable where the condition of the place has been assessed as being beyond repair, both physically and economically…. This reflects the approach taken by the Monash L51 panel that what is reasonably achievable and unreasonably achievable are relevant matters that should be considered when making a decision about a planning permit application.

10.9 SUMMARY OF RECOMMENDATIONS REGARDING THE HERITAGE CONSERVATION POLICY FOR BALLARAT The Panel has found that the Heritage Conservation Policy proposed by Amendment C58 (either the exhibited or revised versions) is inappropriate for the reasons summarised in Section 9.2.4 and elaborated upon in this Section. Nevertheless the Panel appreciates the City of Ballarat’s desire to provide more detailed guidance on the management of its many

70 The exception to this would be if the building was listed in the Heritage Overlay as individually significant. In this example, such a building should be given its own listing in the schedule to the Heritage Overlay because its significance is unrelated to the significance of the precinct it is located within. However, in Ballarat the issue of determining the contributory significance of such a building is unlikely to arise because of the proposal to designate such buildings as not of heritage significance in a separate incorporated document. 71 Draft Guidelines for the Assessment of Heritage Planning Applications (2000) page 11 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 112

heritage places, particularly in light of the strong strategic support for the City’s heritage in the MSS.

The decision guidelines in the Heritage Overlay require consideration of: ‘Any applicable heritage study and any applicable conservation policy.’ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) have been prepared by Heritage Victoria for the express purpose of providing assistance to decision makers in the assessment of planning applications for heritage places under the Heritage Overlay. They are intended to ensure a consistency in decision making across the State.

The Panel has taken the general view that most, if not all, of what the City of Ballarat wants to achieve through the content of its general heritage policy is better and more comprehensively expressed in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). The Panel has concluded that it would be more appropriate to reference these guidelines and apply them through a local planning policy than attempt to repeat them in a truncated form or their presently more convoluted form in Amendment C58.

There may be aspects of the Draft Guidelines that should be customised to meet the needs of Ballarat, for example with respect to signage (see Section 10.3).

It is most important that any local planning policy on heritage contains a clear policy basis that sets out explicitly what the policy is seeking to achieve and links it directly to the strategic objectives within the MSS and SPPF. It is important that this policy basis reflects the situation in Ballarat and is not simply a generalised restatement of sentiments and objectives already included in other parts of the planning scheme, including the Heritage Overlay. A local planning policy may be used not only to guide the exercise of discretion but also to tip the balance in favour of heritage conservation when weighing competing policy objectives. If this is what the Council wishes to achieve with its Heritage Conservation Policy, then it ought to be explicitly stated in the policy basis.

In order to provide more certainty in the management of the large areas to which the Heritage Overlay will apply, the Panel has concluded that buildings not of heritage significance should be identified in a separate incorporated document, Ballarat Heritage Precincts – Statements of Significance (2004). Buildings not of heritage significance should be identified by reference to period of construction, which is an objective criterion fairly easily established by visual inspection. The appropriate period of construction should be determined from the statement of significance for the relevant precinct.

Buildings listed in the Ballarat Heritage Precincts – Statements of Significance (2004) as not of heritage significance would not require a permit for demolition under the incorporated plan specified in the schedule to the Heritage Overlay.

The policy should state that all other buildings are considered to contribute to the significance of the heritage area unless it is established to the satisfaction of the responsible authority that the building is not of contributory significance. In considering whether a building contributes to the significance of the heritage place, the responsible authority should have regard to the criteria for establishing the significance of the heritage precinct set out in the statement of significance for each precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 113

As the intact qualities of individually significant and contributory buildings are identified as being part of the significance of many of the heritage precincts, then substantial intactness is one of the criteria that the Council should have regard to in determining if a building contributes to the heritage significance of the precinct. It would also be open to an applicant to establish that the building was not built during the relevant period of construction, which would also determine that it is not a contributory building.

The conclusions and findings of the Panel regarding the substance of the Heritage Conservation Policy proposed by Amendment C58 lead to the following recommendations.

Recommendations ƒ Subject to the following recommendations, the Heritage Conservation Policy should be edited and rewritten to make it more comprehensible and to reduce the complex wording and structure. ƒ The 19 precinct policies should be deleted. ƒ Any new local precinct policy should only be included if it is necessary to achieve an outcome or objective that would not otherwise be met through an application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) or a proper consideration of the Ballarat Heritage Study Stage 2. ƒ The general heritage policy in Clause 22.15 should be deleted. It should be replaced by a simple policy to the following effect: It is policy to apply the incorporated Draft Guidelines for the Assessment of Heritage Planning Applications (2000) when considering applications under the Heritage Overlay. ƒ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be included as an incorporated document in the Schedule to Clause 81. ƒ The Council should consider if it wishes to make an exception to the general policy to apply the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) with respect to any specific matters such as: − Permits for signage. If so, the policy should state that it is policy to apply the City of Ballarat Advertising Sign Guidelines rather than the guidelines on signage in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000).72 In this case, the City of Ballarat Advertising Sign Guidelines should be included as an incorporated document in the Schedule to Clause 81. − The need for a planning permit for replacement development before a permit for demolition is granted.73 ƒ A new incorporated document should be incorporated into the planning scheme which lists all buildings not of heritage significance in each heritage place.74

72 The Council should be wary of specifying that the Ballarat Advertising Sign Guidelines will apply in addition to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) unless it is clear there is no contradiction between the two. It is preferable to apply one or the other but not both. 73 See Section 10.7. No permit for demolition would be required for buildings listed as not of heritage significance in the incorporated plan specified in the schedule to the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 114

ƒ The Heritage Conservation Policy should include a policy to the effect that all buildings within a heritage place that are not listed as ‘not of heritage significance’ within the incorporated document are considered to be prima facie contributory to the significance of heritage place, but an applicant may establish to the satisfaction of the responsible authority that a building is not of contributory significance. In considering whether a building contributes to the significance of the heritage place, the responsible authority should have regard to the criteria for establishing significance set out for each precinct.

74 The Council advises that this will be known as the Ballarat Heritage Precincts – Statements of Significance (2004), which will also contain descriptions of each heritage precinct and their statement of significance extracted from the Ballarat Heritage Study Stage 2. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 115

11. HERITAGE PLANNING CONTROLS IN VICTORIA

11.1 HISTORY OF HERITAGE PROTECTION IN VICTORIA In Victoria, the National Trust system of registration, which has always been non-statutory and non-enforceable, was originally the only public means of identifying heritage assets. The demolition of many fine buildings post World War II, particularly during the 1960s, led gradually to a public outcry that resulted in the establishment of the Historic Buildings Council and the Register of Historic Buildings under the Historic Buildings Act 1974 to protect buildings, works and objects of State significance. These buildings could not be altered, demolished or developed except with a permit from the Historic Buildings Council.

There was no power in the Town and Country Planning Act 1961 for planning schemes to control the demolition or alteration of buildings on historic or architectural grounds until the Town and Country Planning (Amendment) Act of 1972.

Urban conservation area controls were first introduced into the Melbourne Metropolitan Planning Scheme in 1984 by Amendment 224 with planning control over individual historic buildings introduced in 1986 by Amendment 307. Both types of control required a planning permit for the demolition, alteration and new development.

The Planning and Environment Act 1987 included as one of the objectives of planning in Victoria ‘to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value’ (Section 4(1)(d)). Planning schemes continued to provide protection for urban conservation areas and individual buildings of either State, regional or local heritage significance administered by local government by means of two sets of controls.

In 1994, as part of the Government’s planning reform program, the Historic Buildings Council and the then Department of Planning and Development commissioned a Review of Heritage Control in Planning Schemes in Victoria, which was undertaken by Collie Planning and Development Services Pty Ltd. The Collie Report concluded that ‘there needed to be a shift from excessive prescriptive-type controls to the performance-based provisions including more selective management of identified significant features and places.’ The Report also emphasised the need for rigour in the future application of heritage controls, which should only be as a result of a heritage study according with rigorous guidelines established by the Department. It also recommended that: ‘Heritage (urban conservation) controls should not be applied as a means of regulating or maintaining urban character or residential amenity.’

The Collie Report produced a model control for inclusion in the then State section of all planning schemes. A criticism made of the model control at that time concerned its failure to BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 116

adequately distinguish or recognise the fundamental difference between urban conservation controls and historic or heritage building controls, namely that one is concerned about areas and the other about individual buildings.

Following a consultation process, a new heritage control was introduced, which was the forerunner of the Heritage Overlay currently included in the VPPs. However, the differences between the Heritage Overlay and other overlays in the VPPs, and some of the shortcomings associated with it, are due to the fact that the original form and wording of the Heritage Overlay predated the VPPs. The Heritage Overlay was essentially an adaptation rather than a completely new control and thus did not fully reflect the drafting conventions applied elsewhere in the VPPs.

The key way in which the Heritage Overlay is different to previous heritage controls is that it applies a single control to all heritage places rather than distinguishing between urban conservation areas and individual buildings or sites of heritage significance. This amalgam was a result of: ƒ The introduction of the Heritage Act 1995, which refers to ‘heritage places’. Whilst a heritage place is a place included in the Heritage Register, nevertheless the definition of ‘place’ within the Act expanded the concept of what could possess heritage significance and hence be protected. The definition of ‘place’ in the Heritage Act 1995 includes: (a) a building; and (b) a garden; and (c) a tree; and (d) the remains of a ship or part of a ship; and (e) an archaeological site; and (f) a precinct; and (g) a site; and (h) land associated with any thing specified in paragraphs (a) to (g); There is no definition of heritage place within the Heritage Overlay or the VPPs. Clause 43.01 states that ‘A heritage place includes both the listed heritage item [in the schedule] and its associated land.’ However, it has always been assumed that ‘place’ has the same meaning as in the Heritage Act 1995.

What is relevant is that the concept of a heritage place meant that the term could be used to encompass both an individual building (or site) and a precinct. Hence it was felt there was no need to have a separate set of controls for individual buildings and areas, especially when the same set of controls applied. ƒ The same set of controls applied to both individual buildings and areas. In each case, a permit was required for: − Demolition, removal or alteration − New buildings or works It was therefore felt there was no need to duplicate the same controls in separate provisions. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 117

Some of the issues of debate at the time the Heritage Overlay was introduced concerned whether: ƒ A dual system of heritage protection should be maintained under both the Heritage Act and the planning system with the possibility of buildings being included in both the Heritage Register and the planning scheme. ƒ The need for separate permits under each system. It was decided that for a heritage asset of State significance a system of heritage protection was required that gave primacy to its heritage significance in decision-making. It was felt there was a risk that if these assets were only dealt with under the planning system, other planning considerations may be held to outweigh heritage considerations. On the other hand, there was merit in having a single list that people could consult to determine if a place was subject to heritage control. It was also decided that only a single permit should be required.

The outcome was to retain the listing of heritage places of State significance on the Heritage Register under the Heritage Act 1995 but where they are included in a Heritage Overlay to grant an exemption from the need for a permit where a permit is granted under the Heritage Act 1995 or the development is exempt under that Act (see Clause 43.01-3).75

The Heritage Overlay underwent some minor modifications as a result of the Review of the VPPs (1997). Since introduction of the VPPs in October 1997 there have been no further changes to the Heritage Overlay apart from a minor modification in October 2002 to exempt removal of native vegetation from permit requirements if it presents an immediate risk of injury or damage.

11.2 OPERATION OF THE HERITAGE OVERLAY

11.2.1 Clause 43.01 A copy of the current version of the Heritage Overlay provisions in Clause 43.01 is included in Appendix A. In brief terms, a permit is required to subdivide or consolidate land; demolish or remove a building; construct a building; externally alter a building; construct or carry out works; construct or display a sign; and externally paint an unpainted surface. Certain other development requires a permit if the relevant provisions are activated in the schedule to the Heritage Overlay, for example external painting, internal alterations and tree removal.

An application is exempt from notice and third party appeal rights in respect of certain minor development and works (Clause 43.01-4)

No permit is required for repairs or routine maintenance which do not change the appearance of a heritage place or for anything done in accordance with an incorporated plan specified in the schedule (Clause 43.01-2). Nor is a permit required for places on the Victorian Heritage Register if a permit has been granted under the Heritage Act 1995 or the development is exempt under that Act.

75 Note that there is an assumption that all places on the Heritage Register will be included in the Heritage Overlay but no clear direction to this effect in the Planning Practice Note on applying the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 118

Decision guidelines are set out in Clause 43.01-5.

11.2.2 Application of ResCode – Clause 54 Clause 54 is one of the ResCode provisions. It sets out certain requirements and standards and applies to applications to construct or carry out works associated with a single dwelling on a lot of less than 300 square metres or a lot between 300 – 500 square metres if specified in the schedule to the zone. The zones it applies to are the Residential 1 Zone, Residential 2 Zone, Mixed Use Zone and the Township Zone. A single dwelling on a lot greater than these areas does not require a permit in these zones and hence Clause 54 does not apply in those cases. There are no exemptions from notice and third party appeal rights under Clause 54.

However, Clause 54 also applies where a permit is required under the Heritage Overlay in one of these zones, irrespective of the size of the lot. Thus the application of a Heritage Overlay can expose a landowner to the need to comply with a range of requirements and standards under Clause 54 that are unrelated to the heritage significance of the place as a result of needing a permit for quite simple developments. The operation of Clause 54 also undermines the exemption from notice and third party appeal rights for minor development and works provided for by Clause 43.01-4, as there is no similar exemption for any of its provisions.

The result of the operation of this aspect of Clause 54 is to place a substantial additional workload on councils in processing minor permit applications, especially where there are extensive areas covered by the Heritage Overlay. This also creates delays for landowners; additional compliance costs and exposes them to objections and appeals.

11.3 WHAT IS ‘HERITAGE SIGNIFICANCE’?

11.3.1 The concept of cultural significance Cultural heritage significance is defined in the Burra Charter as:

Aesthetic, historic, scientific, social or spiritual value for past, present and future generations.

The Hobsons Bay C17 panel report made the following observations about the concept of cultural significance:76

We comment briefly on this issue, as its interpretation underlies all aspects of heritage assessment, the purpose of undertaking heritage studies and placing the Heritage Overlay over properties in the City of Hobsons Bay.

The Altona, Laverton and Newport Districts Heritage Study contains no discussion on this matter. The VPP Practice Note – Applying the Heritage Overlay refers only to places identified as historically significant by appropriate authorities and studies. The Local Government Heritage Guidelines (Department of Planning and Housing, April 1991), a reference document in the Hobsons Bay Planning Scheme, refers to the definition of cultural significance in the Planning & Environment Act 1987 and The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter),

76 Hobsons Bay C17 Panel Report (February 2003) page 29 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 119

which latter refers to the conservation of places that are of “aesthetic, historic, scientific or social value.” The “Guidelines to the Burra Charter: Cultural Significance” are a little more helpful, though still general: “Cultural significance is a concept which helps in estimating the value of places. The places that are likely to be of significance are those which help an understanding of the past or enrich the present, and which will be of value to future generations” (Panel’s underlining).

One concern that we have, and which we have elaborated later, relates to the question of how we should establish what parts of the past are sufficiently important to the community (rather than, perhaps, one or two individuals) that they meet the threshold criteria of local significance and can be justifiably included in a Heritage Overlay. With respect to the concept of Local Significance, the Local Government Heritage Guidelines merely observe: “Local significance –Places of local significance are of particular importance to a local community or part of a community which is usually defined by a local government area.” This is both rather circular and not of much help as it raises more questions than it answers.

This extract highlights the fundamental issue at stake in heritage protection: What parts of the past are sufficiently important to the community to justify heritage protection? When the response to this is considered, the Panel believes a further fundamental issue arises: Should the same expectations about heritage protection apply to all heritage assets?

In the Panel’s view, community expectations about heritage and cultural significance have outstripped the more conservative views of heritage professionals. The general community takes the view that anything old is ‘heritage’ and therefore should be protected. This is a dramatic shift in attitude compared to the view prevalent not so long ago, which was that anything new was preferable to something old, and which especially attached little value to what were then regarded as ‘just ordinary old buildings’.

The Burra Charter was first adopted in 1979.77 At that time, heritage conservation and the principles of the Burra Charter were applied almost exclusively to sites of major heritage significance (state or national level). The AHC criteria for the assessment of heritage significance were established in this context. The degree of intellectual rigour they imply are a reflection of the number of heritage assets then being considered, their level of significance and the quite radical (for the day) and what some regarded as extreme controls being proposed. It is a measure of the soundness of the Burra Charter that it remains relevant today and to sites of local significance as well as those of state and national significance.

However, heritage controls are no longer regarded as radical or extreme. The public is generally far more accepting of the need for planning controls over demolition and new development as a means of protecting community values. Nevertheless, the explosion in the number of places that are now subject to heritage controls and the public clamour for still more places to be protected places great stain on the resources necessary to justify ‘heritage significance’ with the rigour implied by the Burra Charter and the AHC criteria.

The Panel believes that the concept of cultural significance recognised by the Burra Charter when it is applied at a local level today – namely, ‘aesthetic, historic, scientific, social or spiritual value for past, present and future generations’ – is so broad that it is questionable whether the AHC criteria remain relevant in its establishment. In the Panel’s view, this is because the question: What parts of the past are sufficiently important to the community to justify heritage protection? results in the response: Everything that is ‘old’. The Panel recognises this is not necessarily the outcome that would result from a rigorous application of the AHC criteria by a heritage professional. However, the question relates not to what parts of

77 Revisions were adopted in 1981, 1988 and 1999. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 120

the past a heritage professional would regard as sufficiently important to protect, but what the community regards as important. The Panel suggests that the community may have quite a different view about what is important compared to the heritage professional.

However, there is evidence that even attitudes amongst heritage professionals are changing. An expanded concept of cultural significance is evident in the very large, often very mixed, areas or precincts that heritage studies are finding have heritage significance according to an application of various AHC criteria. Ballarat is a prime example.

11.3.2 Heritage significance versus heritage character The desire by the City of Ballarat to protect all its ‘old’ or period buildings – and here an old building may be anything from the Victorian, Federation, inter-War or immediate post-War periods – highlights the shift in the community’s perception of what constitutes heritage significance. It also highlights the difficulties associated with transferring the strict application of criteria designed to ascertain the heritage significance of individual buildings or discrete places to large, diffuse areas, which possibly have more ‘heritage character’ than ‘heritage significance’ in the strict sense.

Community values have changed in Australia with respect to heritage. From a time typified by the 1960s when it was a battle to retain heritage assets of even State significance let alone what were perceived as just ‘ordinary old houses’; when whole neighbourhoods in inner Melbourne were bulldozed by the Housing Commission in the name of slum clearance, the community now values and demands protection for its heritage.

To the general public, heritage is not determined by a critical application of the AHC criteria: it is anything perceived to be ‘old’. Heritage experts worry that ascribing the same level of significance to a building of State significance as a modest, inter-War Californian bungalow will undermine or devalue the worth of the State significant asset, but this is not something that the general community is concerned about. The weight of public opinion demands a similar level of protection for both types of assets and attaches just as much importance to areas of heritage character as to the undoubted gems of true heritage significance. To the general community, both have ‘cultural significance’ within the meaning of the Burra Charter.

In this respect, the community’s perception about what it regards as heritage and what it values has outstripped the views of the heritage fraternity who continue to grapple with the distinction between heritage significance on the one hand and urban or neighbourhood character on the other. The Panel considers that in reality they are all part of a continuum. At one end of the spectrum there are the acknowledged places of heritage significance, which fall clearly within the AHC or other recognised criteria. At the other end, there are places that clearly have no significance in heritage terms and are easily recognised as such. It is the grey areas in between where the difficulty lies in drawing the line.

A strict application of the AHC criteria in a challenging environment will result in a distinct line being drawn between what is and is not of heritage significance. But if the challenging environment is not present, either because an amendment does not require a panel or because there is no independent expert evidence that takes issue with the substance of the heritage study, the line of heritage significance may well be drawn in a different place. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 121

11.3.3 Establishing heritage significance A perusal of some of the panel reports discussed in Section 6, such as Stonnington L47(D), indicates how difficult and fine the distinctions can be in terms of determining what has heritage significance within the parameters set by the current planning framework and what does not. For the general community, the Panel doubts that these distinctions really matter. It suspects that, in many instances, the community would prefer to see these assets recognised and protected simply because they are ‘old’, irrespective of arguments about association with a person of importance or which architect, if any, designed them. The circumstances surrounding Stonnington C12 Part 2 are an example of this.

As the planning framework currently stands, with its emphasis on rigour in establishing heritage significance, substantial resources can be consumed in the process of establishing heritage significance to the very exacting levels demanded by a proper application of the AHC criteria. This was evidenced by the Stonnington L47(D) panel hearing and subsequent Stonnington heritage amendments. The framework also creates anomalies where certain properties may be rejected from the Heritage Overlay because someone objects and the criteria are rigorously tested in respect of those properties and found wanting, yet many other properties or areas have been included in the overlay without question even though the same heritage study, which may be equally flawed, has been used to justify their inclusion.

In the Panel’s view, the discrepancy in the quality of heritage studies and the selective testing of that quality which results from the present planning system raise doubts about whether current heritage controls are ‘fair’ within the spirit of Section 4(1)(a) of the Planning and Environment Act 1987 objectives of planning in Victoria. The Stonnington C5 & C6 Part 2 panel discussed this issue of fairness although in the context of the degree of rigour required to justify the quite onerous restrictions placed upon properties within a Heritage Overlay and their economic implications (see Section 6.8).

The Planning Practice Note on applying the Heritage Overlay has been in operation for some time yet panels are still finding that the quality of some heritage studies fail to meet the standards of rigour identified in the Planning Practice Note (eg Hobsons Bay C17 and Yarra Ranges C16 Part 2). Even where substantial resources are devoted to heritage investigation and studies, such as Stonnington, there remain instances that, when tested in detail, the criteria are found not to have been applied appropriately or with sufficient rigour.

The situation with Ballarat Amendment C58 highlights another aspect of this problem, which is where a detailed heritage study is carried out and used as the basis to apply extensive Heritage Overlays, but there is no challenge at all to the study or independent critical evaluation of its rigour. The question arises to what extent the panel should use its own expertise to undertake a ‘quality control’ exercise even if it only explores a representative sample of the study or amendment area in some detail and oversights the remainder. What happens if the panel lacks the specialised heritage expertise to undertake this task?

The Panel considers it is unrealistic to expect panels generally to undertake any sort of peer review of heritage studies as part of the amendment process. A panel’s task is to consider the submissions referred to it, give people an opportunity to be heard, consider any expert evidence presented to it, and evaluate the amendment in accordance with the Strategic Assessment Guidelines, including Ministerial Direction No. 9 relating to the Metropolitan Strategy. If, in the process of undertaking this task, the panel should identify matters that BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 122

cause it to question the reliability or rigour of a heritage study, then it may rely upon this to justify its recommendations, which may include modification or rejection of the amendment or additional work before an amendment is approved. However, in the absence of any conflicting expert opinion or other reason for rejecting a heritage study, a panel should be entitled to rely upon a heritage study as adequate justification for the application of the Heritage Overlay where it is undertaken in apparent accordance with recognised methodology and by recognised heritage experts.78

One means of testing the rigour of a heritage study would be to require a peer review by an independent heritage expert. However, unless there is some reason to doubt the quality of the study, this would be an added expense that the Panel does not consider could be justified as a matter of course.

In the case of Ballarat Amendment C58, the Panel is confident that the Ballarat Heritage Study Stage 2 establishes a prima facie case of heritage significance for the places studied. However, once the amendment is approved, there will be no subsequent opportunity to challenge the quality of the heritage study, for example when a planning permit application is made for a specific property. It is only at this stage that an owner may be alerted, possibly for the first time, to inaccuracies in the heritage study either affecting his property or the broader heritage place, and may be prepared to invest resources into determining the true heritage significance (or lack thereof) for himself. The problem is that the planning controls as they presently stand do not allow the heritage significance of the heritage place to be challenged after the amendment is approved. An applicant is restricted to arguing that the demolition, alteration or new development will not adversely affect the established heritage significance of the place.

The other problem is that whilst the Heritage Overlay allows a permit to be granted for demolition or new development, even though it may adversely affect heritage significance if some competing planning objective is held to outweigh this, the community has an expectation that demolition will not be allowed and that heritage objectives will be regarded as paramount. This is notwithstanding that the original assessment of the significance of the heritage place may be open to question on the basis that the AHC criteria were not properly or rigorously applied.

Therefore, the question is raised whether it is worth devoting more and more scarce resources towards establishing the rigour that the Planning Practice Note and a proper application of the AHC criteria require, or whether the planning system should be modified to take account of both resources and community expectations. The Panel suggests that the time has come to review the Heritage Overlay and to establish a more realistic, fair and equitable planning framework for dealing with heritage assets and balancing competing planning objectives. This includes establishing new thresholds of heritage significance at the time heritage controls are introduced.

78 The heritage study relied upon in Stonnington C12 Part 2 failed in this respect, which was a reason why the amendment was rejected. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 123

11.4 SHORTCOMINGS WITH THE HERITAGE OVERLAY AND ITS MANAGEMENT

11.4.1 Calls for review Concerns about the Heritage Overlay and in particular problems with the rigour of material used to justify its application and the lack of proper statements of significance have been made by planning panels since the time of initial introduction of the new format planning schemes (see Section 6). In March 2000, the Stonnington L47(D) panel report concluded that the AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration. In the Stonnington panel’s view, ‘much difficulty is caused by the uncertainty of, and various interpretations of, the application of these criteria to the local level.’ The panel went on to recommend that:79

… Council should seek State Government support to a review of these criteria for use at the local level. State (Heritage Victoria is the obvious body with the appropriate responsibility. The AHC criteria provide the obvious basis for such criteria, but the elaboration and illustrative examples are the critical features that are required to assist Councils and the community in this matter.

In particular, the panel recommended that the Council seek direction from the Department (then DOI) on the methodology to be used to more clearly define local significance. Acting upon this recommendation, Stonnington City Council wrote to the Minister for Planning on 18 April 2000 requesting that Heritage Victoria review the Planning Practice Note on applying the Heritage Overlay and provide advice to Council on an assessment methodology. At the same time, the Chief Panel Member of Planning Panels Victoria also recommended a review of the Heritage Overlay and the Planning Practice Note. However, the Panel is not aware of the Minister’s response to the Stonnington City Council or the progress of any work to review the Heritage Overlay or criteria for establishing local significance.

The need to review the criteria identified in the Planning Practice Note on applying the Heritage Overlay for establishing local significance are addressed in Section 11.7. However, in addition to this issue, there are a number of shortcomings with the structure and content of the Heritage Overlay itself and the management regime for heritage assets which it puts in place. These shortcomings are outlined in the following sub-sections. In the Panel’s view, these shortcomings lead to the conclusion that a review of the Heritage Overlay is required.

11.4.2 Statements of significance The statement of significance is an integral component in the exercise of discretion under the Heritage Overlay and the management of heritage places. The objectives of the Heritage Overlay and the decision guidelines in Clause 43.01 all refer to the significance of the heritage place and the impact which certain actions may have on that significance. Without a statement of significance it is extremely difficult to determine what the significance of the heritage place is and what elements may contribute to it.

Statements of significance are referred to in the Planning Practice Note yet there is no integration of them with the Heritage Overlay itself. Statements of significance are not referred to in Clause 43.01 or the schedule. The closest reference to them is in the decision

79 Stonnington L47(D) Panel Report (March 2000) page 5 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 124

guidelines in Clause 43.01-5 to: ‘Any applicable heritage study and any applicable conservation policy.’

Statements of significance, where they exist, sit outside the planning scheme. They are usually contained within a heritage study, which may be a reference document but is rarely an incorporated document. Statements of significance are prepared for the initial purpose of establishing heritage significance and hence justifying the application of heritage controls. Very little thought or guidance appears to have been given to their ongoing role in assisting decision-making under the planning scheme. The overall quality of statements of significance tends to be poor from this perspective, especially in assisting in planning decision-making for heritage areas. 80 Guidance is required in the preparation of statements of significance that may be usefully employed in guiding later planning decision-making.

Recommendation ƒ Statements of significance should be integrated with the provisions of the Heritage Overlay. ƒ A Planning Practice Note should be prepared about heritage studies and the preparation of statements of significance to ensure they are oriented to their use in a planning context and are suitable for this purpose.

11.4.3 Scope of Heritage Overlay Clause 43.01 states under the heading of ‘Scope’:

The requirements of this overlay apply to heritage places specified in the schedule to this overlay. A heritage place includes both the listed heritage item and its associated land. Heritage places may also be shown on the planning scheme map.

The case of Librey Pty Ltd v Melbourne City Council [2201]VCAT 1833 dealt with an application for declaration about whether a permit was required for demolition of a building shown on the planning scheme map as in a Heritage Overlay but which was not listed in the Schedule to the Heritage Overlay. The Tribunal held that the map is determinative of whether the Heritage Overlay applies to land. In terms of the role of the schedule, the Tribunal found that if the overlay applies, Clause 43.01 establishes when a permit is required. Reference to the schedule is made to ascertain if the heritage place is subject to a variation of the controls in Clause 43.01.

However, in a similar case of Walsh v City of Yarra [No 2001/5866] the Tribunal came to a contrary view and held that primacy must be given to the schedule over the map in ascertaining whether the Heritage Overlay applied to land.

In both cases, the wording of Clause 43.01 relating to ‘Scope’ was subject to detailed examination. Neither case appears to refer to Clause 4 of the VPPs, which is a part of every planning scheme. Clause 4 is the User Guide and states with reference to the planning scheme map:

80 See Section 10.8 for a discussion of statements of significance in the context of Ballarat Amendment C58 and some of the shortcomings evident from their use for these planning purposes. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 125

The planning scheme map shows how land is zoned and whether it is affected by an overlay. This information is indicated by a letter and number code that is explained on the front page of each map: For example, R1Z stands for Residential 1 Zone.

To find out the effect these requirements have on your land, it is necessary to refer to the written document.

This would indicate that the map is intended to be determinative of how land is zoned or whether it is affected by an overlay. This interpretation is reinforced by reference to planning certificates in Clause 4, which states:

You can also apply for a planning certificate for a particular parcel of land. This will state the planning scheme zone and overlay requirements that apply to that land as shown on the scheme map. [Panel’s emphasis]

However, it is evident from the conflicting VCAT determinations referred to that there is ambiguity about the scope of the Heritage Overlay in the way it is currently expressed. This is a matter that requires clarification.

Recommendation ƒ The Heritage Overlay should be amended to clarify that the overlay applies to heritage places shown on the planning scheme map. Heritage places may be listed in the schedule to the overlay, but in the event of a discrepancy, the map takes precedence. The purpose of the schedule is to identify whether any variations to the standard controls in Clause 43.01 apply to a particular heritage place.

11.4.4 Places on the Heritage Register There is an assumption that all places on the Heritage Register will be included in the Heritage Overlay but there is no clear direction to this effect.

The Planning Practice Note on applying the Heritage Overlay identifies that the following places should be included in the Heritage Overlay but makes no mention of places on the Heritage Register: ƒ Any place that has been listed on the Australian Heritage Commission’s Register of the National Estate. ƒ Any place that has been recommended for planning scheme protection by the Heritage Council. ƒ Places listed on the National Trust Register of the National Trust of Australia (Victoria), provided the significance of the place can be shown to justify the application of the overlay. ƒ Places identified in a local heritage study, provided the significance of the place can be shown to justify the application of the overlay. One of the original objectives in the formulation of the present Heritage Overlay was to create a single list that would be definitive about whether a property was subject to heritage controls (see Section 11.1). This concept needs to be formally acknowledged in the Planning Practice Note. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 126

Recommendation ƒ The Planning Practice Note should direct that all places on the Victorian Heritage Register should be included in a Heritage Overlay.

11.4.5 Incorporated plan The incorporated plan is an important management tool under the Heritage Overlay. Clause 43.01-2 provides that no permit is required for anything done in accordance with an incorporated plan specified in a schedule to the overlay.

Elsewhere in the VPPs incorporated documents are referred to and all incorporated documents must be included in the schedule to Clause 81. There is no similar requirement for incorporated plans under the Heritage Overlay.

The relationship between incorporated plans under the Heritage Overlay and incorporated documents needs to be tidied up. It needs to be resolved whether incorporated plans are the same as an incorporated document, whether they too should be included in the schedule to Clause 81 and whether the distinction in nomenclature should be maintained.

Recommendation ƒ The relationship between incorporated plans in the Heritage Overlay and incorporated documents in other parts of the planning scheme should be clarified.

11.4.6 Consideration of matters beyond heritage significance. The consideration of matters beyond heritage significance is promoted by the operation of Clause 54 (see Section 11.2.2) but is becoming common in many situations. This is notwithstanding the well-established legal principle that a discretion should only be exercised for the purpose for which the discretion is granted.

This principle, known as the National Trust principle, was articulated by the Full Court of the Supreme Court of Victoria in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VR 592. The principle was recently endorsed in the context of the current planning scheme provisions by Balmford J in the Supreme Court case of Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VSC 528 and Morris J in the VCAT case Victorian National Parks Association Inc v Southern Grampians Shire Council & Horsham Rural City Council [VCAT Reference No: P2793/2003 and P2794/2003]. Morris J noted that when ResCode was introduced the Minister, aware of the National Trust principle, made a specific provision so that ResCode (Clause 54) did apply to a single dwelling on a lot when the only reason why a planning permit was necessary was by reason of a Heritage Overlay. However, leaving that aside, he said: 35. The National Trust principle has a valuable role to play in the administration of planning in Victoria. Indeed, current planning schemes, which are based on the Victoria Planning Provisions, are predicated upon the application of the National Trust principle. These schemes contain many provisions which require a permit to be obtained in specific circumstances, which are designed to regulate use or development in those specific circumstances. For example, there are specific controls in relation to the construction of buildings in wildfire areas, in areas prone to erosion, in areas susceptible to flooding and in BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 127

areas susceptible to land salinity. Similarly there are provisions in relation to the height of buildings, access on to main roads and the removal of native vegetation. Sometimes these specific controls are part of an overlay provision; sometimes they are the result of specific clauses of the scheme. If, upon an application for a permit under one of the specific provisions, the decision maker was required to consider the full panoply of planning considerations set out in sections 60 and 84B of the Planning and Environment Act 1987 and in clause 65 of each planning scheme, planning decision making would grind to a standstill. The Panel is uncertain why the application of ResCode (Clause 54) was extended to all dwellings in Heritage Overlay areas in residential zones irrespective of allotment size. It suggests that this imposes significant administrative costs on councils and compliance costs on landowners, and is one of the hidden consequences of applying the Heritage Overlay. As noted in Section 11.2.2, the administrative convenience of exemption from third party notice and appeal rights for minor works provided by Clause 43.01-4 is undermined by the lack of similar provisions in Clause 54. This means that everything must be advertised and is subject to objection and potential appeal. The Panel questions whether the additional costs and delays are justified by a discernible improvement in outcomes or whether there is a lot of work for little result. It considers the application of Clause 54 to the Heritage Overlay is something that should be very carefully reviewed.

11.4.7 Distinction between individual buildings and precincts In Section 10, the Panel has explored the distinctions between the nature of significance attaching to individual buildings and areas or precincts. As noted in Section 11.1, there were originally two sets of controls but these were collapsed into a single control with the introduction of the Heritage Overlay. This has led to a loss in understanding of the distinction and a perception that some decision-makers value contributory buildings less than individually significant buildings. The desire to redress this misconceived difference in importance has led many councils to develop quite proscriptive heritage conservation policies against demolition of any contributory buildings. Contributory buildings are often nominated in an incorporated document.

The Panel questions whether the failure to distinguish between heritage areas and buildings of individual significance within the Heritage Overlay is sustainable. At the very least, the Panel suggests the differences in the nature of the significance of the two and approaches to their management should be expounded in a Planning Practice Note.

Recommendation ƒ The distinction between heritage places that are areas or precincts and those that are buildings of individual significance, and the differences in approach to their management under the Heritage Overlay, should be explained in the Planning Practice Note. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 128

11.4.8 ‘One size fits all’ The Heritage Overlay can apply to places of state and national significance or to large areas of period buildings none of which are of individual significance but which collectively have a heritage character that is considered to be of significance. The disparity between assets is extreme yet the same set of controls and the same set of expectations on the part of the community and councils apply to the whole spectrum.

In the management of these assets, there is sometimes a disparity perceived between the management by Heritage Victoria of heritage places of State significance and places of lesser significance managed by councils. It is the places of local significance that appear to be subject to a more onerous regime. Anecdotal evidence suggests that Heritage Victoria tends to have a more relaxed and ‘realistic’ attitude than some local councils when dealing with demolition, alterations and additions to heritage places.

The strict attitudes adopted by councils are evident in some of the local heritage policies that panels have dealt with. For example the proposed policy in the Yarra Amendment C43 is an example of an attempt to introduce a virtual blanket prohibition on any demolition of any buildings within the Heritage Overlay. Other policies reflect similar approaches to the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) but treat them as proscriptive rules rather than guidelines to assist in the exercise of the primary discretion embodied in the Heritage Overlay itself. The actual provisions of Clause 43.01 tend to be forgotten in the focus on the policy.

Control over demolition is one of the most attractive features of the Heritage Overlay. Coupled with the objectives of the overlay, which are to conserve and enhance heritage places of natural and cultural significance, the Heritage Overlay is the ideal planning tool to protect areas from change. In many instances, this is the purpose underlying its application. Once a place is protected by a Heritage Overlay, there is a general level of expectation within the community that no demolition under any circumstances will be permitted. The same expectation is evident irrespective of the level of significance of the place – state or local.

Whilst the Neighbourhood Character Overlay also contains a control over demolition, the purpose of this control is:

To prevent, where necessary, the removal of buildings and vegetation before the neighbourhood character features of the site and the new development have been evaluated. [Panel’s emphasis]

The Neighbourhood Character Overlay is not able to prevent change in the same way as the Heritage Overlay. Its control over demolition anticipates eventual new development rather than retention of existing built form. Its purpose is to ensure that new development respects neighbourhood character, existing or preferred. The reason for this is that the concept of neighbourhood character centres on the relationship of different elements within the urban landscape only one of which may be built form. It is not focussed solely on built form as the Heritage Overlay largely is. Nevertheless, in the community’s mind, there is a large overlap between the concept of neighbourhood character and heritage character, which the Panel suggests in Section 11.3.2 are really part of the same continuum.

In Section 11.3.1, the Panel looked at the concept of cultural significance and suggested that from the community’s perspective, virtually everything ‘old’ is perceived to have ‘heritage’ value and is regarded as sufficiently important to protect. In this sense it comes within the BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 129

definition of cultural significance in the Burra Charter, which is ‘aesthetic, historic, scientific, social or spiritual value for past, present and future generations’, although clearly the value it holds for present generations is different to the value for past generations. Likewise value for future generations is likely to be different, probably greater again, than value for present generations. Thus the Panel believes that cultural significance within the meaning of the Burra Charter must mean value for either the past, present or future generations, not the same value for all three.

The fact is however, that the Heritage Overlay is being stretched to cover everything that the community wishes to see protected from change, irrespective of whether the places fit comfortably within traditional notions of heritage significance or a strict application of the AHC criteria. The Heritage Overlay is being used as a ‘one size fits all’ umbrella of protection. The Panel believes this is distorting the role of the Heritage Overlay and creating inequities in the standards being accepted as a basis for the application of the Heritage Overlay.

The Panel has already commented on the discrepancies in quality evident between heritage studies and the lack of any effective evaluation of rigour where no panel assessment is required or where there is a lack of challenging, alternative expert evidence.

The same ‘one size fits all’ approach applies to the standards or rigour expected in the preparation of all heritage studies that are required to justify the application of the Heritage Overlay. No distinction is drawn in the Planning Practice Note between studies to support a heritage place of potential state significance compared to one of local significance, or between individually significant buildings compared to large precincts. Heritage studies are expensive, especially if they are prepared with the sort of rigour required by the findings of the Stonnington L47(D) panel. Yet this is the standard established by the Planning Practice Note on applying the Heritage Overlay. It is no wonder that when communities wish to see protected what they perceive to be heritage assets within large areas of municipalities and councils’ resources are limited, the quality of heritage studies suffers.

Therefore, in terms of planning controls, the level of strategic justification required and expectations about management outcomes, the Panel questions whether the concept of ‘one size fits all’ remains appropriate for the full spectrum of heritage places. Heritage places can range from buildings of state and national significance to the type of large heterogeneous areas with buildings dating from the 1850s to the 1940s and 1950s, as represented by Ballarat. The Panel suggests there should be a less onerous, more equitable approach to the protection of assets the community perceives to have cultural significance, but which recognises the discrepancies in levels of significance and the type of management appropriate to the different levels.

11.5 HERITAGE PLANNING POLICIES The decision guidelines in the Heritage Overlay require consideration of: ‘Any applicable heritage study and any applicable conservation policy.’ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) have been prepared by Heritage Victoria for the express purpose of providing assistance to decision makers in the assessment of planning applications for heritage places under the Heritage Overlay. They are intended to BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 130

ensure a consistency in decision making across the State. Regrettably, their draft status has not been advanced since they were released in 2000 with the result that councils have invested considerable resources in a proliferation of local heritage planning policies most of which simply duplicate the substance of the Draft Guidelines. However, they do so in a way that introduces unnecessary variations in detail and definition thus undermining the objective of consistency in planning controls intended by the Planning and Environment Act 1987 and the introduction of the VPPs. In addition, many councils seek to elevate their local planning policies to the status of a control rather than using them as guidance in the exercise of discretion, the ambit of which is proscribed by the Heritage Overlay.

The Panel suggests that resources could be saved and a desirable level of consistency reintroduced if the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) were finalised; they were included in the schedule to Clause 81 as an incorporated document in all planning schemes and were referred to in the decision guidelines in the Heritage Overlay. The Panel considers they are an excellent set of guidelines, far superior to many of the local planning policies on heritage that it has seen. They should be known and used far more widely than at present in accordance with their stated purpose, which is to ensure a consistency in decision-making across the state.

The Panel notes that an aspect of the Victoria Heritage Strategy 2000-2005 provides as follows: Protection of places at the local level The Heritage Council, in conjunction with the Department of Infrastructure, will develop a model of agreed protocols to assist local government authorities to comply with the provisions of the Heritage Act 1995 and the Planning and Environment Act 1987, as they relate to the protection of heritage assets. This program will work with the current review of the Department’s Local Government Heritage Guidelines 1991. The protocols will help to add clarity by recommending the use of more consistent grading and terminology in heritage studies, conservation policies and planning schemes. This commitment lends support to the Panel’s recommendation.

Recommendation ƒ The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be finalised and included in the schedule to Clause 81 as an incorporated document in all planning schemes. The decision guidelines in the Heritage Overlay should require that they be considered in the exercise of all discretion under the Heritage Overlay.

11.6 OPTIONS FOR REFORM The Panel believes that the Heritage Overlay should be reviewed. In the process, it believes the opportunity should be taken to introduce changes to the structure of the Heritage Overlay to recognise two broad categories of assets within the continuum of heritage significance, namely: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 131

ƒ Acknowledged and well-documented heritage places of high significance. These are the heritage ‘gems’ at the upper end of the scale of national, state and regional significance. ƒ Other places of local heritage significance or areas exhibiting heritage character. The Panel suggests introducing a two-tier structure to the Heritage Overlay based on the above categories. ƒ Level 1 would include individual buildings or areas of state or regional significance whose heritage significance has been established on the basis of a rigorous application of established AHC criteria.81 The heritage significance set out in the statement of significance would not be open to challenge (except at the time of the amendment applying the overlay). The expectation would be that a permit would not be issued for demolition except in exceptional circumstances. ƒ Level 2 would include other buildings or areas having prima facie local heritage significance on the basis of assessment against a set of simplified criteria designed for the assessment of local significance. The prima facie heritage significance could be challenged at the time of application for a planning permit. The expectation would be that a permit could be issued for demolition on the basis of identified criteria, which would include that: − The building is not of individual heritage significance and is not contributory to the heritage significance of an area; or − The demolition will not adversely affect the significance of the heritage place (bearing in mind that the heritage place may be the individual building or a broader area); or − Other planning considerations outweigh retention of the building. The Panel believes that a two-tier system of this nature would acknowledge the resources necessary to undertake heritage studies of the rigour necessary (but sometimes not achieved) to establish the AHC criteria as required by the current Planning Practice Note on applying the Heritage Overlay. It would enable a heritage study to establish heritage significance at a prima facie level but would reserve the right for this significance to be reviewed at the time of a planning permit application. This would recognise the limits on resources and enable them to be focussed on individual buildings or sites at the time when the issue of establishing their particular significance is most relevant, namely at the time of a planning permit application for demolition. It would enable large areas of heritage character to be protected but without imposing the same rigidity on expectations about management that presently exist with the ‘one size fits all’ version of the Heritage Overlay. This set of expectations may be appropriate in the case in the case of the acknowledged and best heritage ‘gems’, but can be quite inequitable in other cases.

The level 1 controls would be based on the premise of unequivocally identifying what we want to keep. The level 2 controls would be based on the premise of identifying what we don’t want to lose without serious thought.

81 The Panel suggests the test of rigour should be that posed by the panel in Hobsons Bay C17: “rigorous assessment would be that level of assessment that is sufficiently thorough as to provide a high level of confidence that any further research or analysis would have only a low probability of providing further, verifiable information of direct relevance to the grounds on which a building’s heritage significance would be established.” BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 132

In the process of reviewing the Heritage Overlay, the Panel suggests the following options should also be considered: ƒ Remove all external paint controls over previously painted surfaces. It is rare that a building in a heritage place will be painted in such an outlandish colour that it will adversely affect the heritage significance of the place. In Section 9.6 with respect to control over external painting, the Panel stated it is not convinced that the slight risk of an inappropriate colour scheme, which is not a heritage colour scheme, justifies the administrative burden and cost of enforcing this control. Paint is an ephemeral finish that will be renewed over time. It is also subject to fashion and taste. There is a strong current fashion that favours heritage colours for heritage buildings. The Panel believes it will be more effective and cost efficient to rely upon fashion than control to achieve this end.

Sometimes the need for external paint controls in commercial zones is supported on the basis that painting can constitute an advertisement. However, there is a separate requirement for a permit to externally paint a building if the painting constitutes an advertisement. It could therefore be argued that this would safeguard inappropriate painting which constitutes an advertisement either in commercial zones or elsewhere. On balance however, the Panel considers it may be simpler to require a permit in a business zone than to have an enforcement argument after the event.

If a two-tier system of heritage controls is introduced as suggested by the Panel, it may be appropriate, if thought necessary in order to achieve legitimate heritage objectives, to allow an option to control external painting for level 1 heritage places. It should not be an option for level 2 heritage places. The Panel believes this reform would remove a substantial administrative burden on councils and reduce compliance cost for property owners. ƒ Delete reference to land in a Heritage Overlay from Clause 54 (ResCode). ƒ Introduce more exemptions for permits in line with the type of parameters produced by Ballarat. This could be done by changes within the overlay or by encouraging greater use of incorporated plans. The Panel supports the use of incorporated plans in conjunction with the Heritage Overlay as a means of exempting development from the need for permits where the permit will serve no useful purpose. It believes that many more councils could make use of this device to ease administrative burdens and reduce costs to the community associated with heritage controls.

