Forte Construction Group Pty Ltd v Inner West Council

The Court's role on appeal

1. In considering the appeal, pursuant to s 39(2) of the Land and Environment Court Act 1979 ("LEC Act") the Court re-exercises the functions of the Council in determining whether to issue the IHO. There is a dispute between the parties as to what needs to be determined in exercising that power. The Council's position is that the Court's role is confined to determining whether there should be interim protection, and to the question of whether the building "may, on further inquiry or investigation, be found to be of local heritage significance" in accordance with s 25(2) of the Heritage Act. Forte Group's position is that, if there is no further inquiry or investigation to be carried out, the Court's role extends to determining whether the building is of local heritage significance.
2. In support of its position, the Council relies on the decision of Pain J in Byron Ventilink Pty Limited v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395. At [56], Her Honour expressed the role of the Court on an appeal under s 30 of the Heritage Act as follows: "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."
3. The Council submits that it is plain, from the statement of Pain J and from the words of s 25(2) of the Heritage Act, that the Court is concerned with interim protection, not final orders. As such, the Council submits that it is not the role of the Court to determine whether or not the property is of local heritage significance. The Council submits that the question of whether the property is of local heritage significance is a separate task for the Council to determine, and which the Council has already embarked upon by engaging a consultant to carry out a heritage assessment. The Council's submission is that the question before the Court is whether the status quo should be preserved, which will enable the interim protection of the property to continue whilst the Council resolves whether or not to list the property as an item of environmental heritage. The Council says that only in circumstances where there is certainty that the building will not be listed as a heritage item would it be appropriate to revoke the IHO.
4. The Council submits that continuing the IHO will also allow interim protection whilst the Court considers a separate, Class 1 appeal concerning the deemed refusal of the development application for the demolition of the property and the erection of a four storey residential flat building. The Council submits that there are other avenues available to Forte Group with respect to the question of whether the property is of local heritage significance. This includes the existing Class 1 appeal, and if the Council resolves to list the property as a heritage item in the local environmental plan, a review of the decision by the Council to make that resolution.
5. Forte Group's position is that the statement of Pain J should not be taken to mean that the Court cannot decide for itself whether, at the date of the hearing, the item is likely to be found to be, or is of, heritage significance.
6. Forte Group submits that the nature and subject matter of the appeal is broader than the questions determined by the Council. It says that the questions before the Council pursuant to s 25 were:

• Whether there are further inquiries that could be made,
• Whether it is likely that the item will be found to have heritage significance, and
• Whether the item is likely to be harmed.

1. Forte Group submits that if the answer to the first question is that there are no further inquiries that could be made, then the second question, in conjunction with the power of the Court under s 39(2) of the LEC Act, becomes whether the item is of heritage significance.
2. Forte Group submits that this broader power of the Court is supported by the authority of the Court of Appeal in McDougall v Warringah Shire Council (1993) 30 NSWLR 258; in which Kirby P considered the scope of s 39 of the LEC Act and said (at 266): "However, I respectfully prefer the reading of s 39(2) of the Land and Environment Court Act which will allow the Land and Environment Court, as parliament has provided, to exercise the functions which the council may have exercised when hearing and considering the original application. The words "matter" and "in respect of" are wide indeed. It would be to frustrate parliament's clear purpose if the Court were unduly to narrow the facility of appellate review by rendering it nugatory or diminishing its utility in cases such as the present."
3. In Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53, Preston CJ considered whether the Court's power on an appeal concerning a development application extended to giving approval under the Roads Act 1993. He found that it did, and stated at [13] that: "The width or narrowness of the functions and discretions of the Council, which can be exercised by the Court for the purposes of hearing and disposing of the appeal, will therefore be governed by the nature and subject matter of the appeal."
4. In light of this authority, Forte Group submits that in order to determine whether to continue the protection afforded by the IHO, the Court must determine the heritage significance of the item on the basis of the evidence now available. It submits that the Court's power to hear and determine an appeal against an IHO under s 30 of the Heritage Act attracts the full scope of power under s 39(2) and (3) to determine on fresh evidence whether the item has local heritage significance and is worthy of protection under an IHO. Forte Group submits that the Court therefore has the power to revoke, modify or uphold the IHO. It submits that the Council's approach would leave no work for s 30 of the Heritage Act and s 39 of the LEC Act to do, which would frustrate the purpose of s 39 by rendering the appeal "nugatory or diminishing its utility" in accordance with the words of Kirby P.

