Judgment in the matter of Vorrasi v Adelaide City Council

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application to install PVC retractable blinds on a Local Heritage Place - Central Business Area Zone - Market Policy Area 18 - consent refused by the Council - jurisdictional question considered - whether the blinds and frame diminish the heritage value of the heritage place or desired township character - appearance of the blinds considered - heritage places in the locality - elements that make up heritage value and locality considered - heritage value of the subject building compromised - recent restorations a factor - the assessment - the Court has jurisdiction - pros and cons are finely balanced - appeal dismissed and the decision of the Council confirmed.

Development Act 1993; Development Regulations 1993, referred to.

1 Ms Vorrasi owns and operates the Baretto Corte Café (“the Café”) at 302A King William Street , Adelaide . The Café occupies one of five adjoining “shop-front” type properties within a two storey building at 302-306 King William Street (“the building”).

2 The building is within the Courts and Market Policy Area 18 (“the Policy Area”) of the Central Business Area Zone (“the Zone”) in the Development Plan for the Adelaide City Council (30 August 2007). The Policy Area lists the five properties (identifying each as an “attached shop”) that make-up the building as Local Heritage Places (City Significance).

3 The building is an example of a Victorian terrace design that was constructed during the period when the nearby central market was being developed. The Council’s information sheet about the building (reproduced in Appendix 2 of Exhibit R4) describes aspects of the building in the following terms:

4 Although there were differences between the heritage experts – Mr S Weidenhofer and Mr D Brown – about the degree to which the heritage integrity of the building at ground level has been compromised it appears that both concur with the general thrust of the above description.

5 Ms Vorrasi applied to the Council for Development Plan Consent to install Channel X Clear PVC blinds to the northern half of the verandah. The blinds would be retractable. Two blinds would face west and be located between the verandah posts that form the two northern bays facing King William Street . The third would face north. It would be attached to the verandah posts and extend across the footpath area a distance of 3 metres (leaving, for the passage of pedestrians, a comparable width between the blind and the northern most shop-front).

6 The blinds would be added to the building in the following way. A roller mechanism would be attached to the underside of the verandah or its fascia. Attached to each verandah post is a channel track system to allow the blind to slide up and down. Attached to the footpath would be a channel to lock the blinds in their place when drawn. The eastern edge of the north facing blind will not be guided by a channel track.

7 According to Mr Weidenhofer, who appeared in the case for the Appellant, the PVC material is of Japanese origin and “is of a higher quality than some of the PVC blinds that may be viewed around the city”. Its life expectancy, he said, would be 7‑10 years.

8 Ms Vorrasi contends that the blinds are necessary to give customers, who choose to sit within the permitted outdoor dining area, protection from wind, dust and rain. When the weather conditions were favourable the blinds would be raised.

9 The Council refused Development Plan Consent citing in its reasons variance with several principles for the Zone and Policy Area and objectives and principles that have Council wide application. The reasons appear at p 25 of Exhibit R1. Ms Vorrasi appeals this decision.

10 Mr Hilditch, for the appellant, submitted that a jurisdictional question is to be decided. That is whether, in light of the evidence of both heritage experts, the proposal is “development”: s 4 Development Act 1993.

11 This is a question that ought to have been asked and decided before the hearing of the proposal’s planning merits. Although I will decide the question it is my intention, in any event, to consider the planning merits.

12 Broadly speaking, whether the proposal diminishes to an unacceptable extent the value of the heritage place or conflicts with the desired townscape character for development along King William Street is the central planning issue. The desired character statement and their related objectives and principles for the Policy Area and the Zone that are most relevant to the resolution of this question have several goals for land use, built form, the public environment and the conservation of heritage places. They are encapsulated in the following:

(a) judicial and administrative functions together with development opportunities for a wide range of retail, commercial activity and professional services including legal offices;

2 Along King William Street , development should contribute to the creation of a visually cohesive townscape of imposing buildings along a tree-lined boulevard.

3 Development along the King William Street frontage should acknowledge the importance of the location along the City’s major north-south axis and present high quality design, building materials and finishes that complement the adjacent heritage places.