Finally, there remains a need for continued professional development to assist planners in implementing the Heritage Overlay on a day to day basis. This is especially needed in the inner Melbourne municipalities where in excess of 50% of the municipality is covered by a Heritage Overlay and ready access to heritage advisers remains difficult.

Recommendation The review of the Heritage Overlay should consider the following suggestions: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 133

ƒ Introduce a two-tier structure of heritage significance, which would involve different standards in the initial justification of heritage significance, different opportunities to challenge heritage significance and different expectations about demolition. ƒ Remove external paint controls over previously painted surfaces. ƒ Delete reference to land in a Heritage Overlay from Clause 54 (ResCode). ƒ Introduce more exemptions for permits.

11.7 CRITERIA FOR ESTABLISHING LOCAL SIGNIFICANCE At present, the guidelines that are most commonly used to assess heritage significance, and those that are identified in the Planning Practice Note on applying the Heritage Overlay, are the AHC criteria for the Register of the National Estate. There are eight broad AHC criteria with sub-sections, which are set out in full in Appendix A. The eight broad criteria are: ƒ Criterion A: its importance in the course, or pattern, of Australia’s natural or cultural history ƒ Criterion B: its possession of uncommon, rare or endangered aspects of Australia’s natural or cultural history ƒ Criterion C: its potential to yield information that will contribute to an understanding of Australia’s natural or cultural history ƒ Criterion D: its importance in demonstrating the principal characteristics of: (i) a class of Australia’s natural or cultural places; or (ii) a class of Australia’s natural or cultural environments ƒ Criterion E: its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group ƒ Criterion F: its importance in demonstrating a high degree of creative or technical achievement at a particular period ƒ Criterion G: its strong or special associations with a particular community or cultural group for social, cultural or spiritual reasons ƒ Criterion H: its special association with the life or works of a person, or group of persons, of importance in Australia’s natural or cultural history. The Stonnington L47(D) panel report contained a detailed analysis of some of these criteria and their use. It concluded that:82

… [T]he AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration. In our view, much difficulty is caused by the uncertainty of, and various interpretations of, the application of these criteria to the local level.

We recommend that Council should seek State Government support to a review of these criteria for use at the local level. State (Heritage Victoria is the obvious body with the appropriate responsibility. The

82 Stonnington L47(D) Panel Report (March 2000) page 5 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 134

AHC criteria provide the obvious basis for such criteria, but the elaboration and illustrative examples are the critical features that are required to assist Councils and the community in this matter.

An argument against this recommendation may be that the introduction of different criteria will only strengthen gaps in the system of heritage protection. At present, heritage studies are undertaken for a range of objectives including assessing the heritage significance of places for inclusion in one of three relevant lists (Register of the National Estate, Victorian Heritage Register, Heritage Overlay). It would be very difficult for study teams to work with different criteria and, if anything, a more coordinated approach to criteria is required.

It may also be argued that the AHC criteria are well established and widely applied, and that the introduction of new criteria would lead to confusion.

The Panel does not have the answer to this. Nevertheless, in light of the difficulties that various panel reports have raised about the use of the AHC criteria for assessing local heritage significance, the Panel believes their use should be reviewed in the context of a review of the Heritage Overlay and the issues surrounding statements of significance and heritage studies.

The Panel notes that an aspect of the Victoria Heritage Strategy 2000-2005 provides as follows: Protection of places at the local level The Heritage Council, in conjunction with the Department of Infrastructure, will develop a model of agreed protocols to assist local government authorities to comply with the provisions of the Heritage Act 1995 and the Planning and Environment Act 1987, as they relate to the protection of heritage assets. This program will work with the current review of the Department’s Local Government Heritage Guidelines 1991. The protocols will help to add clarity by recommending the use of more consistent grading and terminology in heritage studies, conservation policies and planning schemes. It therefore appears that some action is contemplated, although whether it goes so far as to critically review the criteria used for the assessment of local significance is unclear. This commitment however lends support to the Panel’s recommendation on this matter.

Recommendation DSE should review the criteria used to assess local heritage significance and the use of such criteria. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 135

12. CONSIDERATION OF SUBMISSIONS

12.1 INTRODUCTION The Panel has responded to each of the matters raised by submittors, even though the Panel’s general recommendations in relation to some of the broader issues, such as changes to the Heritage Conservation policy, may have the effect of subsuming issues of detail raised in the following submissions.

12.2 REQUESTS FOR CHANGES TO PRECINCT BOUNDARIES

12.2.1 HO164: West Ballarat Heritage Precinct (Submission 13) Mr and Mrs Hawley have requested that the whole of their neighbourhood between Wendouree Parade and Sturt Street be included in the West Ballarat precinct. The precinct, as currently proposed, excludes a number of streets and larger properties on the south side of Wendouree Parade. Mr and Mrs Hawley argue that the whole of the area between Lake Wendouree and Sturt Street contributes to the visual amenity of both Lake Wendouree and Sturt Street.

Most of the buildings excluded from the precinct were erected following subdivision of larger properties after World War 2. The Council does not support inclusion of the excluded properties in the precinct because it does not consider that they reflect the heritage characteristics of the precinct.

The Heritage Study describes the precinct as containing substantially intact residential buildings dating from the 1870s to the 1940s. The study comments that almost all of the buildings in the precinct are individually significant or contributory, and refers to notable residences facing Wendouree Parade. The study further comments that: The scale of the houses within the precinct varies considerably from modest Victorian vernacular cottages to Federation and Inter-war bungalows to large two-storey Inter-war Georgian Revival residences. Even though they may have been constructed in different eras, the houses tend to be similar in scale according to their location within the precinct and the size of the allotments. Reference is also included in the study to more recent subdivisions of larger land holdings, including the former Bishop’s Palace site, which are considered to have interrupted the historic pattern of substantial detached residences in mature garden settings. A number of the areas excluded from the precinct are these more recent subdivisions.

However, despite the fact that the original subdivision pattern on the south side of Wendouree Parade has been altered and new housing has been erected in the area, the Panel agrees BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 136

with Mr and Mrs Hawley that these streets and larger properties should be included in the West Ballarat Precinct. The Panel has formed this view for a number of reasons.

Firstly, the Heritage Study states that the precinct is important: ... for the way in which it links together some of the main themes in the historical, social and architectural development of Ballarat. The areas currently included in the precinct have been developed through an ongoing process of subdivision and development, and the more recent developments that have been excluded from the precinct are part of that process. The Panel considers that inclusion of these properties in the precinct would illustrate the continuing ‘historical, social and architectural development of Ballarat’.

Secondly, the Panel during its inspection of the precinct noted that the more recent housing along Wendouree Parade was generally substantial housing set in well established gardens, and was compatible with the overall character of the West Ballarat precinct.

Thirdly, the housing in the area between Wendouree Parade and Sturt Street (and in particular the housing in Wendouree Parade) is an important component of the landscape setting of Lake Wendouree. The Heritage Study has assessed the Lake Wendouree precinct as an area of State significance. The Panel considers that the boundaries of the West Ballarat precinct fail to take appropriate account of the close relationship between Lake Wendouree and the substantial housing and well established gardens on properties fronting onto the lake. Furthermore, the Panel considers that exclusion of properties on the south side of Wendouree Parade from the Heritage Overlay could open up opportunities for inappropriate development that would have an adverse effect on the landscape setting and aesthetic significance of the lake.

However, whilst the Panel supports inclusion of the properties in the overlay, it also notes that property owners have not been given an opportunity to comment on the proposal. The Panel therefore considers that this should be the subject of a separate amendment.

Recommendation The Council should prepare a planning scheme amendment that includes in the West Ballarat Heritage Precinct the properties between Wendouree Parade and Sturt Street that are currently excluded from the precinct.

12.2.2 HO166: Central Ballarat Heritage Precinct (submission 6) Ms Beggs Sunter, on behalf of the Ballarat Citizens for Thoughtful Development has submitted that a number of significant heritage areas have not been included in the overlay, including the area bounded by Creswick Street, Macarthur Street and Beaufort Crescent.

No detailed evidence was presented to the Panel to support of inclusion of this area in the precinct. Furthermore, property owners in the area have not been given an opportunity to comment on the proposal. The Panel was advised that Council proposes to carry out further investigation of this area to assess its heritage significance, and if appropriate, to include additional properties in the overlay area through a further planning scheme amendment. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 137

The Panel supports Council’s proposal to further investigate inclusion of this area in the Heritage Overlay at a later stage.

Recommendation The Council should investigate inclusion, at a later time, of the area bounded by Creswick Street, Macarthur Street and Beaufort Crescent in the Central Ballarat Heritage Precinct.

12.2.3 HO168: South Ballarat Heritage Precinct (submissions 6 and 14) Mrs Hellyer (submission 14) appeared before the Panel in support of her submission. Mrs Hellyer raised concerns about the lack of consultation with property owners in relation to the proposed heritage controls. She also objected to potential interference with her rights of property ownership and stated that she wished to have her property at 504 Skipton Street deleted from the controls.

The Panel notes that the existing interim heritage controls have applied to the property since they were introduced in 2001, although Mrs Hellyer advised she had no knowledge of the interim controls and commented that she would not have bought the property had she known of this constraint.

The property at 504 Skipton Street is at the eastern edge of the South Ballarat Heritage Precinct. The dwelling is a single storey, 1940s brick villa, and is adjoined by Victorian dwellings to the south and shops of the same vintage to the north. The Council submitted that the dwelling at 504 Skipton Street contributes to the heritage significance of the precinct and for that reason Council does not support deletion of the property from the precinct.

The Heritage Study describes the precinct as follows: It is characterised by a heterogeneous combination of substantially intact residential buildings, which were constructed from the early 1860s (or possibly earlier) to the 1940s, and into the early 1950s. They are interspersed with a notable collection of cultural/community, commercial and educational buildings constructed from the 1850s onwards. The precinct is also characterised by the formal grid layout of nearly all of its streets, most of which feature avenues of mature to semi-mature trees; by scattered areas of grassed and treed public and private open space ..... and by numerous well-maintained private gardens, some of which contain notable mature tree specimens. Furthermore, the precinct is specially distinguished by the substantial integrity of its original engineering infrastructure, particularly as identified by the extensive network of bluestone spoon drains and gutters that can be seen along almost every road in the precinct, generally in conjunction with wide grass gravel/grass shoulders. The South Ballarat Heritage Precinct covers a very large area comprising approximately 20 streets. Five of the submissions received came from property owners in this precinct (submissions 9, 14, 17, 31 and 37).

During its site inspections the Panel noted the strong grid layout of the precinct, the wide and often tree lined streets, the substantially intact dwellings from early development periods of the city, and the significant churches, schools, shops and hotels within the precinct. A number of buildings within the precinct are individually listed in the schedule to the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 138

The Panel considers that the dwelling at 504 Skipton Street has a scale and form that is compatible with the heritage character of the precinct. Furthermore, the Panel considers that the adjoining buildings are likely to be assessed as either significant or contributory. The Panel therefore does not consider it appropriate to exclude the property at 504 Skipton Street from the Heritage Overlay.

Ms Beggs Sunter has suggested extension of the South Ballarat or Lydiard Street precincts to include an area adjacent to the Yarrowee River. No detailed evidence was presented to the Panel to support of inclusion of this area in the precinct, and property owners have not been given an opportunity to comment on the proposal. The Council proposes to further investigate the heritage significance of some properties in the area, including the White Flat Oval and grandstand.

The Panel supports Council’s proposal to further investigate inclusion of individual properties in the Heritage Overlay at a later stage.

Recommendation The Council should investigate inclusion, at a later time, of the area adjacent to the Yarrowee River, referred to in Ms Beggs Sunter’s submission, in the South Ballarat Heritage Precinct.

12.2.4 HO169: Waller Estate Heritage Precinct (submission 1) Mr Adams objects to the inclusion of 16 Waller Avenue, within the Waller Estate, in the Heritage Overlay.

The Waller Estate is a remarkably intact example of a private residential subdivision developed through the 1950s by a consortium of builders and real estate agents - the Waller Syndicate. The Heritage Study refers to the subdivision as an important local example of ‘entrepreneurial private property development that began to take hold in post war Australia.’ 83 Furthermore, the subdivision, through its curvilinear street layout and open space, is a notable departure from established grid pattern of the surrounding area and is an example of the changing approach to subdivision layout of the post war period.

The majority of houses within the estate were built by the Waller Syndicate and most were designed by the architect John Muir. The houses are examples of the Post-war Suburban architectural style and ‘most appear from the front to be substantially as originally built ’84. The houses are modest, single storey and detached, and are predominantly of brick veneer construction. Garages are located at the rear of the houses. Fences, where they exist, are generally low brick fences, and side fences in the front setback area are also generally low. These features provide for clear views across the estate, and help to emphasise the consistency of building form throughout the estate.

The Heritage Study has assessed the estate as being of historic, architectural and aesthetic significance at a Local level.

83 Hansen Partnership et al, City of Ballarat Heritage Study, April 2003 84 Ibid BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 139

Mr Adams in his submission provided a detailed description of the changes that have been made to the dwelling at 16 Waller Avenue and argued that these changes have affected the heritage significance of the dwelling.

The Council in its submission to the Panel did not support deletion of the property from the Heritage Overlay.

The Panel carried out an inspection of the Waller Estate, including 16 Waller Avenue, and noted the consistency of building style throughout the estate and the remarkable intactness of the original building stock. The Panel noted in particular the single storey form of buildings and the open nature of the front setback area, with low front and side fencing and no garages or carports intruding into the front area.

The estate provides a very good example of a place where issues of urban character and heritage come together and overlap. The 1950s avant-guard subdivision layout and the consistency and intactness of the Post-war Suburban style housing stock throughout the estate combine to provide a very strong and readily identifiable neighbourhood character. The Panel considers that the neighbourhood character of the estate is significant and should be protected. The question then arises: Is the significance of the estate one of urban character alone or has the estate also heritage significance?

The Heritage Study in its assessment states that the architectural significance of the estate satisfies AHC criteria D2 and E1. These AHC criteria are listed in Appendix A.

The Panel considers that the subdivision layout and the housing within the estate do provide an excellent intact example of town planning principles and architectural style of the 1950s, and demonstrate important characteristics of urban development of that time. For that reason the Panel considers that the estate does satisfy AHC criterion D2 and therefore does have heritage significance. For that reason the Panel is satisfied that application of a heritage overlay to the estate is appropriate.

Turning now to Mr Adams’ submission, the Panel notes that whilst the dwelling at 16 Waller Avenue has been modified, the modifications have not changed the basic form or character of the dwelling. The dwelling is single storey and detached, and is clearly recognisable as an example of the Post-war Suburban housing architectural style. Furthermore, the single garage is located at the rear of the house, and there is low fencing and a manicured garden within the front setback area, that is in keeping with the rest of the estate. The Panel therefore does not consider that the modifications to the dwelling are a valid ground for deletion of the property from the overlay. Furthermore, the Panel notes that 16 Waller Avenue is located near the centre of the estate. Even if the modifications to the dwelling had rendered it inconsistent with the overall character of the estate the Panel does not consider that removal of one inconsistent property from the centre of a precinct is appropriate.

The Panel therefore agrees with the Council in relation to this submission, and does not support deletion of 16 Waller Avenue from the overlay.

The Panel, in reviewing this submission has looked more closely at the proposed policy provisions relating to the Waller Estate precinct. The Panel considers that insufficient emphasis has been given in the Policy Basis and Objectives sections to the single storey form of housing in the precinct. The Panel considers that second storey additions or replacement BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 140

2-storey buildings could have a significant detrimental impact on both the neighbourhood character and heritage value of the precinct. The Panel therefore considers that greater reference to the single storey form of the dwellings should be included in any policy that applies to the precinct.

The Heritage Conservation Policy is examined in detail in Section 10. The Panel finds that there are a range of shortcomings with the policy and recommends substantial change. In particular, it recommends in Section 10.5 that the 19 precinct policies be deleted although it also recommends that: Any new local precinct policy should only be included if it is necessary to achieve an outcome or objective that would not otherwise be met through an application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) or a proper consideration of the Ballarat Heritage Study Stage 2. The Panel believes the Waller Estate may be one precinct where the particularly homogeneous character of the precinct requires a separate local precinct policy. This is a matter that the Council should consider further in the context of its overall consideration of the Panel’s recommendations about the Heritage Conservation Policy.

12.2.5 HO173: Mount Pleasant / Golden Point Heritage Precinct (submissions 6, 40) Mr and Mrs Wood, owners of 502 Grant Street (submission 40), object to inclusion of their property in the Heritage Overlay. The property contains a new dwelling that does not contribute to the heritage significance of the precinct. Mr and Mrs Wood oppose inclusion of their property in the precinct as they consider that the heritage controls will be a significant constraint on future development of their property

Whilst the property does not contribute to the significance of the heritage precinct the Council does not support deletion of the property from the overlay. It argues that the allotment size and pattern, and the setbacks of the building are compatible with the heritage precinct. Furthermore, the Council argues that the proposed controls will impose only limited controls over this ‘not significant’ property.

The natural south-eastern boundary of the Mount Pleasant/Golden Point precinct is Tress Street. However, the boundary appears to have been extended along the south side of Grant Street to take in the former Golden Point Primary School site. The Primary School building is referred to in the Heritage Study. The site is no longer used as a school and it is likely to be the subject of a development proposal sometime in the future. The Panel accepts that the Primary School buildings warrant heritage protection and that the site should be included in the overlay. Between the Primary School site and the main precinct area is a former timber church and a dwelling from the Victorian era, and the submittors property. The Panel considers that the Victorian era church building and adjacent dwelling would be assessed as contributory buildings in the precinct and for that reason should also be included in the precinct. For mapping purposes it also follows that the dwelling at 502 Grant Street should be included in the overlay. However, as a non-contributory property it would not be subject to the same level of control as other contributory properties in the precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 141

Ms Beggs Sunter submitted that the Mount Pleasant/Golden Point precinct should be extended southwards to include a number of 19th century houses.

Once again, no detailed evidence was presented to the Panel to support of inclusion of this area in the precinct, and property owners have not been given an opportunity to comment on the proposal. The Council, in response to this submission commented that some individual sites in the area referred to by Ms Beggs Sunter may warrant inclusion in the overlay as individual sites, but that there is no evidence to support inclusion of the whole area in the overlay.

The Panel recommends that Council investigate inclusion, at a later time, of some of the sites south of the Mount Pleasant/Golden Point precinct, referred to by Ms Beggs Sunter, in the Heritage Overlay as individual heritage places.

Council, also commented that the property at 819 Laurie Street, Mount Pleasant has been included in the precinct, but that this is not supported by the Heritage Study. This property is at one end of the precinct and the Council suggests that the property should be removed from the overlay.

The Panel supports Council’s position in relation to extension of the precinct and removal of 819 Laurie Street, Mount Pleasant from the Heritage Overlay.

Recommendation ƒ The Council should investigate at a later time inclusion in the Heritage Overlay some of the sites south of the Mount Pleasant/Golden Point precinct, referred to by Ms Beggs Sunter ƒ The property at 819 Laurie Street, Mount Pleasant should be deleted.

12.2.6 HO175: Humffray Street Heritage Precinct (submission 8) Submission 8 relates to the property at 260 Humffray Street North. The property at 260 Humffray Street North comprises a single storey shop and dwelling located on the south-west corner of Humffray Street North and Lane Street. The shop contains a number of the features of commercial buildings in the street identified in the Heritage Study, including a skillion post verandah projecting over the footpath, and the shop roof concealed behind a parapet. The shop is currently used as a barber’s shop and the verandah posts are painted in the traditional red and white stripes.

Mr Burtt, the owner of the shop, objects to heritage controls that would restrict the way in which he could alter the appearance of his shop. He states in his submission that: I feel that if in the future I wanted to change my image, what I do to the appearance of my shop without altering it’s structure is none of the city’s business. If I wanted the building shocking pink, that should be my right. Mr Burtt also criticised the Council for requiring replacement of the original bluestone guttering in front of his family house in the same precinct with a concrete channel. He argues that this requirement was inconsistent with the heritage values of the precinct.

The detailed description of the Humffray Street precinct in the Heritage Study refers to the: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 142

‘heterogeneous combination of substantially intact, single storey, detached residential buildings constructed from around the 1860s to the 1940s and interspersed with a small number of commercial and cultural/community buildings from the 1860s onwards.’85

Humffray Street developed from an early bullock track into the gold mining settlement adjacent to Black Hill. However, by the late 1850s the track had been transformed from a rough track to ‘a wide thoroughfare fronted with houses and the occasional store and hotel86’. The following is a description of the precinct contained in the Heritage Study: The character of this area is important to Ballarat as it maintains the feeling of a mining settlement more strongly than elsewhere. The area retains an organic form of an unplanned commercial thoroughfare of a mining settlement, featuring curves related to the topography...... The streetscape qualities created by commercial buildings built to the pavement level, many with post verandahs; in particular those located at street corners or on the curvature of the road and closing vistas emphasise the organic development of the street. The Council in its submission to the Panel did not support deletion of the property from the Heritage Overlay.

The Panel accepts that the precinct has significance because of its association with the early development of Ballarat, and because of its layout and the extent of intact remnants of that early development, including buildings, trees and engineering infrastructure. In particular, the precinct provides information relating to the history of post contact occupation of the area. The Panel also accepts that the shop and dwelling at 260 Humffray Street is a typical example of commercial development in the precinct and demonstrates characteristics of development of the precinct during the period from the 1860s and the 1940s. The Panel is therefore satisfied that inclusion of the property in the heritage overlay is appropriate.

However, the Panel also notes that Mr Burtt’s concerns appear to relate mainly to control over external paint colours. Control over external painting of a building in a Heritage Overlay only applies: ƒ If the schedule to the overlay identifies the place as one where external paint controls apply ƒ If it is proposed to paint an unpainted surface ƒ If the painting would constitute an advertisement The proposed schedule to the overlay does not identify the Humffray Street precinct as one where external paint controls apply. Therefore the only control over external painting of a building will be where it is proposed to paint an unpainted surface or where the painting would constitute an advertisement. The Panel considers that paint controls in these circumstances are appropriate.

The Panel, in reviewing this submission has also considered the impact of the proposed policy provisions on the future development of 260 Humffray Street North. Whilst the Heritage Study makes considerable comment about the form and nature of commercial buildings in the precinct, including projection of post verandahs over the footpath, little reference to commercial buildings has been included in the policy provisions. Similarly, whilst the Heritage

85 Hansen Partnership et al, City of Ballarat Heritage Study, April 2003 86 Ibid BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 143

Study refers to the demonstration of engineering infrastructure development in the precinct, the policy includes no reference to retention of the remnants of early drains, kerbs, gutters and other infrastructure.

A general review of the proposed Heritage Conservation policy is contained in Section 10 of this report, and recommendations in relation to changes to the policy are contained in that section.

12.2.7 HO176: Bridge Mall/Bakery Hill Heritage Precinct (submission 6) Ms Beggs Sunter submitted that the Bridge Mall/Bakery Hill precinct should be extended southwards to Steinfeld Street. As commented in relation to other precincts, no detailed evidence was presented to the Panel to support of inclusion of this area in the precinct. Furthermore, property owners have not been given an opportunity to comment on the proposal.

The Panel therefore does not support inclusion of this area in the Heritage Overlay.

12.2.8 HO178: Ballarat East Civic Heritage Precinct (submission 6) Ms Beggs Sunter submitted that the Ballarat East Civic precinct should be extended westwards to Humffray Street. Once again, no detailed evidence was presented to the Panel to support of inclusion of this area in the precinct.

Council’s submission commented that the Heritage Study did recommend that the area should be the subject of further analysis, and that the chimney stack at 102 Humffray Street may be suitable for inclusion in the Heritage Overlay.

The Panel does not support inclusion of this area in the Heritage Overlay at this stage, but does support further investigation of the area, with a view to possible inclusion of all or parts of the area in the overlay in a future amendment.

Recommendation The Council should investigate inclusion, at a later time, of some or all of the area, referred to by Ms Beggs Sunter, in the Ballarat East Civic Heritage Precinct.

12.2.9 HO179: Eureka Street Heritage Precinct (submissions 6, 24) Mr Marshall (submission 24) has objected to inclusion of 3 Charlesworth Street in the Heritage Overlay. A new dwelling has recently been constructed on the land. Furthermore, the land is located on the edge of the Eureka Street precinct and is the only property fronting Charlesworth Street that has been included in the precinct.

The Council in its submission to the Panel agreed that the property has little connection with the Eureka Street precinct and commented that the property appears to have been included in the precinct as a matter of ‘mapping convenience’. The Council does not oppose deletion of the property from the overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 144

Mr Marshall, in his submission provided a full description of the surrounding land uses and argued that Charlesworth Street (including his property) has no heritage significance.

The Panel notes with interest that properties on the south side of Charlesworth Street are all included in HO160 - the Eureka Historic Precinct (the site if the Eureka stockade), and that this site is also included on the Victorian Heritage Register. However, despite its proximity to this important historic site, the Panel agrees that the property at 3 Charlesworth Street has no heritage significance and does not contribute to the proposed Eureka Street Heritage Precinct. Furthermore, the property does not impact on the nearby Eureka stockade site. The Panel therefore supports deletion of the property from the overlay.

Ms Beggs Sunter submitted that the Eureka Street precinct should be extended by inclusion of two separate areas in the precinct. The Council submission did not support extension of the precinct, but did acknowledge that a number of individual properties south of Callow Street did warrant further investigation.

The Panel does not support inclusion of these areas in the Heritage Overlay at this stage, but does support further investigation of the area, with a view to possible inclusion of individual properties in the overlay in a future amendment.

Recommendation ƒ The property at 3 Charlesworth Street should be deleted. ƒ The Council should investigate, at a later stage, the areas referred to by Ms Beggs Sunter with a view to including individual properties in the Heritage Overlay

12.2.10 HO 181: Buninyong Heritage Precinct (submissions 2, 5, 21, 35, 41) Mr Allen (submission 2) expressed concern that the proposed heritage controls in Buninyong do not cover sufficient area. He submitted that the overlay should extend further south along Warrenheip Street, that it should be extended eastwards along Learmonth Street to take in the street trees to Lal Lal Street, and that it should include Royal Park.

The Council does not support extension of the overlay eastwards along Learmonth Street to protect the street trees. Whilst the submittor referred to these trees as an Avenue of Honour, the Council responded that the trees are only normal street tree planting and are not an Avenue of Honour. The Council submission did, however, suggest that the significance of Royal Park should be further investigated, as well as Hasties Springs, with a view to including these sites in the overlay in a future amendment.

The Panel, during its inspection of Buninyong also noted that the extent of the overlay southwards along Warrenheip Street appeared to be appropriate, and that the properties south of Simpson Street do not appear to warrant inclusion in the overlay. The Panel further considers that the properties along Warrenheip Street, north of Eyre Street, do not contain buildings that warrant extension of the overlay over that part of Buninyong.

The Panel agrees that the overlay should not be extended along Learmonth Street, and supports Council’s proposal to further investigating the significance of Royal Park and Hasties Springs with a view to including the sites in the overlay in a future amendment. However, the Panel considers that the overlay should not be extended further south along Warrenheip BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 145

Street, and that the northern limit of the overlay in Warrenheip Street should be brought back to the south side of Eyre Street.

Ms Beggs Sunter on behalf of the Buninyong and District Historical Society (submission 5) requested inclusion of the dry stone walls in Buninyong in the heritage overlay. The Panel was informed that a controls over dry stone walls is currently being investigated, but that the result of that investigation may be three to four years off. The Council will give consideration to introducing heritage controls over dry stone walls once this investigation is completed.

The Panel supports the Council’s approach in relation to this matter.

Mrs Lillis (submission 21) is opposed to heritage controls over Buninyong, and her submission is supported by a petition signed by 20 residents of Buninyong (submission 41). The matters raised by Mrs Lillis relate primarily to loss of property rights, which are considered elsewhere in this report. The Council’s response to Mrs Lillis’ submission referred to the Heritage Study which concluded that the precinct is of local heritage significance and warrants heritage protection.

The Panel accepts that the Buninyong precinct (apart from the northern part of Warrenheip Street) is of local heritage significance and warrants inclusion in the heritage overlay.

Mr Smith, the owner of 208 Winter Street, Buninyong (submission 35) has objected to inclusion of his property in the Heritage Overlay. The Council, in its submission to the Panel commented that the property is a significant heritage place and is possibly of State significance. The Council does not support deletion of the property from the overlay.

Mr Smith and his wife purchased the property in 1965. Since that time they have researched the original style of the dwelling and have gradually carried out work on the dwelling. Mr Smith strongly opposes introduction of the heritage precincts into the Ballarat Planning Scheme and considers the introduction of heritage controls to be patronising of property owners who are working to protect formerly neglected properties.

The Heritage Study makes no specific mention of ‘Clifton Villa’, but does refer to the picturesque Victorian Gothic style dwellings that provide notable landmarks in the precinct. ‘Clifton Villa’ is a typical example of the Victorian Gothic architectural style.

The Panel agrees with Council that ‘Clifton Villa’ contributes to the heritage significance of the precinct and should remain within the precinct.

Recommendations ƒ Delete the properties north of Eyre Street in Buninyong, apart from 206 Winter Street. ƒ The Council should: − Investigate the significance of Royal Park and Hasties Springs, with a view to including these sites in the Heritage Overlay, in a future planning scheme amendment. − Give consideration to inclusion of dry stone walls in the Heritage Overlay, once the current Statewide investigation into dry stone walls is completed. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 146

12.3 INCLUSION OF INDIVIDUAL SITES (SUBMISSION 6) Ms Beggs Sunter submitted that sites identified by community groups and previous heritage studies need to be considered for future incorporation in the Heritage Overlay. Ms Beggs Sunter included with her submission a 22 page list of properties that should be further considered. Council agrees that further investigations should be undertaken, and the Panel commends the Council commitment to carrying out further heritage assessment work.

Recommendation The Council should carry out an on-going review of potential heritage places, as funding permits.

12.4 MAPPING ISSUES (SUBMISSIONS 23 AND 32) Mr Manton (submission 23) expressed concern that significant and contributory places are not mapped as part of the planning scheme documents, and for this reason it is not possible to determine whether policies in Clause 22.15 relating to significant or contributory places apply to a particular property.

The Council submission acknowledged that failure to map significant and contributory places in the precincts is a flaw, and would lead to difficulties in implementing the policy. To address the problem, Council proposes to replace all references in Clause 22.15 to ‘significant’, ‘contributory’ and ‘not significant’ places with two descriptions of places: ‘significant’ and ‘not significant’. Definitions of ‘significant heritage places’ and ‘not significant places’ are proposed to be included in the Heritage Conservation policy, and the different types of places are to be identified within an incorporated document: Ballarat Heritage Precincts – Statements of Significance (2004). However, the way in which the different places are to be identified has not yet been decided by Council. The places may be mapped or may be identified by lists of ‘significant’ and ‘not significant’ places.

This matter is discussed in greater detail in Section 10 of this report, and recommendations in relation to changes to the amendment are contained in that section.

Mr Manton also commented that the Heritage Overlay maps need to be amended to show existing individual heritage places.

The National Trust (submission 32) commented that the precinct maps could be improved by making them more legible and by including all street names on the maps.

Council has acknowledged that the Heritage Overlay maps need to be amended to show existing individual heritage places, and that the precinct maps in the policy need to be amended to make them more legible. The Panel supports these proposed amendments to the Heritage Overlay maps and the precinct maps. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 147

The Council also referred to errors in the existing heritage overlay that need to be corrected. Several individual heritage places are listed in the schedule but are not shown on the planning scheme maps. These are: ƒ HO2, Beaufort House, Beaufort Avenue, Alfredton; and ƒ HO23, Former Drill Hall, Curtis Street ƒ HO137, Former Shire Hall, High Street, Learmonth ƒ HO138, Barnfield Cottage and Barn, Kennedys Road, Miners Rest

Recommendation ƒ The Heritage Overlay maps should show individual heritage places within the broader heritage precincts, and any maps in the Heritage Conservation Policy should show all street names and other information that will make them more legible. ƒ The following properties be shown as included in the Heritage Overlay on the planning scheme maps: − HO2, Beaufort House, Beaufort Avenue, Alfredton − HO23, Former Drill Hall, Curtis Street − HO137, Former Shire Hall, High Street, Learmonth − HO138, Barnfield Cottage and Barn, Kennedys Road, Miners Rest

12.5 INCORPORATED PLAN (SUBMISSIONS 23, 29, 30)

12.5.1 Parks and gardens Mr Adam Parrott from the Council’s Parks and Environment Section (submission 30) has expressed concern about the need to obtain a planning permit for minor works in parks and streets covered by the Heritage Overlay, and the consequent impact on Council’s ability to carry out these works in a timely and efficient manner. Mr Parrott has requested inclusion of exemption from a permit requirement for these works in the incorporated plan.

Works referred to by Mr Parrott include: ƒ installation of park furniture such as picnic tables, seats, litter bins, drinking fountains ƒ construction of paths and trails ƒ erection of signs, vehicle barriers and fencing ƒ installing and repairing irrigation, drainage and other infrastructure ƒ installing playground equipment, barbeques and picnic shelters ƒ installing, removing and relocating statues, memorials, sculptures ƒ planting and general landscape works BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 148

ƒ tree removal and pruning. Most (if not all) Council parks are included in the Public Park and Recreation Zone. Within that zone most of the above works are exempt from a permit requirement, including buildings or works shown in an incorporated plan which applies to the park. Furthermore, Clause 62.02 of the VPPs exempts from the need for a permit (unless a permit is specifically required in any other part of the planning scheme): ƒ a fence ƒ a sign ƒ roadworks ƒ street furniture ƒ repairs and routine maintenance to an existing building or works ƒ removal, destruction and lopping of trees and other vegetation Thus most routine Council works within parks and streets do not normally need a permit.

However, under the Heritage Overlay provisions a permit is required to construct, demolish or externally alter a building, to carry out works, to display a sign, and to remove, destroy, prune or lop a tree if tree controls apply to the heritage place. Furthermore, the Heritage Overlay specifically states that construction of a building or carrying out of works includes a fence, roadworks and street furniture (other than traffic signals etc).

The Heritage Overlay does however exempt from the permit requirement: ƒ repairs or routine maintenance which do not change the appearance of the heritage place; and ƒ anything done in accordance with an incorporated plan specified in the schedule. The Council’s submission to the Panel recommended an investigation into developments that are appropriate to exempt from a permit requirement through application of the incorporated plan. However, Council’s submission recommended that the amended incorporated plan be prepared as part of a subsequent planning scheme amendment.

The Panel agrees with Mr Parrott that the permit requirements in the proposed Heritage Overlay may hamper efficient delivery of minor (and sometimes urgent) works in parks and streets throughout the proposed precincts.

On the other hand, many parks and gardens are of heritage significance. The heritage significance often depends on the planting, path layout, park/street furniture and structures, memorials and the like, which even minor, unconsidered works may interfere with. It is for this reason that works and development within parks and streets are not automatically exempt from the need for a permit under the Heritage Overlay as they are in other places. However, the Heritage Overlay is structured so that if a proper plan of management is prepared, which takes account of the heritage significance and identifies how maintenance and new works will be carried out in a way that respects heritage significance, the management pan may be made an incorporated plan under the schedule to the overlay. In such case a planning permit will not be required under the Heritage Overlay for any works or development done in accordance with the management plan. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 149

The Panel notes that development in a number of parks affected by the proposed overlay controls is currently guided by masterplans, management strategies or conservation policies. A Conservation Analysis and Policy and a Masterplan and Management Strategy have been prepared for Ballarat Botanic Gardens. Similarly, there is a conservation policy and masterplan for the Eureka Stockade Reserve (which is already covered by a Heritage Overlay – HO160). Furthermore, masterplans have also been prepared for Buninyong Botanic Gardens, City Oval, Eastern Oval and a number of other reserves. Mr Parrott in his submission referred to a number of other relevant guiding policies: There are also a number of other policies and standards that dictate how we undertake minor development works in parks and streets. These include: the parks Identification Signage Manual and the Policy for signs in Public Reserves (signs), the prescribed Landscape Character areas for the City (vegetation styles), the Streetscape Policy (new street tree planting styles, street furniture etc), the open space strategy (park furniture), the Eastern Gateway strategy and various other documents for City Entrances (planting styles and themes). The Panel considers that the potential problems for the Council’s Parks and Environment Section created by the proposed Heritage Overlays are substantial and that resolution of these problems should not be left to a planning scheme amendment that may be prepared some time in the future. The Panel agrees with Mr Parrott that the existing masterplans, strategies and policies, which relate to streetscape works and works in a number of the parks affected by the proposed overlay, could provide a good basis for the development of appropriate exemptions from a permit requirement. The Panel therefore considers that the existing masterplans, strategies and policies relating to parks and streetscape works should be reviewed and their relevance to the heritage precinct objectives assessed. Where they are found to be relevant, an exemption from the permit requirements would be appropriate.

There are two ways in which this could be handled. The specific works exempted could be included in the revised incorporated plan. Alternatively, and preferably, a management plan based on the relevant studies/policies etc, for each park or heritage street could be prepared. Each would then be separately included in the schedule as an incorporated plan. The Panel prefers this option because each management plan can be customised to the extent necessary to reflect the specific heritage significance of each place. Much of this work should already be done. Council could prepare a pro-forma management plan suitable for use across the municipality, which would then have the details for each heritage place included. This would include the statement of significance and other information necessary to establish the heritage significance of component elements of the park/street. It would then set out management and maintenance plans, and details of any new works proposed, ensuring that they took proper account of the heritage significance. Any work falling outside the parameters of the management plan would require a permit. It would become standard Council practice for parks and gardens employees and contractors to work in accordance with management plans.

The Panel also notes that the proposed scope of the incorporated plan is limited to the 19 proposed heritage precincts. The existing heritage place: HO160 - Eureka Historic Precinct contains the Eureka Stockade Reserve, and there is an adopted conservation policy and masterplan for that reserve. The Panel considers that Council should investigate whether it is appropriate to include the Eureka Historic precinct in the scope of the incorporated plan, and amend the schedule to the overlay to refer to the incorporated plan in relation to the precinct. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 150

12.5.2 External paint controls Cinque Morrow, solicitors on behalf of Mr Etchells (submission 29) expressed concerns about exemptions from paint controls included in the incorporated plan. Mr Etchells submitted that the paint controls affecting only buildings that face Victoria Street within the Victoria Street precinct is ‘pandering towards the tourist dollar’.

The Council responded to Mr Etchells submission by commenting that whilst it is desirable to include exterior paint colours in all heritage areas, this would significantly increase the number of permit applications, and the decision was therefore made to include paint controls only where they already exist.

The issue of external paint controls is discussed in detail in Section 9.6 where the Panel supports minimal control over external painting.

The Panel, in reviewing the external painting provisions in the proposed incorporated plan has also noted that some of the precinct reference numbers are incorrect.

12.5.3 Minor works Mr Manton (submission 23) has expressed concern that the proposed heritage controls are excessively permit oriented. He suggests that the use of the incorporated plan (that sets out matters that do not need a permit) should be expanded. The Council submission, in response to Mr Manton’s concerns, proposed a substantial amendment to the incorporated plan that would reduce the permit requirement for developments in the heritage precincts. These and other changes to the incorporated plan are discussed in detail in Section 9.5.

Mr Manton also commented that it is inappropriate to include Decision Guidelines and Reference Documents in the incorporated plan. The Council accepts that the decision guidelines are inappropriate and proposes to delete them from the incorporated plan. The Panel supports this deletion.

Recommendation ƒ Council should prepare a series of management plan for parks, gardens and streets within the Heritage Overlay based on a review of all existing masterplans, strategies and policies that relate to streetscape works and works in parks within all heritage precincts, including the Eureka Historic Precinct (HO160). The management plans should establish management and maintenance plans, and details of any new works that may be undertaken, ensuring that they take proper account of the heritage significance of each place. The management plans should be included as incorporated plans in the schedule to the Heritage Overlay. ƒ The incorporated plan should be modified to: − Correct precinct numbers − Delete the decision guidelines and reference documents BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 151

12.6 HERITAGE CONSERVATION POLICY (SUBMISSIONS 3, 4, 23 AND 32) The National Trust (submission 32) commented in relation to Clause 22.15 that: ... where it states that “all diseased dying street trees be replaced with tree of same or an appropriate equivalent species”, it may be better to qualify this by saying, “all diseased and dying significant or contributory street trees .....” The National Trust comment appears to relate to an early version of the amendment. The exhibited Heritage Conservation policy included as policy to: ƒ Encourage replanting with a similar type of tree where the removal of a significant street tree is unavoidable. In reviewing the tree protection controls in the policy, the Panel has noted that a number of precincts with no tree protection controls have as objectives (and in some cases policy) in the Heritage Conservation Policy: to protect existing tree plantings. These precincts are: West Ballarat, Sturt Street, Waller Estate, Lydiard Street, Mount Pleasant/Golden Point, Learmonth and Buninyong. On the other hand, the policy relating to Creeks and River Channels (which does have tree protection controls) contains no objectives or policy relating to tree protection.

The Panel has discussed the Heritage Conservation Policy in Section 10 where it has concluded that the precinct policies are unnecessary because they add nothing extra to what is already in the statements of significance in the Ballarat Heritage Study Stage 2 or should be taken into consideration under other decision guidelines. The anomalies referred to above further reinforce this conclusion.

The National Trust also commented on the policy to ‘encourage fences above 1.2 metres in height to be constructed in a style which corresponds to the style of the place. The National Trust considers that the policy should be to discourage all fences in excess of 1.2 metres.

In response the Council argued that there might be circumstances where a fence in excess of 1.2 metres is appropriate. The Panel was also informed that Council provides an education and advisory service that offers guidance on appropriate fencing styles, including height of fences. Furthermore, Council proposes to develop guidelines on the fencing styles that are appropriate to the architectural style of the place.

There is general acceptance that inappropriate fencing can affect not only the heritage significance of a precinct, but also its urban character. Front fencing is one of the many areas where heritage and urban character issues overlap. Fence height is substantially an urban character issue relating to the visibility of houses and their front gardens from the street. Solid fences that are higher than 1.2 metres generally obscure views to houses and their front gardens and detract from the overall streetscape. It is clearly desirable that significant buildings and their gardens in heritage precincts should be visible from the street. However, visibility is not the only fencing issue in heritage areas. Fencing style that is appropriate to the architectural style of the building is probably more important. For example, a fence may be constructed that comprises panels of cast iron pickets installed between masonry piers that are well in excess of 1.2 metres in height. Such a fence may be a reconstruction of the original fence on the property and may be quite appropriate to the period of the building and to the overall streetscape. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 152

The Panel therefore considers that the policy in relation to fences proposed by Council is appropriate, particularly in view of the fact that Council proposes to prepare guidelines that provide information on appropriate fencing styles.

Mr Manton (submission 23) commented that the reference in Clause 22.15-4 to site analysis and design response ‘as specified in Clause 54 and 55’ of the planning scheme may be appropriate to residential developments, but not for commercial and industrial developments.

In response to Mr Manton’s submission the Council proposes to reword the clause to provide a separate dot point relating to commercial, community or industrial buildings and to amend the dot point relating to residential developments appropriately.

Mr Manton also commented that the requirement in Clause 22.15-4 for an application for demolition to be accompanied by an application for new development is inappropriately expressed. He suggests that the policy should be reworded to state that a permit will not be granted for demolition unless a permit for development of the land has been, or is to be simultaneously, granted. The Council agreed with Mr Manton’s suggestion.

However, whilst the Panel supports the principles agreed to between Council and Mr Manton, it has concerns about the complexity of the policy generally. These concerns and the Panel’s recommendations in relation to the Heritage Conservation Policy are set out in Section 10.

In relation to the policy applying to Soldiers Hill heritage precinct, Mr Manton made comment on a number of matters of detail.

He commented that in view of the precinct’s proximity to the central business district and the railway station, a balanced approach to new development needs to be taken. The objective of ensuring that new development does not detract from the significant and contributory places in the precinct should be offset with a policy of encouraging new development that provides additional housing without detracting from the heritage values of the precinct.

Council, in response, commented that it is inappropriate to try to address the issue of encouraging appropriate new development in close proximity to facilities through the Heritage Conservation Policy, and further commented that: Modifications proposed to the local policy on heritage conservation will clearly identify sites that are not significant and where Council would support redevelopment. In this way objectives relating to encouraging new development which takes advantage of the precinct’s proximity to the city and public transport will be able to be achieved. The Panel agrees with the Council’s response, and considers that the appropriate place for the type of statement sought by Mr Manton is in the MSS. The issue of balancing competing objectives is discussed in Section 7. There is further discussion about the strategic basis for the Heritage Conservation Policy in Section 10.2.

Mr Manton also commented that: The objective of encouraging building separation through detached buildings is not appropriate in all circumstances in this precinct. Attached dwellings already form significant elements in parts of this precinct, and in general terms are an appropriate design response to maximising utilisation of this highly accessible area. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 153

Council, in response commented that detached housing is a common element in the precinct and the policy seeks to ensure that new development is consistent with this element. However, Council agreed to amend the statement to: Encourage detached development. The citation for the Soldiers Hill precinct in the Heritage Study, whilst stating that the majority of houses in the precinct are detached, also states that the precinct is characterised by a heterogeneous mixture of buildings and that there are a number of houses that are built directly to a side boundary. In view of the heterogeneous nature of housing in the precinct, and the fact that there are already a number of attached and semi-detached houses in the precinct, the Panel does not consider it appropriate to include as an objective: ‘encouragement of detached housing’. The Panel would therefore not support an objective and policy relating to detached housing.

The Panel notes that similar objectives and policies have been included for other precincts, such as the Central Ballarat precinct where housing is a heterogeneous mix and where there are a number of terrace rows and semi-detached housing pairs. The Panel considers that where there is a heterogeneous mix of housing and where there are significant or contributory buildings that are attached or semi-detached, any objective or policy of ensuring new development is detached is inappropriate.

Mr Manton also raised concerns regarding policy in relation to new buildings. He commented that: While new buildings should be sympathetic to the heritage values of the precinct, the policies should be clear that new buildings are not expected to reproduce an earlier period style. Issues of general urban character should be considered under the relevant Design and Development Overlay rather than the Heritage Overlay. The Council in its response to Mr Manton’s submission that issues of urban character should be dealt with under a DDO, commented that matters of heritage and urban character are closely linked and referred to decision guidelines in the Heritage Overlay that refer to both character and appearance. Council submitted that: Objectives and statements have therefore been included within the local planning policy on Heritage Conservation relating to new buildings, as new buildings have the potential to impact on the character and appearance of a heritage place. The Panel agrees that heritage and urban character issues do overlap and that one will usually impact on the other. The Panel therefore agrees with Council that a separate DDO to deal with issues that might be regarded as urban character matters is inappropriate.

The issue of reproduction architecture and related matters are discussed in Section 10.4. It is a complex matter and the Panel considers that the wording of the exhibited policy introduces inherent conflicts.

