Beaches Capital Ventures Pty Limited v Wingecarribee Shire Council

Land and Environment Court (NSW)|2022-08-31

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 30(1) of the Heritage Act 1977 (Heritage Act) against the making of an interim heritage order (IHO) for 'Karingal' at 26 Elizabeth Street, Moss Vale (the site) by Wingecarribee Shire Council (the Council) pursuant to s 25 of the Heritage Act on 19 November 2022 (Ex 2, ff 23-24). The applicant appeals the making of the IHO over part of the site only, being the parcel of land identified as Lot 110 in DP 877316, excluding the front fence to Lot 110.
The appeal was subject to conciliation on 11 May 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. The parties consented to the admission of oral evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

The application is amended

By Notice of Motion heard at the commencement of the hearing, the applicant sought to amend the requested orders to exclude the front brick and trachyte fence on Lot 110 from the revocation of the IHO over Lot 110. The Court's leave to do so was unopposed and granted. Issues
The site is comprised of two parcels of land, Lot 1 in DP 986025 (Lot 1) and Lot 110 in DP 877316 (Lot 110). The applicant seeks the revocation of the IHO over Lot 110 excluding the front fence. According to the applicant, Lot 110 will not, on further inquiry or investigation, be found to be of local heritage significance because of its existing and historical features, and because of its recent re-subdivision. The applicant asserts that the Heritage Study prepared by Architectural Projects Pty Ltd dated July 2009 (2009 Heritage Study) did not recommend heritage listing of Lot 110. The applicant further asserts that Lot 110 is not being and is not likely to be harmed following the withdrawal of the development applications.

The IHO and the planning proposal to list the site as a local heritage item

The IHO is identified as No. 13 and was made by Wingecarribee Shire Council by publication in the New South Wales Government Gazette, No 598, 19 November 2021 (Ex 2, ff 30-34).
In a memorandum to the Council's General Manager dated 17 November 2021 (the memo) (Ex 2, ff 5-17), the Council's Strategic Land Use Planner requested endorsement of proposed IHOs over several properties in Bowral and Moss Vale, including the site. A draft heritage inventory sheet for Karingal at 26 Elizabeth Street, Moss Vale, which refers to the site including Lot 110, is attached to the memo. Schedule B to the memo is a Geographic Information System map of the locality including the site, both Lots 1 and 110, which is marked as the property over which the IHO is sought. The memo refers to development applications lodged for the site, as follows (Ex 2, ff 11-12): "The site was identified and assessed as being a potential heritage item by heritage consultants on behalf of Council as part of the Wingecarribee Heritage Survey in 2009. The owners of properties identified as potential heritage items as part of this project were notified and consulted in 2012 about the findings of the study and Council resolved in November 2012 to defer listing of any property whose owner did not actively support heritage listing. The then owner of 'Karingal' objected to the listing at that time. The deferred items were not revisited due to staffing shortfalls and competing priorities. However, as part of the Heritage Review 2021, additional information about its significance been uncovered and the review study has recommended heritage listing of the house, garden and brick and trachyte front fence. ATTACHED is the updated heritage inventory sheet for the property detailing the significance of the item. The Heritage Review 2021 will be reported to the Local Planning Panel (and thereafter to Council) in early 2022 with planned consultations with owners occurring shortly thereafter. On 21 September 2021 a development application (DA 22/0513) was lodged for a 2-lot sub-division of the site with a carport proposed in front of the building line of the existing house. On 23 September 2021 a further DA (DA22/0535) was lodged for a multi dwelling housing proposal on the proposed subdivided "vacant" lot. These applications were notified to neighbours and there has been a significant interest in these proposals… Given that this site has been proposed as a heritage item for more than 10 years, is an important element in the streetscape of Elizabeth Street, that the proposed DAs will have an adverse impact on the heritage significance of the item and its setting, and that there is significant community support for protection of this site, I request that an Interim Heritage Order be placed over this property so that heritage listing can be expedited."
On 8 December 2021, the Council resolved to present a report on the heritage assessment of 26 Elizabeth Street, Moss Vale to the LPP and Council in due course (Ex 2, f 41).
The heritage assessment of 26 Elizabeth Street, Moss Vale was presented to the LPP on 2 March 2022 (Ex 2, f 50). The recommendation to the LLP was for the local heritage listing of "'Karingal' Interwar bungalow and garden including brick and trachyte fence", and for the IHO to be extended until 19 November 2022 to allow for the preparation and processing of a planning proposal (Ex 2, f 51). The LPP supported the staff recommendation (Ex 2, f 136). The Council resolved to support the recommendation on 16 March 2022 (Ex 2, ff 136 and 360).
The planning proposal to amend the Wingecarribee Local Environmental Plan 2010 (LEP 2010) to include 26 Elizabeth Street, Moss Vale as a local heritage item (the planning proposal) was lodged with the Department of Planning and Environment (the Department) on 15 April 2022 (Ex 2, f 222). The gateway determination was issued by the Department on 23 May 2022 (Ex 2, ff 365-367).
The LPP resolved on 3 August 2022 to endorse the planning proposal and that the following amendments be made to the heritage inventory sheet for Karingal: "a. The description be updated to indicate that the property comprises two lots. b. The references to the "small lot" from 2009 Heritage Survey be deleted, amended or qualified. c. The history be updated to include details of the separate acquisition of the two lots."
The LLP further noted the following in the minutes of 3 August 2022 (Ex 2, f 379): "d. Specifically, in relation to the argument that Lot 110 DP 877316 should not be included in a heritage listing together with Lot 1 DP 986025, the Panel notes that 'Karingal' comprises of a house and garden setting which has been integrated across both lots to provide for a dwelling house, tennis court/parterre garden and garage for a period of more than eighty years."
The Council resolved on 17 August 2022 to endorse the local heritage listing of 26 Elizabeth Street, Moss Vale and to forward the planning proposal to the Department for completion (Ex 3, f 2).

