Byron Ventilink Pty Limited v Byron Shire Council

Land and Environment Court (NSW)|2005-07-27|Before: Pain J, Mr J

Background 3 The site consists of two main buildings. The building on the eastern portion of the site fronting Fletcher Street is a single story building that currently operates as a backpacker hostel. This building was formerly the Byron Shire Council Chambers and administrative offices. The building on the southern portion of the site fronting Lawson Street consists of four single storey shops with a two-storey building behind. The two-storey building is part of the same backpacker hostel, being previously council chambers and administrative offices. The Applicant purchased the site in 1996 when Byron Shire Council relocated to Mullumbimby.

4 Development application no. 04/622.1 was lodged on 26 November 2004 in relation to the site. The proposal includes the demolition of all existing structures on the site with the exception of the structural shell of the four single storey shops fronting Lawson Street.

Relevant legislation 6 The Heritage Act was amended in 1998 to authorise certain councils to make IHOs for items of local heritage significance. Section 25 of the Heritage Act provides: (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. … (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. …

7 Section 29 of the Heritage Act provides: (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). … 8 Section 30 of the Heritage Act provides: (1) An affected owner or occupier may appeal to the Court against the making of an interim heritage order by a council. (2) The appeal must be made within 28 days after the interim heritage order takes effect. (3) The appeal does not stay an interim heritage order except to the extent that the Court may otherwise order. 9 The effect of an IHO is provided in Pt 4 of the Heritage Act. Section 57(1) of the Heritage Act provides: When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work, (b) damage or despoil the place, precinct or land, or any part of the place, precinct or land, (c) move, damage or destroy the relic or moveable object, (d) excavate any land for the purpose of exposing or moving the relic, (e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct, (h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land. 10 Section 63 of the Heritage Act provides: (1) Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval. … (2) Where: (a) an application for approval is made to demolish the whole of a building or work, or (b) an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work, the approval body shall determine that application by refusing approval.

11 The Minister administering the Heritage Act has made an order pursuant to s 25 of the Heritage Act ("the Minister's order") duly authorising the Council to issue IHOs subject to conditions listed in Sch 1 of the Minister's order which reads as follows: (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; (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 …

(2) A council must not make an IHO where: (a) the item is listed on: (i) an environmental planning instrument as an item of environmental heritage; (ii) the item is within a conservation area identified in an environmental planning instrument; (b) the item is covered by: (i) an order under s 130 or s 136 of the Heritage Act 1977; (c) the council has previously placed an interim heritage order on the item; (d) the Court has granted development consent in relation to the item, that permits the item to be harmed, and the development consent is still in force. … (5) An interim Heritage Order made by a council must contain the following condition: (a) "This Interim Heritage Order will lapse after six months from the date it is made unless the local council has passed a resolution before that date; (b) in the case of an item which, in the council's opinion, is of local significance, to place the provisions for protecting and managing the item; and … (6) A council must ensure that the authorisation is carried out in accordance with guidelines issued from time to time by the Heritage Council and/or Heritage Office. … (8) A council will be responsible for defending proceedings in any Court relating to its decisions made under this authorisation (including the bearing of all costs). 12 Clause 6 of the Minister's order refers to the requirement that the Council carry out the authorisation in accordance with guidelines issued from time to time by the Heritage Council and/or Heritage Office.

