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Builder’s legal argument demolished in court

Published 15 February 2023
A building company convicted of illegally demolishing a Port Melbourne house has been fined $25,000 and must also pay Port Phillip Council $23,000 in legal costs.

While the incident happened in 2019, the deed of settlement for payment of the legal costs was finalised in December last year.

The win for heritage protection rules follows our Council launching legal action in the Melbourne Magistrates’ Court after becoming aware of this Port Phillip Planning Scheme breach.

Council Officers received a tip-off that a weatherboard home, subject to a Heritage Overlay, has been almost completely demolished - far exceeding what was allowed in a planning permit.

When Officers inspected the property, they were dismayed to discover the façade on the south eastern side of the property was almost entirely gone. The entire north facing weatherboard side, walls, flooring and roof abutting had also been demolished.

Due to the seriousness of the contravention, charges were brought against the land owner and the company of the builder who was occupying the land when the demolition happened. The planning permit was amended requiring reconstruction of the original dwelling to its existing specifications, including the same footprint, front façade fenestration (arrangement of openings such as doors), external materials, roof height and internal layout.

The land owner received a 12-month good behaviour bond and was ordered to pay our Council’s legal costs of $5,813 after pleading guilty to all charges.

The builder pleaded not guilty, submitting they acted on grounds of reasonable necessity (for reasons of imminent threat to health and safety of persons or property).

The Magistrate was not satisfied it was reasonably necessary to act contrary to the conditions of the planning permit by demolishing parts of the building not identified within it. He determined there was no reasonable basis on the grounds of health and safety to have contravened the planning permit in this way and found the company guilty on all charges. A criminal conviction was recorded.

During the sentencing in 2022, the Magistrate reiterated the seriousness of the offence and acknowledged the importance of heritage within the City of Port Phillip. He also noted the flagrant disregard for the planning process.

The house was graded as a Contributory Heritage Place inside the Heritage Overlay. These are places which contribute to the cultural heritage significance of a precinct and have been given this status in a heritage study. While not considered to be individually important places of state, municipal or local cultural heritage significance, when combined with other significant and/or contributory heritage places, they play an integral role in demonstrating the cultural heritage significance of a precinct.

Failure to comply with a permit applying to land is an offence under s126 of the Planning and Environment Act 1987. As the Responsible Authority, Council has a duty under the Act to enforce the provisions of the planning scheme, planning permits and s173 agreements applying to land.

In the last six years, our Planning Compliance Team has undertaken three prosecutions over illegal heritage demolition with a 100 per cent success rate. Another prosecution is in progress.

Anyone with questions about building works can contact us by clicking on Contact us - City of Port Phillip.

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