(b) the distinctive character and style of the area created through the conservation, enhancement and re-use of heritage places;

(c) a supportive environment for business and new enterprise through an attractive public environment, meeting places and places for eating, drinking and leisure;

(e) external colonnades, verandahs and, where appropriate, internal malls and arcades facilitating safe and convenient pedestrian movement and encouraging social interaction during and after business hours;

13 These provisions do not sit alone. They are additional to a wide range of Council wide objectives and principles that establish more detailed policy intentions for the conservation of heritage places, weather protection, the design of and the materials, treatments and finishes used in development for the enhancement of the public environment. While the following provisions are not exhaustive, taken together they adequately scope the main policies against which the proposal is to be assessed:

Objective 43: Conservation and enhancement of those places and areas which contribute to the heritage of the City in recognition of the distinctive contribution they make to the historic character of the City.

Objective 46: Facilitation and encouragement of the continued use or adaptive reuse of land, buildings and structures comprising a heritage place.

(b) identified as a Local heritage place (City Significance) or Local heritage place (Townscape)

in the provisions for the relevant Zone or Policy Area should not diminish its heritage value.

(a) be restored and adaptively reused in a manner that does not diminish the heritage value of their original style, design and materials;

(b) be conserved by alteration and addition so as to maintain the value and prominence of the original street facade of the building, locating new development away from street frontages; and

136 Development of a heritage place, including conversion to a new use, additional construction, part demolition, alterations to the fabric or affecting the setting of a heritage place, should:

(b) should not be detrimental in terms of design, height, scale, siting, set-back, materials, external finishes and architectural detail to the heritage value of the heritage place.

Objective 35: Protection from rain, wind and sun without causing detriment to the building or the integrity of the streetscape.

122 Weather protection should not be introduced where it would interfere with the integrity or heritage value of heritage places or unduly affect street trees.

Objective 52: Development which incorporates a high level of design excellence in terms of scale, bulk, massing, materials, finishes, colours and architectural treatment.

189 Materials and finishes that are easily maintained and do not readily stain, discolour or deteriorate should be utilised.

190 Development should avoid the use of large expanses of highly reflective materials and large areas of monotonous, sheer materials (such as polished granite and curtained wall glazing).

Objective 54: Development that enhances the public environment and, where appropriate provides activity and interest at street level, reinforcing a locality’s desired character.

196 Development should be designed to create active street frontages that provide activity and interest to passing pedestrians and contribute to the liveliness, vitality and security of the public realm.

Objective 56: Development that contributes to the vibrancy, activity and desired character of a locality.

201 Fixed glass screens, plastic blinds or freestanding removable canvas screens should not create enclosure or clutter the footpath, nor detract from the desired character of the locality. Glass screens should be clearly marked to ensure adequately visible for pedestrian safety.

14 In one way or another all of the above provisions are relevant considerations when resolving the main planning issues. Some differ in their purpose and intent and some, on their face, may be in conflict. Nevertheless, all are to be applied within a modified heritage environment. The following factors are among those that should be considered when dealing with the policy tension. Firstly, the extent to which the Plan’s desire to create a welcoming, safe and vibrant kerb-side atmosphere is tempered by its provisions that discourage development that would diminish the value of the building (and other heritage places in its near vicinity) and those that encourage the creation of a “visually cohesive townscape of imposing buildings” along King William Street. Secondly, the way and degree to which the heritage value of the building has been compromised, and the weight that should be given to this reality in the assessment.

15 These considerations will be influenced by the likely appearance of the blinds when drawn and the heritage and townscape circumstances in the locality.

16 The building is determined by the Plan to be a local heritage place. Among other things, s 4 of the Development Act 1993 defines development in the following terms:

(f) in relation to a local heritage place – the demolition, removal, conversion, alteration of, or addition to, the place, or any other work (not including painting but including, in the case of a tree, any tree-damaging activity) that could materially affect the heritage value of the place; or

17 Mr Hilditch submitted that the evidence of the heritage experts failed to establish a fact central to the Court’s jurisdiction. That is to say the evidence fails to show that the proposal materially affects the heritage value of the place. That failure, he submitted, would remove the proposal from the ambit of “development” and thus a requirement to be assessed against the provisions of the Plan.

18 To take that approach, in my opinion, amounts to a mis-reading of s 4(f) above. The intention of s 4(f) is to define two broad categories of work undertaken on a local heritage place that would be within the ambit of “development”. The first group covers the demolition, removal, conversion of and alteration and addition to a heritage place. The second group is expressed in the most general way and is qualified. It covers any other work that could materially affect the heritage value of the place. The qualification is subjective in expression and in my view applies only to the second group. By virtue of the nature of the work defined in the first group the qualification could not, on any reasonable argument, apply to that group.

