K Capital Pty Ltd v City of Parramatta Council [2019] NSWLEC 1292

K Capital Pty Ltd v City of Parramatta Council [2019] NSWLEC 1292

The appeal was dismissed because the concept proposal did not strike a reasonable balance between development of the site and retention and conservation of the State heritage listed Roxy Theatre. The proposed demolition, including the rear portion of the theatre, the proscenium behind the proscenium arch and the stalls, and the isolation of the dress circle as a separate room, would destroy the theatre auditorium space and have an unacceptable detrimental impact on the theatre's identified heritage significance as a relatively intact interwar Picture Palace. The proposal was not adaptive reuse, did not achieve relevant Heritage Act and LEP heritage objectives, and was supported by an...

Jurisdiction
Australia
Judgment Date
27 June 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 1008/2017 / Principal Judgment After Hearing; Appeal Dismissed and Development Application Refused
Outcome
Appeal dismissed; Development Application No. 1008/2017 refused.
Legal Topics
['concept Development Application' 'roxy Theatre' 'state Heritage Item' 'demolition Impact on Heritage Significance' 'conservation Management Plan' 'design Excellence' 'adaptive Reuse']
['planning and Environment' 'heritage Conservation' 'development Consent'] ['concept Development Application' 'roxy Theatre' 'state Heritage Item' 'demolition Impact on Heritage Significance' 'conservation Management Plan' 'design Excellence' 'adaptive Reuse']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 1008/2017 / Principal Judgment After Hearing; Appeal Dismissed and Development Application Refused

Legal Issues

  1. 1 ['Whether the extent of demolition proposed by the concept development would have an unacceptable impact on the heritage significance of the Roxy Theatre.' 'Whether the proposed tower building envelope would adversely affect the heritage significance and setting of the Roxy Theatre.' 'Whether the Conservation Management Plan submitted with the application was adequate and whether an endorsed Conservation Management Plan could be deferred by condition.' 'Whether cl 7.10(5) of Parramatta Local Environmental Plan 2011 prevented development consent because no competitive design process had been held.' 'Whether the concept proposal exhibited design excellence and adequately addressed planning matters including bulk, scale, access and wind impacts.']

Ratio Decidendi

The appeal was dismissed because the concept proposal did not strike a reasonable balance between development of the site and retention and conservation of the State heritage listed Roxy Theatre. The proposed demolition, including the rear portion of the theatre, the proscenium behind the proscenium arch and the stalls, and the isolation of the dress circle as a separate room, would destroy the theatre auditorium space and have an unacceptable detrimental impact on the theatre's identified heritage significance as a relatively intact interwar Picture Palace. The proposal was not adaptive reuse, did not achieve relevant Heritage Act and LEP heritage objectives, and was supported by an...

Court Disposition

Appeal dismissed; Development Application No. 1008/2017 refused.

Orders

  • ["The Applicant is to pay the First Respondent's costs thrown away as a result of the amendment of the development application to rely on amended architectural plans, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979." 'The appeal is dismissed.' 'Development...