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					Tavern 42 Degrees South Pty Ltd v Sullivans Cove Waterfront Authority [2006] TASRMPAT 85 (11 May 2006)
File No:361/05P
Unit 64, Elizabeth Street, 4 Franklin Wharf - Decision BETWEEN Tavern 42 Degrees South Pty Ltd AND Sullivans Cove Waterfront Authority Respondents Appellants

J 85/2006

This was an appeal against a decision of the Sullivans Cove Waterfront Authority to refuse an application for the addition of PVC (drop down clears) sides to existing umbrella structures over outdoor dining tables at the Fish Frenzy restaurant located at Unit 64, Elizabeth Street, 4 Franklin Wharf. The appeal was heard at Hobart on 23 March 2006 D Armstrong of Counsel appeared on behalf of the appellant T.Faulds of Counsel appeared on behalf of the respondent.

DECISION
1. An application was made for the addition of PVC) sides (drop down clears) to existing umbrella structures over outdoor dining tables at the Fish Frenzy Restaurant located at Unit 64 Elizabeth Pier 4 Franklin Wharf. The application was refused by the Sullivans Cove Waterfront Authority (The Authority) on the following grounds: 1. The proposal is contrary to clause 24.5 of the Sullivans Cove Planning Scheme 1977 in that it would create visual clutter and will detract from the character of the waterfront; The proposal is contrary to Clause 22.4.5 of the Sullivans Cove Planning Scheme 1977 in that it would not complement or contribute to the cultural significance, character and appearance of the heritage place and its setting; The proposal is contrary to the preferred future of the Cove and therefore the strategic basis for the Sullivans Cove Planning Scheme 1977 under part B in that it will compromise the amenity of pedestrians; The proposal is contrary to the Planning Principles for Management of Activities in the cove and therefore the strategic basis for the Sullivans Cove Planning Scheme 1977 under part B as it is inconsistent with the intended public urban space character of the area;

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The proposal is contrary to the Design Principles of the Urban Design Framework in that it will privatise public spaces external to buildings and will obstruct and clutter the inherently flat nature of the Cove floor; The proposal conflicts with the Objectives f) and g) contained in Part 2 of Schedule 1 of the Land Use Planning and Approvals Act 1993 in that it would have an unacceptable impact on the recreational environment and heritage and architectural aspects of Elizabeth Street Pier and the waterfront.

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An appeal was lodged by the applicant developer contending: 1. The proposal will not create visual clutter or detract from the character of the waterfront; The proposal will not adversely affect the cultural significance, character or appearance of the heritage place or its setting; The proposal will not compromise the amenity of pedestrians; The proposal is not inconsistent with the intended public urban space character of the area; The proposal will have no impact on the privatisation of public spaces external to the building; The proposal will not obstruct and clutter the inherently flat nature of the cove floor. The proposal will not have an unacceptable impact on the recreational environment or the heritage and architectural aspects of Elizabeth Street Pier and the waterfront.

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The subject site is located on the north east corner of the Elizabeth Street Pier complex. The tenancy agreement for the restaurant makes provision for indoor and outdoor dining on both the north and east frontages of the building. The outdoor dining facility is governed by the provisions of a licence arrangement with the Hobart Ports Corporation. The dining area on the eastern frontage is designated by fixed bollards and ropes. Permits were issued by the Hobart City Council with respect to the four large existing umbrella structures which are bolted to the ground. This is the only tenancy on the eastern side of Elizabeth Pier using umbrella structures, the other tenancies (T42 and Marque IV) use retractable awnings. The application is for the approval of clear PVC sheets that have already been installed, the applicant being unaware of the need to apply for a planning permit. The sheets are not in use pending the outcome of this appeal. The Tribunal was able to view photographs of the PVC sheets in the drop down position and the associated support structures. The Tribunal was informed that whilst the images show the side frames of the structure as solid poles, it is proposed that the poles be removed and replaced with taut wire which is only engaged when the sheets are down. The sheets are attached by zipper to the width of the umbrella and extend to ground level where a kickboard is attached along the length of the sheet to prevent flapping.