Determining the role of the Court on appeal against an IHO

1. In understanding the role of the Court on appeal and the application of s 39 of the LEC Act, it is imperative to consider the function that was carried out and the bounds of the discretion exercised by the Council in issuing the IHO. It is this function and discretion that informs the role of the Court, which has pursuant to s 39(2) "all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."
2. The discretionary power of the Council to issue an IHO arises pursuant to s 25(2) of the Heritage Act. However, that discretion is given only by authorisation by the Minister. Section 24 makes it clear that the Minister has the power to make an IHO, and s 25 concerns the power to authorise local councils to make an IHO. Sub-sections (1) and (2) of section 25 are as follows: "(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. The bounds of the exercise of the discretion conferred in (2) are limited by the terms of the authorisation. Sub-section (4) provides: "(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."
4. Therefore, pursuant to s 39(2) of the LEC Act, the Court's power permits it to exercise the discretion conferred by s 25(2) of the Heritage Act subject to the limitations on that function imposed by the conditions of the authorisation.
5. Those conditions are extracted, in part, at [3] above. Pertinent to the dispute between the parties is (1)(b)(i), which provides: "(1) A council must not make an Interim Heritage Order (IHO) unless: … (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; …"
6. The experts agree that the remaining terms of (1) and (1)(b) are met.
7. Accordingly, the Court is required to consider whether "the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance" (emphasis added). The use of the word "or" makes it clear that there are two alternate states of satisfaction, at least one of which must be reached in order to satisfy (1)(b)(i). The first is that "the item is… of local heritage significance" and the second is that "the item… is likely to be found, on further inquiry and investigation, to be of local heritage significance". This reflects that the words "the item is" and "of" are conjunctive, as are the words "is likely to be found" and "to be of". I therefore accept that where there is no further inquiry or investigation to be carried out, the role of the Court extends to considering whether the item is of local heritage significance, just as it would for the Council.
8. Pursuant to s 4A of the Heritage Act, an item is of "local heritage significance" if it is significant "to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item." In the Local Government Heritage Guidelines, the NSW Heritage Office sets out criteria to assist local councils in determining whether an item is of local heritage significance.
9. It is agreed, and I accept, that in exercising the discretion and considering whether (1)(b)(i) is met, the Court can consider all of the evidence furnished on appeal and is not limited to the preliminary heritage assessment referred to in (1)(b). This is clear from s 39(3), which provides that an appeal "in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."
10. Consistent with the comment of Pain J in Byron Ventilink, I do not accept that the Court's role goes beyond reaching the state of satisfaction required by (1)(b)(i) to the point of determining whether the item should be included in a planning instrument. That is a separate function of the Council, which function exists independently of the power to issue an IHO, even though the IHO lapses upon a resolution of the Council to exercise that separate function. Nevertheless, the question as to whether an item is of "local heritage significance" for the purpose of (1)(b)(i) of the authorisation is largely synonymous with what a local council considers, amongst other matters, in determining whether to include the item in a planning instrument. As such, the test as to whether an item is of "local heritage significance" for the purpose of (1)(b)(i) has been referred to by Commissioners of the Court as being one of considering whether the heritage significance is sufficient to warrant local heritage listing (see Anagnostou and ors v Canterbury Bankstown Council [2017] NSWLEC 1320 at [24-27], Strebora Pty Ltd v Randwick City Council [2017] NSWLEC 1204 at [6], and El-Hage Construction Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1470 at [24]).
11. The Court's role is therefore not a matter of simply deciding whether the status quo should be maintained in order to allow further investigation or inquiries to be carried out. Rather, the Court determines, based on all the evidence before it, whether the requirements of (1)(b) are met. Following the wording of (1), the Court cannot issue the IHO unless those requirements are met. The matters for my determination in considering whether (1)(b)(i) is met can be summarised as follows:

• If there is further inquiry or investigation to be carried out, whether the building is likely to be found to be of local heritage significance, or
• If there is no further inquiry or investigation to be carried out, whether the building is of local heritage significance.

