Late in the afternoon on Friday, 12 August 2022, I made orders granting a stay of a decision and orders made by Acting Commissioner Sheridan which were handed down on 29 July 2022 (in which the Acting Commissioner upheld an appeal by Helm No. 18 Pty Ltd ('Helm No. 18') against an interim heritage order published in the New South Wales Government Gazette, No 103, 11 March 2022, pending an appeal from that decision under s 56A of the Land and Environment Court Act 1979 (NSW) ('Court Act') which has now been set down for hearing on 22 August 2022.
Having received evidence and detailed argument, given the urgency of the matter, I indicated that I would grant the stay and provide reasons on Monday, 15 August 2022. These are the reasons.
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Background
The background facts are relatively uncontentious.
On 7 March 2022, North Sydney Council issued an interim heritage order ('IHO') under delegated authority pursuant to s 25 of the Heritage Act 1977 (NSW) in respect of the land at 115, 117, 131 and 133 Holt Avenue, Cremorne and, on 11 March 2022, the IHO was published in the New South Wales Government Gazette, No 103, 11 March 2022.
On 22 March 2022, Helm No. 18 commenced proceedings 2022/00081671 in Class 1 of the Court's jurisdiction appealing against the imposition of the IHO to the extent that it affected 131 and 133 Holt Avenue, Cremorne.
On 29 July 2022, the Acting Commissioner in Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406 revoked the IHO in so far as it applied to 131 and 133 Holt Avenue, Cremorne.
That same day, Helm No. 18 made an application for the issue of a complying development certificate for the demolition of the existing structure at 131 Holt Avenue, Cremorne.
By summons filed 11 August 2022, Council commenced an appeal pursuant to s 56A of the Court Act. That appeal provides as follows:
"ORDERS SOUGHT
1. The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is allowed.
2. Orders 1 and 2 of the court below are set aside.
3. The matter be remitted to be determined according to law.
4. The Respondent in relation to this Summons is to pay the Appellant's costs of this appeal.
APPEAL GROUNDS
1. The Commissioner erred on a decision on a question of law by failing to properly construe and apply the terms of the authorisation of the Minister under section 25 of the Heritage Act 1977 to make interim heritage orders for items in the council's area.
2. The Commissioner erred on a decision on a question of law by asking and answering the wrong question.
Particulars
(a) The Commissioner made the finding (at paragraph 72) "I am not persuaded that the properties are worthy of a local heritage listing on any other subsequently discovered grounds" and did not make any finding on the relevant question in the authorisation of whether "the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance".
(b) On the correct question ("the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance"), it was not reasonably open on the evidence to conclude that the test was not satisfied.
3. The Commissioner erred on a decision on a question of law by taking into account an irrelevant consideration.
Particulars
(a) The Commissioner erred in revoking the interim heritage order on the ground that it had served its statutory purpose in protecting the items allowing further research to be undertaken."
By notice of motion filed 11 August 2022, Council now seeks a stay of execution of the Acting Commissioner's judgment to prevent what Council understands to be a risk that the existing structure at 131 Holt Avenue, Cremorne will be demolished pursuant to an impending complying development certificate until such time as the appeal is finally determined. Council seeks the following order:
"ORDERS SOUGHT
1. The operation of the decision and orders made by Acting Commissioner Sheridan in Land and Environment Court Case No. 2022/81671 (Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406) on 29 July 2022 are suspended until the appeal made to this Court under section 56A of the Land and Environment Court Act 1979 in respect of the decision is determined."
Some further background facts will be noted in my summary of the parties' evidence and submissions.
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Evidence
Council read the affidavit of Peta Danielle Hudson affirmed 11 August 2022 who deposed to background facts recorded above. Council also tendered the extract of New South Wales Government Gazette, No 90, 12 July 2013, authorising local councils (including Council) to make interim heritage orders, and the minutes of Council's meeting held on 25 July 2022 recording that Council had resolved to endorse a Planning Proposal to obtain a Gateway Determination which would include the existing structure at 131 Holt Avenue, Cremorne as a heritage item under the North Sydney Local Environmental Plan 2013 ('NSLEP').
Helm No. 18 read the affidavit of Christopher Duncan Cunningham-Reid affirmed 12 August 2022. Mr Cunningham-Reid, the development manager for Helm No. 18, deposed that he estimates the "holding costs" for the development site (which includes 131 and 133 Holt Avenue, Cremorne) to be approximately $56,000 per week.
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Applicable principles
The applicable principles governing the grant of a stay are similar to those in relation to the grant of interlocutory injunctive relief and are well-known. The applicant must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of a stay (and preservation of the status quo) pending hearing, and that the balance of convenience favours granting the stay. These principles have been stated on many occasions.
