Freshhope Housing Incorporated v Inner West Council

[2020] NSWLEC 1251

Land and Environment Court

New South Wales

Medium Neutral Citation:	Freshhope Housing Incorporated v Inner West Council [2020] NSWLEC 1251
Hearing dates:	Conciliation conference on 3 June 2020
Date of orders:	03 June 2020
Decision date:	03 June 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [11]
Catchwords:	DEVELOPMENT APPEAL – interim heritage order – assessing heritage significance – conciliation conference – agreement between parties – orders
Legislation Cited:	Heritage Act 1977 Land and Environmental Court Act 1979 Marrickville Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Freshhope Housing Incorporated (Applicant) Inner West Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) J Johnson (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Inner West Council (Respondent)
File Number(s):	2020/36033
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 30(1) of the Heritage Act 1977(NSW) (Heritage Act) against the making of an Interim Heritage Order (IHO) for a property at 389 Illawarra Road, Marrickville otherwise known as the former Church of Christ at Lots 4, 5 and 6 in DP 2595 (the site), by Inner West Council (the Respondent).

2. The background facts and contentions of the matter as identified by the Applicant are contained in the Statement of Facts and Contentions, filed with the Court on 28 February 2020 in which the Applicant seeks the revocation of the IHO referrable to the church building and garden.

3. Relatedly, on 23 August 2019, the Applicant lodged a development application with the Respondent to demolish the existing structures on the site and construct a 6 storey mixed use development comprising 2 retail tenancies, 55 boarding rooms and 4 dwellings (the DA) that is subject to appeal before the Court (proceedings 2019/00320496).

4. The matter was initially listed before me for hearing on 3 June 2020. However, prior to the hearing, the parties advised the Court that the parties had reached an agreement and sought the matter be listed for conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

5. The matter was reallocated to me under s 34(1) of the LEC Act for a conciliation conference between the parties, which was held on 3 June 2020 using MS Teams, in accordance with directions of the Court and with consent of the parties. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement seeks to amend the terms of the IHO the subject of the appeal. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 June 2020.

7. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement seeks to amend the terms on which the IHO will lapse, being no greater than six months after the date of these orders.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The IHO, gazetted on 15 January 2020, was made by the Council under Ministerial authorisation (the authorisation) dated 12 July 2013, pursuant to s 25(2) of the Heritage Act. The authorisation requires an IHO made by a Council to contain certain conditions including, relevantly, that the IHO will lapse after a period of six months after it is made unless the local Council has passed a resolution before that date.

2. Pursuant to s 25(2), and for the reasons stated at [3], the Respondent considers that the site may, on further inquiry or investigation, be found to be of local heritage significance, and the Council considers is likely to be harmed.

3. Under s 29(2), an IHO remains in force for 12 months or such shorter period as may be specified in the order, being the IHO, unless it is revoked sooner. The period specified in the IHO is six months from the date it is made.

4. The Court has, on appeal, all the functions and discretions that the Council had to make the IHO, pursuant to s 39(2) of the LEC Act, as it is the Council’s decision to make the IHO that is the subject of this appeal.

5. I am satisfied that the agreement specifies particular circumstances in respect of the IHO for the Court to exercise its power in a manner that is consistent with the authorisation, such that the IHO will lapse after a period of six months from the making of these orders unless the Respondent has passed a resolution before that date.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

11. The orders of the Court are:

1. The appeal is upheld.

2. Under Section 25 of the Heritage Act 1977, the Court amends the Interim Heritage Order over 389 Illawarra Road, Marrickville including all structures and the garden (the site). The Interim Heritage Order will lapse upon the occurrence of the earliest of the following:

1. 8 July 2020, unless the Council resolves, before that date, to list the site as an item in the Heritage Schedule to the Marrickville Local Environmental Plan 2011; or

2. The Council resolving not to list the site as an item in the Heritage Schedule to the Marrickville Local Environmental Plan 2011; or

3. Fourteen days after the upholding of the appeal, by the granting of development consent, in proceedings 2019/00320496.

……………………….

Tim Horton

Commissioner of the Court

**********

Decision last updated: 09 June 2020