Boroondara City Council v 1045 Burke Road Pty Ltd
[2014] VSC 127
•27 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. S CI 2013 3848
| BOROONDARA CITY COUNCIL | Applicant |
| v | |
| 1045 BURKE ROAD PTY LTD (ACN 146 342 789) | Respondent |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2013 | |
DATE OF JUDGMENT: | 27 March 2014 | |
CASE MAY BE CITED AS: | Boroondara City Council v 1045 Burke Road Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 127 | |
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PLANNING AND ENVIRONMENT – Tribunal granted permit allowing for demolition of a ‘significant’ heritage building and the construction of a replacement building on land subject to a Heritage Overlay – Whether Tribunal restricted to considerations of heritage conservation when granting a permit to demolish required by the Heritage Overlay – Whether Tribunal made a vitiating error by considering broader planning policy issues relating to the replacement building – No error by Tribunal – Leave to appeal granted – Appeal dismissed – Planning and Environment Act1987 (Vic), ss 4, 60, 84B - National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VR 592 – Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426 - Rozen v Macedon Ranges Shire Council (2010) 181 LGERA 370; [2010] VSC 583.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Quigley SC with | Maddocks |
| Mr J Pizer SC | ||
| For the Respondent | Mr J Gobbo QC with Ms S Brennan SC | Minter Ellison |
HER HONOUR:
Introduction
The applicant, Boroondara City Council, seeks leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 28 June 2013 in which the Tribunal granted a permit for land at 1045 Burke Road, Hawthorn East allowing for:
(a)the demolition of an existing building on land affected by a heritage overlay;
(b)construction of a four storey building above a basement car park for 33 dwellings;
(c)alteration of access to a road in a Road Zone; category 1 (Rathmines Road);
(d)the construction of a fence; and
(e)a reduction in the number of bicycle spaces required for dwelling visitors.[1]
[1]In accordance with endorsed plans and subject to conditions.
The building targeted for demolition is a house known as ‘Arden’. It is a significant heritage place under the Boroondara Planning Scheme, and the southern part of the land on which the house is situated is subject to a site specific Heritage Overlay. Arden is to be replaced by a very modern apartment building.
The Heritage Overlay was the only permit trigger for the proposed demolition of Arden. However, there were a number of other controls containing permit requirements for the proposed replacement building, including to construct the new building (cls 32.01-4 and 43.01-1), to create or alter access to a Road Zone (cl 52.29) and to reduce the required number of bicycle spaces (cl 52.34).
The Tribunal held that, in deciding whether the proposed demolition of Arden was acceptable or justified, it was not limited to considering matters pertaining to heritage conservation policy. It held that the exercise of its discretion in relation to demolition required reference to be made to all relevant considerations, ‘including planning policy for urban consolidation, housing diversity, sustainable development and urban design’[2] , which were relevant to assessing the replacement building.
[2]Booroondara City Council v 1045 Burke Road Pty Ltd [2013] VCAT 1, [34] (‘Reasons’).
The Council seeks leave to appeal from the Tribunal’s order on the following question of law:
Where:
(a)a person proposes to demolish the buildings on land covered by a Heritage Overlay in the Boroondara Planning Scheme;
(b)the person needs a planning permit to demolish those buildings only by reason of the Heritage Overlay; and
(c)other aspects of the proposal (such as the construction of new buildings) also require planning permission -
is the responsible authority (or the Victorian Civil and Administrative Tribunal on review) – when determining whether to exercise its discretion to allow the demolition of the heritage buildings – only entitled to take into account considerations relating to Heritage Conservation Policy?
The sole question of law sought to be agitated on appeal is therefore whether the Council (or the Tribunal on review), when deciding whether to exercise the discretion to allow the demolition of Arden, was only entitled to take into account considerations relating to heritage conservation policy.
The Council submits that the Tribunal made a vitiating error in exercising its discretion to permit the demolition of Arden by concluding that it was not limited to consideration of matters relating to heritage conservation policy and was entitled to have regard to broader planning policy issues. The Council contends that, having concluded that the demolition of Arden was not justified in terms of purely heritage considerations, the Tribunal erred by taking into account irrelevant considerations such as urban consolidation, housing diversity, sustainable development and urban design.
