Svedas v Sydney City Council No 2

Change to circumstances of the case 5An inspection of the site was undertaken at the commencement of the hearing and evidence of the extent of damage to the buildings was observed standing at the front doors of both dwellings and from the rear of the premises. The interior of the building was not entered on the advice of Mr S Waters, a structural engineer, who advised that the building is in an unstable state. 6Expert evidence has been provided from Mr S Wiltshier and Mr K Demlakian, structural engineers, who conclude that the extent of damage as the result of the fire is such that the buildings should be demolished. 7Mr Demlakian and Mr Wiltshier agree that the building known as 535 Elizabeth Street is damaged to such an extent that demolition is warranted and recommended. 8With regard to No. 533 Elizabeth Street, they say the building has elements of significant damage requiring demolition, including but not limited to the following: (i)The entire roof and ceiling structure to the two storey building located at the front. (ii)Both the chimney structures located on the northern façade (iii)The modern infill building. In addition, they say the following areas of damage warrant substantial repair, including some local demolition: (iv)Areas of wall damage in various locations throughout the building. (v)Localised damage to various areas of the floor structure. (vi)There is a strong likelihood that floorboards to all floors will require replacement in the front building. 9The experts conclude that it would be reasonable to demolish the building in its entirety, considering the extent of damage, if the Court was of the opinion that the building does not have significant heritage value. 10Mr Staas and Mr Wang provided expert heritage evidence in the original proceedings and have prepared an additional report addressing the impacts of the fire damage. Mr Staas had always been of the view that the buildings could be demolished however, Mr Wang opposed their demolition. Since that time they have been provided with the structural engineer's joint report. 11They agree that the fire has caused damage and loss of certain original/early fabric of the existing buildings, most of which involved internal building elements and that the damage has had a negative impact on the significance of the two building due to the loss of that fabric. They concur that the principle building form, or the front section of the two houses (two rooms deep each) is the most significant and contributory element for the streetscape. Following receipt of the engineering report, they both agree that, because No 535 must be demolished, it is no longer appropriate to press for retention of No 533.

Conclusion and findings 12As it is agreed between the structural engineering experts that No 535 must be demolished, I have considered whether it is appropriate to also allow demolition of No 533. My earlier consideration of the application had regard to the contribution of both buildings, as an intact pair together with the adjoining contributory building at the corner of Elizabeth and Belvoir Streets and to the immediate south of the site. Having considered the evidence provided, I agree that it is appropriate to also allow demolition of No 533 as, without the central building (No 535), the significance of the northern building is reduced and its contribution to the heritage conservation diminished to such an extent that it fits the description contained in clause 4.3 of the HDCP. 13Having regard to the changed circumstances of the case and in particular, the council's agreement to seek consent orders solely on the basis of the structural instability of the building as a result of the extensive fire damage, I am satisfied that these circumstances are those contemplated in clause 1.13 of HDCP to provide for demolition. It is not necessary to resolve the test of Helou in view of that conclusion. 14Section 80(4) of the Environmental Planning and Assessment Act 1979 provides: (4) Total or partial consent A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. 15There is nothing in the remitter that requires review of my decision that the proposed replacement building is inappropriate and for that reason, in accordance with the power under s 80(4) of the Act consent for the demolition of the two existing buildings should be allowed and that part of the application in relation to the new building refused. 16I am satisfied that the agreed conditions are consistent with the requirements of the HDCP. 17By consent, the Court orders: (1)The Appeal is upheld in part. (2)Pursuant to Section 80(4) of the Environmental Planning and Assessment Act 1979, that part of Development Application No. D/2010/540 for the demolition of all existing buildings and structures erected on the land known as 533-535 Elizabeth Street, Surry Hills is approved subject to the conditions annexed and marked 'A' and that part of Development Application No. D/2010/540 for construction of a 9 storey mixed use development with 30 residential units, ground floor retail and basement car parking for 9 vehicles accessed from Little Buckingham Street is refused. (3)The exhibits are returned. Sue Morris Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2012