PDS Engineering Division Pty Ltd v North Sydney Council

[2025] NSWLEC 1583

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

PDS Engineering Division Pty Ltd v North Sydney Council [2025] NSWLEC 1583

Hearing dates:

3-4 July 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Modification application DA.66/23/2, seeking to modify development consent No. 66/23 for the partial demolition of heritage item and construction of part 4 and part 11 storey mixed use building comprising 8 studio units, 1 x 2 bed, 9 x 3 bed and 16 x 5 bed units for a total of 52 units, 4 levels of basement carparking containing 51 car parking spaces on land at 290 Pacific Highway, Crows Nest is refused.

(3) All Exhibits are returned, except for Exhibits A, B and C.

Catchwords:

MODIFICATION APPLICATION – whether development is substantially the same development – retention of heritage fabric – reasons given for the grant of consent sought to be modified

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 8.15

Environmental Planning and Assessment Regulation 2021 (NSW), s 113

North Sydney Local Environmental Plan 2013, cl 5.10

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468; (1998) 43 NSWLR 468

PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:

Australia ICOMOS, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013

Department of Planning and Environment, Assessing Heritage Significance, 2023

North Sydney Development Control Plan, 2013

Category:

Principal judgment

Parties:

PDS Engineering Division Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Wright SC / T To (Applicant)
S Burveling (Respondent)

Solicitors:
Holding Redlich (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2025/124288

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: On 8 November 2024, the Court’s decision in PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722 (PDS No.1) granted consent to development application No. DA66/23 for the proposes of development involving restoration of a heritage item, partial demolition works, and construction of a 11-storey mixed use building comprising two floors of commercial premises, 52 residential units, and four levels of basement parking, public domain and landscaping works, and other associated works, at Lot 1 in Deposited Plan 1279891, referred to as 286-294 Pacific Highway, Crows Nest (the Original Consent).

2. In general terms, the development proposed the restoration and partial demolition of an existing heritage listed building, construction of a mixed use building with commercial tenancies and residential apartments over, and public domain works and landscaping.

3. Then, as now, an existing two-storey Art Deco style building that was once the site of a shop and showroom used by the North Shore Gas Company is a central feature of the Court’s attention (the Gas Showroom Building).

4. The Gas Showroom building is identified as an item of local heritage significance for the association it has to the North Shore Gas Company, to its architects Rupert Villers Minnett and Charles Cullis-Hill, and to its builders Howie Moffat & Co., and Wunderlich Ltd.

5. The façade fronting the Pacific Highway consists of materials considered somewhat unique in the precinct, such as red granite, bronze and terracotta, otherwise referred to as faience tiles.

6. The applicant in these proceedings, PDS Engineering Division Pty Ltd, now seeks to modify the Original Consent to permit demolition of the heritage building.

7. PDS submits that the modification application arises at the direction of North Sydney Council (the Council) but due to an alert raised by PDS after further investigation of the site revealed certain structural inadequacies.

8. In essence, the Council contends that the modification as now proposed is not substantially the same as the development for which consent was originally granted because the heritage item that was proposed to be partially demolished, and partially restored, is now proposed to be wholly demolished.

Evolution of the appeal

9. In written submissions, PDS advises that a structural engineer engaged by PDS, Mr Cutuk of CAM Consulting Structural and Civil Engineers, attended the site on 21 January 2025 to assess the existing building’s structural integrity. A report prepared by him dated 6 February 2025 concluded that “buildings such as this will rarely show signs of distress before failure. The building should be demolished and reinstated in a manner that ensures structural integrity as well as compliance with current standards” (Exhibit A, Tab 10F).

10. As a result of concerns held by Mr Cutuk, PDS engaged Dr EITantawy of ALJ Consulting Engineers, who recorded in a Memorandum dated 23 January 2025 that the existing building showed “imminent risks of sudden collapse” (Exhibit C, Tab 12).

11. On 12 February 2025, PDS notified Council of the advice of the engineers and requested that Council urgently issue a Development Control Order (DCO) to permit make-safe works to occur (Exhibit A, Tab 10).