The Planning Scheme
The schedule to the Heritage Overlay of the Boroondara Planning Scheme identifies Arden as a Heritage Place (HO20). As a result, by reason of cl 43.01-1, a planning permit is required for its demolition. A permit is also required under the Heritage Overlay to construct a building or construct or carry out works. Clause 43.01-1 therefore contains a permit trigger for both demolition and new construction.
The purpose of the Heritage Overlay is set out in cl 43.01 of the Planning Scheme as follows:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To conserve and enhance heritage places of natural or cultural significance.
To conserve and embrace those elements which contribute to the significance of heritage places.
To ensure that development does not adversely affect the significance of heritage places.
To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.
The decision guidelines under the Heritage Overlay are set out in cl 43.01-4. Relevantly, they are as follows:
Before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority must consider, as appropriate:
·The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
·The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
·Any applicable statement of significance, heritage study and any applicable conservation policies.
·Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
·Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
·Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
·Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
...
The decision guidelines in cl 65.01 are also applicable, including the requirement to consider, as appropriate, the State and Local Policy Frameworks and the orderly planning of the area.
The local heritage policy is found in cl 22.05. The objectives of the policy in cl 22.05-2 include the following:
·To encourage the retention and conservation of all ‘significant’ or ‘contributory’ heritage places in the Heritage Overlay.
·To consider the cultural heritage significance described in the statement of significance for any heritage place as part of the design process of any proposal and when making decisions about proposed buildings and works associated with that place.
·To ensure that works, including conservation, alterations, additions and new development, respect the cultural heritage significance of the heritage place.
…
·To ensure that, when determining or when considering issues of bulk, form and appearance of additions or new development, the evaluation is based on the characteristics of the significant or contributory components of the fabric of the heritage place, rather than any non-contributory elements that may exist in the area.
·To promote urban and architectural design which clearly and positively supports the ongoing significance of heritage places.
There is a specific policy in cl 22.05-3 for demolition. That policy, relevantly, is to:
·Retain ‘significant’ or ‘contributory’ heritage places and not normally allow for their total demolition.
·Permit partial demolition of ‘significant’ or ‘contributory’ heritage places for the purpose of additions and alterations if the additions and alterations will not adversely affect the cultural heritage significance of the place and the proposed addition or alteration is in accordance with the provisions of this policy.
·Permit partial demolition to remove non-original and non-contributory additions to heritage places in line with the conservation provisions of this policy.
·Consider the following, as appropriate, before determining an application for demolition of ‘significant’ or ‘contributory’ heritage places or parts of ‘significant’ or ‘contributory’ heritage places:
·The cultural heritage significance of the heritage place, and, when located in a heritage precinct, the contribution of the place to the significance of the precinct;
·Whether the demolition or removal of the entire heritage place or any part of the place will adversely affect cultural heritage significance;
·Whether the demolition or removal contributes to the long-term conservation of the heritage place; and
·Whether the heritage place is structurally unsound. The poor condition of a heritage place should not in itself, be a reason for permitting demolition of ‘significant’ or ‘contributory’ heritage places.
·Require an application for a new building or works to accompany a demolition application. The demolition or removal of any heritage place or part of a heritage place will not normally be approved until a replacement building or development is approved.
Whether a building or place is ‘significant’ or ‘contributory’ depends on its grading in the Hawthorn Heritage Study 1993. Clause 22.05-6 provides that ‘significant’ heritage places include places graded A, B and C by the 1993 Study. Arden was graded B in the 1993 Study and is therefore a significant heritage place under the Planning Scheme.
State policy in relation to heritage protection or conservation is set out in cl 15.03 of the Boroondara Planning Scheme, which seeks to ensure the conservation of places of heritage significance. Related strategies are to provide for the conservation and enhancement of those places that are of aesthetic, archaeological, architectural, cultural, scientific, or social significance, and to retain those elements that contribute to the importance of the heritage place.
The Tribunal’s Reasons
The Council submitted that the demolition decision could only be made by reference to the cultural heritage significance of the heritage place. That is, the Council submitted that the decision to demolish Arden could only be made in consideration of whether demolishing Arden would adversely affect the significance of the heritage place of which Arden was part.
