Sandig & Anor v Ku-ring-gai Council [2001] NSWLEC 74

Sandig & Anor v Ku-ring-gai Council [2001] NSWLEC 74

While the interim heritage order is extant, the Heritage Council is obliged by s 63(2) of the Heritage Act 1977 to advise that it would refuse approval for demolition of the whole dwelling, because the s 63(3) exceptions do not apply. Consequently, under s 91A(4) of the Environmental Planning and Assessment Act 1979, the consent authority, and the Court on appeal in the same position, must refuse consent to DA 957/00.

Jurisdiction
Australia
Judgment Date
19 April 2001
Procedural Posture
Class 1 Appeals Against Deemed Refusal of Development Applications DA 956 and DA 957 of 2000 / Preliminary Question of Law
Outcome
Both parts of the preliminary question of law were answered Yes.
Legal Topics
['integrated Development' 'interim Heritage Order' 'demolition of Heritage Item' 'development Consent Appeals' 'construction of Heritage Act 1977, Environmental Planning and Assessment Act 1979 and Land and Environment Court Act 1979']
['planning and Environment Law' 'heritage Law' 'statutory Interpretation'] ['integrated Development' 'interim Heritage Order' 'demolition of Heritage Item' 'development Consent Appeals' 'construction of Heritage Act 1977, Environmental Planning and Assessment Act 1979 and Land and Environment Court Act 1979']

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Procedural Posture

Class 1 Appeals Against Deemed Refusal of Development Applications DA 956 and DA 957 of 2000 / Preliminary Question of Law

Legal Issues

  1. 1 ['Whether pursuant to Section 63(2) of the Heritage Act, the Heritage Council is required to advise the consent authority that it would refuse the application.' 'Whether pursuant to Section 91A(4) of the Environmental Planning and Assessment Act 1979 the Court on appeal is required to refuse the appeal.' "Whether s 39(6A)(b) of the Land and Environment Court Act 1979 permits the Court to determine the appeal notwithstanding the Heritage Council's mandatory refusal position under s 63(2) of the Heritage Act 1977."]

Ratio Decidendi

While the interim heritage order is extant, the Heritage Council is obliged by s 63(2) of the Heritage Act 1977 to advise that it would refuse approval for demolition of the whole dwelling, because the s 63(3) exceptions do not apply. Consequently, under s 91A(4) of the Environmental Planning and Assessment Act 1979, the consent authority, and the Court on appeal in the same position, must refuse consent to DA 957/00.

Court Disposition

Both parts of the preliminary question of law were answered Yes.

Orders

  • ['The Heritage Council is required to advise the consent authority that it would refuse the application to demolish while the IHO is extant.' 'The Court is required to refuse consent to the DA in the appeal in matter 10924 of 2000 while the IHO is extant.' 'Both matters should be listed for callover by the Registrar...