Kew Cottages: Objection to Heritage Permit Application P22396 for the construction of a residential building providing 26 apartments over 5 levels on public open space.

Objection to Heritage Permit Application P22396 (Copy 3 Feb 2015)


Mr. Tim SmithThe Executive Director,Heritage Victoria
L15, 1 Spring Street

Dear Sir,

I enclose the Kew Cottages Coalition Objection to the above permit application by the State Government’s Kew Cottages Development partner Walker Corporation.

Please do not hesitate to let me know if you have any queries.

Yours sincerely,

Brian Walsh

Brian Walsh
Kew Cottages Coalition



Objection to Heritage Permit Application P22396

1. Introduction.

The Kew Cottages Coalition submits:

a) That a Heritage Permit with Conditions (as detailed below) should only be granted for the demolition of the existing Walker Corporation Office Building on the site;

b) That Walkers’ application for the grant of a Stage 8 Permit to remove three trees and construct the proposed 5 storey apartment building (26 dwellings) should be refused on the grounds that the residential apartment building proposal has no merit because it was refused a Planning Permit by the Minister for Planning on 21 October 2014.

The Minister’s reasons for refusing to grant Walker Corporation a Planning Permit included:

1. The proposed residential apartment building is not considered to be in accordance with the approved Walker Development Plan – Kew (05).

2. The proposed residential apartment building will be located in an area proposed for public open space and will create a physical obstruction to the open space link with Yarra Bend Park.

3. The height and the scale of the proposed building will result in visual bulk to the nearest residents in Stage 8…

We respectfully suggest, therefore, that for Heritage Victoria to even consider issuing a Heritage Permit for the construction of the proposed apartment building in these circumstances can only serve to discredit the Heritage Permit approval process, and to bring the Heritage Act into disrepute.

Secondly we submit that:

If we are wrong in our assertion that the proposal has no merit because it has been refused Planning Permit, and if the Heritage Act actually requires Heritage Victoria to still consider applications to construct buildings that have already been refused a Planning Permit, then we respectfully request you address the following potential impacts of the proposed works on the cultural heritage significance of the place:

a) Unnecessary and unreasonable damage to the Heritage listed Trees, Landscape, and Lamps of the Main Drive and Oak Walk entrance to Willsmere;

b) Significant impact on the historic fabric of the Willsmere and Kew Cottages skyline as viewed from the CBD, the Yarra Ranges, Yarra Bend Park, and the surrounding environment.

Furthermore, we respectfully request that you note that the applicant has neither submitted a case arguing that refusal would affect the reasonable or economic use of the registered place, nor has the applicant submitted any explanation for the long standing delay in the restoration and reuse of the three remaining Heritage listed buildings on the site.

2. The Application.

2.1 Demolition of Walker’s Office Building

The demolition of Walker’s Office Building. Demolition of the building is both necessary and desirable in order to help restore the heritage fabric of the site, and create the required public open space in accordance with Heritage Victoria Permit Policy, and the Kew Cottages Walker Development Plan, as approved by the Minister for Planning.

Kew Cottages Public Open Space (Minimum 30% includes all of Stage 8 as shown in green on the Walker Development Plan Kew, as amended Jun 2010)

2.2 Permit Conditions.

We request that Heritage Victoria impose Conditions on any Permit for the above works to ensure that appropriate restoration and replacement of the Heritage landscape and trees on this part of the site.

The Conditions should ensure restoration in keeping with the rest of Main Drive and Oak Walk, as set out in the Heritage Victoria Registration and endorsed Tree Protection Plan, including inter alia:

".. alternating Moreton Bay Figs, and elms along Main Drive.." plus in particular the replacement of Heritage Tree 160 (See Google Maps Aerial extract below )

​Heritage Tree 160 before it was cut down without a Permit in 2014

As Heritage Victoria is aware Tree 160 (a fine specimen Brachychiton Populineum) was located within the footprint of the proposed residential apartment building up until its unauthorised removal in April 2014, ie: shortly before the developer lodged their application for a Planning Permit for the Residential Apartment Building on 18 June 2014.