The Tribunal acknowledged the principle that a discretion must be exercised in accordance with the purpose for which it has been conferred (sometimes referred to as ‘the National Trust principle’),[3] and that matters which are extraneous to the exercise of discretion must not be taken into account. However, it noted that the principle was established in cases where there was a single permit trigger and a single discretion to be exercised. If the Heritage Overlay had been the only permit trigger, the Tribunal’s discretion would have been confined to heritage considerations. However, where a proposal involves multiple permit triggers, the planning considerations relevant to all of the triggers must be taken into account in making the decision to grant or refuse a permit for the proposal.[4] In this context, the Tribunal said:
Clause 65 requires the responsible authority (and this Tribunal upon review) to ‘decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines’ of that clause. A proposal may include multiple permit requirements and the test of acceptable outcomes requires consideration of the proposal overall. That means that the full suite of planning policy relevant to the proposal must be taken into account.[5]
[3]National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VR 592.
[4]Reasons [26].
[5]Ibid [28].
The Tribunal went on to consider application to demolish Arden by reference to heritage policy, including the relevant heritage study and statement of significance. It concluded that the demolition of Arden would mean the loss of a ‘significant’ building in circumstances where the policy in cl 22.05-3 was adamant that such buildings should be retained.[6] As the land was subject to an individual Heritage Overlay, it was axiomatic that demolition of the existing building would adversely affect the significance of the Heritage Place. If the building were demolished, the reason for the Heritage Overlay would be negated.[7]
[6]This was not a case where the applicant justified demolition on the basis that it would contribute to the long-term conservation of the heritage place or because the heritage place was structurally unsound.
[7]Reasons [69].
However, the Tribunal recognised that it was required to exercise a discretion regarding demolition and that, while the policy in cl 22.05-3 was strongly worded against demolition, it could not be a proscription that determined an outcome.[8] The Tribunal said:
Ultimately, we consider that the building has a level of significance such that demolition is not justified in terms of purely heritage considerations. Nevertheless, demolition might be justified when the loss of a representative example of a type of building is balanced against other objectives sought by the planning scheme. The key issue we must determine is how that balance is struck in this instance. We discuss that issue under a later heading.[9]
[8]Ibid [70].
[9]Ibid [71].
The Tribunal therefore sought to balance competing objectives in accordance with cl 10.04 of the Planning Scheme.[10] It accepted the respondent’s argument that ‘[o]nce the door is open to allow other considerations apart from heritage, then anything that is relevant can be considered. They include the “big picture”, including overall orderly planning and encouraging development that creates a worthy legacy for the future as sought by cl 15.03-1’.[11]
[10]Ibid [115].
[11]Ibid [129].
The Tribunal observed that if Arden was of higher significance, a strategic planning argument might not be enough to justify its demolition, but the loss of a building with moderate significance could be justified.[12]
[12]Ibid [133].
The Tribunal concluded:
We have stated that planning decision making has a focus on the longer term future with the aim that decisions taken today result in preferable long-term outcomes. In this case we must balance:
ithe significance of the heritage place and the consequences of the decision for that significance;
iithe strategic potential of the site and its capacity to contribute towards the achievement of longer term planning objectives;
iiithe present amenity of the site and the question of how that amenity may be managed in the future;
ivthe excellence of the architecture and its future potential to positively contribute to the amenity and character of the land and its environs and perhaps even to the broader heritage values of the area; and
vthe site responsiveness of the proposed building and the degree to which it successfully manages its interfaces with adjoining and adjacent buildings and public realm.
We have decided that while a decision to demolish the dwelling and its fence results in the loss of the significance of the place (HO20), it is the loss of a building of modest significance with no wider implications for the preservation of heritage values in the municipality. We are therefore of the opinion that this adverse outcome is outweighed by the proposal before us having regard to its strategic context, excellent architecture and the site responsiveness of its design.[13]
[13]Ibid [136]-[137].
Submissions
The Council submits that where there are multiple permit triggers for a particular proposal, an application for a permit - whilst singular in form – comprises a series of applications with respect to particular building controls. Consistently with the decision in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal,[14] applications relating to each of the relevant controls must be the subject of individual determination. If a decision is made to grant a permit, the decision represents ‘a discrete decision favourable to the applicant in respect of each of those building controls which required [the] grant of a permit’.[15]
[14]Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426 (‘Sweetvale’).
[15]Ibid [60].
The Council submits further that, as there must be an individual or discrete determination in respect of each control, in making the individual or discrete determination the considerations relevant to that determination must be identified in accordance with the National Trust principle. That being so, it is wrong to conclude that the pool of relevant considerations for one control (such as heritage considerations) must automatically merge with the pools of considerations that are relevant to other aspects of the proposal (such as urban consolidation, housing diversity, sustainable development and urban design).