12. It seems somewhat relevant to note that the architectural drawings accompanying the notification to Council, and the notification itself, show the retention of the front façade and awning over the footpath at that time (Exhibit A, Tab 10B). In a letter prepared by Mr Rappoport dated 26 February 2025 (February Letter), retention of the awning structure and its original pressed metal ceiling is said to be a positive heritage action. In respect of the façade fronting the Pacific Highway, Mr Rappaport states:

“The façade is the star of the show, and therefore every action possible to conserve it, protect it and repair it, collectively constitutes a positive heritage action in my opinion.”

13. On 21 February 2025, the Council issued an Emergency DCO (EDCO) under Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) requiring temporary propping and bracing on the site in accordance with a plan prepared by a suitably qualified engineer, and installed by a qualified builder (Exhibit A, Tab 11).

14. The EDCO was reissued on 27 February 2025 to the registered owner of the site, Visionvest Pty Limited.

15. On 28 February 2025, PDS provided the following to Council:

1. Proposed sequencing of propping of the front façade and balance of building, for temporary support

2. Heritage Conservation Plans

3. Heritage Conservation Report

4. Proposed make safe plans

5. Proposed demolition plans for dangerous items only that is at imminent risk of collapse

16. On 11 March 2025, the Council notified the owner of the site that the proposed propping and bracing works were permitted, but that the proposed demolition of building fabric was not permitted as it was inconsistent with the Original Consent, and advised that a modification application was required, under s 4.56 of the EPA Act (Exhibit A, Tab 16).

17. On 28 March 2025, PDS advised the Council in writing that a modification application would be filed with the Court under s 4.55(8) of the EPA Act (Exhibit C, Tab 3), and provided Council with a proposed sequencing of ‘make safe’ works prepared by ALJ Engineers (Tab 4) and a Structural Engineering Report of the same author (Tab 5).

18. Modification Application DA66/23/2 was filed with the Court under s 4.55(8) of the EPA Act on 1 April 2025.

19. At the commencement of the hearing, PDS was granted leave, unopposed, to rely on amended plans and other documents listed below, and in respect of which the Council, as the relevant consent authority, approved in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW):

1. Amended Demolition & Heritage Conservation plans prepared by Fuse Architects Revision C dated 1 July 2025 (Exhibit B, Tab 1)

2. Amended Heritage Management Document prepared by Heritage 21 Issue 8, version 11 dated 1 July 2025 (Exhibit B, Tab 2)

3. Amended Schedule of Conservation Works prepared by Heritage 21 Issue 4, version 3 dated 1 July 2025 (Exhibit B, Tab 4)

4. Schematic Demolish and Rebuild Scheme prepared by ALJ Engineers Revision 01 dated 29 May 2025 (Exhibit 2, Tab 24)

Expert evidence

20. Experts in three disciplines conferred in the preparation of a joint expert report (Exhibit 2). While the express intent, stated at case management, was for theirs to be a genuine dialogue to permit some iteration between the disciplines, the joint expert report is in three distinct parts:

• Part A Structural Engineering: Dr Ayman ElTantawy, on behalf of PDS, and Mr Alex Been, on behalf of the Council.

• Part B Heritage: Mr Paul Rappoport, on behalf of PDS and Ms Lisa Trueman on behalf of the Council.

• Part C Planning: Mr John Wynne on behalf of PDS, and Mr Brian McDonald on behalf of the Council.

21. Oral evidence was heard from experts in structural engineering and heritage.

Whether development is substantially the same

22. As stated briefly at [8], the Council contends the development to which the consent as proposed to be modified is not the same, nor substantially the same, as the development for which consent was granted in the Original Consent. As such, the modification application fails to meet the test required of it by s 4.55(2)(a) of the EPA Act and must be refused.

23. The meaning of “substantially” means essentially or materially or having the same essence (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8), and where to ‘modify’ means “to alter without radical transformation” (North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468, (1998): 97 LGERA 433.

24. In considering whether the Court can be satisfied that the development to which the consent as proposed to be modified is substantially the same development as the development for which consent was originally granted, the Court has commonly held that it is insufficient to characterise development as substantially the same solely on the basis that the use is identical.

25. Instead, a comparative task is required. Such a task might involve a qualitative and quantitative appreciation of the development that is proposed to be modified, and the development for which consent was originally granted, including the circumstances in which development consent was granted.

26. Undertaking only a quantitative evaluation of the modification application, compared to the original consent, absent any qualitative assessment, will be legally flawed, for reasons shown by Bignold J in Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280, at [52].

