VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1263/2020
Permit Application nO. 2020-26 	

Applicant	Sana Medical Centre Pty Ltd	

Responsible Authority	Greater Shepparton City Council	

SUBJECT LAND	142 Nixon Street
SHEPPARTON VIC 3630	

HEARING TYPE	Hearing	

DATE OF HEARING	19 May 2021	

date of interim orders

DATE OF final ORDER	3 November 2021
30 November 2021

23 February 2022	

CITATION	Sana Medical Centre Pty Ltd v Greater Shepparton CC [2022] VCAT 196	

Order
No permit granted
1	In application P1263/2020 the decision of the responsible authority is affirmed.
2	In planning permit application No. 2020-26 no permit is granted.

Peter Gaschk
Member			

Appearances
For Applicant	Dr Khalid Nawab and Mr Misbah Nawab.

They called the following witness:
•	Mr Leigh Crapper, Structural Engineer, C+M Build Group.
	
For Responsible Authority	Ms Tess Kerridge, Solicitor, Holding Redlich.
	
	She called the following witness:
•	Mr John Briggs, Heritage Consultant

Ms Rachel Foo, Solicitor, Holding Redlich (assisting).
Mr Braydon Atkin, Town Planner.	

Information
Description of proposal	Demolition of an existing building, buildings and works in the Heritage Overlay (HO174) and the Activity Centre Zone and a reduction in car parking requirements.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Greater Shepparton Planning Scheme (the Scheme)	
Zone and overlays	Activity Centre Zone, Schedule 1 (ACZ1)
Heritage Overlay, Schedule 174 (HO174)
Parking Overlay – Precinct 1 (PO1)	
Permit requirements	Clause 37.08-5: To construct a building or construct or carry out works.
Clause 43.01-1: To demolish or remove a building and to construct a building or construct or carry out works.
Clause 52.06-3: A permit is required to reduce the number of car parking spaces required under clause 52.06-5.	
Relevant scheme policies and provisions	Clauses 15.03, 17.02-1S, 21.04, 21.05-4, 21.06-5, 37.08, 43.01, 52.06, 65 and 71.02. 	
Land description	The review site is described as 142 Nixon Street Shepparton Victoria, being land contained in certificate of title Volume 3593 Folio 505 and described as Lot 1 on Title Plan 621522S.  Dr Khalid Nawab is the registered proprietor of the land and the sole director of the applicant company, Sana Medical Centre Pty Ltd, the occupier of the review site and medical clinic.  The site is located on the south side of Nixon Street, is generally rectangular in shape, with a 15.0m frontage and total area of approximately 701sqm.
The site contains a late Victorian/early 20th century, detached timber cottage with a hipped, corrugated metal roof.  The building features a verandah with decoratively turned timber posts, cast iron lace work and a curved corrugated iron roof, typical of that period.  
The building is set back from Nixon Street with a front yard and small garden.  It is used as a medical centre with rear parking accessed from Nixon Street.  A timber slat front fence is located along the frontage, with a gravel driveway on the western side of the review site that leads to the car parking at the rear.
The review site forms part of a wider mixed-use area that features a range of period dwellings, contemporary detached dwellings, multi-unit developments, and offices.  The site is opposite Deakin Reserve that contains active playing fields and open space areas to the north.  Surrounding period properties on Nixon Street generally consist of single-storey, detached dwellings with hipped and gable roofs. 
The building on the review site forms part of a group of four heritage-listed dwellings (HO174). The detached building on the review site and at 144 Nixon Street, are representative of late Victorian/early 20th century cottages.  The semi-detached properties at 138 and 140 Nixon Street are Interwar period.  The property on the corner of Nixon and Harold Streets is a beige, brick veneer, single storey property and has no heritage significance.
Nixon Street is also characterised by the open playing fields and open space associated with Deakin Reserve opposite.  Nixon Street adds to the spaciousness of the reserve, having a wide road reservation that includes parallel and centre of the road parking.	
Tribunal inspection	At the conclusion of the hearing, I indicated that I would undertake an inspection of the site and surrounds.  Arranging an inspection of the subject premises was impacted by ongoing Covid restrictions that were put in place by the State Government following completion of the hearing.  
An unaccompanied inspection of the review site was able to be undertaken on 13 November 2021.	

