Land and Environment Court New South Wales Medium Neutral Citation: Bunnings Properties Pty Ltd v Ku-ring-gai Council (No.4) [2017] NSWLEC 1238 Hearing dates: 26,27,28 April 2016, 6 December 2016, 23 March 2017, conditions 31 March 2017 Date of orders: 16 May 2017 Decision date: 16 May 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application DA0115/15 for the demolition of all existing structures, tree removal, earthworks, road widening, driveway access from Ryde Road, signage, landscaping, the consolidation of titles, retaining walls and construction of a building and its use for the sale of hardware and building supplies at 950-950A Pacific Highway and 2 Bridge Street, Pymble is approved subject the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits N, O and P. Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures, tree removal, earthworks and retaining walls, construction of a four storey building and use for hardware and building supplies – whether amended plans represent a new application - consideration of amended plans - demolition of a heritage item – loss of vegetation Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 Australian Enterprise Holdings v Camden Council (2010) 173 LGERA 226 Campton v Parramatta City Council [2011] NSWLEC 12 De Angelis v Wingecarribee Shire Council (2016) 214 LGERA 96 De Angelis v Wingecarribee Shire Council (2016) NSACA 189 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292 Texts Cited: Assessing Heritage Significance (2001) NSW Heritage Council Category: Principal judgment Parties: Bunnings Properties Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Mr I Hemmings SC (Respondent) Solicitors: Norton Rose Fulbright (Applicant) Sparke Helmore (Respondent) File Number(s): 2016/152878 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA0115/15 that seeks the demolition of all existing structures, tree removal, earthworks and retaining walls and construction of a four storey building and its use for the sale of hardware and building supplies. The proposal also includes road widening and driveway access from Ryde Road, signage, landscaping and the consolidation of titles at 950-950A Pacific Highway and 2 Bridge Street, Pymble (the site). The development is to be operated by Bunnings. 2. The hearing was conducted on 26,27,28 April 2016 and interim findings were handed down on 20 July 2016 that gave directions for amended plans and stated: Based on the evidence, any new design should include: * compliance with the 20 m setback. * comprehensive landscaping of the 20 m setback, * details of signage that are relatively discrete, * the absence of outside storage areas that can be viewed from the public domain, and * an architectural design that provides interest and an attractive appearance from the public domain. Power to accept amended plans 1. On 6 December 2016, I heard a Notice of Motion filed by the applicant on 28 November 2016 that the Court has no power to consider the amended plans directed by the interim findings handed down on 20 July 2016. At the conclusion of the submissions on the Notice of Motion, I indicated that for the "quick, just and cheap" disposal of the proceedings that would allow a future hearing date to be made, the Notice of Motion should be dismissed and that the reasons for this decision would be published at a later date. The reasons are as follows: 2. Mr Galasso SC, for the applicant, submits that one of the objects of the Environmental Planning and Assessment Act 1979 (EP&A Act), which governs development applications, is to encourage proper development for the "purpose of promoting the social and economic welfare of the community and a better environment" (EP&A Act, s5). Also, a merits review of a development application "shall be conducted with as little formality and technicality" as possible, and in the course of such proceedings the Court "may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits": (Land and Environment Court Act 1979, ss38(1) and (2)). 3. Further, Mr Galasso SC submits that there is no doubt that the Court has power to deliver an interim judgment with directions whereby amendments could be effected, and consequently, the appeal upheld. In Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373 at [56], Biscoe J held that the Court has power to deliver an interim judgment in Class 1 of the Court's jurisdiction. In Maxnox, Biscoe J referred to the Mison principle (Mison v Randwick Municipal Council (1991) 23 NSWLR 734) in terms of "significantly altering" the development for which consent is sought, as guidance to the limit of the power . However, subsequently, in Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134, Biscoe J granted conditional consent for the Rose Bay Marina proposal except for the eastern arm and certain berths. Biscoe J concluded that by reason of ss 80(4), the development approved may be substantially different from that applied for (Addenbrooke at [101]). In reaching this conclusion, Biscoe J considered the principle established in Mison and the qualification of that principle which results from later statutory provisions in ss80(4), 80(1 )(a) and (g) (Addenbrooke at [97] - [101]). 4. Mr Galasso submits that on one view power is derived from this Court's inherent jurisdiction as consequential upon the ability to conduct its business in such a way as to deliver an interim judgment. To this extent it is to be noted that no reference was made to any specific statutory power for that purpose in Maxnox. That notwithstanding, it is nonetheless clear that the power to amend can be properly enlivened by reference to cl 55 of the Environmental Planning and Assessment Regulation 2000 (Regulation). 5. Clause 55 of the Regulations provides that: 55 What is the procedure for amending a development application? 