Bunnings Properties Pty Ltd v Ku-ring-gai Council

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". The Dictionary to LEP 2015 provides the following definition: hardware and building supplies means a building or place the principal purpose of which is the sale or hire of goods or materials, such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas.
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.
3. 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.
4. 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". The proposed development satisfies this development standard with a height of around 23 m.
5. 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 with an FSR of 0.81:1.
6. Clause 5.9 provides requirements for Preservation of trees or vegetation.
7. 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.
8. 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.
9. 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).
10. Clause 5.10(5) provides that: The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
11. 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.

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.
2. The decision of Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29] means that the amendment to Sch 5 is not irrelevant to the determination of the development application.
3. The weight to be attributed to a draft environmental planning instrument (or the amendment to Sch 5, in this case) will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
4. If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by zone and whether the proposed development will undermine the objectives of the zone.
5. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): …If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
6. The questions to be answered are firstly, whether the amendment to Sch 5 is imminent and certain and if so, what weight should the amendment to Sch 5 be given in the consideration of the application. Secondly, whether the proposal undermines the expressed future planning objectives for the area impacted by the amendment to Sch 5.
7. On the question of whether the amendment to Sch 5 is imminent and certain; it must be accepted that the amendment is imminent and certain given that the amendment has come into effect. Consequently, the amendment to Sch 5 should be given considerable weight. Whether the proposal undermines the expressed future planning objectives for the site in the amendment to Sch 5 must, in my view, be answered in the positive. Without the amendment to Sch 5, the site would not have the protection afforded by the Heritage conservation provisions in cl 5.10. Even though nothing in cl 5.10 prohibits the demolition of a heritage, the provisions seek to conserve heritage items. The objectives in cl 5.10(1) are: (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.
8. Notwithstanding the savings provisions, I accept that that development would be contrary to the planning objectives in cl 5.10(1). The effect is that the application should be considered under the requirements in cl 5.10 of LEP 2015.

The heritage assessment criteria

1. 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. Despite having different opinions on the heritage significance of the former 3M Building, the council and the applicant's experts both rely on the assessment of the heritage significance of the building using the criteria in Assessing Heritage Significance (2001) from the NSW Heritage Office. The same criteria are to be used when "making decisions about whether to retain an item" (p 4). The criteria (with reference to local significance underlined) are: Criterion (a) - An item is important in the course, or pattern, of NSW's cultural or natural history (State significance); OR An item is important in the course, or pattern, of the local area's cultural or natural history (local significance) (Historical significance) Criterion (b) - An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (State significance); OR An item has strong or special association with the life or works of a person, or group of persons, of importance in the cultural or natural history of the local area (local significance). (Historical association significance) Criterion (c) - An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (State significance); OR An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area (local significance) (Aesthetic significance). Criterion (d) - An item has strong or special association with a particular community or cultural group in NSW for social, cultural or spiritual reasons (State significance); OR An item has strong or special association with a particular community or cultural group in the area for social, cultural or spiritual reasons (local significance)(Social significance). Criterion (e) - An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (State significance); OR An item has potential to yield information that will contribute to an understanding of the area's cultural or natural history (local significance)(Technical/research significance) Criterion (f) - An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (State significance); OR An item possesses uncommon, rare or endangered aspects of the area's cultural or natural history (local significance). (Rarity) Criterion (g) - An item is important in demonstrating the principal characteristics of a class of NSW's - cultural or natural places; or - cultural or natural environments (State significance); OR An item is important in demonstrating the principal characteristics of a class of the area's - cultural or natural places; or - cultural or natural environments (local significance). (Historical significance)

The significance of the item

1. The site is identified as Item 1593 in Sch 5 Heritage items of LEP 2015 as "3M Building (former)" having Local Significance. The property is described as Lot 1 in DP 718718. The Statement of Significance (Exhibit 9) prepared by John Oultram (2013) 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.
2. The heritage significance of the item is set out in the report to the council on 10 December 2013 and followed the criteria in Assessing Heritage Significance. The assessment stated: Criterion (a) Historical significance The 3M Building is an example of a late Twentieth Century office building that was constructed c.1967 for the 3M (Minnesota Mining and Manufacturing) Company as their Sydney headquarters. The building was constructed on the site of the former Pymble Gas works that was established by the Australian Gas Light Company in 1888. 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. Criterion (b) Historical association significance The building is strongly associated with the 3M (Minnesota Mining and Manufacturing) Company that was established in Two Harbors Minnesota in 1902 and that has grown into an influential and innovative company with offices and plants worldwide. The building was a landmark development for the company reflecting their corporate strength and remained as their headquarters for over forty years. The building is associated with the architects Hanson Todd and Partners Criterion (c) Aesthetic significance The 3M Building is an example of a late Twentieth Century office building in the International style that forms the focus for the expansive landscaped grounds that were designed to complement the building. The building is a well-known local landmark set on a prominent site at the junction of two main roads through the suburb The building was designed by architects Hanson Todd and Partners Criterion (d) Social significance The place may have special associations for a former employees and those associated with 3M and is a well-known landmark in the local area. Criterion (e) Technical/Research significance The site has some archaeological potential as the site of the Pymble gas works Criterion (f) Rarity The building is rare locally as being an early example of a high rise office building in the International style with an unusual curved design Criteria (g) Representativeness Representative significance is a good, and relatively intact, example of a five storey, late Twentieth Century, International style office building with associated landscaping
3. This Statement of Significance and the assessment against the heritage assessment criteria was relied upon by the council in their resolution of 10 December 2013 to have the site listed as a heritage item in Sch 5 of LEP 2015.