27. Furthermore, the quantitative and qualitative comparison requires an understanding of the essential features or components of the originally approved and modified developments in order to assess whether the modified development is substantially the same as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage), at [25]). Doing so does not replace the statutory test, but requires a categorising of the facts in the statutory description at s 4.55(2)(a) of the EPA Act. Such an undertaking may assign relative significance or weight to the different facts and a balancing of the facts, as weighted. This categorisation can be an instinctive synthesis and need not be articulated expressly (Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31, at [30]).

28. PDS relies on an assessment of the qualitative and quantitative comparison by Mr Wynne in the joint expert report to the effect that there is no change proposed to the land use or intensity of land use, or height, gross floor area, setbacks, number of apartments, design or appearance, materials or finishes, landscape of access arrangement. Neither is any change to the streetscape or relationship or impact on adjoining properties likely.

29. Next, while Mr Wynne states the removal of the entirety of the existing building is proposed, his written evidence is that sufficient elements are retained and conserved through their salvage, repair and reinstatement to represent development that is substantially the same development.

Structural engineering evidence

30. The Council contends that PDS has failed to demonstrate that the relevant parts of the existing building are not otherwise able to be repaired, rather than demolished, or that structural deficiencies are incapable of remediation and strengthening.

31. It is relevant to note that the engineer for PDS, Dr ElTantawy, has prepared three reports that are in evidence. These include:

1. Structural Engineering Report dated 24 January 2025 (January ALJ Report) (Exhibit C, Tab 12)

2. Structural Engineering Statement dated 26 March 2025 (March ALJ Report) (Exhibit A, Tab 3)

3. Structural Engineering Report dated 6 June 2025 (June ALJ Report) (Exhibit 2, Tab 14)

32. The experts agree that ongoing water ingress is causing the building structure to deteriorate, and that the building should not be occupied until existing structural defects are addressed.

33. It is the nature of those defects, or deficiencies, that is the subject of some dispute between the experts.

Load capacity of the existing slabs

34. Investigation of the existing slabs within the building was undertaken using ground penetrating radar and visual inspection, by Slab Scan Pty Ltd on 21 May 2025 (‘Slab Scan Report’) (Exhibit 2, Tab 19).

35. The Slab Scan Report identifies a screeded topping applied over structural slabs, which the experts agree does not contribute to the sectional strength of the slabs, but rather is an additional load imposed on the slab. As the Slab Scan Report did not measure the depth of the topping in all locations, the experts are apart on the depth to be assumed generally.

36. This is relevant as the experts differ on both the dead loads and live loads assumed to be imposed on the floor slabs within the existing building.

37. In addition to the Slab Scan Report, the experts also rely on the June ALJ Report prepared by Dr ElTantawy, and which contains annexures that include the following:

1. A structural assessment of the existing reinforced concrete sections structural capacity under the current relevant Australian Standard.

2. A structural assessment of the existing reinforced concrete sections code compliance and durability under the current relevant Australian Standard.

3. Possible Structural engineering solutions for strengthening the existing building structure.

38. A summary of Dr ElTantawy’s calculations of the structural capacities of the slabs and beams that are the subject of the Slab Scan Report appears at Table 01 of the June ALJ Report.

39. Dr ElTantawy’s opinion is that the slab at the roof level of the existing building, which continues under the metal roof, will require a screeded topping and waterproofing to be applied, of sufficient depth to permit falls to drainage points. Accordingly, a design load of 4 kPa is adopted.

40. Dr ElTantawy cites guidance found in Australian Standard AS1170 that provides two alternatives when determining the design of live loads. As it was put in oral evidence, the load can be derived either by reference to a table that attributes certain loads to certain functions or uses, or by a considered assessment of the engineer.

41. Dr ElTantawy has assumed a load of 2.5 kPa will be imposed by floor finishes and fitout which he considers reasonable for two reasons:

1. Firstly, because uses such as commercial and retail functions generally install fitout well after the design stage, and so greater load capacity should be assumed; and

2. Secondly, because the terms of the consent require the retention of the existing heritage building, for which additional topping is assumed to achieve a level.

42. The experts differ over the capacity of the existing slabs to take the proposed loads imposed due to the composition of the slabs that are, in part, structural, and in part a cementitious topping.