1. A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. 2. If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it -written particulars sufficient to indicate the nature of the changed development. 3. If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 1. Relevantly, s 39(2) of the Land and Environment Court Act 1979 provides: (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 1. The power to amend conferred by cl 55 is significantly broad, and would easily accommodate the changes now proposed (Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292). The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, cl 55 ought to be constructed so as to give "the widest interpretation which its language will permit' (Radray at [9]). 2. At [16] in Radray, Jagot J stated: I do not consider that the "substantially the same" formula (apparently derived from the modification power in s96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application. 1. The Court has consistently adopted a broad approach to the scope and application of the power to allow an amendment pursuant to cl 55. (Australian Enterprise Holdings v Camden Council (2010) 173 LGERA 226 per Pepper J, and Campton v Parramatta City Council [2011] NSWLEC 12 per Pain J). 2. Mr Galasso submits that in the present case, the amendments proposed by the applicant in response to the Court's interim findings will, self-evidently in any case of an amendment, lead to a "changed development", but that is not determinative of the application for leave to amend. The amended plans reflect changes to the built form as identified in the judgment. The essence of the development however remains the same. (Radray at [17]). The amendments, although creating a changed development, have not converted the application into a new application. The changed development depicted in the amended plans, having regard to the particular circumstances of this case and, do not, in the Mr Galasso's submission, fall outside the scope of cl 55, even if that it is the basis for the amendments (which is not accepted). The amendments are clearly within the breadth of the Court's power discussed in Maxnox and leave should be granted to rely upon the amended plans. 3. Mr Hemmings SC, for the council, submits that there is no power to grant that leave. The changes cannot be described as an amendment or variation to the proposed development. Rather, the changes are so significant that properly considered it amounts to a new development application. The Court has no jurisdiction to entertain an original application. Further, even if there was power, in the exercise of discretion, the Court would not grant leave. 4. Mr Hemmings submits that cl 55(2) requires that the application to amend or vary the development application "must have annexed to it written particulars sufficient to indicate the nature of the changed development." The particulars are not sufficient according to Mr Hemmings. They do not put the Court in a position so that it can properly understand the nature of the changed development. For that reason alone, leave should be refused. 5. The power in cl 55(1) is limited to the "amendment" or "variation" of a development application. Clause 55(2) then provides a process to facilitate the Court's consideration of any amendment or variation. Clause 55(2) accepts that some, though not all, amendments or variations may result in a change to the development. It is necessary therefore to identify the amendments and/or variations with some precision. The applicant has not done that. It is common for amendments or variations to plans to be "clouded" so that any change can easily be understood. No clouding is provided. Mr Hemmings maintains that is because there is an amendment to almost every component part of the development. 6. Further, the changes are accepted to be only "generally described". That is both unsatisfactory - for the purposes of cl 55(2) - and also the inevitable consequence of the fact that the materials and plans the subject of the application amount to a new development application and are not identifiable amendments or variations to the existing plans. 7. Even accepting that there is power for the Court to given an "amber light" judgment, the Court's judgment does not meet the requirements for an amber light judgment. If the Court is going to give the potential for amendments to be made, they must be defined with the sufficient precision. Regrettably, the applicant's request was not one which permitted the Court to identify with any precision the possible amendments. Fundamentally, that is because the Court was dissatisfied with the siting, architectural presentation, visual appearance and setting. The consequence of that submission is that the fact that the current plans may be responsive to the Court's acceptance of the applicant's request is irrelevant to the determination of whether or not the amendments and variations are within power. 8. To the extent there is any conflict in the authorities in describing the test that the Court applies to determine whether the proposal is for amendments or variations to the development application or properly considered amounts to a new development application. In Mr Hemming's submission, the plans, and supporting material, the subject of the Motion are, properly considered, a new application. 