Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141

Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141

By majority, s 57(1)(e) of the Heritage Act 1977 (NSW) does not require a qualitative or evaluative determination of a sufficient nexus between the proposed development and the listed item. The words in relation to serve to pick up the defined activities constituting development in relation to land. The phrase the land on which the building is situated means the part of the land on which the heritage listed building stands, not the whole cadastral lot. The Heritage Council therefore did not err in treating its approval as required only for the proposed activities concerning the listed Old Health Department Building and its relevant site or curtilage, not for the proposed tower on the...

Jurisdiction
Australia
Judgment Date
19 June 2019
Procedural Posture
Appeal From Land and Environment Court Class 4 Judicial Review Proceedings Concerning Heritage Act Approval for Proposed Development / Court of Appeal; Appeal as of Right Under S 58 of the Land and Environment Court Act 1979 (nsw) From Orders Made on 12 November 2018
Outcome
Appeal allowed; Land and Environment Court orders set aside; proceedings dismissed with costs; first respondent to pay the appellant's costs of the appeal.
Legal Topics
['heritage Council Approval' 'state Heritage Register' 'integrated Development' 'construction of S 57(1)(e) of the Heritage Act 1977 (nsw)' 'meaning of Land' 'cadastral Lot Versus Building Footprint' 'relevant Nexus Test']
['administrative Law' 'judicial Review' 'planning and Environment Law' 'heritage Law' 'statutory Interpretation'] ['heritage Council Approval' 'state Heritage Register' 'integrated Development' 'construction of S 57(1)(e) of the Heritage Act 1977 (nsw)' 'meaning of Land' 'cadastral Lot Versus Building Footprint' 'relevant Nexus Test']

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Procedural Posture

Appeal From Land and Environment Court Class 4 Judicial Review Proceedings Concerning Heritage Act Approval for Proposed Development / Court of Appeal; Appeal as of Right Under S 58 of the Land and Environment Court Act 1979 (nsw) From Orders Made on 12 November 2018

Legal Issues

  1. 1 ['Whether s 57(1)(e) of the Heritage Act 1977 (NSW) requires a qualitative assessment of a sufficient nexus between proposed development and a heritage listed building.' 'Whether the prohibition in s 57(1)(e) applies to development on any part of the cadastral lot on which the heritage listed building is situated or only to development on the part of the land on which the listed building stands.' 'Whether the Heritage Council misconstrued its approval role by treating its approval as required only for the proposed activities within or affecting the listed Health Department Building.']

Ratio Decidendi

By majority, s 57(1)(e) of the Heritage Act 1977 (NSW) does not require a qualitative or evaluative determination of a sufficient nexus between the proposed development and the listed item. The words in relation to serve to pick up the defined activities constituting development in relation to land. The phrase the land on which the building is situated means the part of the land on which the heritage listed building stands, not the whole cadastral lot. The Heritage Council therefore did not err in treating its approval as required only for the proposed activities concerning the listed Old Health Department Building and its relevant site or curtilage, not for the proposed tower on the...

Court Disposition

Appeal allowed; Land and Environment Court orders set aside; proceedings dismissed with costs; first respondent to pay the appellant's costs of the appeal.

Orders

  • ['Appeal allowed.' 'Set aside orders 1, 2 and 3 made on 12 November 2018, and in lieu thereof, order that the proceedings be dismissed with costs.' "The first respondent to pay the appellant's costs of the appeal."]