Guideline
Department of Environment and Heritage Protection
No prudent and
feasible alternative
This guideline has been prepared under section 173 of the Queensland Heritage Act 1992.
Part 1 – Introduction
Purpose
This guideline describes the processes and criteria for
determining whether there is no prudent and feasible
alternative—under the Queensland Heritage Act 1992 sections
68 and 71—to proposed development that will destroy or
substantially reduce the cultural heritage significance of a
Queensland Heritage Place. It applies to owners and others
seeking approval to carry out this type of development and to
the assessors of these applications (the assessing authority).
Context
The Queensland Heritage Act aims to conserve Queensland’s
cultural heritage for the benefit of the community and
future generations. However, in exceptional circumstances,
demolition or removal of a heritage place—or other action which
substantially reduces cultural heritage significance—may be
unavoidable. Under these circumstances there are requirements
for the assessing authority to consider whether there is no
prudent and feasible alternative to the proposed development.
The process for assessing Queensland Heritage places differs
depending on whether or not the applicant is the State.
Where the applicant is the State, the Queensland Heritage
Council has responsibility for the assessment and making
a recommendation to the relevant minister. For all other
applicants, the Heritage Council does not have responsibility
for the assessment. However, in the case of developments
that will destroy or substantially reduce the cultural heritage
significance of a Queensland Heritage Place, it is the
department’s policy that the assessing authority must seek
the Heritage Council’s advice. The assessment manager or
concurrence agency may only approve such applications if, on
advice from the Heritage Council, they are satisfied there is no
prudent and feasible alternative to the proposed work.
Great state. Great opportunity.
Since a primary purpose of the Queensland Heritage Act is to
conserve heritage places, the assessment of applications to
carry out work that will destroy or substantially reduce cultural
heritage significance is particularly stringent. Applicants should
investigate a full range of alternatives to the proposed work.
The investigations need to be thorough and rigorous and
incorporate expert assessments where relevant. In general,
an alternative will only be considered to be not prudent and
feasible if it would be extraordinarily difficult to implement.
The specific assessment principles are described in more
detail in Part 2. Health, safety and economic factors must be
considered in every application. Other matters may be included
in the evaluation of alternatives if considered relevant by the
assessing authority.
Note that where a principle applied in this guideline has been
demonstrated by case law, excerpts of the relevant cases are
provided in Appendix 1 – Case law.
Department of Environment and Heritage Protection
Part 2 – Application requirements
Provide sufficient information
Consult the assessing authority before
making an application
All applications should include enough information to enable
the assessing authority to properly assess alternatives. Note
that information provided may be subject to public scrutiny
under the Right to Information Act 2009.
Applications that propose to destroy or substantially reduce
the cultural heritage significance of a heritage place are
not routine. Before applying, consult with the assessing
authority. Discuss how the application will be assessed as
well as the information and public engagement that may
be required.
If an application contains insufficient information, the
assessing authority can formally request more supporting
evidence, including expert reports if necessary. The assessing
authority may also commission independent experts to
prepare reports or assess any information provided.
The department’s ‘Guideline: Preparing a heritage impact
statement’ and ‘Guideline: Heritage development’ provide
advice on how to assess the impact of a development
proposal on a heritage place.
Public engagement
Investigate alternatives
The application must investigate sufficient options to
demonstrate there is no prudent and feasible alternative to
the proposed work. These alternatives must:
• include the option of not carrying out the proposal
(doing nothing)
• include the optimum development that would cause the
minimum impact on cultural heritage significance
(e.g. for large or complex sites, it may be possible to minimise
impact on cultural heritage significance by incorporating part,
or all, of the heritage building into the proposed development
rather than building an entirely new structure)
• include the whole of the proposed development, not just
the part occurring in the heritage place
(e.g. consider development options away from the immediate
environs of the heritage place—such as funding maintenance of
the heritage building which are separate from other elements of
the development)
• consider options outside the confines of the
proposed development
• include sale, lease or other form of disposal of all or part
of the property if this may favour or aid conservation.
For every alternative, investigate all means of avoiding or
mitigating impacts on cultural heritage significance.
Great state. Great opportunity.
