Svedas v Sydney City Council No 2 [2012] NSWLEC 1032

Land and Environment Court New South Wales

Medium Neutral Citation: Svedas v Sydney City Council No 2 [2012] NSWLEC 1032 Hearing dates: 10 February 2012 Decision date: 10 February 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld in part. Catchwords: Consent Orders: Demolition, fire damage. Legislation Cited: Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979 Cases Cited: Svedas v Council of the City of Sydney [2011] NSWLEC 215; Svedas v Sydney City Council [2010] NSWLEC 1323 Texts Cited: City of Sydney Heritage Development Control Plan 2006 Category: Principal judgment Parties: Sanda Svedas (Applicant)

Council of the City of Sydney (Respondent) Representation: Counsel Mr C W McEwen SC with Mr M A Staunton (Applicant)

Ms A Pearman (Respondent) Solicitors Gadens Lawyers (Applicant)

Council of the City of Sydney (Respondent) File Number(s): 10471 of 2010

Judgment 1This matter was to come before the Court in response to the orders of Pepper J, on 24 November 2011, following an appeal under s 56A of the Land and Environment Court Act 1979 ( Svedas v Council of the City of Sydney [2011] NSWLEC 215 ), however, due to a fire that occurred at the site on 8 December 2011, Sydney City Council has considered the impacts of that fire in regard to the proceedings, the expert evidence of the heritage advisors and structural engineers and, solely because the items were substantially damaged by that fire with the result that they are no longer structurally sound and are not reasonably capable of retention, it no longer opposes demolition of the contributory heritage items known as 533-535 Elizabeth Street, Surry Hills. The parties are now seeking consent orders from the Court for the demolition of the buildings only. 2The appeal upheld one of the six grounds of appeal against the Court's refusal of Development Application D/2010/540 ( Svedas v Sydney City Council [2010] NSWLEC 1323) for the demolition of two existing dwellings and the construction of a nine-storey mixed use development at Nos. 533-535 Elizabeth Street, Surry Hills. 3Her Honour's orders are: (1)the appeal is allowed and the decision of the Commissioner is set aside; (2)the matter is remitted to the Commissioner for redetermination in light of these reasons; (3)the respondent is to pay the appellant's costs of the appeal unless within seven days either party applies to the Court for some alternative costs order; and (4)the exhibits are to be returned. 4The matter the subject of the remitter is the need to address the provisions of cl 1.13 of the City of Sydney Heritage Development Control Plan 2006 (HDCP) and consider whether the Helou planning principle has any application to that clause. Clause 1.13 relates to Demolition and Demolition Reports and states: The demolition of heritage items and contributory buildings or building elements within heritage conservation areas or heritage streetscapes is not supported. The onus is on the applicant to demonstrate why the building cannot be retained, taking into consideration: · The heritage significance of the item or contribution of the building or building elements to the heritage significance of the heritage conservation area or heritage streetscape; and · A Demolition Report. A Demolition Report is a document which should include consideration of: · The heritage significance of the building and area and the contribution of the building or building element to that significance; · The structural stability of the building in the form of a structural engineer's report; and/or · A pest inspection report If the application proposes demolition of a structure of heritage significance, the applicant must: · Submit a Demolition Report demonstrating that the structure is not reasonably capable of retention; · Submit a factual statement as to why the structure needs to be demolished, including a statement from an appropriately qualified structural engineer; and · If demolition is recommended primarily on economic grounds, submit a statement from a quantity surveyor comparing the cost of demolition and cost of retention. The above requirements may be waived in the event of an emergency or danger to the public. Submitting the necessary reports or justifications in no way implies that the consent authority will agree to the proposed demolition. The City may obtain independent structural engineering advice. Where possible and reasonable, built heritage should be retained. Where demolition is allowed, a photographic record of the building must be submitted to Council prior to the commencement of the demolition works.