Anagnostou v Canterbury Bankstown Council

[2017] NSWLEC 1320

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anagnostou and ors v Canterbury Bankstown Council [2017] NSWLEC 1320
Hearing dates:	21 June 2017
Date of orders:	23 June 2017
Decision date:	23 June 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is upheld. 2.   The part of the Interim Heritage Order published in the NSW Government Gazette No 80 and dated 30 September 2016 over “The properties known as 13 and 15 Crinan Street Hurlstone Park on the land described in schedule B”, is revoked. 3.   The exhibits, other than exhibit A, are returned.
Catchwords:	INTERIM HERITAGE ORDER: whether an Interim Heritage Order over two existing shops found not to reach the threshold for local heritage listing, but contributory to a draft heritage conservation area, should be revoked.
Legislation Cited:	The Heritage Act 1977 (NSW)
Cases Cited:	Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395
Category:	Principal judgment
Parties:	Chris Anagnostou and Yong Woo Kim (Applicant) Canterbury Bankstown Council (Respondent)
Representation:	Counsel: Mr G. McKee solicitor (Applicant) Mr A. Seton solicitor (Respondent)   Solicitors: McKee Legal Solutions (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/321006

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 30(1) of the Heritage Act1977 (NSW) (Heritage Act) against the making of an Interim Heritage Order (IHO), which includes the properties at 13 and 15 Crinan Street, Hurlstone Park (the site), by Canterbury-Bankstown Council (the Council), on 30 September 2016 and published in the NSW Government Gazette No. 80 (exhibit 2 f 102).

2. The Council is authorised to make IHOs for items in the Council’s area by an order made by the then Minister for Heritage on 12 July 2013 published in the NSW Government Gazette No. 90 (exhibit 2, f 112). The order is subject to the conditions in Schedule 2 for Local Councils to make IHOs. The IHO is made pursuant to sub-s 25(2) of the Heritage Act.

3. On appeal, the Court, standing in the shoes of the Council, may revoke an IHO, pursuant to s 29(4) of the Heritage Act.

Issues

4. The applicant seeks the revocation of the part of the IHO applying to the site, on the basis of the agreed expert evidence that the existing buildings on the site do not reach the threshold for inclusion as heritage items the Canterbury Local Environmental Plan 2012 (LEP 2012).

5. The Council contends that the site is now identified as contributory to the draft heritage conservation area (draft HCA), “Crinan Street Shops HCA” and does therefore meet the threshold for local heritage significance that justifies the continued imposition of the IHO over the site. Furthermore, the existing buildings on the site are at risk of being harmed due to the operation of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development SEPP) at cl 5.9, which would permit, as complying development, changes to the buildings as described in the clause as follows:

5.9 Specified complying development

An external alteration to, or the repair or replacement of, an existing shop front or awning, or the construction of a new awning, on a building that is used for any purpose other than for the purpose of a dwelling house is development specified for this code if it is not carried out in a heritage conservation area or a draft heritage conservation area.

6. The respondent submits that despite the exemption of draft heritage conservation areas to the operation of the above clause, the definition of ‘draft heritage conservation area’, below, does not include the draft heritage conservation area identified as the “Crinan Street Shops HCA” (exhibit 1, f 84) which is included in the planning proposal to amend LEP 2012 (exhibit 1, f 348), currently on exhibition, and therefore the site is at risk of being harmed by potential works carried out under the Exempt and Complying SEPP prior to the gazettal of the amendment to LEP 2012 due in December this year.

draft heritage conservation area means an area of land identified as a heritage conservation area or place of Aboriginal heritage significance in a local environmental plan that has been subject to community consultation, other than an area that was consulted on before 1 March 2006, but has not been included in a plan before 27 February 2009.

7. Council contends that the purpose of retaining the IHO over the site for the full 12 months, until September 2017, is to afford the buildings on the site, identified as contributory to the draft HCA, protection until the amendment to LEP 2012 is gazetted.

8. The applicant submits that the motivation for seeking the revocation of the IHO over the site is to avoid the possibility that the Council decides to alter future recommendations regarding the heritage status of the site on the basis of submissions made during the exhibition of the draft plan.

The site and its context

9. The two shops are on the north-eastern side of Crinan Street, within a retail strip of shops extending west from Hurlstone Park Railway Station and comprise two, two storey shops and residences.

Chronological background to the appeal

10. The Hurlstone Park Heritage Assessment Study Stage 1 Report by Paul Davies Pty Ltd dated September 2016 included as potential heritage items 13 and 15 Crinan Street Hurlstone Park, described as, “Pair of Federation period shops with rare original shopfronts. Within potential Crinan Street shops HCA”, at p 58.

11. Interim Heritage Order No 1 ‘Various Properties in Hurlstone Park’ published in the NSW Government Gazette No. 80 dated 30 September 2016 included the site (exhibit 2, f 102).

12. The Council resolved on 27 September 2016 to endorse Stage 1 of the Hurlstone Park Heritage Assessment Study and to implement Stages 2 and 3 of the study for the preparation of heritage inventory sheets, consultation strategy and DCP controls (exhibit 2, f 1) and that a planning proposal be prepared for the listing of the identified heritage items and heritage conservation areas in Hurlstone Park.

13. The Department of Planning and Environment (the Department) issued a Gateway Determination on 14 December 2016 (exhibit 2, f 323-4) for the planning proposal to include new local heritage items and heritage conservation areas in Hurlstone Park, subject to a requirement that Council amend the planning proposal to be consistent with Stage 2 and the review of the proposed heritage items of the Hurlstone Park Heritage Assessment Study.

