A noteworthy practice day hearing was recently held for a controversial three level apartment proposal over four lots at 28-34 Service Street, Hampton which highlights the limitations of the planning system when applying for heritage protection.

The original planning permit application attracted over 100 objectors, many of which brought up that there were four Edwardian/Federation homes on the site that should have heritage protection. It is noted that at the time the objections were made, there were no planning controls on the site that would prevent the demolition of the dwellings.

Whilst the application went through the VCAT appeal process, the developers settled on the properties and promptly applied to the Bayside Council building department, under Section 29A of the Building Act, to demolish the dwellings.

Although Council’s planning department actively sought interim and permanent heritage protection for the dwellings, Council’s building department approved the demolition as no heritage controls had yet been approved. Two of the buildings were then demolished.

As part of practice day discussions, the developers then notified all parties that they would be demolishing the remaining dwellings and as a result, at this time Council invited VCAT to file an injunction to stop the demolition.

The Tribunal considered this invitation at a later practice day hearing and refused to file an injunction for a number of reasons, including.

• The VCAT appeal was on the merits of the apartment proposal, therefore there was no scope to consider the contribution the existing dwellings made to the neighbourhood and therefore no valid reason to stop their demolition.
• If a Planning Scheme Amendment successfully applied a Heritage Overlay, the dwellings in question still could not be saved from demolition as there was already a valid demolition permit in place.

This decision serves as a cautionary tale of the pitfalls of trying to introduce retrospective planning controls.