Boroondara City Council v 1045 Burke Road Pty Ltd

The case of Boroondara City Council v 1045 Burke Road Pty Ltd involved the applicant, Boroondara City Council, seeking leave to appeal a decision made by a judge of the Trial Division. The primary dispute centred around the demolition of a heritage place, known as 'Arden', located at 1045 Burke Road, Hawthorn East, and the proposed development of a four-storey building in its place. The first respondent, the permit applicant, sought to demolish the heritage building and construct a new building housing 33 dwellings, a basement car park, and associated parking and bicycle spaces. The central issue was whether the permit applicant needed to obtain a permit under each of the multiple planning controls applicable to the proposal or if a single permit application could suffice.

The legal issues in this case focused on the interpretation of the Planning and Environment Act 1987 (Vic) and the Boroondara Planning Scheme, specifically concerning the requirements for obtaining a planning permit for demolition and new construction works at a heritage site. The key question was whether the permit applicant must satisfy all applicable planning controls for the overall proposal or if satisfying the Heritage Overlay requirements was sufficient for both demolition and new construction. This issue was examined in light of relevant statutory provisions and case law, including National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd, Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal, Minister for Aboriginal Affairs v Peko-Wallsend Ltd, and Sean Investments Pty Ltd v MacKellar.

The court examined the statutory framework and relevant provisions of the Planning and Environment Act 1987 (Vic) and the Boroondara Planning Scheme, particularly the Heritage Overlay (cl 43.01). It concluded that the permit applicant was not required to obtain separate permits for each applicable planning control. Instead, the focus should be on whether the overall proposal complies with the relevant planning scheme and policies. The court found that the Tribunal's decision, which allowed for the demolition and new construction under a single permit, was correct. The court applied the principles from Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Sean Investments Pty Ltd v MacKellar, emphasising that the permit applicant need not satisfy every individual planning control but must comply with the overall scheme and policies. Consequently, the appeal was dismissed, and the Tribunal's decision was upheld.

The final orders of the court were to dismiss the application for leave to appeal and confirm the Tribunal's decision that a single planning permit could be granted for both the demolition of the heritage building and the construction of the new development, provided the overall proposal complied with the relevant planning scheme and policies.