Reasons
What is this proceeding about?
1	This is an application to the Tribunal for a review by Sana Medical Centre Pty Ltd (the applicant) against the Greater Shepparton City Council (the council) failure to grant a permit (Application No. 2020-26) under s77 of the Planning and Environment Act 1987 (the Act).  
2	Application No. 2020-26 seeks approval for full demolition of an existing building and construction of a contemporary styled building, including approval of associated buildings and works in the Activity Centre Zone and a reduction in car parking requirements under Clause 52.06 of the Scheme (the proposal) on land at 142 Nixon Street, Shepparton (the review site). 
3	The council submits the existing building on the review site is of architectural significance and provides a representative example of a late Victorian/early 20th century cottage.  The building is designated contributory under Heritage Overlay, Schedule HO174 (HO174).  The council says the subject building contributes to a group of existing heritage houses in Nixon Street, that illustrate the diversity and variation of residential development over time in that street.  
4	The council submits demolition of the contributory building in HO174 should not be permitted and relies on the evidence of Mr John Briggs of John Briggs, Architects.  It is Mr Briggs’ evidence that demolition of the existing building and replacement by a contemporary double storey building, is not appropriate, given the heritage significance of the building on the review site and surrounding heritage streetscape character.  
5	The applicant does not agree with the council.  It submits Planning Permit 1995-368, issued on 4 January 1996, provided approval for this property to be used as a health centre/medical centre for five practitioners.  It says this permit predated the application of HO174 and it should be able to continue its clinic activities in a more suitable and contemporary styled premises.
6	The applicant considers the heritage significance of the existing building on the review site is overstated.  It notes some other buildings under the same overlay have been demolished and replaced with newer, contemporary buildings (for example 150 Nixon Street that has been demolished and replaced with a contemporary styled, double storey building).  It also submits there is more heritage significance displayed on buildings at 115 and 117 Nixon Street.  
7	The applicant also says some elements identified as heritage fabric on the subject building are not original.  In respect to demolition, the applicant relies on the evidence of Mr Leigh Crapper, Structural Engineer with C+M Build Group.  
8	The applicant also submits the council has not considered the adverse economic impact that will be created if the proposed development is not approved.
9	A photograph of the subject building is provided below.  A later photograph included in the evidence statement of Mr Briggs (also provided below) shows the subject and adjoining buildings that are included in the HO174.

Photo 1: 42 Nixon Street (Source - Heritage Citation Report)

Photo 2: Nos. 38-40, 42 and 44 Nixon Street (Source: Heritage Expert Witness Statement - John Briggs Architect, May 2021)
the proposal
10	The proposal was summarised in the council’s submission and is provided below:
The Applicant seeks planning approval to demolish the building under clause 43.01 of the Scheme (Heritage Overlay Schedule 174).
THE PROPOSED DEVELOPMENT
(a) The Applicant seeks planning approval for the construction of a two-storey building on the review site, along with a parking dispensation from 26 car parking spaces to 10. The development includes a medical centre on the ground floor and a two-bedroom dwelling on the first floor to be utilised by medical practitioner/s of the centre.
(b) The medical centre, with a proposed floor area of 207.7m2, is proposed to consist of three consulting rooms, a nurses’ room, a treatment room, a reception and foyer area, storage, and amenities. It is proposed that five medical practitioners’ practice from the new premises.
(c) The proposed first-floor unit has a floor area of 125.64m2 and includes a balcony facing north towards Nixon Street.
(d) The front façade, being the northern elevation, is proposed to present axon cladding and five aluminium-framed windows at ground level, axon exterior cladding, five painted concrete panels, a balcony at first-floor level, and a skillion roof.
11	A 3D perspective and drawings of the new building lodged by the applicant is provided below:

Source: Council Submission
What are the key issues?
12	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered the respective submissions of the parties, photographs, supporting material and documents and evidence statements, I consider the following key questions are relevant to my assessment of this matter:
•	Is the proposed demolition of the building an acceptable outcome under HO174?
•	Is the new built form of the proposed development appropriate?
•	Is a parking dispensation appropriate?
13	I find the proposed demolition of the contributory building on the review site is not appropriate and would adversely impact the integrity of HO174.  Based on the material and evidence provided to me by the parties I find the subject building retains sufficient and significant heritage fabric that is capable of conservation and repair.  
14	Additionally, I find the new building proposed to replace the contributory building is not an acceptable outcome under HO174, as it is not in keeping with key heritage elements outlined in the Statement of Significance that applies to the HO174 and would adversely impact the ongoing cultural significance of the heritage precinct, particularly the adjoining buildings that are also located under the HO174. 
15	 I affirm the decision of the council and direct that no permit issue.  I detail my reasons for this decision below.
planning policy framework
16	The review site is located within the Activity Centre Zone (Schedule 1) (ACZ1) and is also subject to Heritage Overlay (HO174), and Parking Overlay - Precinct 1 (PO).  Relevant permit triggers within the ACZ1 and HO174 have been outlined in the Information Section above.  
Activity Centre Zone, Schedule 1 (ACZ1)
17	The review site is within Precinct 5 - Office and Higher Residential (Sub-precinct 5A) Residential/Redevelopment of the ACZ1.  Under the ACZ1, the use of the land for a medical centre and dwelling is permitted as of right.  However, buildings and works associated with the proposed development require a planning permit.  
18	Objectives under the ACZ1 encourage greater intensity of development, higher built form and increased population opportunities for sites located within the Shepparton CBD.  I note the proposed double storey height and setback requirements of the new building are within the parameters and requirements of the zone provisions.
19	However, Decision Guidelines under the ACZ1 require new buildings and works to complement the form, scale, materials, colour, and lighting of a place of cultural heritage significance on the same or adjoining sites.  
20	In this case, the review site adjoins contributory heritage buildings on both adjoining sites at 138-140 and 144 Nixon Street.  This built form setting is significant in my consideration of the new building proposed on the review site.  I have placed weight in my decision on this heritage setting and context. 
Heritage Overlay, Schedule 174 (HO174)
21	HO174 is identified in the Scheme as the ‘Nixon Street Group, Shepparton’.  This grouping of buildings included properties at 132, 134, 138-140, 142, 144, 150 and 156 Nixon Street.  I note the property at 150 Nixon Street has since been removed from HO174, following gazettal of Amendment C205 on 29 October 2021 (AmC205).  I make further comment on the relevance AmC205 to this proposal below.  
22	Under HO174 the subject building on the review site is designated as contributory to the heritage precinct.  The applicable HO174 boundaries impacting the review site and the grouping of houses adjoining/nearby properties in Nixon Street is provided below (review site bound by blue dashed line):