The development applications

The background to the making of the IHO is set out in the applicant's Statement of Facts and Contentions (Ex C, p 7 "Actions of the Applicant").
On 21 September 2021, an earlier proponent known as Developed Pty Ltd lodged a development application which sought development consent for subdivision. On 23 September 2021, Developed Pty Ltd lodged a development application for multi-dwelling housing and subdivision (the development applications).
On 13 October 2021, the applicant purchased the site.
On 17 December 2021, the applicant filed the appeal against the making of the IHO.
On 21 December 2021, the development applications were formally withdrawn by Developed Pty Ltd. On 11 February 2022, the Council issued letters to Developed Pty Ltd confirming that the development applications had been formally withdrawn.

The Wingecarribee Shire Council Heritage Study 2009

The 2009 Heritage Study includes a recommendation that 26 Elizabeth Street, Moss Vale be listed as a local heritage item (Ex 2, f 691). The description and significance of 26 Elizabeth Street, Moss Vale is as follows (Ex 2, ff 716 and 730): A single storey freestanding house that dates from the interwar period set on a small site with a large rail front fence. The house has significance as an interwar residence/cottage, which illustrates the subdivision and development of School Estate. Statutory framework
Section 25 of the Heritage Act is in the following terms: Part 3 Interim heritage orders for items 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. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items - (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn.
"Harm", "item" and "local heritage significance" have the following meaning under the Heritage Act, s 4: Part 1 Preliminary … 4 Definitions … harm means - (a) in relation to a building or work - demolish, or (b) in relation to a relic or moveable object - damage, despoil, move or alter, or (c) in relation to a place or precinct - damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct. item means a place, building, work, relic, moveable object or precinct. local heritage significance has the meaning given by section 4A.
Section 4A of the Heritage Act, Heritage Significance, includes the following: Part 1 Preliminary … 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.
The Council is authorised to make IHOs for items in the Council's area in accordance with s 25 of the Heritage Act by an order made by the then Minister for Heritage in New South Wales Government Gazette, No 90, 12 July 2013, at 3421-3424 (the Ministerial order) (Ex 2, ff 734-736). The Council's authorisation is conditional under Schedule 2 to the Ministerial order, as follows: Conditions for Local Councils to make Interim Heritage Orders (1) A council must not make an Interim Heritage Order (IHO) unless: (a) an environmental planning instrument containing a schedule of heritage items derived from a heritage study and provisions for the management of those items is in force in the Local Government Area; and (b) it has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that: (i) the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance; (ii) the item is being or is likely to be harmed; (iii) the IHO is confined to the item determined as being under threat; and (c) where the IHO is made over land which includes an item which is likely to be found, on further inquiry and investigation, to be of significance to Aboriginal people… (2) A council must not make an IHO where: (a) the item is listed on… (b) the item is covered by… (c) the council has previously placed an interim heritage order on the item; or (d) a development consent (other than a complying development certificate), has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force; or (e) a complying development certificate has been granted for the demolition of an existing dwelling and the erection of a new single storey or two storey dwelling house, and the complying development certificate is still in force.
The site is zoned R3 Medium Density Residential under the LEP 2010. Expert evidence
