On Tuesday the 14th December 2010 the City of Nedlands received a request from the Heritage Council of WA seeking an urgent meeting. The City Mayor and other officials agreed to meet with the officers from the Heritage Council at 3.00pm that same day notwithstanding the fact that city officials were busy preparing for the last full meeting of the Council for 2010 that same evening.
At the meeting the Mayor was advised by Heritage Council officers that the Heritage Council was seeking a Legislative Amendment under the Heritage of Western Australia Act 1990 for a Legislative Amendment that would (to quote from the Notice of Measures Requiring Legislative Amendment published by the Heritage Council in the WA Government Gazette three days later on Friday 17th December):
".....remove the Land (referring to the Old Swanbourne Hospital Conservation Area) from the development control of the City of Nedlands Town Planning Scheme No. 2 and give the Western Australian Planning Commission sole responsibility for development approval on the Land, pursuant to the Metropolitan Region Scheme."
The Heritage Council officers then advised the Mayor and city officials that under the Heritage of Western Australia Act 1990 they would seek public comment on the Notice of Measures Requiring Legislative Amendment in the form of written submissions until 5 pm on Friday 14th January 2011.
The timeframe for public input into this rare action by the Heritage council would therefore have been 17 working days over the Christmas and New Year holiday period and during a time when many people are away on holidays.
The Mayor's response is recorded in the Minutes of the City of Nedlands full council meeting held that evening:
The Mayor advised that the Heritage Council contacted the City of Nedlands on Monday to arrange an urgent meeting regarding the Old Swanbourne Hospital site.
The meeting was held at 3 pm at the Administration Building today, 14 December 2010. At this meeting the Heritage Council advised that they have resolved to advertise this Friday 17 December 2010 for a period of 4 weeks a proposed order under section 38 of the Heritage Act that will suspend the City of Nedlands Town Planning Scheme No. 2 over the site and give the Western Australian Planning Commission the sole responsibility for development approval on the Land, pursuant to the Metropolitan Region Scheme.
The reason given for the Proposed Order is that the City of Nedlands Town Planning Scheme No. 2 does not allow the development of the Land in a way that makes the conservation of the Old Swanbourne Hospital Conservation Area practical or economically feasible.
The Mayor advised Council‟s strong displeasure in the proposed order and notified the Heritage Council of Council‟s policy of not advertising over the Christmas break. The City has asked for an extension to allow the community to be consulted.
On the morning of Wednesday 15th December 2010, the Heritage Council issued a press release announcing that it had been in discussions with the owner of the Old Swanbourne Hospital.
"The owner has made representations to the Heritage Council that the development conditions imposed by the City of Nedlands would make the redevelopment of the site economically unviable and prevent conservation of the hospital buildings".
And further the Heritage Council announced that it was seeking public submissions on the proposal for an Order under Section 38 of the Heritage of Western Australia Act 1990. This section allows the Minister for Heritage to suspend or amend any law, including a planning scheme,
"...if, in the Minister's opinion that law prevents or impedes conservation works from being carried out at a State Registered Place."
In their press release of Wednesday 15th December, the Heritage Council also made the comment that they were very concerned:
"...about the delay in the development of the place and the effect it was having on a State Registered heritage site."
However, the Heritage Council announced in their press release that they had extended the date for submissions to the public to 5.00pm Friday 18th February 2011.
The Heritage Council's Notice of Measures Requiring Legislative Amendment was then published in the WA Government Gazette on Friday 17th December 2010.
A few days later, this matter was picked up by the press and reported in various ways, but with a consistent theme running through the reporting that the Nedlands Council is responsible for the delays in the redevelopment of the site. For example, the headline from the report on December 23 2010 by Beatrice Thomas of the West Australian read Council blamed in Swanbourne Hospital Row .
So what is going on here? Why the rush to publish in the Government Gazette just before Christmas and to close the window for public submissions early (with an original closing date of 14 January) when many people are away on holidays and Australia is settled into the traditional torpor of the holiday and Ashes cricket? And who is briefing the journalists?
Is the Council to Blame for the Delay in commencing the development?
The evidence seems to suggest that it is the owner that has been responsible for the delays. There have been several legal and appeal processes initiated by the owner over the last several years trying to change the terms of the Outline Development Plan (the Plan) under which the property was sold in 2005. Each time the Nedlands Council has tried to hold the owner to the terms of the Plan - as it is obliged to do under the delegated powers it holds from the WA Planning Commission in administering the Town Planning Scheme.
It is interesting to note that this same Plan was approved by the Heritage Council prior to being incorporated into the City of Nedlands Town Planning Scheme in the same year the property was sold.
