The recent VCAT hearing of Minawood Pty Ltd v Bayside CC [2009] VCAT 440 (25 March 2009) provides some substantial commentary on when the demolition of a building may be refused on heritage grounds, despite the absence of a Heritage Overlay.
The hearing involved an application to amend an existing permit issued by the Tribunal in 2001. The approved permit allowed the construction of 21 dwellings in a three-storey development whilst retaining the existing Khyat’s Hotel at the front of the site which was described as an iconic local landmark and ‘watering hole’ in Brighton. The amendment to the permit proposed to demolish the hotel and replace it with a further 5 dwellings. Over 4,300 objections were lodged with VCAT following public notification of the application.
The Tribunal in its determination agreed with Council that the application should be refused because the proposed amendment to the permit did not respect the cultural, social and historic associations and significance of the site. It failed to accord with the objectives of the Neighbourhood Character Policy and other objectives relating to cultural identity within the planning scheme.
Under Section 60(1A)(a) of the Planning and Environment Act, before deciding on an application, the responsible authority may consider “any significant social and economic effects of the use or development for which the application is made.” Faced with 4,300 objections, the Tribunal stated that public opinion cannot dictate a decision because popular views may be contrary to factors that the decision maker must properly consider. Nevertheless it was considered that the number of objections and the consistency of their message about the significance of Khyat’s Hotel within the local community is evidence of the cultural significance associated with it that must be considered when determining the application.
With regards to neighbourhood character, it was determined that the demolition of the existing hotel would adversely alter the streetscape and built form context that the previous Tribunal was concerned to ensure the development proposal would fit into. The new dwellings which would be introduced into the streetscape failed to achieve the objectives identified in the MSS of quality design which “contributes to a sense of place appropriate to Bayside’s character”; “respects valued elements of …. character and heritage”; and “maintains, strengthens and enhances local character”.
Turning to the issue of heritage, the Tribunal stated that heritage values are not created by the application of a Heritage Overlay. Rather, the overlay is a means of recognising and protecting pre-existent heritage values. Therefore, just because there is no Heritage Overlay over Khyat’s Hotel does not mean to say that it lacks any heritage value.
Whilst the hotel lacked sufficient architectural significance or integrity to justify the application of a Heritage Overlay, a broader interpretation of heritage significance should be taken which gave consideration to historic and social significance, rather than just aesthetics. Under this interpretation, it was the Tribunal’s view that the hotel which had existed on the site since 1865 and formed part of a wider civic precinct, whilst lacking the formal protection of a Heritage Overlay, still possessed heritage values, which under the planning scheme should be considered and protected (most notably Clause 12.05). The Tribunal therefore held that the hotel formed part of the cultural identity and sense of place of Brighton which would be lost by its demolition.
An interesting footnote to the case is that Council and the Tribunal were only in a position to refuse demolition of the Hotel as a result of it being shown as retained on the plans endorsed under the original permit issued for the site. It appears to your author that had the applicant applied to Council for a demolition permit prior to the initial planning permit application being lodged, Council’s building surveyor would have been obligated to grant permission for the demolition of the Hotel.
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Last updated 230809