Extent of Demolition – Coorey v Municipality of Hunters Hill

The judgment of Coorey v Municipality of Hunters Hill  provides us with the appropriate considerations for determining whether a development application should be characterised as “additions and alterations” or an application for “a new building”.

Why does it matter?

Different controls will apply to a development depending on how that development is characterised.

For example, a development control plan may provide that new buildings must meet particular front setback requirements. A proposed development may not meet those requirements (and may significantly breach them) as a result of elements that are proposed within the main street frontage. In such circumstances it is critical to understand the exact characterisation of the proposal, that is, is it a “new building” or is it “alterations and additions to the existing building”?

The Planning Principle

In order to determine whether an application should be characterised as being for “additions and/or alterations to an existing building” or an application for a “new building”, it is necessary to understake both a qualitative and a quantitative analysis of what is proposed, compared to what is currently in existence.

In Coorey v Municipality of Hunters Hill the Court helpfully provided a non-exhaustive list of considerations that are relevant to such an analysis as follows:

Qualitative Considerations

  • How is the appearance of the existing building to be changed when viewed from public places?
  • To what extent, if any, will existing landscaping be removed and how will that affect the setting of the building when viewed from public places?
  • To what extent, if any, will the proposal impact on a heritage item, the curtilage of a heritage item or a heritage conservation area?
  • What additional structures, if any, in the curtilage of the existing building will be demolished or altered if the proposal is approved?
  • What is the extent, if any, of any proposed change to the use of the building?
  • To what extent, if any, will the proposed development result in any change to the streetscape in which the building is located?
  • To what extent, if any, are the existing access arrangements for the building proposed to be altered?
  • To what extent, if any, will the outlook from within the existing building be altered as a consequence the proposed development?
  • Is the proposed demolition so extensive to cause that which remains to lose the characteristics of the form of the existing structure?

Quantitative Considerations

  • To what extent is the site coverage proposed to be changed?
  • To what extent are any existing non-compliances with numerical controls either increased or diminished by the proposal?
  • To what extent is the building envelope proposed to be changed?
  • To what extent are boundary setbacks proposed to be changed?
  • To what extent will the present numerical degree of landscaping on the site be changed?
  • To what extent will the existing floor space ratio be altered?
  • To what extent will there be changes in the roof form?
  • To what extent will there be alterations to car parking/garaging on the site and/or within the building?
  • To what extent is the existing landform proposed to be changed by cut and/or fill to give effect to the proposed development?
  • What relationship does the proportion of the retained building bear to the proposed new development?

Following a consideration of the above matters and any others that are considered relevant in the particular circumstances, an evaluation can then be made as to whether a proposal is correctly characterised as “alternations and additions” or “a new building”.

If you require further advice with respect to the characterisation of your development or a proposed development affecting you, it may be best to speak to your local council, your town planner, or seek legal assistance.

 

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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