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. Change to circumstances of the case 5An inspection of the site was undertaken at the commencement of the hearing and evidence of the extent of damage to the buildings was observed standing at the front doors of both dwellings and from the rear of the premises. The interior of the building was not entered on the advice of Mr S Waters, a structural engineer, who advised that the building is in an unstable state. 6Expert evidence has been provided from Mr S Wiltshier and Mr K Demlakian, structural engineers, who conclude that the extent of damage as the result of the fire is such that the buildings should be demolished. 7Mr Demlakian and Mr Wiltshier agree that the building known as 535 Elizabeth Street is damaged to such an extent that demolition is warranted and recommended. 8With regard to No. 533 Elizabeth Street, they say the building has elements of significant damage requiring demolition, including but not limited to the following: (i)The entire roof and ceiling structure to the two storey building located at the front. (ii)Both the chimney structures located on the northern façade (iii)The modern infill building. In addition, they say the following areas of damage warrant substantial repair, including some local demolition: (iv)Areas of wall damage in various locations throughout the building. (v)Localised damage to various areas of the floor structure. (vi)There is a strong likelihood that floorboards to all floors will require replacement in the front building. 9The experts conclude that it would be reasonable to demolish the building in its entirety, considering the extent of damage, if the Court was of the opinion that the building does not have significant heritage value. 10Mr Staas and Mr Wang provided expert heritage evidence in the original proceedings and have prepared an additional report addressing the impacts of the fire damage. Mr Staas had always been of the view that the buildings could be demolished however, Mr Wang opposed their demolition. Since that time they have been provided with the structural engineer's joint report. 11They agree that the fire has caused damage and loss of certain original/early fabric of the existing buildings, most of which involved internal building elements and that the damage has had a negative impact on the significance of the two building due to the loss of that fabric. They concur that the principle building form, or the front section of the two houses (two rooms deep each) is the most significant and contributory element for the streetscape. Following receipt of the engineering report, they both agree that, because No 535 must be demolished, it is no longer appropriate to press for retention of No 533. Conclusion and findings 12As it is agreed between the structural engineering experts that No 535 must be demolished, I have considered whether it is appropriate to also allow demolition of No 533. My earlier consideration of the application had regard to the contribution of both buildings, as an intact pair together with the adjoining contributory building at the corner of Elizabeth and Belvoir Streets and to the immediate south of the site. Having considered the evidence provided, I agree that it is appropriate to also allow demolition of No 533 as, without the central building (No 535), the significance of the northern building is reduced and its contribution to the heritage conservation diminished to such an extent that it fits the description contained in clause 4.3 of the HDCP. 13Having regard to the changed circumstances of the case and in particular, the council's agreement to seek consent orders solely on the basis of the structural instability of the building as a result of the extensive fire damage, I am satisfied that these circumstances are those contemplated in clause 1.13 of HDCP to provide for demolition. It is not necessary to resolve the test of Helou in view of that conclusion. 14Section 80(4) of the Environmental Planning and Assessment Act 1979 provides: (4) Total or partial consent A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. 15There is nothing in the remitter that requires review of my decision that the proposed replacement building is inappropriate and for that reason, in accordance with the power under s 80(4) of the Act consent for the demolition of the two existing buildings should be allowed and that part of the application in relation to the new building refused. 16I am satisfied that the agreed conditions are consistent with the requirements of the HDCP. 17By consent, the Court orders: (1)The Appeal is upheld in part. (2)Pursuant to Section 80(4) of the Environmental Planning and Assessment Act 1979, that part of Development Application No. D/2010/540 for the demolition of all existing buildings and structures erected on the land known as 533-535 Elizabeth Street, Surry Hills is approved subject to the conditions annexed and marked 'A' and that part of Development Application No. D/2010/540 for construction of a 9 storey mixed use development with 30 residential units, ground floor retail and basement car parking for 9 vehicles accessed from Little Buckingham Street is refused. (3)The exhibits are returned. Sue Morris Commissioner of the Court ********** 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: 22 February 2012