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(Everson DCJ - 3 February 2015)
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the judgment
Environment and planning – nature of review – application for review of decision of ADR Registrar allowing an appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct – whether the building did not contribute positively to the visual character of the street – whether the demolition of the building would not result in the loss of traditional building character.
Facts: This was an application for a review of a decision of the ADR Registrar allowing an appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct.
The application for review was brought under s. 491B(5) of the Sustainable Planning Act 2009.
The dispute before the ADR Registrar had been limited to the application of Performance Criterion P1 and Acceptable Solution A1.3 of the Demolition Code of Council's planning scheme.
P1 required that the building proposed to be demolished "must not contribute positively to the visual character of the street".
A1.3 required that the demolition of the building not result in the loss of "traditional building character".
The ADR Registrar had relied upon evidence from heritage architects engaged by the parties to conclude that both P1 and A1.3 were satisfied.
Decision: The Court held, in setting aside the decision of the ADR Registrar and dismissing the appeal:
- The jurisdiction of the court pursuant to s. 491B(5) is broad and the decision of the ADR Registrar may be reviewed in a largely unfettered manner, subject to the judge respecting any advantage the ADR Registrar has had in seeing and hearing witnesses to reach his decision.
- The finding of the ADR Registrar that P1 was satisfied was not open on the evidence before him when the Demolition Code was read as a whole and given full effect.
- P1 and A1.3 should be read having regard to the Purpose of the Demolition Code. The Code intended that structurally sound residential buildings constructed before the end of 1946 were retained in relevant areas.
- It could not be said that the house did not contribute positively to the visual character of the street. P1 was not satisfied.
- The demolition of the house would result in the loss of traditional building character. A1 was not satisfied.