13 The Heritage Office of New South Wales issued the Local Government Heritage Guidelines ("the Guidelines") in February 2002. Clause 5.5 deals with council powers to issue IHOs and outlines the conditions to be attached to IHOs issued under the Heritage Act. Clause 5.5 of the Guidelines state that: 5.5 THE AUTHORISATION TO MAKE INTERIM HERITAGE ORDERS At this stage the Minister has given the authorisation to make Interim Heritage Orders to councils who do not yet have fully comprehensive heritage management systems in place to assist them in managing their heritage. A list of those local councils authorised to make interim heritage orders is included in the Ministerial Order in Appendix 8.3. [The Council is on this list]. The authorisation allows a council to make an Interim Heritage Order over an item, place or area, whilst it assesses whether statutory protection is warranted via a listing in a heritage schedule of a local environmental plan. The authorisation also allows a local council to become the approval body for approvals required under the Heritage Act 1977, once the Interim Heritage Order has been made. The matters that an applicant must obtain approval for are set out in full in section 57(1) of the Act. Council's authority to make approvals, however, only lasts for the duration of the Interim Heritage Order. Councils can only make Interim Heritage Orders in those circumstances where a potential heritage item, place or area: · is or is likely to be of heritage significance · is under threat of demolition or unsympathetic alteration · does not have statutory heritage protection under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. The capacity to make an Interim Heritage Order should not become the sole form of heritage management in a local area. All councils are encouraged to undertake heritage studies and to fulfil their obligations to prepare a local environmental plan with a schedule of heritage items. 5.5.1 The benefits of the Authorisation The authorisation to make Interim Heritage Orders provides local councils with a number of benefits including: · councils have the ability to provide short-term protection to items, places or areas of local significance under threat · council can quickly respond to an urgent need to assess and manage potential heritage items, place or areas · conservation outcomes will be achieved which reflect the concerns of the local community · heritage matters can be considered and approved speedily at a local level 5.5.2 Conditions attached to use of the Authorisation to make Interim Heritage Orders A number of conditions have been attached to the use of Interim Heritage Orders. The conditions appear in bold below with explanatory notes in italics. (1) A council must not make an Interim Heritage Order 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. Council must have an environmental planning instrument in place that can be amended to include items that are only temporarily protected by an Interim Heritage Order within the time frame stipulated in Condition 5. (b) it has considered a preliminary heritage assessment of the heritage 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, and (ii) the item is being or is likely to be harmed. Council's use of the authorisation is contingent on it commissioning or retaining a person with appropriate heritage knowledge, skills and experience to prepare a preliminary heritage assessment of the potential heritage item. The assessment must consider whether: (a) the potential heritage item is likely to be of heritage significance (b) the changes being proposed to the potential heritage item or the condition of the item is a threat to its heritage significance (c) the condition of the item is such that it is likely that its heritage significance can be conserved and includes a site visit to the item. The council or delegate's report must include a copy of the heritage expert's advice in full. The person may be a Heritage Advisor, Heritage Officer or a consultant engaged by the council for a specific project. The person must have knowledge, skills and experience in heritage conservation work as an integral part of their professional practice. Council must have considered a preliminary assessment of the potential heritage item and formed the view that the item is, or is likely to be, of heritage significance. The potential heritage item must actually be under threat, that is, either full or partial demolition of the fabric may be possible, or the heritage significance of the item may be materially affected. The sale of a property does not mean that an item is under threat. Council may learn that a potential heritage item is under threat from different sources including its own observations, notification under other legislation, pre-development application consultation, lodgement of a development application or community lobbying. Council should first consider holding discussions with the owner/developer to find out whether an alternative scheme can be developed rather than immediately making an Interim Heritage Order. In some cases the applicant may be receptive to amending the proposal once the potential heritage significance of the place is explained. (iii) the Interim Heritage Order is confined to the item determined as being under threat. The intent of an Interim Heritage Order is to provide temporary protection for a potential heritage item under threat. The Interim Heritage Order must be limited to the specific property that the potential item is situated on and not the entire heritage schedule of a draft local environmental plan. The curtilage of the item to be encompassed by the Interim Heritage Order must be determined before the Order is made. … 6. A council must ensure that the authorisation is carried out in accordance with any guidelines issued from time to time by the Heritage Council of New South Wales or New South Wales Heritage Office.

Councils using the authorisation to make Interim Heritage Orders should comply with the conditions attached to their use and/or any guidelines issued by the Heritage Council or Heritage Office. This is to ensure consistency in heritage management throughout the State. The guidelines include publications such as "Assessing Heritage Significance".

14 Guidelines have been issued for the assessment of heritage values generally under the Heritage Act in accordance with several criteria. Clause 7 of the Guidelines provides guidance on how these criteria might be applied. Issues 15 The Statement of Issues filed reads as follows: The Applicant contends the following matters are in issue: 1. Heritage significance

Whether the building at 19-23 Lawson Street, Byron Bay is of local heritage significance having regard to: (a) the number of alterations and type of alterations made to the building; (b) the painting on the face brick walls of the Lawson Street façade.