Source: Council Submission
Amendment C205 (AmC205)
23	AmC205 was gazetted on 29 October 2021 and replaces interim heritage controls with permanent controls and implements the recommendations of the Greater Shepparton Heritage Study Stage II, Greater Shepparton City Council, April 2020.  AmC205 added external paint controls to the Schedule to the Heritage Overlay for HO174 that affects the subject building on the review site. 
24	The Statement of Significance for the Nixon Street Group is now an individually Incorporated Document under the Scheme resulting from the gazettal of AMC205.  The Decision Guidelines of clause 21.05-4 continues to require the responsible authority to consider as appropriate, the Statement of Significance for the Nixon Street Group of buildings.
25	The status of the Statement of Significance for 142 Nixon Street has been changed as follows:
•	Recommended heritage protection has increased to requiring VHR, HI and PS protections (previously only PS protection required).
•	The recommendations of the Statement of Significance now require external paint controls, whereas in the 2018 iteration no external paint controls were recommended.
26	However, the relevant Statement of Significance for the review site is unchanged in its form and content within the Greater Shepparton Heritage Study II April 2020 (the 2020 Heritage Study).  
27	The 2020 Heritage Study now forms part of the Decision Guidelines of clause 21.05-4 (Environment - Cultural Heritage).  Previously, the Statement of Significance for the review site (as it existed within the Greater Shepparton Heritage Study Stage IIB) formed part of the decision guidelines of clause 21.05-4.
28	The Statement of Significance for the building on the review site identifies the review site contributes to the local historic, social, and aesthetic significance of the Greater Shepparton City.  Particularly demonstrating early 20th century residential development in Shepparton, shown in the grouping of houses found along Nixon Street at 132, 138-140, 142, 144 and 156.  
29	The cultural heritage significance of the subject building at 142 Nixon Street is provided in the unchanged Statement of Significance below:
Why is it significant?
142 Nixon Street is of historic and social significance as it provides tangible evidence as to the character of residential settlement in Shepparton during the early 20th century. Nixon Street became established as a residential street during this period. For Shepparton, the early 20th century and in particular the 1920s was a period that was marked by growth. [HERCON Criteria A & G]
It is of architectural significance as it provides a representative example of late Victorian/early 20th century cottage. 
142 Nixon Street contributes to the group of houses in Nixon Street that illustrate the diversity and variation of development in Nixon Street during its consolidation as a residential street. 
This includes the setting of the houses and the variations of the architectural expression.  The period of development that is represented by this group was a time of change for Shepparton. The group of houses includes: 132, 134, 138-140, 142, 144, 150 and156 Nixon Street Shepparton. [HERCON Criteria D]
30	Relevant heritage controls and provisions, including Decision Guidelines at clause 21.05-4, that apply to the review site under Clause 43.01 (Schedule 1) of the Scheme and HO174, are supported in the Greater Shepparton Heritage Incorporated Plan, April 2020, The Greater Shepparton Statements of Significance for Places in the Heritage Overlay, April 2020 and the Greater Shepparton Heritage Study Stage 11, April 2020.
31	The cultural heritage local policy at clause 21.05-4 of the Scheme was also modified through AmC205.  However, the focus of the clause continues to discourage the demolition of significant or contributory buildings, unless it can be demonstrated to the satisfaction of the responsible authority that:
– the building is structurally unsound and cannot be feasibly repaired or adapted for reuse; and
– the original fabric of the building has deteriorated to such an extent that a substantial reconstruction would be required to make the building habitable; and
– the replacement building displays design excellence; and
– if located within a heritage precinct, the replacement building clearly and positively supports the ongoing significance of the heritage precinct.
32	Council’s heritage policy at 21.05-4 also states that new development visible from the street, should be designed in a manner sympathetic to the character of the significant heritage fabric, or in an understated modern manner in complementary form and materials.
Parking Overlay, Schedule 1 (PO1)
33	The Parking Overlay – Precinct 1 (PO1) specifies that for every 1 practitioner, 5 car parking spaces must be provided.  The proposed development seeks permission for five practitioners to operate from the medical clinic, with a two bedroom dwelling on the first storey of the new building.  Ten car parking spaces are proposed on site (rear).
34	In addition, clause 52.06 requires 1 car parking space per one or two bedroom dwelling.  This amounts to a requirement for 26 car parks to be provided for the proposed development.
35	The Schedule to the PO1 requires a financial contribution for each reduced car space, unless the responsible authority is satisfied that such payment is not warranted.  Under the PO1, the financial contribution is $4500 per space, increased annually on 1 July each year after 5 April 2007.  The council advised a current value of approximately $6000 per car park is applicable.
36	Relevant decision guidelines contained at clause 52.06-5 and the Schedule to the PO1 need to be considered when assessing whether a reduction or waiver of parking is acceptable.  I deal with this matter in more detail below.