Mr Manton’s comments highlight the Panel’s concerns about the complexity of the proposed Heritage Conservation policy. The Heritage Conservation Policy comprises general policy relating to places affected by the Heritage Overlay, and specific policies relating to the individual heritage precincts. A complex array of detailed policies is set out in the general and individual precinct sections. In reading through the document it is very easy to lose track of BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 154

policies that have been included in an earlier section. An attempt has been made by Council to address this issue in the modified version of the policy presented to the Panel. However, the Panel considers that this document is still complex and confusing. The Panel believes that the policy should be further simplified by deleting repetitive or non-essential policies, and by rewording and reorganising the policies in a way that makes the policy much more user friendly. This is discussed further in Section 10.5.

Mr Manton has also referred to the policy to: ƒ ensure new garages are set to the rear of the allotment, or at least as far as possible to the rear of the house where dictated by an odd shaped lot. Whilst he accepts that a new garage in front of a significant or contributory building would detract from the heritage values of the building, he considers that location of garages in other respects is an urban design issue and should be considered under a DDO rather than a Heritage Overlay.

The new exemptions for outbuildings on ‘significant’ places, which are proposed to be included in the incorporated plan, will allow without a permit a detached garage setback 3 metres from the front facade of the existing building. Whilst the Panel does not agree that garage location should be considered under a separate DDO, it does not believe that the policy should seek to achieve something that is more restrictive than what would be allowed without a permit.

The Panel considers this is a further example of overprescription and confusion within the Heritage Conservation Policy. It believes a combination of the exemptions in the incorporated plan and an application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) to guide the exercise of discretion under Clause 43.01 will be entirely adequate.

Finally, Mr Manton referred to a confusing policy relating to the design of doors and windows. The Council agreed to modify the policy to: ƒ Promote residential buildings that incorporate the following design characteristics: − timber framed doors and windows that are in proportion to the form, mass and scale of the building. This is an issue of detail that the Panel no longer considers relevant given its general recommendations about the Heritage Conservation Policy in Section 10.

Mr Anderson (submissions 3 and 4) expressed concern that the last policy objective in relation to the Buninyong precinct may affect future sealing of the unmade roads in the township. The objective referred to is: ƒ To retain those elements which contribute to the nineteenth century character of Buninyong including grass verges with open street drainage. This policy does not relate to the sealing of roads, but only to the future treatment of the road verges and spoon drains. However, the Panel does note that the existing local planning policy in relation to Buninyong township at Clause 22.10 of the planning scheme refers to sealing of roads. Traffic management principles set out in that policy include: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 155

ƒ When access is required to new developed areas or for in-fill development, existing formed or sealed roads are to be used in preference to upgrading of unused or unformed roads. This will assist to minimise construction costs and ongoing maintenance costs to the community and will assist to maintain the existing township character. A review of Clause 22.10 does not come within the Panel’s terms of reference. Nevertheless the treatment of roads is an important aspect of maintaining character. The heritage character of an area is a matter that will need to be considered by Council in any decisions relating to the upgrading or maintenance of roads and drains within the heritage precincts.

This point emphasises the need to ensure that there is an integration between all council policies when new policies and overlays such as the Heritage Overlay are introduced.

12.7 INCORPORATED AND REFERENCE DOCUMENTS (SUBMISSION 23) Mr Manton commented on reference in the Heritage Conservation Policy to various guiding documents that are to inform decision-making. He commented that documents which will be essential to decision making must be incorporated documents and must not be left as reference documents, or as in some cases, left with an undefined status. He referred to the VPP Practice Note ‘Incorporated and Reference Documents’.

The Practice Note states that a document must be incorporated if: The document will be used to guide the exercise of discretion by the responsible authority... On the other hand: Reference documents provide background information to assist in understanding the context within which a particular policy or provision has been framed. A variety of different types of document may perform this role. They may be wide-ranging in their content and contain information not directly relevant to specific decisions under the planning scheme. The Practice Note also states that: There is no need to refer to a document if the substantive elements of the document have been included in the scheme in either the MSS, a local planning policy or a schedule, unless it contains additional useful information. The exhibited Heritage Conservation Policy makes reference to a large number of documents: ƒ Ballarat Heritage Study Stage 2, 2002, Hansen Partnership et al ƒ Ballarat Heritage Review Stage 1, 1998, Andrew Ward ƒ Ballarat Heritage Study, 1978 & 1981, Jacobs Lewis and Vines ƒ Camp Street Precinct Ballarat Conservation Management Plan, 1999, Allom Lovell and Associates ƒ Buninyong Conservation Study, 1983, Coleman Sutherland Conservation Consultants ƒ Buninyong Botanical Garden Management Plan, David Jones ƒ Ballarat Urban Character Study, 1999, John Patrick Pty Ltd et al BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 156

ƒ Ballarat Botanical Garden Conservation Analysis and Policy, vol 1 & 2, 1994, John Patrick Pty Ltd et al ƒ Ballarat Botanical Gardens Masterplan and Management Strategy, 1995, John Patrick Pty Ltd et al ƒ Lake Wendouree Heritage Conservation Analysis, 1994, Positive Space et al ƒ Ballarat Historic Landscapes, Trees and Gardens, 1983, P Lumley et al ƒ City of Ballarat Advertising Sign Guidelines ƒ City of Ballarat Streetscape Policy, 1991, Wilson Sayer Core ƒ City of Ballarat Policy for Landscape Installations in Public Open Space ƒ Australian ICOMOS Charter for the Conservation of Places of Cultural Significance (The Burra Charter) Some of the documents are listed under Clause 22.15-1 as Policy basis, some are listed under Decision guidelines as documents that the responsible authority may consider, and some are listed as Reference documents.

The Council in response to Mr Manton’s submission now proposes to develop an edited version of volume 2 of the Ballarat Heritage Study Stage 2 (which contains the full citations for each of the heritage precincts). The document will be referred to as Ballarat Heritage Precincts – Statements of Significance 2004 and will contain details of each precinct necessary for decision making, including identification of ‘significant’ and ‘not significant’ places within each precinct. It is proposed that this document will be an incorporated document. The other background documents will be listed as reference documents at the end of Clause 22.15-1.

The Panel supports this approach. It does not consider it is necessary to refer at all to the long list of previous planning studies apart from possibly the Ballarat Heritage Study Stage 2.

The National Trust (submission 32) has suggested incorporation of a list of National Trust classified places within each precinct. However, this is not supported by Council as listing of National Trust classified properties may lead to the assumption that the listed properties have a higher level of significance than other significant places.

The Panel agrees with the Council’s submission.

12.8 INADEQUATE NOTIFICATION & NON-AVAILABILITY OF REFERENCE DOCUMENTS (SUBMISSIONS 23, 35 AND 37) Mr Trevaskis (submission 37) and Mr Smith (submission 35) have expressed concern that notification of the amendment was not extensive enough. The Panel was informed that: ƒ Written notification was sent out to 12,500 property owners, and considerable effort was made to ensure that address details were correct. ƒ Notice of the amendment was placed in The Courier newspaper and Government Gazette. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 157

ƒ Media releases were published during the exhibition period. ƒ Information sessions were held for the Buninyong, Learmonth and South Ballarat precincts. The Panel agrees that all reasonable effort was made to inform property owners of the proposed amendment.

Mr Manton (submission 23) raised the issue that documents referred to in the exhibited amendment were not available for inspection at the DSE offices in Melbourne. Mr Manton commented that as a result of this statutory procedure requirements were not followed, and that ‘it would probably be beyond the scope of ‘modifications’ to now change the amendment so that it incorporates this material which was not part of the amendment as exhibited, and was not available for inspection with it.’

However, apart from a proposed summary version of volume 2 of the Ballarat Heritage Study Stage 2, it is now not proposed to refer to any of the reference documents in the Decision guidelines. The Panel was informed that the Ballarat Heritage Study Stage 2 was available on the Council’s website, and documentation sent to each person notified advised them of this. Furthermore, all reference documents were available for inspection at the Council offices on request.

The Panel is satisfied that in view of the modifications that are proposed to the exhibited documents, the statutory requirements for exhibition of the amendment have been adequately complied with.

12.9 LOSS OF OWNERS PROPERTY RIGHTS (SUBMISSIONS 8, 14, 17, 21, 31, 35, 37, 41) This issue was the most frequently expressed concern in relation to the proposed heritage controls. However, the level of concern in relation to the current heritage controls is significantly less than that expressed at the time the new format Ballarat Planning Scheme was exhibited. The Council, commented in relation to this issue that: The view that heritage controls are an intrusion on the rights and privacy of property owners still remains although it would seem that the majority of the Ballarat community has come to accept the need for such controls. This observation is borne out by the fact that only 40 submissions were received in relation to this amendment (and a number of those were in support of the proposed controls), and only three of the submitters wished to be heard by the Panel.

The Council submission referred to comments of other panels (Glen Eira C13 and Darebin C31) in relation to this issue. The planning controls are developed around the principle of net community benefit, and the rights of individual property owners are subservient to the important objective of preserving our heritage for present and future communities.

The Panel regards these as well established principles and does not consider that the concerns raised by these submitters provide grounds for rejecting the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 158

12.10 DEMOLITION CONTROLS ARE INAPPROPRIATE (SUBMISSIONS 9 AND 39) Mr Coffey and Mr Vernon both expressed concern about the policy of discouraging demolition of buildings. They comment that in many cases significant and contributory buildings are in a dilapidated state and property owners are unable to afford the high cost of restoration. Mr Coffey commented that: The cost of restoration may often exceed the realisable value of the home, leading to cheap improvements. Council, in response to these submissions commented that a permit application could be made to demolish a building covered by the overlay. The policy is intended to provide guidance on the information that should be submitted with an application ‘and the circumstances where a permit would or would not be granted’.

In relation to the financial implications of the controls, the Council commented that ‘the argument that to repair/redevelop a building as opposed to demolition and construction of something new has been rejected by a number of panels’. The Council referred in particular to comments contained in the Darebin C20 and Stonnington C5 & C6 Part 2 panel reports. The Stonnington C5 & C6 Part 2 panel report made comment that: Clearly, there will have to be a balance at some point between the interests of heritage conservation and the equitable interests of individual property owners...... [H]ardship, as it may financially affect the owners of properties of heritage significance … may be a relevant consideration in a future decision as to whether to allow alterations to, or demolition of, a heritage building. However, that decision is one to be made at the relevant point in time. The whole purpose of heritage controls is the protection of heritage place, and demolition controls are essential to providing that protection. This Panel agrees with the above comments of the Stonnington C5 & C6 Part 2 panel, and notes that the proposed policy requires an application for demolition to be accompanied by documentation that demonstrates various things, including: ƒ that the building or structure has structural defects incurred due to natural occurrences that cannot be economically remedied. This requirement indicates that Council does recognise that there will be circumstances where restoration of a building, or part of a building, is unaffordable and that demolition will be the appropriate course of action.

The issue is referred to also in Section 10.8.5.

12.11 NEED TO ENCOURAGE INNOVATIVE DESIGN (SUBMISSION 25) Mr Mooney has expressed concern that the prescriptive nature of the proposed heritage controls will stifle innovative and progressive building design. He refers to the eclectic mix of BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 159

building styles in Ballarat that has developed over time and suggests that the proposed controls will exclude contemporary building design from the heritage precincts and thus prevent the continuing evolution of the mix of building styles.

Whilst the Heritage Conservation Policy does encourage design excellence, the Panel shares much of Mr Mooney’s concerns. The Panel is concerned in particular about the policies relating to promotion of detached buildings and detailed design characteristics in new buildings. The Panel believes these policies may have the effect of promoting re-creation of heritage styles, rather than promotion of ‘contemporary architecture and innovative design’ referred to in the policy.

This issue is discussed in greater detail in Section 10.4.

12.12 COST OF CONTROLS & DEVALUATION OF PROPERTIES (SUBMISSIONS 8, 19, 23, 34, 37, 39) A number of submitters argued that the proposed controls would increase costs to property owners wishing to do building works through costs in fees and in documenting applications for quite minor works. They also argue that the proposed controls will increase the cost to Council (and ultimately to ratepayers) in administering the heritage controls.

Minor works with a value of $5000 or less do not attract a permit application fee. However, the Council does acknowledge that preparation of documentation required to accompany a permit application may be costly. Council, through use of the incorporated plan to exempt certain works from the permit requirement, is endeavouring to reduce costs to property owners (and to Council in implementing the controls). Costs of compliance is a major issue and the Panel supports Council’s endeavours to reduce circumstances where a permit is required. The issue is discussed further in various sections and the Panel suggests further refinement of the controls with a view to increasing permit exemptions.

Mr and Mrs Burtt (submission 8) are concerned that the proposed heritage controls will affect their ability to sell their home in the future, thus devaluing their property. In response, Council argues that the heritage overlay can make a property more attractive to some purchasers ‘who value the heritage significance of the site and see that the overlay will assist to protect those values.’ The Council acknowledges that the overlay will make a property less attractive to some people, but argues that the overlay ‘will be just one of the many factors that potential purchasers will consider when making a decision whether or not to buy.’

The Panel agrees with Council, that the overlay will be a positive feature to some people and a negative feature to others. However, there is no hard evidence that the overlay will have a significant impact on future property sales or on property values. In any event, the impact of changes to planning controls on individual property values is not a matter that is relevant in the assessment of those controls.

Mr Jones (submission 19) argues that maintenance costs on older buildings are more expensive and that owners of properties that are to be retained should be given financial BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 160

assistance to help with maintenance costs. The Council in response has commented that the overlay does not bring any requirement for increased building maintenance. Furthermore, there is some financial support available to owners of heritage properties through the heritage loan scheme.

12.13 TREE PROTECTION CONTROLS (SUBMISSIONS 15, 18,20, 32, 38) Tree protection controls are proposed in only four precincts: Lake Wendouree, Victoria Park, Creeks and River Channels, and Black Hill. However, Council in its submission informed the Panel that: The Ballarat Planning Scheme has applied a Vegetation Protection Overlay over parts of western and inner Ballarat where mature vegetation within private front gardens and street trees have been identified as making a significant contribution to the character of those areas. The schedule requires that a permit be obtained to remove a tree greater than 4 metres in height or the pruning of a tree greater than four metres in height that is not done to improve its health or appearance. It does not apply to trees less than 4 metres in height and to shrubs, herbs or grasses. The Council submission supports recommendations of the Ballarat Heritage Study Stage 2 that it investigate: ƒ Further extension of the Vegetation Protection Overlay to provide greater control over the removal of vegetation; ƒ Separate listing of trees which are of cultural heritage significance within the schedule to the Heritage Overlay. Any proposal to extend tree protection controls as a result of the investigation would be included in a further amendment to the planning scheme.

The proposed further work in relation to tree protection controls in Ballarat should help to address the concerns of Mr Jens, Mr Lawrence and Mr and Mrs Valentine. Mr Hinchcliffe expressed concern about the lack of control over extensive tree pruning to provide power line clearances, and the failure to plan for undergrounding of powerlines to address the problem.

Pruning of street trees is carried out in accordance with a code of practice prepared under the Electricity Safety Act 1998, and the VPPs exempt pruning carried out in accordance with the code of practice from the permit requirement in all the overlays that provide tree protection controls. However, the Panel was informed that Council’s proposed new MSS includes the following action to be pursued by Council: Progressively underground all overhead wires in those areas of the municipality covered by the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 161

12.14 MODIFICATIONS SUGGESTED BY COUNCIL Following exhibition of the amendment Council identified a number of errors in the descriptions of places in the existing schedule or duplication. The Panel supports correction of those errors. The corrections required comprise the following: ƒ Update the description of various heritage places to include a more accurate description, such as including the word ‘former’ where the site is no longer used for the described purpose ƒ Deletion of HO34 Dana Street School ƒ Deletion of HO35, St John of God Hospital Convent ƒ Deletion of HO52, Christ Church Anglican Hall, and inclusion of the hall in the description of HO50, Christchurch Anglican Cathedral ƒ Deletion of HO51, Wesley Church and Wesley Hall ƒ Deletion of HO99 ƒ Correction of the description of HO24, Former South British Insurance Co. ƒ Deletion of HO178, and inclusion of the site in the Lydiard Street Heritage Precinct Council also referred to the need to amend the exhibited amendment documents to reflect subsequent proposed changes. These amendments include: ƒ Changes to the instruction sheet by deleting reference to the multiple local planning policies and to inserting the incorporated plan following Clause 43.01. ƒ Changes to the Table of Contents to delete reference to the multiple local planning policies. ƒ Correction of the date of approval of Amendment C63 from 31 January 2002 to 31 January 2003.

Recommendations ƒ Make technical corrections to the existing schedule to the Heritage Overlay by: − Updating the description of various heritage places to include a more accurate description, such as including the word ‘former’ where the site is no longer used for the described purpose. − Deleting HO34 Dana Street School − Deleting HO35, St John of God Hospital Convent − Deleting HO52, Christ Church Anglican Hall, and including the hall in the description of HO50, Christchurch Anglican Cathedral − Deleting HO51, Wesley Church and Wesley Hall − Deleting HO99 − Correcting the description of HO24, Former South British Insurance Co. − Deleting HO178, and including the site in the Lydiard Street Heritage Precinct BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 162

ƒ Make the following consequential changes: − Change the instruction sheet by deleting reference to the multiple local planning policies and inserting the incorporated plan following Clause 43.01. − Change the Table of Contents to delete reference to the multiple local planning policies. − Correct the date of approval of Amendment C63 from 31 January 2002 to 31 January 2003.

12.15 OTHER MATTERS A number of other issues were raised in submissions that are not relevant to the amendment and are therefore not commented on by the Panel. The only comments that the Panel would make relate to the following.

Ballarat Railway precinct (Submission 23) Mr Manton sought clarification regarding the extent to which the former Ballarat Railway complex heritage place (HO49) has been included in the Lydiard Street precinct.

Council advised that all but two small areas of HO49 were included in the Lydiard Street precinct in the exhibited amendment. It is now proposed to include all of HO49 in the Lydiard Street precinct, and to delete HO49 from the precinct.

Require environmental impact plan where paint is to be stripped from exterior walls (Submission 11) The EPA raised concerns about discharge of water that has been polluted with paint stripping chemicals. The EPA considers that an environmental impact plan should be prepared where paint stripping is to be carried out. Council, in its submission commented that where a permit is required for work that will involve paint stripping the disposal of the resultant waste could be covered by permit conditions. However, where a permit is not required, Council has no control over the method of waste disposal.

The Panel has no further comment on this matter. It is not a matter that is relevant to consideration of the Heritage Overlay but a separate issue that should be addressed through other avenues.

Sustainable energy measures (Submission 11) The EPA also commented on the potential for energy savings in the renovation and/or retrofitting of buildings. In relation to this issue the Council commented that sustainable energy use is an issue taken up through Council’s MSS. The Council further commented that: The issue of how to achieve the balance of heritage development and sustainable energy use is worth investigating further and it is recommended that guidelines be prepared (with the BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 163

assistance of Heritage Victoria and the Sustainable Energy Authority) to assist property owners seeking to retrofit or develop properties within the heritage overlay. The Panel supports this recommendation.

Amendment needs to specifically delete the interim precincts from the maps (Submission 23) Mr Manton submitted that the amendment should specifically delete the interim precincts from the Heritage Overlay maps. However, the Council does not believe this is necessary because the effect of the amendment will be to delete the interim precincts.

This is a technical issue that Council should resolve with DSE. It does not require a recommendation by the Panel.

Inconsistent decision making (Submission 6, 29) A number of submissions referred to past inconsistent decision making by the Council in relation to heritage properties. However, this is not a matter that is relevant to the Panel’s consideration of the amendment. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 164

13. STRATEGIC ASSESSMENT GUIDELINES

As part of its assessment of Amendment C58 the Panel is required to assess the Amendment against the Strategic Assessment Guidelines contained in the General Practice Note on Strategic Assessment Guidelines for Planning Scheme Amendments. A copy of the General Practice Note is included in Appendix A.

The matters to be considered and the Panel’s response are as follows:

Is an amendment required? Yes. The application of a Heritage Overlay to places of heritage significance is necessary for their protection and enhancement and cannot be achieved in any other way.

Strategic justification What is the strategic basis for the amendment?

Amendment C58 relies upon the strategic justification provided in the MSS for protection of Ballarat’s heritage and on the work undertaken in conjunction with many heritage studies over the years for Ballarat. This work has culminated in the Ballarat Heritage Study Stage 2, which provides the basis for application of the Heritage Overlay in Amendment C58.

The strategic basis for the Heritage Conservation Policy, which forms part of Amendment C58, is discussed in Section 10.2. The Panel’s conclusion is that there is a strong strategic basis within the MSS for protecting the City’s heritage areas and maintaining the integrity of its heritage streetscapes. The Panel considers the existing strategic directions within the MSS provide justification for a strong policy against demolition of significant or contributory buildings in heritage precincts and for careful controls over new development.

The Panel believes that the emphasis being given to the retention of heritage built form over other policies of urban consolidation could be more strongly emphasised in the MSS and the link between Ballarat’s heritage and its economy could be strengthened to further reinforce the application of the Heritage Conservation Policy. However, whilst these are improvements that could be made to the wording of the MSS, they do not alter its basic directions or strategic support for heritage conservation.

Planning and Environment Act Does the amendment adequately address environmental effects?

Environmental effects are not a relevant issue in connection with this amendment. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 165

Does the amendment adequately address the relevant social and economic effects?

In terms of economic effects, the widespread application of the Heritage Overlay will carry an administrative burden for Council and high compliance costs for property owners. The Council has sought to lessen these effects by exempting a range of minor development, which is not expected to adversely affect heritage significance, from the need for a planning permit by inclusion in a revised incorporated plan.

On the other hand, the Council points to the economic benefits that flow to Ballarat as a result of its heritage and heritage character. The Amendment will indirectly benefit Ballarat’s economy by protecting this heritage character.

In terms of social effects, some submitters complained about the inhibition that the Heritage Overlay would place on their freedom to do things with their property. However, the Panel considers that this restraint will be offset by the wider community benefits associated with the protection of important aspects of Ballarat’s heritage.

Does the amendment comply with the requirements of the Ministerial Direction on the form and content of Planning Schemes?

Yes.

Do any other Minister’s Directions apply to the Amendment? If so, have they been complied with? Is the Amendment accompanied by all the information required by a Direction?

No other Minister’s Directions are applicable.

State Planning Policy Framework and Local Planning Policy Framework What aspects, if any, of the SPPF are relevant? How does the Amendment seek to implement and or support the MSS? What local planning policies will the amendment affect or be affected by?

The strategic context for Amendment C58 is identified in Section 5.

Zones, overlays and schedules. Does the Amendment use the most appropriate VPP tools to achieve the strategic objectives?

Yes.

To what extent do local provisions adopt a performance-based approach? What Planning Practice Notes are relevant? Is the amendment in accordance with any relevant Planning Practice Notes?

The most relevant Planning Practice Notes are the ones on applying the Heritage Overlay and writing a local planning policy. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 166

Amendment C58 is in accordance with the Planning Practice Note on applying the Heritage Overlay. The Panel considers that some aspects of this Planning Practice Note require review and it makes recommendations to DSE about this.

The Heritage Conservation Policy in Amendment C58 is not in accordance with some aspects of the Planning Practice Note on writing a local planning policy, particularly these relating to language, form and structure. The relevant aspects are discussed in Sections 9.2.4, 10.3 and 10.5. The Panel has recommended a rewriting of the policy as well as substantive changes.

Referral authorities Does the Amendment contain new formal or informal referral requirements?

No.

Outcome of the Amendment What is the cumulative effect of this amendment on the strategic directions of the planning scheme? Are the amendments and the desired outcomes clear?

Amendment C58 will operate to protect Ballarat’s heritage, which is an important aspect of strategic directions within the Ballarat Planning Scheme. However, it will have an adverse effect on the potential for increasing housing densities within existing areas. Opportunities for new development in areas with good access to existing services and facilities and close proximity to the central city will be reduced by the extensive application of the Heritage Overlay.

As the Panel notes in Section 8.3, this impact on other strategic directions within the planning scheme may well not constitute an impediment to sustainable growth in Ballarat due to the city’s unique circumstances. Unlike some other places, Ballarat may well have sufficient space to accommodate such growth without the need to intrude upon its heritage areas or there may be opportunities within parts of its heritage areas to recycle buildings to achieve more intensive housing densities. It may also be that the economic and other benefits associated with conserving and promoting Ballarat’s heritage outweigh the possible disbenefits associated with application of the overlay.

However, the Panel does not consider that these outcomes are as clear as they might be and it considers that these factors could be articulated more clearly in the MSS. This will be especially important at times when the objectives of the Heritage Overlay conflict with other strategic planning objectives. It will help to resolve the weight to be placed on respective objectives if there is some explicit guidance in the MSS about the way the Council views the balance. This should also be reflected in the policy basis forming part of the rewritten Heritage Conservation Policy. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 167

Metropolitan Strategy Minister’s Direction No. 9 concerning the Metropolitan Strategy is not applicable to Amendment C58. However, the Metropolitan Strategy has some relevance to Ballarat. Relevant aspects are identified in Section 5.2. The most relevant is:

Policy 3.1Promote the growth of regional cities and key towns on regional transport corridors as part of a networked cities model.

Melbourne 2030 envisages that Ballarat and other major regional centres will become a focus for accelerated development. Melbourne 2030 proposes to promote these cities as alternative growth centres. Issues associated with development of these cities, identified by Melbourne 2030, include: ƒ ... supporting development in those urban areas that can accommodate growth ƒ developing and reinforcing the distinctive roles and character of each city The Panel has noted above in the context of outcome of the amendment that Amendment C58 may have some impact on the achievement of the policy direction to accommodate accelerated growth although it will certainly support the policy direction to reinforce the distinctive role and character of the city. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 168

14. CONCLUSIONS & RECOMMENDATIONS

14.1 CONCLUSIONS The Panel has considered all the submissions referred to it and all the material presented at the hearings. Its conclusions are summarised in the Overview in Section 1. Based on the reasons outlined in this report the Panel makes the recommendations set out in the following Section.

The Panel has considered whether any of its recommendations affecting Amendment C58 warrant further exhibition or should be the subject of a new amendment process. It has reached the conclusion that they can all be dealt with as modifications to the exhibited amendment for the following reasons. ƒ The changes to the schedule to Clause 43.01 reduce the application of controls in the Heritage Overlay and respond to submissions made about the onerous burdens associated with the widespread application of the overlays. ƒ The changes to the incorporated plan do likewise. ƒ The changes to the incorporated plan rely upon the identification of non-significant buildings in a new incorporated document. The identification process will be based upon criteria in the statements of significance exhibited with Amendment C58. The effect will be to reduce the application of demolition controls in the Heritage Overlay to non-significant buildings. ƒ The new policy that would regard all other buildings as being contributory to the heritage significance of the relevant precinct would not preclude a challenge to this assumption at the time when a planning permit was made. Thus nobody’s rights to have the contributory status of their building determined on appeal would be removed by the incorporation of a new incorporated document designating non-significant buildings. Arguably, more detailed consideration is likely to be given to the contributory nature of a building at the time a planning permit application is made than at the time an amendment is introduced. ƒ The changes to the Heritage Conservation Policy that would see the general heritage policy deleted and replaced by an application of the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) do not change the primary intent or provisions of the exhibited policy. Rather the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) represent an improvement to the policy, introduce greater clarity, support the principle of consistency and reduce the proliferation of local planning policies. In general terms the Panel has concluded that no one would be disadvantaged by treating the changes recommended by the Panel as modifications to the exhibited Amendment C58 and this conclusion is reflected in the following recommendations. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 169

14.2 RECOMMENDATIONS

Amendment C58 The Panel recommends that Amendment C58 to the Ballarat Planning Scheme should be adopted as exhibited with the following modifications:

Strategic basis

1. The strategic basis for the amendment should be strengthened by giving more emphasis in the MSS to: − the retention of heritage built form over other policies of urban consolidation − the link between Ballarat’s heritage and its economy Local planning policy

2. Subject to the following recommendations, the Heritage Conservation Policy should be edited and rewritten to make it more comprehensible and to reduce the complex wording and structure.

3. The general heritage policy in Clause 22.15 should be deleted. It should be replaced by a simple policy to the following effect: It is policy to apply the incorporated Draft Guidelines for the Assessment of Heritage Planning Applications (2000) when considering applications under the Heritage Overlay. 4. The Council should consider if it wishes to make an exception to the general policy to apply the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) with respect to any specific matters such as: − Permits for signage. If so, the policy should state that it is policy to apply the City of Ballarat Advertising Sign Guidelines rather than the guidelines on signage in the Draft Guidelines for the Assessment of Heritage Planning Applications (2000). In this case, the City of Ballarat Advertising Sign Guidelines should be included as an incorporated document in the Schedule to Clause 81. − The need for a planning permit for replacement development before a permit for demolition is granted. 5. The general heritage policy should include a policy to the effect that all buildings within a heritage place that are not listed as ‘not of heritage significance’ within the incorporated document are considered to be prima facie contributory to the significance of the heritage place where they are located, but an applicant may establish to the satisfaction of the responsible authority that a building is not of contributory significance. In considering whether a building contributes to the significance of the heritage place the responsible authority should have regard to the criteria for establishing significance set out for each precinct within the relevant statement of significance.

6. The 19 precinct policies should be deleted. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 170

7. A local precinct policy should only be included if it is necessary to achieve an outcome or objective for a particular precinct that would not otherwise be met by considering the decision guidelines in Clause 43.01 or the Ballarat Heritage Study Stage 2, or applying the Draft Guidelines for the Assessment of Heritage Planning Applications (2000).

Incorporated documents

8. The Draft Guidelines for the Assessment of Heritage Planning Applications (2000) should be included as an incorporated document in the Schedule to Clause 81.

9. A new incorporated document, Ballarat Heritage Precincts – Statements of Significance (2004), should be included in the Schedule to Clause 81, which will: − Contain descriptions of each heritage precinct and their statement of significance extracted from the Ballarat Heritage Study Stage 2 − List all buildings not of heritage significance in each heritage precinct. Schedule to the Heritage Overlay

10. The tree controls in the schedule should be reviewed to ensure that they properly reflect the precinct descriptions in the Ballarat Heritage Study Stage 2 and statements of significance.

11. All external paint controls should be removed from the schedule except the Sturt Street Precinct (HO167), Lydiard Street Precinct (HO171), Bridge Mall/Bakery Hill Precinct (HO176), and Buninyong Precinct (HO181).

12. The following technical corrections should be made to the existing schedule to the Heritage Overlay: − Update the description of various heritage places to include a more accurate description, such as including the word ‘former’ where the site is no longer used for the described purpose. − Delete HO34 Dana Street School − Delete HO35, St John of God Hospital Convent − Delete HO52, Christ Church Anglican Hall, and include the hall in the description of HO50, Christchurch Anglican Cathedral − Delete HO51, Wesley Church and Wesley Hall − Delete HO99 − Correct the description of HO24, Former South British Insurance Co. − Delete HO178, and include the site in the Lydiard Street Heritage Precinct Incorporated plan

13. Subject to the following recommendations, the exhibited incorporated plan should be replaced by the revised incorporated plan set out in Appendix A. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 171

14. The incorporated plan should be modified to exempt demolition of a building not of heritage significance from the need for a permit.

15. The incorporated plan should be modified to take account of other recommendations relating to the designation of buildings as not of heritage significance and the consideration of all other buildings as of contributory significance.

16. The incorporated plan should be modified to reflect the changes to the schedule to the Heritage Overlay regarding external paint controls.

17. Council should work with land owners and traders in the Sturt Street Heritage Precinct(HO167), the Lydiard Street Heritage Precinct (HO171), the Bridge Mall/Bakery Hill Heritage Precinct (HO176) and the Buninyong Heritage Precinct (HO181) to develop an appropriate range of paint colours for the precinct. The incorporated plan should include a permit exemption for external paint work that is in accordance with the agreed range of paint colours for the Sturt Street Heritage Precinct (HO167), the Lydiard Street Heritage Precinct (HO171), the Bridge Mall/Bakery Hill Heritage Precinct (HO176) and the Buninyong Heritage Precinct (HO181).

18. Council should prepare a series of management plan for parks, gardens and streets within the Heritage Overlay based on a review of all existing masterplans, strategies and policies that relate to streetscape works and works in parks within all heritage precincts, including the Eureka Historic Precinct (HO160). The management plans should establish management and maintenance plans, and details of any new works that may be undertaken, ensuring that they take proper account of the heritage significance of each place. The management plans should be included as incorporated plans in the schedule to the Heritage Overlay.

19. The incorporated plan should be modified to: − Correct precinct numbers − Delete the purpose Maps

20. The Heritage Overlay maps should show individual heritage places within the broader heritage precincts, and any maps in the Heritage Conservation Policy should show all street names and other information that will make them more legible.

21. The following properties should be included in the Heritage Overlay planning scheme maps: − HO2, Beaufort House, Beaufort Avenue, Alfredton − HO23, Former Drill Hall, Curtis Street − HO137, Former Shire Hall, High Street, Learmonth − HO138, Barnfield Cottage and Barn, Kennedys Road, Miners Rest Heritage places included in the Heritage Overlay BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 172

22. The following properties should be deleted from the Heritage Overlay − The properties north of Eyre Street in Buninyong, apart from 206 Winter Street − 819 Laurie Street, Mount Pleasant − 3 Charlesworth Street, Ballarat East Consequential changes

23. The following consequential changes should be made to the exhibited documents: − Change the instruction sheet by deleting reference to the multiple local planning policies and inserting the incorporated plan following Clause 43.01. − Change the Table of Contents to delete reference to the multiple local planning policies. − Correct the date of approval of Amendment C63 from 31 January 2002 to 31 January 2003.

Further work by Council Inclusions in the Heritage Overlay

24. The Panel recommends that the Council should prepare a planning scheme amendment to include the properties between Wendouree Parade and Sturt Street, which are currently excluded from the West Ballarat Heritage Precinct, within the Heritage Overlay.

25. The Panel recommends that the Council should carry out an on-going review of potential heritage places as funding permits. In particular, the Council should investigate the following properties for possible future inclusion in the Heritage Overlay: − The area bounded by Creswick Street, Macarthur Street and Beaufort Crescent in the Central Ballarat Heritage Precinct. − Royal Park and Hasties Springs − The areas and sites referred to in the submission by Ms Beggs-Sunter adjacent to the Yarrowee River in the South Ballarat Heritage Precinct; south of the Mount Pleasant/Golden Point Precinct; Ballarat East Civic Heritage Precinct and individual properties − Dry stone walls, once the current statewide investigation into dry stone walls is completed. 26. The Panel recommends that the Council should prepare management plans for parks, gardens and other aspects of the public realm within the Heritage Overlay which it is responsible for and where vegetation is a component of the significance of the heritage place, where these do not already exist. The management plans should take proper account of the heritage significance associated with the place and should be included as incorporated plans in the schedule to the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004) 173

DSE 27. The Panel recommends that DSE should finalise the Draft Guidelines for the Assessment of Heritage Planning Applications (2000) and include them in the schedule to Clause 81 as an incorporated document in all planning schemes. The decision guidelines in the Heritage Overlay should be amended to require that the Guidelines are considered in the exercise of all discretion under the Heritage Overlay.

28. The Panel recommends that DSE should undertake a review of: − The criteria used to assess heritage significance at a local level and the use of such criteria. − The Heritage Overlay. 29. The Panel recommends that the review of the Heritage Overlay should consider the following: − A two-tier structure of heritage significance, which would involve different standards in the initial justification of heritage significance, different opportunities to challenge heritage significance and different expectations about demolition. − Removal of all external paint controls over previously painted surfaces. − Deletion of reference to land in a Heritage Overlay from Clause 54 (ResCode). − More exemptions for permits. − Integration of statements of significance with the provisions of the Heritage Overlay. − Clarification that the Heritage Overlay applies to heritage places shown on the planning scheme map. Heritage places may be listed in the schedule to the overlay, but in the event of a discrepancy, the map takes precedence. The purpose of the schedule is to identify whether any variations to the standard controls in Clause 43.01 apply to a particular heritage place. − Clarification of the relationship between incorporated plans in the Heritage Overlay and incorporated documents in other parts of the planning scheme. 30. The Panel recommends that DSE should amend the Planning Practice Note on applying the Heritage Overlay or prepare a new Planning Practice Note to address the following matters: − Heritage studies and the preparation of statements of significance to ensure they are oriented to their use in a planning context and are suitable for this purpose. − A direction that all places on the Victorian Heritage Register should be included in a Heritage Overlay. − The distinction between heritage places that are areas or precincts and those that are buildings of individual significance, and the differences in approach to their management under the Heritage Overlay. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

A. List of Written Submissions BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Submission No. Title Name Surname 1Mr Fred Nowland 2 Ms Jennifer Morrison 3 Jane Rutherford & Greg Henderson 4 Mr Robert Todd 5 Christopher Cody & Desmond Liew 6 Mr & Mrs Mark & Joanne Valentine 7 Mr Neil Jens 8 Ms Anne Beggs Sunter 9 Mr & Mrs John & Kaye Bennett 10 Ms Leanne Scott 11 Mr Roger Macauley 12 Mr Ewen Nevett 13 Mr Phillip Allen 14 Ms Michelle Elford 15 Mr Brian Coffey 16 Mr Trevor Lawrence 17 Mr Craig Hinchcliffe 18 Mr Ian Anderson 19 Mr Ian Anderson 20 Mr John Manton 21 J & J Jenkins 215 Lyons Street South 22 Mr John Vernon 23 Mr Mark Sacco 24 Mr Arthur Trevaskis 25 R J Marshall 26 Mr Frank Adams 27 Mrs Joan Hellyer 28 Mr & Mrs Alec & Betty Wood 29 Mr Richard Oakley 30 Mr Ian Smith 31 Mr Thomas Jones 32 Mrs Ethel Lillis 33 Mr & Mrs Graham & Ruth Hawley 34 Mr Walter Burtt 35 Mrs Linda Burtt 36 Mr Gary Smith 37 Mr Brendan Mooney 38 Ms Anne Beggs Sunter 39 Dr Celestina Sagazio 40 Mr Paul Nevett PETITIONERS J McNaughton Mr Tony Foyster Ms Rosalie Andrew GLewis Mr Neville French S Demirceviren A Parker A Claridge Mr & Mrs Patrick & Ethel Lillis Mr & Mrs George & Doris Eason Ms Helen Brooks Ms Yvonne Knight Mr David Holmes M J Robertsons BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Mr & Mrs E D & L E Matthews Mr & Mrs Ernest & Jean Emmlin Chris Rossiter Mr Jim Vagg Ms Karen Page Ms Meryl Peoples Jo Peoples Mr & Mrs L & R Hocking Mr & Mrs W & F Simpson Ms Dianne Masinskas Ms Andrea Simpson Ms Kim Pring Mr Michael Whiteside Ms Patricia Whiteside Ms Sandra Lafrensini Ms Raelene Orchard Ms Valma Baker Mr & Mrs Dawn & John Whykes Mr & Mrs Louise & Pascal Moreau Ms Margaret Jones Ms Jennfier Ahmed Ms Mona Westblade Mr Leo O'Loughlin SCoxall Ms Betty Bunting Mr & Mrs R & W Halston Ms Sylvia Snel Mr & Mrs Margaret & Norman Mould Mr Frank Hall Ms Alice Biggins Mr & Mrs L & A Habegger Mr & Mrs L & M LeMaitre T Spurgo R G Vagg Ms Joan Simpson D Turner Mr & Mrs Elizabeth & Mervyn York Ms Noelene Coombes Ms Lyn King Mr Ken Nicholls Mr Jim Clementson Mr Russell Nicholls Ms Elizabeth Smith Mr Jim Shaw Ms Nicole Pammet Mr Ian King Mr & Mrs B & R Nicholls Mr & Mrs A & G Brand JMcKee A Kicinski Chris Brennan I Riley Mr & Mrs L & I Smith BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

B. Clause 43.01 – Heritage Overlay BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

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F. Analysis of all Objectives, Policies & Decision Guidelines Applying to Heritage Places in Ballarat BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

TABLE 1 – OBJECTIVES

Objectives HO Head Precinct policy policy General: To implement the SPPF and LPPF, including MSS and local planning policies • To ensure that the cultural significance of heritage places is not diminished • by: - The loss of any fabric that contributes to the significance of the heritage place - Inappropriate new development To encourage conservation and development to be undertaken in accordance • with the standards of practice set by the current version of The Burra Charter: The Australian ICOMOS Charter for Places of Cultural Significance To conserve: To conserve and enhance heritage places of natural or cultural significance • (To encourage the retention, conservation and enhancement of significant • heritage places) To conserve and enhance those elements which contribute to the significance • of heritage places To conserve the early and late residential, commercial and cultural/community • Victorian, Federation and Inter-War places that demonstrate the significance of the precinct To encourage removal of inappropriate buildings, alterations and additions • and other elements that detract from the significance of a heritage place To promote restoration and reconstruction of the fabric of significant heritage • places if sufficient supporting evidence is available To support the appropriate ‘re-creation’ or ‘conjectural reconstruction’ of • fabric that has been removed from a heritage place, where sufficient supporting is available Demolition: To discourage the demolition of significant heritage places • New development: To ensure that development does not adversely affect the significance of • heritage places To encourage development within, or adjacent to, places subject to a Heritage • Overlay that is sympathetic to their character, scale, design, setbacks, form, bulk, building materials and colour scheme, and compatible with the cultural significance of those places To ensure that scale, mass and form of new development does not detract • from the significant and contributory places To retain the one and two storey height limit of the precinct • To encourage the use of traditional construction materials in the Precinct • To promote and support design excellence which uses a contextual approach • and positively supports the ongoing significance of significant heritage places Setting: To ensure the natural or cultural setting of a significant heritage place is • retained BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Objectives HO Head Precinct policy policy Streetscape: To protect and enhance streetscapes in heritage precincts, including their built • form and landscape qualities To conserve the landscape qualities of the roads within the precinct including • grass verges and tree lined character Views: To protect and enhance existing views, vistas and landmarks • Archaeological sites: To minimise disturbance of sites that are known to contain, or likely to • contain, archaeological artefacts Land use: To conserve specifically identified heritage places by allowing a use that • would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place (To consider allowing a prohibited use where it ensures that the heritage place • continues to be used and maintained, provided the use furthers the heritage and zone objectives of the Ballarat Planning Scheme and has regard to surrounding land use) BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

TABLE 2 – POLICY AND DECISION GUIDELINES

Policies and Decision guidelines HO Head Precinct policy policy General: The SPPF and LPPF, including MSS and local planning policies • The significance of the heritage place and whether the proposal will adversely • affect the natural or cultural significance of the place Any applicable heritage study and nay applicable conservation policy • Before deciding on an application the Responsible Authority must consider as • appropriate: - The extent to which the application meets the objectives and directions of this policy - The need to require, or prepare a heritage impact statement for any proposed development involving a significant heritage place - The need to require or prepare a conservation management plan to guide the implementation of any proposed development of a significant heritage place, including conservation works Demolition: Whether the demolition, removal or external alteration will adversely affect • the significance of the heritage place It is policy to not grant a permit for demolition unless a permit has already • been granted for the development of the land, or is to be simultaneously granted for the development of the land It is policy to allow the demolition of a place identified as not significant • under the planning scheme It is policy to discourage the entire demolition of significant heritage places • It is policy to consider the role that a significant heritage place plays in the • streetscape, in relation to the surrounding built environment, and in contributing to the cultural significance of an area rather than simply focus on the individual merit of the place It is policy to allow the demolition of part of a significant heritage place if it • will not affect the significance of the place, and the proposed development is considered to be sympathetic to the scale and form of the place It is policy to only support the demolition of those parts of a significant • heritage place that are structurally unsound, as evidenced by a professional structural engineering report identifying that they cannot be reasonably retained, or where a Statement of Significance produced by a heritage professional (as evidenced by membership of or eligibility for membership of Australia ICOMOS) demonstrates that the building is not of significance to the satisfaction of the Responsible Authority It is policy to require an application for demolition to be accompanied by • documentation that demonstrates: - that all viable options for the conservation of the place have been explored - that the building or structure has structural defects incurred due to natural occurrences that cannot be economically remedied - that the demolition involves the removal of later inappropriate modifications that are of no cultural significance, are not contributory to the cultural significance of the heritage place or are intrusive - that any significant fabric will be reinstated BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Policies and Decision guidelines HO Head Precinct policy policy New development: Whether the location, bulk, form or appearance of the proposed building will • adversely affect the significance of the heritage place Whether the location, bulk, form or appearance of the proposed building is in • keeping with the character and appearance of adjacent buildings and the heritage place Whether the proposed works will adversely affect the significance, character • or appearance of the heritage place It is policy to disregard the impact of buildings that are obviously atypical of • the streetscape when determining the appropriate form, scale and setback for new buildings or upper storey extensions to buildings in a heritage overlay It is policy to encourage the retention and conservation of original or early • fabric, including original fences It is policy to encourage external alterations and additions to a significant • heritage place that include preservation, restoration, or reconstruction of the place and its fabric in a way that relates to its original features and form It is policy to encourage the accurate reconstruction of original streetscape • elements such as fences, verandahs, shopfronts etc It is policy to promote the use of traditional building materials and techniques • in the reconstruction and alteration of significant heritage places It is policy to encourage the removal of paint from brick or masonry surfaces, • where appropriate, by non abrasive methods It is policy to encourage fences to be constructed in a style that corresponds to • the architectural style and era of the associated place It is policy to require that the design response for the construction or alteration • of dwellings or residential buildings, as required by Clause 54 and 55 of the planning scheme, also show: - that the proposed works will not affect the cultural significance of the heritage place - that the proposed works will not affect the cultural significance of an adjacent or surrounding heritage place It is policy to require that an application to construct a commercial, • community or industrial building be accompanied by a design response that shows: - that the proposed works will not affect the cultural significance of the heritage place - that the proposed works will not affect the cultural significance of an adjacent or surrounding heritage place - that it derives from, and responds to, neighbourhood characteristics including built form, scale and character of surrounding development, and any other notable features or characteristics of the neighbourhood It is policy to require new infill buildings in heritage precincts to be • sympathetic to adjacent heritage buildings while not reproducing historic detailing It is policy to encourage a contextual design approach for additions and/or • alterations to a heritage place and for new development. A contextual approach is where the alteration, addition or new development incorporates an interpretive design approach (generally derived through comprehensive site analysis). New development should be compatible with, and not overwhelm the heritage characteristics of neighbouring places, streetscapes and the natural and cultural setting. This approach can include: BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Policies and Decision guidelines HO Head Precinct policy policy - contemporary architecture and innovative design which is an important part of the contextual approach because it adds to the existing diversity and layering of styles through time. This layering is a defining feature in a number of areas and is therefore an important component of Ballarat’s heritage - accurate reproduction architecture may be employed in limited instances where detailed evidence, such as photographic evidence exists for that alteration, addition or new development It is policy to require that a Conservation Management Plan accompany • applications relating to the development and/or subdivision of a significant heritage place that is large, complex, or in highly original condition. The plan should be prepared in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 1999 It is policy to require an archaeological survey by a suitably qualified • archaeologist to assess the impact of proposed development on the archaeological significance of an identified or potential post-contact archaeological site, where such a proposal will result in ground disturbance It is policy to promote buildings that incorporate the following characteristics • (but not limited to): - detached buildings - hipped or gable roof form, with a pitch between 25-30 degrees or steeper - timber framed windows - galvanised corrugated iron or terracotta tiles roof materials - horizontal weatherboard or face brick wall construction materials It is policy to ensure building heights incorporate the following: • - the highest point of the roof should not be greater than the highest adjacent building, whereby the height of the roof should not be greater than the main (overall) adjacent ridge line - the proportion of the building roof should not be greater than the proportion of roof to walls of the building visually connected to it - the roof form and massing of the building should be drawn from the significant neighbouring buildings visually connected to it It is policy to ensure that development is detached and has side setbacks equal • to or greater than the existing building on the subject allotment It is policy to ensure that development has a front setback equal to or greater • than any adjoining building and no building (incl. garages, car parts, outbuildings) may occur in the front setback It is policy to ensure that garages are set to the rear of the allotment, or at least • as far as possible to the rear of the house where dictated by an odd allotment shape Streetscape: It is policy to ensure that grass verges are retained • It is policy to require the retention and appropriate conservation (using • traditional materials) of original and early engineering infrastructure including bluestone or brick channels, gutters and kerbs, wide grass/gravel shoulders to roads, early short span integrated concrete kerb and spoon gutters, flagstone, asphalt or early concrete footpaths and laneways It is policy to encourage replanting with a similar type of tree where the • removal of a significant street tree is unavoidable BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Policies and Decision guidelines HO Head Precinct policy policy Subdivision: Whether the proposed subdivision or consolidation will adversely affect the • significance of the heritage place Whether the proposed subdivision or consolidation may result in development • which will adversely affect the significance, character or appearance of the heritage place It is policy to encourage subdivision, boundary re-alignment or consolidation • that retains on a single allotment the important elements and features which form part of the significance and understanding of the heritage place, and retains the important view-lines between these elements It is policy to encourage any proposed subdivision, boundary re-alignment or • consolidation to be consistent with that of the surrounding area in terms of its layout and lot size, and be able to support buildings that are similar in scale, bulk and setbacks to those in the surrounding area It is policy to require an application to subdivide land, re-align boundaries or • consolidate land to provide documentation showing: - The significant elements of the heritage place including those elements that contribute to the setting - That the proposed subdivision, boundary re-alignment or consolidation will not adversely affect the cultural significance of the heritage place, and/or of the surrounding heritage places and/or of a heritage precinct - That the pattern of the proposed subdivision, boundary re-alignment or consolidation will not adversely affect the cultural significance of the original allotment layout - That any proposed subdivision, boundary re-alignment or consolidation of land in a streetscape characterised by consistent property sizes and building forms does not result in development that will affect the consistent rhythm and pattern of buildings in the street where the land is located - That any development resulting from the subdivision, boundary re- alignment or consolidation of land will not adversely affect the cultural significance of the heritage place, its visual setting and significant view lines to and from the heritage place It is policy to require an application to subdivide land, re-align boundaries or • consolidate land to: - show the siting of boundaries away from the significant elements and features of a heritage place - allow for the heritage place to be given visual prominence over potential development - show development envelopes that ensure an appropriate transition between new development and neighbouring heritage places It is policy to require an archaeological survey by a suitably qualified • archaeologist to assess the impact of proposed subdivision, boundary re- alignment or consolidation on the archaeological significance of an identified or potential post-contact archaeological site, where such a proposal will result in ground disturbance Sign: Whether the proposed sign will adversely affect the significance, character or • appearance of the heritage place It is policy to require that all advertising signs be consistent with the City of • Ballarat Advertising Sign Guidelines BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

Policies and Decision guidelines HO Head Precinct policy policy Tree controls: Whether the pruning, lopping or development will adversely affect the health, • appearance or significance of the tree Land use: Where an application proposes to use a heritage building for a prohibited use, • the responsible authority will consider: - the appropriateness of the use having regard to zone objectives and the surrounding land use - whether the proposed use furthers the heritage objectives of this planning scheme - whether the proposed use supports the ongoing use and maintenance of the heritage place BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

G. Final Report on The Good Design Guide and VicCode 1 FINAL REPORT: STANDING ADVISORY COMMITTEE REVIEW OF THE GOOD DESIGN GUIDE AND VICCODE 1 – MARCH 2000 47

4. DEMOLITION

4.1 NEED FOR URBAN PROTECTION

A major source of community anger about recent residential development within established urban areas is the practice of some developers to ‘moonscape’ sites, removing all buildings and vegetation before lodging any planning permit application. This removes any possible objections based on the need to retain existing buildings or trees. It also alters the context of the site analysis and erodes neighbourhood character.

