Re: Re: Should the Clarence Hotel redevelopment get permission?
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Inspector on â€œexceptional circumstancesâ€:
[align=left:3105yhmx]I note that there is no definition of â€œexceptional circumstancesâ€ 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 â€˜proper planning and sustainable development of
the areaâ€™. 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 â€œexceptional
circumstancesâ€. 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 â€˜special interestâ€™ of the whole,
referring to the applicantâ€™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.
â€œExceptionalâ€, in my own understanding of the word, infers that something is out of the ordinary. Thus, â€œexceptional circumstancesâ€ 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 â€œexceptional circumstancesâ€ 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 applicantâ€™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 â€˜exceptional circumstanceâ€™ provided but the totality of circumstances does not appear to combine to create any â€˜exceptionâ€™ 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. Oâ€™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
applicantâ€™s position on exceptional circumstances does not meet with the intent of the Act or
(Inspectorâ€™s Report, Assessment, Section 13.1, pages 46 â€“ 47)