Kidd v Resource Management and Planning Appeal Tribunal

(2011) 20 Tas R 339; [2011] TASSC 38

Supreme Court of Tasmania

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For Australian Law.

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Interrogate

Catchwords

1. Environment and Planning
2. › Heritage conservation
3. › Powers and duties of authorities
4. › Building listed on register of places of historic cultural heritage significance
5. › Approval of Heritage Council required for works which may affect significance
6. › Approval only to be given if satisfied no prudent and feasible alternative to carrying out the works
7. › Whether inquiry confined to context of proposal
8. › Correct test under s 41
9. › Historic Cultural Heritage Act 1995 (Tas), ss 39, 41
1. Environment and Planning
2. › Development control
3. › Demolition of buildings listed in planning scheme as places of cultural significance
4. › Whether failure by Appeal Tribunal to consider and determine all relevant aspects of planning scheme
5. › Whether failure to consider cl 28.5(b) was vitiating error
6. › Sullivans Cove Planning Scheme 1997, cl 28.5
1. Administrative Law
2. › Judicial review
3. › Error of law
4. › Vitiating error
5. › Whether error material to decision
6. › Whether decision would or might have been different but for error
1. Administrative Law
2. › Tribunals
3. › Review of tribunal reasons
4. › Approach to construction of tribunal reasons
5. › Whether reasons to be read fairly and not with eye keenly attuned to perception of error

Quick Take

The 'no prudent and feasible alternative' test under s 41 of the Historic Cultural Heritage Act 1995 (Tas) is a stringent test that cannot be confined to the parameters of a developer's proposal. A very clear and compelling case must be made out to satisfy the Heritage Council that there is no prudent and feasible alternative to works likely to destroy or reduce heritage significance. The test does not involve a mere balance of convenience. The greater the heritage significance of the place, the greater the 'prudence' of alternatives. Planning authorities must separately consider all relevant provisions of a planning scheme, including discretionary refusal powers under cl 28.5(b), even where heritage approval has been granted under the HCHA.