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Other components of the sheet structure comprise canvas gutters, permanent bracing by way of a horizontal beam infill material between the top of the Piers and the edges of the umbrella. Elizabeth Street Pier is a heritage listed property forming part of the Sullivans Cove Waterfront Area. The property was adapted in the mid 1990‟s and currently contains restaurant uses on the ground floor and serviced apartment uses on the upper floor. While, outdoor dining is offered on the east and the northern sides of the building, there are no enclosed dining structures similar to the current proposal. JURISDICTION

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A preliminary issue was raised by the applicant as to whether the proposal constitutes “development” and whether it is subject to the provisions of the Sullivans Cove Planning Scheme 1997 (the Scheme). The term development is defined under part G of the Scheme as including a) The construction, exterior alteration or exterior decoration of the building; The demolition or removal of a building or works; and The construction or carrying out of works; and The subdivision or consolidation of land, including buildings or airspace; and The placing or relocation of a building or works on land; and The construction or putting up for display of signs or hoardings –

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But does not include any development of a class or description, including a class or description mentioned in paragraphs a) to f) prescribed by regulations for the purpose of this definition. 10. This definition is identical to the definition in clause 3 of Land Use Planning and Approvals Act 1993. The Notice of Appeal raised the jurisdictional question as to whether the proposal constitutes development and is subject to the controls of the Scheme. Written submissions were forwarded on behalf of both parties prior to the Appeal hearing. It was subsequently determined that evidence in relation to the proposal should be given prior to the determination of the jurisdictional issue. It was submitted by Mr Armstrong that the definition of development does not apply to the subject proposal. He contended that the proposal is not for the construction of a building as defined in both the Land Use Planning and Approvals Act 1993 and the Planning Scheme which includes a structure and part of a building or structure. There is no statutory definition of the term “structure” separate for building and Mr Armstrong submitted that the drop down sides do not constitute a structure. The issue is as to whether the umbrellas constitute a “structure.” Mr Armstrong submitted that the permanency of the structure is a major determining factor in understanding the term and referred the Tribunal to the decision of Green CJ Waratah Wynyard Council vs. Fairbrother unreported Judgement A199/1994. Green CJ was in that case reviewing a decision of a magistrate dismissing a complaint with

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respect to a breach of the Wynyard Planning Scheme concerning the unauthorised erection of a building on land. 12. Whilst the Chief Justice was not required to determine the issue as to whether the shed was a building within the meaning of that word, he agreed with the learned Magistrate that “the degree of permanence of a structure is a relevant factor in determining whether it is a building………”. Other relevant factors would include its use, degree of mobility and so forth, The evidence in the current appeal is that the umbrellas are bolted to the ground as are the seats and tables beneath them. Mr Armstrong submitted that the umbrellas are not intended to be permanently affixed, are deliberately ephemeral and are not attached to the adjacent Pier building. He contended that the umbrellas lack the required degree of permanence to be properly regarded as structures or buildings for the purposes of Land Use Planning and Approvals Act 1993 or the Planning Scheme. In the event that the Tribunal found that the umbrellas do constitute structures and therefore buildings, in Mr Armstrong‟s submission the flexible the drop down clear PVC sides could not be so regarded. Nor, Mr Armstrong contended, do the PVC sides constitute exterior alteration or exterior decoration of a building in the terms of sub paragraph (a) of the definition of development. Mr Armstrong contended that to be an alteration to a building, the thing altered must be itself capable of being a building or structure. Whilst the description of the development application is for the installation of transparent PVC clears to provide weather protection to the existing umbrellas, as noted above, there is supporting infrastructure by way of poles, gutters and bracing as well a kickboard to hold the clear screens in place. The definition of building and works is found in part G of the Scheme. Building includes: a) b) a structure and part of a building; fences, walls, outbuildings, service installations and other appurtenances of a building; and a boat or pontoon which is permanently moored or fixed to land.

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“Works” means “ any change to the natural or existing condition to topography of land including the removal, destruction or lopping of trees and the removal of vegetation or top soil.” The term “land” includes: a) b) c) d) buildings and other structures permanently fixed to land; and land covered with water; and water covering land; and any estate, interest, easement, servitude, privilege or right in or over land.

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The Tribunal does not agree that the existing umbrella structures constitute ephemeral outdoor furniture normally associated with market umbrellas. The current four large umbrella structures, two side by side at the northern front entrance and two