1. This is consistent with the previous decisions of the Court in appeals concerning an IHO. For example, in Byron Ventilink, Pain J found that on further inquiry or investigation, the building was likely to be found to be of local heritage significance. Dickson C reached the same view in Alexandra Kelly v North Sydney Council [2017] NSWLEC 1546, as did O'Neill C in Li v Willoughby City Council [2018] NSWLEC 1262. However, in Anagnostou and ors v Canterbury Bankstown Council, the experts agreed and O'Neill C considered that the buildings were not of local heritage significance. Further, in Strebora Pty Ltd v Randwick City Council, the parties agreed that sufficient research and study of the property has occurred, and Dickson C went on to consider whether the building was of local heritage significance. In El-Hage Construction Pty Ltd v Ku-ring-gai Council, O'Neill C considered that neither of the two alternate states of satisfaction was reached, as the building was not "worthy of a local heritage listing" and "any further investigation will not illicit additional information that would change the finding that the item does not reach the threshold for local heritage listing" (at [24]). It is clear that each of these previous decisions are a permutation of the above points identified in [27].

The site and its context

1. The site is a rectangular shaped lot, legally described as Lot 1 DP 361656. It is located on the eastern side of the Boulevarde, which is characterised by a landscaped footpath with mature trees as well as a deep verge containing hard stand car spaces.
2. The site is occupied by a two-storey dwelling with a driveway along the eastern side setback. A large Norfolk island pine tree sits within the front setback. A detached carport is located on the driveway within the front setback, and a detached garage is located in the rear of the site at the end of the driveway. There is also a swimming pool in the rear yard.
3. The dwelling is an inter-war bungalow of 1920s construction that has had alterations and additions to both the internal and external fabric of the property. One such alteration is the enclosure of the front sleep-out verandah, including by glass windows and stacked textured bricks, which now comprises a bathroom and kitchen dating back to the 1940s. The dwelling and its roof line is also altered by the addition of a second storey extension of contemporary construction. Alterations have also been carried out to the rear of the building by the addition of a deck and the erection of a roof over the rear of the building and the deck.
4. The remaining external features of the original 1920s building include the sandstone base course, red brick façade and terracotta roof tiles.
5. The remaining internal features are confined to the ground floor and include the original timber floors, fireplaces, decorative plaster ceilings, timber battens and boxed-in beams, timber skirting boards and picture rails to some bedrooms, timber panelling and timber joinery in the living room and entrance areas. The entrance features a small entry vestibule with an original built-in hall seat with stained timber joinery and panelling. The fireplace in the lounge room is set within a recessed inglenook, with a seat on each side of the fireplace contained within a screen of boxed-in timber panelling supporting boxed-in timber posts. The timber panels in the entryway and inglenook are dark-stained timber sheets with timber cover battens. The ceiling in the entryway, lounge room and one of the bedrooms is a plaster ceiling divided into squares by the dark-stained timber battens and boxed-in beams. These remaining features are an example of domestic interiors known as "Mission Craftsman Interiors" typical of the period and widely available for purchase as a package from places such as David Jones. Some features of the original kitchen also remain, such as the milk and bread delivery hatch.
6. The streetscape in this section of The Boulevarde contains a mix of single dwellings and residential flat buildings, and adjacent to the site to the north is a residential flat building that has a three-storey presentation to The Boulevarde.