Unless otherwise advised by the assessing authority, public
engagement is required to assess the public benefit of the
proposed development and its impact on the social significance
of the Queensland Heritage Place. Social significance is an
aspect of cultural heritage significance under the Queensland
Heritage Act. Public engagement should involve:
• setting up a process and timetable for dialogue about the
proposed development with people and organisations
with an interest in the heritage values of the place
• identifying relevant people and organisations, informing
them about the development proposal, and offering to
engage them in discussion
• sharing information and engaging in dialogue aimed at
reaching a shared position
• documenting the engagement process and recording
community comment (this information should be included
with the application).
The assessing authority will also place a notice in the local
newspaper of the area, inviting the community to comment on
the proposal.
Community comment will be considered by the assessing
authority in its assessment of the development application.
Department of Environment and Heritage Protection
Part 3 – Assessment of applications
Assessment principles
In determining whether there is no prudent and feasible
alternative to the proposed development, the first priority will be
conserving the cultural heritage significance of the heritage place.1
Nevertheless, assessing alternatives remains a value judgment.
The degree of impact on cultural heritage significance may
be assessed in relation to the social benefit of the proposed
development, based on the individual circumstances of a
place.2 The potential social benefits may be gauged through
public engagement (see Part 2 – Application requirements,
public engagement).
Previous developments will also be taken into account.
An application may be viewed less favourably if the cultural
heritage significance or economic viability of a place has
been reduced through the cumulative effect of successive
developments—particularly if the original lot containing the
heritage place has been subdivided after listing.
For an alternative to be assessed as not prudent and feasible
there must be an extraordinary or unacceptable:
• economic cost to the State, the community, a section of
the community, or an individual
• environmental or social disadvantage
• technical impracticability
• risk to public health or safety, or
• other unusual or unique circumstances.3
The assessment of alternatives is not a simple weighing of
economic considerations or convenience. An alternative
merely costing more, or being less profitable, is not sufficient
grounds to deem this alternative ‘not prudent and feasible’.4
For strata or community title subdivisions, the assessing
authority may impose a condition requiring other lots in the
scheme to contribute to maintaining the lot containing the
heritage place.
Inability to find a current use for a heritage place is not
by itself adequate grounds for demolishing or removing a
heritage place. For example, it may be prudent and feasible to
leave a heritage place vacant for a time if:
• it is a heritage place which is not a building
• holding, maintenance and security costs are reasonably low
• it is not reasonable to expect that the place should
provide a financial return, or
• there is potential for future changes in market or local
conditions which will make another compatible use
practical and feasible.
Depending on circumstances, gradual deterioration of a
place (such as a ruin) may not detract from its cultural
heritage significance.
Great state. Great opportunity.
Compulsory considerations
Unacceptable health or safety risks may be caused by
contamination, structural instability, or other factors.
Rectifying these issues may also have extraordinary or
unacceptable economic implications.
Health and safety
When there is a health or safety risk, the following information
may be required to enable assessment of the alternatives:
• safety risk assessments
• evidence that the place has been adequately maintained.
• assessments by qualified structural engineers of the
technical feasibility and practicality of making a structure
safe or, if a use is necessary, serviceable.
It may become impractical to retain a building if a very
large proportion of the structure is unserviceable.
Alternatively, replacing a high proportion of the significant
fabric may substantially reduce the cultural heritage
significance of the place and make conservation unjustifiable.
An application will not be viewed favourably if there is evidence
that essential maintenance has not been undertaken on a
regular basis. Under section 87 of the Queensland Heritage Act,
owners are required to carry out essential maintenance on their
property. Essential maintenance should include:
• ensuring the property remains well drained and watertight
• performing pest inspections
• re-fixing loose roof or wall cladding
• removing potential fire hazards
• maintaining existing fire management systems and security
• securing openings in an unoccupied building
• shutting down electricity or gas services to an
unoccupied building.
See Appendix 2 – Some practical issues.
Economic factors
The assessing authority may require financial information if
the cost of heritage conservation is an issue. This may include:
• specific financial information such as quotations
or estimates
• expert valuations or cost plans
• (If this valuation differs from that of the Valuer-General’s,
provide a justification)
• projected profit and loss statements
• a full cost-benefit analysis (see Appendix 3 – Cost-benefit
analysis, recommended requirements).
