Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor

The appellants, Mr and Mrs Lakshmanan, sought approval from the City of Norwood, Payneham and St Peters to demolish their flood-damaged, local heritage-listed residence. The residence, though structurally sound, remained vulnerable to flooding events predicted to occur with a frequency of once every 50 years. The first respondent refused the demolition application, a decision subsequently upheld by the Environment, Resources and Development Court (ERD Court). The appellants appealed this decision to the Supreme Court of South Australia.

The Supreme Court was required to determine several legal issues. These included whether the risk of future flooding to the residence and the relative heritage value of the property were relevant considerations for the consent authority when assessing the demolition application. The Court also considered whether a particular provision of the development plan precluded the approval of demolition without the concurrent approval of replacement development, and whether the appeal to the ERD Court should have been dismissed on that basis. Finally, the Court had to decide whether, if the appeal were allowed, the matter should be determined by the Supreme Court or remitted to the ERD Court.

A majority of the Supreme Court, comprising Kourakis J and White J, held that the risk of future flooding and the relative heritage value of the residence were indeed relevant considerations that the ERD Court had erred in failing to consider. They found that an apparent requirement for concurrent approval of replacement development was unreasonable and ineffectual. Layton J, while agreeing with the appeal's allowance, considered the heritage value issue to be secondary to the fulfilment of conditions related to the dwelling's structural soundness, which could be impacted by future flooding risk.

The Court allowed the appeal, finding that the ERD Court had erred by not considering the relevant factors of future flood risk and the residence's heritage value. The matter was remitted to the ERD Court for redetermination, as the weight to be given to these planning considerations was a matter for that court to decide, not the Supreme Court on an appeal limited to questions of law.