Lets back track for a little and look at the announcement made by the WA Government when the property was finally sold to the current owner.
On 22nd January 2006 the WA Minister for Housing and Works Francis Logan announced that he had approved the sale of the Old Swanbourne Hospital to Sealcrest Pty Ltd as trustee for the Swanbourne Development Joint Venture for the sum of AUD $6.65 million. The winning bid from Sealcrest was after evaluating bids from "more than 50 interested parties". In his announcement New Era for Old Swanbourne Hospital the Minister stated that:
"...all of the on-site buildings were of heritage significance and Sealcrest was required to comply with specific uses nominated for each of the buildings. It also had to meet redevelopment guidelines that had been prepared in consultation with the Heritage Council of WA" (our emphasis).
The most recent legal manoeuvring by the owner is curious because it seems that the Heritage Council of WA has been working with the owner for several years now to change the Plan that they (the Heritage Council of WA) originally approved for incorporation into the Town Planning Scheme prior to the sale of the property in 2006.
The State Administrative Tribunal - commonly referred to as "SAT" - is the highest appeal forum for planning issues in the State of Western Australia. Under its charter, once a matter is decided, the SAT is obliged to publish it's findings to the public domain.
In November 2008 the SAT published the outcome of hearings that had been held before it on the 4th, 5th and 6th of November 2008. In Swanbourne Estate Development Joint Venture and City of Nedlands (2008) WASAT 274 a panel of three Members of the SAT heard an appeal from Swanbourne Estate Development Joint Venture (applicant) against the City of Nedlands (Respondent). The Applicant was seeking approval, contrary to the original Outline Development Plan, to among other items, demolish buildings dating from 1904 and 1912 to enable construction of a five level building. The City of Nedlands opposed this application, arguing that all heritage buildings should be preserved and that the proposed five story building was not in keeping with the heritage values of the property.
The SAT rejected the Applicants proposition - but instead proposed a compromise outcome whereby a three story apartment building be built within the site. To quote from the summary of the SAT decision:
"This would enable the conservation, preservation and conversion of all heritage buildings and the development of a total of 28 units as contemplated in the development plan (clause 5)".
So who is to blame for the delay in development? It seems that the owner is determined to try to change the Development Plan under which the property was purchased - and which was approved by the Heritage Council of WA. The Nedlands City Council should be commended for resisting this pressure, right up to the extent of mounting a strong defence of its Town Planning Scheme in the SAT. The delays are not the fault of the Council.
The Heritage Council of WA and the Owner
The most interesting thing that jumps out from reading Swanbourne Estate Development Joint Venture and City of Nedlands (2008) WASAT 274 is that the Applicants (owner) received support from the Heritage Council of WA in presenting evidence in support of their position.
Dr Adelyn Ai Li Siew, described in the SAT papers as an architect and the Heritage Council's Manager, Development Referrals, gave evidence on behalf of the applicant and supplemented the Heritage Council's advice to the Tribunal contained in its letters to the Council. Dr Siew's evidence in support of the Applicant is reported several times in the SAT papers, including the statement that:
"The Heritage Council supported the new building after considering its location, bulk, height and scale. Dr Siew also expressed the view opinion that the proposal may potentially increase the landmark quality of the site by drawing attention to the new building and consequently to the detail of the heritage buildings" (clause 88).
In response to Dr Siew's view that the 5 story building may "potentially increase the landmark quality of the site", the SAT records its view (clause 90):
"The Tribunal agrees with Dr Siew that, because of the height and width of the proposed building, one's eyes would be drawn to the site. However the Tribunal does not accept her evidence that this will increase the landmark quality of the site. Rather, as heritage witnesses for the City explained, the proposed building would visually dominate the complexity of the heritage buildings, reducing their significance".
What to do Now?
Clearly, a clock is now ticking. The Nedlands City Council has been knocked out of relevance by this move by the Heritage Council of WA.
You only have until 18th February to make your views known.
By issuing their Notice of Measures Requiring Legislative Amendment notice over the Christmas holiday period, the Heritage Council of WA has created a situation in which it will be difficult for many people, including the people living in Mount Claremont, to make a considered response. This is because many of us are still on holiday as we write this post.
However, we would encourage the following urgent courses of action:
1. Write a strong letter to the Heritage Council of WA, objecting to the removal of the Old Swanbourne Hospital land from the development control requirements of the City of Nedlands Town Planning Scheme No. 2 and giving the Western Australian Planning Commission sole responsibility for development approval on the land. The Planning Commission is accountable only to the Minister for Planning and the Parliament. Removal of the existing planning approvals on the land mean that the owner could negotiate any kind of development on the site with the Planning Commission - and there may be minimal or no opportunity for the people of Mount Claremont to provide input. We could indeed see a ten story apartment built on the site. Make sure the Heritage Council gets your letter by 5.00pm Friday the 18th February 2011.
