Klemich v City of Norwood, Payneham & St Petersnam No ERD-01-1250 [2002] SAERDC 10 (17 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

07/01/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to demolish local heritage place - Historic (Conservation) Zone Residential - refused by Council - applicant appeal - planning merits considered - general tenor of development plan seeks retention, restoration, rehabilitation of heritage places - Council Wide Principles 47 and 51(a) provide tests for demolition proposals - require consideration of extreme circumstances; whether the place is structurally unsound as to be unsafe and irredeemable; and that the poor state of the structure is verified by independent expert - interpretation of the term "irredeemable" considered - whether the facade only should be retained also considered - opinions of two structural engineers that building was unsafe, unsound and irredeemable - all tests met - secondary consideration to obsolescence and economics of retention of heritage places - proposal sufficiently meets Development Plan - appeal allowed and Council decision reversed.

• Development Act 1993 , referred to.

Representation

Appellant: MR O KLEMICH
Counsel: MS T ROSS - Solicitors: MINTER ELLISON

Respondent: CITY OF NORWOOD, PAYNEHAM & ST PETERS
Counsel: MS A NICHOLLS - Solicitors: NORMAN WATERHOUSE

ERD-01-1250

Judgment No. [2002] SAERDC 10

17 January 2002

OREN KLEMICH

v

CITY OF NORWOOD, PAYNEHAM & ST PETERS

ERDC No.1250 of 2001

[2002] SAERDC 10

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an applicant appeal against the refusal by the Council of Development Application (No.155/00268/01) comprising demolition of a detached dwelling and outbuilding at 10 Edmund Street, Norwood.

2. The Council refused the application on the basis that:

"The proposed development does not satisfy Metropolitan Objective 34, Council Wide Objective 17 and 20, Council Wide Principles of Development Control 47 and 51 and Historic (Conservation) Zone/Residential Objective 1 and Principles of Development Control 3, 4 and 7 as it proposes a demolition of a building which contributes to the desired character of the zone and policy area and the historic integrity of the City generally and which has been listed as a Local Heritage Place."

3. Some of the relevant details are as follows:

Date of application: Registered 2 April 2001

Subject land address: 10 Edmund Street, Norwood

Existing use: Detached dwelling

Proposal: Demolition of detached dwelling and outbuilding - a local heritage place

Relevant authority: City of Norwood, Payneham and St Peters

Appropriate Development Plan: Kensington and Norwood (City), consolidated

15 February 2001

Relevant Zone/Area: Historic (Conservation) Zone - Residential and Norwood 2 Policy Area

Date of decision: 15 October 2001

Appeal lodged: 9 November 2001

4. Following a pre-trial conference on 26 November 2001 where no settlement was achieved, the matter came on for hearing and evidence was given by the applicant, Mr O. Klemich (real estate agent acting on behalf of the Public Trustee for the Estate of Ethel Maud Keeping), Ms A.F. White (Senior Urban Planner of the Council and appearing under subpoena), Mr R.J. Liney (Fellow Institute of Engineers and experienced structural engineer), Mr A.J. Taylor (Member Royal Australian Institute of Architects, registered building surveyor and builder), and by Mr D. Marchetti (Member Royal Australian Planning Institute).

5. In the presence of the parties, the Court viewed the subject site on 7 January 2002, during which it also carried out an internal inspection of much of the building in question (though this was somewhat difficult and hazardous) and it viewed the locality comprising primarily the properties along Edmund Street. The Court received a number of exhibits including the proposal details, photographs of the external and internal characteristics of the dwelling, letters and statements of evidence from the experts and a heritage survey sheet from 1994 relevant to the said property.

The Subject Land

6. The subject site at 10 Edmund Street, Norwood is described as allotment 5 in File Plan 4, within Certificate of Title Volume 2551, Folio 91. The site has a frontage of some 11 metres to Edmund Street and depth of some 31 metres providing an approximate site area of 355 square metres. The site contains a single storey, rendered masonry cottage, estimated in a 1994 Mark Butcher Architects Heritage Survey Sheet (Exhibit R4) to be from the period 1850s-1860s, although there is no other proof or evidence of that, and one expert, Peter Harmer, refers to the building as coming from the late 1800s. It addresses its street frontage and a new verandah added at the front is setback from the street by some 4.5 metres and the front wall of the dwelling is setback some 6 metres. Garden vegetation significantly screens the streetscape elevation of the dwelling and the rear of the property comprises an overgrown garden, an abandoned vehicle and a small outbuilding understood to accommodate a toilet, but heavily overgrown by vegetation. On the evidence, the dwelling has not been lived in for some 18 months and its current condition is extremely poor in all respects. The dwelling is of small proportions with four small rooms within the masonry walling and with a later lean-to addition at the rear, of lightweight construction.