9. In considering the opposing submissions, I prefer the conclusions of Mr Galasso for a number of reasons. First, I am satisfied that the amendments do not result in change to the proposed development to the point where it could be regarded as a new application. In my view, the amended plans are clearly an "amendment" or "variation" of a development application. The amendments squarely address those matters set out in the interim findings. Second, the amendments, unsurprisingly, require consequential changes to other parts of the proposed development – none of which are significant in effect or suggest that it could be regarded as a new application. The amendments could not be regarded as "significantly altering" the development for which consent is sought. Third, "clouding" of amendments on plans is one method of identifying any amendments however the extent of the amendments are set out in Exhibit N in some detail in the Supplementary Statement of Environmental Effects, including a comparison with the original application in certain areas. 10. I am satisfied that the amendments are within the power available under cl 55 of the Regulations and the power discussed in Maxnox and leave should be granted to rely upon the amended plans. The amended application 1. The council filed a Further Amended Statement of Facts and Contentions on 7 February 2017. The council maintained that the amended application should be refused for the following reasons: 1. the demolition of a heritage item, 2. an unsuitable design, including, the location on a prominent corner, insufficient detail of design elements and materials, and inconsistent with future character, and 3. the loss of significant vegetation, particularly Tree T135. 1. The contention relating to the design was not pressed by the council following the agreement by the experts in their joint report that the design was acceptable. I note the design was the sole reason for the interim findings and the amended plans. The site 1. The site comprises two allotments, being 950-950A Pacific Highway, Pymble (Lot 1 in DP 718718) and 2 Bridge Street, Pymble (Lot B in DP 371406)(the site). The site has an area of 1.825 ha made up of 1.737 ha (Lot 1) and 0.088 ha (Lot B). It is an irregularly shaped allotment on the corner of the Pacific Highway and Ryde Road and also has frontages to Bridge Street. 2. A disused five storey commercial building (the former 3M building) is located on Lot 1 with concrete and bitumen driveways accessing Bridge Street, along with an open carpark area (on the southwest boundary) and a two storey carpark (on the southern boundary). Lot B is a regular shaped allotment in close proximity to the intersection of the Pacific Highway and Bridge Street. A two storey commercial building and carpark are located on this lot with an access driveway from Bridge Street. 3. The site has two frontages to Bridge Street, each of which provides vehicular access to the site. It is also burdened by an easement that benefits the adjoining commercial development on the east boundary of the site and the Roads and Maritime Services for batter protection. 4. Development in the immediate vicinity of the site is primarily for the purpose of commercial uses, which are accommodated in buildings of varying size. Commercial development exists along both sides of Bridge Street in buildings of between 2 and 4 storeys in height. Relevant planning controls 1. The site is within Zone B7 Business Park under Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). The proposed development is a permissible use, with consent in this zone as "Hardware and building supplies". 2. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 1. The zone objectives are: • To provide a range of office and light industrial uses. • To encourage employment opportunities. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. 1. The council raised no contentions in relation to cl 2.3(2). 2. Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The site has a maximum height of 32.5 m on the Height of Buildings Map" and the proposed development satisfies this development standard. 3. Clause 4.4(2) provides that the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The site has a maximum FSR of 3.5:1 on the Floor Space Ratio Map. The proposed development satisfies this development standard. 4. Clause 5.9 provides requirements for Preservation of trees or vegetation. 5. Clause 5.10 Heritage conservation is relevant as part of the site is currently identified as Item 1593 in Sch 5, Pt 1 Heritage items of LEP 2015. The site identified in Sch 5 is Lot 1 in DP 718718 and not Lot B in DP 371406. The site is also in the vicinity of a heritage item (Item 1598 Substation at 982-984 Pacific Highway Pymble) although the council took no issue with the proximity to this item. 6. Clause 5.10(2)(a)(i) provides that: (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii. 1. Clause 5.10(4) provides that: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. Ku-ring-gai Development Control Plan (the DCP) applies. Part 1 provides an Introduction and states that the DCP came into effect on 2 April 2015. Part 14A identifies the site as part of the Pymble Business Park. Relevantly, pt 14A.3 identifies building setbacks, pt 14A.4 identifies built form with the site being identified as a "Landmark site" and pt 14A.6 identifies heritage matters. Can the item be demolished? The weight to a draft planning instrument 1. The former 3M building was not listed as a heritage item at the time of the lodgement of the development application on 8 April 2015. While LEP 2015 came into effect on 5 March 2015, the amendment to LEP 2015 that inserted the former 3M building into Sch 5 of LEP 2015 occurred on 1 May 2015. There was no dispute that the effect of this timing is that the applications falls within the savings provisions in cl 1.8A of LEP 2015. Clause 1.8A states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. It was agreed at the time of the interim findings, that the decision of Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29] was appropriate for the interpretation of cl 1.8. This decision meant that the amendment to Sch 5 is not irrelevant to the determination of the development application. The consideration of cl 1.8A in the interim findings adopted the agreed approach as required by Maygood. 