McDonald Evidence

1. Mr McDonald states that there are four individual experts' opinions on whether the former 3M building and site warrant listing as a heritage item in Sch 5 of LEP 2015. Two assessments support heritage listing and two do not support heritage listing.
2. Mr McDonald notes that the heritage significance of the former 3M building and site had not been recognised by any heritage studies up to recent times. In recent times, heritage studies commissioned by the council to consider individual buildings, for which the former 3M building could have been nominated for assessment or that might have identified the former 3M building, did not include it in any nominations for heritage listing. These studies were: Perumal Murphy Alessi Study (2006) - Review of potential heritage items in the Ku-ring-gai area (restricted to review of 154 potential heritage items, which appear to be confined to residential examples), Ku-ring-gai Town Centres Heritage Review by CityPlan Heritage (May 2006) for which the study area stopped at the north side of Bridge Street specifically excluding Pymble Business Park and the then occupied 3M building and; Perumal Murphy Alessi Study (2011) - Review of Ku-ring-gai potential heritage items from the Post - War period (restricted to a review of 23 potential heritage items).
3. Mr McDonald states that the inclusion of the former 3M building and site may also have been considered in the various studies that were associated with the last three planning instruments that applied to Pymble, Business Park: Town Centres LEP 2010; Pymble Business Park LEP January 2013 and the current comprehensive LEP 2015. If it had been considered, it was not identified as a potential heritage item. The first time any action was taken to list the property was when the council resolved to seek inclusion the former 3M building and site as a heritage was following lodgment of a planning proposal with the Council by Bunnings on 15 May 2013.
4. Mr McDonald states that the main question that needs to be addressed is whether the former 3M building and site are important enough to demonstrate historic or aesthetic values, or have strong or special associations with persons or groups of persons of importance, or demonstrate a high degree of creative or technical achievement to meet the thresholds for listing in the significance assessment criteria (a) to (e) established by the NSW Heritage Council. These matters must be considered before assessing whether the potential item is rare as something can be considered to be rare but, if it does not meet any of the first five criteria, it is not significant. Mr McDonald states that he does not find the former 3M building and site to rise to the thresholds for listing in the significance assessment criteria a) to e) established by the NSW Heritage Council.
5. Mr McDonald suggests that when a potential item is singled out for heritage significance assessment, that there is a tendency to focus too much on that item to the exclusion of a meaningful comparative analysis. In this instance, much has been made of the building being curved. The former 3M building is a poor example when compared with the items selected by John Oultram in the report for the council and Mr Brooks. These are 17 Wylde Street, Potts Point (1951), the AMP Building, 33 Alfred Street, Circular Quay (1962), the Australia Square Building, Sydney (1966), the Sofitel Wentworth Hotel, Phillip Street Sydney (1966) and the former Qantas House, Hunter Street Sydney (1957). Mr McDonald states that overseas examples listed by Mr Brooks do not assist in making a comparative analysis in the Australian, NSW, metropolitan or local contexts.
6. The assessment by Mr McDonald using the Heritage Office criteria comes to the following conclusions:
7. Criterion (a) Historical significance: Mr McDonald states that he sees no persuasive case for the property to have significance for historical reasons. The building itself is an unremarkable five storey office building at the time of construction in 1967. It is not the first high rise commercial building in Ku-ring-gai because it is not high rise and therefore not distinctive due to its height. Nor does its curved form make it particularly distinctive. Other more impressive and larger examples of this form predate the former 3M building and include Qantas House (1957) (State Heritage Item), the AMP Building (1962), which is important because it was the first building in Sydney to break the 150 ft height limit and the Ryde Council office building, Devlin Street, North Ryde (1964). The fact that the site was previously occupied by a gas works is not physically reflected today. This is not a matter that would warrant retention of a building erected after the gas works activity ceased.
8. Criterion (b) - Historical association significance: Mr McDonald states that there is no strong evidence that the 3M Company had a "strong or special' association with the Ku-ring-gai local government area and played an important role in the cultural or natural history of the area. If this association was used to justify listing of the 3M building, it would equally apply to many other businesses throughout the local government area, who have since departed. Similarly, the association with the architectural firm Hansen Todd does not elevate it to warrant inclusion under this criterion. It was not recognised at the time it was built, or after, as an important building whereas others designed by the firm have been seen as significant.