The Council advanced three propositions that is says are applicable where, as here, the need for a permit is triggered by a planning scheme control imposed for a specific purpose:
(a)First, a decision maker cannot exercise the discretion (to grant or to refuse to grant a permit) to regulate an aspect of the proposed development that is unrelated to the control that triggered the need for the permit in the first place;[16]
(b)Secondly, in exercising that discretion, the decision maker may only consider matters that directly relate to the purpose of that control, and matters that do not directly relate to the purpose of that control are properly characterised as ‘irrelevant considerations’; and
(c)Thirdly, apparently broad provisions – such as ss 4, 60 and 84D of the Planning and Environment Act 1987 (‘PE Act’), the State and local policy provisions of the Planning Scheme, and cl 65 of the Planning Scheme – do not expand the scope of relevant considerations, as they are confined to implementing the purpose for which the discretion was conferred.
[16]See, for example, Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VSC 528, [9].
The Council therefore submitted that if the only permit trigger for the proposed development was under the Heritage Overlay (cl 43.01), the Tribunal could only consider matters that directly related to the purpose of the Heritage Overlay. That purpose was primarily to be ascertained from the words of the control itself.[17] The words used in cl 43.01, the purpose of Heritage Overlay, and the statements of State and local policy, made it clear that the Tribunal – when considering whether to grant a permit to demolish a heritage building – would be confined to considering heritage-related matters, and would not be permitted to have regard to matters such as urban consolidation, housing diversity, sustainable development and urban design.
[17]Although it was also permissible to have regard to other parts of the Planning Scheme, including policy provisions, in order to ascertain the context in which the discretion had been provided for and the possible basis of the discretionary provision: White Ash v Frankston CC [2004] VCAT 2170, [7], per Morris P.
According to the Council, the same logic must apply where there are multiple permit triggers, because there must be an individual or discrete determination in respect of each control. The Tribunal is not permitted to have regard to extraneous matters that might be relevant to other controls, but are not relevant to the control in question.
The Council submits that this limitation is particularly apposite where the proposal involves the distinct step of demolition before the construction of a new building. As a matter of logic, the first issue to be determined in such a case is whether the demolition should be permitted, and this issue is properly to be treated as a separate or threshold issue. Either the demolition of the building is justified by reference to the considerations that directly relate to the purpose of the control that has triggered the need for a demolition permit or it is not. If the demolition is not justified by reference to the relevant (heritage) considerations, no permit should be granted. If the demolition is justified by reference to those considerations, a permit to demolish should only be granted if the new building works were also justified by reference to the considerations that directly relate to the purpose of the controls that triggered the need for a permit for those works.
As a result, so the Council contends, the responsible authority (or the Tribunal standing in the shoes of the responsible authority) may only have regard to heritage considerations when determining whether to exercise the discretion to allow the demolition. This is so irrespective of whether a permit is required for new building works.
The respondent does not disagree with the proposition that where there is only one permit trigger, the relevant considerations for the decision maker are to be identified by reference to the purpose of the discretion as ascertained from the control. It is the respondent’s submission, however, that where a proposal has multiple permit triggers, the planning considerations relevant to all of the permit triggers must be taken into account in making the decision whether or not to grant a planning permit. Even if an individual determination must be made in respect of each control, in deciding whether to grant a permit for the development, the responsible authority must consider the matter overall, as well as or in the course of considering the individual permissions which the permit applicant is required to obtain. However the decision-making process in relation to the individual permit triggers is characterised, the responsible authority and the Tribunal on review are entitled to have regard to the full range of planning considerations which relevantly arise under all the permit triggers which require a decision.
The respondent submits further that although the act of demolition is a precursor to any redevelopment of the site, there is nothing in the PE Act or the Boroondara Planning Scheme to support the proposition that decision-making in relation to a proposal involving the demolition of a heritage place requires a sequential, rather than an integrated, approach.
