Perilya Broken Hill Limited v Broken Hill City Council

[2011] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perilya Broken Hill Limited v Broken Hill City Council [2011] NSWLEC 1376

Hearing dates:

27,28 October, 29 November & 12 December 2011

Decision date:

23 December 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA No 11/0052 for demolition of the Zinc Mill at Wentworth Road, Broken Hill (CML 8) subject to the conditions in Annexure A.

(3)The exhibits may be returned except for 1, 8, 9 and B.

Catchwords:

Development application: Demolition of heritage item, structural condition and significance.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994

Cases Cited:

Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175
Claron Projects pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 296
Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737

Category:

Principal judgment

Parties:

Perilya Broken Hill Limited (Applicant)

Broken Hill City Council (Respondent)

Representation:

Mr I Hemmings (Applicant)

Ms J Reid (Respondent)

File Number(s):

10421 of 2011

Judgment

Background

1. This appeal was lodged against council's deemed refusal of a development application for demolition of a heritage listed building ("the Mill Building") and ancillary structures, which are part of the former BHP site in Wentworth Road, Broken Hill. The applicant is particularly concerned about the poor structural condition and safety of the structures.

1. The contentions initially raised by council concern:

• The detrimental effect of demolishing the building to the heritage significance as the Mill Building is listed as an item of environmental heritage in the LEP and considered to represent an important part of the operations, which helps interpret the historical uses of the site.
• Insufficient information provided relating to the structural condition of the building and details concerning compliance with an endorsed conservation management Plan (CMP).

1. However, during the lead in to the appeal, the applicant submitted further details and this has resulted in agreement by the heritage and structural engineering consultants on parts of the building to be demolished with other parts being retained.

1. Apart from this, the respondent submits that the agreed outcome for part retention of various components represents an amendment to the original application to which the Court would not have power to approve unless the application is amended. Against this, the applicant maintains its original application without amendment on the basis that the part retention of some elements of the building is of a minor nature, which could be achieved by way of conditions of consent.

Planning controls

1. The following statutory controls are relevant to the assessment of this application:

(a) Environmental Planning and Assessment Act 1979

(b) Environmental Planning and Assessment Regulation 2000

(c) State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

(d)   State Environmental Planning Policy No, 55

(e) Broken Hill Local Environmental Plan 1996; under which the subject site is zoned 1 (m).

(f)   Development Control Plan No. 10- Contaminated Lands

(g)   Development Control Plan No. 11- Management of Lead Contamination

(h)   Heritage Development Control Plan No. 3

1. The subject site is located entirely within Consolidated Mining Lease - 8 ("CML 8 "). The Mill Building is listed as a heritage item pursuant to the LEP and is located within the Line of Lode.

Site details

1. The experts provided detailed descriptions of the relevant part of the site and the building elements, which I rely upon. This includes the following details.

1. The site is located off Wentworth Road and it contains the subject the Zinc Concentration Mill building, which has three distinct elements: the Concentrator Bins, the Concentrator Mill Building and the Rising Conveyor.

1. The Mill building is a large steel framed building with corrugated iron cladding and concrete foundations. The Mill is laid out with the majority of operations on one level from the bins through to the concentration filters. The basement houses the pumping and elevator sections. The roof with steel trusses is of a saw tooth construction. The reagent floor is raised and the flotation floor is counter sunk with rolled steel machine supports.

1. The concentrator ore bins are constructed of concrete on the north end of the Mill. Running east - west into the north end is the conveyor belt from Freeman's Shaft housed in a corrugated iron tunnel. The majority of the machinery has now been removed, except for a few flotation cells. Remnant bags of reagent, timber patterns and other components remain in the building.

1. The Zinc Concentration Mill was built in 1938 as part of the revitalisation of the Zinc Corporation's operations, which had begun in the mid 1930s under the direction of GC Freeman, the Mine Manager. The mill formed part of the overall processing of ore for the Zinc Corporation. Once the ore had been crushed it dropped to a conveyor at the bottom of the crushing house and was then elevated to six circular concrete crush - ore storage bins (part of the subject site). These were at the front (northern side) of the concentrating mill.

1. The heritage significance the Zinc Concentration Mill was outlined in the GML Conservation Management Plan (2007). It stated: " this mill is considered to have high significance because of its association with the highly significant 1930s plant constructed by the Zinc Corporation. This building is an integral part of the plant, as it represents an important part of the operating whole ".

The evidence

1. Detailed evidence in this matter was presented by:

• Professor E Vines; Heritage consultant for respondent
• Professor R McKay; Heritage consultant for applicant
• Mr S Wiltshier; Structural engineering consultant for respondent
• Mr D Grzan; Structural engineering consultant for the applicant

1. Following the first joint conference, the heritage experts agreed on a number of matters but disagreed on:

• Whether the engineers reports were satisfactory
• Whether the Heritage Impact statement was adequate
• Whether the existing building on the subject site should be retained or partially retained.

1. This caused further investigation work to be undertaken resulting in the engineers agreement that:

• While the superstructure of the subject Zinc Concentration Mill building is in reasonable condition above the suspended concrete floor (Level 1), the floor and substructure are beyond repair and therefore the main building should be demolished;
• Where degradation has occurred it is severe and this degradation Is distributed in positions throughout the structure;
• Demolition of the three south-eastern concrete silos to a level that is 1.2 m above the adjacent upper ground level;
• Complete removal of the silo access stairs and steel water tank;
• Complete removal of the external cladding and any loose fixtures from the inclined conveyor and securing the structure of the inclined conveyor to the adjacent silo;
• Complete removal of the transfer platform and the ore conveyor structure and fabric above the remaining silos;
• Sealing of the top of the remaining three silos;
• Building elements being the three north west silos, the base structure of the south east three silos, structural components of the inclined ore conveyor, roller and mill foundations, selected column bases and other selected low level concrete features as defined In the Heritage Experts report could be retained;
• Appropriate secure fencing (at a safe distance) from the remaining building elements should be erected to protect persons entering the site from falling objects.