9. Criterion (c) - Aesthetic significance: according to Mr McDonald, the council's report on heritage significance appears to confuse the fact that it is possibly the first or one of the first of its type with its actual aesthetic and technical characteristics. He does not agree that heritage status is achieved by a statement that "The 3M building • is an example of a late Twentieth Century International style building set in park like grounds" or that "it was purpose designed headquarters for company". These reasons would apply to many other office developments. Nothing about the architecture or the setting makes the building important. The setting does not demonstrate an intentional landscape design. It represents part retained forest and part cleared and grassed area, which was left relatively unchanged to allow for future additional buildings. The intention to expand the activities of the 3M Company is indicated by a preliminary sketch showing three rectangular buildings arranged along the Pacific Highway frontage, which is reproduced from "Building, Lighting, Engineering", (June 1966 at p 8) of the heritage impact statement by Paul Davies. A Landscape Concept Plan by Landscan dated May 1985 shows the existing 3M building with a building identified as 3M1 to the north where T135 is located. A building is also identified as 3M2 to the south west together with a formal landscape layout.
10. The curved form of the final design of the building is a logical reflection of the shape of the site boundary resulting from roadworks at the intersection. While the former 3M building was entered on the Australian Institute of Architects Register of Significant Architecture No 4703567, Mr McDonald notes that according to information in the register entry, the original concept by Hansen Todd, the architects, was for a number of rectangular buildings. The 3M Company referred the design to its American advisers, who suggested the curved form of what appears to have been intended as the first of a group of buildings at the curved corner of the site. This design was then developed by Hansen Todd. Mr McDonald notes that the Australian Institute of Architects Register of Significant Architecture has no statutory status and the evaluation criteria do not correspond to the State Heritage assessment criteria.
11. The building is not considered to be exceptional in any way. The former 3M building is not an exemplar of the International style. The strong emphasis of the expressed concrete columns on the facade is contrary to the more distinguishing horizontality and sheer wall character of the earlier examples recognised by heritage listing such as the Qantas building at Chifley Square, Sydney (1957) and 17 Wylde Street Potts Point (1961).
12. The council's heritage assessment states that "the building is a well-known Ideal landmark set on a prominent site at the junction". Mr McDonald considers that the site cannot be considered a landmark simply because it stands at the busy intersection of Pacific Highway and Ryde Road. Its five storey height and curved form are not attributes of a landmark. Because the building is set down into the site relative to the street boundaries, where it can be glimpsed between the trees around the perimeter, only the top two storeys are evident and three storeys through the trees from further north along the Pacific Highway. Mr McDonald accepts that this was not always the case. In his opinion, the 3M building is not a landmark, and even if it was, this would not be a reason for heritage listing given it does not qualify as a heritage item against all other heritage assessment criteria.
13. Criterion (d) Social significance: Mr McDonald notes that the Council's heritage assessment responds to criterion d) with an observation that "the place would have special association for former employees of the company and particularly those employed at the site". Mr McDonald states that this suggestion does not establish "strong or special association with a particular community or cultural group .. .for social, cultural or spiritual reasons".
14. Criterion (e) Technical/Research significance: Mr McDonald notes that the council's heritage assessment raises the possibility of underground remains relating to the former gasworks activity on the site. This "possibility" is not reason to elevate the building or the site to the threshold for criterion (e) The gasworks structures were at the south-western extremity of the site. The existing carpark structure was designed to sit over the ground level following removal of the gasworks structures. The development proposal does not disturb the ground below the existing carpark floor slab, making it highly unlikely that any archaeological resources (if remaining) will be encountered. Should it be found that archaeological investigations are warranted, the archaeological provisions of the Heritage Act 1977 are available to manage the process prior to commencement of construction.
15. Criterion (f) - Rarity : The council's report bases qualification of the item under criterion f) Rarity on the contention that "further research is required to confirm this, the building is likely the first international styled, high rise building in Ku-ring-gai. This statement certainly does not qualify the building as "uncommon, rare or endangered". Firstly, the building is not high rise and secondly, the fact that it has some historic value as an early modern commercial development within the area, does not mean that it meets the thresholds for criteria a) to e).
16. The council's heritage assessment includes a comparative analysis. The curved plan form examples chosen for comparison are much larger, mostly earlier and arguably of more architectural merit. 17 Wylde Street (1951) is a heritage item, Qantas House (1957) is a State Heritage Item, the AMP building, Circular Quay (1962) is a heritage item.
17. Criteria (g) - Representativeness : Without qualifications to meet criteria a) to e), the former 3M building does not rise to a level of importance in demonstrating the principal characteristics, being a poor representative of a 1960s international style commercial buildings. The site would not warrant heritage listing status under criterion (g) alone.
18. Based on his assessment under the Heritage Office heritage significance criteria, Mr McDonald concludes that the listing of the former 3M building cannot be justified.

