Permit Appeal Number P26464

Spurling House (H0126), Permit Application P25759

38 Black Street, Brighton, Victoria

Heritage Council Permits Committee

Hearing – Monday 3 July, 2017

Decision of the Heritage Council

After considering all submissions received in relation to the permit appeal, and after conducting a hearing, pursuant to Section 76(4)(b) of the Heritage Act 1995, the Heritage Council has determined to confirm the decision of the Executive Director to refuse to issue a permit for the demolition of Spurling House, located at 38 Black Street, Brighton.

Heritage Council Permits Committee:

Juliette Halliday (Chair)

Jeffrey Robinson

Karen Murphy

Decision Date: 21 August 2017


Executive Director, Heritage Victoria (‘the Executive Director’)

Mr Terry Montebello of Maddocks Lawyers appeared and made verbal submissions representing the Executive Director. Mr Montebello was assisted by Ms Katerina Axiarlis, solicitor of the Department of Environment, Land, Water and Planning. Ms Janet Sullivan, Principal - Heritage Permits, and Mr Geoff Austin, Manager - Heritage Register and Permits, both of Heritage Victoria, were present and available to answer questions.

The Owner of the Place, Dr Damien Louis (‘the Appellant’)

The Appellant was represented by Mr Ian Pitt, QC and Special Counsel of Best Hooper Lawyers, who appeared and made verbal submissions. Mr Pitt called the following persons to give expert evidence at the hearing:

- Mr Peter Lovell of Lovell Chen Architects and Heritage Consultants.

- Mr Bryce Raworth of Bryce Raworth Pty Ltd Conservation and Design.

- Mr Joseph Stinear, of Opteon Property Group.

- Mr Brett Cole of Biosafety Pty Ltd.

- Mr Timothy Freshney of Well Known Homes.

- Mr David Hogg of Beauchamp Hogg Spano Consultants.

- Dr Heiki Neumeister-Kemp of Mycotec.

Attachment 1 contains a list of the documents that were tendered on behalf of the Executive Director and the Appellant, which have been taken into consideration by the Committee.

Brighton Residents for Urban Protection Inc. (‘BRUP’)

BRUP was represented by Ms Kristin Stegley. Ms Stegley appeared and made verbal submissions.

National Trust of Australia (Victoria) [‘the Trust’]

The Trust was represented by Ms Felicity Watson, who appeared and made verbal submissions.

Ms Susan Pickhaver

A written submission was received from Ms Susan Pickhaver, who did not attend the hearing or make verbal submissions.


The Place

1.  ‘Spurling House’ (‘the Place’) is a two-storey dwelling located at 38 Black Street, Brighton (‘the Subject Land’). The Place is included in the Victorian Heritage Register (‘the Register’) as a place of architectural and historical significance to the State of Victoria.

2.  The following paragraphs are taken from the Statement of Cultural Heritage Significance (‘Statement of Significance’) for the Place:

‘What is significant?

Spurling House, Brighton was built in 1889 for Phillis Spurling to a highly innovative design by Canadian-born, Sydney architect, John Horbury Hunt. It is the only known example of his work in Victoria. Originally known as Purno, Spurling House was built on a large block of land in the popular seaside village of Brighton, in close proximity to the Middle Brighton railway station which was constructed from 1882-87. Hunt's design of the comparatively small Spurling House introduced the Shingle style to Melbourne. This Arts and Crafts-inspired North American domestic architectural style used organic materials in a way which heightened their natural qualities, eschewed any applied decoration, used contrasting vertical, horizontal and diagonal lines to achieve compositional balance, and grouped functional elements for aesthetic effect. At the height of the boom in Melbourne, when the majority of houses were designed in a highly decorative Italianate style, the surprising design of Spurling House was exceptional. In his design of Spurling House, Hunt used simple, open planning and externally incorporated expanses of black stained shingles, bold timber bracketting and strongly modelled brick chimneys. The composition of the front facade is highly asymmetrical, with contrasting horizontal, vertical and diagonal lines providing balance. An off centre gable; a dominant plain brick chimney shaft which is offset from the gable apex; an offset recessed verandah and varying window opening sizes provide both contrast and balance to the composition. The stained shingles of the upper facade, corbelling of the chimneys and the projection of the upper floor beyond the lower floor add to the picturesque nature of the composition.

