Alexandra Kelly v North Sydney Council [2017] NSWLEC 1546

Land and Environment Court New South Wales

Medium Neutral Citation: Alexandra Kelly v North Sydney Council [2017] NSWLEC 1546 Hearing dates: 27 September 2017 Date of orders: 03 October 2017 Decision date: 03 October 2017 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld; (2) Under Section 25 of the Heritage Act 1977, the Court: (i) Makes an Interim Heritage Order to cover the item of environmental heritage specified or described in Schedule "A"; and (ii) Declares that the Interim Heritage Order shall apply to the curtilage or site of such an item, being the land described in Schedule "B". The Interim Heritage Order will lapse upon the occurrence of the earliest of the following: (i) 28 February 2018; or (ii) The coming into effect of an amendment to the LEP which includes the item on the Council's heritage schedule in LEP 2013; or (ii) The coming into effect of a resolution by Council that determines not to include the item on the Council's heritage schedule in LEP 2013.

Schedule "A" The property situated at 24 Cranbrook Avenue, Cremorne NSW 2090 on the land described in Schedule "B". Schedule "B" The parcel of land known as Lot 17 DP 8862 with particular reference to the existing one storey dwelling including its interior and surrounding gardens.

(3) That the respondent cause the inclusion of the amended IHO in the next Government Gazette, and executes the notification requirements detailed in section 28 of the Heritage Act 1977. (4) The exhibits are returned with the exception of Exhibits 2, 3, 4 and A. Catchwords: INTERIM HERITAGE ORDER: parties agree to an amended IHO – whether lawful and appropriate to issue the IHO in the form sought – resident submissions Legislation Cited: Heritage Act 1977 (NSW) Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Texts Cited: Nil Category: Principal judgment Parties: Alexandra Kelly (Applicant) North Sydney Council (Respondent) Representation: Counsel: Mr I Hemmings SC (Applicant) Ms J Reid (Applicant)

Mr P Larkin SC (Respondent) Mr S Nash (Respondent)

Solicitors: Pikes Verekers Lawyers ( Applicant) Maddocks Lawyers (Respondent) File Number(s): 2017/187231 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 30(1) of the Heritage Act 1977 (NSW) ('Heritage Act') against the making of an Interim Heritage Order ('IHO') by North Sydney Council over the property at 24 Cranbrook Avenue, Cremorne. 2. North Sydney Council is authorised to make IHO's for items in the North Sydney local government area. This authorisation arises from an order made by the Minister administering the Heritage Act on 12 July 2013 (Exhibit 1) ('the Ministerial Order'). The authority inferred by the order is subject to the conditions provided in schedule 2, attached to the Ministerial Order. These conditions are discussed in more detail below (refer paragraph [19]). 3. Under delegated authority, North Sydney Council's General Manager imposed an IHO over 24 Cranbrook Avenue, Cremorne on 24 May 2017. The lapsing dated of that IHO is 24 May 2018. 4. In this case the applicant has exercised their right of appeal under s 30 of the Heritage Act. Pursuant to section 17 of Land and Environment Court Act 1979 ('the LEC Act') the appeal is within the Courts jurisdiction. 5. Under s 39(2) of the LEC Act the Court has "all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal". Relevantly this includes the power to exercise the discretion to make an IHO over the property. The LEC Act, at s 39(3) confirms that such a decision is made based on a rehearing and consideration of all the evidence before the Court. 6. At the commencement of the hearing the parties tendered a revised IHO which they seek the Court to make under cl 25(2) of the Heritage Act. It states: "Under Section 25 of the Heritage Act 1977, North Sydney Council, do by this notice: I. Make an Interim Heritage Order to cover the item of environmental heritage specified or described in Schedule "A"; and II. Declare that the Interim Heritage Order shall apply to the curtilage or site of such an item, being the land described in Schedule "B". The Interim Heritage Order will lapse upon the occurrence of the earliest of the following: 28 February 2018; or The coming into effect of an amendment to the LEP which includes the item on the Council's heritage schedule in LEP 2013; or The coming into effect of a resolution by Council that determines not to include the item on the Council's heritage schedule in LEP 2013. Schedule "A" The property situated at 24 Cranbrook Avenue, Cremorne NSW 2090 on the land described in Schedule "B". Schedule "B" The parcel of land known as Lot 17 DP 8862 with particular reference to the existing one storey dwelling including its interior and surrounding gardens." (Exhibit A) 1. The issue for the Court to determine is whether it is lawful and appropriate to issue the IHO in the form sought, having regard to the whole of the relevant circumstances.