Department of Environment and Heritage Protection
Part 4 – Further information
To discuss your development plans with one of the
department’s heritage officers before making an application
phone 13 QGOV (13 74 68) and ask to speak to a heritage
officer in the region where the heritage place is located.
The department’s heritage publications are located on
the heritage conservation pages of the website at
www.ehp.qld.gov.au.
Endnotes
1.
The Act, s2(1); Yates, para 101.
2.
Kidd, paras 31, 47, 48 and 49; Merri, para 62; Kierath, para 55.
3.
4.
Friends of Merri Creek Inc v Meakins [2003] FCA 671,
paras 51 and 63 (this reference applies to all of the
above points).
Kidd, para 47; Yates, paras 119 and 121; The Honourable
GD Kierath, Minister for Heritage: Ex Parte City of Fremantle
[2000] WASCA 156, para 55.
Prepared by: Heritage Branch, Department of Environment
and Heritage Protection
© State of Queensland, 2013
The Queensland Government supports and encourages the dissemination
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Under this licence you are free, without having to seek our permission, to
use this publication in accordance with the licence terms.
You must keep intact the copyright notice and attribute the State of
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For more information on this licence, visit http://creativecommons.org/
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Disclaimer
This document has been prepared with all due diligence and care,
based on the best available information at the time of publication. The
department holds no responsibility for any errors or omissions within this
document. Any decisions made by other parties based on this document
are solely the responsibility of those parties.
If you need to access this document in a language other than English,
please call the Translating and Interpreting Service (TIS National) on 131
450 and ask them to telephone Library Services on +61 7 3170 5470.
This publication can be made available in an alternative format (e.g. large
print or audiotape) on request for people with vision impairment; phone
+61 7 3170 5470 or email [email protected]
For more information about Queensland heritage matters visit www.ehp.
qld.gov.au
Prepared July 2013
#30250
Great state. Great opportunity.
Department of Environment and Heritage Protection
Appendix 1 – Case law
Australian Conservation Foundation v
Minister for Resources (1989) 19 ALD 70
pp 75–76:
However, legislation which seeks to protect the
environment must be read in a way which promotes that
end and not so as to frustrate achievement of proper
protection.…...
Re Yates Security Services Pty Ltd v
Honourable Paul Keating [1990] FCA 432
Paddy’s Market in Sydney was a Federation period brick and
stone building, listed on the register of the National Estate.
Section 30 of the Australian Heritage Commission Act 1975
prohibited Ministers from taking actions adversely affecting a
place on the register unless there was no prudent and feasible
alternative. Paul Keating, the Commonwealth government
treasurer, authorised the acquisition of a lease by a foreign
company for the purpose of a multi-storey development.
The Federal Court concluded that Mr Keating’s decision was
invalid, because there had not been a proper investigation of
the alternatives.
Excerpt from judgment:
101. A similar approach should be taken to the
interpretation of s.30 of the Australian Heritage
Commission Act, subsection (4) of that section, which
makes clear that various types of executive decisions,
including decisions relating to work to be undertaken by
others, may constitute the “taking of action” within the
meaning of the section; that is, action which is capable of
adversely affecting a particular place. So, for example, the
section catches a decision to grant financial assistance to a
State to enable it to carry out work in a place entered on the
Register, notwithstanding that the Commonwealth decision
itself could not adversely affect the place. This conclusion
is consistent with the view taken by Davies J in Australian
Conservation Foundation v Minister for Resources. It
appears that counsel submitted to his Honour that the
grant of an export licence did not, and could not, in itself
adversely affect the national estate. At pp. 75-76 Davies J
responded to that argument in this way:
“However, legislation which seeks to protect the
environment must be read in a way which promotes that
end and not so as to frustrate achievement of proper
protection. Therefore, when s.30(1) speaks of action that
adversely affects a part of the National Estate, it must
be read as encompassing not merely action that has
a direct adverse impact upon the National Estate but
also action which has a tendency indirectly to impact
adversely upon the National Estate. The grant of a
Great state. Great opportunity.
licence which assists the taking of action adverse to a
part of the National Estate, which promotes or facilitates
that action, is itself action that adversely affects that
part of the National Estate.”
116. ….. the critical question for the Treasurer was whether
or not there existed a feasible and prudent alternative to
approval, so that an investigation of alternatives would
have to be made before any approval could be granted.