37	I have also considered other relevant and supporting State and Local policy provisions in my assessment of this matter as outlined in the Information Section above.
Amendment C110 and Amendment C205
38	As part of their written submissions on this matter, both parties referred to Amendment C110 (AmC110) and Amendment C205 (AmC205) to the Scheme.  Both amendments considered the heritage significance of the subject building on the review site.  It is appropriate to provide a summary of these amendments as they now relate to the current heritage building status on the review site.
AmC110
39	AmC110 was exhibited during April to May 2012.  In summary, the amendment proposed:
•	Incorporation of changes to existing interim and permanent heritage controls.
•	Adding 54 new individual place Heritage Overlays, including two new identified heritage groups, and three new precinct Heritage Overlays.
•	Updating local policy in relation to heritage.
•	Introducing an Incorporated Document which set out exemptions from the need for planning permits under the Heritage Overlay.
•	Correcting minor errors in existing provisions.
40	The amendment was subsequently gazetted on 3 October 2013, including the subject building at 142 Nixon Street, along with buildings at 132, 134, 138-140, 144, 150 and 156 Nixon Street into the HO174.
AmC205
41	AmC205 implemented the Greater Shepparton Heritage Study II 2020 by applying the Heritage Overlay to 178 individual places on a permanent basis, amending Clause 21.05, the Schedule to Clause 43.01 and amending and introducing three incorporated documents in the Scheme.  
42	The amendment was exhibited during June to August 2019 and gazetted on 29 October 2021, following an independent panel process and report.  
43	I note an independent panel was appointed to hear submissions to the amendment during December 2019 and note Dr Nawab’s son, Mr Misbah Nawab also made a submission to this panel.    
44	In respect to the subject building on the review site, the panel considered:
•	Whether the property at 142 Nixon Street should be included in the Heritage Overlay (HO174).
•	Whether the Nixon Street Group should be extended to include other properties.
•	Whether paint controls should apply.
45	In its report, the panel noted the existing building at 142 Nixon Street was identified as having local heritage significance, where it was described as having architectural significance, providing a representative example of a ‘late Victorian/early 20th century cottage’.  The panel also noted the Nixon Street Group of buildings had been under the HO174 since gazettal of AmC110.  It concluded that the building at 142 Nixon Street should be retained in the HO174 and that external paint controls were appropriate.
46	AmC205 was subsequently submitted to the Minister for Planning and was still awaiting consideration by the Minister at the time of this review hearing.  
47	Gazettal of this amendment occurred on 29 October 2021.  In summary, the review site at 142 Nixon Street has been retained in the HO174.  The Statement of Significance for the review site has also remained unchanged.  However, 150 Nixon Street has been removed from the HO174 as recommended by the independent panel.  Some changes have also occurred to the demolition provisions at clause 21.05-4 and 43.01 that I have referenced above and considered as part of my assessment of this matter.
Further submissions arising from gazettal of AmC205
48	My interim orders dated 3 and 30 November 2021, provided an opportunity for the council and applicant, should they so wish, to provide further written submission and updated evidence that addressed implications arising from the gazettal of AmC205.  Both parties have provided further submissions to the Tribunal.
49	Council submits AmC205 expands the considerations the responsible authority must consider when exercising its discretion to permit a demolition under clause 21.05-4.  It says the amended clause creates a higher threshold for demolition by shifting demolition considerations to the outcome of demolition, rather than looking to any trigger for demolition.
50	Regarding its expert evidence, council provided further written evidence from Mr Briggs.  It is Mr Brigg’s further evidence and opinion that:
With the individual significance of 142 Nixon Street now formally confirmed my view that demolition of the house would have adverse impact on the heritage significance of the Heritage Overlay of the Nixon Street Group is extended to the adverse impact of loss of heritage value of the house itself. Both levels of adverse impact are contrary to Clause 43.01 and, in my assessment, the Amendment C205 strengthens the case for refusal of the permit for demolition of the house.
51	Mr Briggs also notes AmC205 resulted in some changes to the policy setting under the heading Demolition under clause 21.05-4.  In respect to proposed demolition of the subject building, it is his view that:
….. there was previously no demonstration that the building was structurally unsound my assessment that demolition was not supported by policy has not changed.
To the contrary the clarification that demonstration should be to the satisfaction of the Responsible Authority rather than a Building Surveyor, and clarification of the tests of ‘feasible repairs’ and test of whether there is need for ‘substantial reconstruction required to make the building habitable’ serve to only to make it clearer that, in my view, there is no policy basis to support approval of demolition based upon the condition of the building.
52	The applicant acknowledges the Tribunal must now consider the changes in the Scheme arising from the gazettal of AmC205.  The applicant continues to rely on the Structural Assessment Report and Asbestos Report by Jim Buildings Inspections, as well as the Investigation Report by C+M Build Group, provided to the Tribunal at the hearing.  However, the evidence of Mr Crapper from the C+M Build Group was not updated.
