In a unanimous decision, the Court of Appeal (Warren CJ, Santamaria JA and Garde AJA) upheld the decision of VCAT to grant a planning permit for the demolition and redevelopment of ‘Arden’, a significant heritage place under the Boroondara Planning Scheme (Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27). 

The permit applicant had sought planning permission for the demolition of the building and construction of a four storey apartment complex. The nature of the project raised four separate ‘permit triggers’ or ‘heads of permission’:

  1. ‘the demolition of an existing building on land affected by a Heritage Overlay;
  2. the construction of a 33 dwelling, four storey building above a basement car park;
  3. the alteration of access to a road in a Road Zone, Category 1 (Rathmines Road); and
  4. a reduction in the number of bicycle spaces required for dwelling visitors.’

In summary the Council argued that VCAT had been only entitled to take into account heritage conservation policy in determining the demolition question. 

In dismissing the appeal from the decision of the Supreme Court and upholding the VCAT decision, the Court of Appeal clarified the scope and reasoning process a Responsible Authority must undertake in assessing an application for demolition under the Heritage Overlay. 

The Court of Appeal reaffirmed the reasoning in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (2001) VR 592, holding that where a permit for project requires multiple heads of permission the Responsible Authority must only grant a permit for entire project after each permit trigger is independently satisfied.

The main issue before the Court of Appeal concerned the factors to be considered when deciding to grant a permit for the demolition of the building affected by a Heritage Overlay.

In arriving at its determination, VCAT adopted what it described as a ‘balanced’ or ‘integrated’ decision making process. It summarised the effect of this approach by stating ‘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’.

Relevantly, the purposes of the Heritage Overlay provisions in the Boroondara Planning Scheme included the implementation of both the State and Local Planning Policy Framework (including the Municipal Strategic Statement and local planning policies). This, together with clause 65 of the Planning Scheme and sections 4, 60 and 84B of the Planning and Environment Act 1987, directed VCAT to consider factors other than heritage when determining whether to permit demolition. Having correctly identified the relevant considerations, VCAT’s integrated decision weighing these factors was upheld.

Garde AJA also contemplated the situation of a permit application solely for demolition of a property subject to a Heritage Overlay control. His Honour concluded that there ‘is no difference between the relevant considerations which apply under the Act and the Scheme when a decision-maker is considering an application for a permit under the Heritage Overlay alone, or when the application for a permit under the Heritage Overlay is sought as one of a number of permit applications that need to be made in respect of a particular proposal’.

Statements of the law from the Court of Appeal in the planning jurisdiction are relatively uncommon.  This decision is important in that it clarifies the scope of considerations for the assessment of permits where a Heritage Overlay applies. – a very common situation.  

Permit applicants and decision makers should structure their considerations accordingly, recognising that factors other than heritage conservation policy may be considered relevant to demolition applications under the Heritage Overlay.  

For more information contact:

Greg Tobin
Harwood Andrews
T: 03 5225 5252

John Hannagan
Senior Associate
Harwood Andrews
T: 03 5225 5202