NDHA – says who?

11 Dec 2023

National PPG is unequivocal that non-designated heritage assets may be identified during decision-making on an application for planning permission. This much is understood and many heritage assets have been identified in this way, albeit with different outcomes for the future of the asset depending on the material considerations at play in any particular balanced decision.

With the potential to stymie a valuable development, the heritage significance and merits of a NDHA identification will often be hotly debated between planning authority and applicant. But in appeal case 200-012-365, the appellant, an established retirement home provider, went further and challenged whether a planning officer acting under delegated powers had the legal authority to accord NDHA status to a Victorian villa proposed for demolition, in making a decision to refuse permission.

During consideration of the application to redevelop the site with retirement flats, the villa was nominated for inclusion on a draft local heritage list by an archaeology advisory service, and formally included the day after permission was refused. The appellant argued that this did not amount to formal identification by the council, and that the unilateral declaration of NDHA status by the officer circumvented due process including consultation in the council’s preparation of a local heritage list as a supplementary planning document.

 The council maintained the general provisions of its scheme of delegation authorised the officer, although the inspector noted the specific heritage section was silent on the matter and in his view the scheme was not unambiguous as to whether the designation of non-designated heritage assets rested with the committee or the planning officer.

With the lawfulness of the identification of the villa as a NDHA unresolved, the inspector declared there was no foundation for considering the heritage significance of the building. In the event, he dismissed the appeal on other issues. It is noteworthy that this scenario could be repeated in other local authority areas without a scheme of delegation specifying where legal authority to identify NDHAs lies.

Delegated powers are discussed generally at DCP 5.211, local listing at DCP 4.3721, and loss of attractive and locally listed buildings at DCP 4.1434.