Whether the Interim Heritage Order should be revoked. History of site 16 The buildings located on the site have been built in several stages. In 1929, the Byron Shire Council Chambers building containing the original council chambers and offices was built on the site in the south-eastern most corner ("the 1929 building"). In 1972, a rear extension to the 1929 building was completed on the north-eastern portion of the site. In 1979 to 1983 a new wing was built on the south-western portion of the site. The new wing originally housed a library and from 1982 housed the council chambers. In 1986, renovations and remodelling of the existing foyer entry and offices was undertaken.

17 In 1996, the Council sold the site to a private purchaser. This site was approved for reuse of the site as a backpacker hostel and for the construction of four single storey shops facing Lawson Street. Alterations that have been made to the 1929 building by the Council or the private purchaser since 1996 include: · Replacement of windows on the main façade; · Painting of face brick and rendered surfaces on the main façade; · New cladding to entrance stairs and replacement of the railing; · Demolition of a number of secondary walls to create larger continuous spaces; · Relocation of walls and building of new fire rated walls; · Bricking up some existing windows and doors; · New ceiling and cornice to a number of spaces; · Removal of existing doors and introduction of fire rated doors; · New/enlarged openings in existing walls; · New kitchen fittings; · New bathroom fitting in former strong room, including alterations to timber floor.

18 There have been changes to the 1972 and 1976 buildings on the site. It was agreed there has been substantial alteration inside the buildings on the site. 19 In December 2004, Ms Lisa Wheeler, the Council's Senior Planner, undertook a preliminary assessment of the site to determine if the 1929 building and the other buildings on the site would be the subject of an IHO. As part of the preliminary assessment, Ms Wheeler referred to two previous studies undertaken for the Council:

"Byron Shire Environmental Study, Working Paper No. 6 - Heritage" prepared by the Council in August 1983 ("the 1983 Report"); and
"Byron Bay Main Street Study" prepared by Conybeare Morrison & Partners in June 1992 ("the 1992 Report").

20 On 20 December 2004, Ms Wheeler prepared a report titled "Byron Shire Council - Memorandum" ("the Wheeler Report") to the General Manager of the Council. The documentation contained in the Wheeler Report included the background information from the 1983 Report and 1992 Report and a draft IHO and accompanying map. In her report, Ms Wheeler stated that: The decision was made to issue the interim order after Council received an application for the redevelopment of the site. The application proposes to demolish the original chambers and it was thought that an order over the site would provide protection and more time for the heritage significance of the building to be further considered and potential for the proposal to be redesigned.

It is for this reason that I am recommending an interim heritage order be placed on the building. It will allow the Council at least six (6) months to investigate the building's significance further and to consult further with the owner about potential design solutions for the property.

21 On 24 December 2004 the General Manager of the Council issued the IHO under her delegation from the Council and the IHO was gazetted. The IHO was made over the whole of the site and, therefore, all of the buildings. The IHO stated that: This Interim Heritage Order will lapse six months from the date that it is made unless the Council passes a resolution before that date either:

in the case of an item which, in the council's opinion, is of local significance, to place the item on the heritage schedule of a local environmental plan with appropriate provisions for protecting and managing the item; and … 22 Section 29(2) of the Heritage Act provides that an IHO "remains in force for 12 months or such shorter period as may be specified in the order, unless it is revoked sooner". The Minister's order issued pursuant to section 25(1) of the Heritage Act stated the IHOs must contain the following condition: (5) An Interim Heritage Order made by a council must contain the following condition:

(a) This Interim Heritage Order will lapse after six months from the date it is made unless the local council has passed a resolution before that date:

(b) in the case of an item which, in the council's opinion, is of local significance, to place the item on the heritage schedule of a local environmental plan (LEP) with appropriate provisions for protecting and managing the item… 23 The Council passed a resolution within six months of the making of the IHO to place the item on Sch 2 of the LEP, which lists items of local heritage significance, as stated in order 5 of the Minister's order.

24 Following further investigation the Council now submits that the only building sought to be protected is the 1929 building. The remainder of the buildings on the site do not warrant heritage protection.

Evidence 25 The Applicant relied on the expert heritage evidence of Mr Graham Brooks. Mr Brooks provided a report to the Court and gave oral evidence in relation to the heritage significance of the subject site.