The Standing Advisory Committee does not consider it is possible to give neighbourhood character the sort of weight envisaged by the State Planning Agenda without introducing much wider controls over demolition. A Sensible Balance identifies a policy for tougher penalties for illegal demolition and breaches of planning law. But at the moment, there is no planning control over demolition in many locations.

Currently, the only means of controlling demolition is through the application of a Heritage Overlay. This is not suitable to apply in many areas because the building stock fails to exhibit the sort of criteria that would justify the application of a Heritage Overlay. It may have ‘urban character’, but the nature of the difference between urban character and heritage character has been an unresolved source of debate for many years.

The failure by the heritage fraternity to agree on a distinction between urban character and heritage character has not stopped the community from being willing to identify the two, even though they may not be able to point to a clear dividing line. To the community, they are a continuum of the same thing. Both types of area usually exhibit a period quality with the heritage end of the spectrum being more clearly ‘special’ in architectural and historical terms, whilst urban character is more widespread and commonplace, albeit still having value in the community’s eyes.

In fact, the sorts of areas, which the community would regard as having urban character, are expanding. Urban character is now merging with the concept of neighbourhood character, which can apply to virtually any place. The demand for demolition control is far wider than even those areas that the heritage fraternity would acknowledge as having urban character.

The Standing Advisory Committee considers it is a semantic exercise to attempt to distinguish between the levels of heritage character, urban character and neighbourhood character, and ultimately, for the purpose of demolition control, an unnecessary one. The considerable overlap between the levels means it is far better to regard them as a continuum of the same thing; namely, the built form fabric of our society. The greatest threat to this fabric is its destruction by insignificant increment. FINAL REPORT: STANDING ADVISORY COMMITTEE REVIEW OF THE GOOD DESIGN GUIDE AND VICCODE 1 – MARCH 2000 48

Instead of focussing on what we as a society want to keep, it may be easier to focus on what we don’t want to lose without serious thought.

The Standing Advisory Committee considers that the planning system is a better means of dealing with this issue than the building system. Building permits for demolition should deal with issues of safety and how the demolition should occur, not whether it should occur. Evaluative decisions about whether a building should be demolished should be dealt with by the planning system just as it deals with evaluative decisions about whether new development should occur. Building permits for all matters should essentially be confined to technical issues.

4.2 CONTROL OVER DEMOLITION

4.2.1 Heritage Overlay

One of the problems with the Heritage Overlay is that once it is applied to a building, whether individually or as part of a precinct, there is a growing assumption by councils and the community that it means the building should not be demolished and must be kept. This is different to the assumption, which appeared to operate, under the former Urban Conservation Area controls. These were area controls. Under them, it was not until the time a permit application was made for demolition that it was necessary to assess the individual contribution that a building made to the significance of the area as a whole. There was no assumption that demolition would not be permitted if the contribution were found not to be significant. It was the significance of the area as a whole that was assessed at the time the control was applied. The significance of individual buildings was assessed at the time of application.

Although there is theoretically no reason why the same assumptions should not apply under the Heritage Overlay, this is not the way it seems to be working in practice. The assumptions being made about the Heritage Overlay and the levels of effort, which individual property owners are investing in contesting its application to individual buildings in some instances, makes it an unsuitable tool to protect the range of urban built form fabric that the community wants to see protected.

The issue is complicated by the nervousness of the heritage fraternity about the widespread application of the Heritage Overlay to areas that it considers lack true heritage qualities, even though they may have ‘urban character’. These concerns have existed since the initial introduction of the Urban Conservation Area controls. For example, it was felt by some sectors of the heritage fraternity that applying the same controls over the likes of Parkville or St Vincent Place as virtually the whole of South Melbourne, devalued the controls and undermined recognition of the very special qualities of places like Parkville or St Vincent Place. FINAL REPORT: STANDING ADVISORY COMMITTEE REVIEW OF THE GOOD DESIGN GUIDE AND VICCODE 1 – MARCH 2000 49

This is not the place to debate whether those concerns are justified. Nevertheless they exist and have influenced the debate about heritage character and urban character for some time.

The Standing Advisory Committee considers that it is time to take a different approach. It proposes that an Urban Protection Overlay should be introduced to control demolition. There are several forms it could take depending on whether it was decided to retain the Heritage Overlay or allow it to be subsumed by the Urban Protection Overlay.

4.2.2 Urban Protection Overlay

Version 1

This version of the Urban Protection Overlay would replace the Heritage Overlay and extend over a range of other urban areas. Ideally, it would have three categories or levels with clearly defined presumptions about the nature of the relevant control over demolition.

ƒ Heritage

The heritage level would include those heritage places meeting (internationally) accepted heritage criteria and having individually defined statements of significance. It would cover some, but not all, of the heritage places presently included in the Heritage Overlay; namely, those which satisfy these criteria. The range of controls would be the same as currently applying under the Heritage Overlay. The presumption would be against demolition unless there was a very sound basis for destroying the heritage place.

ƒ Urban character

The urban character level would include areas or precincts having some conservation status but where the significance of the whole is greater than the sum of the individual parts. Many of the areas covered by the former Urban Conservation Area controls, which may have been rolled over into a Heritage Overlay under the new format planning schemes, would be included, together with many of the more recent swathes of suburbs identified by councils as needing protection. The range of controls would cover demolition and additions to buildings, but probably not the full gamut of painting, outbuildings, fences etc. There would be no presumption for or against demolition in such locations. Each building would be looked at individually at the time an application was made to assess the contribution it makes to the overall urban character of the area.

ƒ Neighbourhood character

The neighbourhood character level would include those areas where the council only wants to prevent ‘moonscaping’ prior to considering an application for development. The control would simply require a permit for demolition unless a planning permit existed for a development on the site. Once a permit for development has been issued, no permit for FINAL REPORT: STANDING ADVISORY COMMITTEE REVIEW OF THE GOOD DESIGN GUIDE AND VICCODE 1 – MARCH 2000 50

demolition would be required. This provides the opportunity for the context to be fully considered in any permit application. There would be no presumption that the building should be preserved but rather that new development should respect the existing or desired neighbourhood character.

In each case, controls could also extend to removal of valued vegetation if this is considered appropriate.

The problems with this version of an Urban Protection Overlay is the extensive areas it may cover and the degree of justification required for the urban character and neighbourhood character levels of control. There are some places where the overlay may cover the entire municipality. There is also the argument that, by including heritage places in the same overlay as all other areas, it devalues the true heritage places. Another problem is the control over development associated with the urban character level and the way this may clash with control over residential development as proposed under the new Residential Code.

Version 2

This version of the Urban Protection Overlay would not replace the Heritage Overlay. The Heritage Overlay would be retained, although it is suggested that it could be refined. There would be benefit in introducing two levels of control into the Heritage Overlay: one for places with undisputed heritage significance and one for areas displaying urban character. The urban character areas may have a lesser level of control than those with heritage character.

The Urban Protection Overlay would simply require a permit for demolition unless a planning permit had been issued for a replacement development on the site. There would be no presumption that the existing building should be retained. This would simply be a holding mechanism. The need for a planning permit in these circumstances would mean that even if no planning permit is required for construction of a single dwelling, but only a building permit, a planning permit would be required for demolition. It should only be issued after the building permit was issued. This would avoid any loopholes in the level of protection.

Control over the removal of vegetation could also be included if necessary. This level of control could be optional.

The reason why an overlay is suggested, rather than simply a particular provision in the VPPs to the same effect, is that an overlay can be applied selectively, whereas a general control over demolition cannot.

There will be resourcing implications for councils associated with any planning control over demolition. There may also be many areas of the State where local government does not consider there is any need to control demolition outside areas with a Heritage Overlay. An Urban Protection Overlay allows councils to choose this as a tool if they consider there is a FINAL REPORT: STANDING ADVISORY COMMITTEE REVIEW OF THE GOOD DESIGN GUIDE AND VICCODE 1 – MARCH 2000 51 need for it, rather than having it forced upon them. There are many rural councils, for instance, that may consider a general control over demolition is unnecessary.

4.2.3 Standing Advisory Committee Conclusion

The Standing Advisory Committee favours Version 2 of the Urban Protection Overlay because it is simpler, it allows choice to councils and it does not interfere with the Heritage Overlay. However, the Committee considers the Heritage Overlay should be separately reviewed with a view to:

ƒ Distinguishing between levels of control for heritage places and areas of urban character

ƒ Defining the presumptions applying to demolition

ƒ Clarifying the matters to be considered when the overlay is applied.

4.3 RECOMMENDATIONS

‰ An Urban Protection Overlay should be introduced into the VPPs. The objective of the overlay would be to act as a holding mechanism against demolition until the future development of the site is resolved. The Urban Protection Overlay would require a permit for demolition unless a planning permit had been issued for a replacement development on the site. There would be no presumption that the existing building should be retained. In the event of no planning permit being required, for example for a single dwelling, a planning permit for demolition would be required but should only be issued after the issue of a building permit for the new development.

‰ The Heritage Overlay should be reviewed with a view to:

ƒ Distinguishing between levels of control for heritage places and areas of urban character

ƒ Defining the presumptions applying to demolition

ƒ Clarifying the matters to be considered when the overlay is applied. BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

H. Stonnington L47(D) Panel Report ~ , -" "! j t l'l 1 ,J 1 • l ,li';l '1'j',", I '"il'! f It~.! ,i. !-~,'!' ,11 l ~ ~ ~ ~ ,,11 > l,l ... ~d .till""1 • .:!, ',s ",K j : i I :t,'Hj'L "'5 ." , - i I , it"l~.~i '-~ 1, ~ ; tali'· .ill, 'ilj:'\l . S~El' :: I t'!>llll 'i"" i:i ~ d '" I,,!:! ! i III ~r j!ls!; j ! t f "I IIi ~'i!l! , . III i H Ii ~ ~ I r!!lilif lh;ll , ,!~l'~ " J ~o ~ ~ ' 6 ~ - ~ iii A IIlh!1r. "J'l'ljtcrd,t l ~ ,iltl!l i ;1'1' , ;Jl ' , i ]!hP "Ii i !Jl iIi! j"U! I] . o , HiI'!!l i ,lmjj;I,I •. , -i I, 0 oj .. "; ,-atud -;;!iSjj- !· • • ;; ~H . H.I J '" ",t: . ;~ CCD t::<:! .. I,. __ .~ ...bo<",,, on ""' .. by ..,tin, ... , '".co "' .. ",,",'" be """.... , ... in in"""...". .ach ""tn<>kv 0Ith< """"""" <10 801..-.....,..". ... " 1~7.

'n "'. ~ """"' ...... , ...... to th< ro'"" 01 "'. AMe, ..".m" on "'• ..,..;.";,, 01 w, body.

-..... _ ...... «1 .. -. ,.

W, oommrn' on tb< .....""'tioo and in, ...... tioo 01 "'...

~, tho ...,. "'.. ,. in ....y in,«;o«"tioo of "" AMe .. ~, "'...... I, .. .."" ...... linti)-. 0', To mol« '" ...... ' of wh ...... _ • pI&<:<;, im_,. lot wh ...... " ...... '" "" _,_ 0I1oW ."..,",01 h;',..,.. ~ I. "..,....". that "" Io<&! <)' .. """"., ",," __ """ """ " ...y,...,;.,w.. ..r_ in "'rir "".""" to hi",,;, ",...... "...,...... woul4"""""'....,.. ,...- """"«Uon ...... "'... boll"...... on ',: _"to basi. roo- "'_ """,yoI, at "'. local ""'d, Thio iNu. only ..,p/>.ul... "" ...... 100- b

We belieVC!:, f01' such reaSMS. thaI il wol1ldi ha"" been valuable \I some .-".ponsib!e authority would pr~d" an elaborllc.on oftho crit~ri!O on which il sseS1l«l local heritage signiJican",,_ In the ab""n"" ·of the comparatiy'C assn"men t of buildings •.referred (0 above. tGgethcr wftb lack of ~xplanation about how l<>eal h~ritllge (l.jgnill~ce is defmed, it i.$ [I()t o'e!I1 on wha. bbl" many a"peets orth" local heritage &ignifi.cance ot a building haVC!: been determil1cd< 1'he oll·vious I:Ithorlty to take On this task i Ii.rimg" Victoria..

Peter LoveU made the point. in the (orm or a.yuba! aside dllring the Panel hearings. thal the AHC erilelliJl, ~ not eal.ly 6.uikd to u~ M criteria for lIMe$ling.loetlol heritage $i~eancc.. We agree with lhi". vicw. We b .."e iOUlld it partiau !arty difficult \Q lIpply the AHC crikrill at the loea1l~el and, as ·Pete. LoveU ha"put it, ;Ult because .. set or appropriate cril"ri have ~en d~'Cl .oped [0 the national (and state) levd, does nOI roHow ththey ".an be readily applied at the lo

There il!o the implieation, in COl:Il'lcil'$lJl'Pr~ . th3t in r~ hl tioll to many ""pecls or the critu;.. there is II simple bi.crar

I..i kewi~'" wh!l. is It tho t, would render a buUding importml at th. locBll""cI beeau se or its h'$liQnc a$~atiQn~? Would th~· importlli/lt pusona.g" need to be lo~y important (OT an impoI1allt national dcmtit)' living locally), The problem of the' former view ~$ that mQ$l p~O'ple oJ t~l l"'l'Ortan.,., are not ,cm"mllued (aT ve

Cooousidn w~ conclude lh@~ th~ AHC criteria, which ern the crit"ria that rorm the D :ns for aiKSi!menl Dr lhelocal .sign1fica.nce of buildings,. are nol retld~ily "uitM tAl this purpose in th"ir present rorm lIJld eiaboTati()n. In our view, much dilliculty is caused by the uncertainty of. IUld vmi.ou... interpret tiOIlS or, the applicati.on ofthesc: criteria to the local 'e~et

We r,.,c;:ommo;nd that COl!:nci\ ~hot\ld ~k Sta,t.. (iov~ent "L1ppOrt to review of these criteria rar use at the loeaJ level. S':a.te (Herl~s" Victoria is the Oobviolt$ body with U\e appro:>FialQ re.po;ln~'bility ~ The AHC criteria prmide the obviou;Ii basi. rOT sueb crilm • but !he daboratiOon and ill" strativ

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t ,- f hli· ll I! I' I" , ", ii ·l i jl . l!'p . d ..j! Ii :ill llinl!h .:s !~ .L;-: .If'lj·lll ; ' J 'l.t. ·l1,ll·' l " - Il'III ",j '!,~5;st ~ '--.Ol ' ! , J!;;_ ~ j '8! .§ p~_ ". F~ r~.s-il ~.!!Jl;:P . r:-5~ · ' ! , . I ';1 jO "! ·~i. , ~l! , . It i.'i - _~ .. ~ !~1 ~!il5 I

i _ !'I ;~s ~ uH, " h2 E!; "'" ~L ,a 1:- '~l !i~~i r :' !l~ ;' !jim i;im;;j;f;ill~i'!:l'· !lJl!llj! JI .,; ;o;:~ wi .5.b.5J! Pc CDC C j .§)l "':.; _:5 ,fa]: " StonnffigUl" I'lMJlinS Seh~m~ . Aln"ndm"nt !A7ID! Panel RCjlc>r\ meamngl'u Lway with those activities ror ""Web Ihelr ownere (or o

Conclusion In principle, _ ha.'" adop~ thc ]>Osition put by Sir·John Summeroon, \hilt is, that while it may be or interes to know mat a. building is associated with SOmeone of lmpolUnce irll.he local or widor community. mal will no be considcrw to have ml!ior berltage slgnifiC8JICC unless the "thl: man and che building he inhabited sontBhow help to ltlle7pret eatll other".

5.3.2. Decfding on Ihe Importance ·of Particular Archf(8dUra/ S/yles or Examples of Styles fa a nu mbcr of cases, one of the grounds on ... 'hic;h a. property had been includod in thl: run.cnclmmt _s that it provided a gpod _pie of a p timl cbit¢eturaJ style that was itself imPOfWlt in the evolution of dome-atic architcctll.n: of !he time. This justification oould rclat.e to the AHC 's criterion A (culm",.1 hi~tory" 0 (demonstratin the .... characteristics of ..... cultural places], critcrionP (c~tive .... achievementl and E ( .C$ lh~tic values]. FUrth<:mlotf:, Uit is ~I\I"~ ""ample ofil5 type, Crilerioll Bj.carcity] may also be relevMt.

However. we bel.i",'e thai il i. d~Rblc t.o adopt a cons~ lent and logical 'l.pproact\ .1.0 the application or these criteria. In this resect, we have come t.o the conclusi.on, 4rt.witlg on our .own assessments and iIOme or the \lbmi Si<;lTIs that were made, thaI rc!erencce to AHC criteria n Wld E h-Ilve usually bee" inappropri leo ORen th.e reference is ml:.-ely to the appearIDIcc .o r the bui.lain~ being picluresqu.e 01' ae5thctlcaUy ple3$lng.

We have instead adopted lhe rollQwing approach in making our R"sc5&IIlcntil Md recommcn,da.tioll's ~ c /\HC Criterion 02 (Impor«Jtu:e in demonstrating rIul pritlciJXII cMraC1eristies ofilrs range oflwman odiviJ:ies ill the Austrnli'an cn~·IOnm.et\t (illCilldillg tlMy o/Ilfe, custom, P_s., lalld·w:e, fitru:riml. design Or lcahnlquc) .ho"ld be ;lpplied in identifYing a plltti(:\ll..- bu1lding ype, ell. in identiJYing building COlitalnln.g .resldcnce and shop as hiatoricaJJy important for ltlS mUcoJ u~., or a building's lmpooru.IlO

Typical examples or rererencu to ~li&tic importJanOc included: o 139 High Srnet., Prahran - c2l'llI>Ipression. oflhe transition between typical Vic:toriOl't 51gbm and early forms ofrJr.e F~er(ftion. period. c 274 Hlgh. SU"«t. PranTan - "a .... distirtaive ... ~mple ofArts and CroJf.$ (rtJlu,~ d~ign ·

Stonnington2 .doc 25 , , , . .s . ~ i. :~ '1l5. .• j' ~~.~.s • , 11.,• I _f l !~H'' ' , j"'" I! 1III !.lhl ~!!.l oS' :ll.p,, -to !"I'-Ii i I f'!O -f ',' I• I.,-, I !!Ill-,,1' II!lll""J , " I .,h_,1 ' A. 'Ii 'l''l' '! at:swx l';hj- ! • j - . "It'll" ... II , -J'lli;.s.!'! g-"'I ~Jl ~ ~ :~ ,g ; '81~ '5 ~_! --, I llliif,t. l , t 1- 1! Il'll dIll! :id~~lg ~ j !f WIllljl I ll!rij _!Jlll lNjl !; !i1llllJI J ji j ~ UH.!jf :l!HiI !dii! .! -s2:,i!Jl"jll·h , !I~ b~ 'l~elilf Ih' 111.1; J ~"~~]~ J H·. .d ~~~i . i. f-st, ''''']l~e:Hs -~'!­ Il l~t 11"1; i t~ !,I,hl!,! II ~'"c c ..cc - ."c c5.~'l~'l" ~ 6'J'"ll' J.' s_ " ~~ ~;b~ldd" , t J 1 ~ .8 ~ .;l~",b~. l "" ~ , 5:i is ~~ .l-'t;].!1:'5 Iii tl! i!!lllj ill: i!t,'i! 11 ~.!J, 1 .11, II' - . 4!'111 I , 1 I 'I,d ,.~.l ! ,l,1 j ;1. PWI 'I I. t!i'h~ ~ Pfj"'.1 ~5'3~ ~~:!;!,. § • ~,;Ii. ~ I ,l{.• 1.1s ! ~ Jl!di!~ "~1I~.s I!~ 'Sj~1 iqj! 'fhjh!- ~ ,j"~!:. i!tlh' ], ~1 1%~.; ..

.,,,,. _'f~ c c c "'_ s. 5.se vi8~~ 1 <:a~ ,. ~ .... -8 ~! -j d ~Hi]~ t5 II ~ I 'llllllil ;~ I I {i •••1' ·t"'l5 h 5 ~ 'I i!i !l'!l II , x , -, 11 '" 5:~ -,. ' J l I'!.. " - ~il- ... ' ~ .." ~ q 11 t' Iii! ~Il i! ·il:' '! H j > ! It",!!, 1 , lH,t'J t,l,b.iJ. l, " l .• ,! ,t.lf 11'1 , , I,... 'liJ l' I 'l. lj!j,J!l! '1 "I"' j IIJII .1~ j .;~ .; , 'I""'8&.'a!>. 1·~l I- I. !I I 'J il~ ~ ~ j~ 1l!a.H1'{i <3j _! , llh h ill:li ill .~ ~ ~i h~~idl·~l f! ~~ I ~a j! ji'l'i ,j- ~ ~ .". jjiiP.s. ft: B d !I~ lit ~~~~ ," 5J~]~~~1 ~i~ ~I r~ 'l~l'l'__ g 'llPlh~ 5i~-~-" jli !!II',.lj'iij'I'!H U 'I'" ... .~ ~.5 ! il_P !,i j;j'- ., ! ! -r '1 1 ~i:~ I' ; 1! ·I1:l; 'B ··1 ' • '"~ Cl 0 0 :

Conc:ItJsioo We ~ n l

5~ 3. 6. Deciding OIl lhelmpolfBnca of PartiaJ/ar Building fypes or Associations II num~r ,of buildings were nomin led for inclusion in thi amendment ~'.uc; , in p!lTt, tl1$f were: hdd to prmide e:xamples of building types or aaaociatJons or building types Whlch prov:lde Important information about asp~ds 01 th~ Ul"bM !IOCi.ty and developm<:nlof thdr ""nod. This aiteriofl appears to relate best to AHC Criterion C (uJ1derstandlnl! the local cultural. hiSlO.:yI. A typi~ e:oromple indll.des: IJ No. 3 17 Glcnl'emc: Road - "~[Ietlt e.'O:(lmple Qf a dodors .rnsidllllL'8 and CDMulling 1DOlrui .maim [0 aprivau hospi/Gj",lbougb thi$ c:ritc:rlon was not rc:rerrcd to in the Sto.tement of Signj.liea.nce) c No. 5 Cawkweh S1.tC

In sc:veral cases, AUch claims about the merits or these building,s we.re strongly ~ont.stc:d i1nd we were left w11b two oppo$ing, exp<'rt opinions ns to lb. hct'itag~ &glilicance of .such example...

'!/hil. we ac~.pt that $ueh examples do pmvide intfiesting and perhaps useful inCorma.tion about the social and economic conditio"" or their times. this is 10 ""me extent true <1 all d""clopmmt of any period. As the Local Go~ GWder;""", Ala1m [DPD:6) "EMI'Y pla~ /\iU 0 IU$klry. an ~Ihe!ic LOaIue (1t' (I $Oda/ meaning I

Stonnington2.doc: 29 "'on"ffiP<>" !bnn;"...... -" IA7!", -- ~,3,T, o-v.. olin. Critotio Wb ... tit ...... "'" AHC 0 ...... tIw <1>« ..... bitm.- .. ;,...... t« .... numb« ....., ta.. ~ .pp'.... "'" ...... _rio""' ...... " ... ,. ;"...". CA><' ...... la,., ... ide SU'«t. ..,.....1...... to D en"oioon S: u.. ..oI_"'PI< of ~ 1>o;'t!I ...." otII'< "'" _-...... a Cri'..- '" ~ _..,.,. of"'" ..,"", ... " "'l4 a C,;,.rion II: ...... -...... ",.,..of ... _of--...... u. ""of ./w""'"' ~"Iw

•

w. ,u_' ....., .... La"., Is , .... OFP' u b .....t Iuo, ...... odoJ>t

. ilia, on AHC criIcUo "' mid .-1>0 a'

rOt ... , .... -- "'n'. "" h ... o.dopt«I .... ioIIow1n. rior. Udo, wtt .... on AHC rn.m...... ' i. a ...... tit, bo ... 0(. buiIdin.'. h..,.... ;"port¬ ., .... Ioeal _I, .... buildUtl ohould bo ...mo.ntly ...... ' ;" mo..... to tit .. criterion ...... ;, ...... _ .... buildin,', preoo 1<00« ..tiw.ruon 0( ...... cri,

0.. tit,,,,... !>and, Council""",,, ...... ohouIoI ..,. • j,-;-;" to 01<01_", • builobn. in • " ...... Owrla... Ii,hin., "nm..1o

We $eC Co ~ndl's principal point as bein thaI II only has to es ablish the local historic importilllcc of a building Cor that building to be justifiably [nchlded in the amendmenl. Wc see Mr. Canavan's poin as being rather dilfcr;:nt: that onee a building is included in a Hffitage Ovalay. its heritQgc importance. atle~t at th. local level of significance, should be taken as gi~n I\I\d \he b~ild.iJl8 $hould be pr

WhiJc the Decision Guidelines of the VPPs only identify m t en that must be consid~red and mus be given serious weigh t in a ded.s.ion, they can only ever be. guide - in fa,ct, they ama... nt to not mucl:t mare th.an a useru I che<:k list af matta. la consider. but not 'bow' to conMder lhem or bow to ,'Csolve the mMter's referred to by nj' point in theguiddines. Taken together. the eOD&idcrable paIlO?ly ar planning oontrols that guide decision.s 01'1 heritage pla~ ... - (..om the Heritfi.ge Over1 y'$ olUecti\' e~ and controls leg. the pro"; !!lOft within the plannin g sch.me framewo.k fot overriding the ~fting contro] ... ·"""n if not tnkell up) to the Decision Cuill.eUneg - clearly plaoc a stroTlg prio";:t)' 011 the Heritage Overlay's objecti,'es.

HowC\·er. ir C,llrncl!', argument IS that. beeausc a penni is r~quind ror any [u rther bu Uding, and work(\ and bec:a.use the applicanland c.,uncil thereby ha,'e a '8(!:cand bite or the cherry', then we can take .. Ienien.t view a~ to the adequacy of Council's justification (or ilIcl~iol\ of an proJ>CfiY, then we do not o,gree. h $Cem to us that, onec a buildin is included in the Heritage Overlay. 1I certain oUloom. mUlIt follow. That is. thaI when con:>ldenng any further development proposlll for a dcsl,gnated building. the r~spon$iblr authority mu t assume th t the herit ge $i~~a.nce or thr building has, at the minimum l""el, been established; thal in principle!ha 3lgnlfiC!l1lce should be protected in perpetuity and that t.luu ilItegrity should not br .reduced witho'lt plrulning··poliq b sed justifi.eation thBl wou.ld override the objectives of thr H.,.ritage Overlay,

In prinCIple, tho ror=si" drbatr at a plannlng appcal ..hould ilOt be rxpcctro to ~v s the merit of a bulldlng"s, onginal designation in the heritage ove~lay ,

It may be !hal, in some Situation... the forensic debate CIt . plMl'linll appeal ....'1lI demOn,tmte th t il. building bo~lcl DO really ha,ve heen includoci in the Hmtllgc Ovet1~. However. that \\i'Qt\ld only demonstrate that the original ,e.~arch had been inadequate: - an outcamc refleeting. in our view. a failure of \he on ginal planning process. W. accept Mr. Can~"!IlI~ ,lind otha objecto... s· argument th l thc"'e mU$l in the first in.stancc: be sufficient Md appropriate rc,..,...-ch 10 ju.. tify inclu.sion of a properly in the Heritage Overl y .

Conclusion We cecpl the argumen.t!h tthis ;unend.ment shauld provide an appropriately thorough ca.e for the protection of the specilled building.. in

Stonnington2,doc: , j- ! j1 ~ v .6 ::.l L:I:' ,sili! ~q~ II i l\ll 'Ilt!l. 1m!,-.,,- Ii .h!i '~'fll il i'li ,,'- 1'1 H1i ~ ' -r .... JlLq.;:! '· 5-' . ~ .&,.:li_E:< hi p~~e "' .~ A " . f !'1 !iill &.,.- , I '\'i,".i:a ~ ' I'l'i'~ _ I ~ ! .~lld sI ]1 ~l·.s !ji'elH!H Pl:l!ll jl II j1 lith r ttl ~i11'1 jJilh Ij, "t ,lIlt 'lllll j!",H 'Ii~ '&~ H~ l-~"~ , ~~! 11i 'jl !I' II·j' Illli'll" i ~] ~ ' " 1 'll ~'~'ll~i" 'i' , i~ , J'hilI~ . w f ,IG !, Ii, ~ - '~ _. ~ .,. -G'lH ~ -l :• •~Ht lL l~!H d,llkn t .Jlll~hl " d", Stomungton PJEI.IIJli:ng Scheme • Amcndm~t L4 7{D) Pancl Report some ,sludics and the criteri... . of 'major WId 'particular' :!;ignificWlGe in olllers).

No tv! r. Willinsl\am pointed OUl, it is now largely stM.dard practice lhal field ~csearch into th~ h.ritag<: valU<:B of buildinp be d"",,:mcnt<:d U&ing $~clW'

The research leading \0 this amcndrnc:ot hu included the rollowlng Iteps ( . d 'bee use the lru"ge m. 'orHy of b\1Udiirlll:s in this p!>1'l o(!h<: am.c:ndmcnt (all withi" th.<: boundaries or the p ..evious City of Mal""m, this ouOin<: of research rcx:uses Oil. Ole ongim of ~searm in tho.t Cit)'!: o In 1988·89, the City of Malvem completed an. urban character study, the "City of ,folvern Urban Charod:er Sludy ,(1988·89)", which identified $OIW: ar"... s in the City as navin.g lmPOl'UlAl hertt ge clIo.racter. Thill 'tudy included brief a.sseS$ment of the history of fur physical dc,·c;topmcnt or the City of Malv.em IOeorg!;nll Whitett~d. ·Mc:I~ Ur1lan Chamcl:er SI"dy - llpJlGndix. A; 1al(l""', Q Physt.xl.l History', Laceworks LMd$cape Collaborative). This appe.nWx provides a brid hislO olChe pnysical proce~s o!urban clCIo'elopmml in th~ City Qf f-t..Jvl,!m, based largely 01'1 $~conmuy SO\lrc~ . 11.1 aJJ oUter z;eBpccts, this was not a study of herit~ L :Su't:&, o In 1992. tile City or Malvcrn completed e. hcri1lllge study of resdentiaJ _lI'e s in mal city - I'll d Lewis Richard Aitkcn Pty Ltd IJlUJe 1992j"City Qf Mal""nl H.:rifClg(l srudy. thlU ~~ !lie ar~ ak!:e.dy identified in Ute "Ciry of Mill .....m Urban CI';,"'lldclf SIudy (J 988-8W' M h vlnl! heritage iml""rtanc~. This lItudy identified a number "f additional ;;ieas a h3.vlng heritilge impo-rtanCl::, 11P:l»tt:ruu atCbil~c:.ts who de:s:i~ed dwellings in !~ City or M...... ern arc described. together 'IIoiUt eoo:nmples of Cheir work. in ~igol Lewi$ Richard AiUc;~1l Pty Ltd !June 19921. "Ciry of Malvern Heri~(U}I' srt.dy: Append... Of! : A..:-Mecu of Mol~·. o In 1996, the City oJ Stonnin,&lOn commenced a herilage Stnlt~ @COul:J:n':nclatiOlls were then prepared for tho. ~'bitcd form of Amerldrnen( LA 7 o Purth<:r work was 'lUJdettak:en (0 elaborate the infomlllti.oJ1a,bout those properties in respect to which obj.eetmg ~I,l bmissl.ons had been rKelved. During 1999, e1!lbQra.tions wc:rc pn:pllI'ed for tho:scpropectie in '~~I'=t or which submluenl had asked to present to the Pand Part D and. finally, in Illte 19-99. for the ba.lance ofpr-opcrtlC8 in part D 01 Amendme:nt 1A7.

A model brief for a h¢ritl\ge study h"" beell prepared 'by the then Departmen of PlMnln and! Houamg (DPHl and is described in. th.e ·L«al eo""mftI.->U HeriWge awdeli"e~·. Thi!l 'mode:1 brief describe,. thteetam to be carried out by oonsuhanls undcrtak!:ng beritage study: I:l Prepa.ralioll of the etlvironmenW hi~twY or posl-oonta<:t sctUemenl Md dev<:[opment I:l l

Stonnlngton2 ,doc Slonmngton PlMtlIns Scheme . Alltendmcnt lA7jD! Panel .Report tl Pr<:parBt!On or a consetVation action prDgam. to lJWDlv<: both atanllO!), n~" no... ·stl!.tu\ory .km<:nts.

The [..ew;s AJtkcn (t992) stu,dy has Ih@ foUowing r.atu.. e ... ; c tts objeeuv'es Indude

The stu,~ pr,QCe-ss (allowed by the Ai~ LewIs (1992) "tudy docs not appear to meet the DPH ~. model. Rather, it con";'.U entirely of a d~scription oftbe 13 au"" "",clthe illdividual bllJldings proposed ror heritage designation, There i. no -elWiro!VnentallU$tcry ofp<>!ll-

5,5,2, /$$1,19$ Re/Qtlng to the Stataments ofSlgnificaftCfI Th~1'

Most of the statements of !flgnificanc~, as presented to Ihe panel, contained two parts; c A 'brief SUllemen t or til. .. basi.. o( the building's bcriUtge .s:ignjjicanc~ [] A description of its 'aigrolJlcanL aUrlbutn'.

The latter section or the statements of si£!lificancc simply lli;:~ the key elements of the bWldlns wheleh are considered to be impOi'U:lt contributions to its .ignifican.CiC . Sometimet., these 1;'<:4I,te to the surrouncllng vesetalion, u~ of m,,-t.e1iJlIs, deaign features, While some pQiIU of these statcmcn ~ an, clearly ccn{rnl to the buildlDS_ $ignificSIlce, othrrs are often len so, relating ",theT to its prcs<:rttatlon, eg. its "\.Ilf!L$aflan of" oomBT allDI'm.ml·,

We noted examples of st4lementll of s iyillicancc thaI contained the (ollowing: 1:1 A notation of pll bll.bcdtererenccs to a buUd:iltg tl IJse or term$. t)\a.t do not app"'= to provide major suppon to building'. slgnificancc. "g, "121$D qJ ini.eresl for •. , ", c Use or a rather llteHl:y IIond imprecisc style of explU on, eg, "Il pnwidcts Q slTO'19 'o:sutffUlnl 10 r~ $kl1l!! of ...• or hIlS "an i.mpre:ssi~ character" ... 1 o Usc of important claim. unS\lppo~ by other rndence in the aJ1.aJysls. eg, "

35 Stonnioglon "".. mmg Sch~me " Amendment LA7lDl cSt. tement$ that, whil" deseriptive of the building, do nOI appc:at to relate to the ba i~ for Its h<:ri\.8S" signillca.ntt, eg. "Ths d ..sign $UCCC$$ftdly conceals the duo/ OCQlpaltcy ofl1lis /ruiJding and crea:tss 1M ,mprU$ion ofa single r side1l¢t· . c Conjectural .talemenlS, ego "wll$ w«Jl pub/lci$ed AAd was likely 10 ha~ prC!ged a rI(lle in irifluencing dom.estic archih!dUtQ/ d,es(gn ·,or·and possibhl Pm iriil Schoo! uvruenoe',

Separate from and followiog the stat

Oflen , the Slateme:nl of Signilicanoe did not indud.e such obvious mittie", U tha,t th~ building was a dwelling. or its gm.er1ll1;ypOIo,gy. Often 100. where the "HC «Ilena rc:tevrult 10buildiJlg's significance ~re IdcnUfled. the m ners re:Cerred to in lhe criteria were nOI referred to in the S~tcm.nl of Signillca:nce, We add thill, in principle, we support the identification of relevant /\He crileria. l! these are ihe basis 011 which iI building's unportanoe is identified, thefl !.bey "liould iIl.o be set out. with the appropriate and more, detailed aucssmclU,

5.5.3. R!lvf8wing the Issue of Re5ea~rcll Rlgour In reviewing the i""ue of rescurch rigour, we re~ 1 that thac are four is ue:s UUIl, in p(U'ueular, Wi!! mu~t conside.r before we proceed to examine the evidence prucnled In respect or MY psnkuJar proj>Crty: o The adequacy of a statc,.",1l1 of local historic COllt~t hich i~ ",leYant!o the ~smCl1l of the histonc lmponance of particular hou.C$ o Th~ adequacy of documentation shOwing a comparative Ilnat)' il or a dwelling ,gal.nSt otherl c The el boration of the critrrilt on which th.c judgem~nt of the heritage significanoe 01 eBch building bas been based o The Itdequacy of the IUllemenLS of the heritage signill.ca.nc( of individual bUildings.

It i.!l nettssary to rely on Appe.ndix 1 of the pl'eviou, study by LaOCQlOOO Landl>CQpc Collaborative (1988·89), losether with Appendix On~ of th( Aitken Lewis 11992) 5tudy. IQ obtain a statemenl of the cultural historic context of the local acea.. We haY<: revielil¢d 111..,.., documents (oUowin! th~ Panel hcaring;s. While ihey pro-ide 1\ useful ba.ckgJounii. the ' are nOl

In!egrated 0 ii, in particular, there is no bi.5tOI)' of the development or a.rchit«ctllraJ styles in the Cill'. Durin,g the hc!lrinp. submiuCtS Mel experts rercrrcd us 10 numbef of other information $Ourec::s, including extracts trom Raworth. B. (1993) ·A Qucstion ofstyle; fut""" War Domutic Ardlifecture in Melbourne", Raworth, B. {l9911 'Our In.lI!'T·War HC1USCS" <1.[1(1 Clate, J . Ii98<1) ·The ~!·Federn1ion holLS'" in M Ibo\.Ime~ [700~S42 ~esearch R4!poTt - f'a<:ulty of ArchitCICture and Plaru:til'li!l.

Onr or the issues relating to lhe ngol.U' of the r~seiICth re/ales to !he Jack of any comparative bMls for ihe cv~uatir:m of a building against, the AHe crileri,a. Where Council e1aims that a parti.:ulu builclillS provides on exccllcnl rq>TcscnlatioD or lUI ard:Iltectural .lyIe or dw.:lling ~ , W~ would eXpect thou. Ulis wouJd br demon • .trn.tcd by lIIusU'a.ting the building's pooilion within the elements of \hi. style or within tI:\~ ran,ge of building;! of

Stonnington2,doc 36 • • , h 1 s 1- 1 ~S ; r ~l . s'!li , :j ,j, 1 11 1'1 I 'I II ,~ -Eo"",.'=;f"; ,l"'ll '!liS.,.1 _<5I. Ii-I".. Ii ~ ij')j. f hill 1Ij'i _, ij j.,i"ij I I! i" - 81 s t 1 ~ h:f~ .. I, !!! f l I~ P s ~ ~ • .t . .J~f ~ ii.~l J~ 'i§ • 1 j' Ii'lll 'ljl i'l" i. llW 1111 ' ~ s Hi r 'l p~ 11}: ~lll I ! j.· •• l l .J" 'I' ""Ii'l' '~~~]I]d ~. I'r~H H,d H IHlhldl i il'l ;'1 !l\!:i!j "}ll' "j- '!:I'lll'" ,. '1',Btl. tll'f'- il'.,' llflll Pl ~ II i llli. i !q!h, Utj'll -1n'\ ,!, j'l!li II , ,,_,ttu, ,n,Mll "I !l " .. :o§.g, ~ Stonnington Planning Scheme - Amendment 1A7(DJ

In c.ontrasl. the comparam'c .... sc,;,.ment of buiJdin $ of potentially local heritage \gnific:ance would need to ineJ~de much larger number of bl.lilding~ . many of which will e\'cntuaUy not meet this crltcrlon. In uddttion, mud. more original research work may need to be unde:rtl\ken. If the sam." s.ca.le DI research is requIred to eSl bU h II local lo:YeI oJ .ignificance aa i. required ~,~ $~l" and na.tionaJ levcla, as wa,8 proposed by .fr , Willin,g)lam. the scale of W

The SUllement of joint evidence provided to the Panel by Lewis and Raworth noted that Herlto~e Victoria h. cI ·endorsed [he standards ofdorumelllCilion .,vidtlruxse prepared with ",speclro Anu,ndIMnt lA7·. [n ' ~, Co~neil'$ letter to Heritage Vic:.tori had a,ked that bo


We do nOl eonsld.e:r that the vieW3 of Heritage Victoria about the standard 01 doeumenl.lltion !ihouJd in any way limit our respan.sibUiLY to CJClUIIine and test the e\idencc and views CJCpre.'1$ed in thi", d~menlation . Certainly. HeriUlie Vlcloria don not su,gg~.. t tbat the '~A1<:h ba$i~ Cor the~e statem.e>ls is beyond question. Or beyond a Prulel's fC$:ponsibility to consider,

In these circu"",tances. we hll.V'e beeD obUged to eQtl~idcr and weigh the opposing argumen t.s in reI non to each ..pecif'lc building. making our own ""se=ent of th" credibility of the evidence provided by the dm-erenl partics_ Where evidence has nOt been <::Ofllened, we! have felt obliged t.o use OU r own unders llldirtg of th.e heritag" ismes to te..t the logic orCouncil~$ ""Put;'; cYid.C!Ilce and con,,]uslons,

We lU'c aJ$O mil\dful of the fact tbat tbe advcrsmim testing of this am.endment has only applied to n limited number of aJllhc bWldings in the amendment. It LS not clear whether this adversarlal prooes.. has been limited to tho$minincd tc> it, have bc>tb been conaiderablo, We aooept thal, over a. number ofycan, Council hu collected considerable hi.st.orl.e restarcb and und"rtakcn valuable analy>li.s of heritage slgnillc;mce has be~n underuke.n,

OVCl'all, however, \YO! do have :scriou s IDJsglvlngs a~l.It the rigour with which the .... se:s&menl proeC3.S has been unde"~n - f'~!ating in some uses to the weak dc>c;umenta.lion c>1 some eviden.,.,. the absence of cleAr interpretations of the pplication of tbe AHC 'S 88~lSmen~ eritcria to the locall"".1 or u~ ••meJ:U ;\<'Id lack of <::are in drafting of thestaleo'lcnlS of significance.

SWnnington2.doc 38 Stonnington Planning Scheme - AmendmenllA7(D} Panel J«port

We have !.Men these points imo ~unl on a site-by-site b ,ie as .... e hav~ conducted our asu-&MIIenl of the amendment-

With rcsjX'Cl La the drafting or statements ot 5tgnificanOC, we r~oammend th L these "tatemcnts adopt Ii more pn:ci;;.c descripuon of the heri~e sign.iliean.,. of each bu,lding ond that the {onnat of the ..tat .emenls be: a.mendod locxciudc on)' ~~(~rencc 10, 'contributin,g d

5.6. The Effect of Lack of II Bulldlng's VIsibility on Its Heritage Values A number or li;ubmis:siOrls .... el'e concemed with the [acl [email protected] SQme buildings /fe<:\ed by the IllTlendment wlIfllentUcly or largely concealed Crom view flOm adjoining streets. A related iMue, of conc:e:rn in a number of submi&sions, was whether it ",' ...