We understand that after the tree’s unauthorised removal, the developer subsequently made a number of undertaking to Heritage Victoria, including an undertaking to replace Tree 160 with a sapling in the same locations as the original tree shown on the Heritage Tree Protection Plan by the end of June 2014. (see extract of Tree Protection Plan below)

Heritage Tree 160, however, has still not been replaced, and we, therefore, request that Heritage Victoria now use all of its enforcement powers to ensure a full size replacement specimen Brachychiton Populineum, rather than the originally proposed small sapling, is planted by 30 Jun 2015 and maintained for at least three years by the developer in accordance with a tree management plan approved by Heritage Victoria.

2.3 Why Construction of the proposed apartment blocks should be refused.

2.3.1 Summary of Grounds for Refusal

A) The Minister for Planning has refused to grant a Planning Permit for the proposed residential apartment building; and in addition to the grounds cited by the Minister we submit that even if an appeal against the Minister’s decision is successful, then:

B) The proposed location of the apartment building will still be in breach of both Condition 8 and Condition 9 of Heritage Permit P9639;

C) The height and scale of the proposed building will still have a significant adverse heritage impact on the fabric of the historic Willsmere and Kew Cottages skyline as viewed from the CBD, the Yarra Ranges, Yarra Bend Park, and the surrounding environment;

D) The construction of the proposed building will result in significant, unnecessary, and unreasonable damage to the Heritage listed Trees, Landscape, and Lamps of the Main Drive and Oak Walk entrance to the former Willsmere Hospital.

2.3.2 Failure to comply with Condition 8 of Heritage Permit P9639 (Breach of UDF 26 metres Buffer Zone.)

Condition 8 of Heritage Permit P9639 2005 is as follows:

The Urban Design Framework (KRS UDF Oct 2003) buffer zone referred to in Condition 8 extends for the full length of Main Drive along both the south and west boundary of Kew Cottages as shown below in the Building envelopes and Setbacks Plan below:

26m Setback Buffer Zone for buildings from south and west boundary of Kew Cottages (KRS)

​Ref: Boroondara Planning Scheme, Amendment C53, KRS Schedule 3 Development Plan Overlay. 11Nov 2003

Heritage Permit P9639 Condition 8 clearly states that "No part of the proposed apartment building in the south western part of the site located adjacent to the former Willsmere Hospital is to be built within 26 metre buffer zone set out in the Urban Design Framework October 2003…"

However, according to the drawings provided in the application it would appear that more than 50% of the proposed apartment building will actually be built within the 26 metres buffer zone.

Further examination of the drawings indicates that due to the closeness of Oak Walk there is in fact no room to move the proposed apartment building outside the 26 metre buffer zone without severely damaging the Heritage listed Trees and Lamps on Oak Walk.

We submit, therefore, that the application proposes a serious breach of Condition 8, that is totally unacceptable from a heritage perspective, and should be rejected.

2.3.3 Failure to comply with Condition 8 of Heritage Permit P9639 (Breach of UDF RL 79.8m height limit.)

Permit P9639 Condition 8 clearly sets out a very specific height limit of RL 79.8m (ie: 79.8m above Australian Height Datum), that is to be adhered to in accordance with a specific drawing 00009976/SD,00/4/01 dated 9/09/2005.

However, the applicant has chosen simply not to comply with this Condition, choosing instead to merely state, without explaining why, that the new building will be in a different location, and that the height "will not exceed RL 80.00. (HIS p.11)

We have three problems with a proposed breach of Condition of this nature:

Firstly, if Heritage Victoria had thought that RL 80.00m was the appropriate limit in 2005, then they would have said so;

Secondly, if the applicant believes the difference between 79.8m and 80.0m is insignificant, then why did they choose not to explain why ?

Thirdly,to suggest that the regulator (HV) should simply approve an overall building height of RL 80.00m , just because it is "largely compliant" with the overall building height of RL 79.80m is about as sensible we think as suggesting a policeman encourage a driver to drive his 3.5m high tanker under a bridge with a 3.2m height limit, just because the tanker is "largely compliant" with the height limit !

The bottom line would appear to be that the proposed height is still a very significant issue because according to the Design Response drawings submitted (Max Architects Site Plan AR08-01.07 A. Note: L) the applicant is currently proposing that

"The upper level penthouse apartments each provide sweeping views of the CBD skyline, Yarra Ranges, and surrounding environment."

In other words the proposed penthouse apartments will be designed to protrude far enough above the Willsmere skyline to see and be seen above the Main Drive entrance to the former Hospital (see below.)