7. It was agreed by all experts that the building was in very poor condition, that the majority of elements were unsound and that many, particularly the roof, ceiling, floors and some internal walls were unsafe.

8. The 'original' elements of the building and property were generally agreed to comprise the walls only (external and internal and windows and doors), chimney and likely bluestone foundation of the building. All other elements including the front fence and gates, the replacement verandah, the roofing and ceilings, the flooring (if it could be described as such), the lean-to additions and the concrete stucco render applied to the external walling, are all new additions or of newer origins.

9. The subject site is listed within Table KeN/1 as a local heritage place where it is described as "Masonry Cottage", satisfying criteria in Section 23 (4) (a), (b) and (d), Development Act 1993 .

The Proposal

10. The proposal to demolish the dwelling (and outbuilding) was made by completion of a development application form with accompanying letter, photos and site plan (stamped 11 April 2001) from the applicant, together with a letter dated 2 February 2001 from Mr R. Liney of Koukourou and Partners (part of Exhibit R1).

The Locality

11. The locality is generally limited in extent based on the direct visual impacts of the proposed demolition of the dwelling and outbuilding. It approximates that described by Mr Marchetti, except that it is more limited to the south and comprises only what he refers to as the immediate locality. It extends for a distance of some 40 to 50 metres to the north, to the corner of Chapel Street, for some 60 to 70 metres to the south just past the intersection of Edmund Street with King Street, for some 30 metres to the west including the front portions of properties and buildings fronting Edmund Street, but not extending beyond the eastern boundary of the subject site given the commercial building barrier adjoining.

12. The locality comprises a small historic residential enclave now set amidst mixed business, commercial and industrial uses. Of the 20 or so dwellings, only the subject building, a restored cottage adjoining to the north at No.8, two pairs of duplex dwellings at Nos.22 to 28 and a dwelling at No.30 - seven in total, are listed as local heritage places. The remainder, including several attractive bluestone and sandstone fronted dwellings, did not attract such listing, but nevertheless are implicitly recognised as of heritage value by the Development Plan provisions for the Historic (Conservation) Zone - Residential. Some new, one and two storey townhouse/unit development has occurred at the southern and western side of Edmund Street and is of contemporary design. Notwithstanding Mr Marchetti's view that the level of amenity in the locality is of high quality (attributable to low traffic volumes and a pleasant streetscape), I am of the view that it is of more moderate quality due to the commercial/industrial influences, noise from adjoining commercial premises and overall, a general absence of gardens and significant vegetation. However, nothing turns on these descriptions or amenity levels.

13. A description of the Norwood 2 Policy Area contained in the Development Plan is as follows:

"Development in the Norwood 2 Policy Area should conserve and maintain the existing character created by the late 19th Century and turn-of-the-century single-fronted, double-fronted, semi-detached and row cottages in Edmund Street, typically constructed of bluestone or sandstone with brick and with limited front and side setbacks."

Relevant Development Plan Provisions

14. Both of the expert planners provided a list of relevant provisions in the Kensington and Norwood (City) Development Plan (consolidated version 15 February 2001), with minor inconsistencies only between them, and I consider the following to be relevant:

METROPOLITAN ADELAIDE

Objectives: 1, 9, 34 and 39; and

Principle of Development Control: 9

COUNCIL WIDE

Objectives: 2, 16, 17 and 20; and

Principles of Development Control: 2, 4, 45, 46, 47, 49, 50, 51 and 55;

HISTORIC (CONSERVATION) ZONE - RESIDENTIAL

Objective: 1

Principles of Development Control: 3, 4 and 7

TABLE KeN/1 - List of Local Heritage Places

MAP KeN/3 and KeN/5

15. A number of the most relevant provisions are quoted in full under Assessment of this matter.

Processing

16. Demolition of a building is neither "complying" nor "non-complying" development in the relevant zone and is therefore for consideration on merit.

17. The proposal was given Category 3 classification by the Council, bringing the requirement for full public notification, and as a result four representations were received, three opposing the application and one in favour.