Relevant background

1. The former Marrickville Council undertook a number of heritage studies of the area that formerly comprised the Marrickville Local Government area, in which the site was located prior to the creation of Inner West Council. Those studies identified heritage items and conservation areas for inclusion in the Local Environmental Plan as items of local heritage significance. Those studies included:

• The Marrickville Heritage Study by Fox and Associates Architects and Planners in February 1986.
• The Marrickville Heritage Study Review in 1997, carried out by Tropman and Tropman Architects in September 2000, which involved a review of the previous heritage study and identified a number of additional properties for further investigation as potential heritage items.
• A review of heritage controls and heritage listings as part of the development of the draft local environmental plan and development control plan, conducted by Paul Davies Pty Ltd in 2008. This review resulted in the addition of over 100 new heritage items and the creation of 33 new heritage conservation areas, including reducing the boundaries of the areas previously protected for heritage conservation under a separate provision in a former Marrickville Local Environmental Plan (No 111).

1. As a result of the review by Paul Davies Pty Ltd in 2008, a group of three heritage conservation areas was identified as being inter-war heritage conservation areas in Dulwich Hill and Marrickville. It is stated in the final report by Paul Davies that they each "contain many very good examples of modest interwar bungalows and semi-detached cottages".
2. None of these studies identified 73 The Boulevarde for inclusion in either a heritage conservation area or as a heritage item.
3. A development application for the demolition of the dwelling and the construction of a four storey residential flat building has been lodged and is currently the subject of an appeal to the Court. The IHO was issued following receipt of a report prepared by Sue Rosen Associates and dated March 2018, which was prepared on behalf of the adjoining neighbours after the development application was lodged. That report concludes that, inter alia, in reference to both numbers 73 and 73A The Boulevarde, "As finely detailed and intact exemplars of the Californian bungalow they also illustrate the NSW theme of "Creative endeavour". They have a high degree of local associative historical significance due to their association with the builder, William George Mitchell and a high degree of local aesthetic significance as examples of Federation and Californian Bungalow styles. As a relatively intact pair they have exceptional local significance at a local level under the rarity criterion and a high degree of local significance as representative examples of their kind."
4. Prior to the issue of the IHO, the Council received advice that an application for a complying development certificate for the demolition of the buildings had been made.
5. A number of other heritage assessments have also been carried out since the issue of the IHO and are discussed in my consideration of the evidence below. It is not now asserted by the Council that the two dwellings are a pair or that the builder was William Mitchell.

Expert evidence and heritage assessment

1. Expert opinion evidence on the heritage significance of the item was given by Mr Stephen Davies, engaged by Forte Group, and Mr Niall Macken, an employee of the Council. Mr Davies and Mr Macken each prepared an individual expert report and together prepared a joint report, the latter of which was superseded by a supplementary joint report (Exhibit D) filed the day prior to the hearing that outlined their differing opinions on whether the buildings met the criteria for local heritage significance. In outlining their opinions, they assessed the heritage significance using the NSW heritage assessment criteria, which are (Local Government Heritage Guidelines cl 8.6): "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; Criterion (e) - an item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (f) - an item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area); Criterion (g) - an item is important in demonstrating the principal characteristics of a class of NSW's • cultural or natural places; or • cultural or natural environments. (or a class of the local area's • cultural or natural places; or • cultural or natural environments.) An item is not to be excluded from the Register on the ground that items with similar characteristics have already been listed on the Register."
2. Both Mr Davies and Mr Macken agree that the building is a representative example of a "Mission Craftsman interior" and that inclusion of the building in a heritage conservation area would not protect that interior. However, they disagree on whether the property satisfies the criteria for listing as an item of heritage significance.
3. In Mr Macken's opinion, the property is worthy of further investigation and based on the current information, satisfies the criteria A, B, C, F & G for the following reasons:

• It is an example of an American influenced interwar bungalow, which "was an important component of development and residential consolidation of the inner west suburbs as a result of the demolition of larger houses and the subdivision of their grounds" (Exhibit D, at [3.3]).
• It is associated with the interwar period, which is recognised as a significant historical phase in the Marrickville Development Control Plan 2011 ("MDCP 2011").
• It demonstrates the subdivision that occurred after the demolition of the previous grand house, Toddington, which was built in the 1870s and the Norfolk Island pine tree may be a survivor of the nineteenth century plantings during the period of construction of Toddington. This would not, of itself, warrant heritage listing, but is a factor that adds to the heritage significance of the site.
• The original ground floor plan and its original fabric remains almost intact, and demonstrates the original layout and room uses.
• The interior of the dwelling has not lost its integrity and is a "rare, substantially intact example of a 'Mission Craftsman interior", a style of domestic interior that was popular in Sydney bungalows from 1917-1925, and which had been popularised by the American designer Gustav Stickley in his 'Craftsman' magazine" (Exhibit D, [3.5]).
• The intact nature of the decorative ceilings, joinery, wall panelling and flooring in the entrance, hallway, living room, dining room and bedrooms are "excellent examples of the application of Gustav Stickely's 'Craftsman' houses to the Australian mass housing context, and the design is of exceptional interest in the local and Sydney context and provides information that is otherwise only available in publications from the period" (Exhibit D, [3.6]).
• The intact inglenook is "particularly rare in suburban housing in Sydney" (Exhibit D, [3.6])
• The interior is "a significant variation of typical mass-produced housing of the period because of the richness of the decoration and the size of the house" (Exhibit D, [3.7]).
• The alterations and additions have not substantially altered the integrity of the dwelling.

1. Mr Macken's evidence is that further investigation is required in order to establish the significance of the builder, and also to discover the rarity of the inglenook.
2. In Mr Davies' opinion, the dwelling is an altered representative example of its type under criterion C, but not at a threshold for a heritage listing. He forms this opinion for the following reasons:

• The building is a product of the period of subdivision, as are all houses in Dulwich Hill, in the same way that all new houses being constructed in Western Sydney are examples of their period of subdivision. The building "has no historical association more than all houses developed for residential purposes in the area at the time" (Exhibit D, [3.9]).
• There is no significance arising from the association with the builder, who has been identified as G Hokin & Co.
• Whilst the interior is a good example of interiors of the period, it is in "an altered and otherwise non-exceptional dwelling" (Exhibit D, [3.11]).
• These types of interior "were sold as interior packages and were typical of the period and this particular interior, introduced by a builder, was not designed by an architect and does not have a high enough degree of creative endeavour to reach the threshold for inclusion" (Exhibit D, [3.11]).
• The building and its interiors is not rare, as there is this type of decoration "in dwellings of the lower north shore, the eastern suburbs and the inner west. This method of applied timber decoration to walls is not rare in either dwellings or residential flat buildings of the period" (Exhibit D, [3.12]).
• Similarly, in his experience inglenooks are not rare, as demonstrated by his attendance in the month prior to the hearing at three dwellings with inglenooks, at least two of which were not listed as heritage items.
• Whilst the interior has integrity, there is no evidence as to why it is "a significant variation of typical mass-produced housing as illustrated in journals and magazines of the period" (Exhibit D, [3.13]).
• In circumstances where the interior packages of the type at the dwelling were mass produced and readily available, the dwelling would need to be an exemplar of its kind for it to be appropriate for listing as an item. Due to the alterations and additions to the dwelling, it is not an exemplar of its kind. So whilst it is representative of a type, it wouldn't be chosen as the exemplar for mission craftsman interior of the inter-war period.
• The mission craftsman interior is a type of applied ornament, and there needs to be something more than applied ornament to elevate the dwelling to a heritage listing.
• Whilst further investigation can be undertaken, no further inquiry or investigation is required, and nor will a further inquiry uncover anything that will warrant the listing of the building.

1. Mr Davies accepted that minds may differ on the application of the heritage assessment criteria.
2. Attached to Mr Davies' individual report is a report by Urbis Pty Ltd, the content of which has been endorsed by Mr Davies as the Director, Heritage of Urbas. Consistent with the evidence of Mr Davies in the proceedings, the report carries out an assessment against the criteria and concludes that the dwelling "does not reach the threshold for listing". Specifically, it states by way of conclusion that the dwelling "has had a number of alterations and additions that have also reduced its representative value as an intact interwar bungalow."