53	The applicant maintains its submission to the Tribunal have been strengthened with matters highlighted during the Tribunal’s inspection of the review site, the prevalent global circumstances and impacts arising from Covid19 on the Shepparton community.  It submits that the ongoing role of the existing medical centre on the review site, that serves a database of over 10.000 patients:
….. should be a critical aspect of the Tribunal decision. 
54	The parties do not contest that I must consider the revised heritage controls under AmC205 as they now apply under the Scheme in my consideration of this review.  
55	It is significant that the HO174 continues to apply to the review site on a permanent basis.  Now with external paint controls added to the heritage significance of the place.  The retention of the review site and surrounding properties under the HO174 is significant to my decision.  
56	I have considered the relevant changes to the demolition provisions under clause 21.05-4 in my detailed reasons below and agree with the submissions of the council that the demolition controls that apply to this grouping of heritage buildings have been strengthened through the gazettal of AmC205.
Is the proposed demolition of the building an acceptable outcome under HO174?
Relevant background
57	The Tribunal was informed by the council a site meeting had been conducted with the applicant on 19 March 2020 to discuss the proposal.  The meeting was attended by the council planning officer, a consultant building surveyor for council (Mr Lloyd Payne) and the owner of the land, Dr. Khalid Nawab.  The purpose of the meeting was to establish whether the condition of the building supported its demolition.  Mr Payne found that repairs could be undertaken without the need to fully demolish the subject building, other than the chimney, which Mr Payne considered structurally unsound. 
58	Following this meeting, the applicant was advised council would support repairs to the building, in particular roofing, flooring, and partial demolition to the rear of the building, if it led to the remainder of the heritage fabric of the building being retained.  
59	The Tribunal was informed due to difficulties encountered by the applicant in engaging a structural engineer or building surveyor to address council’s concerns, the applicant elected to have the application considered as submitted.  The council subsequently refused the proposal on the grounds now under review.
Submissions and Evidence
60	The applicant says that demolition of the subject premises is required, submitting:
•	The building was structurally unsafe and required major repair works.
•	The building contained asbestos.
•	The extent of repair work required would compromise the heritage value of the building.
•	The cost of repairs was not commercially viable. 
61	In support of its submission, the applicant continues to rely on the expert evidence of Mr Crapper.  Mr Crapper is a qualified Structural, Civil and Forensic Engineer, Commercial and Domestic Builder and Building Designer.  He examined the existing condition of the subject building from a structural engineering perspective.  He also referred to reports submitted with the original application, including a Building Inspection Report and an Asbestos Audit of the building (both dated 25 November 2019), prepared by Jim’s Building Inspections.
62	Mr Crapper described the existing building in the following parts:
•	An original, weatherboard section of building on stumps, with front verandah.
•	A skillion addition to the East side of original building.
•	A skillion addition to the rear (South side) of original building.
63	He concurs with the evidence of Mr Briggs that the original section of the building is estimated to be over 100 years old (circa 1920’s).  
64	However, Mr Crapper considers the extent of replacement and/or repair works to rectify defects, deterioration, damage and/or poor/inadequate construction is most significant.  It is his view that the building itself has significant issues, both cosmetic and structural.
65	Mr Crapper notes the most concerning items he observed during his site inspection were the general deteriorated condition of the structural elements of the building.  This included poor and/or inadequate construction and condition of the primary structural timber framing elements (member sizing’s, fixings, tie downs, bracing, member capacity, spans, continuity, diaphragm action, etc).  He considers these elements to be compromising the structural integrity of the overall building.
66	It is Mr Crapper’s view that the building is beyond reasonable and economic repairs.  He recommends replacement with a new, modern equivalent clinic as proposed by the applicant.  He also opines that:
The cost to reinstate the existing building to current and relevant Building Regulations, NCC requirements, Australian Standards and Medical Clinic standards would be comparable to the construction of a modern new equivalent building.
67	In respect to the proposed demolition, the council relies on the expert evidence of Mr Briggs, a heritage architect.  His expertise is predominately in the field of Conservation Architecture.  
68	Mr Briggs was not able to inspect the building on-site due to Covid restrictions.  However, he was able to conduct his inspection from the street and has also relied on the various building assessments carried out on behalf of the applicant.  
69	It is Mr Brigg’s evidence that the proposed demolition of the subject building on the review site is not acceptable on heritage grounds, as it would have evident adverse impact upon heritage significance.
70	Further, it is his evidence the heritage significance of the subject building is enhanced, being in the middle of three heritage buildings, that demonstrates a good example of late 19th century residential development that has occurred in this part of Shepparton.