18. There are no referral requirements to other agencies or bodies with respect to a matter of this kind.

The Evidence

19. Mr Klemich advised the Court of his role as agent to advise the Public Trustee as to the sale of the property; that in his opinion the property was unsaleable - though he acknowledged that no marketing campaign had been undertaken; and that if approval for demolition was received, the property would be sold as is, so that the purchaser could either demolish and rebuild or retain/restore the existing building.

20. Ms White (the Senior Urban Planner) advised and reported (refer Exhibit R1, pp.16-20) to the Council on the application and recommended approval to demolition of the building. She did so after seeking and obtaining an independent engineering report and advice from Katnich Dodd (Exhibit R1 pp.14-15) and specifically from a Mr P. Harmer, a building surveyor and an engineer with structural engineering experience. Ms White formed the view that the building was so poor and work to redeem it, so extensive, as to warrant demolition having regard to the tests in Council Wide Principle 47 and having regard to the Development Plan as a whole. Her evidence before the Court was that little (perhaps only 5%) of the whole building would remain if the work recommended by Mr Liney and Mr Harmer (together with some components recommended by Mr Taylor) was undertaken, and that very little of the original fabric of any heritage value would remain. She was also of the opinion that retention of the façade was not reasonable having regard to the extent of the work required to make it sound, but she conceded an argument that if the original masonry walls (red brick, following removal of the concrete stucco render) of the building could be retained effectively, then potentially the building may be redeemable.

21. Mr Liney is an expert structural engineer with some 25 years experience in that field, specialising in such aspects concerning domestic buildings in recent years. His evidence may be summarised as follows:

•	The original elements of the building comprised the bluestone footings, red brick walls and chimney and the new elements added to the building comprised the roofing, ceilings, external concrete render, timber framed rear extension and front verandah;

•

All of the internal walls and possibly the external walls as well (under the concrete render), are, or are likely to be, in poor condition affected by rising damp, commonly referred to as salt damp, there being unlikely to be any damp proof course and no damp proof membrane under walls and flooring respectively;

•	Chemical treatment to remove and overcome the salt damp, would "not work" given that dampness is up to a level of 1-1.8 metres above the ground and a sound base would need to exist to apply the chemical treatment upon;

•	Brick quality and mortar was poor, with most test areas revealing easy powdering with an instrument;

•	Undersetting - replacement, of at least 50% of each wall is required to remove the damp affected sections and the relevant bluestone foundations may also need removal;

•	A new stormwater management regime and chemical treatment would not arrest the rising damp, at least for several years;

•

A new concrete floor slab could develop problems such as "doming" from moisture in reactive clays thereunder, but alternatively, a new timber floor would also have problems of movement over a three to five year period as replacement walls/footings and a new stormwater regime settled and took effect;

•	A whole new roof and ceilings are required but there being significant safety issues relating to removal of the existing roof and ceiling elements and stability of the chimney and walling (after undersetting had been completed);

•	The chimney is also badly cracked, requiring repair and temporary bracing;

•	There existed a risk of significant collapse occurring notwithstanding safety measures and best endeavours;

•	Restoration/rebuilding of the kind envisaged would be extremely difficult in these circumstances;

•	In its current form the building is unsafe and unsound and because of the nature of the roof framing, the walls and the footings, the building is irredeemable, in fact 'a hopeless situation'.

22. Mr Taylor gave his expert opinion as an experienced architect, building surveyor and builder but acknowledged that he did "not argue with the advice of a structural engineer on engineering aspects". In summary his evidence and views were:

•	Agreement with Mr Liney and Mr Harmer that the building is unsafe (roof, ceilings, floors, rear walls and other aspects) and much of it unsound and that the whole roof, ceilings, floors are unsound and in need of replacement (to be carefully and sensitively undertaken); but

•	That a majority of the external walls and bluestone foundations are not unsound and are likely (upon removal of the concrete stucco rendering) to be able to be retained and rising damp arrested through:

-	liquid chemical damp proof treatment of certain sections;
-	removing (underset/replace) of certain walls up to 1 metre and some walls up to 1.8;
-	external stormwater management regime; and
-	new concrete slab floor with water proofing to all areas (a timber floor not being achievable).

23. The main area where his opinion differed from that of Mr Liney and Mr Harmer is the degree of walls and therefore including some bluestone foundations, that is required to be underset (replaced). His view is that the majority can be kept, whereas Mr Liney and Mr Harmer are of the view that the majority cannot be kept, and he is of the view that the balance of the walls can be appropriately treated with the liquid chemical damp proof method but with the proportions to be liquid treated versus underset, subject to further investigations of all the walling.