The site and its context 1. The subject site is legally described as Lot 17, DP 8862 and otherwise known as 24 Cranbrook Avenue, Cremorne. The subject site is 682sqm in area and is irregular in shape. It has a 22.2m frontage to the northern side of Cranbrook Avenue, and is located adjacent to the intersection between Cranbrook Avenue and Allister Street. 2. The site contains a single storey detached dwelling house, positioned over the central portion of the site and aligned within its western boundary. The dwelling is predominantly of masonry construction, with limited use of weatherboards and a pitched terracotta tile roof. 3. The subject site is located within a residential precinct, with a range of residential accommodation from 1-2 storey detached dwelling houses to 9 storey residential flat buildings. 4. Immediately to the east of the subject site is 26-30 Cranbrook Avenue, containing a 9-storey residential flat building over basement car parking likely constructed in the 1960s, of brick and concrete slab construction with flat roof. Adjoining the flat building is two residential dwellings, 32 and 34 Cranbrook Avenue that are listed as local heritage items. 5. To the south of the site, on the opposite side of Cranbrook Avenue is a single storey detached dwelling known as "Belvedere" at 7 Cranbrook Avenue. This property is listed on the State Heritage Register (No. 00320). Adjoining Belvedere to the east is a dwelling house, 11 Cranbrook Avenue which is listed as a local heritage item. 6. Immediately to the west of the site, is 18-22 Cranbrook Avenue, containing a 9-storey residential flat building over basement car parking. The building, which was likely constructed in the 1960s, is of brick and concrete slab construction with a flat roof. 7. The location of the properties in relation to the subject site is shown in the following aerial map: 8. An extract of the North Sydney LEP 2013 heritage Map HER_003 with the subject site highlighted is provided below:

Planning Controls: 1. In the 1998 amendment to the Heritage Act, North Sydney Council, amongst other Councils, was authorised to make IHOs for items of local heritage significance. Section 25 of the Heritage Act provides: "(1) The Minister may, by order published in the Gazette, authorise a council to make interim heritage orders for items in the council's area. (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items: (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn." 1. Authorisation under the Ministerial Order, for the making of an IHO, is subject to the following relevant conditions: "(1) A Council must not make and IHO unless: (a) An environmental planning instrument containing a schedule of heritage items derived from a heritage study and provisions for the management of those items is in force in the Local Government Area; and (b) It has considered a preliminary heritage assessment of the item prepared by a person with heritage knowledge, skills and experience employed or retained by the Council and considers that: (i) the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance; (ii) the item is being or is likely to be harmed; (iii) the IHO is confined to the item determined as being under threat; … (5) An IHO made by a Council must contain the following condition: "this interim heritage order will lapse after six months from the date it is made unless the local council has passed a resolution before that date; (b) in the case of an item which, in the council's opinion, is of local significance, to place the provisions for protecting and managing the item; and …" 1. The applicant does not submit any evidence that the Council failed to comply with the proceeding conditions. The relevant preliminary heritage assessment in provided in Exhibit 1. 2. Section 29 of the Heritage Act provides that the IHO takes effect from the date of publication in the Gazette. Relevantly in these proceedings that date is 26 May 2017. 3. The effect of an IHO on a property is contained in Part 4 of the Heritage Act. Section 57(1) of the Heritage Act provides: "When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work,(b) damage or despoil the place, precinct or land, or any part of the place, precinct or land,(c) move, damage or destroy the relic or moveable object,(d) excavate any land for the purpose of exposing or moving the relic,(e) 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, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct,(h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land." 1. On 24 July 2017, North Sydney Council considered a report recommending that the North Sydney Local Environmental Plan 2013 ('LEP 2013') be amended to incorporate 24 Cranbrook Avenue as a local heritage item. The Council supported the proposed amendment to LEP 2013 and resolved that the Planning Proposal be forwarded to the NSW Department of Planning for a "Gateway Determination". 2. On 29 August 2017 the NSW Department of Planning and Environment provided the Gateway determination, and provided delegation to North Sydney Council to make the plan amendment, subject to the following conditions: 1. That the planning proposal should be made available for community consultation for a minimum of 14 days. 2. Consultation is required with the [NSW] Office of Environment and Heritage. 3. The timeframe for completing the LEP is to be six months from the date of the Gateway determination. 1. Mr Larkin advises that the public exhibition period for the planning proposal closes 27 September 2017.

Public submissions 1. At the commencement of the hearing members of the public addressed the Court during the onsite view. The views presented by the residents were supportive of the retention of the IHO as a means of recognising what they see as the heritage value of the site, and preventing demolition of the building.

Expert Evidence 1. The Court was provided expert heritage evidence from Mr Brian McDonald, for the applicant, and Mr Ian Stapleton for the Council in the form of a joint expert report which was tendered as Exhibit 5. 2. The experts agree that the house on the subject property is an example of the work of architect Edwin Roy Orchard (Exhibit 5). 3. Relevant to the consideration of the agreed amended IHO it is Mr Stapleton's evidence that: "Because of the quality of the surviving interiors and other details the building does have the potential to meet this criteria [Criterion F in the Heritage Guidelines] but this could only be determined after a fuller survey of the architects work. Orchard's work should be acknowledged as part of the history of the architecture in Sydney and NSW more broadly and as the work of Orchard is not yet fully recognised the rarity of No. 24 Cranbrook Avenue is unknown as we are still finding out about his surviving body of work (Exhibit 5)." 1. Given the agreed orders sought by the parties, the heritage experts were not called for oral evidence and questioning.

