Land and Environment Court New South Wales Medium Neutral Citation: Krumins v City of Canada Bay Council [2023] NSWLEC 1766 Hearing dates: Conciliation conference held 13 November and 1 December 2023. Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2022/0351 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) The appeal is upheld. (3) Consent is granted to Development Application DA2022/0351 for the demolition of an existing heritage listed dwelling house at 37 Llewellyn Street, Rhodes, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition – heritage item – agreement between the parties – orders Legislation Cited: Canada Bay Local Environmental Plan 2013, Sch 5, cll 2.1, 2.3, 2.7, 5.10, 6.1, 6.4 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.3, ss 6.6, 6.9, 6.28 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, Divs 2, 3, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Texts Cited: ICOMOS, The Burra Charter: the Australia ICOMOS Charter for Places of Cultural Significance, 2013 Category: Principal judgment Parties: Indrikis Krumins (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) A Guy (Solicitor) (Respondent) Solicitors: Bick and Steele (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/185379 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Indrikis Krumins (the Applicant), against the deemed refusal of Development Application DA2022/0351 (the DA) by the City of Canada Bay Council (the Respondent). At the time of its deemed refusal, the DA sought consent for the demolition of an existing, heritage listed, dwelling and the removal of several trees to facilitate its demolition, at 37 Llewellyn Street, Rhodes (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 November and 1 December 2023. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular relevance to this matter, the proposed demolition of the heritage item was not central to the dispute between the parties. Rather, it is agreed that the physical fabric of the existing dwelling has deteriorated through neglect, to a point effectively equivalent to demolition. Consent for demolition represents acknowledgement of this situation. 5. At issue however, was the number of trees proposed to be removed to facilitate demolition of the dwelling, with the Respondent contending that no more trees should be removed than necessary. 6. During the conciliation conference, the arborist experts conferred to determine the minimum number of trees to be removed and agreed associated conditions of consent. The basis of the parties' agreement rests on the amendment of the DA to retain a greater number of trees on the site. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The DA was publicly notified from 5 to 31 January 2023 in accordance with the Respondent's Community Participation Plan, and no submissions were received. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 11. The parties agree, and I am satisfied, that the Canada Bay Local Environmental Plan 2013 (CBLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the CBLEP - Land use zones - the site is zoned R3 Medium Density Residential. 12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the CBLEP - Zone objectives and Land Use Table - the DA is consistent with the R3 Medium Density Residential zone objectives as it proposes the removal of an existing dilapidated dwelling and thereby opens an opportunity for development that will provide for the housing needs of the community. 13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the CBLEP - Demolition requires consent - the DA is permissible with consent. 14. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the CBLEP - Heritage conservation - the site contains a heritage item (a house), listed as Item No. I1303, under Sch 5 of the CBLEP. Additionally, the site is situated adjacent to heritage item (No. I306), being street trees at Llewellyn Street. 15. Consequently, cl 5.10(2)(a) requires consent for the proposed demolition of the heritage item. Similarly, cl 5.10(4) requires consideration of the effect of the DA on the heritage significance of the item. The Applicant has provided a detailed heritage assessment, prepared by Zoltan Kovacs Architect and dated August 2023. 16. The conclusions of the heritage assessment include: 1. The physical fabric of the heritage item has deteriorated through long-term neglect, to a point where conservation of original fabric is no longer a reasonable option. 2. Complete reconstruction would be necessary to conserve the dwelling, however this would not represent an appropriate conservation response when considered against the principles of the Burra Charter, because a reconstructed item would lack authenticity. 3. The existing degraded condition of the item is equivalent to demolition, and therefore negative heritage impacts arising from the proposed demolition are already in evidence. 1. The parties agree, and I am satisfied, that the heritage assessment appropriately addresses those matters set out in cl 5.10 of the CBLEP and particularly that the significant restoration works required would not conserve the item's heritage value. Agreed conditions of consent require the salvage and recycling of specified remaining physical fabric within the heritage item. 2. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the CBLEP - Acid sulfate soils - the site is identified as Class 5 land within the relevant Acid Sulfate Soils Map. However, given the DA seeks consent for demolition, no works are proposed which are likely to lower the watertable below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. 3. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the CBLEP - Limited development on foreshore area - the site is identified on the relevant Foreshore Building Line Map. However, as the DA proposes only demolition, those matters set out at cl 6.4(3) and (4) have been appropriately addressed. 4. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. 5. Chapter 2 of SEPP Resilience and Hazards relates to coastal management. The site is located within a coastal zone and within the Coastal Use Area. However, Div 2 (Coastal Vulnerability Area) does not map the site, and Div 3 (Coastal Environment Area) and Div 4 (Coastal Use Area) do not apply to land within the Foreshore and Waterways Areas as mapped within State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity). 6. Further, the parties agree, and I am satisfied, that the site has been historically used for purposes unlikely to result in contamination. Accordingly, I am satisfied the DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 7. The parties agree, and I am satisfied, that SEPP Biodiversity is an additional relevant environmental planning instrument. Pursuant to Ch 6 of SEPP Biodiversity, the site is situated within the Sydney Harbour Catchment. The DA proposes a series of demolition management techniques, which will prevent water quality impacts on the adjacent waterway. There will be no impact on drainage or ground water resulting from the DA, and filtration of stormwater will be improved with the removal of the existing structures on the site. Accordingly, I am satisfied the DA meets the provisions of s 6.6(1) and (2). 8. Pursuant to s 6.9 of SEPP Biodiversity, I am satisfied that there is presently no public access available through the site to or from the waterway. Access along the site's foreshore will not be impacted by the DA and the proposal will maintain the extent of public access to the foreshore and recreational use of the adjoining waterway. Additionally, the existing connection between the waterway and the site's foreshore will remain stable and safe. 9. Pursuant to Pt 6.3 (Foreshores and Waterway Area) of SEPP Biodiversity, a portion of the site is located in the Foreshores and Waterways Area. Consequently, s 6.28 of SEPP Biodiversity requires consideration of various matters. The Applicant's heritage impact statement satisfactorily addresses those matters set out at s 6.28 of SEPP Biodiversity. 10. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Pursuant to s 2.48 of SEPP Infrastructure, the DA was referred to Ausgrid, who raised no objections. 11. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 12. The Court notes that: 1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Applicant has lodged the amended DA with the Court on 4 December 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA2022/0351 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. 2. The appeal is upheld. 3. Consent is granted to Development Application DA2022/0351 for the demolition of an existing heritage listed dwelling house at 37 Llewellyn Street, Rhodes, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court 185379.23 Annexure A ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023