Brooks evidence

1. Expert heritage evidence was provided by Mr Graham Brooks for the council. Mr Brooks states that there are other aspects of the history of the site, such as its initial re-zoning and design that had not been revealed or thoroughly assessed by other heritage experts in previous reports. His assessment of this additional research information expanded, in his opinion, the significance of the building and setting beyond that of a standalone building into land development initiatives on this site. This had a crucial effect on the formation of an important business park in Ku-ring-gai local government area.
2. Mr Brooks states that the former 3M Building and its site meet a sufficient number of the standard assessment criteria thresholds to justify entry on Sch of the LEP 2015.
3. Mr Brooks rejects the reference to previous studies between 2006 and 2013 not identifying the site to have heritage significance by Mr McDonald as irrelevant to the circumstances. He also does not accept Mr McDonald's recognition of the involvement of the architectural firm of Rudder Littlemore and Rudder in the Qantas Building and at the same time dismissing the association of Hanson Todd withthe former 3M building. He notes that Mr McDonald also quotes the involvement of the American firm of Skidmore Owings and Merrill in the Sofitel Wentworth Hotel project, but does not give any credence to the role of the US architects in the design of the former 3M Building. The fact that Mr McDonald does not ascribe any value to the international examples referred to by Mr Brooks suggests that Mr McDonald does not recognise that many, if not most architects are continuously taking note of international trends and design directions in architecture. Mr McDonald's comments also do not recognise the listing of the site in LEP 2015
4. Mr Brookes agrees with the assessment adopted by the council and, as part of his evidence produces a more expansive Statement of Significance that adds the role of the site as a precedent for the subsequent development of office parks projects in regional locations across metropolitan Sydney as adding to its significance.