Evidence of heritage assessment

1. The Council also relies on the assessment carried out by Dr Scott Robertson as evidence of the Council undertaking further inquiries to determine if the building is of local heritage significance. That report is based on the assumption that William Mitchell was the builder, which the evidence does not now support. Notwithstanding that, it also states that there are four houses with inglenooks listed on the State Heritage Register; "three of which are substantial nineteenth century houses and the fourth is a rustic weekend retreat". The report also says that there are eight houses listed on the State Heritage Inventory as having inglenooks. The report then goes on to say (at page 19): "Not all local Councils have updated their Schedule 5 lists (of Items of Environmental Heritage) to include interiors, to coincide with the standard LEP clause relating to changes to interiors (5.10 2(b)). The interior of houses not listed on the SHR and not specifically identified in the LEP schedules, such as "The Cobbles" are not adequately protected. Currently there is no protected Craftsman interior in NSW. The surviving interior of No. 73 The Boulevarde is a rare surviving substantially intact example of a "Mission Craftsman Interior", a style popular in Sydney bungalows dating from 1917- 1925. The interior of a similar standard to contemporary examples published in the first half of the 1920s, the survival of which has yet been confirmed. Given that the interior was constructed by William Mitchell who erected bungalows in the Sydney area, the design is important as a record of the 'Mission Craftsman interior' style predominantly only found in NSW. No other intact examples with an inglenook, beamed ceiling and internal doors has been located. The other surviving examples have had one element modified. The influence of the Craftsman magazine and the 'Californian' style of bungalow reflected the trading route and exchange of ideas between Sydney and California between 1900 and 1930. The design demonstrates the adaptions of contemporary Californian architecture to Australia, and its adaptation to suit the available range of materials for buildings in Sydney."
2. Attached to Mr Davies' individual report are two letters from other consultants outlining their position with respect to the heritage significance of the building at 73 The Boulevarde. In the letter of Ms Samantha Polkinghorne of NBRS Architecture dated 25 May 2018, she expresses an "initial response" that: "…the building is not a complete example of a particular style, and has been substantially modified from its original form. The setting has been altered by later development, which has disconnected the site from the group of (non-heritage listed) single storey residential dwellings to the west of the site. The site is not heritage listed, nor does it lie within a heritage conservation area. Based on the current physical and documentary evidence there is no justification for changing this situation."
3. Despite reaching this position, Ms Polkinghorne also sets out a number of "Next Step Recommendations", which include preparing a mapping diagram of the various phases of modification, continuing research to confirm when modifications were carried out, preparing a streetscape analysis, determining the age of the tree, and preparing a formal heritage assessment.
4. In the historical summary of the property attached to her letter, the builder is identified as G Hokin & Co Ltd, also known as Garratt, Hokin & Co. Ltd, which was registered as "builders and contractors, merchants etc".
5. A letter from Mr David Logan of GML Heritage dated 31 May 2018 is also annexed to the report of Mr Davies. That letter gives a "preliminary" position that (inter alia): "• While the most intact central room, containing the inglenook, is a handsome internal feature, it is not rare. Alterations and additions elsewhere detract from the intactness and quality of the house in general. • The property is not an impressive example of its type, nor is this typology of house rare or unusual in the Inner West of Sydney. • Barnett Hyman, who commissioned the construction of the property and owned it from 1923 to 1941, is not significant within the local government area (LGA). Whilst he is noted in a single newspaper article as a 'well-known' furrier in April 1913, he is not sufficiently prominent, nor does he remain of sufficient local repute in today's terms to satisfy Criterion B (associative significance)."
6. Whilst the builder has been attributed variously to be William Mitchell, George Hoskins, or G Hokin & Co Ltd, an entry in the Petersham Council Building Register in 1921 clearly establishes the applicant to be G Hokin & Co Ltd.