'The judgemeJU of sigrq/i'CalU:e is made on a broad rulh.lml bclsis. but architedllruJ significtmcs is judged. primarily on lhe basis- ofprinCJ'pal famdcs "nd wlt.:t( ~ be $eJ!.n from the street (or has Ills potential to be !let:n from. the street). It is of rw!~, however. lhal in some casu wUding$ are set well bc:tcJc from the street ar are abscured by high fo/iage or fu.ces. SizQl buildin9s call WI be oollSidered of high !ltgnifioonce, worthy ofprOitt:d an Illlde~ (he planning scheme- as places a/local (or higher) signifiC(JltJ;l!. Ths en67l! fa which Wy (II"(! obscunrd may !im'! oppornLrUlies for truczpreut!ion bylhe pt'blic, but docs 11.01 destroy tluriT signifo;aru:e• •

Lewis and Raworth had eCLrlier staled that: ·Pflys~ lnllf!S'tigation is generally confined to wluuron b/I' observed from the street. as in mas! mu.nicipalif.ies heri:tagc plaCY!tl protecfed under (lis PlartnLilO .,. £/l.Wonment Ad anr not wo-jll'd. to a:mtrois In "rm,s of ~l WQr,r,;", and works (0 Ih" rcct!' C!R' ool1l.rolled on1!l ins,,!ar as !iwy halHlthc pO{ntial to impa:ct t.tpon the ~pea~ afllte ptincipallaoa.des or the lruilding [u seen from) IIu! sl",,,!·.·

We <:cep these propositions for the ~easons discussed bcll)W.

-lrslly. thct'C Is the t cl that one of th. important ftincUOns of domes!k Mchilecturn in Austmlinn culture s to dlsplny the social values and po on of a dwelling's OoC>CUpanls. Be<: use dWelling dclJign followed (lind still does) widely repeated Pau~s. ceroun conventions wrxe $Iso widely IoUowed. The:$!! app~ed ta indude the principle that bullclingll ha.d some (acadell that were tradit.

Stonnington2.doc 39 Stonrungton Plruming Scheme· Amendmmt !JI71D1 Panel Report

It I. t;l~ar f1'QID tho ",vidftlee preoc:ntcd, together with our personal cxperiell~ or domc.stJc (and otb«leh;\ectUff., that the most important and most r"presCIltative arcrutectu:rnl feature. of 11 buUdlns CU'e uaulilly lO be !o~nd on its mo~'publie' faead". Whil.e both pubtic BIld concerued ekvatlon. of a building teU uS something bout the $()r;ial and architectural as])«'l" ofits time, it .cem/J reasollAblr to plac" great..... t "mph sis on. 'the ..,...,..... rnent and prcnec:tion of the ttQdhionally public dO!Vations or a dWellIng, fbi, appro.a.cb pf'e.wmably Ika behind the lon,g Illlndil'li pto.e~ of most councils to be tess con.eemed about cbanlles to I.ltt less publi,c elO!V bola of a bl.1 loin thnn about chaoges to the public (Or rn.dltionlllty 'visiblcl elcvatiom,

Secondly, there i. the issue of the dfect of a buildleS's concealment on its heritage valUe, ",heth"" concealment i3 by highgard.". Wiilla or land~pln We have adoptod the polrition that if a bulldl.n(l. as repT<:s"nted by its tr4.ditiOtlQJly pubUe elevationa. hall some objc«ivc herluge v31ue, tha.t value is not reduced by the conc:calment of the bu ilding,. As Rawof'th Mel Le,,"~, h "e PI,u i , there is a dilrerenoc between !he heritqe sl.gnlficanoc or a building and varying public opportttnities for its int<:rpf'Cootl.on , There i,s ""ll',i'$ the po$$iblllty that the 'public' aspects may become vj;sible at another time, Umi.tatiom to opportunitie8 to. view ....d be informed. by b~lIctmg 40 nOl~ j\1 'ti!y abandonment or the obje.:dve ofproteC'till g: llIe building's heritage values,

In our view, the merits of retain.ing an othe.rwise cult\lrally $lgnif:l.C4l\t building ..ho.uld Dol rely on whc!h.a or flOt p~Ot:lS owoers had con~lIled j t by high garden WlI.lls or vegetation, or whether rurufe own"... dQ likrwise [and while future garden walls could requIre a. planning permit, laneiSOllping t present would notl.

Condusion We aeeept the gomeral proposition put by Rawortb M .d l.ewis, namely tba,1n asscssmg theefl'ect of the concealm.e:nt Df part or all or a berit - 0: buildina. it is ~Pl'Opri~M to place greater importance -Dn tho.$C fa.cl\des that represent the uaditi.onal dlspl y clements or building: also, lhal a decision 0.1'1 the he t ge ~~ Df II. buildins sh"u.ld not haY<: t,e.8W'd to· wh.ethcf' the impDf'l>lnt d ...mc:nls of !hal buildiltB II1C concealed by, wha.tever meMS..

5.7. The ImpoltBnce of BuJldlnglrrlerfors

Som.. submittel'$ argIled that ,,"'C: ahould not rceommend the nclusion or ""nain buildings in the amendment bc:e.lU$C of th~ loss of originality Df their interiors. In many CMCS, the original layout or rooms had been extensively modifi.ed. III othu caJ>CS, Interior IinJshes lU\,d fi ttings had been entirely removed. We ~ ~vm numer-ous exampl" or buU4ins where the orlginru interior layouls nod fmishel ""'Owd hA\'. provided a remark ble ilIu !luation of the lif~3ty! .C or their tim.es and where lhe e in~mors had been irrevocably des.trO)·ed.

Mr, Willingham, in several statements of eviden~, ",·~s highly crilical. of the (ailure o.f Cound1"lI~onsult.al'\u to gi"" 3DY regacd to 'the eXtenl of alteration. to building interiors.

Stonninpn2.doc 40 Stonnington PlMning Sch"",o - Amendment lA7(Dl Pa,nelRepcm

There ate tWO m ...tters or d.b Ie in respect to lhis iuue: whem.., the integrity and/or quality of building interiors i. ~d""ant to establishing 'th. ]0~a1 heritage signilio:ance and, ilso, ",1I.th.. the IIoI1Imdlnent should include contr<>\ of 110m" jor all) building interiorS'?

The 'ddault' <ualion. with respect to the ppLicaticm or the HerilQge Overlay un(!er the VPP form t planning scbeme, is that no control iii to be !>pHed 10 building mtmonl; ullleuthere Is a pcclaI ~allon to this "Jfeet in the schedule attaching to the """rlay. The (VPp) Stonnington Planning Sdlem. does not propose to rntmduD) lI.!'y ouch control This is a clear .. talemont that, in 85scning the 10C41 hcrill&ge sI.gnlHc:ance oCbuildinp in relAtion to th~r incJu!l[on in the local Planning Scheme. th.e integrity of thcir interiors is not considered by Council to be of any relevan~

While we Wfill provided with belb submiuions and ~ ..... dcnce that we show

ConcllJsJen In the absence of any argument as to wby building interiors ilJ'C ImPOrtant in "",,",ssing th.• load heritage si.gnifieane.: of . 'ouil.din& "'" conAidcr it appro.priB.te to aocept the principle embodied in the propo ~d Heritage Ov.rlay and ;\dopted by Council for the Mw-rormat planning ...:heme - namely, Utat bl" !mng interiOnl; W'e not telCVlmt to this assc&smcnt.

5,8, Eff#JCt of L.on of Integrity on II Bulldfn(fS Historic Va/uo

Ln Austmlia. hou.;oiQg fullils II numb¢!' qf ~"" omic and social coles. many or whIeh are a,(XI(!ntua(l!d by the pr"pondcrance of ovmec-oc;:upanr;y: c [t provides {or its resident'S habttru.i n d support fOT the chosen lirestyle. with 114 variousecono.mic. social and teetU.tlonal aetivities C It is WI eoonornic investment - ·often the owner's lI)aio~ ca,pilruUlSoCt o It is a symbol of its occupier's social pooition and vo.1uo. - rellected in il.ll ,1O<:ation ••~. SIting, de$lgn and lini:sh~s ,

The ,um elf

Ho"'C"eT ... dwelllnll i, not a museum picce, M time ~s. the needs of its occupiers will ch.aI\ge in accordance with soda!, techPologica1 and eeonomle cbanges and d"''.:Ilin8$ will be modjfied aa:<>rdingly, Th.e need for continual maintenance or a dwelling creat.es 1'urth~ opportunitlu for its modification $ a result of eh6ilgLnabuildlns: technologiell. Aoccptable ~tanda.rdll of dayligbtin ~oomll have "hanged lDukedly o~ the last 1.00 years: uteslyles h!l.ve chansed dramatically and. with tbC6Cchanges, thee have been major (honges In the w . we expect to use the dif[=t rooms UI a house, or the different types and - ~~ or rooms thai we now desire to ho.ve.

Sto.nnlnRton2.doc 41 Stonnin,gton Planning Scheme · Amendment L.47(D! Panel Repon

[I bas therefore bc= inevitable that the large proportion or hou"",. included i.n tills pan o[Ule "",,,",(\:me"! have ~en "'"odifi~ in various ways - often quhe extensively and mOst commonly to ntcmal ~u\.$ and. Mi~e,. Frequently there have ~ major chan,S". to ~Cf11al facadcs (exteIl$ion. 'to the dwelling, change" 10 windows and, doors, enclosure of the lru-ge baloonie3 tha( s"""iccd th,e '~lecpin;gout craze' of the 192(]sl and to the area nnd layout or thesUITO'o.I ndlnog IMei fo!\en by the excision of p, rt of the site or by su~taI1tia1 changes to garden layout oT to associated bu.t1dings and .... orlesl.

As "consequen~ of this, together with lhe LimitarlOI15 a,,""Ptc4 b ' Council's conhtltant3in ~l.. tion to te In'pecti,... ", we have i:n many cases found builclings t.o h""" much leM intcgrity th the consult4nt's anumed at the time they MSesSed the building'S significance. The dfect of any tO$s of intesrity of a dwelling on its heritl'lge significance "'"ill depend on the basis ot that :>ignifLcance. TIl_rore, in au

ConCluSion Moo;.t building. bave inevitably b«n a1t~.~d. OltOll quite subslmltially. &ubseqUl!1Il to their ori,gjnaI con.struction - reflecting ebaoge' in our way of lire. We bave retied on a bullding· by·buil

5.9. Impllc.atiO!ls Of Hardship on the Panel's CcmsJderstit)tts A number of submU5ioni to the Pwlel argued thal, moStly. inclusion of Pru'u<=U];!U' p!'Qp¢rti"s in the amendment would caUSe subst.t.ftual devaluation of the property Mel" seco:ndly, thal this W3lI " maU.t th t we $hould tMe CCO\J:I'It. in d~l;ldir.lg on a recommenda.tiOrl on thn.t bu:Ud~ng'. induaion in the amc:ndmen!.

For 6Bmplc, MT. Pitt (appearing on behalf of IMrs, Strang, in relation to No. 317 Olenferrie Ro. t;\} put taus, in summary, that inreachin deci.ion on wheth~r or not to recommend inclusion of a property in the amendment, we ar;, obliged to ",msider both its heritage importance .n

We also reeei"ed number of submissions that argued that it wollld be iflappl'Opri.a.te t() ronsI!1'Ve particular building:! bceauSI! or the hisl> maint.enance IXlsts (some: buildings were cla.imed to ~ in a vcry pOOt ItOte of rePAlr) or their sener unsuitability (or modem styles of livins;. The" submitters also a.rgued \hat inclu$ion of such buildings in this QJnendment would cau~ bardship to the bo.li1d:in&'$ OWl\er~.

S't"nnin~on2 , doc 42 Stonnington Planning Scheme· Amendment L47jDI P,md Repo "

We have parephraoed the i.~es underlying this IIIfgIlment II (oU()W'$' c The P/armillg <.\ &\"'~"'t Mt 1987 sel" out a nllfjjbcr o( objec: Yes for pllll1rung in Victoria and CR-.ates a planning frIun~rk to a"ru~e these objtctivu. c The objectives fOT p.LaruIin g ~lude one rdaling to ptOYl.dlng 'lIN I1vl. fair, o l'Ctc~, cox> oalle o.nd fILf;tafnab/e ,~ and d .. ""IDpmenloflaJ\d", Mother · 10 COlUerve and cnlttJ.ru:e tho.e ,buildings, areas Or ~Mr pla~ which II"" 0/ $dCllfiji&. OI:$!Mr/c, orehitedural or hislarieal inlifresl or ollwrwis... of cu./4tra/ VCllt

The principle mechanism of plfrdlninll frrunewqrk fOT implem".nting the Act's objecti,,~ for planning i. the municipal ptannlna 1cl\..... e:s I tttion 4t2)b)l. The: planning scheme framework indud~s the Victorum Plannin Provision IVPPs). which set out variOUI type;' of Iwdu so: :.on~ and overlay controls. including the Herltoage Overlay.

It SoCcms to us til .l, in con~i.dcrins this issue, the .-c\evac, quc$t:ion is this: it a bll.ild.inS can be shown to have heritage signill.can,ce, should 9. deci&ioo to desigllltle it in a Herilnge O~erl3,j' ~e account of oUier, Don· heritage objectives of me Act, or bave tbe= mailers been lIoCCOunted for in the structure or planning $ChCnle !r=ew<>rk ilsoill and to now be: open to re.soh.nion by other means.

The purpose of the Heritase Overlay includes jrefccring to the VW (Ol'tnat "Iatem"nt .of purpose): To cort$ero

To COIISII'~ Gild erl/lQJI(e O'1.Q$e "leme/lls which """tribute 1(1 tke s igniJiamctr of In ro:r1Utge place. To elL$ure IMI de",,/opmen! does 1\0/ Clduersely aged /.he signific:once (If IN! keritage pPD.oes.

The SI te Kellon of the VPP planning scheme !\J.so includes vanous equivalent objeetivC$ r,eJ tinS: 1.0 the con,scrvntion and Mse:s.=ent of huilllgC places.

Cleatly, there will have 10 be a balanCe al .some pennt betwttn the interests of heritage conserva.tion IUld the i:neres,ta of individual propeny ownua. In the I. net ~ , ~ wue informed land ace<:ptllllat the introduction of _ beritBge control would atu SiC _ 3ub",tantial reductiGtl in the valu"", of &arne properties. This is a common IIIId, in principle, accepted consequence of c:hllIlgc:s i:n plrulning controls leg. evCD It ailing.. in a COl\ncil's non·"tat\ltoty 1'eaidential ood.c can have quite sub ,~tiB.l ..fIecta on IIOme property', values, dcpe:nding on llIe ,,~c characteristics of o.e property).

In $Orne ~cS. BIIofficious application of the heritaee controls ...."uld prevent houses being a.dapted to tIIod~m living conditions leg. an argumCD t thllt "'"" put j", relation to No. '23 Moorhouse S'tKet, Annadrue). We ~~pt Uial. Ln S

Stonninston2.doc 43 StoruUngton PJ.annJIIg Sch~me - Amendment L47(OI mc~ "rc""nl n'quin>mcnts, !;hill it would be Untel\ Qnabf~ to ll'·"at dwelling!' as mu.. cum pj~ and III l sollie dap don will be required Bml r~ason ... bl'"

In oth.,.,.. C

In (\fl Ill.. bove ctlScli, lhe-s;:- are I$SIICS Ih - I we, con"idei' "hould be m,"" app

Conclusion tn readllng a recollllll.endnuon in tel tion to the bWldings in WI amendment, W~ have cho

We ruso consider lIlal Irllnsparency of tile planning process should be maintained. 'i'hl. c"rtainty rda!~s 10 the obj""tiyc oUaimcss [I'!4MIng & Enuirorunenl lIef J 987, Clau~ 4(1)[aJl and will ""sisl in the pr""""sli Dr balancing the "pn!Senl andJUttue inleP'BStS ofaU V'r.crorians· [PIanni'l/i 05; Em."ronm!!nl Act 1987. C1au.s. 41} 11811_ Thi. I:n!nsp .... ~ncy will be assisted try $Cp;,u-a,ting the process Cir deslgnatinil heritnge' II gnIIICrulc;e from d'!.e Pl'OO«!s, of makil\g d.eri"lDns abau.t bUiJdin~f. conS"rvatiD'fl. wh.ther !his be related to ils replru:ement, IUiteaSOn bly expen ,ve mllinten ~ or unsuitability tor modem living.

5.10. Issua of Includfn.g Only Part ola Properly 'TItIIJ' WIthin the Her/111gB Ovellay In a numb« of eases, submitters SOllg)lt to amend the definition of the butd all'ected by the Heritjige (»;'er! tHO'I. Referring to the form Df Ibe omenclment in the Vp.p rorma~, with its assocla.ted schedule, Ihe whol~ of the site conllli:ning a building that is 10 be prot"cted is to b!l identified on Ihe Henta~e Overliay map, with!Ul usociated $Ch.eiluJe numbl!!r_ The "trc:ct 01 u,,: HO <;.001:<03. j". gcn..rnlll". Ih,n 0. permlt ill teqUited. for any ext~~ buildings and wmka within this [d""tilied area. In making a dcci5ion, Ille Respgn.sible· Authority m1il.,l consider Ihe approprlate !ruIitel's rela.ting lo Ibe heritage ~jsnir.CIUl"" of that sj~e_

The VP'P Praeti~ Not~ : Herita&" Chiude 'arid $lm"Oundillg a /;>uildi'1lg .... To e1\:$Ure t/t(U "'I!I 'lew detJe/opm."nI dOBS 001 ad ..ersclg a!fed. tht: ""Uing Or COnr/tl;l/ o/tJte ~~1It fet:lOIre.. III 'llDSt

44 Stonn nSton Planning Schem~· Amendment L47fO! ]>anel Report

$,Ulan

Hotwlllll:r. there tIIIll be O(ICQ$ 01\$ when the 00/111"0/ $Muld be ~duced in its ex:/

While "

Cottdusion we eons.ider th~t, in principle, it is acceptable that the are de~ignll.ted in the H eOtllig" Ov"rlay be reduced from the who~ CUll !lI"~ whB'e it can be bown th,at the area, to be ""cludro, or the ru ture development of \hi, IU'~ , will not r"oult in deotrlmcnt to the hmwge $igniliCWlCC: of the bC'ritage place - being In ll'lO'$l instances the building (!.sci!.

COIIs¢<\uently, and, where approp.n ' te. '"",,, h 'Ie made "commendations (or II reduction in the _ , to be defined in tho Heritage Overl")' Oli 0. ese-by·"""e basis ,

5.11 . Plann.lng Controls Affecting Areas Adjoin ing an Historic Site There were two types of common submissi

One group of su1)mi,o;

Bolli or Ibe:!IC ooncerns arc directed. in lIOme"'bll~ $imillU' ways. to nrlnImIse the perceived inequity of th e hC!:rilil&e control" by minimising the differences in deydopm.enl opportunities between the beri~ ~ ~te 8Jld its acljolnlng neig):lbours.

BoLh of these i ue can be a(!dr~ssed by Council being mi.otlful o.f the scale of differene~ betv.'KD the devdopmcnt opport'Unic,e:8 of adjoining sites and haitagc "it.,.. Site·spceiJicher!tase conl1oJs do not Lake account of the eontel<'t of eo heritase &ile, th

StoruUnltton2.doe Stonrungton PlMning Scheme - A.mendm=t IA7@1 Panel Re[!Ort

I.hO\lgb it clearly must b~ temper

ConcJusian and Reco.mmendstkm We 'cco!llmendthat, in preparing general pla.nning controls and policies allcctinll ax,.,,,,, Ddj~ Ileri~ e ~tu, Qluncl1l1houl:d $COck to cn51llI, ~ that new development dose to heritage sites does not c"~d a ecale eO!'l:lp(1.tIble with the heritag~ plaC

5.12. Integration 01 the Statement of Significance and the "faltnJng ContrOls Ap;In (tom thO' property-$pccific recommendations that we have made in the foUo""-ng Chaj:>t« 6, there is one major ~craJ j

We nOle that, in llie Vegetation Protection Overlay [vPOl. or Environmental O.'erlay of Ole new fOl"lMt planning $Cbeme · , there Is ptollf ion for . M I_l of the $j:>Ccific I>uq>o~" ot each overl y - to be included. in the schedule ttl th!> O\'~rtl\)'. Weeonsid,~ Ihllt it is hlg!lJy dnlrable that some eqll.[v~etlt mc:chani= be provided (or place. of heritsgcimportwloc. The only dilf.re:nee belW«:rl, ~ay, the 'stateu:itmt of lite l'I(l.tuJ'e and sisnificancc or the vegetation to ~ pro~ted; {in the C88C Qr the VPOJI and !he Sra.lcmcnl or SianiEiC3J'\ce CIC eOl.Ch individual pi oe. in the eMe of the HO. i$ that OIere will be rar more of the latter. Wi there w:iJ1. in many lICb"m~.. . be D largO' numbel­ or individu'llly ~p«ille:d buJldin _ .

At present. !he p!aec where everyone must SO to obtain an understanding of the pedhe 'oa.si$ ole en. neril.llgC place islls Statement or SJ,g:nifieMce. This Stlllcmcnt or Significance has "'0 statu. in the planning scheme: CXCICpt U gcn"rBi reJ~rcnc>c in th,e Dociaion Guidelines to the «:significanCl!t of the hllrifage plaCf/il and whetherthB proposal wi!! adrJelSely affed lhe lIQlu""

We "onsid~r tb!lt it ~ dnira.bte til t U\e$~ Stat¢fllent, of Significance be gh' o:n much more $\a1U;1I within the: hcritag~ provision or the seneme thlln tt.t1>. Th.ere lite two ways til litis could be ebie-oed: c By induding . specific rc1'ercnee to I.hO'S/(ttemcnl oj SlgntJiWJ!l:e in the DccisiQl1 Guideline$ ofthe Heri~e ~lay. (I' • c B' induding !he Slalements of StgJillieance within the schedule of the H"ril.age Ow:,lay.

;"$ mcntirnlcd the view tJjm the Stat

46 StQnnington PlaJminIj Scheme • Am.endment L47!D].

They..." nat surnei~J.l)' speeifie. or dt'aI\ed with soilllclmt """'. 1:<1 make clear th" preei~ basis of eac:b plaoe's h"ritag" signilicancc and the way d<;ci$ion.$ .hO'lJld be: made to prol

Conclusion and Rllcom/Tl(mdiJ.fi'on We reoomm~nd (hat Council """'k the $Upport of the MJn.istc:r to IlmCnd the VPP.. tQ si~e 8'l'e3tCr lmpol'tAnoe to the rol~ of Sl.akme.. 1 of S~gpiJi"anc" [or heritage places. dther by .,.pcci1ic rdccrHlce in the Dcei.il)n Ouidelill¢$, or by induding tho Stat~l .. r SlgnifirnJ1.ce in the sehech.tlc lei Clause 43.0 t.

Stanrting).on2.doc 47 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

I. Monash L51 Panel Report MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

3. KEY ISSUES RAISED IN SUBMISSIONS

3.1 CONSULTATION PROCESS

A number of submitters complained that public consultation on Amendment L51 was inadequate, especially for those from a non-English speaking background. The main issues identified were:

• lack of public consultation about the Heritage Study; • lack of clarity in the notification of Amendment L51 sent to property owners; • no attempt to communicate with non-English speakers; • no public meeting or information sessions planned by Council; • conflicting information given by Council staff regarding impact of the amendment; and • no opportunity for affected residents to express views other than through the statutory process.

The Council submitted that the amendment ‘had been the subject of comprehensive exhibition and consultation.’ Council’s submission lists the statutory notification, advertisement and display procedures, as well as press releases, newspaper articles, and copies of the Heritage Study being available at municipal libraries. The submission lists a community information forum held in December 1998. However, the Panel notes that this meeting was held at the request of submitters, and that only those people who had already made a submission were notified of the meeting. Council also lists a letter sent to all affected property owners advising them that Council would consider the Amendment on 16 March, and a further letter advising of an extension of time for submissions. This letter carried a notice in 4 languages indicating the availability of an Interpreter Service.

The Panel concludes that whilst the process met all statutory requirements, it was not effective as a communication strategy. The statutory notification of the amendment was expressed in purely technical terms and did not to explain the effect of the amendment in clear, practical terms that could be understood by a non-planner.

As a result of this lack of clarity, consultation was further complicated by two leaflets circulated anonymously over a wide area. Some of the information in these submissions was patently untrue – for example: ‘you will not be allowed to make any improvements to your property at all’ and ‘a planning permit may be required for … changing the type, shape and colour of letterboxes, downpipes, garden paths ….’ Furthermore, the leaflets were expressed in highly inflammatory language - for example: ‘this is a small taste of the Gestapo tactics of the Council under heritage’ and ‘… is akin to the collectivisation of farms by Stalin and the confiscation of personal property by Hitler.’ Local press reports responded to conflicts which arose from this material (eg. ‘Polish lady bullied by arrogant Monash Council’) and did little to help provide any constructive debate on the issues before the Panel.

13 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

The proposed HO impacts significantly on areas of Oakleigh with a higher than average proportion of residents from non-English-speaking backgrounds. Many of these residents were post-war migrants and now elderly. These residents were clearly limited in their capacity to understand a statutory notification in English. Later correspondence carried a notice in 4 languages offering an Interpreter Service, but it would have been of more practical help to include a translation of the letter’s heading (eg. ‘Monash Planning Scheme: proposed heritage controls affecting your property’) so that these residents were in a position to judge whether or not they wished to obtain further information. It should be noted that all submitters appearing before the Panel were asked whether they required the services of an interpreter at the hearing. Three submitters requested an interpreter: one addressed the Panel through the Council’s interpreter at the hearing, another was assisted by a fellow submitter, and the third did not appear as scheduled.

It is a great pity that Council did not anticipate the potential for conflict and design an effective communication strategy for both English and non-English speaking residents. Property owners are key stakeholders in this case and, as such, should be able to engage in the debate on the basis of well-targeted, accurate information. The Panel considers that the consultation fell more broadly into the classification of notification rather than consultation. It is evident that concerned residents instigated the one public meeting, and that Council’s notification of this forum was limited to submitters, rather than all those who are directly impacted by the proposed controls.

Planning regulation can be an emotive issue, and it is imperative that a realistic attempt is made to convey both the justification for, and the intent of, any proposed new control. The properties affected by this amendment are the major asset for the majority of the residents, and any constraint, real or perceived, can lead to fear and illogical reactions. It is incumbent on Council to engage individual stakeholders in informed discussion, and not just treat it as a broad ‘community issue’ that has been identified as requiring regulatory control. The interests, needs and concerns of all parties must be addressed to optimise the benefits and minimise the disadvantage to all affected parties and the community generally.

Appropriately prepared material and a communication strategy to respond to the more specific needs of those affected (including multi-lingual information) would have ameliorated the conflict considerably. As it was, a negative reaction to Amendment L51 inevitably arose, and will probably continue. The Council will have to devise creative ways of dealing with this legacy and regaining the confidence of many of its residents.

Panel conclusion on this issue

The Panel concludes that the public consultation process for Amendment L51 was poorly conceived. Although no evidence was given regarding any consultation process used as part of the Heritage Study, the Panel has concluded that it was also inadequate. The study phase offered an excellent opportunity to involve and educate the community, and provide a basis of understanding for the controls that would follow, but it is an opportunity that appears not to have 14 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 been exploited. The amendment proposes to place new planning controls on more than 1450 properties in the municipality, but Council has not anticipated the reaction to what some residents saw as unreasonable constraints, and has not in any way addressed the needs of its considerable non-English-speaking community. The Panel believes that as an outcome of its experience with Amendment L51, the Monash Council should take a quite different approach to consultation for future amendments.

Nevertheless, the Panel has also concluded that the Council complied with the minimum statutory requirements for consultation, and that affected property owners were given a reasonable opportunity to respond to the amendment. The conclusion is supported by the fact that approximately 600 residents in total (including those who signed petitions) expressed their views on the amendment to the Council, and 49 appeared before the Panel.

The Panel recommends that Monash Council develop a much more sophisticated communications strategy for future amendments to the Monash Planning Scheme.

3.2 HERITAGE VALUE

There was a wide variety of views within the community on what constitutes ‘heritage value.’ Some residents were somewhat surprised to find what they regarded as poor quality housing being designated as having heritage value. The areas most under dispute were the inter-war residential areas of Oakleigh.

Many of these residents have owned their houses for many years. The inter-war houses are generally weatherboard construction, with few rooms and simple amenities, and many require maintenance and upgrading to meet today’s accommodation standards. A number of these owners regarded their block of land as an investment for future development, and believed that their house was nearing the end of its useful life. These owners invariably saw the proposed heritage controls as an unjustified constraint with a significant negative impact on their financial expectations (see 3.4 below).

Other owners pointed out that significant alterations had been made to their house, and that it is therefore no longer ‘representative’ of the era cited in the Heritage Study.

A number of submitters did not make a distinction between individual houses and heritage precincts. These submitters had difficulty understanding why their house, while not in itself worthy of heritage listing, should be included in a heritage precinct and be subject to heritage controls.

In general, many submitters simply did not believe that the area within which they live has any heritage value. They viewed the area as ‘not old enough’ and the housing stock not of the quality they associate with ‘heritage value.’ This illustrates the difficulty Councils have in conveying

15 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 clearly a concept of heritage value that goes beyond the obvious and undisputed examples - ie. the Italianate mansions, cathedrals, Flinders Street Station and the like. The heritage values to be found in Oakleigh are much more subtle, and are based on the story told by the area as a whole rather than any of the individual buildings in it.

‘Heritage’ is not solely the province of wealthy individuals and institutions with the means to commission the grandest buildings of their day. Heritage also belongs to ordinary people and the buildings in which they lived and worked. A row of simple miners’ cottages tells us as much about our mining history as the mine-owner’s mansion, and has a parallel heritage value.

Many of Oakleigh’s streets remain as typical examples of the housing stock of the inter-war era and the suburban lifestyle to which their owners aspired. These were not homes built for the wealthy - they are modest weatherboard houses, consciously presenting a brave face to the world in the form of a more substantial brick verandah. In their original form they had two or three bedrooms at most, simple kitchen and bathroom facilities, and a back yard shared by the kids, the washing line, the dog, the shed, the lemon tree and perhaps a few chooks. They were the inter- war version of the great suburban dream, tailored to a modest income. The heritage value of the most intact of these streets lies in their very clear expression of the aspirations of that time.

Although a number of streets are intact in appearance, they are not just static relics, and heritage controls are not intended to make them so. There are many examples where the houses have been lovingly restored and sensitively extended to meet the family accommodation expectations of the 1990s. This is exactly what the heritage controls encourage. The objective is to retain the main characteristics of the street that are intrinsic to its heritage value. It allows owners to upgrade or extend their properties, as long as it is done in a way that does not detract from the heritage value of the street overall.

A number of submissions were made regarding heritage sites that do not fall into the category of ‘heritage area’ discussed above. These submissions are covered in Section 4 of this report.

Panel conclusion on this issue

The Panel fully supports in principle the conclusion reached by the Heritage Study, and endorsed by the Council, that the best examples of intact streets of inter-war housing in Oakleigh have heritage value and are appropriately included in a HO. The Panel accepts that the study leading to their identification was properly conducted, and that assessment against the Criteria for Assessment of Cultural Heritage Significance adopted by the Heritage Council in 1997 was appropriate.

However, the Panel also holds the view that that the overlay has been applied too extensively. Parts of the heritage ‘precincts’ have already been significantly compromised, and their heritage value has diminished to an extent where it can be successfully argued that they no longer meet the criteria. In these cases the imposition of the HO is not only unjustified, but would have very 16 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 little impact. This is discussed in detail in Section 3.3 of this report, including the Panel’s Conclusion regarding the extent the heritage precincts.

3.3 EXTENT OF HERITAGE PRECINCTS

This issue relates to the heritage precincts within which properties are listed as ‘contributory’ and ‘non-contributory.’ It does not relate to individually listed heritage places.

As stated earlier in this report, the precinct-based HO covers some 20% of the suburb of Oakleigh. This represents a significant quantity of interwar development comprising well over 1000 individual houses. Several submitters questioned the justification for including their property or street in the overlay, and the Panel undertook further detailed and extended inspections of the heritage precincts. The Panel then addressed the question of whether all the HO areas are justified.

As outlined in the previous section, the Panel supports in principle the conclusion of the Heritage Study that areas of intact inter-war development have local heritage significance and are therefore worthy of protection through the planning scheme. Given the large extent of the overlay and the varying levels of ‘intactness,’ there are a number of questions that need to be answered before a conclusion could be reached that all areas are of similar heritage value and worthy of protection under the scheme. These questions are:

a) to what extent is the degree of ‘intactness’ relevant? b) how is ‘contributory’ and ‘non-contributory’ status determined? c) are there other issues in some areas which might over-ride heritage objectives? d) do the overlay boundaries adequately define the heritage precincts? a) Degree of ‘intactness’

The HO has been applied in areas or streets where the proportion of intact housing stock ranges from 80-90% of all properties, to 40-50% of all properties, or to a group of 3-6 houses representing as little as 10-20% of properties in a street. Do these widely varying areas all meet the criteria for a ‘heritage precinct?’ A survey of heritage guidelines and studies has failed to locate a definitive answer to this question – most assume that a judgement has already been made that the criteria are met. Nevertheless, the Panel is not satisfied that the Monash Heritage Study has addressed this question rigorously.

It is clear to the Panel that a street or area in which 80% or more of the properties are substantially intact examples of inter-war development has genuine heritage significance, and that it is appropriate to apply the HO. However, streets or areas where the percentage of intact properties is much lower require much more careful consideration.

17 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

In many cases the HO is applied only to one or more separate parts of a street, for example Normanby Street (18-4) or Camden Road (18-3). A specific example is the section of Blechley Road between Neerim and Euston Roads, in which 20 properties face Blechley Road. The overlay covers all 9 properties on the east side and one property at the end of the west side. Of the 10 properties included in the overlay 7 are marked as contributory (70%). These properties are in 2 separate groups of 3 adjoining properties on the east side and a single house on the west side. But if we consider the street as a whole, only 37% of properties are seen as having any heritage significance.

Do these irregular ‘outbreaks’ of small groups of interwar houses read as a heritage precinct? Can a street in which less than half the houses are listed as ‘contributory’ be defined as a heritage precinct? Does this street have genuine heritage significance? Is it a heritage precinct or just a pleasant street in which some houses belong to a similar era – and does it therefore have heritage value or just streetscape value? Would the loss of the contributory houses make any material difference to the quality of the street? It cannot be claimed that the street has ‘rarity’ value as there are many other more intact streets elsewhere in the municipality. On what basis therefore can the judgement be made?

In the Panel’s view, an appropriate basis for the judgement is whether or not the overlay has any realistic potential to achieve its own purpose - ‘to conserve and enhance heritage places.’ At best, the overlay has the potential to conserve the contributory buildings, and enhance them by ensuring sympathetic development on the remaining properties in the HO. However, the street can never increase its proportion of contributory buildings. Indeed, the proportion may well reduce in future because the overlay could not prevent future demolition of at least some of the contributory buildings on the grounds of poor condition or cost of restoration.

Using the Blechley Road example, the overlay may conserve the 7 contributory properties, and ensure sympathetic development on the 3 other properties within the overlay. However, redevelopment of the other 10 properties in the street is not subject to heritage considerations. Over time, one or more of the contributory buildings will be lost. Is there a realistic prospect that whatever heritage value part of Blechley Road may possess can be effectively ‘protected and enhanced?’ And if the 7 contributory buildings in this street are not unusual and there are many similar buildings in more intact streets, how is the HO justified?

Similarly, is a small group of 3-6 houses in an otherwise unremarkable street a heritage precinct or just a group of typical interwar houses, of which there are many more examples in relatively intact streets elsewhere? Can the HO purposes be met? If the remainder of the street is not included in the overlay, the potential for enhancing the contributory buildings through sympathetic development of neighbouring properties is limited by the lack of a heritage objective. Again, while the overlay has the potential to conserve the contributory houses, it cannot guarantee their retention. The loss of one or two houses in a small contiguous group would clearly diminish the value of the rest of the group.

18 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

These comments are intended to apply to the inter-war housing in Oakleigh. Within the overlay areas, however, there are isolated examples of earlier housing, such as the two adjoining Victorian cottages on the east side of Normanby Road in Area 18.3. These houses, for example, are unusual in the area and are clearly identifiable as such, and should be included in a HO in their own right rather than as part of a wider inter-war precinct. b) ‘Contributory’ and ‘non-contributory’ status

The Monash Heritage Study includes a statement under the heading Integrity for each precinct. However, there does not appear to be a direct relationship between the percentage of ‘substantially intact’ houses listed under this heading, and the number of properties nominated as ‘contributory’ in the same area. For example, in Area 18-4 the entry under Integrity states that ‘66% of the houses are substantially intact and therefore contribute to the cultural values of the Area.’ This implies that the other houses do not contribute. However, the accompanying map identifies 120 of the 140 properties covered by the overlay (ie. 86%) as ‘contributory.’ Similarly, in Area 12-10 the text states that 60% of houses are contributory, but 38 of the 50 houses (ie. 76%) are identified on the map. There is no explanation of this apparent anomaly in the study, and it further confuses the question of whether any quantitative criteria were used to help define the heritage precincts.

The anomaly is not explained by a possible reference to a wider area in the text than the HO area. For example, in one part of Area 19-14 (the ‘Golf Links Avenue Area’) the HO covers 60% of the properties in Golf Links Avenue. The text identifies 71% of houses ‘in the area’ as substantially intact, while the map marks 77% of houses in the HO area as contributory, being 52% of the houses in the whole street. Thus we still do not know the basis of the figure of 71%, or how it relates to the HO area.

These anomalies raises genuine doubts about the basis on which many additional houses appear to have been given contributory status on the maps. It is therefore a reasonable question to ask which houses comprise the percentage stated in the text, which additional houses were added, and what justification exists for their identification as contributory buildings. c) Potentially over-riding issues

Given the large quantity of typical inter-war housing in Oakleigh, it is appropriate to ask whether there are some circumstances in which other interests should over-ride heritage considerations. Several submitters raised this issue at the hearing.

A clear example is on busy main roads (Warrigal Road, for example) where it reasonable for residents to take steps to protect their amenity. This could involve construction of solid fences, built in verandahs, double glazing and the like, or building a new house with low sound conductivity oriented away from the road. It should be remembered that most of the inter-war housing is of weatherboard construction with a low level of acoustic privacy. It is also probable 19 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 that new fences will obscure the houses from the street, considerably diminishing the effectiveness of their contributory status. The Panel also notes that there are very limited opportunities for Council and authorities to enhance the ‘public domain’ in Warrigal Road. The same argument could be applied, although to a lesser extent, to residential properties in Neerim Road and Kangaroo Road, both of which are busy collector roads.

In these circumstances, it is reasonable to ask whether controls that actively discourage residents from protecting themselves from ever-increasing traffic noise and air pollution should be imposed.

It should be clear that this argument would not be applicable in streets such as Victoria Parade where the streetscape is definitively linked to heritage value and is capable of both preservation and enhancement.

Another issue raised by one submitter was the need to adapt houses to allow disabled access, including works affecting the façade of the house such as ramps and widened doors. The Panel is satisfied that evidence of specialised needs would be given priority by the Council, and that any such works could be designed to have a minimal impact on the heritage value of the property. The HO could therefore not be seen as preventing appropriate adaptation to provide disabled access. d) Boundary definition

While some streets are included in the HO in their entirety, others have only part of the street included. This partly raises the same issues as those discussed above under the heading ‘Degree of intactness’ but the approach is based on a fundamental question – where should the boundaries of a heritage precinct be drawn - rather than on the quality or quantity of contributory buildings in any individual area.

The proposed Monash HO uses both streets and property boundaries to define precincts. In many cases the street boundary is entirely appropriate - for example in Carlisle Crescent (18-3) where the north side of the street presents an almost unbroken succession of intact inter-war housing, while on the south side there is a preponderance of newer development. In other cases, rear property boundaries are appropriately used – for example, the south side of Calembeena Avenue in 18-4. In both these examples the boundary reflects a distinction between the heritage and non-heritage areas that is clearly visible on the ground.

There are a few cases where the boundary of an overlay is extended to include properties facing into a cross-street at the end of a heritage precinct. Particular examples are 3 properties at the north end of Grant Street and 6 properties at the north end of Clyde Street, all of which have frontages to the Princes Highway (19-13). Although most of these properties are marked as contributory, they do not ‘read’ as part of the precinct in which they are included. These properties are part of the Princes Highway, and in fact turn their backs on Grant and Clyde Streets from most viewpoints in these streets. Their heritage significance should therefore be 20 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 assessed in relation to the Princes Highway rather than the heritage precinct behind them. In the context of the Princes Highway, they are isolated groups of no particular merit. Consideration also needs to be given to the issue of residential amenity on main roads, as discussed in an earlier section of this report. Similar comments could be made about the 3 properties fronting Warrigal Road at the end of Queens Avenue (19-14).

In many cases, however, the boundary wanders along a street including some properties and excluding others, sometimes using the street as a boundary and sometimes using rear or side property boundaries. In these cases there is often little visual distinction on the ground between the heritage and non-heritage areas, and the heritage precincts can only be identified by reference to the maps. If recourse to the maps is necessary to determine the boundary, does the area meet the criteria for a heritage precinct? Should a heritage precinct be visually identifiable as such on entry, giving an immediate impression of stepping into the past? There are many streets in Monash where this is so, but others where the impression is much more diffuse, and a few where the heritage qualities are barely recognisable. The Panel also had difficulty distinguishing between the qualities of the area the Council now proposes to exclude from the overlay in Area 18.2 and the immediately adjoining areas. In these circumstances it is not surprising that many residents have been surprised by, and resistant to, heritage controls.

Panel conclusion on this issue

In the Panel’s view, Monash has such a wealth of inter-war development that it could well afford to discriminate between intact and partially intact streets. There would be much to gain by focussing the HO on those streets or precincts where heritage values are clearly discernible to residents and visitors alike. The integrity of the HO would be enhanced instead of dissipated, as at present, by the inclusion of marginal areas. This approach, by its very transparency, would also be more likely to gain the support of the local community.

It must also be noted that any areas excluded from the HO would instead be covered by Monash’s extensive urban character controls. Thus the loss of the HO overlay would not result in new development that is insensitive to local character, including those elements specifically identified as characteristic of inter-war development. This is another good reason for Council to be particularly selective when applying the HO.

In section 4 of this report, the Panel nominates a number of specific areas it believes should be subject to critical review. These areas are identified as representative examples of places that appear to be compromised to an extent where the application of the HO may not be justified, and where urban character controls may be more appropriate. The review should not, however, be limited to these examples – all areas should be reviewed to ensure that the objectives of the HO are capable of being achieved.

21 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

The Panel also believes that in cases such as Warrigal Road, which is not substantially intact, is not noted for its heritage character and is subject to very heavy traffic, residential amenity considerations should prevail.

The Panel concludes that the overriding principle should be that an area should not be included in a HO as a ‘heritage precinct’ unless it is clear that the purposes of the overlay – ‘to protect and enhance a heritage place’ – can be realistically achieved.

The Panel recommends that Council review the extent of the HO in the inter- war heritage ‘precincts.’ The overlay should focus on substantially intact streets or areas with clear visual boundaries. Areas with marginal heritage value, where there are clearly overriding issues, should not be included.

As part of the review, all proposed areas should be tested against the principle that the overlay should only be applied where it has realistic potential to achieve its objectives.

In section 4 of this report, the Panel nominates a number of specific areas where it believes the application of the HO should be reviewed. The areas nominated are not meant to be a comprehensive analysis of all HO areas. Rather, they are indicative of the type of marginal area in which, in the Panel’s view, the objectives of the overlay are unlikely to be achievable.

In relation to the issue of ‘contributory’ and ‘non-contributory’ buildings, the Panel concludes that there should be clear consistency between the statements made in the Statement of Significance and the number of buildings identified on the maps.

Te Panel recommends that the contributory status of all buildings in the heritage precincts be reviewed to ensure there is consistency between the percentage of ‘contributory’ buildings identified in the Statement of Significance and the number of ‘contributory’ buildings identified in maps.

3.4 PROPERTY VALUES

A number of submitters claimed that the HO would de-value their property, and there should be appropriate compensation. Some of these submitters referred to the findings of a recent report by valuers Herron Todd White. This report evaluated the impact of Heritage controls on the value of 48 properties in the City of Stonnington. The report concluded that heritage controls have a negative impact on property value.

The Panel notes firstly that, apart from the proposed acquisition of land for public purposes, planning controls cannot be subject to compensation under the Planning and Environment Act 1987. It also notes that all planning controls are likely to have some impact on potential property 22 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 value, and that the HO is no different from other planning controls in this respect. The Panel report on Amendment L35 to the Boroondara Planning Scheme L35 (chaired by Peter Davies) expressed this point as follows:

‘It should be recognised that the process of bestowing a heritage designation is a valid planning procedure through the very ability to initiate an amendment of the form which is before the Panel. It should also be appreciated that in virtually every instance of the designation of a planning boundary or planning controls there will an intrinsic relationship with the status of a property, its potential and its market appeal.’

In its submission to the Panel, Council addressed the issue of property values in some detail. Reference was made to the findings of a 1995 Heritage Victoria report ‘Economic Effects of Heritage Listing’ commissioned by the Australian Heritage Commission. The Panel has not sighted this report, but has been advised its conclusion was that heritage listing is a ‘minor factor’ in changing land and building value. Council also referred to a 1990 D’Arcy report analysing the value of historic buildings in Melbourne from 1986 to 1989. This report found that in the metropolitan area listed dwellings increased more in value than unlisted dwellings over that period.

The Panel has also noted the 1992 study by Countrywide Valuers ‘Heritage and Property Valuations in the Shire of Maldon. The study concluded that heritage controls have had no adverse effect on property values in Maldon.

The Council’s submission also referred to, or quoted, Panel reports on similar amendments to the Stonnington and Boroondara Planning Schemes.

This Panel fully supports the views of these reports, which consistently conclude that heritage controls have minimal impact on property values, that the impact is difficult to predict, and that values are at least, if not more, likely to rise as they are to fall. It is worthwhile to quote the conclusions of the Panels here:

Stonnington L55 (Michael Read, Chair) ‘With respect to the concerns about loss of property values,. Property values are derived from a number of factors, many of which have little to do with the direct actions of individuals, eg the effects of location and the provision and quality of surrounding urban services. Likewise, changes over time in residential property values can also be attributed to a many factors, of which the effects of heritage conservation and changes in redevelopment opportunities are only two of many. Effects of the Conservation Area zoning would be difficult to predict and, over time, could be positive or negative for different properties. Certainly, there are a number of examples where property values have been improved by heritage planning controls and I see no reason to draw any conclusion about the effect of this amendment on property values. To the extent that planning controls provide greater certainty about development outcomes, they may well result in improved property values - depending on what aspect of an area underlies its properties’ values’. 23 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

The concern that has been expressed about potential loss of property values or restrictions on property owners’ freedom to do as they like with they dwellings does not, in my assessment, provide any basis for rejecting the rezoning.

