ITEM 7.2
No. of Pages – 9
7.2 Planning Scheme Amendment C158 - Updates to Heritage Overlay
RESPONSIBLE OFFICER
Director Social & Economic Development
SUMMARY
·
Planning Scheme Amendment C158 proposes to update and correct the Heritage
Overlay.
·
The amendment was exhibited from 18 February to 21 March 2016, and seven
submissions have been received.
·
Some submissions raise general concerns about heritage. Some submissions
request changes to the amendment that can be reasonably made.
Some
submissions are fundamental objections to particular elements of the amendment.
·
It is not possible to alter the amendment to resolve all of the concerns of the
submitters.
·
It is recommended that the amendment be referred to an independent panel
appointed by the Minister for Planning.
RECOMMENDATION
That Council request the Minister for Planning to appoint an independent panel to consider
submissions to Amendment C158; and refer the received submissions to the panel.
PROPOSAL
It is proposed to refer submissions to Planning Scheme Amendment C158 to an
independent panel appointed by the Minister for Planning.
BACKGROUND
Planning Scheme Amendment C158 proposes to make corrections and updates to the
Heritage Overlay. It was exhibited from 18 February to 21 March 2016. The Amendment
deletes a number of redundant and unjustified provisions in the Heritage Overlay relating
to external painting, internal modification and vegetation controls, and amends a number
of planning scheme maps to correct and realign the boundaries of the mapped overlay
areas.
Five submissions have been received from landholders objecting to elements of the
amendment applying to their respective properties and two raising more general concerns.
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
17
ITEM 7.2 (Cont’d)
STRATEGIC LINKS
This amendment implements Council priorities identified in the Yarra Ranges Council Plan
(2013-2017) which under Key Strategic Activity 11 (High Performing Organisation)
includes the following action: Streamline the planning scheme through advocacy to the
State Government and amendments to the Scheme. An important way of achieving this
outcome is to improve the operation of the Planning Scheme by removing unnecessary
and unjustified permit requirements.
The proposed revisions to the Heritage Overlay have been informed by reference to the
Shire of Yarra Ranges Heritage Study (Context Pty Ltd, 2000) and additional heritage
advice relating to specific sites.
CONSULTATION
The amendment was placed on public exhibition from 18 February to 21 March. Direct
notification was sent to 136 owners of affected properties. In addition 17 local historical
societies were notified, as well as relevant authorities and the Ministers prescribed in the
legislation. Notice was placed in the Lilydale and Yarra Valley Leader newspaper of 16
February and in the Government Gazette of 18 February.
FINANCIAL IMPLICATIONS
Costs associated with the planning scheme amendment including panel costs can be
covered by the current Strategic Planning budget.
KEY ISSUES
Submissions have been received in relation to the following properties:
·
HO46 (Reefton Hotel), 1600 Woods Point Road, McMahons Creek
·
HO17 (Brick House), 187 Lysterfield Road, Upper Ferntree Gully
·
HO405 (Yeringberg balance), 810-812 Maroondah Highway, Coldstream
·
HO11 (Rostrevor), 411-415 Mt Dandenong Tourist Road, Sassafras
·
HO72 (Cooring Yering), 32 The Gateway, Lilydale.
In addition, submissions were received from the Save the Dandenongs League and the
National Trust (Victoria), both in relation to a number of heritage-related matters.
The details of these submissions, and response to them, are dealt with in turn.
HO46 Reefton Hotel
1600 Woods Point Road, McMahons Creek
The submission welcomes the proposed reduction in the area of land covered by the
overlay, but requests that the area be further reduced to just the hotel building and
immediate outbuildings.
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
18
ITEM 7.2 (Cont’d)
The State Government’s Planning Practice Note 1 Applying the Heritage Overlay sets out
the criteria for assessing the land area to be covered by an overlay. It states that the
overlay should cover the listed heritage item and its ‘curtilage’ – the land around the item
where any future development might be close enough to affect the heritage value of the
item. On typical urban or suburban lots the curtilage will usually comprise the entire lot.
On larger rural lots such as farms or homesteads it will usually be only a smaller section
around the buildings.
The submitter has asked for the overlay to be reduced to just the subject item and not any
of its curtilage. It is considered that this would be in breach of Planning Practice Note 1
and would be a failure to apply the overlay correctly.
There is no definitive measure of what area around a heritage item constitutes a ‘curtilage’.
While in some cases there may be defining physical features such as fence lines or
vegetation, in other cases there will be no such details and a subjective determination will
be required. The exhibited amendment draws what is considered to be an appropriate
border around the curtilage of the site. The panel process is the means by which such
differences of view about such matters are resolved.
Recommendation:
·
No change be made to the amendment in response to this submission.
·
The submission be referred to a Panel.