The applicant relied on the expert heritage evidence of Stephen Davies and the Council relied on the expert heritage evidence of Kate Higgins. The experts prepared a joint report (Ex 4) and gave concurrent oral evidence.
The experts agreed that the house, tennis court and garage were built at the same time, on Lots 1 and (the former) 2.
According to Ms Higgins, the reference to "School Estate" and "small" in relation to the site in the 2009 Heritage Study are errors.
The experts disagreed on the heritage significance of Lot 110.
According to Ms Higgins, Lot 110 forms part of the curtilage of the draft heritage item, as follows: "The side garden, which had a tennis court, is part of the large garden around three sides of the house "Karingal". The brick and trachyte front fence extends across the front of the garden of Lots 1 and 2 of DP 986025 - marking the extent of the two allotments acquired by Browne in 1924. The house "Karingal" was designed to have an immediate relationship with the side garden as evidenced by the substantial verandah that wraps around the side and rear of the house and overlooks the tennis court… The design of the house and the integral relationship of the house and the tennis court/side garden is rare in Moss Vale. … The site of the former tennis court remains evident. The tennis court was an important feature of the garden. … Lot 110 contributes to the historic, aesthetic and social values of [the site]. [The site] has heritage significance at a local level. Lot 110 is integral to this significance. Therefore Lot 110 should be included within the heritage curtilage for [the site]. Since the 2009 heritage study, the heritage values of [the site] have been further assessed, and the local significance of the property confirmed. Lot 110 is encompassed within the extent of [the site] and makes an important contribution to the heritage values of the property.
According to Mr Davies, Lot 110 is not of local heritage significance, other than the front brick and trachyte fence, as follows: The history of the site has been fully investigated. The proposal to place the IHO over the two lots does not change the subdivision history as it is currently in two lots and is proposed to stay in two lots… No significance has been attributed to the parterre garden. It is agreed that the dwelling on Lot 1 contributes to the cultural significance of the local area, in association with its fence which stretches across Lot 110. If the area were a conservation are [sic] the dwelling would be better classified as "contributory" as its typology is not rare. The comparative analysis (Annexure B) does not provide convincing argument for significance or rarity… The design of the dwelling, I argue, was not determined by the location of the tennis court. The dwelling has a side verandah which is not untypical of interwar dwellings. Note: The tennis court is no longer functional having been relatively recently converted to a parterre garden. It has been dug up and replaced by a garden. It is disagreed that Lot 110 makes an important contribution to the heritage values of the property…
In Ms Higgins opinion, the significant features of the site on Lot 110 include the front fence, the driveway and the original garage, the garden around the house and the relationship of the house to the garden (as the garden provides the setting of the house). In her view, Lot 110 makes an important contribution to the house because the original development was a large house built on a large site, being two lots of the original subdivision.
In Mr Davies' opinion, there is no intrinsic merit in the parterre garden other than it interprets the historic location of the tennis court, which has been removed. The location of the tennis court did not suggest an integrated layout with the house. In his view, the house sits on its own lot, it did not extend over the second lot, and this was perhaps intentional. Lot 110 is not significant for its gardens as there is no evident garden design, and mature trees have been lost over time; it is merely a block of land. Mr Davies noted that in assessing a future development on Lot 110 without the IHO, the consent authority would nonetheless have to consider the setting of the house on the adjoining lot.