26 The Council relied on the expert heritage evidence of Dr Donald Ellsmore. Dr Ellsmore provided a report to the Court and gave oral evidence. The Council also provided the 1983 Report, the 1992 Report and the Wheeler Report to the Court. These were the three reports before the Council at the time it made its decision to issue the IHO.

27 Both the 1983 Report and the 1992 Report identified the 1929 building as being of heritage significance and recommended its conservation. The 1983 Report considered 26 buildings and recommended that of these 20 should be listed in Sch 2 of the LEP. The 1992 Report recommended that 11 items be listed in Sch 2 of the LEP and the others be listed in a Development Control Plan, which did not occur. It is unclear from the evidence why the recommendations of the 1992 Report were not implemented. The Council is currently undertaking a community based heritage study to identify places of local heritage significance to provide for the conservation of these places through planning controls. The Council has resolved to prepare the amendment to Sch 2 of the LEP to include the 1929 building as a heritage item.

28 The heritage experts undertook an assessment of heritage significance applying the New South Wales Heritage Assessment Criteria issued by the Heritage Council of New South Wales in April 1999 but drew different conclusions. An item needs to satisfy at least one of the criteria to be of heritage significance. The relevant criteria are: Criterion (a) an item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (b) an item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (c) an item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area); Criterion (d) an item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons; … 29 In applying these criteria both Dr Ellsmore and Mr Brooks concluded that the 1929 building was of some heritage significance. The key difference was whether the degree of significance was sufficient to warrant listing in an LEP. In Mr Brooks' opinion, the 1929 building did not meet the tests in the criteria of being of "strong", "important" or "special" significance, whereas Dr Ellsmore considered that the building met these tests as an item of local significance.

30 In Dr Ellsmore's opinion, the 1929 building was of historical significance to Byron Bay and met criterion (a). The 1929 building was the first permanent council chambers with a long association with the Council, being used for municipal business until 1996. While the 1929 building had been altered, the remaining fabric demonstrates its use as council chambers, with physical evidence such as the name and date still remaining.

31 Mr Brooks made the distinction between the importance of the decision- making function of the elected representatives and the administrative functions of a council. He considered the former to be of more historical importance to a community. As the 1929 building had not been used continuously as the council chambers its historical significance was diminished, and in selling the site the Council had broken its association with the 1929 building.

32 In relation to criterion (b), Dr Ellsmore considered the 1929 building to have association with persons of local importance. Mr Brooks disagreed with the facts of these associations and considered that there were other sites in Byron Bay which would better demonstrate these associations.

33 Dr Ellsmore considered that "the 1929 building has aesthetic significance due to its dignified stripped classical composition, elevated floor level and corner location". He stated that it was "a prominent building on a prominent corner site designed to be an important building for the community". Dr Ellsmore considered the 1929 building to be of importance as it was constructed of brick during the depression when other buildings were constructed of timber which demonstrated the community's attempt to provide a "modestly ostentatious" building as its council chambers. He recognised that the building was not an outstanding example of this style for the State but was the only example in Byron Bay, and as such was of local significance and satisfied criterion (c). He noted that the 1929 building was listed on the Institute of Architects Register of 20th Century Buildings of Significance and that the 1983 Report and the 1992 Report recognised the landmark significance of the 1929 building in the streetscape.

34 Mr Brooks considered that the 1929 building "is not an important or remarkable example of this [stripped classical] style of architecture". While he recognised that the building was a "distinctive visual component in the immediate streetscape" that this was not sufficient to meet criterion (c).

35 In relation to criterion (d), Dr Ellsmore considered that the 1929 building was associated with local government decision-making over a long period. Mr Brooks considered that the building had a long but not continuous association with the community and that in selling the 1929 building this connection had been broken.

36 In applying these criteria Mr Brooks concluded that: [T]he overall building complex at 19-23 Lawson Street, Byron Bay does not have sufficient local heritage significance to warrant listing on the heritage schedule of Byron Bay LEP. This is primarily due to the extent of alterations and additions and the fact that Council has broken its functional and historic links with the building in favour of a new administrative centre.

37 Dr Ellsmore held the contrary opinion that the 1929 building met the above criteria and demonstrated a degree of significance to be part of the heritage of Byron Bay.