HO17 Brick House
187 Lysterfield Road, Upper Ferntree Gully
Attachment 1 shows the proposed changes to the mapped overlay.
This property was included in the Heritage Overlay when the new format planning scheme
came into operation in July 2000, i.e. it was placed in the scheme prior to this date, and
prior to the Context Heritage Study in 2000. The original heritage study which led to its
listing was the Sherbrooke Planning Scheme – Sites of Local Significance (Shire of
Sherbrooke, 1994).
The study identifies the brick house and outbuildings as being built by John Buckley, the
original settler of the land, and are significant for their direct link to this early settler. This
house and outbuildings are distinguishable from other buildings on the property as being
the only brick buildings, the others being weatherboard or metal. There is satisfactory
evidence that it is these buildings which are of significance and should be covered by the
overlay, and the exhibited amendment proposes to make the necessary corrections to the
map showing the overlay area on the property.
The submission disputes the accuracy of the original heritage study and objects to both
the amendment and to the HO in the first place. However, it offers no detailed information
or assessment in its place. In addition, it advises that the brick house was built by Mr
Buckley shortly before his death (in 1911, according to the Sherbrooke study). This, in
fact, confirms and supports the Sherbrooke study and subsequent HO listing - the building
is over 100 years old and is directly associated with the original owner. On this basis,
there is clear justification for retaining the overlay.
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
19
ITEM 7.2 (Cont’d)
This is not to dismiss the submission or the submitter’s contributions. However, a decision
to remove a HO cannot be made without good reason, based on reliable evidence and
professional assessment. No such assessment currently exists. Any decision to consider
deleting this overlay will need to wait until such a professional assessment has been
carried out.
An option when addressing an objection to an amendment of this kind is simply to remove
that property from the amendment and leave things as-is. However, this does not appear
to be a reasonable option in this case. It would not only leave in place an overlay the
owner objects to, it would leave it on the wrong part of the property, with the significant
buildings left uncovered and non-significant parts of the property unjustifiably burdened.
This would be an unsatisfactory situation for all parties.
Recommendation:
·
No change be made to the amendment in response to this submission.
·
The submission be referred to a Panel.
HO405 Yeringberg (balance)
810-812 Maroondah Highway, Coldstream
Attachment 2 shows the proposed changes to the mapped overlay.
Yeringberg is a complex property. Its significant central homestead area is actually
covered by two HOs. HO1 covers the winery, stables and former Tutor’s residence, as
well as two smaller items, a well and a fountain. These are of State significance and are
listed on the Victorian Heritage Register. The remainder of the homestead area is covered
by HO403, and these elements are of local significance.
HO403 is significant not just for its heritage buildings themselves, but for their ‘homestead’
layout. One cannot only look at an individual building and recognise it as historically
significant, one can look at the collection of buildings and recognise it as a ‘homestead’ - a
particular combination of a house and farm buildings in close proximity identifying it as a
working farm. Even a contemporary structure of no individual heritage merit can make a
contribution to heritage value if it maintains a significant layout or arrangement of
buildings. However, the dispersal of the buildings on this site, and the fact that a number
of them are not of heritage value, means it would not be reasonable to place the entire site
within an overlay.
As noted previously, a Heritage Overlay is intended to cover a heritage item and its
curtilage. Accordingly, it is necessary to consider what is the ‘curtilage’ of the Yeringberg
site.
The site was subject to a comprehensive inspection and assessment by Lovell Chen in
2015. Attachment 3 is a copy of this assessment. The site plans on pages 1 and 8
highlight the significant built and vegetation elements respectively. However, there are
some errors in these diagrams, and they show a confusing level of extraneous detail.
Attachment 4 highlights the elements that are relevant to this report.
The study identifies 19 structures or items subject to assessment. Of these, three are of
‘local significance’, four are of ‘local interest’, one is of ‘local interest’ and potentially of
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
20
ITEM 7.2 (Cont’d)
‘local significance’ and the remainder are of no significance.
elements are:
·
The 1932 weatherboard dwelling (H12)
·
The conservatory ruins (H7)
·
The avenue of trees (H16).
The ‘locally significant’
The proposed revised overlay area will consist of two components, one taking in H12, H7
and the copse of cork trees to the south of the 1932 dwelling (identified as H10, but not
shown on the plan), which is of ‘local interest’, and the other taking in H16.
The submission disputes the value of ‘Workers cottage 1 (H2), which is the one identified
as being of potentially ‘local significance’. The amendment as exhibited proposes to
remove this building from the overlay due to the combination of its limited confirmed
significance and distance from the other significant elements. The submission also
disputes the inclusion of the modern building which was recently constructed on the site of
the now-demolished H11 (large timber shed). However, this building is immediately next
to the cork trees (H10) and 24 metres from the weatherboard house. It is within what can
reasonably be considered the ‘curtilage’ of the main building, close enough for what
happens in this location to potentially affect the significant elements. It is considered
reasonable to retain this building in the overlay regardless of its non-heritage status.
