Does a fire causing significant damage to heritage buildings undermine the ability of the Tribunal to hear an Application for Review lodged prior to the fire?
This question was recently answered in an interesting ‘Red Dot’ decision; Caydon Cremorne No 2 Development Pty Ltd v Yarra CC [2018] VCAT 85. The subject site is the former Richmond Maltings site, well known for the existing tall silos and the heritage “Nylex” sign.
Prior to the hearing, part of the site was affected by fire (that part being proposed for adaptive building reuse with a positive relationship with public space). The applicants, after the fire, had:
- responded to emergency orders served upon it by the Municipal Building Surveyor;
- attended the site with Heritage Victoria to assess the extent of the damage;
- retained a heritage architect to liaise with Heritage Victoria regarding further repair/reconstruction or demolition.
Objectors submitted that the appeal hearing should be postponed because the full extent and impact of the fire was not known, and because the possible loss of one of the buildings had a major impact on the site’s heritage planning.
It was argued that the application proposal within the now fire-damaged building, were positive aspects of the proposal. Because those aspects were in question while the fire damage was being determined, the Objectors argued that the Tribunal was not able to undertake its required “balancing exercise” in making a decision.
However, with this uncertainty in mind, the Tribunal preferred to continue hearing the matter, noting:
35 …Issues about the retention or removal of building B6 because of the fire damage will need to be resolved by the applicant, the relevant building authorities and Heritage Victoria. We have no jurisdiction about these matters.
36 There is no prejudice to any party flowing from our consideration of the proposal in its current form. The configuration of the proposed 14 storey building above the fire damaged B6 building has not changed. Whether there needs to be changes to the envelope and configuration of that building, and of the fire damaged heritage building, procedures are available under the Planning and Environment Act 1987 to allow for the consideration of those changes, if they are found to be necessary.
37 Whether the consideration of those changes (if any) occurs by way of secondary consent or by some other mechanism (section 72 or 87A) is to be determined at the appropriate time, and will be influenced by the nature and magnitude of any changes considered necessary.
The Tribunal considered the proposal as per the application plans, acknowledging the rights of the permit applicant to request amendments to the plans at a later stage, should the extent of fire damage require alterations to the approved plans to be made.
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