Conclusion
20Having considered the evidence, the submissions and undertaken a view, I am satisfied to rely on the heritage expert's agreement regarding the building elements to be retained and those allowed for demolition, together with the appropriate historical documentation. The parties also agree to orders to effect this outcome.
21However in implementing these findings, I note Ms Reid's submissions concerning the Court's power to grant consent by way of imposition of conditions as advocated by the applicant because she submits that the application can only be approved if it amended. The applicant does not consider this necessary.
22It appears to me that the main concern is 'cost thrown away' arising from the piecemeal response to the "insufficient information" contention originally identified and the result further consideration of the retention of some of the building elements during the hearing.
23In support of this submission that the final development significantly differs from the original application, Ms Reid refers the piecemeal response to the contentions, which confirmed the original intention for total demolition and the additional resources involved in reviewing the additional information.
24Ms Reid's submissions refer to the authority on the matter in the decision in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, where Priestly JA enunciated the following principle:
In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application... Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.
25Another authority is in the matter of Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175 determined by Pearlman CJ. In that case, an applicant approached the Court with an appeal against an approval of a development application by the Minister, as it was said that the conditions imposed had the effect of rendering the approval significantly different from that for which he applied. Specifically, the applicant initially sought consent to clear approximately 40 hectares of land in areas shown on a plan. The Minister approved the application subject to conditions, which permitted clearing of a subset of the areas subject of the application, but that some of the areas were in parts of the site that the applicant did not propose to clear.
26In Carr, Pearlman CJ found that the "development which was the subject of the development consent is significantly different from the development which was the subject of the development". Further, Pearlman CJ found that the reference in 80(1)(a) and (b) "the application" must be construed, in my opinion, as requiring a consent authority to exercise its powers under s 80(1) only in respect of the particular development application that was lodged. An applicant may amend or vary a development application in the course of its assessment by the consent authority (c148A of the Environmental Planning and Assessment Regulation 1994 expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to "the development application".
27Reference was also made to the approach taken by Bly C in Claron Projects Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 296. In that case, Council had issued a consent for 'alterations and additions' to a building to create a residential flat building containing two dwellings. In the course of construction, the majority of the external walls of the building were demolished, not in accordance with the development consent. The application before the Court sought approval of a s 96 application to modify the consent. Commissioner Bly found that demolition of the majority of the external walls was a substantially different application to retention of the original external walls "almost entirely entact". The Commissioner further found that the description of the application must be modified to be 'demolition of an existing two storey building and the erection of a new three storey plus attic residential flat building" as opposed to 'additions and alterations to existing two storey dwelling and conversion into a residential flat building'.
28In addition to these authorities I have also the findings in the often quoted Futurespace Pty Ltd v Ku- Ring-Gai Council [2009] NSWLEC 153, where Pepper J identified the following principles to assist in determining whether amendments are "minor":
42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA:
(a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]);
( b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);
(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);
(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);
(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);
(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and
(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
29In the subject circumstances, whilst the applicant does not propose to amend the application, nevertheless considering the aforementioned principles, I consider the cumulative effect of the agreed experts elements for retention are of a minor nature. In summary, it appears to me from these authorities that the main question concerns whether the granting of conditional consent significantly alters the original development application.
30Insofar as no detailed plans of the proposed demolition works were submitted for these old building elements, nevertheless I have considered various photos contained in the reports, particularly those in the Integrated Site Design Pty Ltd report "A Proposal for the Demolition of the Zinc Corporation Mill" - Exhibit B.
31From examination of these photos and my site inspection, I am satisfied that the agreed works result in the substantial demolition of the structural elements, as originally proposed, with only a minor part of the elements being retained. In these circumstances, I am satisfied that the conditional consent does not significantly alter the original development application, to the extent that an amended application would be required.
32In determining this application, I have considered the following heritage controls and responses referred to by the heritage experts. The subject building is within the Broken Hill 'Line of Lode' which is included on the Register of the National Estate. The subject building is also scheduled as a Local Heritage Item under the Broken Hill LEP 1996. It forms part of the current city boundary area proposed for inclusion on the National Heritage List, which is currently under consideration.
33The subject application, which now proposes only partial demolition of the structure is considered to provide a satisfactory response to the heritage provisions of Sections 19 and 20 of the LEP as outlined in Annexure D. In particular, the proposed partial demolition, with retention of physical representation of the original structure would result in a satisfactory "affect (on the) the heritage significance of the heritage item" (Section 19) and will not negatively impact on the setting of the nearby heritage items within the Freeman Shaft Precinct (Section 20).
34I rely on the experts opinions that:
- It is also considered that the LEP provisions of "What must Council consider, other than zone objectives, when deciding whether to consent to development?" (Section 10 of the LEP) are now satisfied by this amended application. As outlined in Annexure C, the Commonwealth Department of Sustainability, Environment, Water and Communities has confirmed that it raises no objection to the amended application.
- There are no matters requiring consent arising from the fact that the subject building is within an area that is on the Register of the National Estate.
- Therefore, the amended application for partial demolition of the Zinc Concentrating Mill would satisfy all relevant heritage provisions, which need to be considered by the Court.
35Accordingly, I am satisfied that it is appropriate to grant conditional development consent.