Boroondara L54 (Nick Beattie, Chair) ‘While it might at first be feared that the restriction of rights and opportunities to develop will depress property values, the Panel is aware of compelling evidence to support the view that property values either remain unaltered or increase when heritage controls are introduced. It appears that not all people see property as an opportunity to re-develop for capital gain. t also appears that many people value the characteristics that development controls seek to protect or they are reassured to know that the neighbourhood of the property is controlled so that no unsympathetic development can disturb their enjoyment or reduce the value of their property.’

The Panel has not been provided with any conclusive evidence of the impact of heritage controls, either positive or negative, on property values. There are other impacts, however, such as certainty that unsympathetic development will not intrude into a given area, that can make a heritage precinct attractive to potential buyers. Similarly, there is clearly a market for housing in heritage areas that reflects the high value that much of the community places on heritage buildings and precincts.

Interpretation of this issue in the context outlined above is subjective, and principally reflects the ultimate objective of the property owner (as purchaser or vendor) and to the market forces in play at any given period. The Panel’s view is that the HO, particularly with the limited range of elements under statutory control as proposed, is only one of a number of factors influencing property values.

Panel conclusion on this issue

The Panel concludes that although some submitters believe that property values will fall as a result of the HO, there is no consistent, independent evidence to support their belief. The very few studies undertaken to date on this issue are generally limited to specific properties, a specific area, or a specific building classification. None of these studies has either an application to heritage areas in general, or a direct application to the heritage precincts in Oakleigh. Most of the studies note the difficulty of isolating the effect of heritage or planning controls from other factors such as locational, geographic, social and economic forces.

With the recent or impending introduction of HOs in many municipalities, the Panel believes it would be a very useful exercise for the Department of Infrastructure to commission a broad- based independent study of the impact of area-based heritage controls on property values. This issue will continue to be raised by submitters in Panel hearings, Council meetings and other forums. he debate will be inconclusive as long as there is no definitive study to inform it. The issue of compensation will also continue to be raised, notwithstanding the lack of any statutory basis for compensation to be paid. The issue needs to be clarified so that the whole community, 24 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 as well as those with affected properties, can engage in informed debate rather than in rumours and speculation.

The Panel recommends that the Department of Infrastructure commission a broad-based, independent, expert study of the impact of area-based heritage controls on property values.

Although such a study would provide useful information for the community and for property owners, it is important to recognise that the information would play only a peripheral role in the amendment process. As noted by other Panels, property value is not in itself a valid planning consideration. Either an area has recognised heritage value that is capable of protection and enhancement, or it does not. If it does, the Heritage Overlay should be applied. This is the only valid test for application of the Heritage Overlay.

3.5 CONDITION OF BUILDINGS

A number of submitters claimed that their properties were in such poor condition that it was neither sensible nor economically viable to restore them. Others claimed that their houses had no heritage value because of substantial alterations already made to them. Many submitters provided photographs in support of these arguments.

Poor condition

The HO does not prevent demolition of buildings, but requires a permit for demolition. The physical condition of the building is a factor the Council will take into consideration when deciding whether or not to issue a permit for demolition. A number of submitters were quite satisfied when this was explained to them. However, it was not made clear in any of the documentation sent to affected owners, and this resulted in a number of submissions that may not have been received had this been understood.

Substantial alterations

A number of houses identified as ‘contributory’ have been substantially altered by, for example, the addition of second story at the front of the house, or the application of external brick cladding. Submitters put the view that these buildings are ‘beyond recall’ in a heritage sense.

The Panel is inclined to agree with them. Obviously, there are cases such as notable ruins where the feasibility of restoration is not an issue in assessing heritage value. But in a case such as the inter-war housing stock in Oakleigh, where many examples exist, a line can be drawn to distinguish between the reasonably achievable and the unreasonably achievable. Again, it is a matter of assessing whether the objectives of the overlay can be met. If the works required to restore the visible parts of the house to its original form are clearly out of proportion to the

25 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 house’s value, and a requirement that the owners restore the facade would be unreasonable, the Panel does not believe that the objective can realistically be achieved.

Panel conclusion on this issue

The Panel concludes that the Monash Planning Scheme should state clearly that the physical condition of a building will be taken into account when assessing an application for demolition. (Further comments and recommendations are made relative to this issue in section 5.1 of this report.)

The Panel also concludes that buildings that have been altered to the extent that their heritage value is significantly compromised, and where there is no realistic prospect of restoration, should not be identified as ‘contributory’.

The Panel recommends that buildings whose heritage value has already been significantly compromised by alterations should not be identified as ‘contributory’.

3.6 LIFE EXPECTANCY OF HOUSING STOCK

Some submitters claimed that the inter-war Oakleigh housing stock, being of weatherboard construction, was never intended to have a long life. These submitters claimed that the houses are nearing the end of their useful life, and that a cycle of demolition and replacement is due.

The Panel acknowledges the assumption behind these submissions that brick and other masonry structures are normally expected to have a longer life than weatherboard ones. However, the Panel cannot accept the leap in logic required to conclude that weatherboard structures are therefore not worthy of preservation. Each structure, whatever its materials, needs to be assessed on its own merits.

The Panel notes that intentions at the time of construction are not necessarily indicators of future usefulness or heritage value. For example, Melbourne’s Exhibition Building was built as a temporary structure; many of its timber components would have been masonry if a long life had been anticipated. Nevertheless, the building has not only survived intact but has become one of the city’s treasured heritage icons.

In its inspections of the heritage precincts in Oakleigh, the Panel observed houses in at least three phases of what might be called a life cycle. The first group has received little maintenance and almost no improvements since construction, and as a result the houses are in poor physical condition (Many of these are rental properties bought for investment purposes, including later redevelopment.) The second group comprises reasonably maintained ‘family’ homes that are

26 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 clearly capable of restoration and extension. The third group comprises houses that have already been restored, often to a very high standard, and sympathetically extended.

It is clear from these observations that a cycle of restoration and extension is just as feasible in many cases as a cycle of demolition and replacement.

Panel conclusion on this issue

The Panel concludes that the age of these houses, or any ‘life expectancy’ their builders may have had in mind, is irrelevant. Clearly the vast majority of them are still serving the purpose for which they were built, and those in a reasonable state of repair are capable of adaptation to meet current standards. The well-restored examples demonstrate both their attractiveness to buyers and their capacity to serve a new generation of families.

3.7 DEMOGRAPHIC ISSUES

A number of submitters claimed that Amendment L51 was inappropriate because it did not take into account the age or cultural profile of Monash residents, particularly in the Oakleigh area. It was claimed that Oakleigh has higher than average percentages of older residents, residents born overseas and non-English speaking residents.

The 1996 ABS census figures for the City of Monash partly support this claim. Residents 50 and over comprise 31% of the City of Monash’s population, compared with the metropolitan average of 25.3%. However, the figure for Oakleigh (postcode 3166) is 28.5%, slightly lower than for Monash as a whole. A similar relationship exists in the percentages of those born in non-English- speaking countries (metropolitan average 25.2%, Monash 29.9%, Oakleigh 29%). However, for those speaking languages other than English at home, Oakleigh (37%) is higher than both the metropolitan average (26.1%) and Monash (31.6%).

The Panel is in agreement with the submitters about the broad facts, but the question is whether they have any relevance to the application of the HO. One inference drawn by submitters was that older people or those from different cultural backgrounds may not have the same appreciation for the heritage value of the inter-war areas of Oakleigh. The other inference was that older residents, regardless of cultural background, were concerned about a perceived reduction in the value of their property as an investment for superannuation purposes or redevelopment, or as an asset to leave their children. Indeed, submissions were made to the Panel by the children of such residents openly concerned about the value of their inheritance.

While the Panel acknowledges the issue raised by these submitters, it must be stated that the attitudes of individual residents, or even of groups of residents, are not the primary basis on which heritage controls are applied. The only determinant of whether the application of such controls is justified is heritage value, as assessed against established criteria. Whether the 27 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999 percentage of residents who do not support the controls is higher or lower, and for whatever reason, is not a valid planning consideration. It does little more than explain the reasoning underlying some submissions.

However, these submissions draw attention once more to the way in which Council ‘marketed’ the intent of Amendment L51 to its community. There is a clear link between claims that certain classes of residents have less interest in heritage values, and the nature and quality of the information provided by Council to those affected by the HO.

Panel conclusion on this issue

The Panel concludes that while Oakleigh has higher proportions of older and non-English speaking residents than the metropolitan average, it is not a relevant factor in determining whether a heritage overlay should be applied.

3.8 IMPACT OF HERITAGE CONTROLS

There was a great deal of incorrect information circulated in the leaflets in the Oakleigh area about the impact of the HO. As already stated, it is unfortunate that the information initially provided by Council did not explain the relevant controls clearly, and that the Council did not then nullify the impact of the leaflets by issuing a clear statement of the facts, and the criteria Council would use when assessing applications.

As discussed in section 3.1 of this report, a number of residents had a greatly exaggerated idea of the nature and extent of the controls. For example, some residents believed that items such as footpaths and letterboxes would be strictly controlled, and that internal alterations would be prohibited. Against this background, it is very important that Council clarify exactly what will and will not be subject to a permit in the heritage precincts. For example, the vast majority of properties are not subject to external paint, internal alterations or tree controls. While this is easily ascertained by those who know how to use a planning scheme and schedules, it is a quite a complex process for a novice to follow.

Panel conclusion on this issue

The Panel concludes that much of the opposition to Amendment L51 would not have arisen had the Council provided clear, concise information in plain English. Residents trying to assess the impact of the controls were left to wade through a mire of statutory jargon, and it is not surprising that incorrect interpretations were made. It is not too late for Council to prepare and distribute appropriate information, tailored to those in heritage precincts, in anticipation of finalisation of Amendment L51.

28 MONASH PLANNING SCHEME AMENDMENT L51 REPORT OF THE PANEL OCTOBER 1999

The Panel recommends that Council prepare and distribute as soon as possible an Information Bulletin to property owners in the heritage ‘precincts’ identified in Amendment L51. The bulletin should also contain an update on the amendment process, and set out any actions Council proposes to take in response to the Panel report.

The Panel also concludes that it would be of great assistance to residents for Council to set down the factors it will take into consideration when making decisions on permit applications, and the criteria against which applications will be assessed. The information should also clarify any differences in the criteria to be applied to ‘contributory’ and ‘non-contributory’ buildings. The Panel makes further comments and recommendations on this issue in section 5.1 of this report.

29 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

J. Stonnington C5 & C6 Part 2 Panel Report Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

4. CONSIDERATION OF ISSUES OF PRINCIPLE

This section of the report provides an analysis of the approach undertaken by Council in its heritage assessment.

4.1 Use of the Australia Heritage Council’s Criteria

4.1.1 Relevance at the Local Level In the assessment of cultural significance, Mr. Butler used the Australian Heritage Council (AHC) criteria for assessing cultural significance at the national level. This is the approach that Council has applied through a number of previous studies, the only significant difference in this case being that Mr. Butler has avoided developing any internal ranks of significance and has only assessed places on the basis of their significance at the local or national level. (In previous studies, a third category of regional significance had been used, though the extent of such region had never been defined).

A number of submissions questioned the appropriateness of the AHC criteria to the assessment of cultural significance at the local level. In this matter, they commonly referred to comments made by the Amendment L47(D) Panel, which had discussed two aspects of this issue under the sub-heading Implications of Local Significance as a Threshold of Selection: general applicability of the criteria and their necessary modifications for use at the local level.

The Amendment L47(D) Panel concluded and recommended as follows:

We conclude that the AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration. In our view, much difficulty is caused by the uncertainty of, and various interpretations of, the application of these criteria to the local level.

We recommend that Council should seek State Government support to a review of these criteria for use at the local level. State (Heritage Victoria is the obvious body with the appropriate responsibility. The AHC criteria provide the obvious basis for such criteria, but the elaboration and illustrative examples are the critical features that are required to assist Councils and the community in this matter.

This Panel’s interpretation of that discussion is that the issues referred to related, respectively, to the appropriateness of different criteria to different aspects of urban heritage and building design and to the problem of defining the threshold level of

Page 20 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003 local significance.

Mr. Montebello advised the Panel that Council officers have, since receiving the L47(D) Panel report, discussed that Panel’s recommendations with officers of Heritage Victoria and the (then) Department of Infrastructure, requesting that they prepare an appropriate review in response to that Panel’s recommendations. However, no review has been undertaken and no further guidance is available from Heritage Victoria or the (now) Department of Sustainability and Environment on this matter.

Panel’s Specific Application of AHC Criteria Mr. Butler provided a table wherein he compared the AHC criteria he had used in his assessment, the relevant comments of the L47(D) Panel on the previous use of those criteria and his own response to the latter in terms of his use of the AHC criteria in the current assessments. The Panel found this comparison very useful and, in order to provide a simple overview of this Panel’s approach to the application of the AHC criteria, the following table is provided, based on that of Mr. Butler’s table. It sets out in three columns, the AHC criteria, Mr. Butler’s comments on his use of these criteria and, finally, a brief outline of this Panel’s position. This Panel’s elaboration of its reasons in respect to a number of these positions is then set out following the table.

Page 21 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Page 22 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) HISTORIC VALUE The contribution a place might have While the Panel accepts Mr. Butler’s A.4 Importance for association with event, in public understanding the historical point in principle, it is also concerned developments or cultural phases which have development of the suburbs in the that, given that Stonnington was had a significant role in the human occupation city, where landmark houses (such as characterised by an extensive process and evolution of the nation, State, or 3 & 9 Forster St) survive among later of development and redevelopment community development as markers of the first over the period from 1856 onwards urban phase following the into the early 20th century, that this Explanatory notes agricultural character of the first land criterion would apply to a very This criterion applies where the contribution of use. larger number of buildings. an event, development or phase to the broad The Panel does not consider that all patterns of Australian history or prehistory can In other cases the large 20th century or even most phases of architectural be clearly demonstrated, or where the place houses built in the grounds of the stylistic development should be epitomises elements of those patterns. Victorian-era mansions of Toorak categorised as phases in cultural (eg. 48-50 Irving Rd) illustrate an development. While the Panel Inclusion guidelines important inter-war development era acknowledges that this point is Places associated with events or developments in the locality while major and well- debatable, it would at least be which contributed to or reflect long-term preserved flat blocks epitomise this necessary to distinguish between changes in prehistory or history. next phase of urban consolidation. those architectural styles that were based on significantly different Places representing 'landmark' cultural phases In each case the property had to philosophies (eg. the various subsets in the evolving pattern of prehistory and reflect closely the period in which it of the Arts and Crafts style vs. history. was created and the associated phase classical or modernist) rather than of historical development in the City. A place eligible for its association with a the variations within these (eg. significant scientific theory must have a clear Spanish Mission, the several and important relationship to the development variations with Arts and Crafts of that theory or its early application in style). The Panel takes the view that Australia. these stylistic variations are variations within the overall

Page 23 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) A place eligible for its history of science province of Criterion E1. associations must have a strong connection with the work of an historically significant scientific In some cases where this Criterion figure or with an historically significant has been applied, buildings have scientific exploration/ undertaking, or been referred to as “landmark”. It is methodological development. not clear whether this phase refers to their visual prominence or as Exclusion guidelines markers of development. Places which do not demonstrate a particular contribution to, or allow an understanding of, Overall, the Panel considers that it is the broad evolutionary patterns of Australia's appropriate that this criterion only be natural history, prehistory or history. applied where the buildings

represent a quite distinct and major Places where claimed associations with events, phase of development, rather than development or phases cannot be verified. some point in the ongoing, more

general process of suburban Places are not eligible if they have been altered development. so that the aspects of the environment important to the association have been seriously degraded.

B.2 Importance in demonstrating a distinctive Our use: If an example of an architectural style way of life, custom, process, land-use, function ƒ Rarity within an established is to be nominated for rarity, it must or design no longer practised, in danger of cultural phase (see panel); also be sufficiently important that it being lost, or of exceptional interest. ƒ Rarity because of great age and be identified under some other the small number of surviving criterion. The Panel does not Explanatory notes places representing an early consider rarity alone as being This criterion applies particularly to places phase for the region or locality significant for an example of an which characterise past human activities which (see 19 Mayfield Avenue); architectural style which is otherwise are rare, endangered or uncommon by virtue of ƒ Rarity because of the use of not significant.

Page 24 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) their being: uncommon building materials, ƒ few in number originally; such as carved and dressed stone, This Panel also adopts the comments ƒ few in number due to subsequent which represent a now rare skill of the L47(D) Panel, as follows. destruction; of execution within a recognised “If an example of an architectural style ƒ susceptible to rapid depletion due to vernacular or style for the region is not representative of a widely used changed practices or other threats; or or locality (see 3 Benson) Avenue; style, or not one demonstrating an ƒ outstanding example of uncommon human ƒ Rarity as an unusual important transition in stylistic activity. combination of linked types (say development, or not one providing an garden and house design, as 48- important link in understanding the Inclusion guidelines 50 Irving Rd) within an development of such styles, it could be Scarcity may be the result of historical process established style or vernacular seen as a stylistic aberration or an (ie. few of such places were ever made) or of (Arts & Crafts design). innovation that went nowhere. While subsequent destruction or decay. However, architectural oddities and failed stylistic rarity must be demonstrated to be more than The L47(D) panel has concurred with experiments may in some cases be simply absence of survey information. the guidelines, in terms of rarity important, We believe that they would being significant only within a need to be supported by a very thorough Rarity in some cases may apply to the survival recognised cultural theme(s). justification if they are to be assigned of the combination of characteristics and the any heritage significance. place as a whole may lack integrity. Conclusion Rarity at a regional or State level must be In considering the importance of rare assessed in the context of its distribution and examples of buildings, We have taken abundance in other regions or States. Rarity in into account a number of factors relating one location when compared with abundance in to the cultural importance of the relevant another may or may not give the place national architectural style at the local level. estate significance, depending on the cultural Generally, We have ignored rarity unless context. it relates to an aspect of heritage that has an established significance.” Exclusion guidelines

Page 25 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) Rarity at local, regional or State level does not necessarily confer national estate value, unless such rarity has particular cultural significance.

Places deemed to be uncommon due to lack of research/survey may subsequently be found not to be eligible under this criterion. Evidence of rarity will normally be required. D.2 Importance in demonstrating the principal The use in this review has been often The Panel agrees with the position characteristics of the range of human activities aimed at: outlined by Graeme Butler, opposite. in the Australian environment (including way ƒ a Type of building design, or It has also adopted the view that this of life, custom, process, land-use, design or ƒ Type of building use, ascriterion relates only to types of technique). qualified by the style name and activity and land use and not to the use definition (medium sized variations in architectural style. Explanatory notes 19th century suburban villa, Architectural style is considered to A place must clearly represent the period, tennis club pavilion, stylistic be an outcome of human activities method of construction, techniques, way of life, representee). rather than a way of classifying the etc of its Type... as determined by comparison of nature of the activities themselves (as the place to its Type as a whole, analysing such The place had to clearly represent the is applicable to building types). factors as: period, method of construction, ƒ Condition and integrity, including techniques, way of life, etc involved This Panel also adopts the comments consideration of minimum area for long with the defined Type... as of the L47(D) Panel, as follows. term viability; determined by comparison of the “The question is whether this ƒ Abundance and distribution of the Type; place to other examples of its Type in information relates to some important or ƒ Degree of homogeneity or variability of the terms of condition and most meaningful aspect of our cultural Type over its range. importantly, integrity. heritage. To use the example of a ƒ The presence of unusual factors (which doctor’s surgery attached to a dwelling, may be assessable against other criteria) Relative high integrity within a it seems to us that such an example may be relevant in determining significance recognised Type was a prerequisite would only be important if it provided

Page 26 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) under this criterion. for significance under this criterion, important information about the nature the high integrity (compared to of medical practice in general, or about Scope: Historic others of the Type) yielding the most an important sub-set of medical Places representative of the diversity of historic visual information about the physical surgeries. It does not necessarily follow places, both by Type and by region. appearance of the type and hence its that, just because a particular example of understanding within the overall a building type is rare or intact, that it is Inclusion scope of cultural Types. That the important. A place may be entered in the register for its Type should be recognised culturally representative value if one or more of the is the main factor, the significance of Conclusion following apply: the Type itself under other criterion We have been only prepared to accept • It can be regarded as a particularly (such as A4) being a secondary examples of particular building types or good example of its Type, or a consideration (see L47(D) panel land use mixes as being of heritage significant variant of the Type view). significance (AHC Criterion D) if it is equally well; also demonstrated that the examples • It is one of a number of similar relate to a significant and important places which are all good examples aspect of their culture period.” of the Type, but has a higher national estate value by virtue of its integrity, condition, association with other significant places or setting; • It is part of a group of places which collectively include a range of variation within the Type; • It represents the seminal or optimal development of the Type.

Exclusion

A place may not be eligible under this criterion

Page 27 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) if it is not representative of the characteristics which make up the established Type.

E.1 Importance for a community for aesthetic Used to denote a successful design The Panel notes that, characteristics held in high esteem or within a recognised style, within the notwithstanding Mr. Butler’s otherwise valued by the community. accepted community stylistic acceptance of this point, the framework. Recognition in Statement of Significance for many of Explanatory notes established architectural magazines the places in this amendment The aesthetic values of the place must be able to or by professional criticism adds regularly refer to Criterion F1 be assessed with sufficient rigor to allow the another facet to the significance, that (innovative or outstanding design), basis for registration to be stated clearly. of recognition by a community occasionally to Criterion D2 and

group. sometimes to Criterion B2 (rarity) Inclusion guidelines without reference to E1. A place is eligible if it articulates so fully a Our use: particular concept of design that it expresses an ƒ The place expresses a particular This Panel also adopts the comments of aesthetic ideal (eg. a place which epitomises the concept of design, epitomising the the L47(D) Panel, as follows. design principles of an architectural style, “…should be applied to architectural design principles of an landscape ideal, etc.) or if the place, because of styles; eg. in identifying a building as architectural style, landscape its aesthetic characteristics, is held in high important for its representation of the ideal, or esteem by the community. ƒ because of its aesthetic Victorian/Italianate style, Criterion E1

characteristics, is held in high esteem would be applicable.

To be eligible, a place must have a high degree by the community (as demonstrated ( The) contents list from Apperly et al (1989), of integrity so that it fully reflects the aesthetic by inclusion in a national A Pictorial Guide to Identifying Australian qualities for which it is nominated. architecturally based periodical, Architects, … nicely illustrates the authors’

recognition by the National Trust of categorisation of the variety of styles and the

The values of landscapes, townscapes and Australia (Vic) or within a relevant dates over which they considered streetscapes must be demonstrated using professional assessment). these different styles to have been in vogue. accepted standards of assessment in those fields. ƒ To be eligible, the place must Places which contribute to such values in a have a high degree of integrity. We have concluded that an example of an wider area might also be eligible. architectural style would be important

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) pursuant to Criteria E if it can stand as a Exclusion guidelines good exemplar of a style (ie. it provides a A place is not eligible if the design concepts or particularly good representation of the aesthetic ideals are not expressed in a way that principal or archetypal features of a is better than that of other places within its style) where that was itself important Type, ie. if it is not outstanding. (eg. widely used, or influential) in domestic architecture. Where buildings A place is not eligible simply because it is the were held to include elements of different work of a highly regarded architect, artist or architectural styles, thereby representing engineer. It must be outstanding for aesthetic a transition or evolutionary phase from reasons. one to the other, we would require reasonable certainty that the elements provide a genuine reflection of that transition process, not just some idiosyncratic compilation of stylistic elements”.

F.1 Importance for its technical, native, design Used to denote a design that is In the Panel’s view, most of the cited or artistic excellence innovation or considered now to be an early or examples of innovative design achievement successful or innovatory creation reflected the adoption by local within the framework of a architects of new architectural trends Explanatory notes recognised style: this does not that had already emerged overseas Creative or technical achievement can mean include popular recognition at the or in Australia or Victoria. While artistic excellence or technical excellence, time of creation as in Criterion E. these architects may have placed an innovation or achievement in many fields. Such individual interpretation on these achievements can only be judged by comparison styles, this is a typical aspect of with contemporary and subsequent architect’s work in general and developments in the same fields. Some creative applies to their treatment of both

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) or technical achievement may be apparent in established and emerging styles. The virtually any type of humanly created or Panel does not consider that these influenced place or structure. examples of stylistic ‘innovation’ qualify as “innovative departure from Inclusion guidelines established norms” which would A place is eligible if it demonstrates clearly a require something much more particularly appropriate solution to a technical radical than has been demonstrated problem using or expanding upon established here (but may be applicable to some technology, or developing new technology, that of the prototype examples of new solution being outstanding due to its conceptual styles overseas. In Australia, in the strength. This might occur, for example, in the Panel’s view, innovative architecture fields of engineering, architecture, industrial generally represented the adoption design, landscape design, etc. and adaptation by local architects of innovations already established A place may be considered to be outstandingly elsewhere. creative if it results from the innovative departure from established norms in some field This Panel also adopts the comments of design or the arts. of the L47(D) Panel, including the following. To be eligible, a place must have a high degree “Furthermore, as already discussed, we of integrity so that it fully reflects the aesthetic have taken the view that ‘aesthetics’ of or technical qualities for which it is nominated buildings is most readily dealt with in

terms of architectural styles (AHC Exclusion guidelines Criterion E). A place is not eligible simply because it is work of a highly regarded architect, or engineer. It must be outstanding for creative or technical reasons.

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) H.1 Importance for close associations with This criterion has been used as of the The Panel is not persuaded by Mr. individuals whose activities have been 1990 guidelines; although Professor Butler’s response, opposite. The significant within the history of the nation, Davison (What Makes a Building Panel’s view is elaborated later in State or region. Historic) and the previous L47(D) this Chapter. panel’s views are noted, they are not Explanatory notes the prescribed basis for use of these The L47(D) Panel’s comments are criteria in this review. repeated below. The individuals might be important in the arts, “In principle, we have adopted the sciences, politics, public life and many other Our use: position put by Sir John Summerson, areas of the life of the nation and its history. The importance or prominence of the that is, that while it may be of interest to associated person must typically know that a building is associated with The association should be with the person's extend across more than one locality someone of importance in the local or productive life only, unless there are few other (Malvern, Toorak, Sth Yarra etc as wider community, that will not be places available which illustrate the person's defined above) to extend to a defined considered to have major heritage contribution, or unless their formative or `region’ or group of localities. significance unless the ”the man and the declining years are of particular importance to Association with the noted designer building he inhabited somehow help to their contribution. This applies to birthplaces has been on the basis of it being a key interpret each other”. and graves as well. example of his/her work, not an incidental or minor commission. (panel) …most men of middle or higher- The length of association of person and place class status live in houses appropriate to is usually important87, especially if the The historical association with their position. While the design (ie. association has been transitory or incidental, or residents or owners (including style, size, etc.) of such houses is if other places exist with longer and more designers if they have this status) is consistent with their occupants’ social meaningful associations. The association of the taken on the basis of: and economic position, we conclude that place with a particularly important and ƒ them commissioning the design, they do not, in general, do much to short-term event affecting the person may be this being a key indication of the interpret the life of their occupants one of the exceptions to this condition. person’s tastes and public status, except in a fairly predictable way.

87 G Butler’s emphasis.

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) or Usually, we found that a person’s The extent to which the association affected the ƒ a long term occupation (not an ownership and/or occupancy of a fabric of the place, and the extent to which the incidental or fortuitous association dwelling was unrelated in any place affected the person or events associated as L47(D) evidence) in a period meaningful way with those activities for with the person, can be important. when they were active in their which their owners (or occupants) were prescribed field. famous, and contributed nothing much This criterion also applies to places which have What the fabric may tell you of the to our understanding of the person or been used by historically important scientists. person may be simply that the house their fame. In cases in which an The scientists may be important for their fits your preconceptions of the important person had only owned a continuing standing in their disciplines or for person (see panel) but, even if this is building (as a property investment), it their importance in Australian scientific history so, it is still vital evidence of the could be argued that the person's motor generally. For example, a number of pioneering lifestyle of the person, whether car, or suite of clothes, might be worthier Australian scientists were better known as predictable or not. of preservation.” explorers, eg. Leichhardt, Cunningham. In view of this perception, places identified with such And about the issue of association with historic figures will usually be significant an important architect: “We consider it appropriate that where against Criterion A4. an architect’s use of an architectural Inclusion guidelines style is unrepresentative of the work on The person's contribution must be established which his professional prominence is sufficiently by historical documentation or other based, it is less important for that reason. firm evidence, and the association of person We consider that such buildings, while with place established clearly in a similar way. providing some additional understanding of an architect, do not A building designed by a prominent architect contribute to understanding the basis of may be eligible under this criterion if it his major professional contribution to expresses a particular phase of the individual's our architectural culture, ie. while they career or exhibits aspects reflecting a particular may contribute at the margin of our idea or theme of her/his craft. It is possible that understanding, they do not contribute to

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) several places may represent different aspects of its core; they are not therefore the productive life of an important person. particularly important. We have Similarly, several examples of a person's work likewise taken the view that there is less may be registered because a different heritage significance in the domestic combination of criteria are satisfied, eg. Criteria work of architects whose professional A4, B.2, D.2, E, F. prominence relates to non-domestic architecture. “ In general, the association between person and place needs to be of long duration, or needs to be particularly significant in the person's productive life.

Places which contain fabric that is a direct result of the person's activity or activities, or where the place car: be demonstrated to have influenced the person's life or works, are eligible, and such places are more eligible than places which lack such direct and personal associations.

For a place to be eligible for its association with a prominent scientist: • the importance of the scientist must be established, scientifically or historically; • the place must have a clear, direct and important link to the work of that scientist; it cannot be simply a campsite or collecting locality.

The scientist may be an amateur naturalist,

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Australian Heritage Commission Council’s Use of the AHC criteria in Comments of Panel considering criteria/guidelines 1990 this review (from Graeme Butler’s Amendment C5 and C6(2) Expert Witness Report) providing that person does have a confirmed historical standing.

Exclusion guidelines A place is not eligible if it associated with relatively undistinguished persons within a given theme, or a person whose importance did not extend beyond the local context.

A place is not eligible if the association with the prominent person is tenuous or unsubstantiated.

A building is not eligible simply because it was designed by a prominent architect or because a prominent scientist worked there.

In general, brief, transitory or incidental association of person and place, for which there is little surviving direct evidence, would not make a place eligible for the Register.

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4.1.3 Specific Comment on AHC Criterion E1 (valued aesthetic qualities) This criterion relates to a place’s “importance for a community for aesthetic characteristics held in high esteem”. The Panel, as discussed in the table above, has taken the view that architectural style is a matter of aesthetics and the general popularity of style, as demonstrated by its acceptance by a range of clients, is an acceptable demonstration that a significant community group held it in high esteem.

The Panel has also taken the view that rarity of an example of architectural style is only relevant where that style is itself valued. If an architectural style is not valued in itself, its rarity would not be of particular consequence.

The Panel does not consider that publication in the Australian Home Beautiful is by itself a demonstration of that esteem. The Panel accepts Mr. Willingham’s observation that promotional interests in part influenced that magazine’s content. Mr. Butler provided a publication that reviewed the Australian Home Beautiful but that review was itself merely historical and descriptive and contained no critical analysis of the publication.

At one point, there was discussion about whether aesthetics values related to the present community’s esteem for historic character (this discussion was in the context of Council’s citation of the dwelling at 19 Pine Grove, Malvern, where Criterion E1 was cited on the basis of the building’s “visual prominence within an Edwardian-era and Victorian-era residential domain”. Mr. Butler referred to the discussion paper AHC, Conservation and Natural Resources, Method Paper: East Gippsland and Central Highlands Joint Forest Projects, Volume 2 – cultural values. This paper discussed a methodology for establishing landscape values on the basis of current community perceptions and values, as against historic perceptions and values. This paper does not, however, assist the analysis of buildings of heritage value on the basis of aesthetic values. This is because the long-standing community debate on neighbourhood character has led to the introduction of other factors (to do with planning assessment and control) into the issue.

However, the Panel rejects the suggestion that the Heritage Overlay should be applied to areas of non-heritage, urban (aesthetic) character. There is already a considerable body of practice and implementation related to defining and protecting valued urban character, with special planning scheme provisions and a specially created overlay, the Neighbourhood Character Overlay, for this purpose.

4.1.4 Specific Comment on AHC Criterion H1 (close association with individuals) The AHC criterion over which there is the greatest difference of judgement between this Panel and Mr. Butler is Criterion H: “Its special association with the life or works of a

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person, or group of persons, of importance in Australia’s natural or cultural history.” The relevant subset of this is Criterion H1: “Importance for close associations with individuals whose activities have been significant within the history of the nation, State or region.”

In only four places was Criterion H1 used in conjunction with only one other criterion as the basis for a place’s cultural significance. In no case was Criterion H1 used by itself to justify a place’s cultural significance.

Examples of the reliance on Criterion H1 as a basis (in part) for establishing a place’s cultural significance are summarised in Table 4-1, below.

Table 4-1: Examples of Properties Proposed as Having Cultural Significance Based on AHC Criterion H1

Property Person and Basis of Association • 3 Benson Avenue, Coleman, as designer-builder linked to the proliferation of the Toorak Californian Bungalow in Australia, also being responsible for other less distinctive examples in the immediate locality. 3 Forster Avenue, Malvern The home of Frederick Rose, founder of the Victorian School for the East Deaf Children 333 Glenferrie Road, Associated with a prominent medical practitioner in the local area Malvern 17, 17A Iona Avenue For its association with Griffin’s period in Melbourne as an era when local design standards were questioned by Griffin (Griffin was not the architect, but Billson, who was a student of Griffin 176 Kooyong Road – For their association with and symbolism of the grand Bruce family remnant mansion gates mansion. 5 Stonnington Place For its association with Charles & Louisa Lort Smith who founded the Animal Welfare League soon after the construction of these (investment) flats.

The L47(D) Panel had rejected most proposals to include Criterion H1 as the basis for a place’s significance and had explained this approach at some length, quoting from a statement of expert evidence (A Willingham) which referred to an essay by Graeme Davison (undated) “What Makes a Building Historic”. In turn, Davison cited Sir John Summerson, a noted British architectural historian, who observed that “the objective fact that a certain man did live in a certain house is of purely subjective value” and then went on to conclude that “The connection becomes more than sentimental only if the man and the building he inhabited somehow help to interpret each other”. Sir John then discussed a number of examples of famous men and their houses, making the point that, in most cases, the connection between a man and his dwelling was “almost entirely fortuitous”.

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From one point of view, it could be argued that as there are no buildings in this amendment which have been referred to this Panel which have been deemed significant solely because of its association with a historically import individual, it does not matter one way or the other whether the Criterion H1 is correctly applied or not. However, that calls into question the issue of the rigour that underlies the analysis that is being applied to the AHC criteria and the credibility of the overall analysis. This Panel takes the view that such a laissez faire approach is not acceptable.

Although invited to, Mr. Butler was not able to refer the Panel to any learned or academic discussion dealing with this point.

Mr. Butler did not present an argued case for an alternative view to that put by Sir John, but merely chose to differ, stating that the views of the L47(D) Panel “are not the prescribed basis for use of these criteria in this review.” Mr. Butler went on to make a number of observations about his use of this criterion (with implied rebuttal of the L47(D) Panel’s views):

• The importance or prominence of the associated person must typically extend across more than one locality (Malvern, Toorak, South Yarra etc. ……) to extend to a defined `region’ or group of localities. • Association with the noted designer has been on the basis of it being a key example of his/her work, not an incidental or minor commission. • The historical association with residents or owners (including designers if they have this status) is taken on the basis of: - them commissioning the design, this being a key indication of the person’s tastes and public status, or a long term occupation (not an incidental or fortuitous association as L47(D) evidence) in a period when they were active in their prescribed field. • What the fabric may tell you of the person may be simply that the house fits your preconceptions of the person (see panel) but, even if this is so, it is still vital evidence of the lifestyle of the person, whether predictable or not.

In its interpretation of the application of Criterion H1, this Panel places emphasis on what it sees as the key adjectives or clause:

• Its special association with the life or works of a person ……(quoting here from the overall statement of this criterion’s purpose) • Importance for close association ……. • Association with the person’s productive life …….

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• Extent to which the association affected the fabric of the place …… (or) …… the place affected the person or events associated with the person …….

The Panel considers it particularly relevant to note one of the examples that are provided in the AHC’s Application Guidelines, relating to the association between a building and the prominent architect who designed it. This is a situation where there is clearly a close relationship between the architect and the building in that the latter has been entirely determined by the architectural skill of the former. However, the Application Guidelines do not consider that that connection is sufficient but further observe that the design “may be eligible …… if it expresses a particular phase of the individual’s career or exhibits aspects reflecting a particular idea or theme of her/his craft.”

This criterion has, as pointed out, been applied to properties in these amendments on the basis of connections that this Panel has generally considered do not satisfy this criterion. Where the connection is simply on the basis that a person of some local note lived in the dwelling, the Panel considers that the dwelling generally does not add any further important knowledge in relation to the reason that that person has been deemed to be of local significance. Generally, the design, size and value of a dwelling is consistent with the degree of wealth and social class of the individual who commissioned its construction or who lived in it at some stage. Generally, it does not directly add to anyone’s understanding of the reason for this person’s individual importance or their associations. The Panel considers that this kind of association is not special or one connected with the productive activities from which the person’s prominence arose. Where Sir John referred to such associations as being “almost entirely fortuitous”, the Panel understands him to mean that such people could have lived in any one of a number of similar dwellings, or could have commissioned any one of a number of different architects or designs. While choice (or absence of choice) of an architect does provide information about a person, the Panel does not see that this has anything much to do with the reason for that person’s prominence and is therefore not prepared to consider it relevant to establishing the building’s local cultural significance.

In one discussion on this point, Mr. Butler insisted that the fact that a prominent person had engaged an architect to design her investment property provided (significant) information about that person, with the implication that if that person had bought a non-architect-designed dwelling, the Panel would be less informed. The Panel views this differently. Certainly, conscious choice of an architect affects the fabric of a place in a design sense, as does a person’s wealth affect the affordable size of their dwelling but, again, this has no direct connection with the reasons for that person’s prominence but is merely another demonstration of their social status.

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The Panel’s concern about the use of this criterion is further emphasised by the fact that the significant associations have only emerged as a by-product of the research into significant building fabric, not as a pierce of cultural research in its own right, so that the identification of important associations is a by-product of a search to identify buildings on the basis of their architectural or functional significance. If a building’s cultural significance had been identified on the basis of a study of important local people, with a view to identifying and preserving evidence of their significance, the Panel might have an entirely different result and a range of different objects might have been identified, some of which might be buildings, some buildings of which might be quite uninteresting as types or architectural designs. Other items, as the L47(D) Panel suggested, could include a person’s clothes or car, or other personal artefacts.

Mr. Butler advised the Panel about an earlier study (or phase of a study) in which he had been involved, which sought to identify historically important local people through a search of early copies of Whose Who. However, nothing appears to have come of this and he provided no further details of this project.

The one matter that the Panel considers may be appropriate to the application of Criterion H1 is the association of a building with its designing architect, for the obvious reason that a building designed by an architect must have a special association with the reasons for that person’s prominence. However, as the AHC Guidelines emphasis, there must still be something more than ordinary about the building as a representation of that architect’s work.

However, this issue was clouded by the fact, as was considered at length in the cross-examination of Mr. Butler by Mr. Wren that many architect-designed buildings of the past cannot be categorically attributed to the work of a specific architect but only to the architectural firm of which that person was (usually) a partner. In all cases where a building was nominated as being of cultural significance for its association with an important architect, the association of significance was with the individual, not with that individual’s firm. Where the identity of the actual designer is not clear, the Panel has rejected this criterion as a basis of building’s significance.

4.1.5 Independence of Each Criterion The L47(D) Panel had been concerned that the various AHC criteria had been used in a cumulative sense and expressed the view that, if this were so, it was not an appropriate use of the criteria.

Mr. Butler, in his statement of evidence and further cross-examination, made clear

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that the significance of any place had been assessed against each criterion independently of others. The Panel accepts and welcomes this statement.

4.2 Application of Rigour to the Process

4.2.1 Principal Issue The various guidelines for the preparation of cultural analysis of places at the national and local level make it clear that such research and analysis must be undertaken with rigour. This issue was discussed by the L47(D) Panel and was discussed more recently by the Panel considering Amendment C17 to the Hobsons Bay Planning Scheme, which was sufficiently concerned about the lack of rigour underlying that heritage amendment that it recommended a peer review of the assessment of all places not referred to the Panel.

The research on which these amendments are based is largely that which has been carried out by previous consultants. Mr. Butler reviewed this work to establish that it was sufficiently accurate and that information was definitively sourced. His further research included consultations with those owners who were agreeable and further on-site inspections where considered warranted and where these could be arranged. Following this, he was required to review and redraft the citations for individual properties and write extensive reports on each property in a prescribed format. His Brief required that “the assessment process is expected to be rigorous and analytical and require strict application of the assessment criteria.” While the Brief did not stipulate further research, Mr. Butler advised the Panel that he did undertake further minor research where he judged that further information would be useful.

However, the Panel nevertheless had concerns about the rigour of the research on which Mr. Butler relied and this was evidenced by the benefits offered by the much more extensive research undertaken for a limited number of properties by other heritage consultants who appeared before the Panel. Examples of some deficiencies in information that was highlighted by this process included:

• Reference to Louisa and Charles Lort Smith as founders of the Lort Smith Hospital when further research indicated that they were, although important contributors, only part of a larger group that founded the Animal Welfare League and the Lort Smith-Lyle Hospital (which had also been incorrectly named). • The absence of any comparison of the significance of the building at 5 Stonnington Place as representative of Louisa Lort Smith as compared 10

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Denham Street, which was the home for many years of Louisa Lort Smith (nee Montgomery) by herself and with her husband Charles Lort Smith. • In cases where experts retained by submittors had undertaken extensive on- site inspections, it was clear that Mr. Butler’s assessment of a building’s integrity was usually optimistic. The fact that Mr. Butler was in a number of cases denied access raises another issue (discussed later) but, in the Panel’s view, does not justify assumptions of higher rather than lesser building integrity where the case cannot be established • Numerous cases where submittors or their consultants provided evidence that original garden layouts had been altered, fences constructed and the extent of alterations to buildings was more extensive than Mr. Butler had assessed.

With respect to the issue of unobserved defects in a building’s integrity, the Panel make the following observation. If the presence of defects in a building’s integrity cannot be confirmed by remote inspection, then it follows that a lack of defects cannot be confirmed either. The Panel is concerned that an optimistic rather than pessimistic view seems to be preferred by the researchers, with a presumption that a building has integrity unless established otherwise. Given the implications for both the credibility of heritage conservation and the affected owners, the Panel considers that an appropriately conservative approach should be taken.

In respect to this issue, the Panel does not consider it appropriate to argue that, because the view from the street is that which is available to the public, only that which can be observed from the street is relevant to assessing a building’s integrity. A closer inspection may be required to reveal loss of integrity but that loss may be of details that are important in understanding the building as it was, even if only from the street view. Given the way that many architectural styles are differentiated by details, the integrity of details is often crucial to the building’s cultural value, even as perceived in the more distant view. Contrariwise, if defects in non-visible fabric are less critical, this raises the question of how to assess the value of building fabric that is largely or entirely hidden (as at 19 Woodside Crescent and the hotel at 82 High Street).

Mr. Montebello submitted that not only had Council been rigorous in preparing its research for this final group of buildings from the original amendments L47 and L62, but that if the Panel had any questions about the adequacy of this rigour, it should bear in mind that Council has only limited resources.

With respect to the extent of rigour, Mr. Montebello emphasised the considerable research Council had undertaken over the last nine years in the course of its

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development and implementation of its heritage strategy. With respect to the issue of resources, Mr. Montebello submitted “there must be an appreciation that the resources of a planning authority are not without limitation. Accepting that analysis must be rigorous it must also be a level of analysis which is capable of practical implementation. Otherwise the system of heritage planning and conservation will fail.”

It seems to the Panel that “the system of heritage planning and conservation” involves striking an appropriate balance between four competing issues:

• Council’s obligations under S. 4(1)(d) of the Planning & Environment Act 1987, being “to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value.” • The requirement to only protect those places that are of appropriate heritage value – the application of appropriate rigour, and not places of lesser value. • The economic and social consequences of applying a Heritage Overlay to properties, particularly individual buildings, which could be seen to invoke Council’s obligations under S. 4(1)(a) of the Planning & Environment Act 1987, namely “to provide for the fair, …… use and development of land.” • The resources Council requires to satisfy the first obligation, taking account of the second and third issues.

It seems to the Panel that each of these issues must be given reasonable weight.

Councils clearly have an obligation to identify and protect places of cultural significance but, from the observation of this Panel, that is a matter that can reasonably continue over time, is not required to be completed in any time frame and is usually an ongoing process.

The Panel has discussed issues of equity and fairness, as relevant to protecting places of cultural significance, elsewhere in this report. If there were no economic costs imposed on individuals and businesses as a result of cultural conservation, then it perhaps would not matter as much if places were identified on the basis of limited research or analysis, but the Panel believes that this is not the case.

The Panel considers that the degree of rigour that should be applied should not be qualified by any proposition that the costs are not affordable. If the beneficiary of heritage conservation is the general public, a large part of the cost is necessarily born by individuals whose properties have been identified on the basis of current assessment of historic values. Where the Heritage Overlay is applied to individual properties, rather than a group, the disparity of effects on the affected property and

Page 42 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003 its neighbours can be very marked and, understandably, the sense of arbitrariness and injustice is heightened. The Panel received a large number of submissions about this issue. However, that is how the heritage controls are drafted and have been consistently applied.

In this context, the Panel agrees with Mr. Wren’s submission that Council is obliged to apply appropriate care. If that requires that the research must proceed at a slower pace, then that is an appropriate consequence.

The omissions and partial information that were revealed in the research relied on by Mr. Butler in his assessments raises doubts about the adequacy of research used for those places that were not so tested. Consequently, this has reinforced the Panel’s view that it should take a conservative and sceptical approach to its assessment of the evidence provided to it.

4.2.2 Rigour of the Analysis The template used by Mr. Butler to report his heritage assessment of each property included a Comparative Analysis section that was included to demonstrate the comparative merits of the place. The Panel considers this process to be critical, as there must be some element of comparison in deciding that a place achieves the threshold of local significance. For example, the most obvious example is Criterion B2 – rarity, which cannot be judged except by considering the number and integrity of other examples. However, this also applies to a greater or lesser extent to all other criteria. It certainly must be considered in deciding whether a building is of artistic excellence (Criterion F1) and so on.