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at the eastern side, operate pursuant to two planning permits which allowed for the replacement of eight existing free standing umbrellas. The four existing umbrellas are bolted to the ground and whilst capable of being removed, are not readily collapasible not easily removed. The structures are built in accordance with an engineered design plan with necessary infrastructure to guard against movement and damage from natural elements. In the Tribunal‟s view there is permanence to the structures that meets the definition of “building” under the Scheme provisions. This definition includes walls of a building. The Tribunal is satisfied on the evidence presented that the clear drop down sides with their accompanying infrastructure constitute walls of a building within the Scheme definition. 19. The Tribunal is further satisfied that the proposed changes to the building meet the Scheme definition of “works” which includes changes to land, where “land” includes buildings or other structures permanently fixed to land. The Tribunal further determines that the application for the clear PVC drop down sides and associated infrastructure constitutes the exterior alteration of a building within the meaning of sub paragraph (a) of the development definition. The alteration envisaged is the addition of drop down sides which constitute walls although it is not envisaged that they be permanently in place. The Tribunal having determined that the application constitutes “development” within the meaning of the Scheme, concludes that it has jurisdiction to determine the appeal. THE PLANNING SCHEME 22. The site lies within Activity Area 4.3 Sullivans Cove Working Port provision of the Sullivans Cove Planning Scheme 1997 (the Scheme). The relevant objectives for this Activity Area include: a) To protect and promote public awareness of Sullivans Cove as a unique example of an historic Australian waterfront To encourage the use and development of a range of cultural, recreational, leisure and entertainment facilities To facilitate the further development of retail, tourist and commercial activities. To ensure that the area is further developed as an attractive, comfortable and interesting place for pedestrians. To ensure that development in the area respects the cultural heritage and built form of the Cove Floor

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As the development proposal is not exempt under the provisions of clause 8.4, a permit is required and assessed in accordance with the relevant Scheme provisions. The site is identified as a place of cultural significance under Table 1 to Schedule 1 of the Scheme. As it does not satisfy the deemed to comply provisions of clause 22.4.4 of the Scheme, not being in accordance with a conservation plan, it must satisfy the criteria listed in clause 22.4.5.

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The development application is also subject to the provisions of clause 24, Schedule 3- Public Urban Space. Clause 24.1 states that “The purpose of this Schedule is to manage the construction of buildings and the carrying out of works in streets and other public spaces within an urban design framework. The Schedule is concerned with managing fixed and ephemeral building or works in the public spaces of the Cove including:  Civic Works (road and pavement works, traffic calming installations, Pier and wharf modifications, landscaping, public transport facilities, other works) Civic Furniture (fixed street furniture including benches, bins, bollards) Commercial Furniture (outdoor dining furniture and display of goods)

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Controls over the construction of buildings or works are intended to create a built form which is consistent with the preferred function and character of the street and other public spaces. Streets and other public spaces are categorised in this Schedule based on the character of the urban form. The Schedule also requires a relevant type of development to assessed against the function of the space (pedestrian spaces, vehicle movement, parks, etc).” 26. Clause 24.4 Part (A) refers to Civic Works and Furniture. The application does not meet the Scheme definition of civic works and for the above reasons does not constitute furniture. Clause 24.5 Part (B) relates to Commercial and Community Facilities. This clause states “Public urban spaces in the Cove are used for a range of commercial activities, including outdoor dining facilities and external display of wares. Such uses add vitality and interest to the Cove.”…….. However, without appropriate controls they can also create clutter, become an obstruction to the free movement of pedestrians. Poorly located seating and outdoor displays can create safety hazards if inappropriately sited or designed. Too many tables and chairs, and other commercial furniture can also create visual clutter, resulting in unattractive street spaces………” 28. Clause 24.5.1 states that This control applies to the use of public land identified in figure 10 for commercial or community facilities. Figure 10 identifies certain areas which are exempt from the requirement for a permit for outdoor dining furniture. The subject site is not one of them. The controls of this Part relate principally to the potential for obstruction to pedestrian movement created by inappropriately sited or designed facilities. Whilst it was contended that the proposed drop down clear side may inhibit pedestrian access to the subject site, an aspect of the proposal is that the sides would only be dropped on occasions when the weather is inclement when it is unlikely that the public would be accessing this area. The Tribunal was informed that the lease agreement does not