24. Mr Taylor agreed with the unusual nature of the work and that cost is to be weighed up when considering whether the fabric is worth keeping. Under examination he conceded that most of the building was irredeemable - though replaceable.

25. Mr Marchetti, who gave evidence as a planner with expertise in a range of areas, conceded that he had no heritage places experience in Adelaide. On the basis of equivocal advice (as he saw it) from Mr Liney and Mr Harmer on the one hand and Mr Taylor on the other, the latter appearing to be preferred by him, he formed the view that the building as a whole, though walls in particular, may be redeemable even if underset/replaced to a significant height. He also agreed that the building was in very poor condition, unsound and unsafe (except for the façade), and that the majority of the building needed to be rebuilt. He was of the opinion that keeping/retaining the original front wall and chimney and the overall form of the cottage building was sufficient to warrant retention of the building and refusal of the application, in the context of considering all of the relevant Development Plan provisions. He initially asserted that the roofing tiles, and fencing elements were of historical integrity and value, though he later conceded his mistake or lack of knowledge in this regard, and he asserted that the whole of the property is of local heritage value. His apparent lack of appreciation or understanding on matters of a heritage nature meant that I had difficulty accepting his evidence over that of Ms White.

Assessment

26. There is no land use issue involved and it is the direct physical impact - heritage and aesthetic, as well as safety (current and during any restorative process) that are the prime considerations in this matter.

27. It is the position that the broad provisions applicable to Metropolitan Adelaide, Council Wide and for the Historic (Conservation) Zone - Residential, generally support and favour retention, restoration, rehabilitation and sensitive alterations and extensions of local heritage places. The main provisions of relevance of this kind are as follows:

METROPOLITAN ADELAIDE

"Objective 34: The preservation of buildings or sites of architectural, historical, or scientific, interest."

COUNCIL WIDE

"Objective 17: Development which conserves and reinforces the historic integrity of the city and is compatible with the desired future character of the appropriate zone or policy area."

"Objective 20: The conservation and enhancement of land, buildings and structures which are of aesthetic, architectural, historic, social, economic, cultural, aboriginal, archaeological, technological or scientific significance, particularly those identified in Table Kensington and Norwood/1 - Local Heritage Places."

PRINCIPLES OF DEVELOPMENT CONTROL

"45 Development should not significantly impair the character or nature of buildings or sites of architectural, historical or scientific interest, sights of natural beauty, or items of heritage significance.

46	Development should not compromise or impair the character or integrity of buildings or sites afforded Local Heritage status or State Heritage status as identified in Tables KeN/1 and KeN/2.

49 Nominated Local Heritage Places as designated in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should be restored, rehabilitated, altered and added to, including all designated associated development on the site, in an appropriate manner, which:

(a)	preserves, respects and complements the original integrity, character, scale, street frontage, architectural style, design, roof form and pitch, window and door openings and specific features, materials, colours and finishes of the existing identified places; and

(b)	maintains or reinstates the integrity and prominence of the original street frontage and significant streetscape and other aspects and features; and

(c)	integrates contemporary improvements and achieves opportunities to the rear or the side behind the main building alignment, but without any compromise to the original character, street prominence, siting, boundary setbacks, significant aspects and heritage value of the place; and

(d)	does not detrimentally affect the character, setting, heritage value, integrity or function by development, including land division.

51 Local Heritage Places identified in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should:

(a) not be totally demolished, particularly facades that face public roadways;

(b) be restored and rehabilitated in accord with their original style, design and features;

(c) not be detrimentally affected in terms of character or function by development, including land division;

(d) integrate improvements without compromise to the character of the original building;

(e)	not be altered except if the alterations do not involve the removal of any significant elements of the hereto places™ street elevation.

HISTORIC (CONSERVATION) ZONE - RESIDENTIAL

Objective 1: Development which conserves and enhances the historic and residential character of the relevant policy areas of the zone.

PRINCIPLES OF DEVELOPMENT CONTROL

3 Development should conserve, maintain, enhance and reinforce the existing streetscape of the relevant policy area and the historic character of individual buildings, exhibiting architectural and roof-forms, designs, street frontage widths, materials, colours, fences and landscape settings which complement without effecting the reproduction of historic buildings or their detailing. New buildings should be designed to maintain the prominence of existing historic buildings.