In the absence of an investigation showing that there
was no feasible or prudent alternative, the application of
the Department’s advice must have led to rejection. Yet,
although no investigation had occurred or was proposed,
the Board declined to recommend that course. Instead, it
recommended an approval, subject to conditions.…
117. The Board’s misunderstanding ….. is reflected also in
its second minute. I have already noted the Board’s report
that it had contacted the New South Wales government
“on whether all prudent and feasible alternative sites
and designs had been investigated”. The reference to
alternative designs is unexceptionable; in considering
whether there was a feasible and prudent alternative to
the development proposed for this site, it was essential to
consider whether any new development might be designed
in a different way. But the reference to alternative sites
suggests that the Board started from the proposition that
this development had to be accommodated somewhere,
and then enquired whether it could be accommodated
somewhere else. Except, perhaps, in the case of a
development so unusual and important that it would
not be feasible or prudent for the community entirely
to forego that development, an answer to the question
posed by the Board, one way or the other, would not assist
the determination of the question whether there was a
feasible and prudent alternative to a particular proposed
development on a particular site. Except in the postulated
case, it would be consistent with feasibility and prudence
to forego the development altogether. …..
119. ….. the Minister was under a duty to be satisfied
that there was no feasible and prudent alternative. If
necessary, he had to seek out and evaluate information
on alternatives, in much the same way as, in Manchester
Environmental Coalition, the commerce commissioner had
to investigate, and find against, the possibility of a mass
transit system. Contrary to a submission put in this Court
on behalf of Rockvale, s.30(1) is not satisfied merely by the
absence, at the time when the relevant action is being first
considered, of an alternative of demonstrated feasibility
and prudence. Further, the Board was prepared to accept,
as a possible alternative, only a development which was
commercially viable after bearing the same land cost. This
limitation was imposed in deference to Valtone’s creditors
and shareholders; but, as both Overton Park and Wayne
County make clear, mere economic considerations cannot
determine what is “feasible and prudent” in a statutory
context such as this. If s.30(1) were so interpreted it would
Department of Environment and Heritage Protection
fail its purpose. The most economically advantageous
proposal would prevail.
…..
121.…… As the American cases demonstrate, and they only
apply the words “feasible” and “prudent” in their ordinary
meaning, a proposal ought not to be regarded as infeasible
or imprudent simply because it is more costly or less
profitable.
122. Furthermore, the Treasurer knew that the Board had
not made any more general inquiry about alternatives;
perhaps involving yet a different proposal or form of
development or leaving the site as it was. Except, perhaps,
in a case where a place is in such a condition as to be
dangerous, or to constitute a nuisance, to others, the “do
nothing” option might ordinarily be thought to be a feasible
and prudent alternative to action which will adversely affect
a place entered on the national estate Register. But this
was not considered. …..
138. In my judgment, s.30 evinces an intention to ensure
that actions by Commonwealth officers do not adversely
affect places entered on the Register of the national estate
unless a positive conclusion is reached by the responsible
Minister that such affectation is, in practical terms,
inescapable and all reasonable minimisation measures are
taken. As I have already suggested, this objective is central
to the statute, there being little point in compiling a Register
unless places entered in it are protected, at least from
adverse Commonwealth actions. …… The objective which I
have identified is one which was adopted in vindication of
the public interest, as perceived by Parliament, in protecting
places of established heritage value.
The Honourable GD Kierath, Minister
for Heritage: Ex parte City of Fremantle
[2000] WASCA 156
The City of Fremantle requested placement of the Cooperative
Grain Silos at North Quay on the Western Australia register of
Heritage Places. The Minister decided not to list the silos. The
Supreme Court of Western Australia overturned the Minister’s
decision. In its judgment the Supreme Court discussed the
effect of listing on the register.
Excerpt from judgment:
55. Working backwards, in a sense, through the Heritage
of Western Australia Act, once a place is entered on the
Register, either on an interim or permanent basis, the use
of the land is not sterilised but, in broad terms, any action
taken in respect of it must either be in accordance with the
views of the Heritage Council, or there must be no “feasible
and prudent” alternative and all reasonable measures must
be taken to minimise any adverse effect. The “feasible
and prudent” test is a stringent one, but would appear to
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encompass reference to economic considerations, such as
the significance of what is proposed for the place to either
the State as a whole, or the community, or a section of it, or
an individual. …….