However, the Panel found that this comparative assessment was often of little value. At best, it illustrated that Mr. Butler had access to a large database of historic buildings that were sorted by date, style and architect. The Panel certainly accepts that Mr. Butler had access to considerable resources in terms of information. However, this material was generally not presented or discussed in a way that assisted the Panel in its understanding of the arguments supporting a particular criterion. Often in fact, the list of buildings was not elaborated, no information was provided about stylistic variations or which were the most relevant to the assessment and often it was clear that many were not. There was no information, for example, as to which places on a list were already included in a Heritage Overlay (or had been proposed in an amendment and recommended by a Panel)88. In the absence of such information, or a more careful description of this analysis, the Panel

88 This last point is made because the Stonnington Planning Scheme does not include all places that have been placed in an exhibited heritage amendment and supported by a Panel.

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was obliged to accept the analysis on trust. However, this lacks any transparency and in reality, does not offer much assistance beyond that of a simple assurance.

For this reason, the Panel considers that it has not been as much assisted by this section of the heritage study as it had hoped or expected and has, consequently, been obliged to take a more conservative and cautious approach in reaching its conclusions. In this regard the Panel makes the following recommendation:

That in any future analysis of the cultural values of places in the City, Council should devise a method by which a comparative assessment can be made transparent and accessible to less expert persons.

4.2.3 Specific Knowledge of a Building’s Integrity One particular area where the rigour of research varied considerably was that of detailed assessment of buildings, particularly with respect to often-important details of the building’s fabric and the associated landscaping.

In all cases, the initial assessment had been based on visual inspections of buildings from the street, which was supplemented by more detailed, on-site inspections in particular cases where this was considered appropriate. However, in a number of cases property owners would not grant permission for such inspections so that the identified extent of research could not be completed (many owners, on the other hand, did allow on-site and internal inspections of their homes).

This raises the awkward problem that the individuals who may object to the possibility of a heritage designation for their building have the opportunity to obstruct an essential part of the research. However, this as an unavoidable outcome of a situation where heritage controls are placed on private property on the basis of the nature or associations of existing development. This situation lends weight to the proposition that the greatest emphasis should be placed on those parts of a building that can be viewed from the publicly accessible surrounds of a building. It may have the consequence that a heritage researcher does not have adequate access to a building and therefore it not being possible to complete an adequately rigorous assessment.

The reason for the lack of adequately rigorous research is not the issue. The Panel considers it inappropriate that any building should be included in the Heritage Overlay on the basis of doubtful and inadequately researched information, whatever the arguable reason for this inadequacy.

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4.2.4 Reliance on Speculative Conclusions In a number of cases, the assessment of the significance of some aspects of a building’s design appeared to rely on speculative conclusions, where an alternative conclusion could be equally valid. Examples include:

• No. 22 Stonnington Place, where significance (Criterion F1) was attributed to “the innovatory siting of the house facing and close to Stonnington Place instead of Cross Street, allowing both the house’s living rooms and its private open space to have full north sun” • No. 19 Pine Grove, with reference to the “apparently speculative” villa.

The Panel does not consider speculation is appropriate, unless given a strong basis or relating to less critical issues and has, again, erred on the side of caution when taking account of such factors.

4.3 Equity and Economic Hardship

A number of submittors were concerned that application of the Heritage Overlay would devalue their property. Several submittors objected to their property being included as an isolated property but supported its inclusion in an area-wide Heritage Overlay. It could at least be inferred that the latter would either have less economic costs or that at least they would become part of a wider group that would share the same outcome.

While this Panel was not provided with any research on this subject, submittors referred to (and the Panel is aware of) of research into this issue undertake a few years ago by the firm of Charter Keck Crammer and it was clear that many submittors were familiar with this research. One submittor referred to a 30% reduction in a council’s valuation of a property (the Shire of Mornington Peninsular) to reflect the effect of a new Heritage Overlay. This Panel does not have any reason to doubt this claim.

This issue was raised by a large number of submissions at this Panel’s hearings and is regularly raised at hearings of other Panels and at reviews by the Victorian and Civil Administrative Tribunal in respect to the effect of the Heritage Overlay. The L47(D) Panel discussed this issue and concluded that while the application of the Heritage Overlay to individual properties could in some cases devalue those properties, the issue of hardship was a matter that should be considered separately and later, when an application was made to change or demolition a property. The L47(D) Panel concluded as follows.

Page 45 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003

In reaching a recommendation in relation to the buildings in this amendment, we have chosen not to take into account any issues of property owners’ hardship. We accept that hardship, as it may financially affect the owners of properties of heritage significance (particularly the owners at the time of this amendment’s gazettal), may be a relevant consideration in a future decision as to whether to allow alterations to, or demolition of, a heritage building. However, that decision is one to be made at the relevant point in time.

We also consider that transparency of the planning process should be maintained. This certainly relates to the objective of fairness [Planning & Environment Act 1987, Clause 4(1)(a)] and will assist in the process of balancing the “present and future interests of all Victorians” [Planning & Environment Act 1987, Clause 4(1)(g)]. This transparency will be assisted by separating the process of designating heritage significance from the process of making decisions about building’s conservation, whether this be related to its replacement, unreasonably expensive maintenance or unsuitability for modern living.

In some respect, the question of how maintenance problems should be taken into account is a matter that should be considered as part of a conservation policy (Guidelines to the Burra Charter: Cultural Significance: para 1.5). Unfortunately, Stonnington Council’s heritage policy (Clause 22.04) does not address these kinds of issue.

Of course, the above conclusion infers that the only disadvantage suffered by property owners would be when they propose to alter or demolish a building. As one submittor pointed out, any devaluation effect of a Heritage Overlay can sometimes have immediate consequences in terms of reducing a property’s usefulness as financial collateral (eg. as when a dwelling is used to underwrite a business loan). However, in terms of applying the Heritage Overlay with transparency and consistency, the Panel has concluded that requests for exemption on the basis of economic hardship cannot be accepted as a basis for excluding properties from the application of the Heritage Overlay.

However, as Mr. Wren pointed out, the potential or real economic consequences of the application of the Heritage Overlay does raise the issue of fairness in establishing the threshold of local significance and reinforces the need for rigour and in applying the Heritage Overlay.

Consequently, the Panel has adopted the position set out by the L47(D) Panel and has not included consideration of economic effects in its decision. However, it does

Page 46 Stonnington Planning Scheme Amendment C5 and C6 Part 2 Report of the Panel: July 2003 consider that this may be an appropriate matter to take into account when a decision has to be made on a proposal to modify a heritage place.

4.4 Integrity of Places

4.4.1 Context The original integrity of places referred to this Panel (which were predominantly dwellings) varied considerably. The L47(D) Panel had made the following comments. ƒ However, a dwelling is not a museum piece. As time passes, the needs of its occupiers will change in accordance with social, technological and economic changes and dwellings will be modified accordingly. The need for continual maintenance of a dwelling creates further opportunities for its modification as a result of changing building technologies. Acceptable standards of daylight in rooms have changed markedly over the last 100 years; lifestyles have changed dramatically and, with these changes, there have been major changes in the way we expect to use the different rooms in a house, or the different types and sizes of rooms that we now desire to have.

Having considered this issue, the L47(D) Panel concluded as follows:

Most buildings have inevitably been altered, often quite substantially, subsequent to their original construction – reflecting changes in our way of life. We have relied on a building-by-building assessment of the effects of loss of integrity on a building’s heritage significance. However, because of the limitations on many of the statements of significance (………) we have only been able to make this assessment by a wide reading and interpretation of all the supporting (and critical) material that was placed before us. Where the matter could not readily be resolved, we have adopted a cautious approach.

On this basis, the L47(D) Panel recommended that a number of buildings not be included in the Heritage Overlay.

Similarly, many of the places referred to this Panel have undergone a wide variety of alterations, so that probably every building has lost, to some greater or lesser degree, its original integrity, though the nature and extent of alterations, and their visibility, vary widely. The range of such changes is illustrated by the examples summarised in Table 4-2 below.

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Table 4-2: Examples of Changes to the Original Integrity of Buildings

Property Type and Extent of Changes 19 Woodside Crescent, Remnants of a c1850s building incorporated into the rear section of a c1880s building, entirely concealed from the street 489 Glenferrie Road, Remnants of external elevations of 1922 and 1928 vintage remain Tooronga (Kooyong Tennis visible within the much more extensive fabric of later date, with Centre) most of the original building, including its most distinctive elements having been demolished.

6 Stonnington Place and 6 Substantial extensions to the original building, made with Hopetoun Road, Toorak matching architectural style, detailing and massing, but with major changes to the bulk of the building form and largely concealing the original scale of the building 117-119 Glenferrie Road (the Substantial later additions and extensions to the ground floor Malvern Hotel) level of a two-storeyed hotel of c1850s vintage. 48-50 Irving Road, Toorak Alterations inconsistent with the architectural style appear to have been made to the original architectural concept during the initial construction. 6 Hopetoun Road, Toorak Extensive additions (living areas and garages) in matching detailing but which conceal the original scale of the building Various buildings Various minor changes to roof cladding, fences, glazed infilling of balconies and porches, painting of originally unpainted render surfaces, often extensive changes to garden layouts and setting.

It is clearly necessary to accept some loss of originality to the historic fabric as, given the passage of often 80 to 120 years or more, and with changing social, economic and technological circumstances over this time and the inevitable need for ongoing maintenance, it is inevitable that buildings will have been altered and often substantially. However, there can be considerable variation in the extent of changes, in the way these impact on a building’s cultural value and on how any cultural value can be communicated to observers.

The L47(D) Panel discussed this issue, pointing out the variety of roles that housing in particular fulfils and the necessity, if a house is to be lived in and maintained, that it be continually adapted to suite this changing context. That Panel concluded that loss of integrity per se did not necessarily destroy a building’s cultural significance and that it had “relied on a building-by-building assessment of the effects of loss of integrity on a building’s heritage significance”. This, of course, requires the Panel to take account of the effect of the loss of integrity on the particular criterion that is relevant to the assessment of cultural significance.

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The Panel noted that the L47(D) Panel rejected a number of buildings on the basis of their substantial loss of integrity, though the nature of alterations had varied considerably between buildings and, to some degree, were dependent on the architectural style.

4.4.2 This Panel’s Assessment The Panel has taken account of the specific nature of alterations to buildings, although it acknowledges that there is a considerable degree of qualitative professional judgement involved. The Panel has rejected some places that have been extensively extended in matching style. In these cases the Panel believes that while replication of the historic details in the new works minimises the risk of obvious incongruity, it also creates a falsity about the presentation of the building as continuing to represent the original conception. In the case of 6 Hopetoun Road and 6 Stonnington Place, the Panel considers that if the extensions had been undertaken with detailing that clearly revealed the different dates, the original would have retained greater heritage significance.

In the case of the external decorative pillars on the western elevation of the Kooyong Tennis Centre, the number of replicated pillars has, in the Panel’s view, reduced considerably the value of the originals.

4.4 Public Visibility of Places

Mr. Butler, on several occasions, emphasised the primacy of the public view of a building and, in cases where an on-site inspection was not permitted or undertaken, had relied on an inspection from an accessible public area (typically, the adjoining public street). The Panel noted that none of the planning scheme’s strategies or policies refer to, or differentiate, between the public or other aspects of a building.

The L47(D) Panel discussed this issue and concluded that “while it may be desirable that a culturally significant building is highly visible, we have previously indicated that the Panel does not consider visibility to be a criterion for determining heritage significance.”

Mr. Butler’s submission did not discuss this issue, though he did make reference to the L47(D) Panel’s comments and observed “In all cases we were able to ascertain that sufficient fabric was visible from the public domain to warrant the recommended local significance. However, in some cases we have qualified the report by the request for further inspection.”

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The only qualification the Panel make to the views of the L47(D) Panel is that, while the Panel acknowledges the importance of a holistic view of a building, it is reasonable to place greater emphasis on its publicly viewable aspects. This arises from consideration of the fact that the major benefit of heritage conservation lies in its benefits to the public and, given that the properties remain mostly in private hands, the public can only learn about and appreciate buildings from those aspects that are publicly visible.

The Panel has raised this issue as one that should be further explored by the Department of Sustainability and Environment in order to provide guidance for heritage experts and the community.

4.6 Relevance of Building Interiors

The amendment does not propose to apply heritage controls to any building interiors (though Mr. Montebello did submit a proposal for such further action in relation to 489 Glenferrie Road, Toorak).

Some submissions emphasised the fact that the interiors of buildings had been substantially changed from their original condition, or Council’s consultants had not inspected it. Mr. Willingham expressed the opinion, at one point, that research into a building’s cultural significance was incomplete and inadequate if the integrity of its interior was not as thoroughly researched as the exterior.

The L47(D) Panel dealt with this issue and concluded “we consider it appropriate to accept the principle embodied in the proposed Heritage Overlay and adopted by Council for the new-format planning scheme – namely, that building interiors are not relevant to this assessment.” While Mr. Willingham did express the view that the building interiors are important, he did not develop this beyond a statement of professional opinion.

The Panel has generally adopted the approach of Mr. Butler and Council’s previous consultants and consistent with that of the L47(D) Panel, in that no weight is given to the integrity of the original interiors of dwellings in terms of their cultural value.

On the other hand, it is clear that information about the design of a building’s interior design can be very informative about its overall design integrity. This was demonstrated by Mr. Bick’s evidence in relation to 3 Benson Avenue, where the interiors were not consistent with suggestions about the integrity of the exterior as a significant Arts and Crafts style design. It is clear that, in the absence of information about the interior design of dwelling (whether through contemporaneous illustrations or remnants), there is the risk that incorrect conclusions may be drawn.

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Generally, the Panel has accepted that changes to the interior of a building are not relevant to assessing its cultural value, but it notes that information from a knowledge of the original interior can be important in understanding the cultural value of the building as a whole and of its external fabric.

4.7 Summary of Issues Affecting the Use of AHC Criteria at the Local Level of Significance

This Panel supports and endorses the recommendation of the L47(D) Panel for “State Government support to a review of these criteria for use at the local level”. This Panel considers that there are a number of problems involved in the application of the AHC criteria at the local level and in respect to building heritage. The issues relate primarily to the issue of the threshold level for different criteria, but also to the application of different criteria to different aspects of a place.

The Panel illustrates the present difficulties faced in assessing heritage values at the local level and with respect to buildings with a series of questions:

• Re Criterion A4. In the context of identifying “the broad patterns of” suburban development, how appropriate is it to identify individual buildings as markers of these patterns of change. Should such buildings be only selected to represent elemental or outstanding phases in this process, or is it reasonable to identify many points in a continuum of development (eg. a remnant example of a very large house on a very large site, as at 48-50 Irving Road; “illustrative of two clearly visible eras of development in the locality”, as at 9- 11 High Street)? If the latter is acceptable, how would appropriate examples be selected and analysed)? • Then again, re Criterion A4, should the ‘broad pattern of cultural history’ encompass the development of each distinguishable architectural style (there were very many), so that archetypal examples of every architectural style should be identified under Criterion A4? Or should this broad sweep apply only to the major categories of style, eg. romanticism, classicism, modernism? And what characteristics should buildings have to be selected if this broader set of categories was applied under this Criterion: the best exemplars of the style, or these and others representing important variations (ie. the stylistic extremes)? • Re Criterion B2. Is it appropriate to conserve rare local examples of not only particular architectural styles but also rare local variations within styles and, if so, how should the significance of any local variation be determined (see also Criterion E1 for the same issue)? Is it appropriate to identify rare early

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and rare late examples of a style where the examples may not be otherwise significance except that they appeared in the evolutionary or the declining stages of the style? • Re Criterion D2. Are architectural styles or their evolution (eg. Georgian Revival, as at 8 Glyndebourne Ave.; or a demonstration of an architect’s stylistic transition as at 49 Lansell Road)? • Re Criterion E1. Is it appropriate (as the L47(D) Panel and this Panel propose) to assess architectural styles, their evolution and variations, primarily under this criterion? To what extent should examples of stylistic variations be treated as significant and worthy of conserving examples: eg. single storeyed and two-storeyed versions; versions with and without verandahs; verandahs with and without return ends; typical, narrow and wide facades of a style; examples of a style in a large, architect designed building, in a version by a speculative high quality builder and examples of cheap, rote reproductions and, in the latter two cases, how should appropriate examples be selected and how many? Should not only pure examples of a style be identified, but examples of stylistic transition? • Re Criterion F1. How innovative should an architectural style be and to what extent should architects’ predilections to produce their own creative variations be treated as innovation? In this amendment, Council applied Criterion F1 to styles already ‘invented’ overseas and of which examples already existed in Australia and Victoria. How developed should a style be before the concept of innovation ceases to be appropriate? • Re Criterion G1. Is it appropriate to identify the National Trust in relation to this criterion, or is the architectural profession an appropriate community group for the purposes of this criterion? • In any case, even of rarity (Criterion B2), how many examples of the same type of building should be conserved? • Re Criterion H1. How should the significance of the activities of a person be assessed at the local level; how should “close association with” be assessed (refer the earlier comments of this Panel)? • What local significance should an be attributed to invisible heritage elements (eg. as with the largely concealed remnant 1850s fabric at 82 High Street, the entirely concealed remnant 1850s structure at 19 Woodside Crescent or the building at 6 Mayfield Avenue, where only the ‘Mary Anne’ back is, and ever will be, visible, due to subsequent subdivision of the large site)? Furthermore, how important is the integrity of concealed fabric or fabric not readily viewable? What assumptions should be made about the integrity of fabric where access for proper inspection is denied, or where should presumptions lie where assumptions are made from a distant view due to lack of access – in favour of assuming adequate integrity, or against?

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This Panel is concerned at the lack of consistency in the application of the AHC criteria to the places referred to in this amendment. The Panel members are aware of similar issues arising in other heritage amendments. The Panel considers that there is a serious dearth of practical theory about the above issues and, in this absence, practitioners are obliged to press forward on the basis of their individual and often widely varying judgements. In this regard, the Panel makes the following recommendation:

The Panel recommends that the Department of Sustainability and Environment prepare guidelines for the application of the AHC criteria for cultural significance at the local level, including advice on establishing appropriate threshold levels.

4.8 Other Issues

4.8.1 Consistency with L47(D) Panel Report In the process of reviewing the submissions and evidence placed before the Panel, together with the Panel’s inspections of individual properties, the Panel have also reviewed the decisions made by the L47(D) Panel in order to ensure that the Panel have a thorough appreciation of how that Panel made its assessment and the weight that it gave to the different issues that it was required to balance.

4.8.2 Consistency with Other Panel Reports Mr. Montebello made a reference to the failure of the (now) Department of Sustainability and Environment to implement the L47(D) Panel’s recommendation that guidelines should be prepared to assist Council’s in the application of the AHC criteria at the local level. Mr. Montebello observed “the L47(D) Panel recommendations are not being generally applied by other heritage panels or at least not being referred to by them.” Mr. Montebello’s point reflects the fact that, in the absence of some guidelines to assist in the interpretation of the AHC criteria at the local level, everyone, whether heritage consultants, council staff, councillors and members of the public will be obliged, to a degree, to continually reinterpret the wheel, so as to speak, with the probability that different degrees of rigour and different thresholds of local significance will be applied to buildings of equivalent heritage value but located in different municipalities.

The Panel considers that this situation should be addressed, and supports the recommendations of the L47(D) Panel relating to development of guidelines to assist consistency in the application of the AHC criteria at the local level.

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4.8.3 Drafting of the Council’s Statement of Significance The Panel is concerned that the drafting of the Statements of Significance do not reflect the advice provided in Guidelines to the Burra Charter: Cultural Significance: para 3.4) which state “a succinct statement of cultural significance, supported by, or cross referenced to, sufficient graphic material to help identify ……. It is essential that the statement be clear and pithy, expressing simply why the place is of value but not restating the physical or documentary evidence.” Some of the problems include:

• A small number of statements that include the supporting arguments or unnecessary descriptive statements that do not add usefully to the statement of significance itself; • Placing the descriptive material at the beginning of a statement, with the crux of the argument at the end; and • Use of words or phrases that have doubtful meanings in terms of cultural significance (eg. “evocative of” and “symbolic of”).

Clearly, Statements of Significance can be drafted in a number of ways and there is no reason why their drafting should be excessively rigorous. However, the Panel believes that some redrafting would make the point of significance clearer. Suggestions that the Panel offers include:

• An important example of a variation within the common theme of 19th century single-storeyed Italianate villas – being the comparatively wide façade and associated remnant front garden setting [c.f. “For the distinctive comparatively wide façade and associated block frontage, with remnant garden setting (mature trees, drive formation) for the otherwise common 19th century single-storey Italianate suburban villa style” – re 1089 Malvern Road]; • Rare as an example from the early phase of architect designed Old English style dwellings [c.f. “As one of the early group of architect designs in the suburban Old English manner which was popularised in the middle suburbs during the 1930s” – re 8 Monaro Road]; and • As an exemplar of the (presumably) speculative Italianate villas of c.1888?, including building and garden setting with both having a high level of integrity (unpainted stucco, mature landscape setting) (c.f. “For its high external integrity, particularly the unpainted stucco and mature landscape setting, and is thus a good example of the large apparently speculative villas erected in this 19th century estate” – re 19 Pine Grove).

It seems to the Panel that it would be quite desirable that the Statements of Significance should, as much as possible, use standard phrases to deal with similar issues.

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The Panel also considers that the terms “evocative of” and “symbolic of” are not the most appropriate terms for Statements of Significance. “Evoke” means “inspire or draw forth (memories, feelings, a response, etc.) and “symbol” means “a thing conventionally regarded as typifying, representing, or recalling something, esp. an idea or quality.” (The Australian Concise Oxford Dictionary, Third Edition).

Neither of these terms can be found in the Burra Charter. The Panel considers both terms to be limited in expressing the values of heritage. In particular, “symbolic of” infers that some aspect of a building is conventionally recognised as recalling something of the past. The Panel suspects that the writer means something like “acts as a reminder of”, which may be desirable but, again, also limits the purpose of heritage conservation. The Panel therefore makes the following recommendation:

The Panel recommends that each Statement of Significance should be redrafted to provide a simpler, clearer description of each place’s cultural significance. The above discussion is intended to provide a useful guide.

4.8.4 The Description of the Extent of a Place Council’s submission indicated that Council proposed to change the description of the definition of each place in the schedule to Clause 43.01 “to more specifically define the extent of heritage place in the overlay.” This is to be done by inserting a standard set of words, together with a more precise description of the basis of that place’s cultural value. For example, for No. 19 Alleyne Avenue, Armadale, the description of the place in the schedule would read “The heritage place is the house and land with emphasis on external fabric from its construction in 1919 and the 1920s.”

The Panel supports Council’s intention to make clearer which aspects of the buildings and works on a site are the reason that it has been placed in the Heritage Overlay. However, for the purpose of the schedule to Clause 43.01, the heritage place remains whole of the land, buildings and works within the boundary of the Heritage Overlay. Although the above description is not intended to have any effect on the definition of the place, readers may be mislead into assuming that there is some differentiation in Council’s power or discretion within the Heritage Overlay.

The Panel considers that Council’s intention can be better achieved, and without risk of confusion, by a small change to the above expression, so that it reads, in part, “with heritage values deriving from external fabric from its construction in 1919 and the 1920s.”

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On this basis, the Panel recommends that the description of each place in the schedule to Clause 43.01 be accordingly amended to be more precise.

Page 56 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

K. Hobsons Bay C17 Hobsons Bay Planning Scheme - Amendment C17 Panel Report

5. Key Issues Identified by the Panel

5.1 Introduction A number of common issues emerged from our consideration of several submissions, albeit in each submission specific to the relevant place.

In this section, we have discussed these key issues and our approach to them, setting out our conclusions and how this has affected our recommendations in relation to individual properties. We have done this in order to ensure consistency in our assessment of the heritage importance of individual properties and because the issues tend to lead us to recommendations of an overriding nature.

5.2 The Concept of Cultural Significance We comment briefly on this issue, as its interpretation underlies all aspects of heritage assessment, the purpose of undertaking heritage studies and placing the Heritage Overlay over properties in the City of Hobsons Bay.

The Altona, Laverton and Newport Districts Heritage Study contains no discussion on this matter. The VPP Practice Note – Applying the Heritage Overlay refers only to places identified as historically significant by appropriate authorities and studies. The Local Government Heritage Guidelines (Department of Planning and Housing, April 1991), a reference document in the Hobsons Bay Planning Scheme, refers to the definition of cultural significance in the Planning & Environment Act 1987 and The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter), which latter refers to the conservation of places that are of “aesthetic, historic, scientific or social value.” The “Guidelines to the Burra Charter: Cultural Significance” are a little more helpful, though still general: “Cultural significance is a concept which helps in estimating the value of places. The places that are likely to be of significance are those which help an understanding of the past or enrich the present, and which will be of value to future generations” (Panel’s underlining).

One concern that we have, and which we have elaborated later, relates to the question of how we should establish what parts of the past are sufficiently important to the community (rather than, perhaps, one or two individuals) that they meet the threshold criteria of local significance and can be justifiably included in a Heritage Overlay. With respect to the concept of Local Significance, the Local Government Heritage Guidelines merely observe: “Local significance –Places of local significance are of particular importance to a local community or part of a community which is usually defined by a local government area.” This is both rather circular and not of much help as it raises more questions than it answers.

29 Hobsons Bay Planning Scheme - Amendment C17 Panel Report

5.3 Adequacy of the Overall Process of Historic Analysis Context of This Issue Several submitters asserted, in respect to evidence provided by Council in relation to their particular properties, that Council had not undertaken its heritage research with sufficient rigour. Others complained that the Statement of Significance was not sufficiently meaningful or did not justify the conclusion that the place was of local heritage value.

There are various guidelines that provide Council with an understanding of how it should undertake the assessments on which it bases any proposal to introduce Heritage Overlay’s into its planning scheme.

The VPP Practice Note Applying the Heritage Overlay observed, “The most important thing is that the assessment of heritage places has been rigorous and that the heritage controls are applied judiciously and with justification.” More importantly, the “Local Government Heritage Guidelines” (Department of Planning and Housing, April 1991), a reference document in the Hobsons Bay Planning Scheme, advises, with respect to the expectations of the Department in terms of Councils’ preparation of a heritage amendment, “The Department expects: that all places proposed for planning scheme protection are documented in a manner which clearly substantiates their scientific, aesthetic, architectural or historical interest, or other special cultural value. ……… The Department may request further supporting information where it is considered that ……… the approach taken to identifying heritage paces for planning scheme protection lacks rigour.” (Panel’s underlining).

The Altona, Laverton and Newport Districts Heritage Study itself acknowledges these requirements. The Study’s Project Objectives (Stage 2, Volume 1, p1) include “to: rigorously assess and document the identified places of post-contact cultural significance; ……”. In a similar vein, the proposed rewording of the Clause 22.01 Heritage Policy contains the objective “To ensure that the conservation of heritage places is based upon a clear understanding of the reasons for their significance.” (Panel’s underlining)

“Rigorous” means “strictness in conduct or judgement; harsh but just treatment or action; harsh, strict or severe” and “judicious” means “having or proceeding from good judgement” (Collins English Dictionary, 4th Edition). We interpret “good judgement” to mean, in part, that there is adequate information on which to make a judgement about the heritage values of a place or about the extent of the place which should be preserved and about the appropriate actions to achieve this. Appropriately, in this context, the VPP Practice Note advises, in respect to selecting places to include in the Heritage Overlay, that they should include “Places identified in a local heritage study, provide the significance of the place can be shown to justify the application of the overlay.” (Panel’s emphasis).

It may be helpful to provide a further understanding of the consequences of a decision to include a property in the Heritage Overlay, consequences which in our view underline the importance of applying rigour in undertaking heritage assessments. The Heritage Overlay has the effect of requiring Councils to take account, in any decision about the development of land, of a series of policies designed to protect that place’s heritage values. In the case of properties included in the Heritage Overlay as a result of Amendment C17, Council’s planning officers will be obliged, in recommending any such decision, to refer to the Altona,

30 Hobsons Bay Planning Scheme - Amendment C17 Panel Report

Laverton & Newport Districts Heritage Study (as an Incorporated Document in the planning scheme, its conclusions and Management Objectives will be accorded substantial weight). By using that report, the officers will seek to understand the heritage values of the relevant property by examining in particular the relevant Statement of Significance and, more importantly, the relevant Management Objectives that are, it is claimed, drawn from that Statement.

If the owner of a property in the Heritage Overlay seeks to have a Council decision reviewed by the Victorian and Civil Administrative Tribunal, then that Tribunal will start with the assumption that the heritage value of the property has been established and cannot be questioned.

In effect, the Tribunal is, in such cases, obliged to assume that the research and analysis underlying the Heritage Overlay has been sufficiently rigorous for the intended purpose.

The only matter the Tribunal will be able to consider, in brief, is the implication of any proposed buildings or works on a property’s heritage value. Consequently, it is important in both the interests of heritage conservation and fairness to property owners (reflecting the public benefits and private costs respectively that flow from the use of the Heritage Overlay), that: o Properties are not included in the Heritage Overlay unless this is fully justified o The Statement of Significance for each property provides a reliable statement of a place’s heritage significance o The extent and nature of the controls applied to each property, including any heritage policy, are those most relevant to conserving its identified heritage values.

Clearly, the concept of rigour, involving as it does strictness, harshness with justice and severity, is an approach to historic research that must be taken seriously. The definition of “rigorous” means that the research that supports any statement that a place is of local or state heritage significance should, relative to any standard, be quite thorough. Given that a Heritage Overlay will impose quite onerous restrictions and obligations on arbitrarily selected property owners, often on a site-specific rather than class basis, and entirely for the public’s benefit, this seems a reasonable requirement [refer S. 4(1)(a) of the Planning & Environment Act 1987 relating to the objectives of planning, including “to provide for the fair, orderly, economic ad sustainable use, and development of land”]. (Panel’s emphasis)

In turning our minds to some way of making the concept of a rigorous heritage assessment clearer, we suggest the following explanation is appropriate:

“rigorous assessment would be that level of assessment that is sufficiently thorough as to provide a high level of confidence that any further research or analysis would have only a low probability of providing further, verifiable information of direct relevance to the grounds on which a building’s heritage significance would be established.”

In our view, the issue of rigour in historic assessment relates to the thoroughness of the research and comparative analysis that is applied to that a particular building in order to ensure that a building is of sufficient cultural importance, at the relevant level of significance,

31 Hobsons Bay Planning Scheme - Amendment C17 Panel Report that it should be protected in the planning scheme under the provisions of the Heritage Overlay.

The question is, then, has Hobsons Bay Council undertaken adequate research and analysis to justify the inclusion of each of the affected properties in this amendment?

In reviewing the adequacy of the historic assessment, we feel that there are five particular issues that we must consider before we proceed to examine the evidence presented in respect of any particular property: o The extent and quality of the research that was undertaken and the facts on which the assessment was based. o The adequacy of the comparative analysis of a place against other equivalents and the quality of the documentation illustrating this. o The elaboration of the criteria on which the judgement of the heritage significance of each building has been based. o The quality of the logical argument by which an understanding of a place’s heritage value is developed. o The adequacy of the statements of heritage significance of individual buildings to support and illustrate the claim of heritage significance.

Adequacy of the Historic Research With respect to the quality and extent of the historic research, we noted numerous examples where the research was minimal, conclusions as to facts were wrong or conclusions were drawn on the basis of conjecture. Examples include the following, drawing both from those properties that were the subject of submissions to the Panel and others we have noted in reviewing Volume 1 of Stage 2 of the Altona, Laverton and Newport Districts Heritage Study.

Take the dwelling at 86 The Avenue, Spotswood. The collection and assessment of facts relating to its construction, presumed relocation and historic associations proved to be almost entirely wrong in all respects.

Council’s history of the site observed “This house was reputedly moved here from Williamstown for James Steele …….. The Steele family had links with the early pilot service at Williamstown so that there may be truth in the legend that that it was a former pilot’s house.” Yet Mr. Willingham established, to our satisfaction and on the basis of research which included a detailed internal inspection of the dwelling, including removing linings of rooms, that the dwelling had never been relocated as claimed, that it had been built of salvaged materials on this site and that the dwelling was constructed by a William Steel who had been a clerk in the Australian Widows’ Fund Life Assurance Society Limited. There is no connection between this property and the only Steele identified with the Port Phillip Pilot Service (being a Mr. John Steele, who lived in Queenscliff). James Steel, an occupant of the house in its early days, had been a labourer.

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One of the two points in Council’s Statement of Significance for this dwelling depended on its links with the maritime industry, notwithstanding that this aspect of the dwelling’s history, as stated in its own Heritage Study, was based on family legend.

We would describe Mr. Willingham’s research as meeting the requirements of adequate rigour.

For the quarryman’s house at 75 Blackshaws Road (not the subject of any submission), the Specific History of the place noted: “The early history of this house is a little unclear.” The information is that the house was first recorded as a timber house in the council’s rate records and, 8 years, as a stone house on the MMBW plans. In the 1900-1930s it is described as timber and, in the 1940s-50s as stone (presumably, though not stated, this information is from the rate records). The site is identified at an unnamed “more recent” date as Lot 41, but no lot or street number is provided for any of the earlier dates. Given the inaccuracies that emerged in relation to the research into the dwelling at 86 The Avenue and given the qualification already offered in the Heritage Study, we do not have much confidence that the above information is either reliable or useful and conclude that any conclusions drawn from it are questionable.

, the nature of its association with a presumed design firm and as an exemplar of a contemporary architectural style.

In the case of the Perfectus Air Screw aircraft parts factory, Mason Street, Newport (not subject to any submission) the single basis for the site’s heritage significance is “its link with innovatory aeronautical design in the post WW2 era (Criterion H1).” The site’s history merely states, without any elaboration “The factory built there (in about 1952) was apparently once a source of innovatory aviation products such as wooden propellers and reputedly later space travel components for NASA”(Panel’s underlining). No further information is provided about the nature or significance of these innovative products. The Comparative Analysis only notes: “Although externally typical of other WW2 era (being built in 1952, should presumably read “post-WW2 era”) small scale factories, this building’s historical associations are uncommon” – and this notwithstanding the Statement’s reliance on unacknowledged sources of information.

From our understanding, all of the inspections undertaken by Council’s heritage consultants for the purpose of preparing Volume 1 of Stage 2 of the heritage study were made from outside the properties. Some of the physical descriptions of industrial properties noted, “Inspection required” (e.g. McKenzie & Holland Pty Ltd factory in Sutton Street; former Melbourne Glass Bottle Works complex, Booker Street, Spotswood). In some cases, the reliance on external inspections resulted in demonstrated lack of knowledge of the extent, details or location of items of presumed heritage significance (e.g. in the case of the Mobil Oil Terminal site, Francis Street, Spotswood, the Study noted the existence of a single large riveted tank, whereas Mr. Lovell advised us of a second, adjoining tank of similar construction and numerous other, smaller riveted tanks). In other cases, site inspections undertaken after objecting submissions were lodged revealed information that resulted in Council agreeing to withdraw a property from the amendment (e.g. the “Erection Shop” at 9- 9A Sutton Street, Spotswood). In others cases (the former COR refinery complex, the

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Melbourne Bottle Works site), Council’s Study appeared to have relied on evidence from an earlier study undertaken by another body without any further corroboration of its reliability. In the case of the COR site, an inspection undertaken in response to an objecting submission, revealed that one building and the original elements of a railway siding included in the Statement of Significance had been respectively demolished or replaced.

Consider further the application of Heritage Overlay to some of the larger industrial sites (a matter discussed later in this report in relation to the management of heritage sites). In a number of cases (e.g. the Mobil Oil Terminal, the Melbourne Bottle Works site, the Cheetham Salt Works site) Council accepted that only a small part of the site or a more restricted range of buildings and works should be subject to the Heritage Overlay’s controls, but conceded that there would be considerably more work required to identify the appropriate extent of such controls. In the case of the two aforementioned sites, the site owner’s consultants produced very extensive and thorough research reports that went well beyond the quality of work in the Altona, Laverton & Newport Districts Heritage Study and, in our view, justified the description of rigorous research.

In relation to the Mobil Refinery site, Miller Street, Altona, Mr. Banister made the following submission: “the citation ….. itself identifies the lack of a detailed assessment of the site. The citation identifies the need for inspection of the site and the identification of ‘any further contributory or significant elements’. Also, “The generality of the Altona refinery citation in its recommendations where it identifies significance as a result of contributory elements as ‘generally those which derive from the 1940-1950s development period’ is ‘problematic’”. We agree with these points.

During the hearing, Mr. Butler advised us, in the form of an aside, that the budget to prepare an assessment of each property was “$200.” We understand that the typical rates for professional consulting services of this kind would, depending on the level of staff experience and type of firm, be between $60-120/hour, so that the average amount of research for each potential heritage place would have been, very roughly, between 2 and 3 hours. The figure quoted by Mr. Butler was clearly very general and the Panel did not explore whether or not this was net of other costs (we presume it was). Clearly, also, some properties would require much less research than others. However, even if taken only as a broad indication of time allocation, we are surprised at the economy with which this research appears to have been conducted. By contrast, the research undertaken by Mr. Willingham to refute Council’s research and conclusions in relation to the single, modest dwelling in The Avenue clearly involved several quantum more research.

The conclusion that we have reached in respect to the thoroughness and extent of the historic research on which this amendment is based is that, in general, it is not adequate and does not fall within the meaning of the term “rigorous”.

In respect to a number of the matters referred to us, while we agree that the general level of research appears to be adequate to support a statement about the broad heritage value of a site based on its broad social and cultural importance to the City (i.e. a prima facie case), this is generally not true at the detailed level or with respect to specific buildings. In some cases, there were major or minor errors and, while some of these could be readily addressed (e.g. by a single site inspection by Council’s consultants), others could only be addressed by very

34 Hobsons Bay Planning Scheme - Amendment C17 Panel Report considerable research by submitters. In some cases, the conclusions about heritage significance had relied on conjecture, legend and unsubstantiated probability.

Not only have we reached the above conclusion from our review of those matters that were the subject of this Panel hearing, but also from our perusal of the balance of the Altona, Laverton and Newport Districts Heritage Study. This wider review has led us to the conclusion that the same concerns are broadly applicable to the research throughout the Study.

Adequacy of the Comparative Analysis All of the assessments of individual properties contained a relatively brief comparative analysis. In many cases we consider that a brief comparative statement is sufficient because of the site’s uniqueness or rarity (e.g. the Cheetham Salt Works, the Mobil Oil Refinery in Millers Road, or the MMBW Brooklyn Pumping Station). However, where a site is not rare, we believe that it is not acceptable to rely on a cryptic comparison. In this case, we consider that many of these analyses were perfunctory rather than informative – not sufficient to demonstrate any useful analysis or to support the conclusions reached elsewhere. We set out a number of examples, some for properties referred to us, others from the balance of properties in the Study: o The comparative analysis for the dwelling at 57 Champion Road, Williamstown North, states: “This house stands out among other Edwardian-era houses in the City and Region, with only a few examples in Williamstown being similarly ornamented.” There are no details of these other dwellings, no indication as to whether they are considered to be of local heritage significance and no reference at all to the associations with the Newport Rail Yards, which is an important element in this building’s Statement of Significance. o The comparative analysis for the COR complex, Kororoit Creek Road, states: “As part of the first Australian oil refinery there is no comparison, although severely depleted in original fabric.” (In fact, the large bulk of the fabric, including all that associated with the oil refinery technology, has gone). Given that this refinery only pre-dated several others by a very few years, we feel that this analysis should have gone further – though this also relates to the importance to be placed on a site because it was the first of its kind, an issue discussed generally elsewhere but not discussed anywhere in this Study) o For the Perfectus Air Screw aircraft parts factory “Although externally typical of other WW2 era small scale factories, this building’s historical associations are uncommon.” Neither here, nor in any historical context provided for this building is there any analysis of this issue. o For the Seaholme Railway Station: “…. Is the only one close to its original form and setting on this section of the railway, the other stations having been redeveloped. It is one of the early public buildings in the Altona area.” This does not tell us about the extent of railway line considered for this analysis. As the physical description did not provide any description of the extent of external change, conclusions are difficult to draw. There is no information about the number or nature of other public buildings (this is a 1921 building) considered. o For the Newport Civic & Commercial Precinct: “The other comparable area in the City is the older Williamstown port commercial centre of Nelson Place, the mixed and altered Ferguson St strip and the less intact and extensive Hudsons Rd Spotswood (sic).” Each

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of these other centres, however, had rather different origins, commercial and social roles, scale and character, but none of this is brought forward. There is also no information about the heritage values ascribed to these other centres. o Quarryman’s house at 75 Blackshaws Road: “Other quarrymen’s houses are at Champion Road and in Elizabeth Streets.” There is no explanation as to whether this dwelling is one of only three such; there is also no analysis of the implications or nature of its stone construction, one of the two grounds cited for its heritage value.

To conclude, we consider that, in many cases, the Comparative Analysis provided in the Altona, Laverton & Newport Districts Heritage Study does not reflect the level of information or detail that is necessary to support its conclusions about a place’s heritage value.

Elaboration of the Criteria In this section, we have discussed our concerns about the measures that have been used to determine whether a place is of local heritage significance.

As the Local Government Heritage Guidelines observed “Every place has a history, an aesthetic value or a social meaning to some members of a community. Most places therefore meet some of the standards prescribed (earlier in that report). It is, however, neither possible nor desirable to conserve every building, work, place or object. Some measures must be applied to places, buildings and objects to which these standards apply in order to determine the degree of significance of a particular place. The degree to which a place is significant will determine the appropriate forms of management for the place.”

The various guidelines, referred to previously (the Planning & Environment Act 1987, the AHC, the Burra Charter) set out a number of criteria for assessing the heritage significance of a place. However, there is scant advice on how to interpret these criteria at any particular level (State or local being the only two levels identified in the Local Government Heritage Guidelines). The only guide of any kind is from the “Guidelines to the Burra Charter: Cultural Significance” (referred to previously) which states, “Cultural significance is a concept which helps in estimating the value of places. The places that are likely to be of significance are those which help an understanding of the past or enrich the present, and which will be of value to future generations” (Panel’s underlining).

We are concerned that this lack of Guidance, together with any discussion of this issue in this Study, from either a practical or theoretical perspective, has resulted in the inclusion of places that should not properly be included in a Heritage Overlay.

The kinds of examples that are reflected by this issue include: o The nature of, and importance given to, an association between a place and a person, firm or industry, i.e. to what extent should the former provide the observer with some insight about the latter to justify its local significance. o The extent and nature of the remnants of a place that we should protect to usefully reflect some historic association of the site with a person or industry (e.g. for the Mobil Oil Terminal, Francis Street, Spotswood, should we preserve all buildings and artefacts of a particular era, or just a representative sample, and how should we select that era when we are dealing with an ongoing business?).

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The only discussion of this type of which this panel is aware is in a report by the panel that considered Amendment L47(D) to the Stonnington Planning Scheme (Mr. Helms referred us to another extract from this panel report). Mr. Willingham referred that Panel to a paper prepared by the architectural historian Graeme Davison (undated) “What Makes a Building Historic”. In turn, Davison approvingly cites an observation by Sir John Summerson, a noted British architectural historian: “the objective fact that a certain man did live in a certain house is of purely subjective value”. Summerson then went on to state “The connection becomes more than sentimental only if the man and the building he inhabited somehow help to interpret each other”. He then discussed a number of examples of famous men and their houses, making the point that, in most cases, the connection between a man and his dwelling was “almost entirely fortuitous”.

We believe that it is quite appropriate and meaningful to rephrase this quotation by changing “certain man” to “certain industry or business”.

The question then is: how important should a person, business or industry be, or in what way should a building be associated with that person, business or industry for that building to be of local historical importance and worthy of being conserved for that reason? Or, if it is worthy of conservation, what aspects of the building should be protected from change because of its association with that previous person, industry or business?

That panel was concerned that a number of buildings were included in the Heritage Overlay purely or partly because their owners or occupants were people with some modest degree of social standing in their time or having some modest class connection with historic themes of their time – reasons that, in terms of John Summerson’s views, would merely rate as sentimentality. The Panel went on to comment as follows.

“Men of high class status live in houses appropriate to their position. While the design (i.e. style, size, etc.) of such houses is consistent with their occupants’ social and economic position, we conclude that they do not, in general, do much to interpret the life of their occupants except in a fairly predictable way. Usually, we found that a person’s ownership and/or occupancy of a dwelling was unrelated in any meaningful way with those activities for which their owners (or occupants) were famous, and contributed nothing much to our understanding of the person or their fame. In cases in which an important person had only owned a building (as a property investment), or had only lived in it for a period, it could be argued that the person's motor car, or suite of clothes, might be worthier of preservation.”

On the basis of this logic, that Panel recommended that the Heritage Overlay be removed from quite a number of properties and that the citations for others be amended to exclude reference to any historic associations on grounds of triviality.

Likewise, and in much the same vein, while the AHC criteria refer to rarity as an element that may render a place significant, we cannot see that rarity per se has much value. There may be scores of rare buildings in the City but most will be of no historic interest – they will merely be aberrations, failed architectural experiments and oddities. The discovery of a species of bird outside its known range is of interest to ornithologists because it tells us something new about that bird’s occurrence. However, an example of a particular dwelling type found in a

37 Hobsons Bay Planning Scheme - Amendment C17 Panel Report location remote from its usual occurrences (range) does not, in our view, necessarily provide the same insight. After all, the process of urban development abounds with outlying examples of most building styles – situations where a style of building, usually a dwelling, would be built on a more remote or speculative subdivision ahead of the main development front. We cannot see how this is of any particular significance in relation to understanding the local history.

In some cases referred to us in this amendment, e.g. the two Mobil Oil sites (Francis Street, and Miller Street, Altona; the ACI site, Booker Street) heritage experts concurred that the industries had been of considerable cultural importance to the City and were of local if not State significance. The fact that these industries, or their inheritors, still occupied the original sites adds considerably to their cultural value. However, if an industry has long departed its site (e.g. the McKenzie and Holland Pty Ltd engineering firm), it seems to us that that industry would have had to have played a very significant role in the local community before any remnant buildings on its original site would be able to help us better understand some meaningful aspect of that community’s history. Or alternatively, “the person (industry or business) and the buildings they inhabited (should) somehow help to interpret each other” in some reasonably meaningful way before any heritage value should be attributed to that building.

Where the building itself is a very ordinary structure that could have been inhabited by many different types of industry (e.g. the McKenzie and Holland Pty Ltd; the Perfectus Air Screw factory), we do not believe that any nexus exists between the building and its previous occupancies other than sentimental.