The respondent submits that the approach taken by the Tribunal was correct for one or both of two reasons:
(a)An individual determination under the Heritage Overlay may produce a negative outcome in terms of heritage considerations alone, but, integrated with other permit triggers as part of a proposal as a whole, it may achieve an acceptable outcome such that a permit for the proposal as a whole should issue; or
(b)An individual determination under the Heritage Overlay may itself produce acceptable outcomes because in exercising the discretion under the Heritage Overlay, it is open to take into account the broader policy framework for the replacement building, even though the specific purpose of the control is expressed to be the conservation of heritage.
Analysis
Whether the Tribunal erred in declining to treat the exercise of its discretion to permit the demolition of Arden separately from and antecedent to consideration of the planning policies relevant to the replacement building depends on the requirements of the legislation establishing the framework and conditions for the relevant decision-making.
Under the PE Act, one of the objectives of planning in Victoria is to facilitate development in accordance with the other objectives, including, but not limited to, conservation of buildings which are of aesthetic, historical or cultural interest.[18] One of the objectives of the planning framework established by the PE Act is to enable ‘land use and development planning and policy’ to be ‘easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels’.[19] Another is to ensure that the effects on the environment are considered and to provide for explicit consideration of social and economic effects when decisions are made about the use and development of land.[20]
[18]PE Act, s 4(1).
[19]PE Act, s 4(2)(c).
[20]PE Act s 4(2)(d).
This is reflected in s 60 and s 84B of the PE Act, which require consideration of a broad range of matters in a planning permit application, including the environmental effects and social and economic effects of the proposal, where appropriate. Land-use is a matter of public interest, society having various needs and expectations in relation to the use and development of land which planning aims to meet, and land-use decisions are to be made having regard to the pleasant, efficient and safe living, working and recreational environment to which all Victorians are entitled.[21] The scope of relevant considerations in decision-making in a planning context is therefore not to be artificially constrained.
[21]PE Act, s 4(1)(c).
The requirement for integrated decision-making having regard to broad societal needs in respect of land use is expressly contained in the Boroondara Planning Scheme. Clause 10.04 provides:
Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.
Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefits and sustainable development for the benefit of present and future generations.
Furthermore, cl 65 of the Planning Scheme stipulates that the responsible authority must decide whether a proposal for which a planning permit is sought will produce ‘acceptable outcomes’ in terms of the decision guidelines of that cl. In Rozen v Macedon Ranges Shire Council,[22] Osborn J described the test of ‘acceptable outcomes’ as follows:
The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.[23]
[22]Rozen v Macedon Ranges Shire Council (2010) 181 LGERA 370; [2010] VSC 583.
[23]Ibid [171].
Integrated decision-making requires competing policy considerations to be weighed the one against the other to determine whether, on balance, the proposal is an acceptable one. Both State and Local Planning Policy Frameworks recognise that a proposal may potentially be favoured by some policy considerations but not by others, and that decision makers must address the question of whether outcomes are acceptable in terms of ‘net community benefit’ by reference to both the benefits and dis-benefits of the proposal.[24] As a result, it will always be necessary to consider the proposal as a whole by reference to the relevant planning policies.
[24]Ibid [165]-[172].
Where a proposal involves demolition of a heritage building and the construction of a replacement building, the Council’s position that the question of demolition must be considered prior to, and separately from, any consideration of the replacement building, and only by reference to heritage conservation policy, flies in the face of the requirement for integrated decision-making. To require the demolition phase of the development to be considered first and only by reference to heritage considerations is to invest the heritage policies with a status or importance above the other planning policies that are relevant to the proposed development, in that the latter will not come into play at all if the demolition cannot be justified on purely heritage grounds. It creates, in effect, a hierarchy of planning policies with the quarantining of heritage policies from the requirement to consider the permit application by balancing conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
The interpretation advanced by the Council could preclude developments of great community benefit, such as hospitals or schools, on sites occupied by heritage buildings. The existence of the control restricting the demolition of heritage buildings would ‘block’ consideration of the merits of the proposal and, potentially, prevent the ‘fair, orderly, economic and sustainable use and development of the land’.[25]
[25]PE Act, s 4(1)(a).
That heritage considerations are to be weighed in the balance and integrated into the decision-making process for the proposal overall is supported by the fact that the purpose of the Heritage Overlay includes the implementation of the State Planning Policy Framework and the Local Planning Policy Framework. The decision guidelines for the Heritage Overlay also recognise the need to consider these matters ‘as appropriate’. This is a clear signal that the heritage considerations under the Heritage Overlay are not to be treated as divorced from other considerations made relevant by the Planning Scheme, and that heritage considerations are to be integrated with considerations relevant to other controls in order to ascertain whether the proposal produces an ‘acceptable outcome’. In short, the factors militating against demolition of a heritage building are to be weighed against the benefits (if any) of the proposed replacement building.
