Re: Re: Should the Clarence Hotel redevelopment get permission?

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Inspector on “exceptional circumstances”:

[align=left:3105yhmx]I note that there is no definition of “exceptional circumstances” under the Planning and

Development Act 2000. Thus, it appears reasonable to conclude that it was not intended by

the Act to seek to define the extent of what could constitute an exception in relation to

allowing demolition of a protected structure. Clearly, the exception is to be determined by the

planning authority or by the Board on appeal, with due regard in such a determination being

couched in a responsibility to consider the ‘proper planning and sustainable development of

the area’. The Board would also be entitled to consider the common good and, indeed, this

has been noted by the parties to the appeal.

The Architectural Heritage Protection Guidelines, as with the Act, do not define “exceptional

circumstances”. They do, however, offer or suggest examples of where demolition may be

considered. The applicant correctly submits, in my opinion, that the Guidelines are not to be

regarded as a legal interpretation of the relevant statutory provisions and it is not their

purpose. The applicant also submits that the range of examples given are not exhaustive and

that the Guidelines suggest that it is appropriate to give consideration and to identify those

aspects of a protected structure which contribute to the ‘special interest’ of the whole,

referring to the applicant’s position that one of the principal justifications for the designation

of the Clarence Hotel as a protected structure is its historic and established use as a hotel.

“Exceptional”, in my own understanding of the word, infers that something is out of the ordinary. Thus, “exceptional circumstances” in relation to demolition of protected structures would be circumstances that one considers would not be ordinary or common. In this

instance, the circumstances should be much more than a general planning argument or merit

of this proposal that would allow for the demolition of the protected structures. The dilemma

that I see for the applicant is that none of the circumstances put forward are in themselves

exceptional. Nor do they, as a group, add up to be exceptional. How many times has the

Board faced the opinion of applicants that set out the merits of a proposal in the same way as

this proposal? I would estimate that the Board faces these types of arguments promoting

development schemes on a frequent basis.

The circumstances provided are not unique or out of the ordinary. They do not set themselves apart evidently when one is considering the context of architectural heritage, and, importantly, it is the context of architectural heritage within the legislation where the term “exceptional circumstances” is placed. I am of the opinion that they are commonly placed arguments. Many applicants laud their design, espouse the development of an iconic structure, promote the regeneration impact of a proposal, acknowledge the retention of a use, emphasise their contribution to the economy, etc. Significantly, there is nothing unique about the circumstances in this case that leads one to conclude that the protected structures on this site merit demolition.

To this extent, it is very notable that the applicant’s list of exceptional circumstances does not refer to the condition of the protected structures. The applicant has made an attempt to limit the extent of what is protected. However, the structures (the protected nature of which clearly extends beyond that ascertained by the applicant) are not condemned due to any poor structural condition. There is nothing in the form of a physical debilitation relating to the buildings on the site that merit their demolition. Not alone is there no ‘exceptional circumstance’ provided but the totality of circumstances does not appear to combine to create any ‘exception’ to allow for demolition.

The legislation, as it relates to protected structures, has significantly strengthened with the adoption of the Local Government (Planning and Development) Act 1999 and the Planning and Development Act 2000. The intent is clearly to put in place measures which acknowledge the importance of these structures, to put in place a system of protection, and, having established a comprehensive system of protection, to allow for loss of these protected structures by way of demolition only as a last resort. Indeed, when I questioned Dr. O’Dwyer

of the Department of the Environment, Heritage and Local Government at the oral hearing he

accepted that demolition of a protected structure is a last resort, as for example where a

structure has been seriously damaged by fire. While the Act does not provide any definition

of exceptional circumstances and the Guidelines do not provide an exhaustive list of such

circumstances, I consider that there is significant understanding to merit a conclusion that the

applicant’s position on exceptional circumstances does not meet with the intent of the Act or

the Guidelines.[/align:3105yhmx]

(Inspector’s Report, Assessment, Section 13.1, pages 46 – 47)

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