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prevent the public use of the area and that when the sides were in place the public continued to use the space as shelter from inclement weather. 30. The Tribunal does not agree that the erection of the PVC sides represents clutter within the meaning of clause 24.5 which relates more to the number of and inappropriate placement of facilities. Nor does the Tribunal agree that the free movement of pedestrians within the public urban spaces of the Cove would be unduly obstructed by the proposed PVC sides. It is noted that on the eastern side of the Pier building, the pedestrian paths and accesses are currently delineated as the area of tables chairs and umbrellas is surrounded by roped of bollards. The Tribunal agrees with Ms Duckett‟s conclusion that the proposal does not encroach any further into the pedestrian paths than is currently the case. THE EVIDENCE 31. Irene Duckett, Planning Consultant gave evidence on behalf of the appellants. It was Ms Duckett‟s evidence that despite the conversion of the Pier building to restaurants and apartments, it is still recognisable in its original form as a warehouse. In her opinion notwithstanding the alterations “it is a large, strong two storey form which is sufficiently robust to withstand the window dressing which has been applied to it in the course of its adaptations. Within this context, the upper level balconies, roof addition, and windows are subservient to the dominant concrete and brick form. The outdoor furniture surrounding the building such as the awnings at T42 and Marque IV, the umbrellas and chairs outside Fish Frenzy, and the awning and outdoor furniture outside Pashes are regularly recognisable as ephemeral signs of the use occurring within the building and do not interfere with the fabric of the building, any more than the pallets and trucks which obstruct the view of the building in old photos do. The furniture is located around the more contemporary elements of the building, such as the aluminium windows and sliding doors, and do not obstruct the important architectural elements of the building.” It was Ms Duckett‟s evidence that it is difficult to distinguish when the transparent plastic sheets “are up or down” The clears are transparent, and would not reduce or restrict view lines of the building or across the dock.” She contended that it is in the best interests of the restaurant owners to ensure that the plastic sheets are well maintained and replaced regularly as they deteriorate or their business would suffer. Ms Duckett acknowledged the historical significance of the site noting its original function as a working functioning port which contrasts with its current value being its utilitarian form. Ms Duckett commented that as such, the purpose of the Pier building has completely changed and warned of the danger of over emphasising its romantic form. Mary Naggs, Heritage Consultant and contract Architect with GHD gave evidence on behalf of the Sullivans Cove Waterfront Authority Ms Naggs stated that one of the culturally significant features of the Elizabeth Street Pier which was built between 1931 and 1934, is the fact it is the last remaining major finger wharf in Sullivans Cove, Hobart. Ms Naggs commented that “the original simple and industrial character of the building has been retained including the strong masonry gable end and its setting on a broad open concrete wharf platform. It is a good representative example of maritime architecture of the depression years in Tasmania. It is also a good representative example of a successful late twentieth century adaptation of a Tasmanian maritime site to a new use.”

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Ms Naggs referred to the building adaptations and noted that the architects, Heffernan Button Ross received two awards namely the RAIA Henry Hunter Tiennual Award for Recycling and Conservation and a commendation for civic design in the 1999 RAIA National Awards. Ms Naggs referred to the performance criteria in clause 21.2 (f) of the Scheme which states “all new development must respect the cultural heritage of buildings, structures and spaces” and further, clause 20.2 (b) which requires that “all use and development must be compatible with, conserve and where possible, enhance the cultural heritage of the area.” In Ms Naggs opinion “the proposed drop down panels do not respect the character of the Cove nor of the Elizabeth Street Pier because they restrict the ability to interpret the relationship of the Pier building (particularly its robust west facing gable end) with the wide concrete aprons which were the working platforms between the ships and the warehouses and transport. Once outdoor seating has walls „even if transparent walls” then they are no longer “open space, but closed privatised space” In Ms Naggs opinion “the drop down panels would be an unacceptable additional element of clutter detracting from the building and its setting.” Ms Naggs referred to the objectives of Schedule 1 of the Scheme with respect to cultural heritage issues and quoted from the Australia ICOMS Burra Charter 1999 article. Paragraph 8 states “ conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate.” It was Ms Naggs conclusion that “The drop down panels would interrupt the simple architectural lines of the strong masonry industrial façade of the Elizabeth Street Pier and would also interrupt the “setting” of the building which is embodied in the relationship between the wharf building, the wide concrete platform and the water. It is vital that the view of the main gable end facing the city and much of the side returns of the building be as uncluttered as possible so that the robust character of the building can be appreciated. The panels although referred to as “clear" do infact read as a barrier, as do many reflective elements. Plastic sheeting is also prone to read as even more solid at night due to its reflective qualities and at all times as it become dirty and weathered.” Ms Naggs worked as a Senior Heritage Architect for the Sydney Harbour Foreshore Authority in 1999 and 2000. Ms Naggs stated that from her working experience in the Sydney Rocks area, the clear drop down sides such as those proposed by the applicant deteriorate, become cloudy and should be replaced on a monthly basis. Ms Naggs noted that drop down transparent panels are not allowed in other heritage precincts such as the Sydney Rocks area. All building or works within places of cultural significance must satisfy the criteria set out in clause 22.4.5 of the Scheme where they are not exempt from compliance. The criteria are as follows:  “Buildings or works” must complement and contribute to the cultural significance, character and appearance of the place and its setting; “Buildings or works” must be in compliance with the conservation strategy of an approved Conservation Plan, where required and/or provided;

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The location, bulk and appearance of “building or works” must not adversely affect the heritage values of any place of cultural significance; “Buildings or works” must not reduce the apparent authenticity of places of cultural significance by mimicking historic forms; “Buildings or works” may be recognisable as new but must not be individually prominent; The painting of previously unpainted surfaces is discouraged.