Friends of Merri Creek Inc v Meakins
[2003] FCA 671
The Commonwealth government approved funding of a
construction project for realignment of the Hume Highway
between Craigieburn and the Metropolitan Ring Road, north of
Melbourne. The realignment affected grasslands which were
entered on the register of the National Estate. The Friends of
Merri Creek claimed that the Commonwealth government’s
delegate, Mr Meakins, had not properly considered whether
there was no prudent and feasible alternative to the
nominated route, as required by section 30 of the Australian
Heritage Commission Act 1975. However, the Federal Court
found that Mr Meakin had properly considered all the relevant
alternatives, and dismissed the appeal.
Excerpt from judgment:
50. The Supreme Court of the United States ….. in Citizens
to Preserve Overton Park Inc v Volpe 401 US 402 (1971),
…… consider[ed] ….. the meaning of a “feasible and
prudent alternative” in s 4(f). The respondent argued that
this language afforded the Secretary a wide discretion
to consider a number of factors, including the detriment
to parklands, in reaching a decision. The Supreme Court
disagreed. The opinion of the court was delivered by
Marshall J. He said that the words “no feasible and prudent
alternative” required the Secretary to give “paramount
importance” to protection of parkland, unless there were
levels of cost or community disruption of “extraordinary
magnitude”, or other “truly unusual” factors (at 41213). The word “feasible” meant, “as a matter of sound
engineering it would not be feasible to build the highway
along any other route” (at 411). Interestingly, the word
“prudent” was not interpreted to indicate that a balancing
of competing interests should be undertaken such that
the resulting destruction of parkland should be weighed
against the cost of other routes, safety considerations,
and other factors. On the contrary, Marshall J observed (at
411-13):
“It is obvious that in most cases considerations of cost,
directness of route, and community disruption will indicate
that parkland should be used for highway construction
whenever possible. ... there will always be a smaller
outlay required from the public purse when parklands are
used since the public already owns the land. ... And since
people do not live or work in parks, if a highway is built
on parkland no one will have to leave his home or give up
his business. Such factors are common to substantially all
highway construction. Thus, if Congress intended these
factors to be on an equal footing with preservation of
Department of Environment and Heritage Protection
parkland there would have been no need for the statutes.
Congress clearly did not intend that cost and disruption
of the community were to be ignored by the Secretary. But
the very existence of the statutes indicates that protection
of parkland was to be given paramount importance. The
few green havens that are public parks were not to be
lost unless there were truly unusual factors present in
a particular case or the cost or community disruption
resulting from alternative routes reached extraordinary
magnitudes. If the statutes are to have any meaning, the
Secretary cannot approve the destruction of parkland
unless he finds that alternative routes present unique
problems.” [citations omitted]
51. In other words, the cost, directness of route, and other
such factors do not account for a more prudent alternative.
Rather, there must exist “truly unusual factors”, or the cost
or community disruption resulting from alternative routes
must have reached “extraordinary magnitudes” such that
the alternatives present “unique problems”. ……
52. Section 4(f) came to be adopted in Australian
legislation …..:
54. The object of s30 of the Heritage Act was therefore to
reverse the impact of government activities on Australia’s
National Estate so that in the future Australia’s heritage
would be given paramount consideration in government
decision-making processes. The section was designed
to ensure that decision-makers are informed about the
environmental consequences of their proposed actions
and are made aware of feasible and prudent alternatives
in order for them to be able to satisfy themselves that they
have no effective choice but to take the proposed action.
……
62. …… For the purpose of this Assessment, I regard:
‘Feasible’ as relating to the technical practicability and
cost-effectiveness, and
`Prudent’ as relating to the economic benefits and
environmental and social merits, .…..
63. …... No proposal which would cause harm to the
grasslands would be accepted unless there were reasons
of technical impracticability and cost or extraordinary
economic hardship or environmental and social
disadvantage in providing such protection.