19 The proposal is detailed in Exhibit R1. By its specification it is either or both an “alteration” or “addition” to the heritage place. There was no submission or evidence to suggest otherwise. It is thus “development”.

20 If I am wrong and the qualification applies to the first group or the proposal might be in the second group, the result is the same. For the purposes of jurisdiction the determination of whether a proposal is or is not development is undertaken in the abstract. To establish jurisdiction the question to be asked by a planning authority and this Court is this: could the addition of PVC blinds and their tracking system to the external fabric of the heritage place as proposed in the development application materially affect its heritage value? In my opinion the answer to that question is “yes”. On its face, the proposal is not a minor or incidental addition to the building. It is thus development.

21 Several of the above provisions require the assessment to be undertaken with reference to a “locality”. Mr Jensen’s amended locality plan defines an area that he agreed would be – using Mr Hilditch’s words – within the “sphere of influence” of the proposal. Generally I concur with the area so defined but would not extend the northern part so far into Victoria Square.

22 The features within the locality of most relevance in the assessment are these:

(1) The wide boulevard character of King William Street and its importance as a transport corridor (both vehicle and light rail).

(2) The presence of large and regularly spaced street trees (not in leaf at the time of the view).

(3) Time limited car parking spaces on both sides of King William Street and a loading area immediately adjacent the building.

281 – 287 King William Street Local Court & District Court (former Police Court)

23 The building itself is, by virtue of its earlier description and my own observations, a prominent feature in the locality. Among other aspects, the depth and length of its verandah appears to me to distinguish it from its neighbours. The photographs on pp 12 and 18 of Exhibit R4 illustrate the point.

24 How the blinds would appear when added to the building is one, if not a central, factor when assessing its planning merits. The Court did not have the benefit of observing first hand the materials intended for the proposal as a whole or a premises upon which similar blinds were in place. Observations made of the La Trattoria restaurant during the view are of little assistance.

25 Of most assistance is the investigations about particular aspects of the proposal undertaken by Mr Brown. His investigations were reported in Section 3.3 of Exhibit R4. He included in his report three photographic images of blinds taken from the website of the manufacturer of The Channel X clear PVC product. There was no serious challenge to his findings as to the installation detail or the general appearance of the blinds when in place.

26 When installed the supporting framework would be clearly visible and would be distinguishable from the fabric of the building whether or not the blinds are drawn. The tracking system would materially change the apparent width of the verandah posts. The roller mechanism would alter the appearance of the fascia (the extent of alteration will depend on how and where it is attached). The base channel, being raised above the footpath surface would be generally visible and, together with the other elements, would act to form a visible frame with which the blinds are drawn.

27 When drawn, the blinds would allow a view into and from within the verandah. Having regard to Mr Brown’s investigation I am in no doubt that, at best, the view would be distorted in some way. The distortions would be accentuated when the blinds are moved by wind or from the backwash from passing traffic. The blinds would not have the appearance of a glass screen. Attachment 3 to Exhibit R4 is an information sheet supplied by the manufacturer of the blinds. It says in part:

… While it is possible to have the edges tight it is not possible to make a blinds ‘solid’ like glass.

28 The proposal will be clearly visible with or without the blinds drawn. It will change the appearance of the building in a material way.

29 Schedule 1 of the Plan defines the elements that comprise the heritage value of a Local Heritage Place. The following are those elements that have relevance in these proceedings:

(a) all exterior parts of the original building(s) or structure(s) on the site, including external walls and roof forms, but not including alterations and additions that are not characteristic of the building period, style or type as defined in Schedule 2 and elements specifically excluded in the relevant Zone or Policy Area Table;

(b) original building elements, materials and details, including chimneys, verandahs, balconies and door and window joinery that are characteristic of the building period, style or type as defined in Schedule 2, unless specifically excluded in the relevant Zone or Policy Area Table;

(c) any non-original elements that are characteristic of the building period, style or type as defined in Schedule 2, unless specifically excluded in the relevant Zone or Policy Area Table;

30 Much of the appellant’s case rests on the undisputed fact that part of the building has been modified over time. That is a factor that cannot be ignored in addressing the central question in this appeal. By the same token, by virtue of part (c) above, not all modifications are to the detriment of the heritage value of a Local Heritage Place. To the contrary, part (c) above says that non-original elements that are characteristic of the period are to be regarded as elements of heritage value.