Submissions on heritage significance

1. The Council submits that the Court ought not be the final arbiter in circumstances where there is further investigation to be done, and where "minds differ" in the assessment of heritage significance against the criteria. The Council submits that the evidence demonstrates that further investigation is warranted, and the experts disagree on a number of matters, including the rarity of the interiors. In those circumstances, and in circumstances where the Council has received an assessment from Dr Robertson recommending listing, the Council submits that it is appropriate to continue the IHO.
2. The Council also submits that based on the evidence of Mr Macken and the report of Dr Robinson, there is sufficient evidence to support a listing based on criteria A, C, F and G, and that further investigation is required to ascertain the significance of the builder in accordance with criterion B. In relation to criterion C, the Council submits that the evidence establishes that the dwelling is a rare, substantially intact representative example of the mission craftman interior.
3. Forte Group submits that no further investigation is required, and that there is sufficient evidence on which to determine whether the item is of local heritage significance. In relation to criterion A, it submits that, based on the evidence, the site does not represent the characteristics of inter-war housing particularly well because it has lost its integrity due to the alterations and additions, including the loss of its single storey character, which is said by the heritage study for the inter-war conservation areas to be a vital characteristic of inter-war bungalows. Further, Forte Group submits that inter-war housing is sufficiently protected by the three inter-war heritage conservation areas, and that there are two better examples of inter-war housing at 94 and 102 the Boulevarde, which have maintained their integrity in the streetscape and are not compromised by adjoining residential flat development. Forte Group also submits that an inference can be drawn from the previous heritage studies that the site was not considered worthy of listing as an item. Forte Group also submits that there is insufficient evidence to support the listing of the garage or the tree under criterion A.
4. With respect to criterion B, Forte Group submits that the assessments by Dr Robinson and Ms Rosen rely on the two houses at 73 and 73A being a pair constructed by William Mitchell. It submits that in light of the evidence that the dwelling was erected by G Hokin & Co Ltd and is not a pair with 73A, there is no reason to conclude that the house is associated with any person of significance.
5. With respect to criterion C, Forte Group relies on the evidence of Mr Davies and Mr Macken that the building does not have landmark qualities and is not particularly aesthetically distinctive. Forte Group also submits that the interior is not sufficiently distinctive to warrant its listing, relying on the evidence of Mr Davies that the dwelling is a typical representative example but is not an exemplar. Forte Group submits that any investigation as to the rarity of the interior and its attributes by considering whether it, and its inglenook, is aesthetically distinctive amongst the vast numbers of inter-war houses would be an impossible task, given that access to the interior of dwellings would be difficult. Similarly, with respect to criteria F and G, Forte Group submits that the house has lost its integrity due to the alterations and additions and the unsympathetic surrounding development, that the styled interior is not sufficiently rare, and that it is not a significant variation of its type. Forte Group also submits that it falls within one of the exclusion guidelines for

