The recent judgment of Chief Justice Preston C-Corp Nominees Pty Ltd v Inner West Council [2024] NSWLEC 65 (C-Corp 2), highlights the importance of paying careful attention to the words of a DCP in determining the significance of the impact of demolishing a building in a heritage conservation area. In this article we discuss C-Corp 2, the first instance judgment, and another judgment decided at a similar time, with some key takeaways arising from these judgments.

Planning Framework

Clause 5.10 of the Standard Instrument Local Environmental Plan is required to be in every LEP. Clause 5.10(2)(a) permits demolition of a heritage item or building within a conservation area with development consent. However, before consent may be granted, cl.5.10(4) provides that a consent authority must consider the effect of the demolition of the building on the heritage significance of the item or area concerned.

In the ordinary course, pursuant to s4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the consent authority will look to the applicable development control plan (DCP) as a focal point of its consideration of the effect of demolition of an item. Generally, a DCP will identify circumstances when demolition of a heritage building will not be supported, and, where supportable, the matters to be addressed by an applicant in seeking consent for demolition.

These are primary controls in relation to demolition of a heritage building, the application of which were discussed in C-Corp.

C-Corp 2 and C-Corp 1

In C-Corp Nominees Pty Ltd v Inner West Council [2023] NSWLEC 1746 (C-Corp 1), the applicant sought consent for demolition. The building to be demolished was identified in the DCP as being a heavily altered Victorian Italianate style building, constructed within a “Key Period of Significance”, and classified in the DCP as being “Detracting” in the heritage conservation area (HCA); one of 5 ways the DCP classified the significance of buildings within a HCA. Notably, “Detracting” buildings were defined in the DCP as those constructed outside the “Key Period of Significance.”

Commissioner O’Neil dismissed the appeal in C-Corp 1, finding that the building was not “Detracting”. She found on the evidence before her that, among other matters, the building was in fact constructed within a “Key Period of Significance” and as a consequence found that the classification of “Detracting” as defined was incorrect: C-Corp 1 at [20]. She goes on at [24]:

I do not accept that finding that this building was incorrectly classified as detracting in DCP 2016 amounts to “put[ting] aside the standard set by the DCP and applying [my] own standard of what is reasonable” … I have carefully applied the terms of DCP 2016 in regard to the evidence of the heritage experts and concluded that the application of the definitions under DCP 2016 have been wrongly applied by the author of the cursory heritage study to this building. I have not ignored the DCP 2016 provisions, nor applied a different test to that in the DCP 2016. I have merely disregarded the individual assessment for this building.

On appeal the applicant sought to challenge this finding. Chief Justice Preston in C-Corp 2 dismissed the appeal, and in relation to the classification issue held, having regard to the task required of the Commissioner in undertaking the assessment required by cl.5.10(4) of the LEP at [52] and [56]:

…The demolition of a detracting building might be viewed as having little or no adverse effect, indeed it might have a beneficial effect, on the heritage significance of the HCA. But the demolition of a building that is not in fact detracting, but might be contributory or at least neutral, might have an adverse effect on the heritage significance of the HCA. The point is that the consideration required by cl 5.10(4) of the LEP of the effect of the proposed development on the heritage significance of the HCA cannot sensibly be undertaken on an incorrect factual basis, but needs instead to be undertaken on a correct factual basis.
…
Moreover, although under cl 5.10(4) the Commissioner, in considering the effect of the demolition of the building on the heritage significance of the … HCA, could have regard to the … HCA Character Statement, the Commissioner was not bound to apply the assessment of the building in that Character Statement but could instead depart from that assessment. To depart from that assessment of the building was not to substitute the Commissioner’s own evaluation of the heritage significance…. Rather, it was simply an application of the Commissioner’s assessment of the building as not being a detracting building… in consideration under cl 5.10(4) of the effect of demolition of the building on the heritage significance of the … HCA.

26 Salisbury

26 Salisbury Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1119 (26 Salisbury) was heard a month after C-Corp 1. Like in C-Corp, the applicant also sought demolition of building, in a conservation area, which was modified. The primary issue turned on the proper classification of the building under the DCP, which was as a contributory item. The application proposed construction of a residential flat building which the parties had agreed would be acceptable on all grounds (including heritage) subject to consideration of demolition.

The philosophy of the DCP in this case as regards a HCA generally was, “…conservation and restoration of significant fabric is a priority. Demolition should be a last resort where buildings cannot be reasonably retained and conserved…”, and to apply the principles established in Helou [2006] NSWLEC 66 in considering whether demolition was appropriate.

In support of demolition the applicant argued that the significance attributed to the dwelling house in the DCP was erroneous in circumstances where the predominant characteristic of the HCA was that of interwar residential flat buildings; there were 5 dwellings compared to 47 residential flat buildings. Further the applicant argued that the inclusion of the building as contributory was the result of a recent amendment to the DCP following a study which was undertaken without an adequate “research base”. Conversely the Council strictly applied its DCP.

Commissioner Pullinger found at [83], [91] and [95]:

Central to the Applicant’s case is that the Court - standing in the shoes of the consent authority and properly applying cl 5.10 of the WLEP - must consider the impact of the DA upon the significance of the HCA. And the Applicant submits that the “actual” or “true” heritage significance of the…HCA should be derived from the character and contribution of the inter-war residential flat buildings….

[I find that]… The subject dwelling is an identified contributory item, and as one of a small number of bungalows within the HCA, it makes a meaningful contribution to that aspect of heritage significance derived from bungalows more generally….There are conceivable ways to intensify the utilisation of the site without demolishing the existing dwelling. These include potentially enlarging the existing dwelling, or by introducing a second dwelling or dual occupancy onto the site. These scenarios may not match the Applicant’s aspiration for residential apartment development but do represent an intensification and renewal of the site consistent with the relevant land use and development standards, in a manner more likely to maintain the heritage significance of the site than demolition

The “true” significance of the Balfour Road HCA is able to be derived from the December 2021 version of the WDCP, which was properly amended to reflect the Respondent’s policy position, and acknowledges the part played by both dwellings and residential flat buildings in establishing the significance of the HCA

Summary

These cases serve as a reminder that a DCP is a focal point for assessment in determining the significance of the impact of demolition.

There may be cases where the heritage classification of a building may be erroneous or incorrect, but not as a matter of prevailing character, inadequate research or cursory study undertaken by the Council.

If the classification is incorrect as a matter of fact, there may be scope to depart from the DCPs classification of that building, in undertaking the task required by cl.5.10(4) of an LEP.

Key takeaways

• Demolition of a building in a heritage conservation area requires careful consideration of its classification under the applicable DCP, departure from which may only be permissible as a matter of fact.
• The application of the DCP is the focal point of the consent authority’s consideration of the significance of the impact of demolition required under cl.5.10(4) of the LEP, which must be undertaken on a factual basis.