Consideration of the replacement building is required by decision guidelines for the Heritage Overlay, which direct attention to the replacement building having regard to its ‘location, bulk, form and appearance’. Local heritage policy in cl 22.05 of the Planning Scheme also directs attention to the replacement building at the time that demolition is under consideration.[26] Hence, cl 22.05-2 expressly requires an application for a new building or works to accompany a demolition application, stating that the demolition or removal of any heritage place or part of a heritage place will not normally be approved until a replacement building or development is approved.
[26]The objectives of the local heritage policy include to consider the cultural heritage significance described in the statement of significance of any heritage place as part of the design process of any proposal and when making decisions about proposed buildings and works associated with that place, and to ensure that works, including new development, respect the cultural heritage significance of the heritage place.
Of course, the Council submits that these policies require the replacement building to be considered only from the perspective of heritage conservation policy, and without regard to extraneous policies such as policies encouraging housing diversity or urban consolidation. According to the Council, if an application for a new building is lodged, it falls to be assessed against the relevant provisions of the Planning Scheme. However, that does not mean that the considerations relevant to that application become relevant to the logically anterior question of whether the heritage building should be demolished. The requirement to consider the replacement building simply means that if, as a threshold matter, the proposed demolition were considered appropriate (by reference to heritage considerations), a permit would only be granted for the proposal if the replacement building works were also regarded as appropriate. To that limited extent – and to that extent only – cl 22.05 includes an expectation that an assessment of the replacement building would ‘influence the decision on demolition’.
I agree that the principal intent of the requirement in the Heritage Overlay and the local heritage policy to consider the replacement building is to ensure that it respects and enhances the values of the heritage place, particularly as the heritage place may be far more extensive than the building targeted for demolition. Significant attention must be given to this objective and, indeed, to the heritage conservation policies in the planning scheme generally. A reason to demolish a heritage building by reference to its replacement can no doubt often be found in another policy in the planning scheme, but it must be steadily borne in mind that the existence of the Heritage Overlay (and the grading of the building) sends a strong signal that preserving the significance of the building[27] is a matter to be given considerable weight in the planning process. However, the staged process put forward by the Council whereby the replacement building only comes to be considered once it has been determined that the heritage building can be demolished must be rejected.
[27]Or heritage place.
As the respondent pointed out, there are requirements in other planning policies that might well justify the demolition and replacement of a heritage building. For example, cl 65 requires the responsible authority to consider, as appropriate, the degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard. The respondent gave as an example a heritage house on a bush block subject to a bushfire management overlay. If the owner wanted to replace the heritage house with a house that complied with fire controls, on the Council’s analysis, the Tribunal would not be able to have regard to what was obviously a fundamental justification for the demolition of the heritage building. The staged consideration advanced by the Council would make it, in effect, almost impossible to obtain a permit to demolish a heritage property that was at risk of fire and replace it with a building adapted to respond to those challenges.
Clause 65, generally, requires the responsible authority to decide whether ‘the proposal’ will produce an acceptable outcome by reference to a broad range of considerations. The Council submits that cl 65 does not mean that the full suite of planning policies relevant to the proposal must be taken into account: cl 65 has to be understood as not expanding the scope of relevant considerations; rather, it is confined to implementing the purpose of the individual permit triggers.
I reject this submission. The decision guidelines in cl 65 are distinct from the decision guidelines for specific controls. They are relevant to the decision made on the proposal as a whole and emphasise that the decision as to whether a permit should be granted for the proposal is to be determined by having regard to and balancing a wide range of considerations.