Similarly, we do not consider that the mere association of a building with a member of a particular class of person adds very much to our understanding of the local place unless there is something special about the building that helps us interpret that class of people. Examples that best reflect our concerns include the following: o The McKenzie and Holland Pty Ltd factory in Sutton Street, which is a very ordinary industrial building. This firm supplied products to the Newport Railway Yards nearby. While this association has some interest, it seems to us that there must have been a large number of like firms, supplying different materials to the railways but we do not see them brought forward for inclusion in the Heritage Overlay, nor do we think that that would be appropriate. o The Perfectus Air Screw factory is, likewise acknowledged to be a building of no particular importance. Again there were, presumably, numerous businesses supplying parts to the aircraft industry and perhaps others provided innovatory or unusual products. We do not see that the fact that this business connection, in this location, was “uncommon” provides any particularly useful enrichment of our understanding of the City’s past. o The dwelling at 86 The Avenue, Spotswood, was cited for its link with the maritime industry. Assume, for this discussion, that this link had been established [it was based on the presumption that “The Steele family (James Steele was the person presumed to have relocated the house to its present site)] had links with the early pilot service at Williamstown.” We consider that, on the basis of such a link, this house would provide no useful understanding of the history of Williamstown or Spotswood or the maritime

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industry. Some people might find this information interesting but that is a rather different matter and not, in our view, the basis for deciding on a building’s heritage value. o The Quarryman’s house, 75 Blackshaws Road, Newport, is cited as significant because it appears that its first occupant, for a period of no more than 8 years, was a quarryman and quarry’s are historically important as a major industry in the City’s early days. We have no trouble accepting the proposition that quarries are a historically important industry in the City. However, we cannot see how the fact that a quarryman lived in a particular house for no more than 8 years and that, in all other respects, it might be just another typical house, gives that house any particular significance. basis adopted in the Altona, Laverton & Newport Districts Heritage Study (referring in particular to the quarryman’s house or the dwelling at 86 The Avenue) the Heritage Overlay could equally well be applied to all houses occupied at any time however briefly by quarrymen, railway workers or railway managers, anyone connected with the maritime industry, the early development of the City, the oil industry workers and so on. This approach seems to us to be either excessive or unnecessarily arbitrary. Likewise, if the link between the Perfectus Air Screw company and the aircraft industry, or McKenzie and Holland Pty Ltd and the Newport Railway Yards justifies the application of the Heritage Overlay to those buildings, then every supplier of parts to the aircraft industry, the railway workshops or the oil industry should be identified and considered of heritage value for their equivalent associations.

With respect tot the extent of building remnants that should be preserved on much larger industrial sites (e.g. the two Mobil Oil sites and the Melbourne Bottle Works factory), we were left with the opposing views of two experts, one (Mr. Vines) taking the view that all existing remnants of the relevant era should be preserved, the other (Mr. Lovell) the view that it would be appropriate to protect a sample of the best preserved remnants.

Our conclusion is that, because the criteria for assessing any level of heritage significance are so general, there is an urgent need to clarify them. We note the comments of the Panel that considered Amendment L47(D) to the Stonnington Planning Scheme. That Panel, having considered similar issues in relation to the use of the AHC criteria to assess local significance, observed:

“We conclude that the AHC criteria, which are the criteria that form the basis for assessment of the local significance of buildings, are not readily suited to this purpose in their present form and elaboration. In our view, much difficulty is caused by the uncertainty of, and various interpretations of, the application of these criteria to the local level.

We recommend that Council should seek State Government support to a review of these criteria for use at the local level. Heritage Victoria is the obvious body with the appropriate responsibility. The AHC criteria provide the obvious basis for such criteria, but the elaboration and illustrative examples are the critical features that are required to assist Councils and the community in this matter.”

We would go further than this, in that we believe that there is also a need to ensure a greater degree of consistency within and between municipalities in this matter. This could be achieved by the publication of more appropriate guidelines and discussion papers, logically

39 Hobsons Bay Planning Scheme - Amendment C17 Panel Report by the Department of Sustainability and Environment, which could clarify these criteria and illustrate their application at the local level with appropriate examples.

Statements of Significance Most of the statements of significance, as presented to the panel, contained two parts: o A brief statement of the basis of the building’s heritage significance o A description of the place’s ‘significant attributes’ that justify this heritage significance.

The latter section of the statements of significance simply lists the key elements of the building that are considered to be important contributions to its significance. Sometimes, these relate to the surrounding vegetation, use of materials, design features and layout of the subdivision. While some parts of these statements are clearly central to the building’s significance, others are often less so, relating rather to its presentation, e.g. its “utilisation of a corner allotment”, or relate to aspects of the overall place that cannot be subjected to the general controls of the Heritage Overlay.

In some cases, it is not clear whether the authors of the Altona, Laverton & Newport Districts Heritage Study intend that any one of the attributes listed is sufficient to justify the place as being of local heritage significance or whether this level of significance is achieved through an accumulation of ‘points’. It appears to us that the Statement of Significance include attributes that are both directly relevant to establishing a place’s local significant and other attributes that are merely of interest – tagged on as additional comments. We do not consider this to be appropriate.

Examples of Statements of Significance that we consider include insufficient or inappropriate statements are set out below: o Halls Farm Residential Precinct is significant “as an indication of the effects of the Great Depression of the 1890s where many speculative residential estates were created near railway lines and left vacant for a generation (Criterion A4)”. While we accept that the information about the stop-start nature of development can be an important element of an area’s history, we cannot see how it provides a basis for preserving this estate. There is no identified aspect of the estate’s built character that can inform anyone about the hiatus in its early development. It can only be learned from texts. Nor can we see how there is any value in preserving an area of buildings because of this aspect of its history. o Halls Farm Residential Precinct is significant “as a good representation of the rapid residential growth which occurred …. around World War One.” The reader has to look elsewhere for information about the architectural character of this era. We consider it desirable that the Statement of Significance should contained more information, not requiring cross-references (this comment applies to a number of other Statements). o Re the railway-bridge and stone ford, Laverton Creek is significant as “the only ford paved with shaped or worked stone in the City; and an unusual combination of road ford and rail-bridge in the Melbourne area.” While we have no difficulty accepting the merits of the other two historic attributes of this bridge, we cannot see that the form of its construction (described as “not uncommon”) or the coincidence of a ford with a railway bridge over a small creek is of any particular significance.

40 Hobsons Bay Planning Scheme - Amendment C17 Panel Report o Re the MMBW’s Brooklyn Pumping Station, its significance is based on the two attributes of “the biggest project undertaken since the 1890s by the MMBW; for the distinctive roof form of the pumping station which sought to follow recognised contemporary architectural trends.” Leaving aside our other comments on these attributes, we do not understand why a project is historically significant to the City of Hobsons Bay because it is one of the biggest undertaken by the MMBW, and the statement does not indicate which trend, or that it is an important trend, or why this is an important representation of it. o Re the industrial buildings at 41-59 Stephenson Street, Spotswood, which were occupied by McKenzie & Holland Pty Ltd, which was contracted to provide railway hardware to the Victorian Railways Amalgamated Workshops nearby. Significance was attributed to this connection with the Newport Railway Yards, while further significance was attributed to the fact that McKenzie & Holland Pty Ltd was acquired about 1900 by Westinghouse Signals and Brake, a British firm, which (presumably through its British factories) invented and patented certain important railways technology; also because a subsequent derivation of Westinghouse Signals and Brake, by a process of acquisitions and mergers, became part of the Invensys Rail group of companies. Today Invensys Rail is, so we were advised, the largest railway engineering firm in the world. We cannot see how these connections provide this building with other than a vicarious connection with the success, size or innovativeness of another firm in another part of the world, particularly but not only where that success has no connection with this site or business. Nor do we place great value on the fact that the factory supplied parts to the railways. Presumably many other factories did likewise. We consider this tells us nothing of value about this particular building, or the building itself anything of value about the railway industry. o Re the Cheetham Salt Works site: while we accept the significance of this site, we do not believe that the single Statement of Significance provides an adequate justification, stating as it does only that “as a major undertaking in an uncommon industry for the State and Region (criterion A4, B2)”. This poses the contradiction that, in some cases, industries are deemed significant because they were common in the City’s early history, while others are significant because they were uncommon. We consider that the logic of this apparent contradiction should be clarified.

In general, we often formed the view that the Statements of Significance should be worded to provide greater clarity as to their intent. As an example, one of the grounds of the historic significance of the Newport Civic & Commercial Centre is “as a commercial centre which extends back into the 19th century.” We presume that this could be represented by the alternative and, in our view, more revealing statement: “as a still functioning example of an important, 19th century commercial centre that contains significant and reasonably intact representative buildings from early periods of its development.”

In conclusion, we consider that, leaving aside inaccuracies, many of the Statements of Significance contain information that is not relevant to establishing a place’s significance or is unrelated to any basis for that historic significance. In other cases, the Statements of Significance could be worded to make their intentions much clearer to the reader (and, at some future date, to Council, its planning officers and Tribunal members).

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Does the Assessment Process Allow Appropriate Conclusions to be Drawn? A number of submitters criticised different aspects of the process that had been used in the Altona, Laverton and Newport Districts Heritage Study to establish a place’s level of heritage significance. Sometimes these criticisms were general; sometimes they were quite specific.

To consider this, we feel that it is necessary to review the way the Heritage Study has illustrated the various steps in the assessment process. The steps in this process included: o A description of the place o An outline of both its historic context and specific history, and o A comparative analysis of its importance in relation to similar places.

In only a few cases were we provided (e.g. by a submitter or their consultant) with an alternative version of the historic context and specific history of a place and these cases were mainly as a result of submissions about industrial sites. Mr Willingham’s research of the history of the dwelling in The Avenue, Spotswood, was the only residential example. We have already commented on the adequacy of research underlying the Heritage Study.

We consider the factual descriptions of the various places to be generally adequate, though we are conscious that most of these descriptions (particularly, as stated, in relation to the dwellings) were not contested in their broad nature and therefore our view is formed without the benefits of a comparative assessment.

Our real concern is about the lack of clarity in the process of developing an understanding of whether a place is of heritage significance at the local level. This arises in part from the very cryptic nature of the statements of Comparative Analysis, which are usually only a short sentence, in part from the fact that the Study contains no real and demonstrated logical argument behind the conclusion that a place has a particular level of heritage significance. This is not to suggest that we consider that these conclusions are wrong, rather that the logic has not been presented to the readers and therefore cannot be adequately assessed.

What we feel is generally missing is some clear link between the pieces of information that would explain how the conclusions have been reached from the facts. We believe that there are a number of reasons for this, though the lack of any discussion in the Altona, Laverton & Newport Districts Heritage Study as to how the level of local significance has been established, makes any discussion of this issue more difficult. The complexities of establishing a local level of significance using the AHC criteria were also discussed in the Panel Report – Amendment L74(D) to the Stonnington Planning Scheme and have already been referred to in this Report.

Conclusion and Recommendations From the above discussion, it will be clear that we have concluded that this amendment suffers from a number of failures that appear to be systemic. These include a lack of adequate rigour in the areas of historic research, comparative analysis, application of the assessment criteria, drafting of the Statements of Significance and the development of a clear, logical explanation for how a place’s heritage values have been established. Also, as there was no

42 Hobsons Bay Planning Scheme - Amendment C17 Panel Report index supplied to Appendix 10, Stage 2 Volume 1, it was very difficult to locate individual properties within the report. This was a particular problem for residential precincts.

We have also noted that, both on the basis of principle and from our perusal of documented research and analysis for other properties included in the Altona, Laverton & Newport Districts Heritage Study but not referred to us, examples appear to exist with the same deficiencies.

We consider that, on this basis, and because the absence of demonstrated rigour across a number of facets of the Altona, Laverton & Newport Districts Heritage Study is critical to the credibility of this amendment; Council should undertake a thorough peer-review of this study.

While we have reached conclusions and made recommendations about individual properties referred to the Panel, actions in relation to these recommendations should be subservient to completion of the peer review.

The Panel therefore recommends as follows: o That before proceeding further with this amendment, Council should obtain an independent peer review of the Altona, Laverton & Newport Districts Heritage Study, taking account of the matters raised in this report and the various obligations and guidelines referred to here or otherwise appropriate, including the Burra Charter, the Australian Heritage Commission and the Planning & Environment Act 1987 o That in undertaking this review, Council consult with the Department of Sustainability and Environment for guidance on selecting and providing an appropriate brief for such a reviewer o That Council request that the Department of Sustainability and Environment to prepare, for the assistance of Councils, heritage researchers and Heritage Study Reference Groups generally, further guidelines on the interpretation and application of assessments of local heritage significance and the interpretation of the AHC criteria at the level of local significance. o Following the above review, Council to review the whole of Amendment C17 to incorporate changes flowing from the peer review.

5.4 Management of Heritage Places Policy Context The most authoritative view on the relationship between the process of identifying heritage values and decisions on their management can, in our view, be found in the Guidelines to the Burra Charter: Cultural Significance. These guidelines advise (Para 1.5): “The assessment of cultural significance and the preparation of a statement do not involve or take account of such issues as the necessity for conservation action, legal constraints, possible uses, structural stability or costs and returns. These issues will be dealt with in the development of a conservation policy.” The concluding point is, in fact, critical to the issue of how to balance the use of the Heritage Overlay to identify places of heritage value with decisions on their management.

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The various parties made submissions to us on the matter of the merits of Council’s selection of areas to be included in the Heritage Overlay or the proposed management objectives for heritage sites. However, we were not provided with any other broad-based policy relating to the matter of balancing the identification of heritage values with the management of heritage places. We have therefore adopted the above Burra Charter guideline in considering submissions on this matter.

For Functioning Industrial Sites parts or the whole of certain industrial sites because the negative effects that would arise for the continued operation of such businesses. The kinds of problem that were cited related to conflicts that would occur between the management requirements for a viable industry and the constraints, time delays and uncertainties involved in obtaining approval for buildings and works under the provisions of the Heritage Overlay. There was also the problem that industries are subject to a range of other acts, which impose unrelated and critical requirements relating to OH&S, e.g. removal of asbestos, provision of safe working conditions and the like.

Examples of such problems, as provided to us, included the following: o For a petroleum refinery, works could be required at short notice to respond to OH&S issues, but there is no exemption under the standard provisions of the Heritage Overlay for such works o For a petroleum refinery, as Mr. Lovell and Mr. Banister pointed out, there is an ongoing and extensive process of updating and replacing equipment, much of which would fall outside the ambit of maintenance as defined in the Heritage Overlay and thus require planning permits o In the case of the Mobil Oil refinery, which is in a Special Use Zone (refinery), there is a direct conflict between the objectives of that zone and those of the Heritage Overlay o The delays caused by the requirement for permits for the construction of new buildings would introduced unreasonable cost o Compromises would be forced on building design and layout, or the location and design of new plant, as a result of heritage requirements and this could compromise the economic sustainable of a business by imposing unreasonable costs or delays, or by compromising the effectiveness of the plants’ design and requiring the retention of buildings unsuited to modern plant or working conditions.

Mr. Lovell proposed a number of options to deal with this issue – some of general relevance, some specific to the Mobil Refinery site: o Use of an Incorporated Plan in accordance with the provision of the Schedule to the Heritage Overlay, to exclude unreasonable permit requirements (Mr. Lovell suggested that the only requirement be one of recording heritage items, with permits for buildings and works not otherwise requiring a permit) o Heritage Overlay to be applied to token items only (e.g. on the Mobil site, such structures as office buildings and the SCC tower)

44 Hobsons Bay Planning Scheme - Amendment C17 Panel Report o In cases, such as petroleum refinery sites, which are located in a Special Use Zone, to amend the schedule to the zone to include heritage conservation as one of its purposes.

A further option would be to limit the Heritage Overlay to those parts of a site for which preservation is reasonable, taking account of equity, social and economic objectives, notwithstanding that other parts may be of some heritage significance.

Mr. Helms, in his submission relating to the two Mobil Oil sites, acknowledged the difficulties of applying the Heritage Overlay to industrial sites, noting “…. it is agreed that the HO is perhaps not the best mechanism for managing large industrial sites, which require on-going maintenance and up-grading of plant and equipment, ……” Mr. Banister expressed the view that the Heritage Overlay has its focus purely on building fabric and structures, whereas much of the historic significance of some of the major industrial sites in the City is derived from the continuity of the original activity, which is often negatively affected by conservation focussed on historic fabric.

Mr. Lovell proposed, and Mr. Helms also accepted as reasonable, that on some large industrial sites it would be appropriate to limit the extent of heritage controls by introducing an Incorporated Document pursuant to Clause 43.01-2.

Mr. Helms submitted, with respect to Mobil Oil’s Francis Street site “it is considered a document should be incorporated into the ….. Planning Scheme, which document could be based on the Allom Lovell report, with the addition of a schedule and plan that clearly sets out the types of replacements to plant, buildings etc. that could be exempted. Council would be able to assist Mobil in developing this schedule.” The questions raised by this suggestion relate to: o Whether it would be reasonable to apply the Heritage Overlay in the first instance, with the Incorporated Document following via a second planning scheme amendment? o The question of who would be responsible for preparing the Incorporated Document?

Discussion We have already indicated that we adopt the position put in the Burra Charter that the Heritage Overlay should identify places of heritage value without fear or favour. Other issues should be considered within the context of heritage management policies. This is consistent with the position taken by the Panel that considered Amendment L47(D) to the Stonnington Planning Scheme. That Panel, in dealing with this same issue of whether the Heritage Overlay should not be imposed due to considerations of economic hardship, said: “We … consider that transparency of the planning process should be maintained. This certainly relates to the objective of fairness [Planning & Environment Act 1987, Clause 4(1)(a)] and will assist in the process of balancing the “present and future interests of all Victorians” [Planning & Environment Act 1987, Clause 4(1)(g)]. This transparency will be assisted by separating the process of designating heritage significance from the process of making decisions about building’s conservation, whether this be related to its replacement, unreasonably expensive maintenance or unsuitability for modern living.”

45 Hobsons Bay Planning Scheme - Amendment C17 Panel Report

On the assumption that a place has been identified as being of local heritage value, the questions that need to be addressed in deciding on the extent of the Heritage Overlay and the ongoing management of the place include: o How to deal with the limitations of the Heritage Overlay in respect to its focus on protecting building fabric and works rather than activities or other repositories of cultural values. o How to establish an appropriate and equitable balance between the heritage objectives and other (e.g. social and economic) objectives of the Planning & Environment Act 1987 and the relevant planning scheme. o How to ensure that the extent of the Heritage Overlay’s controls are limited to those matter’s whose heritage values are supported by sufficiently rigorous research. o How to assign appropriate responsibility for the ongoing research into the heritage values of a place.

The issue is, rather, how to develop a management policy for a heritage site that takes account of the matters referred to in the Guidelines to the Burra Charter: Cultural Significance (para 1.5) by making use of the various controls and discretion available within the Heritage Overlay (Clause 43.01).

There are three ways that the broad discretion created by the Heritage Overlay can be varied to suite different types of management policy: o Without reducing the extent of the Heritage Overlay’s controls, Council can adopt policies varying the strictness with which Council will seek to achieve heritage outcomes (i.e. while a permit will generally be required for all buildings and works, the circumstances in which Council might seek restoration or reinstatement of missing items, or would refuse demolition of buildings or their parts, may be varied widely by such a policy) o The items in the Schedule to Clause 43.01 can be varied to include or exclude permit requirements in relation to such matters as tree protection, external paint colours or alterations to the interior of buildings o An Incorporated Document, introduced pursuant to the provisions of Clause 43.01-2, would allow Council to vary considerably the matters that would be subject to a permit. Such a document could exempt specified buildings and works from requiring a permit and this could be done by specifying a class of buildings and works or buildings and works in specified parts of a site or a combination. A class of buildings and works could also be specified as those meeting certain conditions (e.g. as to age, type, required for OH&S or safety reasons, etc).

We discuss first the option of the Incorporated Document. As discussed, Mr. Helms had supported the use of such a device in relation to the Mobil Oil sites, though also proposing that its introduction should follow on from the introduction of the widely drawn Heritage Overlay. Parks Victoria has also acquiesced to this approach in relation to the Cheetham Salt Works site. However, this suggestion by Council raises, in turn, a number of issues about equity and fairness within the planning system (as alluded to previously and which we discuss later).

46 Hobsons Bay Planning Scheme - Amendment C17 Panel Report

Hobsons Bay Council is the planning authority for the City. It is the Council that has initiated this amendment. As we have pointed out elsewhere, we have concluded that there is a serious lack of rigour in at least some of the research that provides the basis for this amendment, particularly with respect to the details of heritage values within the larger industrial sites rather than in an assessment of their broad cultural values. In respect to the latter matter, we accept that the generally defined ACI (Melbourne Bottle Works) site, or two Mobil Oil sites as generally defined, are of cultural value for their social and economic role in the State and locality. For that purpose, it does not seem important to quibble about the precise details of the area to be included in the Heritage Overlay. It would also seem that, for the purposes of conserving the social or economic aspect of those heritage values, that much would be achieved by maintaining the existing historic activities, whether it be glass manufacturing or oil refining and even if using more modern technology. For this reason, and in such circumstances, it would be a contradiction if the introduction of the Heritage Overlay placed the viability of a business at risk. Continuation of the historic activity in any form would appear to us to provide the most valuable connection with such a site’s past.

In introducing an Incorporated Document, there are two key issues that have been raised in submissions: o Whether to extend the Heritage Overlay across the whole of a site (e.g. as proposed in this amendment) and to then wind back the areas of discretion through an Incorporated Document inserted in a subsequent planning scheme, or whether to delay the approval of the Heritage Overlay until the Incorporated Document has been prepared and can be included in the same amendment? o Who should be responsible for the preparation of the Incorporated Document – Council, as planning authority or the site’s owner (presumably being the party with the most ready access to information and the greatest motivation)?

Council has proposed that a broad-based Heritage Overlay should be included through this amendment process for the major industrial sites, to be followed in a later amendment by an Incorporated Document that, according to Mr. Helms (referring to the Mobil Oil Terminal in Francis Street) would be prepared by the site’s owner (with Council’s assistance).

We have concluded that it is reasonable that the Heritage Overlays proposed by this amendment for the large industrial sites should be established, but that an Incorporated Document should at the same time be created to limit the extent of discretion to that which can be clearly justified by the currently available research.

Council has initiated this amendment and has undertaken the research that has identified the sites to be placed within the Heritage Overlay. We consider that it would now be inequitable for Council to make, in effect, an ambit claim for the extent of Heritage Overlay over a site and to then place the onus on the owner to justify a winding-back of the controls via further research and preparation of an Incorporated Document. We believe that this would create a major inequity for property owners.

We accept the credibility of the various submissions emphasising the economic and management contradictions that would be created in many cases for operating industries faced with heritage objectives as part of their business decisions. We consider that the imposition

47 Hobsons Bay Planning Scheme - Amendment C17 Panel Report of heritage controls should not occur unless the heritage merits are clearly justified and a management plan has been prepared to deal with the necessary balance between competing interests and needs. This view is supported by the various guidelines about the use of rigour in preparing heritage assessments of places, including assertions to this effect in Council’s own study. In respect to the major industrial sites that we have considered, we consider that this outcome has not yet been achieved.

This situation of inequity is made more onerous by the provisions of the Planning & Environment Act 1987. Pursuant to this Act, if the Heritage Overlay were to proceed as part of this amendment but the Incorporated Document were to be included via a later amendment, Council would have a complete veto on the contents of any Document prepared by a site owner through Council’s ability to refuse to exhibit such a planning scheme amendment until it was satisfied with the contents of the Incorporated Document. And if a site’s owner argued that Council should bear the cost of such research, there is no requirement for Council to proceed within any particular time frame. Council could well have other, more pressing, needs for its officers’ time and its budget priorities.

We consider that this creates an unjust situation that is quite different from that where the Incorporated Document and the Heritage Overlay are exhibited jointly. Furthermore, if an Incorporated Document were to follow via a later amendment and the full discretionary powers of the Heritage Overlay were to apply to a site until then, there would be both the inequity of excessive controls (as discussed above) and a further perception that Council would be situated in a coercive position. Property owners could perceive that they would be obliged to fund the necessary further study and to acquiesce in the details of an Incorporated Document in order to expedite the preparation of a further amendment with contents to Council’s satisfaction.

The only way that we see that this potential injustice can be addressed, if the Heritage Overlays proceed on major industrial sites without the researched and properly detailed Incorporated Document, is that this amendment be varied to include at this stage a relatively simple and conservative Incorporated Document in relation to such sites. This simple Incorporated Document would exclude all parts of a site from the application of the controls of Clause 43.01 except for those parts where the heritage values had been clearly and unequivocally established.

In our view, the extent and nature of heritage controls should not extend beyond the level of detail that can be justified by the degree of rigour that has been applied to the research. For instance, if a general case has been made that a site is of heritage value for social or economic reasons pertaining to the site’s history of use or ownership, it may be appropriate to identify that site in a Heritage Overlay. However, if most of the research necessary to inform development decisions affecting individual buildings within a site has not been completed, then no control should be presently applied.

We would be less concerned about supporting an ambit claim for a heritage overlay for a major industrial site in this amendment if the heritage values to be protected were very high, were under considerable threat in the short term and there were no significant economic effects of such a claim. However, none of the submissions made to us in respect of the large industrial sites suggested that there is any short-term risk of loss of heritage values. Therefore we do not consider that this is a consideration that outweighs our views as expressed above.

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To further reinforce the above points, we note the first objective of Clause 21.07 “To conserve and enhance heritage places of identified natural and cultural significance and those elements which contribute to the significance of heritage places.” We do not consider it reasonable to pursue this objective until an adequate body of information is available that can, reasonably clearly and reliably, identify “those elements which contribute to the significance.” In many of the industrial sites, we have already concluded that this requirement has not been achieved.

With respect to Mr. Lovell’s proposal that a modification should be made to the Special Use Zone for the petroleum refinery, we do not consider that this is an appropriate means to conserve places of heritage value. As Mr. Helms pointed out, the Special Use Zone does not include any control over demolition, so that one of the key features that differentiate the Heritage Overlay from all other zones and overlays, its ability to prevent demolition of significant places, is lost. With no control over demolition, the heritage value of a place could be removed without a permit. Where buildings or works might arguably require a permit, the Decision Guidelines of the Special Use Zone do not include any reference to the heritage values of a place. Furthermore, the Special Use Zone does not identify places of heritage significance, one of Council’s objectives and an implied, if not specific, objective of the Planning & Environment Act 1987.

We therefore agree with Mr. Helms that the use of the Special Use Zone to protect heritage values would lack transparency in identifying heritage values and would be inconsistent with the relevant VPP Practice Note Applying the Heritage Overlay.

With respect to the responsibility for undertaking the further research that is required to constrain the extent of heritage controls (i.e. through the introduction of an Incorporated Document), we consider that this responsibility should lie with Council. While anyone can, in practice, informally prepare a planning scheme amendment and owners of major properties have considerable motivation to contribute, it is only Council that can formally place an amendment on exhibition and there is no avenue of appeal against Council’s failure to do so.

Qualification In reaching the conclusion set out below, we consider that it is important to differentiate between the situation where a Heritage Overlay is proposed for an industrial site that is not used for a continuing industry or which is to be subjected to significant redevelopment proposals unrelated to its historic industrial use. In this case, we consider it is appropriate that the Heritage Overlay be applied in the first instance as a means of protecting identified heritage values, with an Incorporated Document following via a later planning scheme amendment. In such cases where major development proposals are in the offing, the heritage values of the site are clearly at risk. The changes that threaten these values are ones that have been instigated by the site’s owner or a related party.

In the cases that we are considering here, it appeared to be common ground amongst the various parties that the heritage values of the various industrial sites is not under threat in the short term and the only changes proposed are those required by the ongoing, established industry.

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Panel’s Conclusions and Recommendations From the above discussion, we have concluded that, in relation to the application of the Heritage Overlay to large, currently functioning industrial sites, that: o It is reasonable, in the interests of transparency, that the Heritage Overlay should be applied to the whole of sites where the general site is of clearly established local cultural significance o An Incorporated Document should be introduced concurrently with such Heritage Overlay, with the Incorporated Document being designed to limit the extent of the discretionary powers created by Clause 43.01 to the fabric of those buildings and those works whose local heritage value had been clearly established by rigorous research. o Any Incorporated Document should be drawn narrowly rather than broadly in the first instance, in order to ensure that the discretion is not applied to buildings and works that do not have a clearly established local heritage value o Council should be responsible for preparing any Incorporated Document.

5.5 Consistency and Fairness in Heritage Management Objectives Appendix 10, Volume 1, Stage 2 of the Altona, Laverton & Newport Districts Heritage Study contains, for each property recommended for inclusion in a Heritage Overlay, a set of Management Objectives. In each case, the text states that the Management Objectives have been drawn from the Statement of Significance and sometimes adds a rider to identify the relevant era from which these contributory elements are drawn (e.g. “The following objectives have been drawn from the Statement of Significance where contributor elements are generally those which derive from the Victorian-era”).

Some submitters expressed concerns about the effect of the requirements set out in the Management Objectives for each property, submitting that, in specific cases, the Management Objectives would require unreasonable changes, that they would prevent substandard housing being improved to more appropriate standards and that unreasonable, historic aesthetic requirements would be imposed on households.

Discussion We have a number of concerns relating to these Management Objectives: o The lack of any attempt, in almost all cases, to balance the Planning Scheme’s heritage objectives against the other objectives of the Scheme and Planning & Environment Act 1987. o The unreasonable stringency of many of the management requirements. o Changes made between the Management Objectives of the exhibited Altona, Laverton & Newport Districts Heritage Study and the revised versions of some of these that were presented to the Panel during the course of the hearing.

Firstly, we are concerned about the differences between the original Management Objectives as set out in the Altona, Laverton & Newport Districts Heritage Study and the revised

50 Hobsons Bay Planning Scheme - Amendment C17 Panel Report citations and statements of significance that were submitted part way through the hearings and, consequently, had not placed on public display. Apart from elaboration of the historic context or specific history of a site, this additional material included elaborations of the Management Objectives with such advice as: “enhancement includes reinstatement of known missing original elements”, and “enhancement might include reinstatement of early fabric such as the windows, fences or garden elements”, and “enhancement includes reinstatement of known missing original elements such as verandahs, shopfronts, and early colour schemes (including removal of paint from previously unpainted surface) and the removal of unrelated and intrusive elements such as the railway overpass on Melbourne Road”. . The original Management Objectives did refer to enhancement, but without the clarity of the revised objectives. To gain a clear understanding of the term “enhancement” the reader of the exhibited Volume 1 or Stage 2 of the Study would have to refer to the table in Volume 1 (p6), which provides an interpretation of the different words found in the Management Objectives. In effect, the elaboration has not changed the intent of the Management Objectives, but it has certainly clarified it. We believe that it would have been desirable for this elaboration to be provided in the published Volume 1.

Our greater concern is about how these Management Objectives would be applied through future planning permits and the consequences of their application. The clear intent of these Management Objectives is that residents would be required to remove more recent fencing and replace it with something more like the original, replace modified windows with original windows or restore the original paint colours.

Reinstatement of an historic building to an original condition is normally only used when a site is of high (e.g. State) heritage significance. The Burra Charter defines restoration and reinstatement/reconstruction as follows:

“Restoration means returning the EXISTING fabric of a place to a known earlier state by removing accretions or by reassembling existing components without the introduction of new material.

Reconstruction means returning a place as nearly as possible to a known earlier state and is distinguished by the introduction of materials (new or old) into the fabric.”

The revised management objectives are referring to reconstruction rather than restoration, as restoration would require the addition of materials not currently present. Reconstruction in heritage terms, certainly in relation to the practices of the Heritage Council, is usually only applied in cases where the significance of a place has been shown to be paramount and the place often is the only one of its type shown by comparative analysis. The commentary to the Burra Charter states: “Reconstruction is to be regarded as a radical intervention in the fabric, which carries a great risk of destroying the authenticity of the place, unless the rigorous process of decision making has been followed”. Reconstruction also requires the new work to be identifiable on close inspection from the original fabric.

We were concerned about the inconsistence with respect to heritage management proposals as set out in this amendment, prepared under the Planning & Environment Act 1987, and what currently occurs under the Heritage Act. The Heritage Act 1995 applies to sites that are of special cultural significance to the State of Victoria. These sites are included on the Victorian Heritage Register and given legal protection under the Heritage Act. The Heritage Council,

51 Hobsons Bay Planning Scheme - Amendment C17 Panel Report which oversees the Act, cannot force an owner to repair or restore a property to its original condition. Registration of a place by the Heritage Council does not imply that a place cannot be altered, developed or excavated or that owners will be expected to live in outdated or sub- standard conditions.

The application of external paint control is only applied by the Heritage Council to such buildings when the significance of the paint scheme has been established by comparative study and appropriate research. The Burra Charter, in its commentary states: “It is common perception that conserving buildings involves returning them to some former historic configuration and appearance, complete with colour schemes and furnishings. But this is not the inevitable result of good conservation. There are many cases when the significance of the buildings does not suffer damage from the application of modern taste.”

Reinstatement of known missing historic elements when the original fabric is not present is reconstruction. If the original fabric exists then it is restoration. The requirement for restoration is usually carried out in combination with preservation, reconstruction and adaptation. Restoration can sometimes achieve a major objective for a place such as halting decay, providing security, providing new facilities or interpreting the significance of a place. Restoration is limited to the reassembling of displaced components or removal of accretions. By definition this means that no new material is introduced. In practice it is seldom possible to restore by reassembling existing components, since the components rarely survive. Restoration by removing accretions is a much more common case.

Reconstruction however, is very rarely applied or required by the Heritage Council and only when the authenticity of a place can be safeguarded. The proposed work must demonstrate a place’s heritage significance and sufficient evidence must be available to support this conclusion. Reconstruction must be identifiable as new work without being intrusive. Clear thinking about the significance of a place is paramount.

Under the provisions of the Heritage Act 1995, in considering permit applications the Heritage Council must take certain things into account:

“Clause 73 1) a) the extent to which the application, if approved, would effect the cultural significance of her registered place or object; and b) the extent to which the application, if refused, would effect the reasonable or economic use of the registered place or object, or cause undue financial hardship to the owner in relation to that place or object ….”

The effect of these clauses in decision-making means that the Heritage Council will not require owners to live in substandard housing and they are not required to reconstruct their properties back to an original form. The reasonable use of their property must be taken into account if there is a chance of the permit being refused. The costs involved with maintenance of the property must also be considered. Other matters that must be taken into account are the extent of disrepair of the property and whether the building is dangerous.

The Burra Charter, in its commentary, stated: “The cultural significance of towns and areas usually arises from some particular features or attributes, and rarely from every single detail of their fabric. Skilled investigation and assessment should define precisely what is

52 Hobsons Bay Planning Scheme - Amendment C17 Panel Report significant, and a well prepared conservation policy should allow that significance to be kept while the life of the town goes on.”

Heritage conservation is preserving what is significant about the site but still allowing appropriate modifications and allowing a property’s owners to continue their lives under reasonable conditions.

We have concluded that the application of the level of controls proposed by Council in its Management Objectives for sites of local significance, as set out in Stage 2, Volume 1, is at odds with the current practices of the Heritage Council dealing with places of State Significance. The higher level of protection and restriction should occur with sites that are of the highest level of significance (i.e. State level) rather, as Council proposes in this amendment, with the most stringent management policies being applied to places of least (i.e. local) heritage significance. We conclude that it is not appropriate that this amendment should provide Management Objectives requiring restoration of sites of local significance.

Within the Planning & Environment Act 1987 and municipal planning schemes, the provisions that are the equivalent of those described above in the Heritage Act 1995 can be found, for the Planning & Environment Act 1987, in Section 4(1) Objectives of Planning in Victoria and, for the planning schemes, in the State Planning Policy Framework and in Clauses 21 and 22 (i.e. the MSS). However, whereas the Heritage Act 1995 provides a clear instruction within itself that heritage issues must be balanced against other issues, within the Planning & Environment Act 1987 these requirements are much more diffuse.

Moreover, we are concerned that the Council’s lack of acknowledgment of the need to balance heritage and other objectives could create an uncompromising rigidity in the interpretation of the Management Objectives. For instance, we were persuaded by the submissions relating to the dwellings at 27 and 29 Croker Street, Altona, that these buildings are, in today’s terms, substandard in space, layout and construction. We therefore conclude that their restoration to an original condition without some reasonable degree of compromise would seem to be inequitable.

From our perusal of the Management Objectives of the various properties referred to us, as well as others in the Altona, Laverton & Newport Districts Heritage Study, we found no reference to the need to balance heritage and other planning objectives. Nor, on the basis of our notes and recollections, did the discussions or further submissions at the Panel hearing include any reference by Mr. Helms or Council’s consultants to how a balance would be struck between heritage and other objectives. Certainly, in Council’s written responses to submissions and reports by expert witnesses engaged by submitters, there was no reference to the intention to balance different planning objectives. Rather, if there was any recognition of this issue, it was in terms of the expectation that it would be dealt with in the future and in response to an actual development proposal.

In our view, the Management Objectives set out for each property in the Altona, Laverton & Newport Districts Heritage Study constitute the nearest equivalent of a conservation policy that Council will produced for most of these properties. We have already noted the Burra Charter’s statement that a conservation policy should provide the necessary balance between heritage and other planning objectives. We therefore conclude that the property Management Objectives in the Altona, Laverton & Newport Districts Heritage Study should be amended to

53 Hobsons Bay Planning Scheme - Amendment C17 Panel Report acknowledge how, in making a decision on proposed development affecting a heritage place, Council will take into account other planning objectives beside heritage.

Conclusion and Recommendation On the basis of the above analysis, the Panel recommends as follows:

That Council review and modify the Management Objectives for each property to ensure that the Management Objectives: o Provide an acknowledgment that decisions on development will take account of objectives other than heritage o Provide some indication of how this balance would be achieved o Are framed to ensure that they are consistent with conservation policies applied to properties of State heritage significance with respect to matters of preservation, restoration, reconstruction and so on.

54 BALLARAT PLANNING SCHEME AMENDMENT C58 PANEL REPORT (JANUARY 2004)

L. Strategic Assessment Guidelines GENERAL PRACTICE NOTES essential that subsequent PRACTICE NOTE PRACTICE NOVEMBER 2001 NOVEMBER scheme amendments. (SPPF) and the Local Planning Policy Framework (LPPF). Framework (SPPF) and the Local Planning Policy undermine or ignore the planning policy framework in the scheme. GENERAL GENERAL prepare an amendment prepare considering an amendment construction and adoption of an amendment for approval. amendment submitted to the Minister and requirements and planning decisions more transparent STRATEGIC ASSESSMENT GUIDELINES AMENDMENTS SCHEME FOR PLANNING amendments do not this reason, an amendment should seek to implement the SPPF and the LPPF of the For planning scheme. Any specific proposal should support the policy framework. Make planning more strategic and policy based Make planning more The strategic foundation of each scheme is made up of two components – the State Framework Planning Policy If the strategic focus of new schemes is to be maintained, it is Principles applying to planning scheme amendments applying Principles planning scheme are to: objectives for Victoria’s Key • make planning more strategic and policy based • make the reasons for planning policies • ensure planning schemes are clear and usable. These objectives equally apply to planning The purpose of the Strategic Assessment Guidelines is to provide the Strategic Assessment Guidelines The purpose of proposed planning for the evaluation of a a consistent framework it produces. scheme amendment and the outcomes The guidelines should be used by: •• proponents (including councils) when formulating a proposal to a request the planning authority when considering • any planning panel and advisory committee when • the final the planning authority when considering • the Department an when considering of Infrastructure 1 1234-Strategic Assess Prac Not 12/12/01 9:30 AM Page 1 Page AM 9:30 12/12/01 Not Prac Assess 1234-Strategic 1234-Strategic Assess Prac Not 12/12/01 9:30 AM Page 2

Make the reasons for planning policies Planning Panels and Advisory Committees will report and requirements and planning decisions on these matters when considering an amendment or more transparent proposal. The Department of Infrastructure will also address these matters when considering any amendment The strategic directions that have been developed for submitted to the Minister for approval. the State or a municipality should guide the application of appropriate planning tools from the Victoria Planning In the context of evaluating these matters, the following Provisions (VPP). As Section 12A of the Planning and issues should be addressed. If any issue is not relevant, Environment Act 1987 requires controls on the use and this should be stated giving the reason why. development of land in a planning scheme relate to the objectives and strategies set out in the Municipal 1.Is an amendment required? Strategic Statement (MSS) for the municipality. It is Before starting to prepare an amendment, consider therefore important when preparing an amendment to whether an amendment is necessary. a planning scheme to ensure that there are clear linkages • Does the amendment repeat provisions already in between the MSS and the application of zones, overlays, the scheme? If so, what additional value will the schedules and policies, and that links to the council’s amendment to the scheme provide? corporate plan are apparent. GENERAL PRACTICE NOTES • Is an amendment necessary? Are there other ways Ensure planning schemes are clear and usable of achieving the desired outcome? (For example, can the matter be dealt with by other available The VPP provide clarity and consistency for users of council mechanisms such as a local law or as a planning schemes through the use of standard planning planning permit application?) If so, why is an provisions, which ensure that consistent provisions for amendment to the scheme the preferred approach? various matters are maintained across Victoria. To ensure planning schemes are clear and usable, a 2.Strategic justification series of Planning Practice Notes has been prepared on Every amendment should be strategically supported the use of the VPP. Planning Practice Notes provide best and should maintain or develop the strategic focus of practice guidance about the use and application of many the planning scheme. VPP tools, explanation and guidance about statutory processes, and recommended structure and wording of • What is the strategic basis for the amendment? statutory documents. 3.Planning and Environment Act

Matters to be considered Every amendment must meet the requirements of the Act including any Ministerial Directions under Section 7 and The broad issues to be considered in preparing and Section 12 of the Planning and Environment Act 1987. assessing an amendment or proposal are: • Does the amendment adequately address • Is an amendment required? environmental effects? • What is the strategic basis for the amendment • Does the amendment adequately address the or proposal? relevant social and economic effects? • Have the requirements of the Act been considered? • Does the amendment comply with the requirements of the Ministerial Direction on the Form and • Does the amendment or proposal support or Content of Planning Schemes? implement the SPPF and the LPPF? • Do any other Minister’s Directions apply to the • What consequences will any proposed or necessary amendment? If so, have they been complied with? changes to the MSS or local planning policies have for other aspects of the policy framework? • Is the amendment accompanied by all of the information required by a Direction? • Does the amendment make proper use of the VPP? • What is the outcome of the amendment or proposal in terms of the planning scheme’s strategic directions, useability and transparency?

2 GENERAL PRACTICE NOTES 3 been followed? discretions in the scheme a decision a proposal is likely to be supported or not especially the relevant zone or overlay guidance in this practice note? or proposal affect or be affected by? or proposal affect or Or is the issue is this necessary? planning policy, another planning tool or adequately covered by decision guideline? local planning policy? Note Practice has the VPP planning policy, a Local Planning Policy Writing In particular, does the local planning policy: In particular, – respond to a demonstrated need – implement an objective or strategy in the MSS – relate to a specific discretion or group of – assist the responsible authority to make – assist any other person to understand whether – add to the other planning tools in the scheme, – address the format, content and language Local Planning Policy Planning Local one of the tools available is Policy A Local Planning strategies in the MSS. objectives and for implementing decision- for day-to-day policy is a tool A local planning in the planning to a specific discretion making in relation authority and other helps the responsible scheme. It understand how a particular users of the scheme to When preparing be exercised. discretion is likely to a planning authority must amendments to the scheme, local planning policies take the content of relevant into account. • will the amendment What local planning policies • amendment introduces or changes a local If the • for any new or changed What is the strategic basis • introduces or changes a local If the amendment ? Format of Municipal Strategic Statements Format strategic directions elsewhere in the MSS? and other amendments/proposals on the strategic directions in the MSS? implement the MSS, are any changes to the MSS proposed or necessary? rest of the MSS: – Is the amendment consistent/inconsistent with – What is the cumulative effect of this amendment respect to proposed changes to the MSS? What have been the outcomes? content and language guidance in the VPP Practice Note implement and or support the MSS? effect to the SPPF? • If the amendment or proposal does not support or • What is the strategic basis for any change to the MSS? • effect will any change to the MSS What have on the • Has there been any community consultation with • Does the change to the MSS address the format, Municipal Strategic Statement The MSS contains the strategic planning objectives to achieve of the council and the strategies employed between the them. As such, there should be a clear link objectives and outcomes sought by the MSS and the preparing an requirements applied in the scheme. When amendment to the planning scheme, the planning authority must take the MSS into account. • or proposal seek to How does the amendment 5.Local Framework Planning Policy and regional strategic policy The LPPF sets a local It comprises the MSS and context for a municipality. policies. specific local planning is at odds with the existing If an amendment or proposal planning scheme, then the policy policy framework of the require reassessment. If this leads framework itself may amendment, to the conclusion that the LPPF itself needs rest of the then the implications of the change for the planning scheme will need to be considered. It is not necessary to include references to specific The LPPF does not need to proposals in the LPPF. and identify every project, but rather sets the policies projects strategic objectives against which individual will be addressed. 4.State Framework Policy Planning of further the objectives ensure planning schemes To must take planning authorities Victoria, planning in general principles and give effect to the into account the SPPF. policies contained in and specific • of the SPPF are relevant? What aspects, if any, •give the amendment or proposal support or Does 1234-Strategic Assess Prac Not 12/12/01 9:30 AM Page 3 Page AM 9:30 12/12/01 Not Prac Assess 1234-Strategic 1234-Strategic AssessPracNot12/12/019:30AMPage4 GENERAL PRACTICE NOTES 4 www.doi.vic.gov.au/planning and MinisterialDirectionscanbefoundat An up-to-datelistofPlanningPractice Notes Aretheamendmentanddesiredoutcomesclear? • Whatisthecumulativeeffectofthisamendment • oftheAmendment 8.Outcome Canthispurposebeservedbyothermeans,for • Arethereferralarrangementsperformancebased? • What isthe purposeofthereferral? • Ifso,doesthereferralauthoritysupport • Doestheamendmentcontainnewreferral • need fornewreferralsof justified andconsiderationshouldbegiventothe The creationofanewreferralauthoritymustbe authorities 7.Referral Istheamendmentinaccordancewithanyrelevant • WhatPlanningPractice Notesarerelevant? • To whatextentdolocalprovisionsadopta • DoestheamendmentusemostappropriateVPP • every amendment. to ensureconsistencyandbestpracticemethodologyin the VPP. Practice Notesshouldbeusedwhererelevant Practice Notesthathavebeenpreparedontheuseof consideration shouldbegiventotheseriesofPlanning implement thestrategicoutcomesofanamendment, In decidingthemostappropriateVPPtooltobest discernible basisintheSPPForLPPF. zones, overlaysandlocalprovisionsmusthaveareadily and LPPFtheapplicationofrequirementssuchas and localstrategicdirectionsidentifiedintheSPPF Zones andoverlaysareusedtoimplementtheState overlays andschedules 6.Zones, transparency oftheplanningscheme? of theplanningschemeandonusability and otheramendmentsonthestrategicdirections of the example mandatorynoticeunderSection52(1)(c) these requirements? requirements? Planning Practice Notes? performance-based approach? (for example,istherightzoneoroverlayused)? tool toachievethestrategicobjectiveofscheme Section 62(1)(a)oradecisionguideline? mandatory conditiononeverypermitunder Planning and Environment Act 1987, Planning andEnvironmentAct planning applications. a Western Region South West Region Northern Region North EasternRegion Eastern Region North West MetropolitanRegion South EastMetropolitanRegion For furtherdetails contact: Department ofInfrastructure series contact: For copiesofotherplanningpracticenotesinthe planning andurbandesignmatters. Planning PracticeNotesprovidepracticaladviceon

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