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
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
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
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
The demolition of the house would result in the loss of
traditional building character. A1 was not satisfied.
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