Submissions

The applicant submitted that the IHO was issued by the Council in response to the development applications lodged by a previous owner. Those development applications have since been withdrawn, as the applicant did not intend to develop the site. At the time the IHO was issued, there was a development application before the Council, and condition (1)(b)(ii) of Sch 2 to the Ministerial order authorising the Council to make IHOs was met, however, since the withdrawal of the development applications, the item is not being harmed and is not likely to be harmed, and so there is now no power for the Council, or the Court exercising the functions of the Council, to make the IHO.
The applicant submitted that the investigation of the heritage significance of the site has been completed, and so the role of the Court is to consider whether the item is of local heritage significance, in exercising the functions of the Council.
The applicant submitted that the garden on Lot 110 is not of heritage significance, as it was not identified as a garden of significance in the 2009 Heritage Study, the garden was not formally designed or associated with anyone of importance, and many of the landscape features of the garden including the tennis court and mature trees have been removed.

The power of the Court on appeal against the making of an IHO

An affected owner or occupier may appeal to the Court against the making of an IHO by the council, pursuant to s 30(1) of the Heritage Act. There are no specific functions or discretions conferred on the Court under the Heritage Act in relation to the appeal. The power of the Court on appeal, pursuant to s 39(2) of the LEC Act, is to exercise the functions and discretions that the Council had in respect of the making of the IHO. Fresh evidence or evidence in addition to, or in substitution for, the evidence before the Council at the time of the making of the IHO can be given, pursuant to s 39(3) of the LEC Act.
It is the role of the Court to determine if the necessary threshold tests of the Ministerial order are met (Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 at [56]).
The Ministerial order authorised the Council under s 25(2) of the Heritage Act to make the IHO, subject to the terms of the provision and the conditions imposed by the Ministerial order. The terms of s 25(2) permit the (authorised) council to make an IHO for a place 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. Under condition (1)(b) of Sch 2 to the Ministerial order, a council must not make an IHO unless it has considered a preliminary heritage assessment of the item by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that: (i) the item is or is likely to be found on further inquiry and investigation to be of local heritage significance; (ii) the item is being or is likely to be harmed; and (iii) the IHO is confined to the item determined as being under threat.
The effect of the IHO is given by the terms of s 57 of the Heritage Act.

Consideration

It was uncontroversial that condition (1)(a) of Sch 2 to the Ministerial order was met when the IHO was made.
In relation to condition 1(b) of Sch 2 to the Ministerial order, the parties agreed that when considering whether to make the IHO the Council considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council. The Council's General Manager made IHO No. 13 based on the recommendation in the memo (Ex 2, ff 5-17) to make the IHO and the attached draft heritage inventory sheet dated 16 November 2021. The memo was authored by the Council's Strategic Land Use Planner (Heritage) and included detailed information and justification for the making of the IHO. The draft heritage inventory sheet included information from past heritage studies.

The item, including Lot 110, is of local heritage significance

I am satisfied that the item has been found to be of local heritage significance and that the item is located on both Lots 1 and 110.
I accept Mr Davies' evidence and the applicant's submission that the garden of Lot 110 is not, in of itself, of local heritage significance. I accept that the contemporary parterre garden on the site of the former tennis court is of no heritage significance. However, the heritage assessment and draft heritage inventory sheet for the item do not claim that the garden is, without the house and front fence, of local heritage significance. The garden would have had to have been found to be of local heritage significance in and of itself to have been identified as a "heritage garden" by the 2009 Heritage Study.
The draft heritage inventory sheet (Ex 2, f 13) considered by the Council in making the IHO identifies the item as being significant, collectively, for its "its setting, its garden, architectural form and brick and Trachyte fence". The Council's case is that the garden, or a portion of the garden, forms part of the curtilage of Karingal and that the front fence, which is part of the description of the item, is located on Lot 110. Lot 110, particularly the portion of Lot 110 that is the former Lot 2, accommodates a yet to be determined heritage curtilage for the item and the front fence.
The purpose of the 2009 Heritage Study was to identify, across the local government area (LGA), potential heritage items and heritage conservation areas. Not a great deal turns on the "errors" regarding Karingal in the 2009 Heritage Study because the item was identified as being of local heritage significance within the broad heritage study of the LGA, the local heritage significance of the item has continued to be investigated since the completion of the study, and the draft heritage inventory sheet for the item has been updated. In deciding to issue the IHO over the item, including both Lot 1 and Lot 110, the Council considered the updated draft heritage inventory sheet dated 16 November 2021 and determined that the item included both Lot 1 and Lot 110. I accept and prefer Ms Higgins' evidence, and I am satisfied that the heritage curtilage of Karingal extends across part of Lot 110, and that Lot 110 contains the front fence that is identified as part of the item.
The inclusion of Lot 110 as part of the draft heritage item ensures that the consent authority assessing any future development on Lot 110 must consider the effect of the proposed development on the heritage significance of the item. The IHO over Lot 110 protects that local heritage significance until the making of the amending LEP.