Kidd v Resource Management and
Planning Appeal Tribunal [2011]
TASSC 38
2-4 Salamanca Place in Hobart is listed on the Tasmanian
Heritage Register. Section 41 of the Historic Cultural Heritage
Act 1995 required the planning authority to be satisfied there
was no prudent and feasible alternative before approving an
Great state. Great opportunity.
application for works which were likely to destroy or reduce
the historic cultural heritage significance of a registered place.
A permit for demolishing two buildings was issued, as part of
a redevelopment of a much wider area. Ms Kidd claimed that
the alternatives were not properly considered. However, the
Supreme Court of Tasmania found the alternatives had been
properly considered, and dismissed her appeal.
Excerpt from judgment:
31. On one view, as counsel for the appellant
acknowledged, to say that the phrase [‘no prudent and
feasible’] must be concerned with the carrying out of the
works in the context of the proposal is a statement of
the obvious. I would have thought that the reason for, or
what is sought to be achieved by, the works would always
need to be considered, and that this means looking at
the proposal, particularly where, as here, the works the
subject of the application were far broader in scope than
the “works” which were the subject of the s41 debate. …
the parameters of the issue under s41 are set by what is
ultimately sought to be achieved by the proposal.
43. As to the principal aspect of the present issue, in my
opinion the inquiry under s41 as to whether there is no
prudent and feasible alternative to the carrying out of
the works is not one confined to, nor constrained by, the
parameters of the proposal. ……
44. …… It cannot be right that the decision-making as to
a prohibition on works of a certain kind can be fashioned
and constrained purely according to the terms of the
proposal. On that basis, the inquiry becomes one as to how
the proposal can be achieved other than by the proposed
works. This severely limits the operation of the section and
is an interpretation which does not promote the purpose of
the Act. Section 8A of the Acts Interpretation Act provides
that in the interpretation of a provision, an interpretation
that promotes the purpose or object of the Act is to be
preferred to an interpretation that does not…..
46. As to meaning of the phrase itself, I think it to be
correct that the two words “prudent” and “feasible” do
have their ordinary meanings, but in their context, concern
particular issues. Any alternative under consideration must
of course be both prudent and feasible, a combination
which may have an exponential effect. I think it is correct
to say that “prudent” as used in the section concerns
acting with or showing care, thought, and sound judgment,
and relates to profitability, economic management and
frugality: New Shorter Oxford Dictionary 1993, Macquarie
Dictionary, 5th ed, 2009. “Feasible” means practical, or
possible in the sense of capable of being conveniently
done or accomplished: New Shorter Oxford Dictionary
1993. What has to be confronted is whether the use of the
phrase in s41 amounts to a direction that approval cannot
be given unless there are overwhelming issues of technical
impracticality or extraordinary economic hardship involved
in the alternatives. That is to say, whether “there must
Department of Environment and Heritage Protection
exist ‘truly unusual factors’, or the cost to the community
disruption resulting from alternatives must have reached
‘extraordinary magnitudes’ such that the alternatives
present ‘unique problems’.” Merri Creek at [51].
47. …... What prudent and feasible alternatives exist
are questions of fact. The exercise calls for a value
judgment: Australian Conservation Foundation v Minister
for Resources (1989) 76 LGRA 200 at 209, Friends of
Hinchinbrook Society Inc v Minister for Environment (1997)
69 FCR 28 at 80. I have said that the test is a stringent
one. This is so because of the need to achieve the primary
purpose of the Act and in particular, to accord with s90.
Beyond that, I think that what can be said is that a very
clear and compelling case would need to be made out in
order to satisfy the Council that there is no prudent and
feasible alternative to the carrying out of the relevant
works. Section 41 plainly does not involve a test using the
notion of the balance of convenience, merely weighing
the convenience of doing things which involve the
destruction or reduction of heritage significance against
the inconvenience of what that causes in terms of loss of
such value.
48 Rejecting the approach adopted by the Tribunal does
not mean that it is inappropriate or unnecessary to look at
the subject works in the context of the proposal. As I have
already indicated, the reason for the works is a relevant
factor in the inquiry. In many cases, the scope of the
proposal will not be a wide one. In some cases, as here,
the works will be in the context of a much broader proposal
of far greater scope and purpose. What ultimately is sought
to be achieved is a proper matter to be taken into account.