4 Development within the zone should restore and rehabilitate existing historic buildings and may incorporate compact extensions to buildings of a scale, bulk and external appearance which is sympathetic to the existing historic character.

7 Existing buildings originally constructed prior to 1920 ..... and which contribute to the desired character of the Zone or relevant Policy Area should not be demolished ....."

28. It was also of relevance to note that in Council Wide Principle of Development Control 55 as well as the starred footnote in Table KeN/1, the extent of control and protection for local heritage places applies only to all exterior parts of the original main portion of the subject building (exterior walls, façades and roof) and contiguous elements (verandahs and balconies, including balastrading and lace work, doors and windows and their frames, original materials and finishes and similar features), and otherwise with particular attention to certain parts or to other additional elements where specifically designated in the Table. In this case, no elements or specific parts are so designated.

29. It is also noteworthy in Table KeN/1 that the majority of bluestone, sandstone and red brick villas, cottages, duplexes and the like in Edmund Street and the Historic Conservation Zone - Residential are not listed as local heritage places.

30. The Court agrees with both counsel that this application, involving consideration of demolition only, requires no consideration or regard to be given to any future replacement development on the site if approval to the demolition is granted.

31. The crux of the case, espoused by both counsel, rests on consideration of Council Wide Principle of Development Control 47 (and to a lesser extent Principle 51(a), quoted above), as they provide the most specific and detailed tests and provisions applicable to consideration of whether demolition approval should be granted. Accordingly, a higher degree of weight should be placed on these provisions.

COUNCIL WIDE

PRINCIPLE OF DEVELOPMENT CONTROL

"47 Nominated Local Heritage Places, designated in Table KeN/1 and State Heritage Items as designated in Table KeN/2 should not be demolished other than in the most extreme circumstances, and unless:

(a)	the place or any designated significant element of the place is so structurally unsound as to be unsafe and irredeemable; and

(b) the extremely poor state of the structure is verified and supported by appropriate independent qualified expert advice."

32. This provision is clearly designed to provide an exception to the rule and the general approach concerning Local Heritage Places, where retention, restoration and if necessary alterations and extensions, are preferable to demolition. The tests are now considered individually.

33. It is considered that the most extreme circumstances exist in this case, supported by the evidence from structural engineers and at least one of the planners, including the extremely deteriorated, unsafe and unsound nature of the building in question and extreme difficulty and safety risk involved in attempting its replacement and repair, particularly the roof and ceilings but also portions of the walling, which are liable to collapse.

34. With respect to the first limb of the test in clause (a) it was agreed by all experts that the masonry cottage, comprising "the Place", is so structurally unsound as to be unsafe. In addition, in terms of clause (b), the extremely poor state of the structure has been verified and supported by two independent qualified engineers with structural experience, namely Mr Harmer in a letter of report to Council dated 28 September 2001 (pp.14 and 15 in Exhibit R1) and by Mr Liney in his letters of report and advice dated 2 February 2001 and 18 December 2001 (comprising Exhibits A1).

35. The remainder of the test revolves around consideration of the word "irredeemable" in clause (a) of Principle 47. Choice of this word is not considered to be ideal for the concept that I understand is sought to be achieved. Dictionary definitions include references to not redeemable, beyond redemption, incapable of being bought back or paid off; and redeemable being capable of being redeemed; and to redeem to include to make up for, to obtain the restoration of or to pay off, to bring the item back to original condition or its presence. Hence, in a planning sense, I find that it is intended to include the restoration, repair and rehabilitation of existing original building fabric of heritage value, but not to include its full replacement with new materials, nor necessarily include the term or works comprising 'rectification'.

36. The independent expert opinions of two engineers with structural experience and the one planner with some heritage assessment experience, is that "the place", comprising the external elements the subject of the control as set out in Principle 55, is for all practical purposes, irredeemable.