The item is likely to be harmed

I consider that the item is likely to be harmed if the IHO over Lot 110 is revoked.
At the time the Council made the IHO for the item, there were development applications for the site lodged with the Council, and the parties agreed that the lodging of the development applications with the Council for sub-division and multi-dwelling development met condition (1)(b)(ii) of Sch 2 to the Ministerial order that "the item is being or is likely to be harmed". Notwithstanding that the validity of the IHO would be a matter for judicial review, there is currently no dispute between the parties that the IHO was validly made by the Council at the time it was issued.
The development applications have since been withdrawn. The applicant argues that there is now no power for the Court, exercising the functions of the Council, to make the IHO, as condition (1)(b)(ii) of Sch 2 to the Ministerial order is not met, that is, there is no development application lodged for the site and so the item is no longer "being or likely to be harmed". The Council, on the other hand, submitted that without the IHO over Lot 110, a Complying Development Certificate (CDC) could be issued granting consent (pursuant to Div 4.5 of the Environmental Planning and Assessment Act 1979) for a development on Lot 110 and so the item is still at risk of being harmed and condition (1)(b)(ii) of Sch 2 to the Ministerial order is met.
On the applicant's case, it would be appropriate for an IHO to be revoked whenever a development application (that satisfied the threshold test for condition (1)(b)(ii) of Sch 2 to the Ministerial order at the time of making the IHO) is withdrawn. Yet once an IHO is revoked, under condition (2)(c) of Sch 2 to the Ministerial order, a council cannot make an IHO where the council has previously placed an IHO on the item. If a fresh development application is made following the revocation of the IHO, and the Council again considers the heritage significance of the item would be harmed by the proposed development, the Council is prevented by the conditions of the Ministerial order from making another IHO over Lot 110. Read in context, condition (1)(b)(ii) of Sch 2 to the Ministerial order does not require that an IHO be revoked simply because the circumstance at the time of the making of the IHO that fulfilled the condition has been changed. The lodging of the development applications alerted the Council to the potential harm of the item and met the requirement of the Ministerial order authorising the Council to make the IHO. The potential harm to the item posed by a development consent still exists, despite those particular development applications being withdrawn.
I am satisfied that the development applications lodged with the Council at the time the IHO was made satisfied the threshold test for condition (1)(b)(ii) of Sch 2 to the Ministerial order and that the threat of harm continues to exist, despite the withdrawal of those development applications, because a new development application could be lodged, or a CDC issued, prior to the commencement of the amending LEP 2010 to include Karingal under Sch 5 as a local heritage item.
I am satisfied that the IHO is confined to the item determined as being under threat, being Lot 1 and (the former Lot 2 portion of) Lot 110. Conclusion
I am satisfied that the terms of s 25(2) of the Heritage Act and the relevant conditions of the Ministerial order are met and it is not appropriate to revoke the IHO over Lot 110, because the item has been found to be of local heritage significance and is located on both Lots 1 and 110. Orders
The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits, other than Exhibits 1 and C, are returned. Susan O'Neill Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2022

(2005) 142 LGERA 215

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (2)

Cited By (1)