14. The Stage 2 Hurlstone Park Heritage Assessment Study did not recommend the site for local heritage listing, but identified the site as contributory to the draft “Crinan Street shops HCA” proposed as a HCA (exhibit 2, f 336, 338).

15. The administrator of the Council resolved on 18 April 2017 that the planning proposal be submitted to the Department for a revised Gateway Determination as outlined in the report attached to the resolution and that the IHO applying to properties in Hurlstone Park continue to remain in force. The report attached to the resolution included the recommendation of the State 2 Hurlstone Park Heritage Assessment Study.

16. The Department issued an Alteration of Gateway Determination on 16 May 2017 in accordance with the resolution of the administrator (exhibit 2, f 348).

17. The planning proposal, “Implementation of Hurlstone Park Heritage Assessment Study” is currently on public exhibition until 7 July 2017. The study, dated April 2017, includes the two shops on the site and identifies them as contributory buildings within the draft “Crinan Street shops HCA” but not of a level of heritage significance that warrants a local heritage listing.

Legislative framework

18. The relevant sections of Part 3 of the Heritage Act provide:

Part 3 Interim heritage orders for items of State or local heritage significance

24 Minister can make interim heritage orders for items of State or local heritage significance

(1) The Minister may make an interim heritage order for a place, building, work, relic, moveable object or precinct that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance.

25 Minister can authorise councils to make interim heritage orders for items of local heritage significance

(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.

29 Commencement, duration and revocation of IHOs

(1) An interim heritage order takes effect on the date of publication of the order in the Gazette.

(2) An interim heritage order remains in force for 12 months or such shorter period as may be specified in the order, unless it is revoked sooner.

(4) A council may revoke an interim heritage order that the council has made (but cannot revoke one made by the Minister or by another council).

30 Appeal against IHO made by council

(1) An affected owner or occupier may appeal to the Court against the making of an interim heritage order by a council.

19. The Heritage Act relevantly includes the following definitions at ss 4 and 4A:

environmental heritage means those places, buildings, works, relics, moveable objects, and precincts, of State or local heritage significance

local heritage significance has the meaning given by section 4A.

4A Heritage significance

(1) In this Act:

local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item.

(4) The Heritage Council must use only criteria published in the Gazette under this section for the making of decisions as to whether or not an item is of State heritage significance.

Expert evidence

20. The applicant relied on the expert heritage evidence of Mr Robert Staas and the Council relied on the expert heritage evidence of Mr Paul Davies. The experts prepared a joint report (exhibit 3) and were not required for cross-examination.

21. The experts’ joint report includes the following agreement in relation to the heritage significance of the site:

The Experts agree that the based on the further research and comparative assessment made by both Robert Staas and Paul Davies, that the two properties do not reach the threshold for inclusion as Items of Environmental Heritage in the Canterbury Bankstown [sic] LEP but that they contribute to the character of the Draft Heritage Conservation Area proposed by Council for Crinan Street, Hurlstone Park as recommended by the Stage 2 heritage Assessment Report adopted by Council.

Findings

22. The power for making an IHO, under s 25(1) of the Heritage Act, depends on whether the Council considers that the item may, on further inquiry or investigation, be found to be of local (or state) heritage significance and that the Council considers is being or likely to be harmed. Under s 29(4) of the Heritage Act the Council has the power to revoke the IHO.

23. A determination of local heritage significance affords statutory protection to an item when it is listed in schedule 5 of the LEP. The purpose of an IHO is to protect the item while the item’s 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 [56]). Significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item, as assessed against the NSW Heritage Assessment Criteria (Assessing Heritage Significance, exhibit 1, f 126), requires that the item reaches a threshold that warrants its inclusion as environmental heritage in Schedule 5 of the LEP.

24. The Council now accepts that the buildings on the site do not reach the threshold for local heritage listing in Schedule 5 of LEP 2012. This has been established by Stage 2 of the Hurlstone Park Heritage Assessment Study, which tested the heritage significance of the buildings on the site against the NSW Heritage Assessment Criteria. This is also the agreed evidence of the heritage experts and I accept their agreement.

25. The identification of the two buildings on the site as contributory to the collective significance of the draft HCA is not equivalent to a finding of local heritage significance for an item. A finding of contributory significance to the collective significance of a draft HCA does not meet the threshold of local heritage significance in s 25(2) of the Heritage Act. Therefore the part of the IHO over the site has served its purpose in protecting the item while further enquiries were made and as it has been determined that the two shop buildings do not reach the threshold of local heritage significance, the part of the IHO over the site should be revoked.

26. There is no need to consider the second limb of s 25(2) of the Heritage Act, regarding the risk of harm to the item, as the first limb is not satisfied.

Conclusion

27. The part of the IHO that applies to the site has served its statutory purpose in protecting the item while further research was undertaken in regard to the heritage significance of the shop buildings on the site. That further research in Stage 2 of the Hurlstone Park Heritage Assessment Study has unequivocally established that the shop buildings on the site do not reach the threshold for local heritage listing and have not been found to be of local heritage significance. This is substantiated by the agreed evidence of the heritage experts. I am satisfied that the part of the IHO over the two shop buildings at 13 and 15 Crinan Street, Hurlstone Park, can be revoked.

Orders

28. The orders of the Court are:

1. The appeal is upheld.

2. The part of the Interim Heritage Order published in the NSW Government Gazette No 80 and dated 30 September 2016 over “The properties known as 13 and 15 Crinan Street Hurlstone Park on the land described in schedule B”, is revoked.

3. The exhibits, other than exhibit A, are returned.

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 23 June 2017