Recommendation:
·
No change be made to the amendment in response to this submission.
·
The submission be referred to a Panel.
HO11 Rostrevor
411-415 Mt Dandenong Tourist Road, Sassafras
The submission raises concerns about a number of matters:
·
The previous acquisition of part of this land by Council for ‘open space’
·
The previous rezoning of this property to Green Wedge A Zone
·
The accuracy and completeness of the information for the property on the Victorian
Heritage Database
·
The application of the Heritage Overlay to the abutting property at 415 Mt
Dandenong Tourist Road.
Of these, only the last has anything to do with C158. It is not clear exactly what acquisition
of land for open space the submission is referring to, although it refers to earlier
correspondence in 2002 in which the submitter details previous acquisition of part of this
property in 1970 for incorporation into the Mt Dandenong Tourist Road alignment. The
rezoning of the property to a Green Wedge A Zone (GWAZ) was made by the State
Government in 2003 as part of the introduction of the Green Wedge provisions and Urban
Growth Boundary, and applied to all properties in what was then the Rural Living Zone.
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
21
ITEM 7.2 (Cont’d)
The submission is correct to point out inadequacies in the report from the Victorian
Heritage Database. It’s assertion that the garage is a non-original building cannot be
confirmed without further research. However, neither of these points makes any
meaningful difference to this amendment. Both the Victorian Heritage Register and
Council’s Heritage Study confirm the house as being of historic significance, regardless of
the merits of the garage.
The submitter is of the view that the overlay should not apply to the property at 415 Mt
Dandenong Tourist Road. The overlay currently applies to both 411 and 415 Mt
Dandenong Tourist Road, which is the combined address in the VHR citation (refer to
Attachment 5). However, it is confirmed that 411 and 415 are separate titles in separate
ownership, and that the heritage value of the site is the building itself, which is wholly
within the boundary of 411. Accordingly, it is considered that the submitter’s request to
delete the overlay from 415 is justified and the amendment should be modified
accordingly.
Recommendation:
·
The amendment be modified to delete the overlay from 415 Mt Dandenong Tourist
Road, Sassafras.
HO72 Cooring Yering
32 The Gateway, Lilydale
The owners of the site have requested that paint controls be deleted and that the area of
land covered by the overlay be reduced in size.
The citation in the Heritage Study recommends that “The homestead should remain in its
spacious setting”. Exactly how much space is required to achieve ‘spaciousness’ is not
objectively defined, but a useful principle of design is that a space is defined by its edges.
On that basis, a ‘spacious’ curtilage of this building can be defined by the vegetation
surrounding it. The defined curtilage should include all vegetation which has a direct
visual relationship with the building, i.e. that vegetation which, from any given viewing
location, is in view when looking at the building. Applying this principle, it would be
possible to reduce the area of the overlay, so that it extends approximately 60 metres to
the west of the building, 45 metres south of the building, 35 metres north of the building
and 45 metres east of the building, as shown in the attachment. This would reduce the
overlay to approximately half its current area, and correspond closely with the owners’ own
map of their requested change. The overlay area suggested by the submitters has a more
erratic and irregular boundary, and it is suggested that, for legibility and ease of future use,
this report’s recommendation would be a preferable outcome.
Recommendation:
·
That the amendment be modified to show a revised mapped overlay area on the
property at 32 The Gateway, Lilydale, as show in Attachment 6.
Submission by National Trust (Victoria)
Various properties
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
22
ITEM 7.2 (Cont’d)
Through its written submission and direct discussions, National Trust has expressed the
following concerns:
·
There are examples of proposals to delete external paint and tree controls where
such controls should be retained
·
The original source documentation may not be of sufficient detail and rigour to rely on
when assessing whether to remove any existing controls
·
The exhibited amendment has not provided sufficient justification for the proposed
control deletions
·
The site inspections and assessments were compromised by the officers’ lack of
heritage expertise.
There is a fundamental point of difference between Council officers and the National Trust
as to the standards required for planning controls. Council officers are of the view that
planning controls are required to pass the test of strategic justification – that there must be
demonstrable reason for their existence – and that this principle can be applied to existing
controls as well as proposed ones. National Trust has expressed the view that the fact
that these controls made it into the planning scheme to begin with means they have
passed this test, and Council must demonstrate sufficient justification for their removal.
Neither of these views is without merit. There is a well-established process for
implementing planning controls through the planning scheme amendment process, and it
is reasonable to maintain existing controls until there is reason to change them. However,
planning controls are not intended to be set in stone. It is reasonable to subject them to
review. The fundamental test of justification remains, and it is reasonable to revisit
available evidence to see if it justifies planning controls. That these controls were
introduced to begin with is significant, but not the last word.