How is it significant?

Spurling House, Brighton is of architectural and historical significance to the State of Victoria.

Why is it significant?

Spurling House, Brighton is of architectural significance as the only known house designed by John Horbury Hunt in Victoria. It is one of twenty-two designed by this highly influential, Sydney-based architect. Spurling House, Brighton is of architectural significance as the first, and one of the most innovative, domestic buildings constructed in the later nineteenth century in Victoria in the Shingle style. As the first of seven houses designed by Hunt in the North American Shingle style, it introduced this picturesque style to Victoria. At a time when the often heavily ornamented, rendered architecture of the domestic boom style was popular in Victoria, Spurling House was highly innovative and unique. Spurling House, Brighton is of architectural significance as an influential design in the overall oeuvre of the Arts and Crafts style. Many concepts introduced at this house were integrated in the design of houses by architects from the 1890s and into the early twentieth century. Spurling House, Brighton is of historical significance as a large house built in the popular bayside suburb of Brighton, at a time when the suburb was expanding, aided by the advent of the Sandringham rail line through the suburb from 1878.

3.  The Place is also subject to a Heritage Overlay in the Bayside City Council Planning Scheme, HO78. No permit is required under the Heritage Overlay as the Place as a whole is included in the Register.

Permit Application

4.  A fire occurred at the Place on 30 October 2015. The fire was confined to the first floor gabled roof of the house, and smoke damage occurred in the first floor below and water damage from the firefighting efforts occurred to parts of the building including the ceilings and floors.

5.  On 26 October 2016 the Appellant applied to the Executive Director, Heritage Victoria for a permit for the ‘complete demolition’ of the Place under s 67(1) of the Heritage Act 1995 (‘the Application’). The Appellant gave the following description of the Application and the reasons for it:

‘Complete demolition as a result of a major fire and resultant contamination of the site including building materials and finishes together with damage to asbestos sheeting together with contaminated soil under and adjacent to the building. The contamination issues necessitate the complete removal of the entire building from a public health and safety perspective’.

6.  The Application was advertised in accordance with s 68 of the Heritage Act 1995 (‘the Act’) and ten (10) submissions, all of which opposed the demolition of the Place, were received under s 69 of the Act, and were considered by the Executive Director in accordance with s 73(1)(c) of the Act.

7.  This determination refers to the proposal for the full demolition of the Place as ‘the Proposed Works’.

Determination of the Executive Director

8.  On 3 February 2017 the Executive Director (pursuant to s 74(1)(c) of the Act) determined to refuse to issue a permit for the Proposed Works on the following grounds:

·  The demolition of Spurling House would result in the total and permanent loss of its cultural heritage significance.

·  The application fails to demonstrate that structural remediation and remediation of mould contamination are not possible.

·  The structural and mould contamination problems cited in the application as justifying demolition are considered to be attributable in a significant degree to the owner’s failure to implement measures that would have effectively mitigated the extent of such problems. Despite this, remediation is considered to be achievable and should have been explored as the first option.

The appeal against the permit refusal

9.  An appeal against the refusal to issue a permit under s 75(2)(a) of the Act was lodged with the Heritage Council by the Appellant on 2 March 2017 (‘the Permit Appeal’) on the following grounds:

1. Spurling House has lost its cultural heritage significance to a substantial degree.

2. Structural remediation and remediation of mould contamination would result in a loss of its cultural heritage significance rendering it a mere facsimile.

3. The Applicant has used her best endeavours to mitigate the consequences of the fire at Spurling House in the context of the Stop Orders issued by the Building Surveyor of the Bayside City Council and the health hazards present in the building.

4. All reasonable steps have been taken to determine whether remediation is reasonably achievable.

5. The Executive Director has not disclosed any qualified evidence relied on to rebut the evidence in the application regarding the constraints on effective structural and mould contamination remediation or the consequences for the heritage significance of the building.

