Strebora Pty Ltd v Randwick City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Strebora Pty Ltd v Randwick City Council [2017] NSWLEC 1204

Hearing dates:

5 – 6 April 2017

Date of orders:

26 April 2017

Decision date:

26 April 2017

Jurisdiction:

Class 1

Before:

Dickson, C

Decision:

The orders of the Court are:

1.    The appeal is upheld;

2.    The Interim Heritage Order on “Hillsea” at 48 Dudley Street, Coogee (Cnr Lot 3 DP545077), dated 8 September 2016 is revoked.

3.    The exhibits are returned with the exception of exhibit A, and the Class 1 Application. 

Catchwords:

INTERIM HERITAGE ORDER: validity - whether the heritage significance of the house is sufficient to warrant local heritage listing - whether on further investigation the item is likely to be found of heritage significance - resident submissions

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977

Cases Cited:

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

Category:

Principal judgment

Parties:

Strebora Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
Mr C McEwan (Applicant)
Ms S Duggan (Respondent)

  Solicitors:
Hartley Solicitors (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

2016/274622

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to 30(1) of the Heritage Act 1977 (NSW) (Heritage Act) against the making of an Interim Heritage Order (IHO) by Randwick City Council over the property at 48 Dudley Street, Coogee.

2. Relevantly an IHO is made pursuant to s25(2) of the Heritage Act which states:

(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.

3. Randwick Council is authorised to make IHOs for items in the Randwick local government area. This authorisation arises from an order made by the Minister administering the Heritage Act on 12 July 2013 (Exhibit B) (the Ministerial Order).

4. Whether the Council followed the mandatory steps in making the IHO is a matter of contention between the parties.

5. In making its decision in respect of the appeal, the Court may order a stay to the IHO (sub cl. 30(3) of the Heritage Act) or may revoke or confirm the order. The powers of the Court on appeal at cl 39 of the Land and Environment Court Act 1979 also apply, and the respondent argues relevantly cl 39(4), which requires the Court to have regard to the relevant acts, the circumstances of the case and the public interest. Relevantly the Court, on appeal, is re-exercising the powers of the Council, under cl 25(2) of the Heritage Act to make the IHO.

6. The issues for the Court to determine are:

1. Whether the Interim Heritage Order was validly made;

2. Whether the heritage significance of the property is sufficient to warrant local heritage listing;…