You need to write to:
The Executive Director,
Office of Heritage,
PO Box 6201,
East Perth WA 6892
2. Contact your Councillors and give them support. The Council has been steadfast in trying to apply the conditions under which the owner bought the property.
3. Make sure your friends are aware of this development and make sure they make submissions.
4. Attend meetings and sign petitions organised by the Mount Claremont Residents Association and be heard. The next meeting is on 9th February.
5. Write letters to, phone or email Hon Colin Barnett, MLA - our local member of the WA Parliament Legislative Assembly. The Hon Mr Barnett is well acquainted with the issues of the Old Swanbourne Hospital - refer to his speech to the WA Parliament on 10th April 2008.
6. Call talk back radio, write letters to the editors of the local and state newspapers.
Be active, be aware, be involved.
The Heritage Council of WA and the owner would appear to prefer that we stay on holiday, enjoying the heat and the holiday season, too sleepy to rouse ourselves. Can we prove them wrong?
David Thomas
"The owner has made representations to the Heritage Council that the development conditions imposed by the City of Nedlands would make the redevelopment of the site economically unviable and prevent conservation of the hospital buildings".
And further the Heritage Council announced that it was seeking public submissions on the proposal for an Order under Section 38 of the Heritage of Western Australia Act 1990. This section allows the Minister for Heritage to suspend or amend any law, including a planning scheme,
"...if, in the Minister's opinion that law prevents or impedes conservation works from being carried out at a State Registered Place."
In their press release of Wednesday 15th December, the Heritage Council also made the comment that they were very concerned:
"...about the delay in the development of the place and the effect it was having on a State Registered heritage site."
However, the Heritage Council announced in their press release that they had extended the date for submissions to the public to 5.00pm Friday 18th February 2011.
The Heritage Council's Notice of Measures Requiring Legislative Amendment was then published in the WA Government Gazette on Friday 17th December 2010.
A few days later, this matter was picked up by the press and reported in various ways, but with a consistent theme running through the reporting that the Nedlands Council is responsible for the delays in the redevelopment of the site. For example, the headline from the report on December 23 2010 by Beatrice Thomas of the West Australian read Council blamed in Swanbourne Hospital Row .
So what is going on here? Why the rush to publish in the Government Gazette just before Christmas and to close the window for public submissions early (with an original closing date of 14 January) when many people are away on holidays and Australia is settled into the traditional torpor of the holiday and Ashes cricket? And who is briefing the journalists?
Is the Council to Blame for the Delay in commencing the development?
The evidence seems to suggest that it is the owner that has been responsible for the delays. There have been several legal and appeal processes initiated by the owner over the last several years trying to change the terms of the Outline Development Plan (the Plan) under which the property was sold in 2005. Each time the Nedlands Council has tried to hold the owner to the terms of the Plan - as it is obliged to do under the delegated powers it holds from the WA Planning Commission in administering the Town Planning Scheme.
It is interesting to note that this same Plan was approved by the Heritage Council prior to being incorporated into the City of Nedlands Town Planning Scheme in the same year the property was sold.
Lets back track for a little and look at the announcement made by the WA Government when the property was finally sold to the current owner.
On 22nd January 2006 the WA Minister for Housing and Works Francis Logan announced that he had approved the sale of the Old Swanbourne Hospital to Sealcrest Pty Ltd as trustee for the Swanbourne Development Joint Venture for the sum of AUD $6.65 million. The winning bid from Sealcrest was after evaluating bids from "more than 50 interested parties". In his announcement New Era for Old Swanbourne Hospital the Minister stated that:
"...all of the on-site buildings were of heritage significance and Sealcrest was required to comply with specific uses nominated for each of the buildings. It also had to meet redevelopment guidelines that had been prepared in consultation with the Heritage Council of WA" (our emphasis).
The most recent legal manoeuvring by the owner is curious because it seems that the Heritage Council of WA has been working with the owner for several years now to change the Plan that they (the Heritage Council of WA) originally approved for incorporation into the Town Planning Scheme prior to the sale of the property in 2006.
The State Administrative Tribunal - commonly referred to as "SAT" - is the highest appeal forum for planning issues in the State of Western Australia. Under its charter, once a matter is decided, the SAT is obliged to publish it's findings to the public domain.