2. A similar approach was adopted by Craig J in De Angelis v Wingecarribee Shire Council (2016) 214 LGERA 96 however this decision was overturned by the Court of Appeal (De Angelis v Wingecarribee Shire Council (2016) NSACA 189). The effect is that from 1 May 2015 the site was listed as a heritage item pursuant to Sch 5 of LEP 2015. The evidence 1. Mr Graham Brooks provided evidence for the council and Mr Brian McDonald provided evidence for the applicant. Mr Brooks and Mr McDonald provided evidence previously in the appeal. Their current evidence in the proceedings is based on the different interpretation required under the De Angelis decision of the Court of Appeal. 2. Mr Brooks and Mr McDonald provided a further joint report (Exhibit 14) although their evidence did not specifically address the criteria in the NSW Heritage Office Assessing Heritage Significance but instead addressed the following areas, as set out in the councils contentions: * the significance of the heritage item, * the redevelopment is contrary to the aims in cl 2 of LEP 2015, * the redevelopment is contrary to cl 5.10(1) of LEP 2015, * the redevelopment is contrary to cl 5.10(4) of LEP 2015, and * the redevelopment does not consider cl 5.10(10) of LEP 2015. The significance of the heritage item 1. The Statement of Significance for the former 3M building (Exhibit 9) states: The 3M Building is an interesting and locally rare example of a late Twentieth Century office building in the International style that was constructed c.1967 for the 3M (Minnesota Mining and Manufacturing) Company as their Sydney headquarters. The building is an early example of a high rise company headquarters in Ku-ring-gai in an area that was zoned for residential development. The building was designed by architects Hanson Todd and Partners on the 'site of the former Pymble Gas works that was established by the Australian Gas Light Company in 1888. The building is intact externally but has been altered internally and is set in a well-landscaped site that retains much of the original setting of the building. The building represents the establishment of the 3M Company in Australia was a landmark development for the company reflecting their corporate strength and remained as their headquarters for over forty years. It is likely to have special associations for former employees and is a local landmark. 1. Mr Brooks agrees that the statutory heritage listing is most clearly expressed in the Statement of Significance as set out in the Heritage Inventory Sheet however for an enhanced understanding of the heritage significance; Mr Brooks refers to the publication A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present (Apperley, Irving and Reynolds, 1989). Mr Brooks states that the transition from Post War to Late 20th Century Internationalism in major projects around Sydney is exemplified by the move beyond the curved curtain-wall facades of Qantas House in Chifley Square (1957) and the AMP Building at Circular Quay (1959) to the external precast concrete structural framing of the facade of Australia Square (1966). It is possible to appreciate the difference between the initial, simple rectilinear site planning model for the 3M Building (1964), and the curvilinear form of the final architectural outcome. In his opinion, this further supports his previous position on the heritage significance of the former 3M building. 2. Mr McDonald states that at least four assessments have been made as to the level of heritage significance of the former 3M building and whether it meets the thresholds of the assessment criteria that are commonly used for evaluation of significance. This is a relevant consideration because the extent to which the former 3M building contributes to the environmental heritage of Ku ring gai and its value as a heritage item must be addressed. Its listing in Schedule 5 is not a qualitative measure of its significance. The statement of heritage significance supporting its listing does provide qualitative measures. 3. Using the terminology of the criteria for assessing significance in his original statement, Mr McDonald examined whether the former 3M building qualifies as "important" in demonstrating the qualities set down by criteria (a), (b), (c) and (g) or has "strong or special" associations (criteria (b) and (d)) or achieves a "high degree" of creative or technical achievement (criterion (c)) or possesses "uncommon, rare or endangered" aspects of NSW's cultural or natural history (or cultural or natural history of the local area) (criterion (f)). The assessment sets out the reasons why the former 3M building fails to rise to the levels that the accepted definitions of the above words highlighted in bold would imply. 4. It follows that, having made his own assessment of significance that Mr McDonald does not agree with the Statement of Significance that supported listing of the former 3M building in Sch 5 of LEP 2015 or the expanded understanding of the significance of the former 3M building provided by Mr Brooks. In his previous statement Mr McDonald states why the former 3M building is a poor example of the Post War International style when compared with the other examples cited by Mr Brooks. Redevelopment is contrary to the aims in cl 2 of LEP 2015 1. The relevant aims in cl 2(2) of LEP 2015 are: (2) The particular aims of this Plan are as follows: (a) to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai, . (f) to recognize, protect and conserve Ku-ring-gai's indigenous and non-indigenous cultural heritage, 1. Mr Brooks states that the first aim of LEP 2015 is to guide the future development of land and management of the heritage and cultural resources within Ku-ring-gai. The provisions of cl 5.10(10) and DCP 2015 Part 19 support this aim. They enable consent to be granted for the re-use of heritage items and the development of heritage sites for uses that may otherwise not be permitted. Mr Brooks does not accept that the applicant has made a compelling case that the demolition of the former 3M building is warranted. 