Consideration 1. The purpose of an IHO is to protect an item while its local heritage significance is investigated to determine whether it reaches the threshold for listing at a local or state level (Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395 at [56]). 2. In determining to exercise the discretion to make an IHO the Court must be satisfied that: 1. the item may, on further inquiry or investigation, is likely to be found to be of local heritage significance; and 2. that the item is being, or is likely to be harmed. 1. Mr Larkin submits that in considering the preceding questions the Court should give the term "likely" the same meaning as utilised by Preston CJ in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 at [84], namely: "[84] Thirdly, the word "likely" means "a real chance or possibility" and "significantly" means "important", "notable", "weighty" or "more than ordinary": Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233 and cases therein cited; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council at [82]." 1. It is Mr Larkin's submission that the first test is reasonably answered by the following: 1. the requirement for public exhibition, which was included in the gateway determination, refer paragraph [22]. It is Mr Larkin's view that this exhibition and comment from the public is part of the "further enquiry or investigation" envisaged by s 25(2) of the Heritage Act; 2. the pending submission from the NSW Office of Environment and Heritage, arising from their consultation required by the gateway determination; and 3. the additional research of the extant works of Edwin Roy Orchard to determine the rarity of the item, as identified by Mr Stapleton (refer paragraph [29]); 1. Further Mr Larkin submits that the fact of the applicant's current development application (which involves demolition of the item) is evidence of the item being in imminent harm. He notes that the refusal of this application is under separate appeal before the Court. He submits this satisfies the second test of imminent harm. 2. In relation to the form of the proposed IHO, Mr Hemmings submits that, as a result of the public exhibition of the planning proposal, any demolition of the item will require now a development application by virtue of Subdivision 13 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP). This provision of the SEPP has the effect of removing demolition of the item from exempt development as it falls within the definition of "draft heritage item". It falls within this definition as it has been identified as a heritage item in a local environmental plan that has been subject to community consultation. 3. Mr Larkin submits that Council is scheduled to consider the making of the LEP amendment to list the subject site as a local heritage item in the coming months. He submits that he is satisfied that if Council resolves to make the amendment, the time period until 28 February 2018 is sufficient for the procedural steps required to make the plan and for it to be gazetted. 4. Relevantly the gateway determination for the draft LEP expires at the end of February 2018.

Findings 1. On the basis of the evidence before the Court I am satisfied that it is appropriate to exercise the Court's discretion to make the orders sought by the parties. 2. I rely on the Preliminary Assessment of Cultural Heritage prepared by Lucas Stapleton Johnson (Tab 7, Exhibit 1), the Assessment of Cultural Heritage prepared by Lucas Stapleton Johnson (Tab 13, Exhibit 1), and the expert evidence (Exhibit 5) as material that satisfies the requirements of Sch 1(1)(b) of the Ministerial order. 3. I am satisfied that the necessary threshold test under Sch 1(1)(b)(i) of the Ministerial order and s 25(2) of the Heritage Act has been met, namely, that on further investigation the item is likely to be found to be of local heritage significance and that the item is likely to be harmed. I accept Mr Larkin's submissions detailed at paragraph [34] satisfactorily detail further investigations and considerations of whether the item meets the threshold of local significance. I accept the submission of Mr Larkin that the meaning of 'likely' is that provided in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48, namely a real chance or possibility. I am satisfied by the fact that the applicant seeks consent for the demolition of the item, the second test is met. 4. On the basis of the preceding I accept the submissions of Mr Hemmings and Mr Larkin that it is lawful and appropriate to issue the IHO in the form sought, having regard to the whole of the relevant circumstances.

Orders: 1. The Court orders that: 1. The appeal is upheld; 2. Under s 25 of the Heritage Act 1977, the Court 1. Makes an Interim Heritage Order to cover the item of environmental heritage specified or described in Schedule "A"; and 2. Declares that the Interim Heritage Order shall apply to the curtilage or site of such an item, being the land described in Schedule "B". The Interim Heritage Order will lapse upon the occurrence of the earliest of the following: 1. 28 February 2018; or 2. The coming into effect of an amendment to the LEP which includes the item on the Council's heritage schedule in LEP 2013; or 3. The coming into effect of a resolution by Council that determines not to include the item on the Council's heritage schedule in LEP 2013. Schedule "A" The property situated at 24 Cranbrook Avenue, Cremorne NSW 2090 on the land described in Schedule "B". Schedule "B" The parcel of land known as Lot 17 DP 8862 with particular reference to the existing one storey dwelling including its interior and surrounding gardens. 1. The respondent is to cause the publication of the IHO in (2) in the Government Gazette, and execute the notification requirements detailed in section 28 of the Heritage Act 1977 within 21 days of these orders. 2. The exhibits are returned with the exception of Exhibits 2, 3, 4 and A. ……………. D M Dickson Commissioner of the Court

Amendments 03 October 2017 - Amendment to Order 1. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2017