The Council’s argument for separation and sequential consideration of matters relevant to individual permit triggers relies heavily on the reasoning in Sweetvale. In Sweetvale, the proposal was subject to a number of building controls,[28] some of which were exempt from third party review. The appellant sought to advance submissions about matters relevant to permit triggers which were exempt from third party review. Justice Ashley rejected the submission that, in determining the operation of the exemptions, the Tribunal was bound to treat the application for the grant of a permit as being for all relevant purposes singular. His Honour said:
In my opinion, correctly understood, although the application was singular in form, it embodied a series of applications with respect to particular building controls. That this was the fact of the matter could not be doubted. Further, although the decision to grant a permit was singular in form, it represented a discrete decision favourable to the applicant in respect of each of those building controls which required grant of a permit. That this was the fact of the matter again could not be doubted. It is true that in deciding to grant a permit it was necessary for the responsible authority to consider the matter overall, as well as or in the course of considering the individual permissions which the permit applicant had to obtain. But that does not mean that the applications made with respect to each of those controls did not have to be the subject of individual determination. Indeed, the decision guidelines, which varied from one control to the other, dictated that an individual determination did have to be made in the case of each control.[29]
[28]Permit triggers existed in relation to: using the land for a car-park; demolishing the existing building and constructing a building or carrying out works under the Capital City Zone prescription; demolishing a building and constructing a building or carrying out works under the Heritage Overlay; and constructing a building or carrying out works under a Design and Development Overlay.
[29]Sweetvale [60].
Later in the judgment, his Honour said:
There is no reason in logic why a decision to grant a permit should not be understood to be a decision upon applications – that is, in the plural – for grant of a permit in respect of multiple planning controls, reflecting an outcome favourable to the applicant in each instance. There is no reason in logic, to the contrary, to treat the decision to grant a permit as having been made upon a single indivisible application.[30]
[30]Sweetvale [76].
The decision of the Court in Sweetvale was, in substance, that third parties were not entitled to be heard on matters relevant to a permit sought under a control where the control itself contained an exemption from third party review. The fact that objectors had rights in relation to one control did not open up rights in respect of controls that expressly excluded third party review. To allow a party to contest decisions made under planning controls that were subject to exemption would negate the exemption provisions and be contrary to both the plain meaning and intent of the relevant provisions in the planning scheme.
Here, the Court is not concerned with rights to participate in the review proceeding, but with the decision to grant or not to grant a permit for the development ‘overall’ and with the decision-making process that leads to that outcome. The relevance of the decision in Sweetvale is that the grant of a permit for the development (the demolition of Arden and the construction in its place of a four storey multi-dwelling building) is to be viewed as a series of applications in respect of particular controls as well as an application for permission to carry out the development as a whole. There is, as Ashley J said, a need to consider the matter ‘overall’ as well as the individual permissions which the permit applicant had to obtain.
According to the Council, the need to consider a matter ‘overall’ does not mean that considerations relevant to one control suddenly become relevant to another control, and nor does the requirement to consider the matter ‘overall’ preclude the sequential consideration of aspects of that proposal in an appropriate case.
I do not consider that Sweetvale stands for the proposition that each request for permission needs to be decided favourably to the permit applicant for the permit to issue for the development as a whole. The respondent submits that the proper approach to what was said in Sweetvale is that it is not necessary to have a ‘tick’ in every box, that is, a favourable decision in respect of each control. If there was a ‘cross’ on demolition but a ‘tick’ in the other four boxes, in the overall determination of the application an integrated decision could be arrived at, balancing all relevant considerations, that a permit for the development should issue.
I accept this submission. It reflects the process of integrated decision-making required by the PE Act and the Planning Scheme. Where a permission is required that is integral to the development and where, if permission were denied, the development as a whole could not proceed, to require each application for permission to be decided favourably to the permit applicant in order for a permit to issue for the development would mean that considerations relevant to individual permissions could trump all other planning considerations relevant to the development. This is not the treatment of policies contemplated by either the PE Act or the State and Local Planning Policy Frameworks.
Conclusion
I have concluded that the Tribunal did not err in deciding that demolition of Arden was not justified having regard to its heritage significance but that a permit should nonetheless issue allowing demolition, having regard to a broader range of factors.
This is because I accept the respondent’s submission that the scheme for the grant of planning permission in the PE Act – and reflected in the Planning Scheme - contemplates that while an individual determination under the Heritage Overlay may produce a negative outcome in terms of heritage considerations alone, it must be integrated with decisions or assessments made in respect of other permit triggers and considered as part of the proposal as a whole. If the ‘overall’ proposal may achieve an acceptable outcome, a permit for the proposal as a whole should issue.
There was no error on the part of the Tribunal. The answer to the question of law in the proposed Notice of Appeal is ‘No’.
Leave to appeal will be granted, but the appeal will be dismissed.
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