31 Both heritage experts agreed that the upper storey of the building appears to be, to use Mr Weidenhofer’s words, “relatively in tact and maintains a high degree of integrity”. Although they disagreed about the extent to which the main element of the original fabric at the ground level still remains, I accept Mr Brown’s quite detailed knowledge of the history of modifications. He summarised the modifications as follows:

32 I also accept Mr Weidenhofer’s opinion about the status of the verandah. It is to this element of the building’s fabric that the proposal is to be added. He said as follows:

… the verandah has been extensively rebuilt. Verandah posts are circular steel section rather than the original cast iron post; the timber fascia has been replaced; the ogee profile gutter has been replaced (not to the exact original profile); the corrugated iron roof has been replaced in modern “colorbond” coated corrugated iron and the original cast iron decoration has been substantially lost.

33 When the evidence of the experts is examined objectively, I think the modifications undertaken on No. 306 would be regarded as elements of heritage value within the meaning of part (c) above and a significant contribution to the broad objective in the Plan of conserving and enhancing places which contribute to the heritage of the City (eg Council wide Objective 43). That same conclusion could be reached in respect of the work undertaken on No. 302 notwithstanding the way in which its internal spaces are used.

34 A Conservation Plan (Exhibit R5) has been prepared to assist future restoration work. Although this document has been of some assistance in the proceedings it has no formal status in the planning scheme for the Council.

35 I will firstly summarise the expert evidence of Mr Weidenhofer, Mr Brown and Mr Jensen.

36 The expert evidence of Mr Weidenhofer and Mr Brown on the central question to be resolved may be summarised as follows. The starting point of the former is his assertion that the impact of the proposal on the heritage value of the building should be measured against its ground floor. He said that the ground floor of the building “has been greatly compromised by previous building works”. That assertion led Mr Weidenhofer to ultimately conclude that “the introduction of the blinds will not consequently affect the buildings heritage value”. In support of his conclusions he further opined that the installation of the blinds is a legitimate form of adaptation since it “does not affect the original building fabric”.

(1) the use of PVC blinds on certain State Heritage Places in the central business district do not appear to have diminished their heritage value;

(2) the proposed PVC blinds are removable and, as a consequence, any “perceived impact on heritage value … is easily reversible”; and

(3) there will be no appreciable loss of view of the building once the PVC blinds are established and drawn and no appreciable difference but (perhaps some blurring) when viewing nearby heritage places from within the outdoor dining area.

38 Mr Brown took a different approach to resolving the central issue. He assessed the impact of the proposal against the heritage value of the building as a whole. As to the building itself he opined that:

(1) the “immediate context” of the building has remained unchanged since the middle of last century; and

(2) it is an important element in the streetscape thus “reinforcing the scale and architectural integrity of the adjacent heritage places”.

39 As to the building in a wider setting, Mr Brown acknowledged the diminished integrity of the heritage places on the western side of King William Street. However he said that it is from that side of the road that the blinds will be most visible.

40 Mr Brown’s conclusions about the proposal’s impact on the heritage value of the building and its overall setting can be summarised very simply. He said in effect, the blinds when drawn will, by reflection or distortion, obscure or disrupt the view of the building and nearby heritage places. In turn the heritage value of the building will be diminished by the introduction of a “closed in” visual element along the footpath and overall by a modification to its existing setting.

41 Mr Brown went further in reference to the attachment of the channel tracks. These elements of the proposal would, he said, change the existing proportion of part of the buildings fabric and thus its appearance from the street. Nevertheless, Mr Brown conceded that this aspect of the proposal is less of a concern than is the effect on its heritage value when assessed within the wider streetscape. His views can be conveniently summarised in answer to the following question from the Court transcript (p 133):

Q … Is it conceivable in your mind that in the situation where the heritage value of the lower level is so damaged as would warrant you as an advisor to the Council ignoring it and accommodating the blinds.

42 I understand this aspect of his oral evidence to refer to his assessment of the proposal against Policy Area Principles 2 and 3 that appears at p 21 of Exhibit R4.