71	He opines that the heritage fabric, and integrity of that fabric in the building to the front, is largely intact.  He notes the building has had alterations to the side and rear, that in his view, did not contain any significant heritage fabric.  Similar non heritage fabric alterations were acknowledged by Mr Crapper in his evidence in chief.
72	However, Mr Briggs is not satisfied with the lack of comparable assessment contained in the Jim’s Building Inspection reports.  He says these reports do not warrant or support the demolition of the subject building.  
73	Nevertheless, he would support an appropriate scaling of the proposed demolition of non-heritage fabric additions, while retaining the heritage fabric associated with the front four rooms and façade treatment of the building.  In this regard, he notes that much of the repair work identified in the structural reports would normally form part of ongoing maintenance works associated with this type of timber building.  
My Findings
74	Having considered the evidence from Mr Crapper and Mr Briggs and the respective submissions from the parties, including the further submissions and evidence statement from Mr Briggs, I have not been persuaded that the demolition of the subject building has been substantiated.  Particularly in the context of specific matters that I now need to consider under clause 21.05-4.  This being structural soundness, feasibility of repairs and integrity and soundness of the physical heritage fabric.
75	Significantly, Mr Crapper and Mr Briggs agree the existing building retains a degree of original heritage fabric.  The council referenced this original fabric and recommended its retention, while accepting demolition of non-heritage sections identified by both experts and the council’s building surveyor.  The applicant did not accept this compromise position.  Submitting the whole building is in a state of disrepair and requires demolition to make way for a more modern clinic facility. 
76	I accept the opinions of the experts in respect to the identified non heritage fabric of the subject building.   This includes later extensions and additions to the east and rear of the building that I noted during my inspection have no original significance to the heritage fabric of the building.  I also note that both experts agree these extensions can be removed and made good.
77	The key difference between the experts is the extent and costs of improvement and remedial works required to restore the original heritage fabric of the subject building.  
78	Mr Briggs is of the opinion that the repairs to the heritage fabric of the subject building are reasonable and warranted to protect the cultural heritage significance of the building.  He says this approach is also preferrable to ensure the heritage setting and context of the adjoining heritage properties are protected and maintained.  It was also his opinion and experience in these matters, the asbestos materials identified in the structural reports from the applicant, were generally confined to the additions which he says could be removed. 
79	Mr Crapper, in cross-examination, conceded that the building was repairable.  However, it was his view this would result in significant costs to the applicant.  
80	However, when questioned as to the actual costs of such works, Mr Crapper conceded that no comparable assessments had been undertaken with his cost assessment.  He was not able to substantiate claims from Mr Nawab that the site was contaminated, nor confirm the location and extent of asbestos that may be in the building.  He relied on the assessments undertaken by Jim’s Building Inspections.  These assessments were not provided in evidence and not tested through cross examination. 
81	During his written submission, the applicant (Mr Misbah Nawab) provided some additional estimates that he had undertaken.  Expressing his opinion that $150,000 would be required to address the roof and floor repairs alone.  This estimate did not include any specific comparative cost assessments and again was not subjected to cross-examination and testing during the hearing.  As this estimate is untested in the context of these proceedings, I give it little weight.
82	As sought at clause 21.05-4, demolition of a contributory building is discouraged unless it is demonstrated the building is structurally unsound and cannot be feasibly repaired.  Alternatively, the original fabric of the building has deteriorated to such an extent that a substantial reconstruction would be required to make the building habitable.  This level of assessment is required to assess whether the repairs are then feasible. The amended Scheme provisions requires much more rigour on this matter than has been provided by the applicant.  
83	I agree with council that an independent and suitably qualified costing and engineering/building surveyor assessment is required here.  This assessment must also be tested, and an opportunity given to independently assess or cross-examine the veracity of such work.  This has not been provided to the Tribunal by the applicant.  It is a serious, and in my view, fatal shortcoming in the applicant’s submission.
84	It was Mr Brigg’s evidence that these repairs were manageable and not unusual for a timber building of this period.  Mr Briggs agrees no comparative analysis has been undertaken to establish the veracity of repair works required.  He notes that the building at 150 Nixon Street referenced by the applicant, was demolished and a new building constructed, following a detailed investigation by council’s heritage adviser, and building surveyor, establishing that this building was in a state of disrepair.  He says this is not the case here.