The item is likely to be found to be of local heritage significance

1. As set out above, for the Court to issue or uphold the IHO (and therefore to effect its continuance), I must be satisfied that "the item is… of local heritage significance" or that "the item… is likely to be found, on further inquiry and investigation, to be of local heritage significance".
2. I do not accept that the existence of heritage conservation areas that specifically protect inter-war bungalows of the same type as the dwelling on 73 The Boulevarde is relevant to the assessment of whether the item is of local heritage significance or likely to be found to be of local heritage significance. The heritage guidelines specifically state that an item "is not to be excluded from the Register on the ground that items with similar characteristics have already been listed on the Register". Further, in accordance with the agreement of the experts, the inclusion of an item in a heritage conservation area (without a separate listing as a heritage item) does not protect the interiors.
3. Further, no inferences can be drawn from the previous heritage studies, as there is no evidence as to whether or not 73 The Boulevarde was considered as part of those studies.
4. Instead, for the following reasons, I am of the view that based on the evidence before the Court, there is further inquiry or investigation to be carried out, and that on the further inquiry or investigation, the dwelling at 73 The Boulevarde is likely to be found to be of local heritage significance.
5. Firstly, I accept that further inquiry or investigation can be carried out with respect to the rarity of an interior of the integrity of that found at 73 The Boulevarde. Such an inquiry or investigation is not limited to the rarity of the inglenook, as Forte Group sought to describe it, but to whether the combination of the inglenook, the timber panelling and the other applied ornament is rare and whether its intact nature at 73 The Boulevarde remains significant in light of the fact that the builder is now known to be G Hokin & Co Pty Ltd. This includes further investigation as to the significance of the builder, consistent with the evidence of Mr Macken. The evidence of Mr Davies establishes the history of the builder and also that an inglenook is not in itself rare. However, the evidence is not conclusive as to what else the builder constructed and whether the observations in Dr Robinson's report that no other "intact examples with an inglenook, beamed ceiling and internal doors has been located" in a dwelling of this type are maintained following new information with respect to the builder, given that those observations are based on the builder as William Mitchell.
6. Secondly, there is sufficient evidence to establish that on this further inquiry or investigation, the interior of the dwelling is likely to be found to be an exemplar of the mission craftsman interior in accordance with Criterion C and F. Consistent with the decision of Dickson C in Kelly v North Sydney Council, the word "likely" means "a real chance or possibility". I accept that the dwelling has an aesthetically distinctive interior, in accordance with Criterion C, which is a representative example of the mission craftsman interior. I accept that on the further inquiry or investigation set out above, there is a real chance that it will be found to be of local heritage significance on this criterion as the integrity and intact nature of the interior, together with the combination of the inglenook, timber panelling and other applied ornament is likely to cause it to exemplify the mission craftsman interior and provide information that is otherwise only available in publications from the period. I accept the evidence of Mr Macken in that regard. Mr Davies' evidence does not acknowledge or contradict this evidence of its significance. Further, whilst I accept the evidence of Mr Davies that an inglenook is not uncommon or rare with respect to Criterion F, its combination with the other aspects of the mission craftsman interior identified by Mr Macken, together with the intact nature of the interior, is likely to cause it to be rare.
7. Thirdly, I accept the evidence of Mr Macken that the mere fact that the dwelling has undergone significant alterations and additions does not mean that the characteristics of the dwelling that are likely to render it of local heritage significance are lost. Whilst it is no longer single storey, it nonetheless presents as single storey to the streetscape. Similarly, the infilling of the front verandah and the construction of the rear deck, whilst losing the integrity of the original 1920s construction, have not so altered the integrity of the bungalow and its interior so as to allow it to lose its characteristics as an inter-war Californian bungalow demonstrating the mission craftsman interior. The characteristics of inter-war style dwellings described in part 8.5.3.1 of the MDCP 2011 are instructive for the purpose of managing change to those dwellings through development, but I don't accept that elements of a dwelling that are inconsistent with those characteristics cause the dwelling to be excluded from the possibility of a heritage listing.
8. Fourthly, although I do not accept that on the available evidence the dwelling sufficiently satisfies criterion A or B to warrant listing as a heritage item, the further investigation described above may provide additional information as to whether the factors in criterion B are met. Mr Macken concedes, and I accept, that the site would be unlikely to be of sufficient significance under criterion A to warrant listing under this criterion only. However, I accept his evidence that combined other criterion, criterion A would be likely to inform the inclusion of the item as it is representative of the inter-war period.
9. Further, there is insufficient evidence to establish that the other inter-war housing identified by Forte Group at 94 and 102 The Boulevarde have all of the characteristics identified in 97 The Boulevarde. Even if I was to accept that they were better examples of inter-war housing, I do not consider that this would be relevant to the assessment of whether 97 The Boulevarde is likely, on further inquiry or investigation, to be found to be of local heritage significance.

Outcome of the appeal

1. I note that no expert opinion evidence was given with respect to the likely heritage significance of the detached rear garage, and that the above conclusion that the item is likely on further inquiry or investigation to be found to be of local heritage significance relates to the dwelling only. However, no submission was made that I ought to exclude the garage or any other element on the site from the IHO in the event I was satisfied that the IHO was appropriate.
2. For the reasons expressed above, I am satisfied that (1)(b)(i) of the authorisation of the Minister is met. The parties agree that the remaining conditions of the authorisation are met, including (1)(b)(ii) and (1)(b)(iii) (extracted above at [3]). Accordingly, I am satisfied that it is appropriate for the IHO to be issued pursuant to s 25(2) of the Heritage Act and that the Council's IHO should thus remain in place.
3. The Court orders that: 1. The appeal is dismissed. 2. The exhibits are returned. ………………………. Commissioner Gray

Amendments 20 August 2018 - Correction to [18] "Court" changed to "Council". 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: 20 August 2018