That the Council officers are not specifically heritage-trained does not fundamentally
compromise the investigations and assessments. The changes proposed in this
amendment were based on what was considered to be satisfactory documentary and
observable evidence. Where it was concluded that there was insufficient clarity in the
documentary evidence, or insufficient certainty in the observational evidence, suitable
caution was applied and the existing controls retained.
In determining whether external paint controls should be retained, it should be noted that a
building can be heritage listed for a number of reasons, including: being an example of a
particular age/era; having significant design or construction qualities; being a product of a
significant architect or builder, or; being associated with a particular significant occupant.
In each of these cases, the heritage value might be unrelated to the building’s external
colour scheme.
The starting position is that heritage buildings should be retained in as close as possible to
their original appearance. Where original exposed building fabric remains, it is beneficial
to retain this as much as possible. However, where it can be demonstrated that external
painting has occurred, the original appearance has been lost and effectively cannot be
regained. Stripping back to original building materials may not be historically accurate, as
a building may have been painted or rendered when first built. While it may be
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
23
ITEM 7.2 (Cont’d)
aesthetically preferable for a historic building to be painted in a specific way, this would not
be sufficient to justify planning controls.
It is considered impossible to modify the amendment in such a way as to resolve National
Trust’s objections. However, this is not to simply dismiss their concerns. Given the broad
nature of the objections, it would be unreasonable to defer a Council resolution pending
discussions, but it would be reasonable to continue discussions with National Trust to
resolve these issues as much as possible.
Recommendation:
·
No change be made to the amendment in response to this submission.
·
The submission be referred to a Panel.
·
Discussions continue with National Trust prior to a Panel hearing to resolve these
concerns as much as possible.
Submission by Save the Dandenongs League
Various properties
The Save the Dandenongs League has submitted a general concern about the proposed
deletion of permit requirements for removal of vegetation from a number of properties in
the Heritage Overlay, with the possibility of vegetation on these properties being left
unprotected.
The proposed deletion of permit requirements for removal of vegetation from selected
Heritage Overlay properties will not remove vegetation permit requirements altogether. On
a number of these properties there will remain other provisions of the planning scheme
which will trigger a planning permit requirement.
Clause 53 has a general permit requirement for a permit to remove vegetation, with a
range of exemptions. This permit requirement does not apply to land in a Residential
Growth Zone, General Residential Zone, Neighbourhood Residential Zone, Low Density
Residential Zone or Industrial 1 Zone. 92 properties are proposed to have their Heritage
Overlay vegetation permit requirements removed through this amendment. Of these, 34
are in the above zones and thus do not require a permit for vegetation under Clause 53.
Of these 34 properties, 19 are covered by a Significant Landscape Overlay, which applies
a permit requirement for vegetation. This leaves 15 properties which will no longer have a
permit requirement for vegetation. All of these properties are either in a Commercial Zone
(i.e. town centre area), or in a Residential Growth Zone in Lilydale.
It is a fundamental principle of planning that a control cannot be used to achieve outcomes
other than its stated purpose. That is, if vegetation has no heritage value and does not
justify a permit under the Heritage Overlay, it is not legitimate to retain that permit control
in order to achieve other outcomes such as landscape or ecological benefit. If a particular
property’s vegetation has no heritage value, the Heritage Overlay should not apply a
permit requirement for vegetation, regardless. If such vegetation were to have other
values, such as landscape or ecological, the planning scheme has other tools which can
be applied.
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
24
ITEM 7.2 (Cont’d)
Recommendation:
·
This submission be noted.
·
No change be made to the amendment in response to this submission.
Environmental Impacts
There will be no environmental impacts.
Social Impacts
There will be no social impacts.
Economic Impacts
There will be no economic impacts.
Risk Assessment
There are no particular risks associated with this amendment.
CONCLUSION
The panel process is the prescribed means for addressing objections and ensuring that all
arguments and evidence are properly considered.
ATTACHMENTS
1
Proposed Changes to Mapped Overlay - HO17 'Brick House', 187 Lysterfield Road
2
Proposed Changes to Mapped Overlay - HO405 'Yeringberg Balance', 810-812
Maroondah Highway
3
Yeringberg Heritage Assessment by Lovell Chen 2015
4
Yeringberg Site Aerial Showing Significant Heritage Elements
5
Existing Heritage Overlay Map - HO11 'Rostrevor', 411 Mt Dandenong Tourist Road
6
Proposed Changes to Mapped Overlay - HO72 'Cooring Yering', 32 The Gateway,
Lilydale
YARRA RANGES COUNCIL MEETING AGENDA - 14/06/2016
25