The Applicant's submissions 38 The Applicant's case as argued raised issues not entirely reflected in the Statement of Issues.

39 The Applicant submitted that the IHO should be revoked as the Council had failed to properly issue the IHO in accordance with the conditions of the Minister's order (see par 11 above) requiring the Council to comply with cl 5.5.2(1)(b)(i), cl 5.5.2(1)(b)(ii), cl 5.5.2(1)(b)(iii) and cl 6 of the Guidelines. The Applicant submitted that as the Council had not complied with the Minister's order, the Council had breached s 25(4) of the Heritage Act and pursuant to s 29(4) of the Heritage Act the Court should revoke the IHO. Section 29(4) states: (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). Schedule 1(1)(b)(i) of the Minister's order/Clause 5.5.2(1)(b)(i) of the Guidelines - "likely to be found on further inquiry to be of local heritage significance" 40 The Applicant submitted that the Council had breached Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines because the whole of the site, which included the 1929 building and the other buildings, was not likely to be found on further investigation to be of local heritage significance. At best, the 1929 building may be considered to have some local heritage value. Local heritage significance did not attach to the whole of the site.

41 The Applicant further argued that while the 1929 building was of some heritage value it was not, and was not likely to be found on further investigation to be, of local heritage significance. In this respect the Applicant argued that the Court should prefer the evidence of Mr Brooks who provided a more comprehensive statement of evidence and heritage impact assessment than the 1983 Report, the 1992 Report, the Wheeler Report and the report provided by Dr Ellsmore. 42 In addition, the Applicant submitted that the 1983 Report, the 1992 Report and the Wheeler Report, the reports on which the Council relied when issuing the IHO, could not be said to be a proper preliminary assessment for the purposes of Sch 1(1)(b) of the Minister's order and cl 5.5.2(1)(b) of the Guidelines.

Schedule 1(1)(b)(ii) of the Minister's order/Clause 5.5.2(1)(b)(ii) - item is being or is likely to be harmed 43 The Applicant originally argued that the Council had breached Sch 1(1)(b)(ii) of the Minister's order and cl 5.5.2(1)(b)(ii) as the item, while the subject of a development application for demolition, was not an item that was under threat. However, the Guidelines specifically refer to the lodgement of a development application for demolition as a threat, and the Applicant did not pursue this argument. Schedule 1(1)(b)(iii) of the Minister's order/Clause 5.5.2(1)(b)(iii) of the Guidelines - IHO confined to item under threat 44 The Applicant submitted that the Council had breached Schedule 1(1)(b)(iii) of the Minister's order and cl 5.5.2(1)(b)(iii) because the IHO was not confined to the item under threat. Rather than relating only to the item now sought to be protected, the 1929 building, the IHO extended over the whole site. Schedule 1(6) of the Minister's order/Clause 6 of the Guidelines - Authorisation to be carried out in accordance with the Guidelines 45 The Applicant argued that as the Council had breached Sch 1(1)(b)(i) of the Minister's order/cl 5.5.2(1)(b)(i) and Sch 1(1)(b)(ii) of the Minister's order/cl 5.5.2(1)(b)(iii) the Council had breached Sch 1(6) of the Minister's order and cl 6 of the Guidelines which requires the Council to comply with the Guidelines when issuing IHOs.

46 In addition to those arguments, the Applicant submitted that the Council had acted improperly and in bad faith in issuing the IHO. The Applicant argued that as the Council had sold the property as a potential development site and had indicated to the Applicant before the sale that there were no heritage listings in relation to the site in 1996, the Council was acting in bad faith by now placing an IHO over the subject site. 47 The Applicant further argued that the Court only had power to continue or revoke the IHO as made by the Council, and that the Court did not have power to amend the IHO. As s 29(4) of the Heritage Act refers only to the power of councils to revoke IHOs, and no reference is made to any power to modify an IHO, the Applicant argued that it must have been the intention of Parliament to limit the Court's power to the revocation of an IHO. The Applicant contrasted s 29(4) of the Heritage Act to s 120L of the Heritage Act which specifically provide for the revocation and modification of orders by the Court. This meant that the Court could not amend the IHO to refer only to the 1929 building.