Brookes Heritage assessment

1. The assessment by Mr Brookes using the Heritage Office criteria is:
2. Criterion (a) Historical significance: Mr Brookes states that the mid 1960s change of land use of the site from Services Infrastructure and Residential to Commercial was an early and important strategic example in Ku-ring-gai of the rezoning of largely residential land for such purposes. The extent of commercial uses in the locality was subsequently expanded to create the current Pymble Business Park on the corner of the Pacific Highway and Ryde Road.
3. The rezoning of the site from largely residential to commercial, as requested by the 3M Company, was originally resisted by the State Planning Authority (SPA) as it was not located in any of the District Centres identified in the Sydney Regional Outline Plan. The SPA's eventual support appears to have been encouraged by the capacity of the proposed project to minimise traffic concerns and respond to the proposed major upgrade of the adjacent intersection. The rezoning and subsequent commercial development of the site provided Ku-ring-gai Council with a highly desirable opportunity to rejuvenate a redundant but prominently located industrial site (former gas distribution facility) in what had essentially been a residential area. It also provided an opportunity to consolidate and comprehensively redevelop a group of otherwise small individual properties with outdated residential building stock, whose future development was otherwise likely to be severely disadvantaged by the impending road works.
4. The original 1965 rezoning proposal for the building included a comprehensive, staged development of a large scale office park, enhanced by a fine landscaped setting with ample on-site staff parking. It set an early precedent for the subsequent development of office park projects in regional locations across metropolitan Sydney.
5. When subsequently submitted as a development application, the building was conceived and built as the first and possibly only example in Ku-ring-gai of an Australian headquarters for a significant and high profile international manufacturer of a wide range of industrial and consumer products. Australia was the sixth largest international market for the Minnesota Mining & Manufacturing Company, after France, Great Britain, Germany and Canada. By the mid-1960s, 3M had some 900 employees in Australia. The local manufacturing operations distributed products to export markets throughout the Pacific and to the company's subsidiaries in Singapore and the Philippines. The new national headquarters administration building at Pymble reflected the company's growth since entering the Australian market in 1952.
6. Criterion (b) - Historical association significance; Although no longer present on site, a portion of the land purchased by Minnesota Mining & Manufacturing (Australia) Pty Ltd in 1965, had contained a strategic gas distribution plant for AGL from the mid-1920s. The facility serviced and facilitated the growth in the residential areas of Ku-ring-gai in the first half of the 20th century that had been generated by the opening of the North Shore Railway at the end of the 19th century. It is highly likely that the steeply sloping ridge-top topography of the site was cut away to create a level platform for the industrial facility, a topography that facilitated and was exploited by 3M when developing their new Australian headquarters.
7. The mid 1960s development of the site as the first stage of a commercial office park was associated with the 3M Company who selected the site and developed the project as their Australian headquarters. 3M was a major producer of industrial and consumer products, including products marketed under the generic name "Scotch" and remains a well-known brand in Australia and internationally. A number of the company's products were reportedly used during the construction of the building. The company continued its presence on the Pymble site until 2011, when it relocated to a new national headquarters in Ryde.
8. There is some documentary evidence confirming that the final design of the 1967 building and its landscaped setting was directly influenced by US architects associated with, or commissioned by, the 3M Head Office in Minnesota.
9. The completed building is associated with the well-established Sydney architectural firm of Hanson Todd and Partners, who were commissioned by 3M to manage the change of zoning and development application submissions, and subsequent design development, tendering and delivery of the project. Albert Hanson had won a Sulman Award for his own house in 1945 and Lionel Todd went on to become one of the partners of Hall Todd and Littlemore, charged by the NSW Government with the completion of the Sydney Opera House after the departure of Joern Utzon.
10. The distinctive pre-cast concrete facade panels were fabricated by Melocco Bros, the largest precast concrete manufacturer in Sydney at the time.
11. Criterion (c) - Aesthetic significance: It is an imaginatively conceived and well executed example of post-war international modernism architectural style applied to a commercial building. It differed from many of its contemporary buildings of this style in Sydney through the use of a self-cleaning pre-cast concrete facade instead of the more commonly used curtain wall.
12. The unusual and distinctive curvilinear plan form of the 3M building in Pymble was widely recognised as being a direct response to the curved corner of the site created by the upgraded intersection. By comparison, the majority of commercial buildings of this genre were designed as relatively simple cubic forms deliberately devoid of their local context, and intended to project a straightforward architectural massing. While five storeys in overall height, the building took advantage of the reduced topography from the former gas works to project only two storeys above the Pacific Highway frontage, where it achieved landmark status due to its association with 3M. The restriction on its projection above the highway frontage was possibly agreed with Ku-ring-gai Council to retain the overall allowable scale of the previously zoned residential site when viewed from the highway.
13. The architectural presentation of the building was enhanced by a "Japanese" style landscaped setting, and a curved entry driveway, providing enhanced amenities for staff and visitors.
14. The building retains its external architectural integrity and much of the early character of its landscaped setting. As would be anticipated with a building that was used for over 40 years, its interior office spaces have been altered and upgraded.
15. Criterion (d) Social significance: although a well recognised local landmark at the intersection of the Pacific Highway and Ryde Road, the level of awareness and association with the local community or distinct community group is not sufficiently strong to meet the Inclusion Threshold for LEP heritage listing under this criterion.
16. Criterion (e) Technical/Research significance: While there may be some information regarding the former gas works contained in the archaeological record, it is unlikely that this would meet the Inclusion for heritage listing under this criterion
17. Criterion (f) - Rarity: While there may be some information regarding the former gas works contained in the archaeological record, it is unlikely that this would meet the Inclusion Threshold for LEP heritage listing under this criterion
18. Criteria (g) - Representativeness: Mr Brooks does not address this criterion in his evidence.
19. Based on his assessment under the Heritage Office heritage significance criteria, Mr Brooks concludes that the listing of the former 3M building is warranted.

Findings

1. Mr Brookes and Mr McDonald disagree significantly on the heritage significance of the site despite using the same assessment criteria. They however agree that Criterion (d) Social significance, Criterion (e) Technical/Research significance and Criterion (f) Rarity are not met.
2. The evidence of Mr Brookes and Mr McDonald highlight specific areas of disagreement that led to their different views. These can be summarised as:

Criterion (a) Historical significance

1. To have Historical significance, the item must be "important in the course, or pattern of the local area's cultural or natural history". Depending on the association, the link must be "strong", be associated with "significant" historical events or relate to "significant cultural landscapes".
2. I find Mr Brooks' more recent observations that the initial re-zoning expands the significance of the building and setting beyond that of a standalone building into land development initiatives on this site as overstating the process in heritage terms. Mr Brooks provided no evidence to support the proposition that this process "had a crucial effect on the formation of an important business park in Ku-ring-gai local government area" or that the 3M development was an important strategic example in Ku-ring-gai of the rezoning of largely residential land for commercial purposes or that the rezoning provided a "precedent for the subsequent development of office park projects in regional locations across metropolitan Sydney" I do not accept that the rezoning process demonstrates a strong association with land development in Ku-ring-gai local government area or regionally.
3. On the historical significance of the 3M operation at the site, I prefer the conclusions of Mr McDonald. The evidence of Mr Brooks describes the development of the site by the 3M company in considerable detail although I do not accept that this could be regarded as being a "significant historical event". In my view, the word "significant" places a considerably higher burden on establishing any link to the historical significance assessment criterion. While accepting that 3M established its Australian headquarters on the site; the association is not that significant to warrant inclusion under this criterion. I agree with Mr McDonald that the approach adopted by Mr Brooks on the association with 3M could equally apply to other businesses throughout the local government area, who have also left the area.

Criterion (b) Historical association significance

1. There is no dispute that 3M is a well known brand however this in itself does not necessarily warrant inclusion under this criterion. I agree with Mr McDonald that the limited association with the architectural firm Hansen Todd also does not elevate it to warrant inclusion under this criterion. Similarly, the use of pre-cast concrete facade panels by Melocco Bros, the largest precast concrete manufacturer in Sydney at the time does not elevate it to warrant inclusion under this criterion.
2. The previous use of the site as a gas works is not evident on the site and would not warrant the retention of a building erected after the gas works activity ceased.

Criterion (c) - Aesthetic significance

1. If the building is to have Aesthetic significance the building would need to demonstrate that it "is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area". According to the experts the building is either an "an unremarkable five storey office building" or an "imaginatively conceived and well executed example of post-war international modernism architectural style".
2. In considering the different evidence, I am not satisfied that the building displays "a high degree of creative or technical achievement in the local area" suggested by Mr Brooks. I prefer the evidence of Mr McDonald that the curved form of the final design of the building is a logical reflection of the shape of the site boundary resulting from roadworks at the intersection rather than an imaginatively conceived and well executed example of post-war international modernism architectural style. As I understand, the international modernism architectural style reflected the increasing number of buildings constructed over the world after World War II in the modernist fashion. The buildings constructed at this time had varied forms however a curved form was not necessarily a regular feature of this architectural style. In any event, a comparison with more well-credentialed examples of buildings where a curved form is provided, such as the former Qantas Building and AMP Building in Sydney support such a conclusion that the former 3M building does not have "a high degree of creative or technical achievement in the local area". The Landscape Concept Plan for the future 3M development of the site (Exhibit D, Appendix B) add further support through the use of more conventional buildings forms over the site in all places except at the curved street frontage at the corner of the Pacific Highway and Ryde Road.
3. The landmark status is also overstated, in my opinion. As I understand, the building, when operational, had a large "3M" sign on the roof of the building. The sign was observed still located on the roof on the site inspection but was not operational and was removed from its previous location. There is some merit in the evidence of Mr McDonald where he states that the use of the words "land mark" in relation to the building could be misleading given that the site is at the intersection of two major roads and the building is largely screened but not hidden by vegetation from the adjoining roads. I am more inclined to accept that the signage and its location gave the site prominence rather than the building having landmark status.
4. 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.

The evidence

1. Expert evidence was provided by Dr David Robertson, an ecologist, Mr Mark Kokot, an arborist and Mr John Lock, a landscape architect for the applicant and Ms Robyn Askew, a landscape architect for the council.
2. The council maintains that the proposed development will result in the removal of a Eucalyptus saligna (Sydney Blue Gum) (Tree T135) which forms part of the Blue Gum High Forest Critically Endangered Ecological Community, has been identified as having high significance, good overall health and condition and has visual amenity and significance to the site and in particular the heritage item. The removal of Tree T135 is inconsistent with the objective which seeks "to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation" (cl 5.9 of LEP 2015) and that it does not" recognise, protect and enhance and aesthetic and heritage values of trees" or "Secure and maintain local character and amenity" (pt 13.1 of DCP 2015)
3. Mr Kokot and Ms Askew agree that 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 reflecting its good form and structure and Tree T135 is very good example of its species. They further agree that based on the high VTA and landscape significance, T135 has a height of greater than 30 m and canopy spread of 24 m makes T135 at least 30% larger than any of the trees assessed on the site. It is considered viable for retention having no structural faults however the current design necessitates the removal to accommodate the proposal.
4. Ms Askew states that the design of the development has not taken into consideration the relevant controls and objectives under LEP 2015 and DCP 2015 in that T135 is the most significant tree of the 231 trees assessed by the arborist as part of the application. Unlike the other existing vegetation on the site, T135 is growing in isolation with high visibility particularly within the site.
5. The applicant has relied on the built form controls to justify removal of the tree however the planning controls 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 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.
6. Further, Ms Askew states that 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.
7. Mr Lock accepts that the description of Tree T135 by Mr Kokot and Ms Askew 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 part of the tree canopy can be seen from distant views on the Pacific Highway but it is only possible though to see the top of the canopy. In his opinion, Tree 135 does not present with visual significance as single specimen when viewed from outside the site.
8. In response to Ms Askew's evidence, Mr Lock notes 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.
9. Dr Robertson states that while Tree T135 is a large specimen of a Blue Gum, and is regarded as part of Blue Gum High Forest under the State Threatened Species Conservation Act 1995, it is not highly significant in ecological terms. This is because Tree T135 is an isolated specimen, set within an artificial landscape. It does not provide "special" ecological values such as floral resources for feeding, that are not also provided by adjacent plantings of native vegetation. The Blue Gum High Forest on the subject site is fragmented and extremely altered from its original form. As such it is not eligible for consideration under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. It also only technically qualifies as part of Blue Gum High Forest under the Threatened Species Conservation Act 1995 because the Final Determination for that Act mentions that the community definition includes scattered trees.

