Practice Guideline 3: Historic Area Overlay
The State Planning Commission (Commission) has recently published a new Practice Guideline pursuant to section 43 of the Planning, Development and Infrastructure Act 2016 (PDI Act).
This ‘Practice Guideline 3 – Historic Area Overlay’ (Practice Guideline) purports to aid in the interpretation of policies identified in the Historic Area Overlay (Overlay) under the Planning and Design Code (Code).
The Practice Guideline specifically aims to provide clarification as to how the Overlay policies are to be applied in relation to:
- proposed demolition of existing buildings; and
- the role of ‘Representative Buildings’ within the Overlay.
The Practice Guideline is available to read here.
Background: Historic Area Overlay (clause 5)
The Overlay applies to specific localities where the existing built form demonstrates particular historic themes and characteristics of importance.
Whilst the Overlay contains standard Assessment Provisions, these are further informed by specific Historic Area Statements, which speak to the attributes or characteristics of importance within a particular area. Together, the Overlay policies and Historic Area Statements inform the assessment of development applications for proposed development within the Overlay.
Demolition of buildings within an Historic Area Overlay (clause 6)
Under the Act and the Planning, Development and Infrastructure (General) Regulations 2017 (Regulations), any partial demolition of a building within the Overlay constitutes a form of development.
The Practice Guideline provides that assessment of any proposed development that includes partial demolition will consider if the building displays attributes that contribute to the historic character of the streetscape, as described in the Historic Area Statement.
Clause 6 of the Practice Guideline provides that the partial demolition of buildings or elements of buildings that are not considered to display attributes described in the Historic Area Statement can be supported.
Clause 6 provides similar guidance for assessment in respect of a proposed demolition of the whole of a building, subject to further qualification that the demolition should not be approved unless:
the front elevation of the building has been substantially altered and cannot be reasonably restored in a manner consistent with the building's original style; or
the structural integrity or safe condition of the original building is beyond reasonable repair.
The Practice Guideline further identifies, by footnote, several examples in South Australian case law where the threshold of “beyond reasonable repair” had been considered.
Representative Buildings and development assessment (clauses 7 and 8)
The Practice Guideline also deals with how policies should be applied to Representative Buildings in the assessment of applications for planning consent within the Overlay.
Representative Buildings are defined in Part 8 of the Code as ‘buildings which display characteristics of importance in a particular area’. It is not a term that appears in any other context in the PDI Act or the Heritage Places Act 1993.
Clause 8 of the Practice Guideline provides that:
(a) Representative Buildings are to be used to assist relevant authorities and applicants in interpreting the attributes/characteristics identified in Historic Area Statements.
(b) Representative Buildings located within an Historic Area Overlay may, or may not, contain attributes or features identified in an Historic Area Statement.
(c) a Representative Building cannot be assumed to be worthy of retention and an assessment will be required by the relevant authority to determine the extent to which the building demonstrates the attributes outlined in the Historic Area Statement; and
(d) Representative Buildings are not afforded greater protection than other buildings located within an Historic Area Overlay.
(Our emphasis).
Clause 8 further provides that any application for whole or partial demolition of a Representative Building shall be assessed by a relevant authority in the “exact same manner as any other building” within the Overlay.
Clause 8, in particular subclauses (c) and (d), therefore appears to qualify that Representative Buildings are not to be given any special status within the Overlay, nor should they be assumed to demonstrate the attributes or characteristics described in an Historic Area Statement. This approach would appear to be directly contrary to the definition provided in the Code, whereby a Representative Building is a building that displays ‘characteristics of importance’ within the Overlay.
As such, a relevant authority, in applying this Practice Guideline, would effectively disregard the identification of a building as a Representative Building and assess it in a manner consistent with all other buildings within the Overlay, having regard to whether it does demonstrate the attributes described in the Historic Area Statement.
Applying the Practice Guideline
In accordance with section 43(3) of the PDI Act, if a relevant authority acts in accordance with a Practice Guideline, it will be taken to be acting consistently with the relevant provision(s) of the Code.
The Practice Guideline seeks to assist the public and relevant authorities in assessing applications for development within the Overlay, particularly in respect of factors relevant to whole or partial demolition of a particular building (irrespective of whether or not it is a Representative Building).
For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.