In November 2008 the SAT published the outcome of hearings that had been held before it on the 4th, 5th and 6th of November 2008. In Swanbourne Estate Development Joint Venture and City of Nedlands (2008) WASAT 274 a panel of three Members of the SAT heard an appeal from Swanbourne Estate Development Joint Venture (applicant) against the City of Nedlands (Respondent). The Applicant was seeking approval, contrary to the original Outline Development Plan, to among other items, demolish buildings dating from 1904 and 1912 to enable construction of a five level building. The City of Nedlands opposed this application, arguing that all heritage buildings should be preserved and that the proposed five story building was not in keeping with the heritage values of the property.
The SAT rejected the Applicants proposition - but instead proposed a compromise outcome whereby a three story apartment building be built within the site. To quote from the summary of the SAT decision:
"This would enable the conservation, preservation and conversion of all heritage buildings and the development of a total of 28 units as contemplated in the development plan (clause 5)".
So who is to blame for the delay in development? It seems that the owner is determined to try to change the Development Plan under which the property was purchased - and which was approved by the Heritage Council of WA. The Nedlands City Council should be commended for resisting this pressure, right up to the extent of mounting a strong defence of its Town Planning Scheme in the SAT. The delays are not the fault of the Council.
The Heritage Council of WA and the Owner
The most interesting thing that jumps out from reading Swanbourne Estate Development Joint Venture and City of Nedlands (2008) WASAT 274 is that the Applicants (owner) received support from the Heritage Council of WA in presenting evidence in support of their position.
Dr Adelyn Ai Li Siew, described in the SAT papers as an architect and the Heritage Council's Manager, Development Referrals, gave evidence on behalf of the applicant and supplemented the Heritage Council's advice to the Tribunal contained in its letters to the Council. Dr Siew's evidence in support of the Applicant is reported several times in the SAT papers, including the statement that:
"The Heritage Council supported the new building after considering its location, bulk, height and scale. Dr Siew also expressed the view opinion that the proposal may potentially increase the landmark quality of the site by drawing attention to the new building and consequently to the detail of the heritage buildings" (clause 88).
In response to Dr Siew's view that the 5 story building may "potentially increase the landmark quality of the site", the SAT records its view (clause 90):
"The Tribunal agrees with Dr Siew that, because of the height and width of the proposed building, one's eyes would be drawn to the site. However the Tribunal does not accept her evidence that this will increase the landmark quality of the site. Rather, as heritage witnesses for the City explained, the proposed building would visually dominate the complexity of the heritage buildings, reducing their significance".
What to do Now?
Clearly, a clock is now ticking. The Nedlands City Council has been knocked out of relevance by this move by the Heritage Council of WA.
You only have until 18th February to make your views known.
By issuing their Notice of Measures Requiring Legislative Amendment notice over the Christmas holiday period, the Heritage Council of WA has created a situation in which it will be difficult for many people, including the people living in Mount Claremont, to make a considered response. This is because many of us are still on holiday as we write this post.
However, we would encourage the following urgent courses of action:
1. Write a strong letter to the Heritage Council of WA, objecting to the removal of the Old Swanbourne Hospital land from the development control requirements of the City of Nedlands Town Planning Scheme No. 2 and giving the Western Australian Planning Commission sole responsibility for development approval on the land. The Planning Commission is accountable only to the Minister for Planning and the Parliament. Removal of the existing planning approvals on the land mean that the owner could negotiate any kind of development on the site with the Planning Commission - and there may be minimal or no opportunity for the people of Mount Claremont to provide input. We could indeed see a ten story apartment built on the site. Make sure the Heritage Council gets your letter by 5.00pm Friday the 18th February 2011.
You need to write to:
The Executive Director,
Office of Heritage,
PO Box 6201,
East Perth WA 6892
2. Contact your Councillors and give them support. The Council has been steadfast in trying to apply the conditions under which the owner bought the property.
3. Make sure your friends are aware of this development and make sure they make submissions.
4. Attend meetings and sign petitions organised by the Mount Claremont Residents Association and be heard. The next meeting is on 9th February.
5. Write letters to, phone or email Hon Colin Barnett, MLA - our local member of the WA Parliament Legislative Assembly. The Hon Mr Barnett is well acquainted with the issues of the Old Swanbourne Hospital - refer to his speech to the WA Parliament on 10th April 2008.
6. Call talk back radio, write letters to the editors of the local and state newspapers.
Be active, be aware, be involved.
The Heritage Council of WA and the owner would appear to prefer that we stay on holiday, enjoying the heat and the holiday season, too sleepy to rouse ourselves. Can we prove them wrong?
David Thomas
Good research and concerning.
ReplyDelete