Findings

1. 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. I accept the evidence of the applicants experts that, given the findings on the heritage significance issue that the retention of the Tree T135 should not be raised to the level of importance suggested by Ms Askew. In accepting that the removal of the tree is part of the balancing that is required in the development of land, 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.

The evidence

1. Expert evidence was provided by Mr Peter Smith, an architect and Mr Kendal McKay, a town planner for the applicant and Ms Kerry Gordon, a town planner and Ms Gabrielle Morrish, an architect and urban designer for the council.
2. The council, through the evidence of Ms Gordon and Ms Morrish, maintain that inadequate setbacks are provided to the Pacific Highway and Ryde Road. The proposed building encroaches within the setback control for the site contained at Part 14A.3 - Building Setbacks of DCP 2015 which requires a 20m landscaped street setback to both the Pacific Highway and Ryde Road. The encroachments comprise the following elements:

• the four level high lift, entry, travelator structure, which has a setback from Ryde Road of approximately 12m - 17m, a height of up to 14.1m and a length of approximately 62m
• the southern corner of the proposed 4 level warehouse building above parking which has a setback from Ryde Road of approximately 11.7m, a height of up to 19.8m and the breaching element has a length of approximately 35m.
• the 2 or 4 level carpark, trade, bagged goods and nursery component of the warehouse building, which has a setback from Pacific Highway approximately 9.5m, an unknown height and the breaching element has a length of approximately 55m.
• the colonnade structure at the corner of Pacific Highway and Ryde Road which has variable height of up to approximately 9m and wholly breaches the setback requirement.

1. The projection of the encroaching elements results in a dramatic reduction in the area available to create a landscape setting for the development on a landmark site. The lack of landscaped setting is in contravention of the planned future character of the locality.
2. From an urban design perspective, the scale, massing, siting and design of the proposed building is inappropriate to the landmark corner location of the site and inconsistent with the planned future character of the locality. The design has the following negative aspects:

• the location of the building within the Ryde Road and Pacific Highway setback is a poor response to the site and does not have regard for the unique attributes of the site, particularly the curvilinear Ryde Road and Pacific Highway corner.
• the proposal seeks to establish the prominence of the building through proximity to the street frontage, rather than through a building of architectural quality located within a generous landscaped public domain interface as required by DCP 2015.
• the proposed building is basically a large "shed" that is partially wrapped in a curved colonnade screen and does not achieve the status of a landmark building. In its majority, the building provides little visual interest, does not achieve architectural excellence and does not address the landmark site "to have a building design that is visually prominent and distinctive in form so as to identify the location of Pymble Business Park within the Region".
• the proposal's large building footprint does not enhance the site character and the design inappropriately attempts to create a visual prominence for the building by providing reduced setbacks and a large, low scale entrance structure.