43. Mr Been regards the load attributed to floor finishes to be excessive and believes that a reduction in load should be achieved, not by the addition of more topping to achieve level finish, but by the selective removal of that which is already there. By example, a reduction in topping screed by 60 mm represents a reduction of around 1.32 kPa.

44. Next, in respect of the roof slab, Mr Been believes 3 kPa to be reasonable, where neither expert has had the opportunity to inspect the existing roof framing that sits above existing slab to its underside.

45. Where Dr ElTantawy has assumed a live load of 4 kPa in both retail and commercial areas, Mr Been also considers a load of 3 kPa more suited to commercial areas nominated for office uses.

Lateral stability and Strengthening

46. While no testing has been undertaken on the site Dr ElTantawy’s evidence is that the existing structure is not capable of resisting lateral loading.

47. The experts agree that the testing required to confirm lateral stability would be destructive, and is complicated by the lack of redundancy that would allow even one connection between column, beam and slab to be investigated.

48. The experts also agree that the structural lateral resistance system of the existing building consists of framing action between columns and beams in both directions, and that the existing lift core is not made of reinforced concrete that would contribute to the lateral resisting system.

49. Possible structural solutions prepared by Dr ElTantawy to overcome deficiencies in lateral stability are shown in Annexures F and G of the joint report.

50. Annexure F assumes the retention of the existing building. Lateral stability is provided by the addition of beams, shear walls and columns.

51. Annexure G assumes the demolition of the existing building, and the rebuilding of a similar structure with new slabs, beams, shear walls, columns and a lift core that aids lateral stability.

52. Mr Been agrees the solution depicted in Annexure F reduces the amenity of the existing building and is not feasible, while the solution in Annexure G assumes no latent structural capability in the existing structure.

53. While Mr Been has not prepared possible alternatives to those set out in Annexure F and G, options apparent to him include a secondary steel frame to reduce the span of the existing slab over to effectively increase the load the existing slab is capable of carrying, and to support beams and existing columns. Additionally, given the connections proposed between the existing and new structural elements in the tower form to the north of the site, a degree of ‘load sharing’ may also be possible.

Corrosion

54. As stated earlier, the structural experts agree that water entry into the building is causing, and has caused, damage including corrosion to reinforcement.

55. The experts also agree that reinforcement has corroded in structural elements, and that three columns on the lower ground floor have concrete damage.

56. In his oral evidence, Dr ElTantawy explains the effect of water ingress on reinforcing bars that react so as to swell which results in spalling of the concrete covering the reinforcing bar.

57. This effect is evident in images contained in the March ALJ Report (Exhibit A, Pp 16-27).

58. In essence, the point of difference between the experts is the degree or extent of corrosion that should be assumed.

59. Dr ElTantawy has assessed the capacity of the level 2 roof slab in the Table cited at [38]. At item 3 of the Table, the assessment assumes no reinforcement and certain concrete defects. At Item 4, the Table assumes 50% loss in reinforcement due to corrosion.

Compliance with relevant codes

60. Mr Been’s evidence is that the heritage significance of the existing building may have the effect of rendering certain non-compliances within the existing building acceptable or suited to repair methods or alternative solutions.

61. Dr ElTantawy observes that the consent for the development runs under a common construction certificate, and any certifier is likely to require compliance with the National Construction Code (NCC).

Heritage evidence

62. Three heritage reports, prepared by Heritage 21, are annexed to the joint expert report:

1. A Heritage Management Document dated September 2024 (September 2024 HMD)

2. An Amended Heritage Management Document dated June 2025

3. An Amended Schedule of Conservation Works dated June 2025

63. It is relevant to note that two of those documents are further amended. An Amended Heritage Management Document dated July 2025 (July 2025 HMD) (Exhibit B, Tab 3) and an Amended Schedule of Conservation Works dated July 2025 (July Schedule) (Exhibit B, Tab 4)

64. The Council submits that the September 2024 HMD and the July Schedule differ in one important respect. That is, the July Schedule cites an engineer’s report, understood to be reference to the March ALJ Report, to state “the existing building is in a state of imminent collapse”.