2. Mr McDonald restates that with regard to the relevant objectives, at least four assessments have been made as to the level of heritage significance of the former 3M building and whether it meets the thresholds of the assessment criteria that are commonly used for evaluation of significance. This is a relevant consideration because the extent to which the former 3M building contributes to the environmental heritage of Ku ring gai and its value as a heritage item must be addressed. The listing in Sch 5 is not a qualitative measure of its significance. The statement of heritage significance prepared by Mr McDonald, in his previous evidence, sets out the reasons why the former 3M building fails to rise to the levels under the appropriate significance criteria Redevelopment is contrary to cl 5.10(1) of LEP 2015 1. Clause 5.10(1) states: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Ku-ring-gai, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. 1. Mr Brooks states that he does not accept that a compelling case has been made out for the demolition of the former 3M building. Mr McDonald claims that the significance of its relationship with the 3M Company was irretrievably broken when the 3M Headquarters moved to another site. He came to no such conclusion when he referred to the former Qantas Building in Chifley Square, despite the fact that Qantas has long abandoned that building. In these circumstances, Mr Brooks does not accept that a photographic or other archival recording, or an Interpretation program, can be regarded as an appropriate attempt to conserve the environmental heritage of Ku-ring-gai, or to conserve the heritage significance of heritage items, including associated fabric, settings and views. 2. Mr McDonald states that his response in his earlier evidence addresses the same issues in terms of the weight to be given to the level of significance of the former 3M building and the degree of loss of heritage that its demolition would incur. In relation to the setting of the former 3M building, the previous comments still apply (par 2.4.3). These comments state: It follows that the setting, which is lacking in any evidence of intentional landscape design, does not demonstrate any of the activities of 3M on the site and therefore has no associated heritage significance. The question of tree retention, discussed later is more related to scenic and ecological values than heritage values. 1. Mr McDonald states that there is a compelling case that, putting aside the level of heritage significance the former 3M Building possesses, its retention cannot be sustained. It is important to note that the 3M Company abandoned the building despite the fact that the company had explored the potential for further expansion of its activities on the site in May 1985. Redevelopment is contrary to cl 5.10(4) of LEP 2015 1. Clause 5.10(4) states: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. Mr Brooks states, in a similar way to his previous comments, that there can be no dispute that the proposed demolition of the former 3M building and the redevelopment of the overall site must, by definition, effectively destroy the heritage significance of the building. In his opinion, no evidence has been provided to suggest that the building is in such poor structural condition or in such a poor state of dilapidation overall that necessary remedial works would compromise its heritage significance. 2. As previously stated, a photographic or other archival recording, or an Interpretation program, cannot be regarded as an appropriate response to the demolition of the building. 3. Mr McDonald notes that cl 5.10(4) sets out the matters that the consent authority must consider - specifically "the effect of the proposed development on the heritage significance of the item or area concerned". He acknowledges that demolition of any item that has heritage significance would clearly destroy that heritage significance. The question in this case is how significant is the item? In Mr McDonald's opinion, the weight to be given to the loss of significance must be in proportion to the level of heritage significance. 4. Mr McDonald also states that the extent of the burden on an owner must also be weighed in proportion to the level of significance of the item. The costs associated with repair and reconstruction of an item of exceptional or high significance would be more justifiable. A high cost of repairing and reconstructing an item that is of limited significance may not be justifiable if it is a heavy burden on the owner. Even accepting that the item is listed in Sch 5 of LEP 2015, Mr McDonald finds the significance of the 3M Building to fall below the accepted acceptance criteria. 5. In this case, it is not a matter of whether the applicant has presented evidence to suggest that the building is in such poor structural condition or in such a poor state of dilapidation overall that necessary remedial works would compromise its heritage significance. This is not the only test. The ability of a building of limited significance to be used for a compatible use at a reasonable cost is also an important consideration. Redevelopment does not consider cl 5.10(10) of LEP 2015 Clause 5.10(10) states: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. . . (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 1. Mr Brooks states that no new evidence has been provided to suggest that the opportunities now presented by cl 5.10(10) have been taken up by the applicant. In light of the decision in De Angelis alternatives to the proposed development should have been considered as part of the preparation of amended plans. The alternative use provisions would enable the remainder of the site to be developed for high density residential with the former 3M building upgraded as a centre for small business or other compatible purposes. 