ERD Court consideration of demolition controls

The recent decision of Zaina Stacey Development Consultants v The Corporation of the City of Norwood, Payneham & St Peters Council [2022] SAERDC 16 has given guidance on the approach to demolition in the Historic (Conservation) Zone and assessing development applications involving multiple elements. We successfully represented the Council in preserving a 1927 bungalow due to its contribution to the character of the policy area.

Background

In March 2021, the Appellant applied to the Council for approval to demolish the bungalow, and divide the land at 5 Foster Street, Norwood into two allotments, and construct two-storey abutting detached dwellings, which application was subsequently refused.

The subject land is located within the Residential Historic (Conservation) Zone (Zone) which seeks to protect dwelling stock which dates from the mid-1800s to the early 1900s.

The Appellant asserted that:

1. land division was appropriate given the suitability of the resulting allotments for the proposed dwellings;
2. the bungalow did not contribute significantly to the historic character of the Zone;
3. the quality of the replacement dwellings mitigated against the proposed demolition; and
4. the bungalow was structurally deficient, to the extent that rehabilitation was unreasonable.

The Council argued that:

1. the bungalow (being one of three in a row) formed part of the character sought to be preserved by the Zone;
2. whilst rehabilitation work would be required, the extent of structural remediation was not unreasonable;
3. the proposed dwellings were at odds with many provisions of the Development Plan; and
4. the land division would result in two allotments both insufficient and impractical in width.

Following submissions from both parties which involved expert planning, heritage and engineering evidence, the Court ultimately upheld the Council’s decision to refuse the application. While this appeal was brought under the now repealed Development Act 1993, the findings made by the Court remain relevant to future planning assessments under the Planning & Design Code as the policy remains similar.

Heritage Contribution

The crux of the matter rested on whether, or in what circumstances, an original dwelling within the Zone could be demolished. Relevantly, the Zone provided for an area-based heritage control, as distinct from listed place heritage controls.

The Court relevantly held:

1. if it was only intended that listed heritage places were preserved, then there would be no need for the Zone to trigger demolition control over all buildings;
2. the character of the area arose from the collective contribution of all buildings and that there was no basis to conclude that only grand and embellished buildings ought to be retained; and
3. the question of demolition did not turn on whether the contribution of the building is significant, but whether the building contributed to the policy area irrespective of the level of contribution.

Order of Assessment

There was some debate about the correct order for assessing the elements. The Council suggested that due to a particular PDC the assessment of the land division leads straight to the question of demolition.

While the Appellant agreed with the Council’s position, they added that the interrelated nature of the proposal made it difficult to assess the elements separately, inviting the Court to consider and assess the application as a whole.

The Court found that demolition was to be accorded pre-eminence, followed by the assessment of the land division and the proposed replacement dwellings, stating:

“In practical terms, such an approach would mean success of the outcome is the governing condition, placing greater weight on certain built form and infill policies at the expense of fundamental provisions seeking the retention of established buildings that make a positive contribution to the area’s character.”

Remediation of Existing Dwelling

The Zone contained a provision stating:

PDC3: Existing buildings originally constructed prior to 1940 which contribute to the desired character of the Zone and Policy Area should not be demolished.

This was to be contrasted with demolition controls for contributory items and local heritage places which had tests which involved an assessment of reasonableness of rehabilitation works if structurally unsound.

The Court accepted that despite any reference to structural soundness in PDC 3 that it was a matter of relevance much in the same way that flooding risk was considered relevant despite the lack of direct policy in Lakshmanan v City of Norwood, Payneham and St Peters & Anor (2009) SAERDC 22.

The Court found that the dwelling contributed both individually and collectively to the character of Foster Street, the locality, policy area and the Zone. The bar for unreasonableness of repair works was therefore high and the Court determined the engineering evidence was insufficient to conclude that the required structural remediation works justified the demolition of the building.

Take Home Message

While considered against the Development Plan, the Court findings in relation to demolition controls, heritage significance and assessment order remain relevant to determining current and future planning applications under the Planning & Design Code and the Historic Area Overlay.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au, or Alice Tonkin on +61 8 8217 1372 or atonkin@normans.com.au.