I noted that in Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 at [46], Emmett AJA stated that the factors which should be taken into account in determining where the balance of convenience lies are:
"…the prima facie strength of [the applicant's] case, whether the potential damage that [the applicant] is likely to suffer if an order is not made outweighs the potential damage that [the respondents] are likely to suffer if an order is made and whether [the applicant's] undertaking as to damages is adequate. …"
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Submissions
Council's primary position is that irreparable harm will be caused if no stay is granted, that there is a serious question to be tried, and that there are more than reasonable prospects of success. Council submits that it has raised a compelling question of law which has proper prospects of success.
Council does not proffer an undertaking for damages and submits that, in the circumstances where there has been a separate Class 1 appeal filed in relation to further development on the subject site (which involves demolition and rebuilding) which itself is set down for a conciliation conference in the Land and Environment Court on 27 September 2022, the Court would not find that the "holding costs" referred to in Helm No. 18's evidence to be a determinative factor as the subject site cannot be developed until the determination of that appeal.
Helm No. 18 submits that there is no real prospect of success in the s 56A appeal in that Council has failed to identify any material question of law in the Acting Commissioner's decision and submits that Helm No. 18 is incurring significant holding costs in circumstances where Council does not proffer an undertaking as to damages.
Helm No. 18 submits that, although it is uncontroversial that the judgment must not be read with a fine-tooth comb approach, when considering the matters (particularly in pars [62], [63], [64], [65], [66], [67], [68], [69], [70] and [71]) within the Acting Commissioner's judgment, there is little doubt that the Acting Commissioner properly understood that which was before her and approached the consideration of the matter based upon a correct understanding of the appropriate law.
Helm No. 18 submits that the Acting Commissioner simply preferred the expert evidence called on behalf of Helm No. 18 over the evidence called on behalf of Council. The Acting Commissioner viewed the subject site, had detailed expert evidence before her, was well aware of the purpose served by an IHO, was satisfied that the IHO had served its statutory purpose in protecting the items to allow for further research to be undertaken, and that was the end of the matter.
Helm No. 18 submits that there is no substance in Council's submission (and the specific grounds raised in the appeal) that the Acting Commissioner asked herself the wrong question and the particulars provided in the grounds of appeal are not reflective of the manner in which the Acting Commissioner approached the matter.
Helm submits that Council's more recent conduct (in extending the time for the operation of the IHO by six months only days before the Acting Commissioner gave her decision and that Council has embarked upon the Planning Proposal after the conclusion of the hearing) may amount to Council seeking the stay with the collateral objective of allowing further time to progress the Planning Proposal to allow the amendment of the NSLEP to include the subject site.
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Consideration
Conscious of the factors of which the Court must be satisfied in order to obtain a stay (which I accept are similar to those considered in an application for an interlocutory injunction), and adopting the principles summarised above, I have considered, first, whether there is a serious question to be tried (as well as the likely prospects of success); second, whether the balance of convenience favours a stay; and third, that there is no undertaking to pay damages offered.
In relation to whether there is a serious question to be tried, conscious of the principles to be applied by this Court in considering appeals pursuant to s 56A of the Court Act, having read the judgment of the Acting Commissioner (and without in any way forming a considered view), I am satisfied that there is a serious question to be tried although, on reflection, I do not consider that the prospects of success are such that this aspect alone should be determinative of the present application.
In relation to the balance of convenience, I consider the evidence that if a stay is not granted it is likely that demolition of the existing structure at 131 Holt Avenue, Cremorne will proceed, to be the most compelling matter in favour of Council's position as on any view, this would deprive Council of the fruits of any success in the appeal pursuant to s 56A of the Court Act.
On the matters presently before me, and doing my best to balance the rights and interests of the parties, I consider the fact that the Court is able to hear the s 56A appeal in an exceptionally expedited manner (on 22 August 2022) and the parties are able to accommodate that date, it is appropriate to make an order for the suspension of the orders made by the Acting Commissioner and give directions for expeditious preparation for the appeal which, on the matters presently before me, is confined to a relatively narrow question.
While the fact that Council did not proffer an undertaking for damages was a matter which would have played significantly upon my determination of this application, in the present circumstances (in that an early appeal date is available), I do not find Council's failure to provide an undertaking to be determinative.
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Orders
The Court makes the following orders:
1. The operation of the decision and the orders made by Acting Commissioner Sheridan in Land and Environment Court Proceeding No. 2022/00081671 (Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406) on 29 July 2022 are suspended until the appeal made to this Court under section 56A of the Land and Environment Court Act 1979 (NSW) in respect of the decision is determined.
2. The hearing of the appeal under section 56A of the Land and Environment Court Act 1979 (NSW) commenced by Summons on 11 August 2022 is to proceed on 22 August 2022.
3. The parties are directed to confer and prepare appropriate Short Minutes of Order in accordance with the Schedule for the usual directions in the Land and Environment Court Practice Note - Section 56A Appeals reflecting the compressed timing for the hearing of the appeal, to be filed and served by 17 August 2022.
4. Liberty to apply on 48 hours' notice.
5. Costs of the Notice of Motion filed 11 August 2022 are reserved.
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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 August 2022