Posted on June 12, 2012 by Megan Hawley

Proposed new powers to order demolition

On 24 May 2012 the Environmental Planning and Assessment Amendment (Demolition Orders) Bill 2012 (the Bill) was introduced into the NSW Legislative Assembly.

The Bill proposes to amend the Environmental Planning and Assessment Act 1979 (EPA Act) to enable a council or consent authority to give an order requiring demolition or removal of a building, if it is unoccupied, and is unsightly and significantly detracts from the amenity of the neighbourhood.

If the Bill is passed, and becomes law, it will add an additional grounds on which an order can be made under Item 2 of the Table to s121B of the EPA Act, for the demolition or removal of a building.

Currently such an order can only be made if:

• the building was erected without development consent, where development consent was required, or approval under the Local Government Act 1993, if that was required;
• the building is or is likely to become a danger to the public;
• the building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood.

If the Bill becomes law, the new grounds on which a demolition order will be able to be  issued will involve matters which are subjective, being whether a building is unsightly or significantly affects the amenity of an area.

Also, there will be no requirement that the relevant building has to have been unoccupied for any particular period of time before such an order could be issued. Therefore, if a council or consent authority considered a building to be unsightly and to significantly detract from the amenity of a neighbourhood, then such an order could be issued, technically, as soon as a tenant moves out of the building.

Such an order could be issued in respect of a structurally sound building, which had been erected pursuant to a properly obtained development consent, and even if its amenity impacts were considered at the time of the grant of consent.

As such, if the Bill becomes law, it will significantly erode the enduring nature of development consents, and development rights.

It is also expected that it will generate many appeals to the Land & Environment Court against the issue of orders to demolish buildings, because they are unoccupied, unsightly and have significant amenity impacts. Those appeals will of necessity involve detailed planning evidence regarding the visual and other amenity impacts of the building. The Court would be revisiting the planning merits of the building.

The Bill also proposes amendments to the EPA Act to the effect that:

• a period of 10 days will be considered to be a reasonable time for a person to make representations as to why an order requiring the demolition or removal of a building should not be made; and
• an order requiring demolition or removal of a building can specify a period of not less than 10 working days within which the order must be complied with

A period of 10 days in which to comply with a demolition order may be appropriate where a building is dilapidated and causing danger, but seems unreasonable for a building which poses no imminent threat, and which a council wants removed solely due to amenity impacts, and because it is unsightly.

We will keep track of the Bill and post further blogs regarding its passage.