Posted on October 9, 2013 by
Edgar Allen Planning Principle on Demolition Replaced
The planning principle in Edgar Allen Planning Pty Limited v Woollahra Municipal Council  NSWLEC 790, which concerns whether a development involving demolition and redevelopment should be considered to be for a new building or merely for alterations and additions, has been replaced.
The Court has, in effect, decided that the purely mathematical approach relating to the percentage of the external building fabric to be demolished is too simplistic.
The Court held in Coorey v Municipality of Hunters Hill  NSWLEC 1187 that the reason why the enquiry is being made needs to be considered and that both a qualitative and quantitative approach is required.
This had a particular significance on the facts of the case which related to alterations to a heritage item comprising the demolition and replacement of an extensive 1970’s addition but the retention of the important heritage elements.
The planning principle in Edgar Allen was as follows:
A development application to alter and add to a building will be taken to be that relating to a new building where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor.
In Coorey , Senior Commissioner Moore and Acting Commissioner Sullivan outlined the new planning principle as follows:
 The first question to be considered is “what is the purpose for determining whether this application should be characterised as being for additions and/or alterations to an existing structure rather than an application for a new structure?” The answer to this fundamental question will frame the approach to be undertaken to the analytic framework set out below.…
 In this consideration, regard should be had to such of the matters in the following lists of matters as are relevant to the enquiry:
 Qualitative issues
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 issues
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?
The Commissioners said that the above matters should not be regarded as exhaustive – and that additional matters may arise for consideration from:
- the circumstances of a particular application, or
- the reason why the analysis is being undertaken.
On a practical note, the Commissioners said that, the greater the departure from the existing development, the greater the likelihood that a proposal should be characterised as a new development at  – .
On the facts of the Case
The Commissioners noted the desirability of adopting the new planning principle in the subject case because the setback required by the relevant DCP for a new building was significantly more than that which the existing development currently enjoyed. On the Edgar Allen approach, the Commissioners would not have been permitted to have regard to the overwhelming importance of and significant extent of retention of elements of an original heritage cottage (at  – ).
 Although on a purely quantitative basis, a respectable argument can be mounted that that which is proposed in this application might be regarded as forming a new building, a proper qualitative analysis – paying appropriate regard to the desirability of preserving the heritage item and enhancing its presentation in its setting when viewed from the public domain – makes, in our opinion, an overwhelming case for regarding this proposal as being additions and alterations and thus lifting the necessity to indulge in semantic engineering to avoid compliance with the front setback controls in the DCP.