We submit, therefore, that the application is proposing a second breach of Condition 8, that is also totally unacceptable from a heritage perspective, and should be rejected.

2.3.4 Failure to comply with Condition 9 of Heritage Permit P9639 (Breach of landscape treatment of public open space, and re-instatement of trees including Tree 160.)

Condition 9 states that:

As Heritage Victoria is aware, for the past 12 years, the location of the proposed apartments has been earmarked as public open space on all endorsed plans for the site.. The landscape was named the ‘Yarra Grove’ parkland in the 2003 Urban Design Framework, and identified as a historic gateway to Yarra Bend Park and the former Willsmere Hospital in both the UDF and Masterplan for the site.

In 2014, we were given to understand that a few weeks prior to the applicant seeking planning approval for thjs apartment building, a heritage listed tree (Tree 160) was removed by contractors from within the footprint of the proposed building.

Heritage Victoria advised us that they had not authorised the removal of Tree 160.

Subsequently, we understand the developer gave Heritage Victoria an undertaking to plant a replacement tree in situ by 30 June 2014.

However, the application to build 26 apartments on the land appears to have not only chosen to simply ignore, without explanation, the endorsed P9639 Heritage Landscape Management and Tree Protection Plans, but also to ignore the developer’s undertaking to re-instate Tree 160 within the footprint of the proposed apartments.

In our submission the application is therefore proposing a serious breach of Heritage Condition 9, and should be refused.

2.3.5. Impact on Historic Views

We submit that there will be a significant heritage impact to both the Kew Cottages site and its landscaped settings, and to the prominence of the adjacent former Willsmere Hospital building.

Adverse Impact on Views from the Eastern suburbs to Willsmere.

This photo montage was prepared in 2005 with the Willsmere Heritage Architect at the time, Mr. Peter Kerr to demonstrate the significant heritage impact of Walker’s originally proposed apartment buildings on the Willsmere and Kew Cottages skyline.

The current 2014 proposal for two residential apartment blocks has the same roof line limit as the above i.e.: RL 80.00 metres above AHD (Australian Height Datum)

As a consequence, allowing for changes in textures, colour, and roof style, we believe the above montage is also a fair and accurate estimate of the severe adverse heritage impact of the currently proposed apartment blocks on the skyline.

Current Views from the West (Spring Street, CBD) to the Willsmere skyline

Owing to the height, mass, location, and bulk of the proposed aoartmnents, we submit that the adverse heritage impact on the prominent historic view of the Willsmere from the west can be deduced to be similar to that from the east (see Peter Kerr’s photo montage of eastern view).

However, should Heritage Victoria need further and better particulars on the adverse heritage impact of the proposed apartments on views of the Willsmere skyline from around Melbourne, then we recommend the developer be required to provide detailed independent visual modelling and overlays to Heritage Victoria’s requirements.

We understand that the developer in 2014 commissioned photographs to be taken from a cherry picker platform elevated to the proposed height of the penthouses on the site, and we, therefore, request that Heritage Victoria have these photographs made publicly available in order to help promote informed public comment and a more transparent application process.

3. Significant Errors, Omissions, and Contradictions in the Application.

The supporting documents presented with the Application appear to include a number of significant errors, omissions, and contradictions, and should not, therefore, we submit be relied on by Heritage Victoria.

3.1 Claim 1: Minimal Impact on Willsmere skyline (HIS p. 11)

We believe that Lovell and Chen’s claim in their Heritage Impact Statement (Oct 2014) that:

The heritage impact of the apartment building on the prominence, presentation and setting of the former Willsmere Hospital buildings will be minimal. (HIS p.11)

is simply wrong.

Lovell Chen appear to have got it wrong because

they say that:

When compared with the originally proposed apartment buildings, the siting of the currently proposed apartment building is further south, and is also located further to the east from Willsmere. In addition, the currently proposed apartment building is largely compliant with the overall building height indicated in Condition 8, whereby the whole building, including roof top plant/services, will not exceed RL 80.00. (HIS P.11)

Part of the problem with their analysis may be that they are just being too economical with the truth to make much sense.

Firstly, they claim that the new apartments will be further to the east from Willsmere, than those proposed in 2005. However, that claim is not supported by the plan they have provided on the same page (See below HIS Fig.10, p11).