43 The aspects of Mr Jensen’s evidence of most assistance are his opinions on the extent to which the proposal has had regard to the objectives and principles that encourage the enhancement of the public environment generally and those that encourage a visually cohesive townscape along King William Street. Although Mr Jensen acknowledged the intention of the Plan to create active street frontages and a comfortable and inviting environment for outdoor and street-side dining he said that “the use of full length PVC plastic blinds extending from the top of the verandah down to the footpath” represents neither a high quality design feature, nor appropriate form of footpath enclosure nor (in respect of the position of the building in the locality) conditions that create visually cohesive townscape.

44 I will now turn to the central question and the overall planning merits of the proposal. From the outset it is necessary to say that I accept that the materials used to make the blinds would be of a high quality and resist the deterioration that appears common place where the blinds are of inferior quality. I also accept the intention of Ms Vorrasi to keep them clean and use them in accordance with their expressed purpose.

45 At first glance, there are aspects of the Plan that speak in favour of the proposal as detailed in Exhibit R1 and Ms Vorassi’s oral evidence. She seeks to put in place retractable blinds to give a greater measure of comfort to users of the outdoor area during inclement weather conditions. The use of PVC blinds are now common place in certain parts of the central business district. In the absence of any other consideration, the proposition that the proposal – by acting to increase the patronage of the outdoor dining area – would enhance the public environment consistent with Council wide Objective 54 and aspects of the Zone’s desired character was not seriously challenged by the parties. In the same vein, there would be little argument over a proposition that the proposal is a form of development that would assist the continuation of the existing use of a heritage place consistent with Objective 46 and particular aspects of the desired character of the Zone.

46 However, the aim of the above objectives and principles to create active street frontages to encourage the adaptive reuse and continuation of heritage places is heavily qualified. Firstly, the overall thrust of the Plan is to ensure new development and reinforce the locality’s desired character. Principles 2 and 3 for the Policy Area provide some guidance about the character sought by the Plan. Development that creates a “visually cohesive townscape” and complements heritage places would be consistent with the desired character. Secondly, where (as in this case) additions and alterations for the intended purpose are to be made to heritage places the thrust of Objective 43 to conserve and enhance those places should be observed along with the more detailed guidelines in Principles 134 – 136 inclusive.

47 All things considered, the pros and cons are finely balanced. As I said above consistency with many of the relevant provisions is apparent. However, I have concluded after considering all that has been put to me and my observations on the view that a resolution of the central issue in the appeal turns on the following:

(1) Whether the proposal diminishes the heritage value of the building is not an issue determined solely by an evaluation against the prevailing character and heritage integrity of its lower or ground level. The integrity of the building as a whole ought to be considered and due recognition be given to those elements that have been restored to heritage value status. Such an approach would be consistent with the Plan’s overall thrust for heritage conservation and enhancement unless, of course, its heritage value was so damaged as to make it fruitless to pursue the aims and objectives of heritage conservation. That is not the case here. To the contrary, restoration work has occurred at the lower level and resources have been expended to prepare a conservation plan to assist in its restoration over time.

(2) Taken as a whole the proposal would, because of the appearance of and the distortions created by the PVC material when drawn, alter the appearance of the building in a material way. In my view the alteration would not be consistent with what remains of the original street façade when the building is viewed in its totality. For that reason, it would be in conflict with Council wide Principles 135 and 136, would not pay sufficient respect to those parts of the ground level that have been conserved and may well have the effect of discouraging further restoration in accordance with the Plan’s aims and objectives for heritage and conservation.

(3) Within the locality the building sits adjacent to or very near a number of heritage places and within a townscape recognised by the Plan as having particular importance. The townscape within the locality reflects with some accuracy the character sought for the Policy Area as expressed in part in Principle 2. That is to say “imposing buildings along a tree lined boulevard”. The importance of the boulevard townscape is reinforced in Principle 3. The existing townscape is devoid of any feature comparable to the proposal. Although not a decisive factor, and one diminished by the presence of regularly spaced street trees, the blinds when drawn would appear as a foreign element thus placing it at odds with the goal of achieving a visually cohesive townscape.

48 It is for these reasons I have concluded that the proposed blinds are not sufficiently consistent with the aims and objectives of the Plan. In reaching this conclusion, I have placed no weight on the appearance of the blinds attached to La Trattoria restaurant on King William Street. It is outside the locality. Nor have I placed particular weight on the photographic images of the blinds attached to restaurants in other areas of the City of Adelaide.

49 The appeal is dismissed and the decision of the Council confirmed. There will be an Order to that effect.