25/07/2019 - 15:19

Peppy Grove’s fail on heritage

25/07/2019 - 15:19


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The Shire of Peppermint Grove has been strongly criticised in a Supreme Court ruling that found it mishandled the listing of heritage properties, and specifically a prominent house on the Swan River foreshore.

Peppy Grove’s fail on heritage
The house at 52 The Esplanade was entered in the shire’s ‘municipal inventory’ in the early 1990s.

The Shire of Peppermint Grove has been strongly criticised in a Supreme Court ruling that found it mishandled the listing of heritage properties, and specifically a prominent house on the Swan River foreshore.

The court action was initiated by Lyndon Brown through his company Dain Pty Ltd, which owns the Queen Anne-style bungalow at 52 The Esplanade.

Mr Brown, whose family established Cygnet Bay Pearls, is seeking to sell the property, which is located next to two much-discussed riverfront developments – Nigel Satterley’s renovation of his house on The Esplanade and Marcus Plunkett’s construction of a new house.

Today’s ruling by Supreme Court justice Gail Archer found a series of failings in the way the shire handed Mr Brown’s property specifically and its heritage list generally.

The house at 52 The Esplanade was one of about 160 properties entered on the shire’s ‘municipal inventory’ in the early 1990s.

The shire progressively formalised its listing of heritage properties in subsequent years, with Mr Brown’s property given the highest category one classification.

In 2014, after obtaining a report from Griffiths Architects, Mr Brown approached the shire to have the property changed to a category two classification, which would make it easier to redevelop.

“The shire did not do so, and there is no evidence that the shire gave any explanation for its refusal,” today’s judgement stated.

In 2017, the shire sent a letter to the owners of all heritage properties saying it intended to establish a heritage list by adopting the current municipal inventory.

The court found that the shire failed to provide reasons for the proposed listings and failed to evaluate whether the properties on the municipal inventory met the prescribed criteria.

In June 2017, the shire’s manager of development services, Michael Whitbread, recommended that Mr Brown’s property be given a category two classification.

The council rejected that recommendation and instead resolved to retain the category one classification. 

“As the council's decision was contrary to Mr Whitbread's recommendation, it was required to give reasons for its decision,” Justice Archer said.

“It’s reasons comprised a single sentence, namely, that 'the existing building perfectly represents the streetscape amenity of Peppermint Grove as a typical category one property'.

“The council did not identify any basis for this statement.”

A key allegation was that the council prejudged the listing, because it had an interest in maintaining its stance that the property should be on the heritage list, so as to avoid potential reputational harm and cost.

Dain, which was represented by Hotchkin Hanly Lawyers, pointed to evidence the council did not assess the property as needed.

“Dain submitted that this was evidence of prejudgment because clause 8 required an assessment of the criteria,” today’s judgement stated.

“In a sense, it was worse than prejudgment,” Justice Archer added.

“The council did not form an immovable view that the criteria had been met. 

“Rather, the council did not even consider whether the criteria had been met, yet put the property on the heritage list.

“Regrettably, it appears to have been an exercise in 'rubber‑stamping'.”

In her conclusions, Justice Archer did not accept the council was biased but she did accept there was an apprehension of bias.

“I do not find that the council was so committed to the property being on the heritage list that it was incapable of changing its mind, whatever arguments or evidence were presented,” she wrote.

“I do not find that the council was not willing to give genuine and appropriate consideration to new materials and submissions.

“However, in my view, it would be reasonable for the fair‑minded lay observer to apprehend each of these things, and to apprehend that, as a result, the council might not have brought an impartial mind to the sixth resolution.”

The ruling comes as the shire proceeds with a review of its heritage list.

In 2018, the shire wrote to all owners and occupiers inviting comments and further relevant information with regard to each property, its web site explained.

“The review once complete will meet the statutory requirements of part three of the Planning and Development Regulations 2015,” the shire’s web site stated.

Justice Archer found that this review was motivated by the legal action.

“The shire only took action in relation to the other properties after the first day of hearing when the risk that the heritage list might be found to be invalid in the court proceedings was raised,” she stated.


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