Council's submissions Schedule 1(1)(b)(i) of the Minister's order/Clause 5.5.2(1)(b)(i) of the Guidelines - "likely to be found on further inquiry to be of local heritage significance" 48 The Council submitted that in relation to Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines, the threshold test for deciding if an IHO ought be issued was whether it was likely to be found on further inquiry to be of local heritage significance. The Council submitted that the 1983 Report, the 1992 Report, Ms Wheeler's Report and Dr Ellsmore's evidence all confirm that it was likely to be found on further inquiry to be of local heritage significance.

49 The Council submitted it had considered a proper preliminary assessment of the site in the form of the 1983 Report, the 1992 Report and the Wheeler Report. In accordance with the criteria the item was, or was likely to be found on further inquiry and investigation to be, of local significance and the Council had properly issued the IHO. The Council noted that in these proceedings the Court also had the benefit of the expert evidence of Dr Ellsmore and Mr Brooks in addition to the three reports before the Council. The Council argued the evidence of Dr Ellsmore should be preferred over the evidence of Mr Brooks. In the alternative the Council submitted that while the Guidelines needed to be considered in the making of the IHO, strict compliance was not compulsory. Schedule 1(1)(b)(iii) of the Minister's order/Clause 5.5.2(1)(b)(iii) of the Guidelines - IHO confined to item under threat 50 The Council submitted that it had not breached Sch 1(1)(b)(iii) of the Minister's order and cl 5.5.2(1)(b)(iii) of the Guidelines as the Guidelines contemplate that an IHO can be placed over the whole site on which an item of potential heritage significance is located. Mr Brooks also gave evidence that such practice was common. It also submitted that at the time the IHO was imposed the extent of the 1929 building was unclear given the 1972 extension at the rear. 51 The Council argued that Sch 1(6) of the Minister's order and cl 6 of the Guidelines requiring authorisation to be carried out in accordance with the Guidelines had not been breached. In the alternative the Council submitted that while the Guidelines needed to be considered in the making of the IHO, strict compliance was not necessary.

52 If the Court found that the Council had improperly issued the IHO, the Council submitted that in the alternative the Court could and should amend the IHO made over the subject site such that it applied only to the 1929 building. The Council submitted that under s 39(2) of the Land and Environment Court Act 1979 ("the Court Act") the Court stands in the Council's shoes in making the IHO. The Council argued that it is therefore open to the Court to amend as well as revoke the IHO.

Finding 53 The IHO has been issued over the whole of the site. The Council issued it on the basis of the recommendation contained in the Wheeler Report. The Council's position at the hearing was that having conducted further investigations it is only the 1929 building, the former council chambers, which needs to be protected under the IHO.

54 The requirement for implementing an IHO is contained in Sch 1 of the Minister's order. This states that: (1) A council must not make an Interim Heritage Order 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.