2. Mr Brooks, again, does not believe that the applicant has made a compelling case for demolition of the former 3M building 3. Mr McDonald responds by stating that when the heritage issue was raised by the council, the applicant commissioned an experienced and respected heritage architect to undertake an independent assessment of the heritage significance of the 3M Building, which found that it did not qualify as a heritage item. Also, an overview of the work necessary to bring the building up to current Building Code and Fire Safety standards was commissioned. In these circumstances, it is unrealistic and unreasonable to demand that the applicant should undertake a study of alternative forms of development retaining the former 3M building. Mr McDonald states that it would have been obvious that the site cannot accommodate a Bunnings store and an operational 3M Building. Furthermore, the multi-level nature and the size of the floor plates of the 3M Building mean it could not be adapted as part of a Bunnings store. 4. At this point, the heritage incentives cl 5.10(10) was not applicable and would not need to be considered. Clause 5.10(10) could not have been applied until after 1 May 2015 when the item was listed. When it became apparent that the former 3M building's heritage listing would in fact proceed, the project had reached the point where the applicant was committed to development of a Bunnings store. Any alternative development option that would retain the 3M Building would render the Bunnings project unviable. Nothing could be achieved by invoking the provisions of cl 5.10(10). In these circumstances, it is unreasonable to expect that the applicant should go through an exercise of exploring other adaptable uses for the former 3M building that do not serve the applicant's core business needs. 5. Putting aside the development of a Bunnings Store, evidence has been provided to show that upgrading or adaptation for office or similar uses, (a) would significantly change the building, (b) that commercial office use in the precinct is failing because businesses are vacating and going elsewhere, just as the 3M company did, and (c) the building had been vacant for several years due to lack of interest in purchasing it. The evidence provided by other experts indicates that there is not a market that would sustain this level of expenditure. The break with continuous use by the 3M company several years ago, further weakens any connections under assessment criteria (a), (b) and (d). 6. Mr McDonald states that even though a hotel or motel is permissible in the zone, the extent of alteration to serve this use would seriously diminish the little heritage significance it possesses. Alternatively, non-complying uses that might be considered by someone else under cl 5.10(10) are types of residential adaptation, which would likely have unacceptable impacts due to the substantial transformation of the nature of the building through degree of compartmentation and provision of balconies as required for residential accommodation. The building lacks flexibility in its ability to meet the requirements of SEPP 65 and the Apartment Design Guide. 7. In the opinion of Mr McDonald, all of the alternative uses fail the test of "the use should fit the building, not "the building be made to fit the use." In the light of the above discussion, Mr McDonald fails to see how the listing the 3M Building on 1 May 2015 and therefore bringing the introduction of cl 5.10(10) into play, would make any significant difference to the matters dealt with by the applicants economic and market evidence from Mr David Leyshon, Mr Martin Hilland and Mr Simon Hensley. Mr McDonald refers to his previous evidence where he states "Any estimation of the costs of additional hypothetical adaptive re-use works and/or other development options on the rest of the site with the building retained could only be highly conjectural at this stage." 8. Mr McDonald concludes by stating the evidence before the Court from the original proceedings shows that there is a compelling case that the former 3M building may be demolished on the grounds of its limited heritage significance and the lack of viability in upgrading the building for commercial office use or adapting the building to some other use Findings 1. The fundamental difference between the expert evidence is the very different levels of significance attributed to the former 3M building. This difference is central to the evidence on each of the specific areas addressed by Mr Brooks and Mr McDonald in their further evidence. In considering their further evidence I make the following comments. First, I did not understand there to be any dispute over the significance of the former 3M building. The site is identified as Item 1593 in Sch 5 Heritage items of LEP 2015 as "3M Building (former)" having Local Significance. The Statement of Significance is set out in the Inventory Sheet was accepted by both experts although Mr Brooks sought to add to the description of the significance of the heritage item with reference to the publication A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present. While this reference supports the position of Mr Brooks, I am not satisfied that it adds, in any meaningful way, to the debate between the experts. At best, it provides additional support for Mr Brooks position but does not provide any new evidence on the significance of the former 3M building. 