According to the above plan most of the flats proposed in 2005 would have been located further to the east from Willsmere than the new flats.

Secondly, Lovell Chen fail to address the adverse heritage impact resulting from all the proposed penthouses being located, according to the plans, above the Willsmere skyline.

3.2 Claim 2: No adverse heritage impact on the landscape (HIS p.12)

We say that Lovell Chen’s claim that:

is quite wrong

Lovell Chen’s Heritage Impact Statement (HIS) simply fails to address or even acknowledge the fact that the new location for the proposed apartments is slap bang in the middle of land earmarked as public open space on all the endorsed plans for the site.

3.3 Claim 3: Tree 157… has no historical significance, being approximately 40 years of age… (Arborist Assessment p.5)

We believe that the arborist, Rob Galbraith, is wrong to dismiss the heritage value of Tree 157 on the basis that it is "approximately 40 years of age, is not indigenous to the area and will have been planted."

On the contrary Tree 157 is significant precisely because it was planted in the mid 1970’s at the time of the Minus Children’s Appeal.

As so few heritage buildings remain on the site, all the remaining heritage listed trees and landscape play a very important part in helping interpret and understand the various stages of Kew Cottages history since it was established in 1887 as the first Government institution for the intellectually disabled in Australia .

Tree’s such as Tree 157 planted in the mid 1970’s, for example, are a powerful reminder of the very beneficial social, educational, health, and horticultural changes that followed the Minus Children’s Appeal in 1975. Despite their historical importance, buildings constructed with the public funds raised from the Appeal, such as the Perkin Art Centre, the Hamer Recreation Centre, and the Smorgon Medical and Dental Centre have all been demolished to make way for of the current Walker development, and only a limited number of the trees planted at the time, such as Tree 157, still remain.

As quoted in the HIS in Heritage Victoria’ permit policy states: "Future works and development should ensure the protection of the designed landscape and signifiant trees." (HIS p.8)

We recommend, therefore, that Tree 157 must continue to receive Heritage Victoria’s protection.

3.4 Claim 4: Trees to be Retained All trees shown to be retained on the plans can be successfully retained under this proposal. (Arborist Assessment p.5)

The problems with this claim in the application is that the plans referred to, are simply the wrong plans !

For example none of the documents or plans make any reference to last years unauthorised removal of Heritage Tree 160 from within the footprint of the proposed apartments. Nor is there any reference to the developer’s failure to honour an undertaking that we understand they gave Heritage Victoria to replace Tree 160 in situ by 30 June 2014.

This is a significant error because it goes to the question of the good faith of the developer, their contractors, and their heritage consultants.

In our submission Heritage Listed Tree 160 is clearly shown on the Heritage Victoria Kew Cottages Tree Protection Plan, and Tree 160 should, therefore, be included in not only the list of "Trees Proposed to be Removed" in the Application, but also all the relevant supporting plans and documents provided , including the Heritage Impact Statement (Lovell Chen Oct’14) and Arborist Assessment (Galbraith and Associates Nov’14).

Similarly, a copy of the Heritage Victoria endorsed Tree Protection Plan for the site appears to have been omitted from the Application, although ALL the ‘ Max Architects Site Plans’ provided say that all their drawings " ..shall be read in conjunction with the Tree Protection Plan’ .

In our submission the Applicant should, therefore, be requested to first explain the above omissions, and then, if necessary, to re-draw, resubmit, and re-advertise their application with appropriate corrections so that Heritage Victoria and the public has a true and accurate and transparent presentation of the proposal and potential heritage impacts.

3.5 Claim 5: The assessed architectural, historic, aesthetic, scientific (horticultural) and social significance of the former Kew Cottages site.. will be retained. (HIS p.12)

Given the errors and omissions listed above , in our respectful submission, this claim is simply nonsense.

4. Conclusion

This appears to be an opportunistic application prepared with scant regard for either the protection of the specific heritage values of the site, or the need for full and frank disclosure in the documentation provided.

The proposed apartment building is not in accordance with Heritage Permit P9639, and will have an unacceptable adverse impact on the architectural, historic, scientific, (horticultural) and social significance of the Kew Cottages site.

We respectfully request, therefore, that the application to construct the apartment building be refused.

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s