As Wheeler J said in Re The Hon G D Kierath (above), the
test encompasses such things as the significance of what
is proposed for the place. I do not read that as being put in
a limited sense. In a manner of speaking, the greater the
social utility of the ultimate purpose, the less “prudence”
there may be in any alternatives, which would assist in
the conclusion that there are no prudent and feasible
alternatives. It may be that the benefits of a broad proposal
which only relates in part to a registered place, are so great
that the destruction or diminution of heritage significance
is justified.
49 At the same time, the extent of the heritage significance
is also a relevant factor. In the making of the value
judgment, such an assessment is necessary. The baseline
starting point is the criteria for listing in the register. In
the same manner of speaking, the greater the value of
the place, the greater would be the “prudence” of any
alternatives. It may be that there is iconic value of such a
degree that it would take extraordinary circumstances to
justify the works, if justifiable at all.
Great state. Great opportunity.
Department of Environment and Heritage Protection
Appendix 2 – Some practical issues
Sustainable Planning Act 2009 (SPA):
emergency provisions
In emergency situations where personal, health or structural
safety is endangered, the SPA allows work to be carried out
prior to making a development application. All reasonable
steps must be taken to ensure the work is reversible and the
impact of the work on cultural heritage significance is limited.
If practical, advice must be sought from a registered
professional engineer.
Asbestos
Many heritage buildings have asbestos cement roofing or
wall sheeting. Loose (unbonded) asbestos can also be found
in interiors, used for insulation and other purposes.
Potential asbestos hazards should be assessed by a
qualified expert. However, it is rarely necessary to remove
asbestos that is in good condition and not disturbed. In these
circumstances, partial or complete demolition may not be
justified on health and safety grounds.
If it becomes necessary to remove dangerous asbestos
that forms part of significant fabric, replacing it with an
equivalent safe material is preferable to demolishing that
part of the structure.
Structural stability
Structural instability may be grounds for demolition if it can
be demonstrated that it is not technically feasible to make the
building serviceable, or the costs of doing so would not be
prudent and feasible.
Failure to meet current Building Code of Australia (BCA)
requirements is not adequate grounds for demolition.
In general, existing buildings are only required to comply with
the BCA requirements in effect at the time they were originally
assessed or constructed (s115 of the Building Act 1975). If there
is an alteration or addition to an existing building, a complete
upgrade is only required in particular circumstances.
All alternatives to demolition should be considered including
partial demolition or replacing or supplementing existing
structural elements. For example, existing roof structures
vulnerable to cyclonic winds can often be retrofitted with
tie-downs and new fixings for roof sheeting, with minimal
disturbance to significant fabric.
Great state. Great opportunity.
Land contamination
Land contamination may prevent a compatible use.
Remediating may destroy significant heritage fabric, or the
cost of remediation may result in economic costs that are not
prudent and feasible. In each case, it is important that all
feasible options for remediation and re-use are investigated,
to determine whether the cultural heritage significance of the
place can be retained. It may be appropriate to “do nothing”,
leaving the contamination undisturbed if it is not a current
threat to safety, and leave the site partially vacant or develop
to a lower intensity.
Department of Environment and Heritage Protection
Appendix 3 – Cost-benefit analysis,
recommended requirements
A cost-benefit analysis weighs the expected benefits and
costs of a proposal. However, in the context of a ‘no prudent
and feasible’ application, it should only be used to compare
the economic costs and benefits of alternatives. It is a more
sophisticated form of analysis than profit and loss because
it assesses economic impact over a period of time. A costbenefit analysis can compare the ‘do nothing’ option with
development options because it assesses annual cash flows.
A profit and loss analysis cannot assess the ‘do nothing’
option, as it normally only assesses development options.
A full cost-benefit analysis should:
• evaluate all costs and benefits (revenues) for each
alternative which is assessed
• provide adequate statistical and other evidence
• provide details of all assumptions made in the
calculations, including the basis of usage and sales
projections, life-spans, financing and depreciation
arrangements, taxation considerations, and prime cost
items such as labour, energy, transport and materials
• detail the methods used in arriving at costs and income
scenarios and in evaluating alternatives (especially in
calculations of community benefit)
• provide risk assessments for the main variables and,
where possible, probability assessments of ’total’ costs
and revenues
• reference authoritative studies, research and practices
• be capable of independent audit and review.
Great state. Great opportunity.