Perilya Broken Hill Limited v Broken Hill City Council [2011] NSWLEC 1376

Land and Environment Court New South Wales

Medium Neutral Citation: Perilya Broken Hill Limited v Broken Hill City Council [2011] NSWLEC 1376 Hearing dates: 27,28 October, 29 November & 12 December 2011 Decision date: 23 December 2011 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is upheld. (2)Development consent is granted to DA No 11/0052 for demolition of the Zinc Mill at Wentworth Road, Broken Hill (CML 8) subject to the conditions in Annexure A. (3)The exhibits may be returned except for 1, 8, 9 and B. Catchwords: Development application: Demolition of heritage item, structural condition and significance. Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 Cases Cited: Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175 Claron Projects pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 296 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 Category: Principal judgment Parties: Perilya Broken Hill Limited (Applicant)

Broken Hill City Council (Respondent) Representation: Mr I Hemmings (Applicant)

Ms J Reid (Respondent) File Number(s): 10421 of 2011

Judgment

Background 1This appeal was lodged against council's deemed refusal of a development application for demolition of a heritage listed building ("the Mill Building") and ancillary structures, which are part of the former BHP site in Wentworth Road, Broken Hill. The applicant is particularly concerned about the poor structural condition and safety of the structures. 2The contentions initially raised by council concern: * The detrimental effect of demolishing the building to the heritage significance as the Mill Building is listed as an item of environmental heritage in the LEP and considered to represent an important part of the operations, which helps interpret the historical uses of the site. * Insufficient information provided relating to the structural condition of the building and details concerning compliance with an endorsed conservation management Plan (CMP). 3However, during the lead in to the appeal, the applicant submitted further details and this has resulted in agreement by the heritage and structural engineering consultants on parts of the building to be demolished with other parts being retained. 4Apart from this, the respondent submits that the agreed outcome for part retention of various components represents an amendment to the original application to which the Court would not have power to approve unless the application is amended. Against this, the applicant maintains its original application without amendment on the basis that the part retention of some elements of the building is of a minor nature, which could be achieved by way of conditions of consent.