2. The second matter relates to the concern that the redevelopment is contrary to some aims in cl 2 of LEP 2015. While a reference to the aims of LEP 2015 is not an irrelevant consideration, there is no operative clause that requires that the aims must be taken into consideration of a development application. I do not see this as a means of diminishing the importance of those matters addressed in the aims but more specific and probably more effective requirements are available in cl 5.10(4). 3. Third, and in relation to the concern that the redevelopment is contrary to cl 5.10(1) of LEP 2015, I adopt similar comments I made in the previous paragraph in that there is no operative clause that requires that the objectives must be taken into consideration of a development application. Again, more specific and probably more effective requirements are available in cl 5.10(4). 4. Fourth, and in relation to the incentive provisions in cl 5.10(10), I note the provisions are not mandatory. They simply provide the opportunity to use "a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance" for a "purpose (that) would otherwise not be allowed by this Plan" subject to the matters in ss (a) to (e). There can be no obligation for a person that seeks the demolition of a heritage item to address the requirements of this sub clause. As Mr McDonald stated, "it is unreasonable to expect that the applicant should go through an exercise of exploring other adaptable uses for the former 3M building that do not serve the applicant's core business needs". 5. In response to the assertion of Mr Brooks that another use could be found for the building, the evidence of Mr Peter Leyshon is uncontested. He states that: * the Pymble/Gordon area; as an office location has at best, has been static since the early 1990s, in that there has been no new development of offices, * the results of a survey of the Pymble Business Park undertaken in January 2016 identified a vacancy rate of 23.6%, and * the current vacancy rate in the Pymble/Gordon area can reasonably be described as being "off the chart" as far as Sydney's major office markets currently are concerned. 1. Mr Leyshon states that the major problem confronting the Pymble Business Park is the substantial increase in competition that the area faces from both a change in the way businesses use office space and, more relevantly, from a substantial increase in competition from other suburban office centres/locations. In his view, the preconditions which gave rise to the demand for, and feasibility of, office development in Pymble have irrevocably changed. Consequently, the retention of the former 3M building for a commercial use runs the very real risk that it will continue to remain vacant, compounding the existing deterioration of the Pymble Business Park as a whole. 2. Also, the uncontested evidence of Mr Martin Hill and Mr Simon Hensley identifies that the former 3M building would require substantial refurbishment and upgrade in order to meet current day BCA standards, with the cost of the rectification works being in the order of $10.660 million excluding GST. 3. Fifth, and there can be no doubt that the assessment required by cl 5.10(4) is at the centre of the dispute. Mr Brooks and Mr McDonald hold totally different views on the heritage significance in their earlier evidence and their more recent evidence. Consistent with assessing heritage significance, Mr Brooks and Mr McDonald appropriately used the criteria in Assessing Heritage Significance (2001) from the NSW Heritage Office in their previous evidence; the conclusions were repeated in their most recent evidence. This assessment was undertaken in the interim findings (pars 26 to 81) after considering the evidence of Mr Brooks and Mr McDonald. The conclusion (at par 81) stated: 81. Pursuant to cl 5.10, I find that the proposed development has little if any, heritage significance and as such the demolition on the former 3M building can be supported. 1. I am not satisfied that Mr Brooks provided any new evidence in the recent joint report with Mr McDonald that would suggest that the findings in the interim judgment should be changed. In my view, the assessment undertaken in the interim findings at pars 26 to 81 remains valid. 2. Mr Hemmings also raises other matters in his submissions that require a response. He submits that weight should be given to the existence of the listing of the former 3M building in Sch 5 of LEP 2015 by the council. This submission must be rejected. Clause 5.10 (or any part of LEP 2015) contains no such consideration or requirement. Clause 5.10(2)(a)(i) provides the opportunity to demolish a heritage item subject to cl 5.10(4) that requires, before granting consent, the Court must consider the effect of the proposed development on the heritage significance of the heritage item. This assessment has been undertaken and found that the former 3M building has little if any, heritage significance. 3. Mr Hemmings also submits that it is not the role of Mr McDonald to "go behind" the listing of the former 3M building in Sch 5. This also must be rejected as Mr McDonald simply carried out the task required by cl 5.10(4) in assessing the heritage significance of the heritage item using the accepted criterion in Assessing Heritage Significance. 