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Whilst Ms Naggs did not specifically refer to these criteria in her proof of evidence, the Tribunal is satisfied that her written and oral evidence given at the hearing addresses those criteria relevant to the current development namely those identified in the first and third dot points set out above. Ms Naggs referred to the definitions of cultural significance, setting and conservation in the Burra Charter 1999 Articles. In her opinion even if the clear panels remained in their original condition, they present as a barrier for pedestrians viewing the Pier building and clutter in the form of the screens and their associated infrastructure. Ms Naggs also referred to the reflective element of the screens from certain angles of light. Whilst the term “clutter” does not occur in the criteria referred to above, in Ms Naggs opinion it was an element of the proposal which detracted from the simple and clear lines and the setting of the Pier building. Ms Naggs opinion was maintained even taking account of the recent covered walk way addition and other infrastructure to the northern end of the Pier building. Mr Armstrong submitted that the criteria listed in clause 22.4.5 do not require that the building or works positively contribute to the cultural significance of the site. Rather, the issue for determination is whether the proposal detracts which is a question of balance in each case. Mr Armstrong argued that the significant alterations that have been approved to date had obviously met the criteria and were not seen to detract from the significance, appearance or character of the place. He contended that the proposed clear plastic sides which are not even attached to the main Pier building, should be similarly considered. TRIBUNAL FINDINGS

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However as the Tribunal has already noted the proposed development does not only consist of the addition of removable clear plastic sides to a simple umbrella structure. In the Tribunal‟s opinion, the existing form of the umbrella structure with its associated infrastructure including support beams, bracing, vertical elements, guttering and heating do not constitute ephemeral items of furniture. They are permanent in the sense that they remain in place until they are dismantled and removed and in that context they are as permanent as any building. The proposed addition of the clear sides with associated infrastructure constitute the construction and/or exterior alterations by the addition of walls to the building providing a weather proofing element.

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It was Ms Duckett‟s opinion that the proposal constitutes additions to ephemeral pieces of furniture.. In Ms Duckett‟s view the “furniture” does not obstruct the important architectural elements of the building. The Tribunal prefers the evidence of Ms Naggs who opined that the drop down panels would “have negative impact on the presentation of the heritage and architectural qualities of the Pier, in particular the ability to read the Pier as a simple industrial building with a robust masonry gable end, placed in a wide expanse of concrete decking strongly connected to the adjacent wharf moorings. The proposed drop down panels would create visual clutter and detract from the heritage significance of the Pier and the waterfront and the ability to interpret that significance” Ms Naggs said that “The drop panels have a negative impact on the minimalist approach which resulted in this project winning architecture and civic design awards.” Ms Naggs is well positioned to give such opinions being a qualified and practising Heritage Architect with a Batchelor of Architectural Degree from the University of Sydney and over 15 years experience in New South Wales, Tasmania and the UK. Ms Duckett, although a Town Planner with 17 years experience in Hobart including the development of heritage buildings has no specific qualifications with respect to heritage or architecture. Whilst Ms Naggs‟ evidence mostly centred on the view of the main gable end of the Pier building facing the city, she was also of the view that the whole building should remain as uncluttered as possible so that its robust character could be appreciated. Ms Naggs referred to the open space surrounding the building as an important element contributing to its setting and sense of place. The Tribunal is satisfied on the basis of Ms Naggs evidence that the proposal for drop down sides to the structures on the eastern side of the Pier building in the form proposed would detract from the building and its setting by presenting as an “additional element of clutter.” For the above reasons the Tribunal determines that the proposal does not comply with the requirements of Clause 22.4.5 of the Scheme in that it fails to complement and contribute to the cultural significance character and appearance of the place and its setting by its negative impact on the presentation of the heritage and architectural qualities of the Pier as outlined by Ms Naggs. Further, that the proposal would adversely affect the heritage values of the area by detracting from the heritage significance of the Pier and the waterfront. The Tribunal accordingly rejects the appeal on the basis that the proposal will adversely affect the cultural significance character or appearance of the heritage place and its setting and affirms the Authority‟s decision to refuse the application.

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The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within the next fourteen days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs. In the absence of any such application for an order for costs the order of the Tribunal is that each party bear its own costs.

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Dated 11th May 2006 R Nolan Member ACunningham Chairperson

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