Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395

Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395

The Council properly issued the interim heritage order because the material before it, including the 1983 Report, the 1992 Report and the Wheeler Report, and the evidence before the Court from Dr Ellsmore, amply supported the threshold conclusion that the 1929 building was likely to be found on further inquiry to be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 July 2005
Procedural Posture
Class 1 Appeal Under S 30 of the Heritage Act 1977 Against the Making of an Interim Heritage Order by a Council / Judgment After Hearing
Outcome
The Applicant was unsuccessful; the Class 1 application was dismissed and the interim heritage order was not revoked.
Legal Topics
['interim Heritage Order' 'local Heritage Significance' 'council Heritage Powers' 'heritage Assessment Guidelines' 'revocation of Interim Heritage Order']
['environmental and Planning Law' 'heritage Law'] ['interim Heritage Order' 'local Heritage Significance' 'council Heritage Powers' 'heritage Assessment Guidelines' 'revocation of Interim Heritage Order']

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Procedural Posture

Class 1 Appeal Under S 30 of the Heritage Act 1977 Against the Making of an Interim Heritage Order by a Council / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the building at 19-23 Lawson Street, Byron Bay was likely to be found on further inquiry and investigation to be of local heritage significance.' "Whether the Council complied with the conditions of the Minister's order and the Local Government Heritage Guidelines when making the interim heritage order." 'Whether the interim heritage order was confined to the item determined as being under threat.' 'Whether the interim heritage order should be revoked.']

Ratio Decidendi

The Council properly issued the interim heritage order because the material before it, including the 1983 Report, the 1992 Report and the Wheeler Report, and the evidence before the Court from Dr Ellsmore, amply supported the threshold conclusion that the 1929 building was likely to be found on further inquiry to be of local heritage significance. The development application proposed demolition, so the item was under threat. The order over the whole site did not breach the requirement that the order be confined to the item under threat because the Heritage Act and Guidelines permit an order to apply to the site or curtilage of the building, and the extent of the 1929 building was not...

Court Disposition

The Applicant was unsuccessful; the Class 1 application was dismissed and the interim heritage order was not revoked.

Orders

  • ["The Applicant's Class 1 Application dated 18 January 2005 is dismissed." 'Exhibits are to be returned.' 'Costs are reserved.']