4. Mr Hemmings also submitted that, contrary to the interim judgment (at par 69) that Mr Brooks did address Criteria (g) – Representativeness in Assessing Heritage Significance. It is not clear to me where Mr Brooks addressed Criteria (g). He provided two sets of evidence in the original hearing; an individual expert report (Exhibit 5), and a joint expert report with Mr McDonald (Exhibit 6): The analysis of the criteria in Assessing Heritage Significance was undertaken in Exhibit 5 at Part 3.1 - Assessment of Heritage Significance (p21). Part 3.1 addresses Criterion (a), (b), (c), (d), (e) and finishes with Criterion (f) on p25. If Mr Brooks addressed Criterion (g), I would have expected to find any evidence in Exhibit 5 and following his commentary on the other criteria. I also cannot find any reference to Criterion (g) in Exhibit 6 although I accept that it may have been referred to in the oral evidence of Mr Brooks. Loss of significant vegetation The evidence 1. The loss of significant vegetation was identified as the removal of Tree T135. Evidence was provided by Mr John Lock, a landscape architect and Mr Mark Kokot, an arborist for the applicant and Ms Robyn Askew, a landscape architect for the council. The experts were not required for cross examination. 2. Mr Lock states that Tree T135 is large healthy Sydney Blue Gum with good form and structure and has visual significance within the site. The tree would appear to predate the 3M building and has been left isolated on a mown grass bank. The predominant view of the tree is from within the site only, as viewed from the south. It is agreed that with a canopy of over 30m, the top part of the tree canopy can be seen from distant views on the Pacific Highway. It is only possible though to see the top of the canopy, which is layered in with other surrounding trees. Due to the site topography and with the trunk of tree screened by the existing building and surrounding trees, Tree T135 does not present with visual significance as single specimen when viewed from outside the site. 3. Mr Lock further states that a large landscape area is to be provided in the northern corner of the site which is to be re vegetated with Blue Gum High Forest species. Planting densities that are outlined in the Vegetation Management Plan will provide compensation planting including several Sydney Blue Gums. The future landscape character will be improved by the replanting of groves of new trees that will mature in time and compensate for the immediate loss of Tree T135. 4. Ms Askew states that the design of the development has not taken into consideration the relevant controls and objectives under LEP 2015 and the DCP. In her opinion, Tree 135 is the most significant tree of the 231 trees assessed by Mr Kokot as the combined height of greater than 30 m and canopy spread of 24 m makes Tree T135 at least 30% larger than any of the trees assessed by the arborist. The landscape significance of Tree T135 is rated as "Very High" based on its amenity, environmental and heritage values, the Visual Tree Assessment (VTA) has the highest rating of 5. Unlike the other existing vegetation on the site, Tree T135 is growing in isolation with high visibility particularly within the site. 5. Ms Askew describes Tree T135 as the best example of a Sydney Blue Gum that she has viewed over the last 28 years of working in the council. In her opinion, the applicant has relied upon the built form controls to justify removal of the tree. The planning controls, specifically setbacks, are only one consideration in the overall analysis of the attributes and constraints of the site. Vegetation and trees are of equal importance in achieving a sensitive outcome for the site. The broad application of the setback controls does not outweigh the significance and contribution to the site that this tree makes. 6. The retention of most of the existing vegetation along the Pacific Highway and Ryde Road which would have been retained in conjunction with any redevelopment of the site does not provide justification for the removal of Tree T135. Further, the planting of replacement trees cannot offset the loss of, or compensate for, the maturity, visual and landscape significance of Tree T135. An attempt at replacing Tree T135 as an isolated specimen is also unlikely due to lack of space within the setbacks which are constrained by either existing vegetation or the need to provide adequate screening for the development. The proposed removal of Tree T135 is a failure to recognise its landscape significance which is in conflict with the aims and objectives of the relevant controls. Findings 1. Similar, if not identical issues were raised in the earlier hearing on Tree T135 and I propose to adopt my previous findings, which state (at par 91): The undisputed evidence was that Tree T135 has high significance, good overall health and condition and has visual amenity. The site inspection confirmed the state of Tree T135. The location of Tree T135 however has a considerable impact on any redevelopment of the site, particularly given the findings in preceding paragraphs on the significance of the former 3M building. While I accept that every endeavor should be made to retain Tree T135 in any redevelopment of the site, it is not a matter that would warrant the refusal of an application if the tree needed to be removed. Orders 1. There being no reason why development consent should not be granted, the orders of the Court are: 1. The appeal is upheld. 2. Development Application DA0115/15 for the demolition of all existing structures, tree removal, earthworks, road widening, driveway access from Ryde Road, signage, landscaping, the consolidation of titles, retaining walls and construction of a building and its use for the sale of hardware and building supplies at 950-950A Pacific Highway and 2 Bridge Street, Pymble is approved subject the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits N, O and P. ______________ G Brown Commissioner of the Court 152878.16 (C) gtb (263 KB, pdf) 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: 16 May 2017