65. While the September 2024 HMD identified the front façade as having high significance, amendments that appear in Section 7.1.2 of the July 2025 HMD, qualifies this in the following manner (in the form of changes tracked):

“The external masonry walls in the front section of the building on both the ground and first floor are original and would otherwise be are of high significance but for their poor physical condition.” (p 51)

66. Consistent with this change, the grading of significance in the July 2025 HMD also changed in Figures 53-58 (Pp 39-42). A note in Figure 56 describes the front façade in the following terms:

“Note: Decorative elements of the main façade are of high significance. However, the underlying masonry and concrete wall is of little significance.”

67. Mr Rappoport stands by his decision to change his conclusion that the correct solution is to demolish the existing building (Section 3.3, June 2025 Schedule).

68. When asked, Mr Rappoport’s oral evidence is that his practice is to always take the condition of a place into account when assessing heritage significance, and that he prefers the term ‘condition’ over ‘integrity’ although clearly regards the two to be somewhat interchangeable.

69. Ms Trueman’s oral evidence is that the condition of a place is not commonly a material factor when assessing the significance of a place. Instead, the integrity of its physical and non-physical attributes are more relevant.

70. Ms Trueman also considers common use of the term in heritage practice generally confines ‘integrity’ to the intactness of those aspects that give a place its significance, and does not extend to the concept, as in this case, of ‘structural integrity’, except where structure is an aspect of its significance.

71. The experts differ in the proper regard that is to be had to the ‘condition’ of a place when assessing heritage significance.

72. Ms Trueman notes that the steps set out in guidelines published by the Department of Planning and Environment: “Assessing Heritage Significance” (Heritage Guidelines) (Exhibit C, Tab 13) identifies the task of assessing significance, at Step 4, is arrived at by reference to seven criteria – none of which refer to the condition of a place.

73. A word search of the document reveals the term ‘condition’ appears on eight occasions in the Heritage Guidelines. Relevantly, it appears in criteria (c): Aesthetic/creative/technical achievement (Exhibit C, Folio 237) as a descriptor of ‘distinctive aesthetic qualities’ alongside size, setting, form, composition.

74. The term, when understood in its context, does not suggest to me that a place with a degraded or poor condition is less likely to achieve significance. Rather, guidance in the use of criteria (c) suggests significance may be diminished, not due to condition, but where landmark qualities of a place have been impacted by surrounding development, or it is only one of many examples of the architectural style (Folio 236).

75. However, Mr Rappoport’s evidence is that the reference found in Step 5 of the Heritage Guidelines makes clear that condition is an aspect of significance:

“Significance can be affected by:

The integrity, nature and/or condition of a place or object, the authenticity of a place or object…”

76. While not the subject of expert evidence or submissions, I note the issue of structural condition is a matter to be demonstrated by an applicant proposing demolition of a heritage item under Section 13.8 of the North Sydney Development Control Plan 2013 (NSDCP).

77. Where a building is not retained, but is proposed to be removed and replicated, Ms Trueman regards it to be reconstruction, and not conservation.

78. Conservation is defined in the Australia ICOMOS Charter for Places of Cultural Significance 2013 (the Burra Charter) as follows:

Conservation means all the processes of looking after a place so as to retain its cultural significance. (Exhibit 2, Folio 305)

79. Conservation is further explained at Article 3:

Conservation is based on a respect for the existing fabric, use, associations and meanings. It requires a cautious approach of changing as much as necessary but as little as possible. (Exhibit 2, Folio 306)

80. Reconstruction is defined in the Burra Charter as follows:

Reconstruction means returning a place to a known earlier state and is distinguished from restoration by the introduction of new material. (Exhibit 2, Folio 305)

81. Mr Rappoport asserts that the proposal to salvage materials and other identified features of the existing building is consistent with good heritage practice. It is common to salvage and stockpile such material, and to replace damaged items on a like-for-like basis.

82. Whether or not it is possible to salvage heritage fabric such as the terrazzo flooring in the existing building, or the faience tiling on the front façade, as is now proposed for reuse, two things must be said.

1. Firstly, Mr Rappoport’s view of the likely success of salvage is “you don’t know until you try” and that his preference is to “put your best foot forward…until it can be proved it can’t be done”.

2. Secondly, Mr Rappoport’s February Letter describes the means by which the terrazzo flooring would be repaired in situ – an action he regarded at the time to be positive.