37. It would only be portions of the bluestone foundations, and of the upper portions of external walls and the chimney (subject to adequate support and shoring up during works) that could be retained and redeemed and in the opinion of Ms White, this might only comprise 5% of the overall building. In the opinion of both engineers and Mr Marchetti, this excludes the majority of the building and the majority of the walls (including external walls). It is only Mr Taylor who is of the view that perhaps less than the majority of the walls will need to be replaced and that the liquid chemical damp proof treatment might be satisfactory for the remainder, and that on this basis, the test of irredeemability is not met. It is agreed that all other aspects, including removal and replacement with new of the roof, the ceilings, the verandah (for aesthetic compatibility), much of the footings, all of the floor, front fence (for aesthetic compatibility) and the other functional aspects including walling, doors, windows, electric wiring, plumbing and kitchen, laundry and ablution facilities, would all need to be new. So, with respect to the external walling, considered to be of particular heritage importance, the greater likelihood and opinion of the structural engineers, is that the majority would need to be removed to a height of 1 metre or up to 1.8 metres and on this basis, and having regard to the balance of the building, the whole place is considered to be irredeemable.

38. I prefer the opinions of the structural engineers and Ms White over the opinion of Mr Taylor and Mr Marchetti and find the evidence to be compelling, confirmed by my on-site observations, and I find that "the place" is irredeemable for the purposes of Principle 47 and the Development Plan.

39. Council Wide Principle 51 (quoted above) particularly sought retention of the façade, if demolition of a local heritage place was to occur, and this aspect was considered by the various experts. I have taken account of the following:

•	A new verandah is required to replace the existing non-original and unsympathetic verandah, to improve compatibility with the heritage streetscape;

•	The whole of the roof will be required to be replaced and it should be of more appropriate materials and colours than the pressed metal orange "tiling" at present;

•	It is likely (on the basis of advice and opinion from two engineers) that the majority of the external walls (including some of the front walls) will be required to be underset and replaced; and

•

That all walls and the chimney are currently unsatisfactorily rendered with concrete stucco (a likely significant contributing factor to the major salt damp problem existing and hiding the appearance of the red brick fabric underneath) and that upon its removal there is a high likelihood that a significant proportion of the front wall would need to be underset and replaced.

40. I agree with Ms White that it is not reasonable or of sufficient point to require redemption/restoration of the remainder of the façade fabric. Together with the "form" of the cottage, said by Mr Marchetti to be important, these could be easily redeveloped to be more compatible with the heritage character of the street, in any new replacement development. Hence, due to the above factors I find that it is not reasonable to require retention of the façade, namely portions of the front and side red brick walls and the chimney to be retained and incorporated in any subsequent redevelopment as sought by Principle 51(a).

41. I am satisfied that the tests, and they are onerous tests in Principles 47 and 51, are met and that extreme circumstances exist in this case to warrant approval to demolition of the whole building including façade (and the minor outbuilding).

42. Indirect impacts cannot be ignored and whilst of secondary importance in this case, the questions of obsolescence and economics are of some relevance. I do not accept, as put to me by counsel for the respondent, that they are to be ignored entirely and are of no relevance. Whilst there are no specific provisions in the Development Plan referring to the "economic life of buildings" or to take account of the cost/economic implications of restoration of heritage places, nevertheless Metropolitan Adelaide Objective 1 and Council Wide Principle 2 and Principle 4 bring into play these considerations.

"METROPOLITAN ADELAIDE

Objective 1: Orderly and economic development."

"COUNCIL WIDE

PRINCIPLES OF DEVELOPMENT CONTROL

2.	Development should be orderly and economic.
4.	Development in localities having a bad or unsatisfactory layout, or unhealthy or obsolete development, should improve or rectify those conditions." (My underlining).

43. In my view it is also implicit in the concept of redeemability (Council Wide Principle 47(b)), so that some consideration of such aspects, as may be more evident in certain cases and as conceded by Mr Taylor, is necessary.

44. In this matter, the decision does not rest on these aspects as the significant, explicit tests in Principles 47 and 51 are found to be met, supported by the evidence of two structural engineers.

Conclusions

45. I have given balanced consideration to all aspects, the evidence, and my observations, and acknowledge that the spirit and intent of the Historic (Conservation) Zone - Residential and the Development Plan guidelines generally for heritage conservation of buildings and for local heritage places, are mostly directed to preservation, restoration, rehabilitation and repair, wherever possible, but that Principle 47 quite properly provides for consideration of extreme circumstances and cases where demolition may be acceptable. The Court is satisfied that such are the circumstances and facts in this case.

Decision

46. The appeal is allowed, the decision of the Council is reversed and Provisional Development Plan Consent is granted unconditionally, as I cannot envisage any reasonable or relevant planning condition being applicable, with most relevant matters concerning demolition dealt with through the subsequent Building Rules Consent stage.

47. There will be an order accordingly.