6. A refusal of the application would cause undue financial hardship to the owner in relation to the place.

7. The Executive Director has not identified any evidence that remediation without substantial demolition is reasonably possible or that after remediation the building would be of material heritage significance.

8. The building and historic record is capable of adequate archival documentation.

10.  Persons who had lodged submissions under s 69 were subsequently notified that a hearing would be conducted and a hearing was scheduled for 3 May 2017.

Procedural matters

Request for an adjournment and Directions Hearing

11.  The Appellant requested an adjournment of the hearing, and following a directions hearing held on 19 April 2017 at which the Heritage Council Permits Committee (‘the Committee’) considered submissions made by parties relating to the Appellant’s request for an adjournment, and other procedural matters, the Committee determined to grant the request and adjourned the hearing to Monday 3 July 2017.

Site Inspection and other matters

12.  Members of the Committee inspected the Place on Friday 30 June 2017. Access to the Place was facilitated by the Appellant, as requested by the Committee, and was led by Mr Krishnan of EnviroProtect Pty. Ltd. (the Heritage Council’s Occupational Health and Safety Contractor regarding access to the Place). The Committee was accompanied by the Heritage Council Hearings Coordinator. No submissions were sought or received at the time of the site inspection.

13.  The Committee has considered all mandatory and some discretionary considerations in accordance with s 73 of the Act (see Attachment 2). The Committee has considered the issue of whether there are any relevant matters relating to the protection and conservation of the Place under s 73(1)(f) of the Act, and because the Proposed Works are for the demolition of the Place, it has not further addressed any matters relating to the protection and conservation of the Place.

14.  The Committee’s consideration of the appeal is a de novo merits hearing, and the Committee ‘stands in the shoes’ of the Executive Director in exercising its powers under s 76(4) of the Act.

15.  With respect to the mandatory considerations under s 73(1)(a), when considering any effect the Proposed Works may have on the Place, the Committee must consider their impact on the cultural heritage significance of the Place to the State of Victoria.

16.  With respect to other considerations under s 73(1A)(a), some submissions and evidence referred to planning scheme considerations that relate to the Place. The Committee has not found it necessary to refer to local planning considerations in making its determination and considers that it can make its decision independent of the local planning considerations relating to the Place. The Committee notes that the material it has considered in making its determination relates only to the Permit Appeal.


17.  The following issues sections are not intended to be a complete record of submissions that were made to, or evidence that was heard by the Committee. A summary of the relevant evidence and the position taken by parties in relation to key issues is included, followed by a discussion and the conclusions reached by the Committee on each issue.

Summary of issues

18.  The principal issues before the Committee are: the extent to which the Proposed Works, if approved, would affect the cultural heritage significance of the Place; and, the extent to which a refusal to issue a permit for the Proposed Works would affect the reasonable or economic use of the Place, or cause undue financial hardship to the owner in relation to the Place. The parties disagreed on these issues with a particular focus on the condition of the Place and whether or not it can or should be remediated.

Mandatory Considerations

s.73(1)(a) the extent to which the application, if approved, would affect the cultural heritage significance of the registered place

Submissions and evidence

19.  The Executive Director submitted that a permit for the Proposed Works should be refused because the demolition of the Place would adversely affect the cultural heritage significance of the Place by causing the total and permanent loss of its cultural heritage significance, and that elements of the Place can be salvaged, and either restored or reconstructed, based on the evidence (including the Appellant’s evidence). The submissions of the Executive Director were that the Appellant has adopted demolition as their preferred course of action (based in particular on the advice of Dr Jones) even where the advice is that the building need not be demolished (at least not all of it) from a structural perspective. The Executive Director also submitted that the Appellant relies on mould as the basis for demolition of the building, where, after experts (particularly Dr Jones) have highlighted the issue of mould, no action was taken to mitigate the damage caused by mould.

20.  The Executive Director further submitted that the evidence does not permit a finding that the building cannot be restored, particularly the external components of the building acknowledging that much (although not all), of the internal elements will be lost due to the need to remove wall and floor linings. The Executive Director submitted that the Appellant has not established that the building is beyond remediation, and that the reports of Mr Lancashire and Mr Hogg confirm that structural remediation of the building is possible.