83. PDS submits that whether the development is consistent with the Original Consent, requiring the substantial retention of the Gas Showroom Building, or as is now proposed to be modified, a degree of salvage and reconstruction is inevitable. That is, even if the Gas Showroom Building is retained, retrieval and reinstatement of certain materials, finishes and other elements is a given.

84. For the reasons that follow, I am not satisfied that the development as proposed to be modified is substantially the same as the development the subject of the Original Consent.

85. Firstly, I do not accept Mr Wynne’s written evidence that the demolition now proposed may be described as partial because a portion of that which is removed, is proposed to be rebuilt, or built anew.

86. Notwithstanding the fact that architectural drawings render as distinct that which is proposed to be demolished, and not to be rebuilt, from that which is proposed to be demolished and rebuilt, the demolition is not partial, but total.

87. To propose the demolition of original fabric, to be replaced by new, albeit the same or similar fabric, does not constitute partial demolition but total demolition and reconstruction.

88. Ms Trueman’s evidence is that the intangible qualities of heritage are found in the form and space of the Gas Showroom Building. I accept that there is an intangible aspect to heritage that embraces the passage of time and former uses and associations. The combination of tangible and intangible aspects of heritage contribute to the meaning found in the place.

89. Meaning is not an abstract concept but is an intangible aspect of heritage that is to be thought about objectively, according to the Heritage Guidelines (Exhibit C, Folio 220)

90. There are also tangible differences between the development the subject of the Original Consent, and the development now proposed. Where the Original Consent was for development that retained and restored the façade fronting Pacific Highway, it is now proposed to demolish this façade, albeit, after some salvage.

91. However, in my view the proposed salvage of original fabric is not addressed with precision beyond broad statements by Mr Rappoport that “it’s worth a try”.

92. The architectural plans provide little comfort. A note within the titleblock of the demolition plans (MA-009 to MA-017) is in the following terms:

“Note: a certain quantum of reconstruction will take place based on the ability to remove and retrieve elements. Whatever can be salvaged whole from the existing building will be returned whole to the building.”

93. I accept the Council’s submission that the terms of salvage now proposed by the modification application are unacceptably qualified. The notation alone suggests that which is not capable of being salvaged whole, is not to be returned or reused. There is real doubt in my mind whether the terrazzo or parquetry flooring, or the faience tiling on the front façade is capable of being salvaged at all, let alone in a manner that may be described as ‘whole’.

94. The original consent was for the restoration and reconstruction of original fabric, supplemented by the addition, no doubt, of new fabric.

95. In other words, the Original Consent is for development in which restoration and reconstruction is achieved in situ, and not where widespread salvage, or removal of fabric from the site, is now assumed and where the reinstatement cannot be assured.

96. Most relevantly, the Original Consent does not anticipate the demolition of what Mr Rappoport regards as the “star of the show” – the façade fronting Pacific Highway. The removal of the faience tiles, bronze pilasters and other aspects that are expressly included in the assessment of heritage significance at the time of the Original Consent, were not proposed.

97. The statement of significance considered at the time of the Original Consent, at [96], is once again re-produced here:

“The former North Shore Gas Co Showroom and office has historical significance for its ability to give evidence to the supply and promotion of utility services (gas), and reflects the varied mix of commercial uses in the 1940s along the Pacific Highway in Crows Nest. The building has associative significance for its associations with the North Shore Gas Company, the architects Rupert Villiers Minnett and Charles Cullis-Hill, builders Howie Moffat & Co, and Wunderlich Ltd. A fine example of the Inter-war Art Deco style in a commercial shop/showroom settling with a use of high quality materials including red granite, bronze facade elements and architectural terracotta. Set within the wider Crows Nest precinct, the type and level of materials are almost unique.

The building is representative of the marketing and commercial activities of mid-Twentieth Century utility companies such as the North Shore Gas Company. The building exhibits high quality use and details of materials which are now increasingly rare. Such elements and details include: bronze facade elements, architectural terracotta, coloured terrazzo amongst others. This item is assessed as a rare example of an Inter-war Art Deco commercial building within North Sydney, particularly with its association as the showroom for the utility company North Shore Gas Co, the modernity of the style being appropriate to the products displayed therein.” 

