Helm No 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406
Overview & Facts
The case of Helm No 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406 provides relevant considerations a Council may need to consider before issuing an interim heritage order (“IHO”).
The case was in relation to an IHO issued by the Minster in accordance with the Heritage Act 1977 (NSW) (“The Act”). The IHO was issued to the owners of 131 and 133 Holt Avenue, Cremorne (“the Properties”). According to section 26 of the Act, Council does not have to provide notice in its intention to place an IHO. A Council, however, must provide notice once the IHO has been taken into effect; in this instance, being when the Properties and their heritage status was published in the Government Gazette in compliance with section 28(1)(c) of the Act.
The affect of the Properties being listed as a Heritage item prohibits actions that may risk the heritage significance which includes demolition, alteration and destroying any building or relic which is situated on the property.
The owners of the Properties brought an appeal to the Land and Environment Court pursuant to section 30(1) of the Act seeking the IHO to be revoked. Section 30(1) enables a property owner or occupier to appeal the making of a IHO by a Council within 28 days of the Properties being published in the Government Gazette.
Issue to be considered by the Court
The main issue for consideration by the Court in determining if the relevant IHO should be revoked was whether the Properties have sufficient ‘heritage significance’ as required in the North Sydney Local Environmental Plan 2013 (“NSLEP”). The NSLEP provided the following seven (7) criteria for assessing heritage significance of a site and whether it should be included as a heritage item:
- Historical significance
- Historical associations
- Aesthetic significance
- Social significance
- Technical/scientific significance
- Rarity
- Representativeness
Considerations
The parties engaged heritage experts that prepared a joint expert report. In the report, the experts disagreed with the three criterions (a), (c) and (f).
Section 4A of the Act defines heritage significance as “a place, building, work, relic, moveable object or precinct […] in relation to historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item.” The experts disagreed as to how much heritage value the Properties held as substantial alterations and additions had been carried out on the dwelling which reasonably altered the original “form, layout and detail”.
The Court determined the Properties did not amplify it’s Victorian or Federation period architecture for the following reasons:- the land on which the Properties existed had been subdivided into two dwellings; the internal fabric and layout had been significantly altered; there had been substantive modifications to the kitchens and bathrooms; the streetscape presentation had been altered; the roof cladding had been replaced; the original chimney had been removed; there had been significant changes to the verandas; and the front fences had been removed. In summary the Court found the alterations obscured the legibility of what was the original dwelling.
In accordance with Section 25(2) of the Act, the Court must also consider whether the heritage value will be harmed if the IHO is not in place. Ultimately the Court considered the relevant factors but decided due to the substantial alterations it was decided that it did not reach the level required for a heritage listing that satisfied the NSLEP guidelines.
Held
The Court held that the IHO be revoked as the Properties held no heritage value in accordance with the NSLEP guidelines.
Relevance for Councils
A Council must consider the relevant criteria for assessing heritage significance of a place, building, work, relic or movable object in accordance with the relevant Local Environmental Plan. If a Council seeks to impose an IHO, it must be satisfied that the criteria has been met as it has significant restrictions on an owner’s right to redevelop on their land and can result in an appeal being brought to the Courts. These restrictions include:
- demolish the building or work;
- damage or despoil the place, precinct or land, or any part of the place, precinct or land;
- move, damage or destroy the relic or moveable object;
- excavate any land for the purpose of exposing or moving the relic;
- carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct;
- alter the building, work, relic or moveable object;
- display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct; or
- damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.
A Council should be mindful that if it doesn’t satisfy the Court as to the heritage significance of the place, building, work, relic or movable object in accordance with the relevant Local Environmental Plan or that there is immediate or imminent threat of harm, the IHO can be revoked by the Court.