85	It is also significant in my assessment of this matter, that the applicant did not provide any verified costing or economic evidence that could be cross examined in detail, to test the veracity of the cost estimates.  I agree with the council that without such rigour and evidence:
…. the decision maker is unable to undertake an informed cost/benefit analysis of repairing the heritage building versus demolition and construction of a new building.
86	In essence, clause 21.05-4 seeks to establish whether the significant physical fabric of the building is so compromised, or in such poor condition, that the replacement and/or repairs required would compromise and reduce the integrity of the building.  
87	It was Mr Brigg’s evidence that the amount and extent of repairs required to the original heritage fabric of the building had not reached that threshold.  I accept Mr Brigg’s evidence here.  I note that Mr Crapper’s evidence did not conclude repairs could not be carried out on the heritage fabric of the subject building.  His concern was with the associated costs of this repair.  However, as I have already noted, I consider the costs presented by Mr Crapper have not been appropriately prepared or tested to substantiate their veracity or substance.
88	I am satisfied the building has heritage significance and contains important heritage fabric that Mr Crapper conceded could be repaired.  Mr Briggs supports this position.  Apart from the submission presented by the council that indicated its building surveyor had assessed the state of the building and found it could be repaired, the applicant did not present any further independent assessment from a building surveyor that indicated the repairs were not feasible.
89	I note the applicant sought to rely on the need of the medical clinic to substantiate its case for demolition of the subject building.  As I have detailed above, the use of the subject building is not a matter before this Tribunal.  The use is found in Section 1, permit not required, under s.3.0 of Schedule 1 of the ACZ1 Land Use Table (at clause 37.08-2).  The permit triggers are therefore solely focused on buildings and works requirements contained under clauses 37.08-5 and 43.01-1 of the Scheme.  I have given weight and consideration to these permit triggers and relevant decision guidelines found under the ACZ and HO provisions of the Scheme.    
90	I find the proposed demolition has not satisfied the tests required under the Scheme provisions for the ACZ and HO that applies to the review site.  I am satisfied the heritage fabric of the subject building on the review site is significant to warrant its conservation and repair.  
91	This is a determinative matter that requires a rethink of the extent of demolition proposed by the applicant.  In the absence of any tested and comparative costs estimates for the required repair work, I defer to Mr Brigg’s evidence and opinion on these matters.  Noting the issues of ongoing heritage repairs and replacement is in his direct area of conservation management expertise.  I also note that Tribunals have consistently held that the extant and responsibility of repairs and restoration of heritage buildings, forms an integral and important part of the ownership of these culturally important buildings.  This principle applies to this matter.
92	Based on the submissions evidence provided to me, I find the proposed demolition of the subject building at 140 Nixon Street has not been substantiated in accordance with the ACZ1 and HO174 purposes and objectives and accompanying local policy provisions expressed at Clause 21.05-4.  
93	It has been significant in my findings that the starting point for assessment of this matter is to consider the conservation of heritage fabric of the place.  Particularly where this fabric and physical setting has been identified as contributing to the cultural significance of adjoining buildings, as is the case here.  A similar policy focus is expressed in the Design and Development requirements expressed in s.4.4 of the ACZ1, where policy seeks to conserve or reveal views that contribute to the appreciation and understanding of places of cultural heritage significance.  The applicant is encouraged to re-assess the proposal in this policy setting of the Scheme.   
Is the built form of the proposed development consistent with the Scheme?
Proposed Built Form
94	Having made my determinative finding above, it is not necessary for me to provide a detailed analysis of the proposed new building, as it is premised on complete demolition of the existing building on the review site.  As I have detailed above, I do not consider a complete demolition of the subject heritage building on the review site is appropriate.  
95	Nevertheless, I think it prudent to make the following comments and observations in respect to the proposed design of the new replacement building.
96	Mr Briggs is concerned the proposed replacement building, if approved, would be out of scale with the heritage character of the streetscape.  Being focused on single storey form, pitched roof form and strong use of timber.  It is his evidence that the:
…. contemporary building form, with mono pitched roof and mono colour scheme are introduced visual elements that are without precedence or reference to either adjacent buildings or the character and appearance of other houses in the Nixon Street heritage group. 
97	Mr Briggs was particularly concerned that if the subject building at 142 Nixon was removed, the integrity, and more importantly, the heritage setting of the adjoining buildings at 138-140 and 144 Nixon Street, would also be lost.
98	Mr Briggs’ evidence is the only heritage qualified evidence that was presented to the Tribunal.  I place weight on his evidence.
My Findings
99	I agree the context setting into which the existing building sits, between two adjoining, contributory heritage buildings, is an issue that remains unresolved.  It is significant that policy and decision guidelines at clause 21.05-4, generally discourages the demolition of individually significant or contributory buildings in a precinct.