1. After reviewing these engineering conclusions and other details, the heritage experts now agree that it is appropriate to retain parts of the building elements on the following basis:

Mill elements agreed for retention - situ:

• fabric of the three north-western concrete silos;
• remnant unclad structure and supporting trusses of the inclined section of the ore conveyor and connecting sections of the transfer platform which provide structural support for the inclined conveyor and its connection to the adjacent silo;
• foundations of the roller and ball mills, beneath the existing floor, up to floor level;
• two north/south) rows of concrete bases, with protruding metal RSJ columns, which are to be cut off at 2metres as shown in Annexure A;
• other concrete column bases, which are to be cut off at 400mm, except where deteriorated fabric makes this impractical (in which case they will be removed to ground level); and
• associated elements (such as in situ rails or retaining walls), which can be retained while leaving the site in a stable, safe and non-polluting condition.

1. Furthermore, a selected bank of four flotation tanks from the Zinc Concentration Mill should be recovered and retained in an appropriate and safe location, preferably on the Zinc Concentration Mill site or elsewhere in the Freemans Shaft Precinct. The historic artefacts or building components listed in Annexure B should be recovered, tagged, catalogued and retained on site within the Freemans Shaft Precinct, for possible future use as part of on-site interpretation.

1. The following elements of the Mill were agreed for demolition :

• all superstructure above floor level;
• the existing reinforced concrete floor;
• the fabric of the three south-eastern concrete silos down to a level that is 1.2 m above adjacent upper ground level;
• steel RSJ support columns and associated elements which are not identified for retention below or in the plan at Annexure A.
• external cladding and any loose fittings or fixtures from the inclined section of the ore conveyor;
• the transfer platform and the part of the ore conveyor situated above the concrete silos (retaining elements outlined in Annexure B).
• elements of plant, equipment, fixtures and movable items, other than those listed below for retention or listed in Annexure B.

1. In light of the importance and sensitivity of the demolition proposal, I incorporate the following rationale adopted by the heritage experts, which I rely upon:

RATIONALE

The subject Zinc Concentration Mill building has been identified as an item of high significance, in the context of the overall Line of Lode, and is currently listed as a heritage item at the local level.

Many elements of the Zinc Concentration Mill building are agreed as being beyond repair.

Perilya is in the process of relinquishing the underlying mining lease and has an obligation to hand over the site in a safe, stable and non-polluting condition.

However, given:

the significance of this structure and its identification as a local heritage item in the Broken Hill LEP 1996;

its contribution to the history and significance of the Freemans Shaft Precinct;

the former Zinc Concentration Mill's redundant status; and

the prospect that the Freemans Shaft Precinct might be used for tourism (as a historic site) following relinquishment of the underlying mine lease;

it would be appropriate to retain some historic fabric which does not require removal.

The decision as to which elements are retained and which are removed is ultimately a question of balance between physical condition and relative heritage significance.

The subject Zinc Concentration Mill building has lost much of the interior plant and equipment which would allow an understanding of its original operating processes and function; indeed these are now better demonstrated by the NBHC Zinc Concentration Mill, which remains in operation. (However, it is recognised that the long-term future of the NBHC Zinc Concentration Mill is yet to be determined).

Retention of physical evidence such as foundations, artefacts and some structural elements from the subject Zinc Concentration Mill building would increase the options available for future interpretation of the history and heritage significance of the site.

Because some elements of the subject Zinc Concentration Mill building are inaccessible and/or have not been physically tested, the possibility remains that some elements will prove to be beyond physical repair. However, the proposals put forward in this Supplementary Joint Report are informed by the joint opinion of both Engineering Experts.

The subject Zinc Concentration Mill building has been identified by the Commonwealth Department of Sustainability, Environment, Water and Communities as an element which may be demolished, as part of an overall strategy for management of heritage assets within the Perilya mining leases, during discussions regarding the proposed inclusion of the entire Broken Hill City area on the National Heritage List. The Department has been briefed on the current proceedings and has provided the letter at Annexure C which indicates that no objection would be raised to partial demolition and the other actions proposed in this Joint Supplementary Report.

Conclusion

1. Having 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.

1. However 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.

1. It 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.

1. In 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.

1. Ms 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.

1. Another 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.

1. In 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".

1. Reference 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'.

1. In 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]).

1. In 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.

1. Insofar 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.

1. From 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.

1. In 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.

1. The 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).

1. I 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.

1. Accordingly, I am satisfied that it is appropriate to grant conditional development consent.

Court orders

1. The Court orders that:

(1)   The applicant is granted leave to rely upon the "plan of elements to be demolished and retained" dated 4 November 2011.

(2)   The appeal is upheld.

(3)   Development consent is granted to DA No 11/0052 for demolition of the Zinc Mill at Wentworth Road, Broken Hill (CML 8) subject to the conditions in Annexure A.

(4)   The exhibits may be returned except for 1, 8, 9 and B.

R Hussey

Commissioner of the Court

ANNEXURE A

Decision last updated: 11 January 2012