98. In fact, the submission made by PDS at the time it sought the Original Consent, summarised at [97] of PDS No.1 was as follows:

PDS submits that the proposal does not adversely affect, but may well enhance, the historical or associative significance as it is expressed in the statement of significance by virtue of the retention and restoration of the original showroom, and the façade fronting the Pacific Highway.

99. I note a useful distinction between what is often called ‘adaptive reuse’ that is achieved insitu, compared to demolition and reconstruction, may be found in the proposed salvage of stairs handrails and marble treads and risers in the centre of the site.

100. I agree with Mr Been’s oral evidence that heritage fabric, when retained in situ, is commonly supplemented by interventions designed to achieve a degree of compliance while retaining original elements. In the case of stair balustrades that pre-date current requirements, it is not uncommon for the original fabric to be retained, and supplemented by an impervious barrier and handrail to achieve compliance in terms of height and size of openings to prevent fall.

101. However, nowhere in the modification application are the reinstated stairs documented. Absent such documentation, the Court accepts Dr EITantawy’s evidence, invoking his experience as an assessor with the Building Commission, that full compliance would be expected of new works in the development. If Dr ElTantawy is correct, it is unclear in what form the stairs might be reinstated other than as new, and so to what purpose the salvaged fabric might be put.

102. So understood, the nature of the heritage fabric proposed to be reinstated after removal cannot be assumed to be substantially the same in tangible terms.

103. In determining an application for modification, s 4.55(3) requires the Court, to consider the reasons given by the consent authority for the grant of the consent that is sought to be modified.

104. In PDS No.1, the Court considered the heritage incentive provisions at cl 5.10(10) of the NSLEP at [85]-[108].

105. While I agree with PDS that those provisions do not apply to a modification application, the decision in PDS No.1 placed significant weight on the conservation works proposed to the Gas Showroom Building in forming an opinion of satisfaction as to those matters at cl 5.10(10)(a)-(g) of the NSLEP.

106. The Court, in its reasons, was satisfied that the conservation of the heritage item was facilitated by the grant of consent (at [88]), and was satisfied, on the basis of a Heritage Management Document, Fabric Analysis, Statement of Heritage Impact and a Schedule of Conservation Works, that all necessary conservation work identified in the heritage management document would be carried out (at [93]).

107. The reasons do not support a finding that the development as now proposed to be modified is substantially the same as the development the subject of the Original Consent.

108. Finally, it is not wholly irrelevant that the terms of the Court’s orders at [261(3)] made in granting the Original Consent included the phrase “for the proposed development involving restoration of a heritage item”. While the characterisation of the development as worded by the Court is not reflected in the conditions of consent annexed to that decision, the reasons given by the Court for the grant of consent that is now sought to be modified weigh in support of what I have described as the in situ ‘adaptive reuse’ of the Gas Showroom Building.

109. The development as now proposed to be modified is not substantially the same development as the development for which consent was originally granted.

110. On the basis of the engineering evidence before me, it is my view that a greater portion of the Gas Showroom building is capable of being retained through in situ strengthening and underpinning – both of which are common forms of intervention when dealing with older structures. It would seem those documents at [11]-[12], prepared by PDS in February 2025, proceeded on the same expectation.

111. That is not to suggest that development of such a kind would be development that is substantially the same development as the development for which consent was originally granted. However, I note that modification of a consent under s 4.55 of the EPA is not the only means by which an application might be amended.

Orders

112. The Court orders that:

1. The appeal is dismissed.

2. Modification application DA.66/23/2, seeking to modify development consent No. 66/23 for the partial demolition of heritage item and construction of part 4 and part 11 storey mixed use building comprising 8 studio units, 1 x 2 bed, 9 x 3 bed and 16 x 5 bed units for a total of 52 units, 4 levels of basement carparking containing 51 car parking spaces on land at 290 Pacific Highway, Crows Nest is refused.

3. All Exhibits are returned, except for Exhibits A, B and C.

T Horton

Commissioner of the Court

Annexure A (110 KB, pdf)

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Amendments

15 August 2025 - Annexure A attached

25 September 2025 - 25 September 2025 - Order (1) set aside pursuant to r 36.15(2) of the Uniform Civil Procedure Rules 2005 (the "slip" rule).

25 September 2025 - Date of orders and date of decision - Coversheet - Amended from 28 July to 15 August 2025.

Decision last updated: 25 September 2025