Up in flames: Environment Court’s decision on heritage building demolition pre-empted by blaze

What happens when significant heritage value meets risk to public safety? This was a question the Environment Court was tasked with answering in View West Limited v Auckland Council[1] - an appeal against a decision by Auckland Council refusing consent to demolish the 133 year old St James Sunday School Hall in Mt Eden.

The hall was built in approximately 1885 and a church was constructed on the site a short time later. The whole of the site is identified in the Auckland Unitary Plan as an historic place; and both the church and hall are identified as heritage buildings with significant heritage values.

In 2012 the hall was identified as a dangerous building under section 121 of the Building Act 2004. A dangerous building notice was issued in respect of the hall and it has not been used by the community nor the congregation since.

The church, however, was not subject to the notice and has continued to be used for regular services. In 2016 Auckland Council granted consent for the modification, restoration and partial demolition of the church, involving strengthening works, replacing portions of the church and reutilising and adapting the building for use as four apartments.

Shortly after this consent was granted, an application was made for the total demolition of the hall. By this time, it had been sitting unused for some four years. The Council concluded that there were insufficient circumstances to support the demolition of the hall and declined to grant consent.

That decision was appealed to the Environment Court who identified a failure on the part of the Council to consider the condition of the building, which had deteriorated further to the point where collapse was imminent. The Court concluded that the physical resource, the hall, was no longer fit for purpose. It was structurally unsound and posed a danger to people and the surrounding properties. Therefore, doing nothing was not an option.

In an attempt to demonstrate that demolition was not necessary, the Council developed an alternative proposal which would provide for the adaptive reuse of most of the existing structure and the retention of some of the heritage values of the hall.

There was no dispute as to the significant heritage values of the hall and the Court was satisfied that the demolition of the hall would constitute a significant loss of heritage value. Nevertheless, the Court rejected the Council’s alternative proposal on the basis that it was economically unfeasible, uncertain as to weather consent could be obtained, and raised nearly as many safety issues as retaining the current building.

The Court considered the legal maxim salus populi suprema lex esto, or “the highest purpose of the law is the safety of the people” and noted that while heritage values are an important consideration, public safety is paramount. In applying the purpose of the RMA – sustainable management – the Court concluded that the best outcome would be the safe removal of the hall and substitution with a new resource fit for purpose. The significant adverse effects on heritage values were, in this case, overwhelmed by the public interest in maintaining safe structures.

In December 2018, nearly three years after the application was lodged and over six years after the dangerous building notice was issued, the Court concluded that the building should be demolished, and set down a timeline for finalising conditions. 

Before the conditions could be finalised and the consent issued, things took an unexpected turn. Some two weeks after the decision, emergency services were called to the site after a fire broke out under suspicious circumstances. Badly damaging the hall and the Church, some parts of the buildings were immediately demolished. The blaze is being investigated by the police.

The conditions for demolition have recently been finalised and the property, including what little remains of the of the two historic buildings, have been placed on the market for sale. It remains to be seen what will ultimately become of the site.

[1] [2018] NZEnvC 237

Posted on February 8, 2019 .