(b) it has considered a preliminary heritage assessment of the heritage 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, and (ii) the item is being or is likely to be harmed. (iii) the Interim Heritage Order is confined to the item determined as being under threat. 55 As required by Sch 1(6) of the Minister's order, the Council must ensure that the IHO is issued in accordance with the Guidelines which elaborate on the ways in which the order must be executed. Schedule 1(1)(b)(i) of the Minister's order/Clause 5.5.2 (1)(b)(i) of the Guidelines - "likely to be found on further inquiry to be of local heritage significance" 56 It is not my role to determine whether the building is of local heritage significance and should be included in a planning instrument but rather whether the necessary threshold test under Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines has been met, namely, that on further investigation the item is likely to be found to be of local heritage significance. To require more certainty about the likelihood of local heritage significance, that it will be likely to be an item of local heritage significance, would appear to defeat the purpose of issuing an IHO in the first place, which is to enable protection of an item while further enquiries are made. I consider this threshold test has been amply supported by the 1983 Report, the 1992 Report and Ms Wheeler's Report at the time the IHO was made. Further I have before me Dr Ellsmore's evidence in relation to criteria (a), (b), (c) and (d) which I consider is sufficient to indicate that the 1929 building is likely to be found on further inquiry to be of local heritage significance. 57 Is a "new" heritage assessment report necessary under Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines to inform a Council on whether to exercise its discretion to issue an IHO? The Applicant argued the 1983 and 1992 Reports were insufficient and did not satisfy the Guidelines, that a preliminary heritage assessment must consider certain matters, and the relevant heritage criteria were not specifically addressed in these reports. The Guidelines do not specifically state that a new report is needed. Given that an IHO is intended to be imposed quickly I do not consider the Guidelines should be interpreted as requiring that a new report be prepared provided that the "old" reports relied on do satisfy the Guidelines overall. The Wheeler report was prepared by the Council's Senior Planner, who also has qualifications and experience in heritage conservation. Her Statement of Evidence dated 24 May 2005 makes clear in par 4 the matters about which she satisfied herself in reaching the conclusion that an IHO was necessary, for example, that the buildings were under threat and were likely to have heritage significance. As part of her report she has attached the 1983 and the 1992 reports, both of which identified the 1929 building as having heritage significance and recommended its conservation. I consider the Wheeler report and other material relied on meets the requirements of Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines set out at par 11 and 13 above. Schedule 1(1)(b)(iii) of the Minister's order/Clause 5.5.2(1)(b)(iii) of the Guidelines - IHO confined to item under threat 58 Section 27 of the Heritage Act states: An interim heritage order made in respect of an item may be expressed to apply (and if so expressed does apply) to: (a) if the item is a building - the curtilage of that building or the site of that building, being the curtilage or site specified or described in the order, or … 59 Further, cl 5.5.2(1)(b)(iii) of the Guidelines specifically states that an IHO must be limited to the specific property on which the potential item is situated. Arguably therefore the Guidelines contemplate that an IHO is made in the way the Council has proceeded, so that it is placed over the whole site on which the building is located. The Guidelines state that the curtilage of the item to be encompassed by the IHO must be determined before the IHO is made. At the time the IHO was made I consider this requirement was met, given that the extent of the 1929 building was not precisely known at that time in relation to the 1972 extension at the rear. 60 The evidence of Mr Brooks and Dr Ellsmore is that it is usual for the whole of a parcel of land being the site of a heritage item to be identified, as has occurred in this case. While the IHO requirements have been satisfied the Council must ensure that only that part of the site and curtilage it now wants to protect is specified in the amendment to Sch 2 of the LEP.

Schedule 1(6) of the Minister's order/Clause 6 of the Guidelines - Authorisation to be carried out in accordance with the Guidelines 61 As I have found that the Council has not breached Sch 1(1)(b)(i) of the Minister's order and cl 5.5.2(1)(b)(i) of the Guidelines and Sch 1(1)(b)(iii) of the Minister's order and cl 5.5.2(1)(b)(iii) of the Guidelines, it follows that the Council has not breached Sch 1(6) of the Minister's order and cl 6 of the Guidelines. I do consider the Guidelines are mandatory and must be complied with given Sch 1(6) of the Minister's order.

62 I do not consider the allegations that the Council acted improperly in issuing the IHO are relevant to the matter before me and I make no findings on that matter. I can appreciate the Applicant's dissatisfaction, having bought the property with the expectation that it was a site which could be redeveloped, now facing an IHO which prevents the demolition of the buildings on the site. All that can be said in these proceedings on that matter is that the Council has clearly changed its mind about the heritage significance of the building, which it is entitled to do. If it otherwise acts in conformity with the conditions for the issuing of the IHO I consider the order has been properly issued. 63 It is not necessary that I answer the issue of whether s 39(2) of the Court Act means that I can amend the IHO, rather than only confirm or revoke it. Given that s 29(4) of the Heritage Act states only that the Council, and by implication the Court, can revoke an IHO I do not consider the answer to that issue is clear cut.

64 As the requirements of Sch 1(1)(b)(i), Sch 1(1)(b)(iii) and Sch 1(6) of the Minister's order and cl 5.5.2(1)(b)(i), cl 5.5.2(1)(b)(iii) and therefore cl 6 of the Guidelines have been met I consider the Council has properly issued the IHO. The Applicant is therefore unsuccessful in its Class 1 application. Orders 65 The Court orders that:

The Applicant's Class 1 Application dated 18 January 2005 is dismissed;
Exhibits are to be returned;
Costs are reserved.

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.

CITATION : Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395

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