1. In response, Mr McKay states that the proposal provides for a cohesive streetscape presentation to Ryde Road and the Pacific Highway with a building alignment ranging from 10 m to the colonnade structure near the corner of Ryde Road/Pacific Highway to 20 m in the north-eastern corner. Of the main building, only one small area of the main building structure encroaches within the 20 m setback, this being a length of approximately 36 m in the southern corner of the building which is setback between 12.46 m to 20 m from the Ryde Road boundary. The other building works which encroach within the 20 m setback include the colonnade, part of the travelator structure and part of the shade sail structure over the nursery/bagged goods area. These are considerably lesser built elements in the context of the overall design and have an openness and transparency rather than being enclosed structures.
2. Due to the nature of materials and products stocked in a 'hardware and building supplies' development and due to manual-handling operating efficiencies, there is a necessity for large sites with large level floor plates and uniform internal racking systems. Accordingly, the proposed main building is unavoidably cubical, this is not dissimilar to the majority of warehouse-style or factory-style buildings. In this regard, it is noted that the B7 Zone also permits 'General industries', light industries', and 'Warehouse or distribution centres', all of which might be expected to have essentially large cubical building structures. Accordingly, the proposed varying setback and use of the colonnade and travelator structures in conjunction with the proposed materials and finishes, facilitate building modulation and articulation of the building facades - consistent with the objective of the control. Furthermore, notwithstanding the non-compliance with the 20 m building setback control under the DCP, the proposal provides significant opportunities for front setback planting to supplement the retention of most of the existing landscaping along the Ryde Road and the Pacific Highway frontages with 70% of the Pacific Highway setback and 60% of the Ryde Road setback available for deep soil landscaping
3. Mr McKay maintains that the proposed development satisfies the DCP definition of a landmark building as it will be easily seen from a distance along the Pacific Highway looking north and from Ryde Road looking east and will supplement the intersection of two major arterial roads as a marker for people to establish their location.
4. Mr Smith sates that the setback to the Pacific Highway and Ryde Road frontages are acceptable and are consistent with the intent of the relevant sections of the DCP. The introductory section of Part 14 - Urban Precincts and Sites provides the reasons for the variations to the setbacks nominated in this part as: To provide opportunities for street tree plantings or footpath widening in appropriate locations To allow widening of lanes and streets in identified locations To provide for an increase in the area of the public domain To enable a consistency of built character

Findings

1. In considering the different evidence from the experts and with the benefit of a site inspection, I am not satisfied that the proposed development is acceptable in the form presented to the Court. That is not to say that a "Hardware and building supplies", in some form, is not capable of being constructed on the site. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClelland CJ relevantly states (at par 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted (my emphasis). The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
2. During closing submissions, Mr Galasso sought, in the event that the Court did not find the proposed plans acceptable, to be given the opportunity to address the concerns raised by the council, including the breach of the 20 m setback to the Pacific Highway and Ryde Road and the design quality of the building, with further plans. I propose to take up this offer principally because the matter of the demolition of the former 3M building has been found in the applicants favour and Mr Smith, the applicant's architect submitted additional plans that sought to address the concerns of the council over the appearance of the building's functional form (Exhibit J). While Ms Morrish, the council's architect and urban designer made a genuine attempt to address the amended designs (and also provided her own response with photos of "big box" developments that provided added architectural treatment), I accept that it was unreasonable to expect any valuable response particularly when other important matters, such as the breach of the 20 m setback were still contemplated by the applicant.
3. In coming to this conclusion, it does not follow that approval will be granted if amended plans are provided. DCP 2015 correctly highlights the importance of the Pymble Business Park through its controls in cl 14A.1 where the clause describes the planned future character for the Pymble Business Park as: The planned future character for Pymble Business Park is one of commercial buildings that have good integration with the street character. Due to its topography and location the precinct has several pockets of differing character: i) Bridge Street is to have buildings with entries and frontages that contribute to the street activity through direct physical access and visual surveillance from ground floors of the buildings. It is to have a landscape character with well considered and planted front setbacks. ii) Development along the north of the Pacific Highway is to create a continuous urban character with buildings to the street boundary having a high ground floor visibility from adjacent roadways. iii) Development along the south of the Pacific Highway and to the north of Bridge Street is to respect the Heritage Item and ensure its continued prominence in that streetscape. iv) West and Suakin Streets are to have buildings built to the boundary with awnings and active frontages creating a neighbourhood character with shops and services at street level. v) Ryde Road is to have a landscaped character with large street setbacks allowing quality planting, and a landmark building at the corner of Ryde Road and Pacific Highway.
4. The site is specifically addressed in cl 14A.5 as a "landmark site at the corner of Ryde Road and Pacific Highway. This is a visually prominent site with the potential to serve as a memorable marker in this locality". Control 6 states: 6 The site is to have a landmark building that is unique and site responsive. The building design is to be visually prominent and distinctive in architectural form and identify the location of Pymble Business Park within the region.
5. In considering the controls in cl 14A, it must be understood that the architectural form will normally reflect its use. In this case, a development application is for a "hardware and building supplies" establishment and will have a different form to say "Office premises" but that does not mean that a "hardware and building supplies" establishment cannot be designed to address the requirements in cl 14A.
6. 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.

1. If the applicant is prepared to provide additional drawings, the future progress of the matter will be discussed when these findings are handed down. Alternatively, if the applicant does not wish to provide additional drawings; the appeal will be dismissed.

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G T Brown 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: 02 March 2017