100	Further, Decision Guidelines at Clause 43.01-8 require consideration on whether the bulk, form and appearance of the proposed building will adversely affect the significance of the heritage place.  
101	I agree with Mr Briggs that the existing building on the review site, apart from the non-heritage fabric additions to the side and rear that are largely obscured from direct view from the street, is a reasonably intact example of a Victorian era house.  Its single storey form, sitting in amongst other single storey Victorian era buildings, is also significant.  More importantly, this physical setting helps informs the wider community of the important history and transition of residential development that has occurred in Shepparton.
102	The new building proposed on the review site is proposed in double storey form, with little recession or transition to side boundaries.  The mono pitched roof form, with large and angled window form of the new building, will in my view dominate the adjoining single storey heritage buildings.  Most significantly, the new building does not seek to reference the Victorian era buildings in any way.  Preferring to provide a definitive and new form to the existing heritage streetscape setting in this location of Nixon Street.  
103	I find the proposed design has failed to ensure the character and appearance of the heritage buildings adjoining the review site are not adversely impacted.  The proposed design has not sought to effectively conserve and acknowledge the significant fabric of the heritage places adjoining the review site as identified in the citation and Statement of Significance under HO174.  The replacement or loss of the existing heritage fabric associated with the building on the review site, will also compromise and dilute the appreciation and understanding of the Nixon Street Group of locally significant heritage buildings.  This outcome is not supported by relevant heritage policy I have referred to above.
104	If a new proposed design is considered on the review site, the new design should seek to complement rather than compete and dominate the appearance, scale, and heritage character elements of the adjoining buildings.  This design outcome is consistent with relevant policy expectations and decision guidelines at Clauses 43.01 and 21.05-4.
Is a parking dispensation appropriate?
105	There is a further matter I need to address that forms part of the proposal.
106	The proposal seeks permission for 5 practitioners to operate from the new medical clinic building, with a two bedroom dwelling proposed on the first storey of the new building.  Ten onsite car parking spaces are proposed.
107	The Parking Overlay specifies 5 car parking spaces must be provided for every practitioner.  Clause 52.06 also requires 1 car parking space per 1/2-bedroom dwelling.
108	The council submits a requirement for 26 car parks should apply to the proposal, resulting in a shortage of 16 on site car spaces.  It outlined the pertinent decision guidelines in its written submission that need to be applied under the Scheme for a waiver of parking.  I do not intend to repeat these here.
109	I agree with the council a permit is required to reduce/waive the number of car parking spaces required by clause 52.06-5 and under the Schedule to the Parking Overlay.  The Shepparton Central Business District Parking Precinct Plan (adopted by council on 19 December 2006) is also an important reference document at Clause 45.09 in the determination and assessment of this matter.
110	The council says that the location of the review site, being some distance from the nearest public bus stop and railway station, does not support a reduction in required car parking supply and a cash in lieu provision is justified.
111	The applicant says he cannot afford the cash in lieu contribution and would prefer to reduce the number of practitioners on the premises.  In this regard, the council submits there is sufficient parking within the existing on street parking, to provide parking for some clients of the proposed medical centre.  Nevertheless, it considers a permit condition requiring a cash in lieu contribution for the shortfall of 16 car parking spaces, should be required if a permit was to issue for the proposed development.  
112	However, I also note that council included in its written submission:
Had the Applicant sought to retain the majority of the building and demolish the rear for a modern extension (per Council’s suggestion), the car parking requirements would not be increased beyond the existing 10 car parks.    
113	I concur with the council that this would be a sensible and practical approach to parking for the proposed redevelopment of the site.
114	I was not presented with any traffic evidence from the applicant or council on this matter.  I accept the council’s observations, that combined with the 10 onsite car spaces provided by a previous planning permit, sufficient parking would appear to be available in the street median to accommodate clients of the proposed medical clinic.  In line with the above comment, the council has also indicated it may be prepared to provide some further parking credit, given the existing permitted use and retention of the heritage fabric of the existing building.  
115	It is not necessary for me to make any specific findings on this matter.  However, consistent with my comments above.  If any revised proposal is considered and lodged by the applicant and a parking reduction/waiver is sought.  It should be accompanied and supported by a traffic/parking demand analysis and a practical approach taken in accordance with the relevant Scheme provisons.
Conclusion
116	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Peter Gaschk
Member